Tegra (NSW) Pty Limited v Gundagai Shire Council and Anor

KEY ISSUES: Injunctions and Declarations :- interlocutory injunction - application to restrain carrying out of quarry in accordance with development consent - principles governing grant of interlocutory injunction - serious questions to be tried as to breach of statutory provisions for notification before and after grant of consent and in grant of consent - balance of convenience - factors discussed - balance of convenience favours not granting interlocutory injunction

Environmental Planning and Assessment Act 1979 s 77A, s 78A, s 79, s 79C s 81, s 97, s 98, s 123, s 124 LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 Part 3A Land and Environment Court Act 1979 s 20(2)

American Cyanamid Co v Ethicon Ltd [1975] AC 396; Armidale Local Aboriginal Land Council v Transgrid [2000] NSWLEC 141 (17 May 2000); Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248; Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 218; Baulkham Hills Shire Council v Dix Gardner Pty Ltd [2004] NSWLEC 271 (4 May 2004); Beecham Group Ltd v Bristol Laboratories Pty Limited (1968) 118 CLR 618; Blacktown City Council v Wilkie [2001] NSWLEC 91 (6 March 2001); Botany Municipal Council & Ors v Minister of State for Transport and Regional Development & Ors (1996) 90 LGERA 81; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGRA 436; Bush v Minister for Local Government (2002) 124 LGERA 256; Calvin v Carr [1980] AC 574; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 (16 July 2002); Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216 (20 November 2002); Carriage v Stockland Development Pty Ltd [2004] NSWLEC 320 (22 April 2004); Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148; Corkill v Forestry Commission of NSW (1990) 71 LGRA 116; Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570; Ellison v Warringah Shire Council (1985) 55 LGRA 1; Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772; Garden Cottage Foods Ltd v Milk Marketing Board [1984] 1 AC 130; Harold Stephen & Co Ltd v Post Office [1977] 1 WLR 1172; Heavener v Loomes (1924) 34 CLR 306; Hubbard v Vosper [1972] 2 QB 84; CASES CITED: Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 ; Liquorland (Aust) Pty Ltd v Anghie (2002) 20 ACLC 58; Marrickville Council v G & K Psakis Pty Ltd [2004] NSWLEC 663 (1 December 2004); Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82; Metroll Victoria Pty Ltd v Wyndham City Council (2007) 152 LGERA 437; Optus Networks Pty Ltd v Stonnington City Council [1996] 2 VR 209; Oshlack v Richmond River Shire Council (1994) 82 LGERA 236; Parker v Camden London Borough Council [1986] 1 Ch 162; Perrey v Mordiesel Co Pty Ltd [1976] VR 569; Preston v Luck (1884) 27 Ch D 497; Reg v Secretary of State for Transport, ex parte Factortame Ltd (No 2), [1991] 1 AC 603; Richardson v Forestry Commission (1987) 73 ALR 589 ; Ross v State Rail Authority of NSW (1987) 70 LGRA 91; Shepherd Homes Ltd v Sandham [1971] Ch 340; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 ; South Sydney City Council v Rennoc Australia Pty Ltd [2003] NSWLEC 45 (29 November 2002); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; Tsimidopoulos v Mulson Holdings Pty Ltd (1989) 1 WAR 359; Warner Bros Pictures Inc v Nelson [1937] 1 KB 209; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Water Administration Ministerial Corporation v Auburn Council [2000] NSWLEC 76 (18 April 2000); Waverley Council v Ligertwood [2003] NSWLEC 172 (5 June 2003); Williams v Homestake Australia Ltd (2002) 119 LGERA 55; Williams v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 (6 December 2002)

APPLICANT Mr A Galasso SC SOLICITORS Minter Ellison Lawyers

LEGAL REPRESENTATIVES: FIRST RESPONDENT No appearance

SECOND RESPONDENT Mr J Johnson (barrister) SOLICITORS Gain Kent McRae Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

TEGRA (NSW) PTY LIMITED V GUNDAGAI SHIRE COUNCIL and MARTIN HAY PLANT HIRE & EARTHMOVING PTY LTD

1 HIS HONOUR: On 22 November 2007, Tegra (NSW) Pty Limited commenced proceedings under s 123 of the Environmental Planning and Assessment Act 1979 seeking to remedy a breach of the Act by Gundagai Shire Council granting development consent to Martin Hay Plant Hire and Earthmoving Pty Limited for a sand and gravel extraction quarry at Mundarlo, near the Murrumbidgee River, and to restrain Martin Hay from carrying out that development. On the same day, Tegra filed a notice of motion seeking interlocutory injunctive relief restraining Martin Hay from carrying out the development until the final hearing. That notice of motion was heard yesterday and is the subject of this judgment. 2 Martin Hay appeared and opposed the motion. Gundagai Shire Council did not appear. However, a letter was tendered from the Council advising that it would not be appearing and that it was yet to instruct solicitors.

