Positive Change for Marine Life Inc v Byron Shire Council

Land and Environment Court (NSW)|2015-09-11|Before: Craig J

Solicitors: Environmental Defenders Office (Applicant) H W L Ebsworth (First Respondent) King & Wood Mallesons (Second and Third Respondents) File Number(s): 40784 of 2015

Judgment

By a summons filed on 4 September 2015, the applicant seeks judicial review of a determination made by Byron Shire Council (the Council) on 4 June 2015 to undertake beach protection works along sections of Belongil Beach. At the time of filing its summons, the applicant also applied by motion for an interlocutory injunction to restrain the Council from carrying out any work pursuant to that determination.
Upon learning that the proceedings had been commenced, an application was made by three additional parties to be joined in the proceedings. That application was determined by me on 9 September 2015 when I ordered that the second and third respondents be joined in the proceedings (Positive Change for Marine Life Inc v Byron Shire Council) [2015] NSWLEC 147). Each of those two respondents is the owner of land that has frontage to Belongil Beach. Their respective properties are directly affected by the Council's proposed beach protection works.

History of beach erosion

Belongil Beach forms part of the Byron Bay embayment, extending for about 1.5 kilometres of the embayment coastline. It lies immediately to the north of the Byron Bay town beach.
Beach erosion occasioned by coastal processes along the Byron Bay embayment and particularly along Belongil Beach has been notorious for some years. Significant beach erosion following major storms has been recorded in 1999, 2001, 2009, 2012 and again in 2013. Following each of these events, measures have been taken in an endeavour to arrest further erosion. Some of those measures have involved self-help by property owners. Measures of that kind, at least following the earlier events that I have noted, included the dumping of car bodies and other hard materials on the frontal sand dune.
Following the storm event in 2001, interim beach protection measures were undertaken by the Council. That was done under a development consent granted by the Council to itself on 8 November 2001. Those measures involved the construction of geobag walls along sections of Belongil Beach. One of the sections of Belongil Beach along which geobag walls were constructed is known as the Manfred Street site.
The measures then taken were described as "interim" as they were designed to reduce the risk of erosion while the Council developed and implemented a long-term coastline management plan. According to the Statement of Environmental Effects that accompanied the 2001 development application for construction of the wall, sand-filled geotextile bags or containers were not expected "to provide effective protection against large storm events".
The major storm event in 2009 and those that have occurred subsequently have, as was anticipated in 2001, damaged the geobag walls. This has necessitated repairs to and, in some cases, rebuilding of those walls as well as requiring their ongoing maintenance.
In addition to the geobag walls, there are sections of Belongil Beach along which rock rubble revetment walls have been constructed, generally as a self-help response by property owners affected by the significant erosion that has occurred during major storms. At Manfred Street, this interspersion of different beach protection measures has resulted in a length of sandy beach along which a damaged geobag wall remains, bounded at either end by a rock rubble revetment wall. The interaction between these different forms of beach protection are said to be impacting upon local coastal processes.
Following significant beach erosion that occurred during the 2009 storms, despite the presence of the geobag wall, measures were proposed to be taken by John Vaughan, the third respondent, to place rock on the beachfront adjoining the seaward boundary of his property in order to prevent further erosion. Some of his land had been eroded by wave action occasioned by that storm. His threat resulted in the Council commencing proceedings in this Court seeking to restrain his proposed work. Mr Vaughan, in turn, brought proceedings in this Court against the Council, seeking to enforce compliance with the 2001 Development Consent that the Council had granted to itself for beach protection works.
Both proceedings were resolved when the Council and Mr Vaughan agreed upon the terms of consent orders made by this Court on 1 February 2010. Apart from declarations as to the validity and effect of the 2001 Development Consent, the Council was ordered to maintain the existing geobag wall on the Council land and to complete the re-establishment of sand behind the existing geobag wall in accordance with the development consent. The orders then made also included a declaration to the effect that Mr Vaughan was entitled, but not obliged, to maintain and repair the existing geobag wall. In describing the orders then made, I have directed attention to their substance rather than their form. Other or ancillary orders were then made but it is unnecessary to refer to them for present purposes.
I am told that following the orders made on 1 February 2010, further erosion occurred along the Manfred Street section of Belongil Beach, including an area of the beach adjacent to Mr Vaughan's property. He claims that further damage to his property occurred by erosion as a consequence of the Council's failure to adhere to the consent orders. His claim in that regard is the subject of proceedings in the Supreme Court which are yet to be heard. Nothing arising in these proceedings requires adjudication upon any matter that is the subject of that dispute. However, the evidence pertaining to it was allowed on the basis that the fact of the dispute potentially bears upon an issue that I am required to determine, namely that element of discretion when determining an application or an interlocutory injunction directed to the balance of convenience.
Both Mr Vaughan and Shuttlewood Properties Pty Ltd, the second respondent, support the beach protection works proposed by the Council at the Manfred Street site.

