By way of summons filed on 5 February 2024, Wollondilly Shire Council (Council) seeks, inter alia, an interlocutory injunction restraining the respondents from carrying out or permitting the continued importation of fill material at a property at 2339 Silverdale Road, Silverdale (Lot 2 DP 866061) (the land) and the carrying out of earthworks involving the spread of fill without first obtaining development consent for those works.
At the hearing this afternoon, Council read the affidavit of Mr David McEwan, a senior compliance officer employed at Council since 1994, affirmed 2 February 2024, in support of the relief it seeks.
Council's searches disclose that no development consent or approval has been obtained for earthworks or for the importation of fill on the land.
Council has obtained evidence that asbestos is present within the fill imported onto the land.
Council alleges and has provided evidence which establishes that the first respondent is the person responsible for the importation of the fill material onto the land and the subsequent earthworks. The second and third respondents are the owners of the land.
On 19 January 2024, Council became aware of fill and earthworks activity at the land following receipt of a number of complaints.
On 19 January 2024, Mr McEwan inspected the land and observed fill on the land and machines working on the fill and undertaking earthworks. On that occasion, Mr McEwan spoke with Mr Ihab Khoder, the first respondent, who according to Mr McEwan admitted responsibility for importing the fill and for the earthworks. Mr McEwan took 3 samples of sheeting from the fill which he subsequently sent for testing by Airsafe. That testing has subsequently confirmed that the 3 sheets contain Chrystolite asbestos.
On that same occasion, 19 January 2024, Mr McEwan also spoke with Vincent Vella, the second respondent. Mr McEwan deposes that he advised each of the first and second respondents that the importation of the fill and the earthworks were unlawful activities on the land because no development consent had been obtained. He advised them both that the works should cease immediately.
On 22 January 2024, following reports of further work on the land, an emergency development control order was issued to each of the respondents pursuant to s 9.34 and cl 6 of sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (the DCO). The order was subsequently reissued to the first respondent on 23 January 2024 because of an error in his email address.
On 23 January 2024, Ms Robyn Cooper (an officer of Council, Manager-Health and Regulatory Services) and Mr McEwan telephoned the first respondent who, according to Mr McEwan, admitted that he had read the DCO sent to the second respondent. According to Mr McEwan, the first respondent advised that he would not stop work on the land.
Also on 23 January 2024, another Council officer, Mr Ray Coleman, attended the land and observed trucks enter and exit the land.
On 24 January 2024, Mr McEwan again inspected the land and observed that works were still continuing and that numerous trucks were entering the land. The first respondent was handed the DCO emailed to him on 23 January 2024.
On 25 January 2024, Mr McEwan emailed the first respondent a report from Airsafe confirming the presence of asbestos in each of the 3 samples of sheeting taken from the land on 19 January 2024.
On 29 January 2024, Council was again advised that various trucks were entering and leaving the land. A 'show cause' letter was emailed to each of the first and second respondents. No response has been received to that letter.
On Friday 2 February 2024, at 2pm, Mr McEwan again attended the land. He observed an excavator loading a truck, further trucks in the land and trucks entering and leaving the land.
Mr McEwan has investigated aerial images of the land in the period between 2023 (prior to works commencing) and 25 January 2024. Based on his observations from site inspections and investigation of the aerial photos, he estimates that:
1. the imported fill material covers approximately 7,000 sqm (and is up to 2m in height);
2. approximately 1,000 tonnes of fill has been imported onto the land;
3. between 65-80 truck or trailer loads of material have been deposited on the land, either spread or in mounds of different sizes or used to fill in land; and
4. fill has been placed on or adjacent to a mapped watercourse on the land.
Mr McEwan deposes that there are also road safety impacts associated with large truck and truck/trailer combinations turning, entering and leaving the land in an unregulated manner.
[2]
Legal principles
The relevant principles governing the grant of an interlocutory injunction include whether there is a serious question to be tried and whether the balance of convenience favours the making of an interim order pending trial: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6] (Preston CJ) (Tegra).
[3]
Serious questions to be tried
In relation to a serious question to be tried, the land is zoned RU2 Rural Landscape in the Wollondilly Local Environmental Plan 2011 (NSW) (WLEP). Council contends that the continued importation and deposition of fill and the undertaking of earthworks is a breach of s 4.2 of the EPA Act because it is development which is only permissible with development consent in the RU2 Rural Landscape zone and consent has not been obtained for those works.
On its application for interlocutory relief, and on the evidence before me this afternoon, I accept Council's contention.
[4]
Balance of convenience
The Court must consider whether the inconvenience or injury which the Council would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if the injunction were granted: Tegra at [13].
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 an injunction: Tegra at [17]. Similarly, in such 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: Tegra at [18].
I accept Council's submission that the balance of convenience favours the grant of an injunction in this case because:
1. the continuing importation of fill and earthworks on the land is a prima facie breach of the EPA Act;
2. the importation of fill, and the quality of fill, is unregulated and uncontrolled (and the source of the fill is unknown);
3. according to Mr McEwan, asbestos has been discovered in the imported fill;
4. the absence of erosion and sediment controls and traffic management controls and the presence of fill next to the watercourse is indicative of other potential environmental harm if fill continues to be imported onto the land;
5. as deposed to by Mr McEwan, importation of fill has continued notwithstanding the issue of a DCO, oral requests to cease work and advice in relation to the presence of asbestos in the fill;
6. damages would not be an adequate remedy to Council seeking to enforce the planning laws; and
7. it appears, in light of the evidence of Mr McEwan, that the breaches are serious and ongoing.