The action sought to be restrained by interlocutory injunction 3 An interlocutory injunction is an equitable remedy sought by an applicant who apprehends that the status quo which the applicant wishes to preserve is threatened by imminent action by a respondent. By status quo is meant the state of affairs during the period immediately before the issue of the originating process claiming a permanent injunction or, if there be unreasonable delay between the issue of the originating process and the motion for an interlocutory injunction, the period immediately before the motion: Garden Cottage Foods Ltd v Milk Marketing Board [1984] 1 AC 130 at 140, 155; Liquorland (Aust) Pty Ltd v Anghie (2002) 20 ACLC 58 at 71; ICF Spry, The Principles of Equitable Remedies, 7th ed, LawBook Co, 2007, pp 453-456; R Meagher, D Heydon and M Leeming, Equity Doctrine and Remedies, 4th ed, Butterworths LexisNexis, 2002, p 775. 4 In this case, the motion for an interlocutory injunction was filed on the same day as the originating process (the class 4 application) claiming declarations and a permanent injunction. Hence, the status quo is the state of affairs that existed immediately before 22 November 2007. I will elaborate later on the works and action undertaken by Martin Hay by the time Tegra commenced these proceedings, but for present purposes it is sufficient to note that the state of affairs (the status quo) at the relevant time included: the grant of the development consent in question by the council; the satisfaction in part of some of the conditions of that consent by Martin Hay; the grant of a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 by the Department of Water and Energy for the development; the grant of an environment protection licence by the Environment Protection Authority for the development; the entry into a contract by Martin Hay with Abigroup for the supply of sand for the construction of a road by Abigroup under a contract with the Roads and Traffic Authority, such supply to commence in January 2008 in a tonnage and at a rate that necessitate the extraction and stockpiling of sand in the months preceding January 2008 in order to be able to meet the contractual requirements; the entry into other agreements for the supply of sand to Readymix Concrete for use in its concrete plants over the next twelve months; the carrying out of infrastructure works to prepare the quarry for production at a cost of approximately $490,000; the purchase and delivery to the site of plant and equipment to extract, process and deliver materials at the quarry, at a cost of $3.2 million, funded by external financiers, requiring Martin Hay to make repayments of approximately $80,000 a month; and the commencement by Martin Hay of extraction of sand at the quarry pursuant to the approvals that have been granted. 5 The action which the applicant wishes to restrain on an interlocutory basis, and which represents the change in the status quo, is the continued extraction of sand at the quarry by Martin Hay. Principles for interlocutory injunctive relief 6 The grant of an interlocutory injunction depends on the applicant showing 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 7 Satisfaction of the test of a serious question to be tried is an essential condition of obtaining interlocutory injunctive relief. The applicant must identify the legal (which may include statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought (which need not be injunctive in nature). A court does not have jurisdiction to grant an interlocutory injunction where no legal (including statutory) or equitable rights are to be determined: Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 218 [15], [16], 232 [60] - 233 [62], 241 [91], 267 [159(4)] and 296 [246]. 8 In this case, Tegra has established that there are serious questions to be tried in relation to breaches of the Act in the grant by the Council of the development consent and in the subsequent notification of the consent. Martin Hay concedes as much for the purposes only of the application for interlocutory injunctive relief. 9 Martin Hay's proposed development of a sand and gravel extraction quarry is designated development under the Act: see s 77A of the Act and cl 4 of the Environmental Planning and Assessment Regulation 2000 and Pt 1 of Sch 3, item 19, extractive industries, paras 19(1)(b) and (c) of the Regulations in that the proposed development is an extractive industry that will disturb more than two hectares (at least 14.1 hectares will be in an extraction zone according to the environmental impact statement) and is also located within 40 metres of a natural water body or an environmentally sensitive area, being the Murrumbidgee River flood plain. Under Gundagai Local Environmental Plan 1997, designated development may be carried out only with development consent. 10 The Act regulates the process of application, consideration, determination and notification of a development application for designated development, including the form and content of the development application and documents accompanying the development application (including an environmental impact statement) (s 78A(8)(a)); public notification of the development application (s 79(1)); consideration by the consent authority of submissions made within the public notification period (s 79C(1)(d)); public notification of the determination of the development application by the grant or refusal of consent (s 81(1)(b) and (3)); and rights of appeal, including by persons who objected (s 98(1) and s 97(4)). 11 The breaches, in respect of which there are serious questions to be tried are:

(a) A breach of s 79(1)(d) of the Act and cll 80(d) and 78(1)(d), (h) and (i) of the Regulation in that the notice the Council caused to be published in a newspaper circulating in the locality, namely, the Gundagai Independent, on 10 May 2007 in relation to Martin Hay's development application for the proposed sand and gravel extraction quarry, did not contain a statement that the proposed development was designated development; a statement that the proposed development was integrated development and a statement of the approvals that are required and the relevant approval bodies for those approvals; and a statement that any person who makes a submission by way of objection and who is dissatisfied with the determination of the consent authority to grant development consent may appeal to the Land and Environment Court.

(b) A breach of s 81(1)(b) and (3) of the Act and clause 100(1) of the Regulation in that: (i) either no notice at all has been given to Tegra (being an objector entitled to receive a notice) under s 81(1)(b) of the Act or, if the letter dated 6 August 2007 that was sent to Tegra by the Council purports to be such a notice, it was in breach of s 81(3) of the Act and cl 100(1)(b),(e),(i) and (k) of the Regulation in that it failed to contain information on the terms of any conditions on which the development consent was granted by the Council; the date from which the development consent that was granted operates; which approval bodies have given general terms of approval in relation to the development (namely, the Department of Water and Energy and the Environment Protection Authority); and whether the Act gives a right of appeal to an objector; and (ii) the notice to Martin Hay was in breach of s 81(1)(a) of the Act and cl 100(1)(e), (j) and (k) of the Regulation in that the notice to the applicant of determination of the development application, although bearing a determination date of 2 August 2007, failed to contain information on the date from which the consent that was granted operates; whether the Act gives a right of appeal to the applicant; and whether the Act gives a right of appeal to an objector.

(c) A breach of s 78A(8)(a) of the Act and cl 71(a) and (f) of the Regulation in that the environmental impact statement prepared on behalf of Martin Hay and accompanying the development application was not in the form prescribed by the Regulation because it failed to contain information on the professional qualifications of the person by whom the statement was prepared and a declaration by that person that the environmental impact statement was prepared in accordance with cll 72 and 73 of the Regulation, that the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates and that information contained in the statement is neither false nor misleading.