Council decision to proceed with beach stabilisation works

In early 2013, the Council received a detailed report entitled "Byron Bay Erosion Protection Structures - Risk Assessment" prepared by consultants Worley Parsons. Shortly prior to receipt of that report, the Council also received a report from the Water Research Laboratory at the University of New South Wales entitled "Comparison of Coastal Engineering Aspects of Sandbag Seawalls with Rock Seawalls". These reports were considered at a meeting of the Council on 21 March 2013 when it resolved, in substance, that the General Manager be authorised to "pursue options for rock/hard materials for the purpose of providing interim protection at Manfred, Border and Don Streets, Belongil" until a long term coastal management policy has been adopted.
Following that resolution, a Review of Environmental Factors for Interim Beach Access Stabilisation (BAS) works was prepared by Umwelt (Australia) Pty Limited on behalf of the Water Research Laboratory for the Council (the REF). The REF identified a limited number of alternatives for this work, selecting rock rubble structures as the most "appropriate interim BAS works for sites at Manfred, Don and Border Streets". Reasons for selecting that design option are stated. The REF then proceeded to review environmental factors based on the selected method of temporary beach stabilisation. The REF concludes by stating: "The construction controls and mitigation measures outlined in this REF have been designed to minimise potential impacts of the proposed installation of interim BAS works at Belongil on the environment and community. This REF has identified that the proposed activity will not significantly impact on the environment or community."
The design of the stabilisation works considered in the REF is the subject of a separate report prepared by the Water Research Laboratory in October 2013. The REF was prepared because the proposed beach stabilisation works did not require the grant of development consent. This was the consequence of the provisions of cl 129 of State Environmental Planning Policy (Infrastructure) 2009 (the Infrastructure SEPP) whereby development for the purpose of "waterway and foreshore management activities" may be carried out by or on behalf of a public authority without development consent. Activities meeting that description were defined in cl 128 of the Infrastructure SEPP to include "coastal protection works" within the meaning of the Coastal Protection Act 1979 (NSW). Section 4(1) of that Act defined "coastal protection works" as meaning: "… activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment".
The REF prepared by Umwelt was considered by the Council at its meeting on 19 December 2013. At that meeting the Council resolved: "1. That the Review of Environmental Factors satisfies the Provisions of Section 111 of the Environmental Planning and Assessment Act 1979 and that the proposed works are considered unlikely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats. 2. That Council endorses the Review of Environmental Factors for the Interim Beach Access Stabilisation Works at Belongil, Byron Bay … and adopts the design for the Belongil Interim Beach Access Stabilisation Works … subject to: (a) the inclusion of a modular stair structure and/or stairs, that can be removed in order to restrict access when beach conditions are unsafe; and (b) the removal of the reference to the sandbagging of kerb inlet in Table 5.6 of the REF."
The resolutions then passed by the Council also included a resolution that the Coastal Panel and other relevant agencies be invited to make a presentation to the Council in February 2014 on matters raised in correspondence by the Coastal Panel so as to clarify "how these proposed works would inform and compliment the Coastal Zone". The Coastal Panel, a body constituted under the Coastal Protection Act 1979, had written to the Council expressing its reservation as to the suitability of the proposed works. Reasons were given for so indicating. Likewise the Crown Lands Section of the Department of Trade and Investment stated in correspondence that "there are concerns regarding the proposal that has been presented". The reason for those expressed concerns are set out in an attachment to that letter. These responses from Government agencies no doubt informed the resolution of the Council, inviting those agencies to make a "presentation" to the Council. The evidence does not reveal whether that presentation took place.
It is apparent that the resolutions of 13 December 2013 were not regarded by the Council as its final authorisation to proceed with beach access stabilisation works. During 2014 further design of the works was carried out on behalf of the Council by Local Government Engineering Services Pty Ltd, the final plan for those works being dated 27 October 2014. What occurred between that date and June 2015 is not disclosed in the evidence.
On 4 June 2015 a document headed "Review of Environmental Factors Approval Form" was signed by Phillip Holloway, the Council's Director of Infrastructure Services. As tendered, the document is attached to the REF. In the body of the Approval Form, the REF is recorded as assessing the potential impacts that may result from activities associated with the works described under the heading "Project Description" in Section 3 of the REF. The Approval Form then recites the fact that the Council is a determining authority, as defined in the EPA Act, and that the proposal satisfies the definition of an "activity" under that Act. The form continues: "This REF has been prepared in accordance with Section 111 of the EPA Act and Clause 228 of the Environmental Planning and Assessment Regulation 2000. The Act requires Byron Shire Council to assess the impact of a proposal on the environment and the Regulation sets out environmental factors to be considered in making the assessment. If the activity is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats (significant effect), an EIS approval under the EPA Act will be required. The environmental impact assessment addressed in this REF concludes that the proposed activity is unlikely to have a significant effect."
Above Mr Holloway's signature on the Approval Form are the words "endorsed and approved to proceed". Beneath Mr Holloway's signature, his title and the date, the following words appear: "Revised REF in accordance with Council Resolution 13-713 from Council's Ordinary meeting of 19 December 2013."
For the purpose of the present motion, all parties accepted that the approval signed by Mr Holloway on 4 June 2015 constituted the approval by the Council to carry out all beach stabilisation access works identified in the REF. Although the REF identifies three locations at which those works are to be carried out, all parties also accept that the Council presently intends to commence those works at the Manfred Street section of Belongil Beach.