In the circumstances, I am satisfied that the prejudice that would be suffered if the interlocutory injunction is not granted would be significant. There is no evidence at present that the respondents will suffer any prejudice if the interlocutory injunction is granted and they are prevented from receiving further fill material and undertaking earthworks to spread the fill material, until further order. I am satisfied on the evidence before me at this interlocutory hearing that no development consent has been obtained for such works.
Council does not offer an undertaking as to damages in circumstances where it seeks to uphold planning and environmental laws: Rule 4.2(3)(a) of the Land and Environment Court Rules 2007 (NSW). I accept that such an undertaking is less appropriate in public interest enforcement proceedings: Tegra at [29].
Last Friday, Council, through its solicitors, advised the respondents in writing that it would seek to obtain an interlocutory injunction on Monday, 5 February 2024. No response was received. This application proceeds ex parte therefore, albeit on notice to the respondents.
In Tamworth Regional Council v Johnson [2019] NSWLEC 32, at [6], Pepper J stated the following regarding ex parte injunctions:
On an ex parte application for an interlocutory injunction, the applicant must make full and frank disclosure of all material facts adverse to the applicant's case which are known to the applicant or would have been known if the applicant had made proper inquiries: Thomas A Edison Pty Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-2; Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676-7 (CA). The form of an ex parte interlocutory injunction and whether it should be granted at all were considered in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49 by Heydon J:
146. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them...
148. Interlocutory injunctions in equity. The sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders is illustrated by various aspects of equitable practice in relation to interlocutory injunctions.
149. There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution.
150. Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd: "Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. ... Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.
In the circumstances, where the respondents have been put on notice of the application for an interlocutory injunction, I grant the interlocutory relief sought by Council.
[5]
Conclusion and orders
Having regard to the evidence relied on by Council and its submissions, written and made orally before me this afternoon, I make the following orders:
1. until further notice, the respondents, their servants, agents and invitees be restrained from receiving fill on the property at 2339 Silverdale Road, Silverdale (Lot 2 DP 866061) (the land) and or undertaking earthworks involving the spread of fill on the land;
2. the parties approach the Registry with a view to obtaining a date in the Court's Friday list for directions in relation to the preparation of the matter for hearing.
[6]
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: 05 February 2024
[7]
(1) the continuing importation of fill and earthworks on the land is a prima facie breach of the EPA Act;
(2) the importation of fill, and the quality of fill, is unregulated and uncontrolled (and the source of the fill is unknown);
(3) according to Mr McEwan, asbestos has been discovered in the imported fill;
(4) the absence of erosion and sediment controls and traffic management controls and the presence of fill next to the watercourse is indicative of other potential environmental harm if fill continues to be imported onto the land;
(5) as deposed to by Mr McEwan, importation of fill has continued notwithstanding the issue of a DCO, oral requests to cease work and advice in relation to the presence of asbestos in the fill;
(6) damages would not be an adequate remedy to Council seeking to enforce the planning laws; and
(7) it appears, in light of the evidence of Mr McEwan, that the breaches are serious and ongoing.
[8]
In the circumstances, I am satisfied that the prejudice that would be suffered if the interlocutory injunction is not granted would be significant. There is no evidence at present that the respondents will suffer any prejudice if the interlocutory injunction is granted and they are prevented from receiving further fill material and undertaking earthworks to spread the fill material, until further order. I am satisfied on the evidence before me at this interlocutory hearing that no development consent has been obtained for such works.
Council does not offer an undertaking as to damages in circumstances where it seeks to uphold planning and environmental laws: Rule 4.2(3)(a) of the Land and Environment Court Rules 2007 (NSW). I accept that such an undertaking is less appropriate in public interest enforcement proceedings: Tegra at [29].
Last Friday, Council, through its solicitors, advised the respondents in writing that it would seek to obtain an interlocutory injunction on Monday, 5 February 2024. No response was received. This application proceeds ex parte therefore, albeit on notice to the respondents.
In Tamworth Regional Council v Johnson[2019] NSWLEC 32, at [6], Pepper J stated the following regarding ex parte injunctions:
[9]
On an ex parte application for an interlocutory injunction, the applicant must make full and frank disclosure of all material facts adverse to the applicant's case which are known to the applicant or would have been known if the applicant had made proper inquiries: Thomas A Edison Pty Ltd v Bullock[1912] HCA 72; (1912) 15 CLR 679 at 681-2; Garrard v Email Furniture Pty Ltd(1993) 32 NSWLR 662 at 676-7 (CA). The form of an ex parte interlocutory injunction and whether it should be granted at all were considered in International Finance Trust Company Ltd v New South Wales Crime Commission[2009] HCA 49 by Heydon J:
146. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them...
148. Interlocutory injunctions in equity. The sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders is illustrated by various aspects of equitable practice in relation to interlocutory injunctions.
149. There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution.
150. Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd: "Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. ... Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.
[10]
In the circumstances, where the respondents have been put on notice of the application for an interlocutory injunction, I grant the interlocutory relief sought by Council.
[11]
Having regard to the evidence relied on by Council and its submissions, written and made orally before me this afternoon, I make the following orders:
[12]
(1) until further notice, the respondents, their servants, agents and invitees be restrained from receiving fill on the property at 2339 Silverdale Road, Silverdale (Lot 2 DP 866061) (the land) and or undertaking earthworks involving the spread of fill on the land;
(2) the parties approach the Registry with a view to obtaining a date in the Court's Friday list for directions in relation to the preparation of the matter for hearing.