(d) A breach of s 79C(1)(b) of the Act in that the Council failed to take into consideration in determining the development application, the hydrology aspects and potential flood impacts of the proposed development, and instead deferred for consideration after the grant of development consent these matters. 12 I find the test of a serious question to be tried is satisfied in respect of these breaches. Balance of convenience 13 The phrase "balance of convenience" is not a term of art. It simply means that the court must 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 Limited (1968) 118 CLR 618 at 623. The greater the hardship to the defendant, the greater the reluctance of the court to grant the injunction. However, if an equal or greater hardship would be caused to the plaintiff by refusing an injunction, that reluctance will be dissipated: R Meagher, D Heydon, M Leeming, Equity Doctrine and Remedies, 4th ed, LexisNexis Butterworths, 2002, p 785. 14 In its consideration, the court looks at all of the factors which are relevant in the particular circumstances of the individual case. The factors of relevance in this case include the following factors: Whether irreparable injury will be caused 15 The court may consider whether the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless the injunction is granted: Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 at 153. The issue of irreparable injury tends to be treated by courts, not as an independent consideration, but as part of the balance of convenience in determining what order will operate most justly: ICF Spry, The Principles of Equitable Remedies, 7th edition, LawBook Co, 2007, pp 457-458. 16 The nature of the proceedings, the identity and nature of the applicant, and the interests sought to be protected in the proceedings will affect the nature of the irreparable injury likely to be suffered. 17 In environmental cases, where public rights under environmental statutes are being enforced, no question arises as to whether an adequate remedy in damages would be available in lieu of the grant of injunction: Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [53]. 18 In environmental cases, irreparable harm does not need to be suffered by the applicant personally; harm to the environment and to the enforcement of the law will also suffice. Examples of cases where irreparable injury has been held to include harm to the environment include Richardson v Forestry Commission (1987) 73 ALR 589 at 600; and Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 160-161; Corkill v Forestry Commission of NSW (1990) 71 LGRA 116 at 121 and, in relation to damage to Aboriginal cultural heritage, including relics, Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 (16 July 2002) at [39]; Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [53]; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216 (20 November 2002) at [33]; and Williams v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 (6 December 2002) at [68]-[73], [77], [98]. See further D Sweeney, "Interlocutory injunctions to restrain interference with Aboriginal title - the balance of convenience", (1993) 17 UQLJ 141 at 147-151. 19 Examples of cases where the enforcement of the law and the orderly development and use of the environment were held to be relevant factors, are Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340; Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161; South Sydney City Council v Rennoc Australia Pty Ltd [2003] NSWLEC 45 (29 November 2002) at [12] and Reg v Secretary of State for Transport, ex parte Factortame Ltd (No 2), [1991] 1 AC 603 at 673. 20 In this case, Tegra does not suggest that it personally will suffer any irreparable injury if the interlocutory injunction is not granted. Nevertheless, Tegra points out that the carrying out of the development of sand extraction will alter the existing environment. In that sense, there will be an alteration of the status quo. It is not put that there is any special feature of the environment that would be harmed if the development were to continue to be carried out until the final hearing. Tegra also submits that the carrying out of the development will be contrary to the public interest which exists in the orderly (lawful) development and use of the environment. 21 Martin Hay submits that the carrying out of the development, if not enjoined by an interlocutory injunction, will be required to be in accordance with the development consent and each of the conditions of that consent, including those imposed by the Council and the incorporated general terms of approval by the Department of Water and Energy and the Environment Protection Authority, and also in accordance with the Pt 3A permit by the Department of Water and Energy and the environment protection licence by the Environment Protection Authority and the conditions thereof. The Court should presume that these government authorities, by granting these various approvals and imposing conditions on these approvals, are satisfied that the development, if carried out in accordance with those approvals, will have an acceptable environmental impact. 22 Martin Hay also tendered a letter from its environmental consultant, Mr McLaren, dated 26 November 2007, stating that "the short term performance of the development will not have any detrimental effect on either human health or the environment". 23 For both these reasons, Martin Hay submits that there will not be irreparable injury to the environment if the development is carried out. 24 I find that if an interlocutory injunction were not to be granted, any irreparable injury to the environment would be slight in circumstances where the period until a final hearing will be short (see later), the development must comply with the development consent and the other approvals granted and it is not put that any special feature of the environment would be harmed by the development in the period until the final hearing. Whether damages an adequate remedy 25 The court may consider whether damages would be an adequate remedy for the applicant and whether the respondent would be in a financial position to pay them: American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408; Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153. The period of the applicant's loss in respect of which the adequacy of damages is to be assessed is between the time of the application for an interlocutory injunction and the time of trial. The court considers "whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage": American Cyanamid Co v Ethicon Ltd [1975] 1 AC 396 at 408. 26 However, damages may not be an adequate remedy where the nature of the action does not permit of an award of damages to the applicant, such as in civil enforcement proceedings to remedy or restrain a breach of a planning or environmental law or to judicially review governmental decisions or conduct under such a law (Reg v Secretary of State for Transport; ex parte Factortame Ltd (No.2) [1991] 1 AC 603 at 672-673) or where it would be particularly difficult to calculate the damages likely to be suffered (Warner Bros Pictures Inc v Nelson [1937] 1 KB 209 at 220-221; Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 at 575. 27 In this case, the applicant seeks to remedy and restrain breaches of the Act pursuant to the open standing provision under s 123 of the Environmental Planning and Assessment Act. The remedies available under either s 124 of the Act or s 20(2) of the Land and Environment Court Act 1979, with respect to breaches of the Act, do not include damages. Accordingly, damages are not an adequate remedy for the applicant in this case. Whether undertaking as to damages offered 28 The court may consider whether the applicant offers an undertaking to pay for damages and whether the respondent will be adequately protected by the applicant's undertaking to pay damages. If damages would not provide an adequate remedy for the applicant in the event of the applicant succeeding at trial (and hence an interlocutory injunction might be appropriate), the court considers "whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction": American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408. 29 The appropriateness of requiring an applicant to give an undertaking as to damages may vary depending upon the nature of the proceedings. In public interest, environmental proceedings, it may be less appropriate. 30 In Ross v State Rail Authority of NSW (1987) 70 LGRA 91, Cripps CJ considered the approach that the Court should take in relation to requiring an undertaking to pay damages in proceedings brought pursuant to open standing provisions such as s 123 of the Environmental Planning and Assessment Act. Cripps CJ stated that "where a strong prima facie case has been made out that a significant breach of an environmental law has occurred, the circumstance that an applicant is not prepared to give the usual undertaking as to damages is but a factor to be taken into account when considering the balance of convenience": at 100. This approach has been followed in the Court including in Corkill v Forestry Commission of NSW (1990) 71 LGRA 116 at 120 and Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 243. 31 The failure of an applicant claiming interlocutory injunctive relief to give an undertaking as to damages was held not by itself to be determinative of how the judicial discretion should be exercised in Water Administration Ministerial Corporation v Auburn Council [2000] NSWLEC 76 (18 April 2000) at [220]; Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 67; Carriage v Stockland Development Pty Ltd [2004] NSWLEC 320 (22 April 2004) at [53]; Baulkham Hills Shire Council v Dix Gardner Pty Ltd [2004] NSWLEC 271 (4 May 2004) at [7] and Marrickville Council v G & K Psakis Pty Ltd [2004] NSWLEC 663 (1 December 2004) at [9], [14], [15] and Metroll Victoria Pty Ltd v Wyndham City Council (2007) 152 LGERA 437 at 461 [117]. 32 In this case, Tegra does not offer an undertaking as to damages. Martin Hay would therefore not be compensated under an undertaking to pay damages for any financial loss it would suffer from being restrained from carrying out the development until the final hearing if any interlocutory injunction turned out to be wrongly issued. 33 The fact that Tegra is a trade competitor of Martin Hay is a factor to take into account in weighing the failure of Tegra to offer an undertaking as to damages: see Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82 at 120 [146].