Statutory provisions

The decision by the Council to approve and to carry out the proposed beach access stabilisation works is one relevantly governed by the provisions of Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Those works constitute an "activity" within the meaning of s 110 of the Act. Section 111 relevantly provides: "111 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity."
As will be apparent, both the relevant resolution of the Council of 19 December 2013 and the Approval Form signed by Mr Holloway on 4 June 2015 assert that the REF has been prepared "in accordance with" that section. Clause 228 of the Environmental Planning and Assessment Regulation 2000 identifies, for the purposes of Pt 5 of the EPA Act, factors to be taken into account "when consideration is being given to the likely impact of an activity on the environment". As the chapeau to subclause (1) indicates, the specified factors are not exhaustive but are factors to be included when considering the relevant statutory requirement.
Having regard to the basis of the applicant's claim, s 112 of the EPA Act must be noticed. The section relevantly provides: "112 Decision of determining authority in relation to certain activities (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity … that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless: (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity; (i) prepared in the prescribed form and manner by or on behalf of the proponent …, … (b) notice referred to in section 113(1) has been duly given by the determining authority …, the period specified in the notice has expired and the determining authority has examined and considered any representations made to it or any other determining authority in accordance with s 113(2), (c) the determining authority has complied with s 113(3) …".
Section 113 makes provision for the public notification and exhibition of an environmental impact statement that has been prepared in order to meet the requirements of s 112.

Principles for the grant of an interlocutory injunction

The principles required to be applied when determining the applicant's motion for an interlocutory injunction are not in contest. Those principles require the applicant to demonstrate that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction.

