(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.