Where status quo lies 34 The court may consider where the status quo lies and whether any alteration to the status quo would be irreparable. As I have noted above, the status quo is the state of affairs in the period immediately before the issue of the proceedings seeking a permanent injunction or, if there is unreasonable delay between the issue of the proceedings and the application for an interlocutory injunction, the period immediately before the making of the application. The basis for the grant of an interlocutory injunction is the need to preserve the status quo so that if, at the final hearing, the applicant obtains a judgment in its favour, the respondent will have been prevented from acting in the meantime in such a way as to make that judgment ineffectual: Preston v Luck (1884) 27 Ch D 497 at 505 and Heavener v Loomes (1924) 34 CLR 306 at 326. 35 The courts have emphasised that where other factors are evenly balanced, the status quo should be preserved: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284. In environmental cases, preserving the status quo would include preserving the environment from harm, particularly irreversible damage: see cases referred to earlier in relation to irreparable injury. 36 In this case, the status quo includes not only the state of the environment but more generally the whole state of affairs that exists at the relevant time, including the relevant approvals that have been granted and the works and action undertaken by Martin Hay pursuant to those approvals. The whole state of affairs includes:

(i) The development consent granted by the Council on 2 August 2007 to Martin Hay to carry out the sand and gravel extraction quarry on the land;

(ii) The satisfaction in part of a number of conditions of that development consent by Martin Hay, including the provision to the Council, Department of Water and Energy and Department of Environment and Climate Change of a supplementary expert report on hydrological aspects and potential flood impacts based on the amended environmental impact statement of July 2007 (condition 22 of the consent, first sentence);

(iii) The permit granted under Pt 3A of the Rivers and Foreshores Improvement Act 1948 by the Department of Water and Energy on 9 August 2007 in respect of the excavation and removal of sand and gravel on the protected land in or near the Murrumbidgee River;

(iv) The environment protection licence granted by the Environment Protection Authority on 26 September 2007 for the scheduled activity of crushing, grinding or separating works and extractive industry on the land;

(v) The entry by Martin Hay into a contract with Abigroup on 6 September 2007 for the supply of concrete sand, bedding sand, filter sand and other aggregate to commence on or about January 2008 through to December 2008. The contract requires the delivery of a total of approximately 140,000 tonnes of material. During the heaviest time of construction, the contract requires Martin Hay to deliver between 1,200 and 1,500 tonnes per day of concrete sand (approximately 20,000 tonnes per month) to Abigroup. As Abigroup does not have a sufficient area in which to maintain a stockpile of materials supplied by Martin Hay, Martin Hay is required to maintain a stockpile and arrange daily delivery, five and a half to six days per week, as and where required by Abigroup. The contract has various provisions in the event of default by Martin Hay, including payment of liquidated damages;

(vi) The entry by Martin Hay into agreements with Readymix Concrete for the supply of sand to concrete plants in Tumut and Gundagai. These agreements require Martin Hay to deliver approximately 50,000 tonnes over the next twelve months;

(vii) The carrying out of infrastructure works by Martin Hay to prepare the quarry for production. The works carried out to date include forming and construction of access roads; forming and construction of ramps; purchasing and installation of statutory signage; earthworks to form and construct pad sites for weighbridge, plant and equipment and stockpile areas; earthworks and construction of sediment ponds; and sinking of a bore. The cost of undertaking these works has been estimated at approximately $490,000;

(viii) The purchase by Martin Hay and the delivery to the site of plant and equipment to extract, process and deliver materials at the quarry. This plant and equipment includes sand and aggregate washing plant ($1.5 million), excavator, loader and dump trucks ($1.1 million) and trucks and dog trailers ($600,000). The plant and equipment has been funded by external financiers and Martin Hay is required to make repayments of approximately $80,000 per month;

(ix) The commencement by Martin Hay of extraction of sand at the quarry. These works have been undertaken through October and November 2007.