Serious question to be tried

The applicant brings the proceedings pursuant to the open standing provisions of s 123 of the EPA Act. No right that is personal to it is claimed to be infringed by the work that it seeks to restrain. The applicant's case is that if the beach access stabilisation works are carried out as the Council proposes to do, those works are likely to have a significant affect upon the environment. No environmental impact statement has been prepared, as s 112 of the EPA Act requires, with the consequence that the approval for that work (an "activity") and the carrying out of the work will each involve a breach of the EPA Act.
For the purpose of the present application, the parties accepted that it was for the Court to determine, on the evidence before it, whether the proposed works were "likely to significantly affect the environment" (Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; 195 LGERA 229 at [300]). Relevantly, it was also accepted that in the phrase "likely to significantly affect the environment", the word "likely" should be understood as meaning "a real chance or possibility" and that the adverb "significantly" should be taken to mean "important", "notable", "weighty" or "more than ordinary" (Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [84] and the cases there cited).
In order for the applicant to sustain its claim for an interlocutory injunction, it must demonstrate, by evidence, a reasonably arguable case that the impact of the work proposed to be undertaken by the Council falls within the statutory criterion expressed in s 112 of the EPA Act as necessitating the preparation of an environmental impact statement. The applicant's evidence directed to this issue consisted of an affidavit affirmed by Peter Cowell on 6 September 2015. Dr Cowell is a coastal geoscientist with over 40 years of research, teaching and consulting experience. He is currently an Honorary Associate Professor with the School of Geosciences at the University of Sydney. As a result of his involvement in previous studies, he is familiar with the Byron Bay embayment and, particularly with Belongil Beach, also referred to by him as the Belongil Spit.
The report prepared by Dr Cowell is annexed to his affidavit. It is sufficient for present purposes briefly to summarise the conclusions expressed in his report, founded upon his general experience, his familiarity with Belongil Beach, his consideration of the REF and the design for the proposed rock rubble walls that are the subject of the REF.
The opening paragraph of the executive summary to his report states: "Significant changes to geomorphic conditions are likely to occur due to the planned construction of rock rubble sea walls in the vicinity of Manfred, Don and Border Streets at Belongil, in Byron Bay, NSW. These changes in turn are likely to have significant effects on factors listed under Clause 228 of the EP&A Regulations."
His summary continues: "The planned construction works primarily entail coastal protection infrastructure with ancillary pedestrian beach access structures. The design geomorphic effect is to limit temporary erosion and mean-trend recession of the local coast. Other effects will comprise limited exchange of sand between the dune, beach and surfzone, including reduction in dune sand recharge during periods of post-erosion recovery, a narrowing and frequent loss of a dry beach at the site, probable effects on surfzone circulation (involving rip currents), and continued cumulative loss of sandy depositional environments and their associated physical habitat and beach amenity. The amenity loss for beach goers will likely also create a significant safety hazard. All of these effects are more likely than not to have long term persistence because historical experience throughout NSW is that once in place, rock seawalls are very seldom removed, even when illegally built."
Emphasis appears to be upon a degradation in the recreational amenity of beaches not only by reason of the extended rock wall construction with its wide base but also because of the impact that it will have upon beach safety and loss of beach because the wall, will in turn, affect the natural process of sand recharge following loss in storm events. Coastal processes are said to be altered because the construction of the rock wall "can be expected to affect rip current circulation and surf zone sand transport". The effects identified in the Executive Summary are the subject of more detailed discussion in the body of the report.
Two affidavits sworn by engineers retained by the Council were read without objection from the applicant. First was an affidavit affirmed by James Carley, the Principal Coastal Engineer with the Water Research Laboratory, University of New South Wales. Mr Carley holds a master of engineering science degree in coastal engineering and has over 22 years experience in that discipline. He was the principal author of the report directed to the design of the interim beach access stabilisation works for Belongil Beach which is the subject of the REF. Mr Carley was retained to review the report of Dr Cowell and to consider whether the approved works "are likely to have a significant affect on the environment". A report addressing these issues is annexed to his affidavit.