(x) It is relevant that, unless and until the development consent is set aside by the Court upon it finding that the consent that has been granted is in breach of the Act, it is operative and effective: see Calvin v Carr [1980] AC 574. The consent authorises the applicant to carry out the development. Nature of interlocutory relief sought 37 The court may consider the nature of the interlocutory injunctive relief sought, including whether it is prohibitory or mandatory. Interlocutory prohibitory injunctions are far more common and have been more readily granted than interlocutory mandatory injunctions: Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351; Harold Stephen & Co Ltd v Post Office [1977] 1 WLR 1172 at 1180; Parker v Camden London Borough Council [1986] 1 Ch 162 at 173-174. 38 This is because mandatory injunctions carry a greater risk of injustice when granted at the interlocutory stage if the court makes the wrong decision, in the sense of granting an injunction to a party who fails to establish a right at the trial (or would fail if there was a trial). Some of the reasons for mandatory injunctions carrying a greater risk of injustice are: a mandatory order usually goes further than the preservation of the status quo by requiring a party to take some new positive step or undo what the party has done in the past; a mandatory order usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining the party from doing something which it appears at the trial the party was entitled to do; a mandatory order usually gives a party the whole of the relief which the party claims in the originating process and makes it unlikely there will be a trial; a mandatory injunction is often difficult to formulate with sufficient precision to be enforceable; and a mandatory order is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring a party temporarily to refrain from action. The court is therefore usually more reluctant to make an interlocutory mandatory injunction than an interlocutory prohibitory junction: Shepherd Homes Ltd v Sandham [1971] Ch 340 at 348-349; Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781. 39 Nevertheless, the principles for the grant of interlocutory injunctions are the same, whether prohibitory or mandatory: Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781; Tsimidopoulos v Mulson Holdings Pty Ltd (1989) 1 WAR 359 at 368. In either case, the court should grant an interlocutory injunction whenever refusing such relief would carry a greater risk of injustice than granting the relief: Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781. 40 In this case, Tegra seeks an interlocutory prohibitory injunction restraining the future carrying out of development on the land. It does not seek an interlocutory mandatory injunction that any works that have already been carried out be removed. There is, therefore, a lower risk of injustice in the Court granting an interlocutory prohibitory injunction. Relative strength of each party's case 41 The court may consider the relative strength of each party's case: Hubbard v Vosper [1972] 2 QB 84 at 96. Courts in Australia have taken the view that the relative strength of each party's case should be considered along with all the other factors in evaluating the balance of convenience: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161-163; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 326, 333; Optus Networks Pty Ltd v Stonnington City Council [1996] 2 VR 209 at 213; Botany Municipal Council and Ors v Minister of State for Transport and Regional Development and Ors (1996) 90 LGERA 81 at 86; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGRA 436 at 438, 447 and Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [54], 68 [65] and 69 [73]. 42 In this case, Tegra has established a reasonably strong case in relation to the breaches of the Act that relate to the giving of the requisite statutory notices before and after the grant of development consent. The other matters, although established to the standard of a serious question to be tried, on the evidence available at the interlocutory hearing have not been able to be established to a higher standard. Equitable considerations 43 The court may consider whether there are equitable considerations, such as delay, laches, acquiescence, fraud and unclean hands, justifying the granting or refusal of an interlocutory injunction: see ICF Spry, The Principles of Equitable Remedies, 7th edition, Law Book Co, Sydney, 2007, pp 488-500. Delay in seeking interlocutory injunctive relief, in particular, will be a significant factor against granting such relief: Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 164-167; Armidale Local Aboriginal Land Council v Transgrid [2000] NSWLEC 141 (17 May 2000) at [15] and [16]; Bush v Minister for Local Government (2002) 124 LGERA 256 at 260 [22] - 261 [23]; and Waverley Council v Ligertwood [2003] NSWLEC 172 (5 June 2003), [18] and [21]. 