Mr Carley's report first addresses the present situation in which he refers to the "sand-filled geotextile containers" that formed the wall constructed in 2001 and which was designed to withstand "small seas combined with high tides". He identifies them as having been substantially damaged on occasions, requiring rebuilding and/or repair. He notes the Worley Parsons Report of 2013 stating that those structures would fail in an event having less than a one year average recurrence interval.
Importantly, Mr Carley challenges a number of statements made in the report prepared by Dr Cowell. Mr Carley opines that the "significant effect" identified by Dr Cowell would not arise from carrying out the proposed works because the effect posited by Dr Cowell has already taken place by reason of the existing protective measures constructed along Belongil Beach, including the existing geotextile container structures.
Although the report of Mr Carley is detailed, it is unnecessary to record that detail for present purposes. While issue is taken by him with a number of specific statements or conclusions drawn by Dr Cowell, the essential thrust of the report prepared by Mr Carley is that the proposed wall at Manfred Street will generally follow the alignment of the existing geotextile wall so that the geomorphic impacts posited by Dr Cowell would not differ from those that are presently occurring. The construction of the proposed wall will address, in the interim, the shortcomings in the present geotextile or geobag wall that is unable to provide protection in significant storm events. Mr Carley also identifies the time of year when erosion events are more likely to occur, based on both tide and storm history, with the consequence that the optimum time to carry out the proposed work is between now and December.
The Council also read an affidavit of Justin Meleo, the Principal Environmental Consultant at Umwelt. Dr Meleo holds an honours degree in science, focussing upon coastal geomorphology, and a PhD in geosciences. He has over 20 years experience in environmental consulting and planning, with expertise in coastal, fluvial and estuarine geomorphology. He is the author of the REF.
Dr Meleo confirmed the conclusion expressed in the REF that the proposed beach access stabilisation works would be unlikely to result in a significant impact on the environment. The focus of his evidence is upon the cumulative effects of constructing new rock rubble revetment walls at each of the three sites that were considered in the REF. His focus for present purposes was directed to matters raised by Dr Cowell.
The essence of Dr Meleo's evidence may be summarised as follows: 1. the replacement of the geobag seawalls with the rock rubble revetment walls would be unlikely to alter the frequency and severity of beach erosion because in an erosion event there would be very little beach available for public use irrespective of the type of beach protective structure that was in place; 2. no change in beach accessibility at either Manfred Street or Don Street is likely to occur in an erosion event because the face of the existing rock seawalls to the north and south of each section of beach is further seaward than the face of either the existing geobag wall or the proposed rock rubble wall, thereby inhibiting that access; 3. while the proposed rock rubble walls are, in places, up to 2m higher than the existing geobag wall, that height difference would not be discernible as the crest height of the proposed rock wall "would blend with the surrounding vegetated dune"; 4. a rock wall provided greater potential for marine ecological habitat than does the existing geobag wall; 5. the higher crest of the proposed rock wall is likely to result in less washover in the event of a major storm than is the case with the existing geobag wall; 6. the proposed wall is unlikely to result in any sand deficit along the beaches; and 7. as the existing quality of the environment at each of the three locations is "intrinsically linked to the presence of the geo-bag walls", the replacement of those walls by the proposed rock rubble walls is unlikely to adversely affect that quality, rather it will assist in maintaining the quality of the existing beach environment. In drawing a number of these conclusions, Dr Meleo relied upon the 2013 report prepared by the Water Research Laboratory, being the report referenced in his REF.
The second and third respondents read draft reports prepared by Leslie Jackson, the Principal Coastal Engineer and owner of an engineering consulting company known as International Coastal Management Pty Ltd. No objection was taken by the applicant to those draft reports being read.
Mr Jackson holds a civil engineering degree and has over 30 years experience in coastal engineering. He is an adjunct research fellow at Griffith University. Like Dr Meleo, he has considered the report of Dr Cowell and framed a response directed to the principal matters addressed in the Cowell report.
The thrust of Mr Jackson's evidence may be summarised as follows: 1. while Dr Cowell appears to have addressed the effect from all three sites in the REF, only the Manfred Street works are presently proposed, as the beach at that location is at greatest risk because the present geobag seawall extending north from Manfred Street is inadequate and would be expected to fail in another severe storm, both by reason of sandbag displacement and overtopping of that wall; 2. that wall is inadequate because the sand filled geobags are of inadequate weight, some are already damaged and the height of the present wall is insufficient to prevent overtopping; 3. the likely movement of individual bags or containers, coupled with overtopping of the seawall and loss of material from behind that wall would result in its collapse and the dune behind the seawall being further eroded; 4. in the context of this section of coastline, the change in wall material would be insignificant with no incremental impact beyond that occurring with the present wall in place; 5. the curved alignment of the proposed rock wall is likely to lead to the development of a small sandy cove, with the consequence that the beach would become wider; 6. the setback of the proposed wall at Manfred Street from the general seaward alignment of existing rock structures would cause it to be landward of "the general coastal processes" and only exposed in severe conditions to limit erosion; and 7. in the event that the rock wall is fully or partially constructed and its removal required, this can easily be undertaken.
I have summarised the evidence of the experts in some detail in order to identify the issues among them. Critically, there is disagreement between Dr Cowell on the one hand and the three experts called by the respondents on the other as to the likely environmental impact and its significance if the proposed wall is constructed.
The Council submitted that, having regard to the expert evidence, the applicant had failed to demonstrate that there is a serious question to be tried. It emphasised the generality of the opinions expressed by Dr Cowell, his lack of focus upon the likely environmental impact and its significance resulting from construction of the Manfred Street works and the expression of opinion that any impacts were only likely to be experienced in the long term. As the proposed rock rubble wall was intended only as an interim measure, until the Council completed its Coastal Zone Management Plan in which long term measures for coastal protection of beaches, including Belongil Beach, would be addressed, the long term impacts were presently immaterial to the determination of likely significant affect. The Council submits that the evidence of Mr Carley, Dr Meleo and Mr Jackson all demonstrate that Dr Cowell's assessment of likely impact from construction of the rock wall cannot be sustained.
I accept that the report of Dr Cowell is expressed at a level of generality. However, on that account alone, it is not damned. Understandably, it is a report directed to the REF which, itself, is not confined to Manfred Street but is directed to the three sites or sections of beach earlier identified. While it may be that the Council intends to proceed first with the Manfred Street works, there is no indication before me that it would not thereafter proceed with works at the other two sites.
The REF stated that the anticipated construction time (presumably for each site) was "between two to three weeks dependent on weather and local surf conditions", whereas other evidence tendered on behalf of the Council estimated a construction time for the Manfred Street works to be 12 weeks. A project of that duration involving construction of an engineered rock wall at a cost exceeding $1,000,000 and extending for about 113m along the beach does not seem to me to involve an insignificant engineering project. Whether the difference in construction time has an impact of any significance may need to be further considered.
Each of the four experts whose affidavits or reports were read would appear to be well qualified to express the opinions found in those documents. As all acknowledged, they had been asked to prepare their statements within a very short period of time. While the experts called by the respondents had the opportunity to consider and comment upon the report of Dr Cowell, he did not have the opportunity to respond. That is not a criticism as the application came on for urgent determination and the respondents' expert reports were only provided to the applicant on the evening prior to the commencement of the hearing. In those circumstances, I am in no position to form a view as to whose expert opinion might ultimately be accepted.
Accepting that Dr Cowell's report is expressed in general terms, I am nonetheless satisfied that there is sufficient material in it to demonstrate a reasonably arguable case that the proposed rock wall construction is likely to have a significant effect upon the environment. His report is not so devoid of reason as would require me to conclude, at this interlocutory stage, that his opinions will not ultimately be accepted. Whether that position pertains at final hearing will of course depend upon a more detailed consideration of all of the evidence and, in particular, the expert evidence, including joint conferencing of those experts, and the preparation of an expert joint report.
I should add that in reaching the conclusion that there is a reasonably arguable case to be advanced on behalf of the applicant, I take account of the response to the REF from a number of public authorities, particularly the response from the NSW Coastal Panel and Crown Lands Division of the Department of Trade and Investment. As I have earlier indicated, those responses appear to have been provided to the Council prior to its initial assessment of the REF in December 2013. They identify shortcomings with the Council's proposed works and their impacts.
As the respondents submitted, the strength of the applicant's case is relevant to the balance of convenience to be considered when determining whether an interlocutory injunction should be granted. It is to that topic that I now turn.