44 In this case, there has been some delay by Tegra in seeking interlocutory injunctive relief. The evidence establishes that Mr Sargent, the principal of Tegra, was present at the Council meeting on 2 August 2007 when the Council resolved to grant development consent to Martin Hay for the proposed sand and gravel extraction quarry. Tegra received a letter from the Council a few days later, on 6 August 2007, which advised that the Council had granted development consent to Martin Hay for development of a sand gravel extraction quarry. It is true that that letter did not enclose a copy of the development consent or advise of the terms of the conditions. These defects are the foundation of Tegra's claim that there has not been proper notification of the grant of the development consent to Tegra. Nevertheless, the letter was sufficient to advise Tegra that development consent had been granted for the quarry. After Tegra made enquiries to the Council, the Council sent Tegra a copy of the development consent with the conditions of consent under cover of a letter dated 11 September 2007. 45 The affidavit of Mr Sergent, the principal of Tegra, discloses that he was aware that Martin Hay had commenced carrying out the development, by at least 14 October 2007. At that time, Mr Sergent observed an excavation of about half a hectare where the surface of the ground had been removed and material had been extracted, an internal haul road and two small sediment ponds, and a processing plant and weighbridge. He saw an excavator, dump truck and front end loader on the land and, near the processing plant, a stockpile of unprocessed material and a smaller stockpile of processed material. He noticed that the ground around the processing plant was wet which indicated that it had been operating recently. 46 Mr Sergent sought legal advice shortly afterwards. There was an exchange of correspondence between Tegra's solicitors and the Council and Martin Hay. Mr Sergent again observed activity at the site on 2 November 2007. He saw an excavator digging up material on to a dump truck which transported the material to a processing plant. He noticed the sand washing plant was operating and saw water on the ground running back into the sediment ponds. He noticed that the sediment ponds had increased in size and now were about twice as long. 47 Notwithstanding this knowledge that Martin Hay were carrying out development, Tegra did not commence the proceedings until 22 November 2007 and, as I have said, on that day the notice of motion seeking interlocutory relief was filed. It came on for hearing yesterday, 28 November 2007. 48 Martin Hay submits that the consequence of the delay by Tegra in commencing proceedings and seeking interlocutory injunctive relief is that Martin Hay has expended considerable money on carrying out the preparatory works, purchasing plant and equipment, and entering into contracts with Abigroup and Readymix Concrete. Martin Hay submits that unless and until it is able to start supplying product in accordance with these contracts, it will not receive income. Yet it has expended considerable sums and incurred legal liabilities in the period from 2 August 2007 until the time when Tegra commenced these proceedings. Martin Hay is, therefore, at its most financially vulnerable at this time. 49 Martin Hay submits that if Tegra had commenced proceedings immediately after the grant of consent and had sought and had been granted interlocutory injunctive relief, then Martin Hay would not have incurred these moneys or entered into these contracts and become liable legally under the contracts. Hence, Martin Hay submits, the delay by Tegra in commencing proceedings would cause material prejudice to Martin Hay. 50 I accept the submissions of Martin Hay that Tegra's delay in seeking the interlocutory injunctive relief would cause material prejudice to Martin Hay if an interlocutory injunction were to be granted. Prejudice to third parties 51 The court may consider whether hardship might be inflicted by an interlocutory injunction upon an innocent third party not joined in the proceedings or the public (Perrey v Mordiesel Co Pty Ltd [1976] VR 569 at 576; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324, 332; Water Administration Ministerial Corporation v Auburn Council [2000] NSWLEC 76 (18 April 2000) at [203], [206]; Blacktown City Council v Wilkie [2001] NSWLEC 91 (6 March 2001) at [17], [18]) or conversely, whether an injunction might benefit third persons or the public (Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248 at 1287-1288, 1291, 1292, 1299, 1300 and ICF Spry, The Principles of Equitable Remedies, 7th ed, LawBook Co, 2007, pp 473-474. 52 This factor did not loom large in these proceedings, although it is noted that by reason of the contracts that Martin Hay has entered into with Abigroup and Readymix Concrete, there is a possibility that if Martin Hay were not able to supply material in accordance with those contracts, and alternative suppliers were not able to be obtained in the time period that was required under the contracts, then Abigroup or Readymix Concrete might suffer hardship. Of course, it may be that any loss so occasioned might be passed on to Martin Hay through an action by those persons against Martin Hay for default under the contracts.