Balance of convenience

Determining where the balance of convenience lies requires me to consider "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted" (Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 623). As Preston CJ observed in Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 at [13] the greater the injury or inconvenience to the defendant or respondent, the greater the reluctance of the Court to grant the injunction sought.
There are a number of factors to be considered when determining how the general principle that I have identified should be applied to the circumstances of this case. Those factors that I consider to be relevant are identified in the following paragraphs.

Harm

In the present case, there are competing public interests. There is the public interest that the applicant seeks to sustain by securing adherence to the law. If, as it contends, the Council proposes to undertake an "activity" in breach of s 112 of the EPA Act, there is the potential for harm to the environment of the kind described by Dr Cowell as well as harm to the regime of environmental assessment imposed by the provisions of Pt 5 of the EPA Act. Clearly, harm of that kind is not an "inconvenience or injury" suffered personally by the applicant as an incorporated association. Nonetheless, it is harm constituting "inconvenience or injury" that is otherwise sufficient to be weighed in the balance against that "inconvenience or injury" that may be suffered by the respondent (Tegra at [17]-[19]).
The Council must also be taken to represent the public interest. That interest lies in carrying out works intended for the public benefit by arresting further beach erosion along Belongil Beach. Not only is that work intended to retain an important public amenity in use of the beach itself, it is intended also to protect public infrastructure as well as private property adjoining the beach. The proprietary interests of those that may be harmed if beach stabilisation work is not carried out is exemplified by the interests of the second and third respondents.
The evidence presently tendered makes apparent the fragility and ineffectiveness of the existing geobag wall at Manfred Street as a beach stabilisation measure. According to the evidence of Mr Carley, the wall is likely to fail in a storm event with a one year average recurrence interval. An event of or above that magnitude would invariably involve something more than "small seas combined with high tides" which was the basis for the design of the geobag walls in 2001.
The opinion of Mr Carley is supported by the evidence of Mr Jackson. Not only does he state that "in another severe storm" the present wall would be expected to fail but also opines that such a failure would threaten a breach of the Belongil Spit. That would involve ocean waters moving across the narrow and low lying strip of land that separates Belongil Beach from the Belongil estuary, thereby occasioning "extensive environmental and property damage" with a risk to the safety of residents and emergency workers.
The capacity of the existing geobag wall to perform an effective beach erosion measure in the event of a significant storm is not directly addressed by Dr Cowell. The focus of his evidence is upon the impacts of the proposed rock rubble wall.
In short, the evidence presently available indicates that there is a risk of harm to both the public and private domain if the stabilisation works proposed by the Council are not carried out. For reasons that will shortly become apparent, that potential for harm is greater than the potential for harm if the injunction is granted.
As I presently understand the evidence of Dr Cowell, the likely significant effect that he posits if the proposed rock walls are constructed is not an immediate effect. Conversely, if the Council proceeds immediately to carry out the beach access stabilisation works and ultimately the Court determines that in doing so it has breached the EPA Act, with the consequence that both an injunctive and remedial order should be made, the rock rubble wall that has been constructed may be removed. Its removal is described by Mr Jackson as being "very easy" by use of an excavator with a rock grab and rocks removed from the site by truck. Indeed, the evidence shows that the Council had budgeted for the removal of the wall in 10 years for a cost in a present day dollar value of $175,000.
I accept the observation of the applicant that the inadequacy of the existing geobag wall to act as an appropriate beach erosion control has been apparent for some time. Indeed, subject to minor amendment, the REF was accepted by the Council as being appropriate, including preliminary design work, in December 2013. Other than the need for the preparation of detailed design of each of the three sections of rock rubble wall to be constructed along Belongil Beach, the evidence does not otherwise explain the lapse of time between December 2013 and June 2015 when approval was given.
However, against that observation account needs to be taken of the evidence from Katherine Knight, the Council's Coastal and Estuary Officer, Phillip Holloway and Mr Carley as to the seasonality of major storm events. Their combined evidence is to the effect that the months of the year during which significant cyclonic events are most likely to occur are between late December, early January through to June. As Mr Carley records, the Brisbane and Byron Bay wave buoys have the smallest average waves in spring and the largest in autumn. This has the consequence that the optimum time to carry out wall construction is in the period from August through to December. According to Mr Holloway, that is the period of the year in which there is least risk of exposure to a storm event and the period most likely to provide "the safest work environment for contractors and reduced risk of exposure of the unprotected dune and public assets such as beach access points during the works".
Mr Holloway further states that if works cannot be completed by early December this year, he would recommend their deferment until March 2016. As would be apparent, that deferment brings with it the prospect of harm from further erosion events during the forthcoming cyclonic weather season.

Any undertaking as to damages

Relevant to the exercise of discretion to grant an interlocutory injunction is any undertaking proffered by the applicant to pay for damages that may be incurred by the respondent or respondents in the event that the applicant does not succeed in its claim. Not only is the offer itself relevant but also whether, assuming such an offer was made, the respondents would be protected by such an undertaking.
While in litigation seeking to preserve private rights an undertaking as to damages will almost always be required when an interlocutory injunction is sought, the offer of an undertaking as to damages in environmental proceedings, apparently brought in the public interest, may be less appropriate. The reasons for so saying are explained by Preston CJ in Tegra at [30]-[31]. I do not repeat but gratefully adopt what his Honour there said.
To those reasons I would add reference to the provisions of r 4.2(3) of the Land and Environment Court Rules 2007. As will be seen, that rule is applicable where proceedings have been brought "in the public interest". While the evidence is presently scant, I will accept, for present purposes, that the applicant does bring the proceedings in the public interest with the consequence that under the rule "the Court may decide not to require … any undertaking as to damages". Even so, absence of an undertaking as to damages is a relevant factor when determining the balance of convenience.
The evidence reveals that on 28 July 2015 the Council entered into an agreement with Harding's Earthmoving for the Manfred Street beach access stabilisation works. The contract sum is $1,225,047, with a time for completion of 12 weeks from the date of acceptance of the tender. Condition 12.3 of the agreement renders it possible, although not certain, that if the works do not proceed as presently scheduled, the contractor may have an entitlement to be paid delay costs in accordance with that clause, capped at $1,133 per day. Thus, it is possible that if the injunction sought by the applicant is granted, the Council would incur a loss calculated at that rate. That is relevant when considering the absence of an undertaking as to damages.