The public interest 53 The court may consider the public interest. The public interest is multi-faceted and may be a factor in favour or against the grant of an interlocutory injunction. 54 There is the public interest in the proper enforcement of public welfare statutes, such as planning and environment laws. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 340, Kirby P stated that a public interest exists "in the orderly development and use of the environment" and that there is purpose in "upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which is the purpose of the orderly enforcement of environmental law to avoid": see also Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161; South Sydney City Council v Rennoc Australia Pty Ltd [2003] NSWLEC 45 (29 November 2002) at [12]; and Reg v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603 at 673. 55 There is also the public interest in the reliable and predictable public administration of the law: Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161-162; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGERA 436 at 438. 56 There is the public interest in protecting the environment and components of it, and cultural heritage: Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 (16 July 2002) at [39]; Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [53]; Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 216 (20 November 2002) at [33]; Williams v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 (6 December 2002) at [68]-[73], [77], [98]. 57 As I have noted before, development consent has been granted. Unless and until set aside, that consent authorises the carrying out of the works and the use of land that Martin Hay intends to do unless restrained by an interlocutory injunction. The carrying out of the works and the use of the land are, therefore, currently lawful. The case differs from the situation where a respondent is prima facie carrying out development without lawful authority. Time period before final hearing 58 The court may consider the time period before the final hearing. This can alter where the balance of convenience lies. If there will be a long period until the final hearing, the grant of an interlocutory prohibitory injunction restraining a respondent from carrying out activities may cause considerable hardship to the respondent such as where its business is being restrained. Conversely, if an interlocutory prohibitory injunction is not granted, considerable injury may be caused to an applicant, the environment or the public interest, by the respondent carrying out its activities over a lengthy period. A shorter period until the final hearing lessens such respective injuries. 59 In this case, I consider that the proceedings should be expedited and a final hearing held as soon as possible. Having regard to the nature of the challenges, which essentially will be able to be established by the tender of documents and the construction of the statutory provisions, and the reasonably confined evidence that would be required in relation to discretion, it would be possible to hold a final hearing in a matter of weeks. A final hearing will be able to be allocated by the Court on 17 December 2007 and the parties have indicated they are able to be ready for a hearing at that time. This means that the period between the time of the application for interlocutory injunctive relief and the final hearing will be relatively short (less than three weeks). The harm that would be done to the environment by the carrying out of the development in accordance with the development consent and other approvals in this short period of time will be relatively slight if an interlocutory injunction were not to be granted. On the other hand, if an interlocutory injunction were to be granted, the prejudice to Martin Hay may be quite significant. Hence, the short period of time between the application for an interlocutory injunction and the final hearing, in the circumstances of this case, tends towards refusing interlocutory injunctive relief. Balancing the factors 60 Taking each of these factors into account, and giving them appropriate weight, I consider that the balance of convenience favours not granting an interlocutory injunction between now and the final hearing which will be held on 17 December 2007. Of importance to this decision not to grant interlocutory injunctive relief are the factors that the period until final hearing is short (3 weeks); the injury to the environment in that time will be slight, recognising that the development must comply with the development consent and the other approvals granted and it is not put that any special feature of the environment would be harmed by such development in the period until the final hearing; no injury will be caused to the applicant; the applicant is a trade competitor; no undertaking for damages is given by the applicant; the carrying out of the development is currently lawful; the applicant has delayed bringing the application for interlocutory injunctive relief in circumstances where it knew the respondent had commenced the development and incurred liabilities; and prejudice may be caused to third parties if the injunction is granted. 61 Accordingly, the applicant's notice of motion should be dismissed. Directions for preparation for final hearing 62 It is now necessary to make some orders for the preparation for and fixing of the final hearing. After discussion between the parties' legal representatives, the following directions should be made:

1. The final hearing of the proceedings be fixed on 17 December 2007.
2. The applicant is to file points of claim by close of business on 30 November 2007.
3. The respondent is to file points of defence by close of business on 3 December 2007.
4. Leave is granted to the applicant and second respondent to issue to the first respondent a notice to produce documents, including the Council's file in relation to the Development Application, to be returnable on 5 December 2007.
5. Grant the applicant and second respondent liberty to uplift documents produced by the first respondent in response to any such notice to produce for the purposes of photocopying.
6. The second respondent is to file and serve all affidavit evidence upon which it seeks to rely by 6 December 2007.
7. The applicant is to file and serve any affidavit evidence upon which it seeks to rely by 13 December 2007.
8. The second respondent is to file and serve by 10.00 am on 17 December 2007 any affidavit evidence in reply upon which it seeks to rely.
9. The applicant is to file and serve a bundle of documents upon which it seeks to rely by 13 December 2007.
10. The second respondent is to file and serve any supplementary documents to those in the applicant's bundle by 10.00 am on 17 December 2007.
11. The question of costs of the applicant's notice of motion be reserved.

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