The status quo

The general purpose of an interlocutory injunction is to preserve the status quo pending final determination of the proceedings. However, in order to apply such a general principle, the Court is required to determine where the status quo lies and whether any alteration to the status quo would be irreparable (Tegra at [34]).
Considered at a level of generality, the status quo in the present case is a beach at the Manfred Street site with a low and damaged geobag wall, that was not designed to prevent or arrest erosion from major storms affecting that beach nor to prevent or limit damage to property, both public and private, lying immediately behind the beach. That is the status quo that the applicant seeks to preserve by restraining any beach access stabilisation work pending final determination of these proceedings; that is the state of affairs that existed at the date upon which the present proceedings were commenced.
However, it seems to me that greater particularity is required in identifying the status quo. When the evidence is considered as to the state of affairs that pertained at the time of commencement of the proceedings, there are at least two further matters that are relevant.
First, not only are a number of the geobags used to construct the existing wall now damaged, according to the evidence of Mr Holloway they have now been in place far longer than the design life intended for them, with the consequence that they are breaking down and not fulfilling even their original function as earlier recorded. The untested but presently uncontradicted evidence of the respondents' experts indicates that the existing wall is likely to fail in a relatively minor storm event. In that context, I conclude that the interlocutory injunction sought by the applicant, if granted, may not maintain the environmental status quo.
Secondly, there is and was in place at the time of commencement of proceedings a contract for stabilisation works to be carried out at the Manfred Street site. Under that contract, materials had been ordered, some of which were stored on the site, and the site itself had been prepared in readiness for construction to commence. While construction of the rock wall will alter the status quo, it will not, according to the evidence presently led, do so in a manner involving a change that is irreversible.

Relative strength of the case

I have earlier stated, on the evidence presently before me, that the case sought to be made by the applicant for breach of s 112 of the EPA Act was reasonably arguable. However, based on that same evidence, I would not conclude that it is a strong case.
In proceedings of the present kind, the strength of the applicant's case is important in the overall consideration of the balance of convenience. As I have earlier stated, at issue in the present case are competing public interests. In a case of that kind, the observations of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 are particularly relevant where his Honour said (at 154): " … it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience …".
As the present case demonstrates, the public interest is multi-faceted. In the present case, I consider that it weights against, rather than favours, the grant of interlocutory relief.

Prejudice to third parties

The applicant submitted that no prejudice would be occasioned to any third party if the injunction that it seeks is granted. It identifies the Court orders entered in proceedings between the Council and Mr Vaughan enabling, but not obliging, him to maintain and repair the existing geobag revetment wall that adjoins his property. The applicant also contends that Shuttlewood Pty Ltd would be entitled to carry out work by constructing a seawall under the provisions of the Infrastructure SEPP.
These submissions are correct so far as they go but do not adequately address the effect that an interlocutory injunction may have upon third parties. In the case of Mr Vaughan, his entitlement to maintain and repair the existing geobag wall does not address the apparent inadequacy of that wall to protect the beach and land behind it from erosion in a major storm. Shuttlewood would only be entitled to take measures to erect a seawall in accordance with a consent first obtained for that purpose conformably with cl 129A of the Infrastructure SEPP. That is hardly likely to avail that company in the event of a major storm.
Further, focus upon the interests of Mr Vaughan and Shuttlewood does not fully address the potential impact upon other parties. The Council is also the owner of land that adjoins the beach at the Manfred Street site and so is potentially affected in its capacity as a property owner. Moreover, one of the purposes of constructing the proposed rock rubble wall is to protect infrastructure that may be affected by breach of the present wall. There is potential for significant affect upon public assets should the injunction be granted and, pending final determination of the proceedings, a major storm occurs that breaches the existing wall.

Conclusion on balance of convenience

In determining the balance of convenience, I have concluded that the balance weighs against the grant of an interlocutory injunction. Significant among the factors that lead me to this conclusion is the absence of evidence indicating that construction of the rock rubble wall at the Manfred Street site will have an immediate environmental effect of significance. Coupled with that factor is the circumstance that should the applicant succeed at the final hearing of the proceedings in obtaining a remedial order, the wall can be removed at a cost for which the Council has already budgeted and without apparent significant detriment to the environment.
Conversely, if an injunction restraining the construction of that wall is now granted, it will leave open a possibility, that is not fanciful and is consistent with past events, of irreversible environmental damage to both the public and private domain. In short, the environmental harm that may occur by construction of the wall is outweighed by the potential environmental harm to the public and private domain that may occur if the injunction is granted and a major storm occurs causing further beach erosion.
This conclusion renders it unnecessary to address the further arguments of the respondents, contending that delay in commencing the proceedings should weigh against the order sought. I have not considered submissions to that effect for the purpose of reaching the conclusion that I have expressed.
It is for these reasons that on 11 September I ordered that the applicant's notice of motion seeking interlocutory relief be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2015

Coastal Protection Act 1979(NSW)

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