BETWEEN : YALLINGUP RESIDENTS ASSOCIATION (INC)

Application for stay of proceedings pursuant to application for writ of certiorari to quash proceedings ­ Test for stay of proceedings pending resolution of order nisi for writ of certiorari

Associations Incorporation Act 1987

Apollo Shower Screens Pty Ltd & Anor v Building and Construction Industry Long Service Payments Corporation [1985] 1 NSWLR 561

Blatch v Archer [1774] EngR 2; (1774) 98 ER 969

Branch V Lawrence & Ors [2003] WASC 124

Edelsten v Ward (No 2) (1988) 63 ALJR 346

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7

1 JOHNSON J: On 11 February 2005 the applicant, the Yallingup Residents Association (Inc) ("the Association") commenced, by originating motion, an application for an order nisi for a writ of certiorari. The writ of certiorari was to be directed to the Town Planning Appeals Tribunal ("the Tribunal") to quash the Tribunal's decision made on 23 September 2004 to uphold Appeal No 47 of 2004 subject to conditions. The grounds for the application were as follows:

"(1) The respondent Town Planning Appeals Tribunal failed to take account of a relevant consideration being the invalidity of the zoning of the subject land;

(2) The respondent failed to take account of relevant considerations being the evidence the applicant sought to tender in the appeal;

(3) The respondent failed to take account of relevant considerations being the submissions the applicant sought to make in the appeal."

2 By way of background, the application relates to the application of Silverland Enterprises Pty Ltd ("Silverland") to develop the land on the corner of Valley Road and Dawson Drive, Yallingup ("the development application"). The land adjoins the Yallingup Beach foreshore and has a combined area of 6880 square metres of which a portion is currently occupied by a restaurant and a retail outlet with associated residential quarters. The development application was for 19 units, five more than a previously refused application with respect to the same land, and this development application was also refused by the Shire and then was the subject of the review in the Tribunal.

3 The Association was incorporated under the Associations Incorporation Act 1987 in 1991 for the purpose of providing members of the Yallingup community with representation in relation to a proposed development on the relevant land. The Association represents the interests of its 129 financial members who are rate payers and residents of the Yallingup townsite, including some members who have properties near and adjacent to the relevant land.

4 The Association instructed counsel to appear at the hearing in the Tribunal of an appeal by Silverland from the deemed refusal by the Shire of Busselton ("the Shire") of its development application. The Shire failed to make a decision on the development application within the 90 days provided for in cl 15(2) of the Shire's Town Planning Scheme No 20 ("TPS 20"). The instructions to counsel were to make submissions and tender evidence on behalf of the Association.

5 On 8 July 2004, counsel for the Association appeared at the hearing before the Tribunal and sought to hand up written submissions and evidence on behalf of the Association. The Tribunal refused the application to make submissions and tender evidence. On 28 July 2004, the Association applied to be joined as a party to the appeal. On 4 August 2004, the Tribunal refused the joinder application. On 17 September 2004, the President of the Tribunal dismissed the Association's application for a review of the refusal of its joinder application. On 23 September 2004, the Tribunal handed down its decision, allowing Silverland's appeal subject to conditions.

6 In the application for an order nisi for writ of certiorari, the Association also sought an order that the order nisi operate as a stay of the determination of the Tribunal. The effect of the stay would be to preclude Silverland from commencing the development as allowed and amended by the Tribunal.

7 On 23 February 2005, the order nisi and certain ancillary orders were granted by Master Sanderson but the request for a stay was refused. The basis of the stay application was described as follows:

"The concern is that the ocean will slip into the town site or, put more accurately, the development is on a primary dune and that primary dune is to be excavated to about half of its eastern side and the vegetation is to be removed for slightly more than half of it. The environmental concern is that the wind will ultimately leave that dune on the front yards of the houses in the town site rather than in the dune."

8 I am told that the term "primary dune" is a terminology with which all parties are familiar so it is unnecessary, at any stage, to further identify the primary dune or where it is located.

9 The Court was also advised that the plans for the proposed development, amended as a result of the conditions imposed by the Tribunal, were at that time being considered by the Shire but no building licence had issued and no excavation had started. The concern, as expressed by counsel, was that the relationship between the Association and the Shire had broken down and, therefore, steps could be taken to implement the development without the Association being aware. According to counsel, as the first step would be excavation and removal of the vegetation from the dune, it would then be too late to take action.

10 It is apparent from the transcript of the hearing before Master Sanderson that the reason for the refusal of the application for a stay of proceedings was because the Master considered that it would be inappropriate to make such an order in the absence of the Shire and Silverland. However, counsel was advised that the application could be renewed, once service on the Shire and Silverland of the relevant documentation had taken place, under the order which Master Sanderson then made that there be liberty to apply.

11 The order nisi issued was returnable before the Full Court. However, at a later time, the Association agreed to the matter being heard by a single Judge. The application heard on 23 February 2005 was brought ex parte. On 1 March 2005, the State Administrative Tribunal ("SAT") wrote to the Court noting that the Tribunal as a body no longer existed and that SAT should be the proper respondent. The letter further conveyed to the Court that it submits to the jurisdiction of the Supreme Court and agrees to abide by any order that may be made, including a stay, except as to costs.

12 On a further hearing on 2 March 2005, brought on at the request of counsel for the Association to, inter alia, press the application for a stay, the Shire and Silverland appeared by counsel. On that occasion the application for a stay was dismissed and orders were made to join Silverland as a party to the application for a writ of certiorari and to change the name of the respondent from the Tribunal to SAT. The Court file does not reveal the reasons for dismissing the stay application.

13 At a status conference before Registrar Boyle on 23 March 2005, orders were made to, inter alia, join the Shire as a party to the application for a writ of certiorari and to designate the Shire as the third respondent.

14 By letter dated 16 May 2005, solicitors for the Association wrote to the Court seeking to have the matter re-listed for an urgent hearing for the Association to seek an order in the following terms:

"1. The Order Nisi made 23 February 2005 shall operate as a stay of the Respondent's determination in Town Planning Appeal Tribunal Appeal No 47 of 2004 so that no party take any action, grant any licence, permit or other authority leading to a or any disturbance of the vegetation on the primary sand dune located on lots 800 and 801 until final resolution of Supreme Court actions Civ 1161 and Civ 1162."

15 The basis of the stay application was that it had allegedly come to the notice of the Association that earthworks would commence on the following day. The application was heard on 16 May 2005 and ex tempore reasons were given for Hasluck J's decision to refuse to grant they stay of proceedings sought under O 56 r 5. In the course of those reasons, his Honour said (at 2):

"... as I have indicated, a development approval was issued subject to certain conditions. This means that when an application was made for a building licence to the Shire of Busselton which would permit work to proceed, the stand adopted by the municipality was this. In compliance with the ruling of the Tribunal the Shire saw its role as being to ensure that the subject conditions had been satisfied. It acted pursuant to the precept that prima facie the party applying for a licence should have it unless strong objections or reasons stand in the way.

Thus, for some months past, pursuant to the background I have described, prima facie, Silverland, has been in a position to proceed subject to complying with the specified conditions and obtaining any further approvals that might be required."

16 The justification for bringing a further stay application, and bringing it a matter of urgency, was the existence of changed circumstances, said to be that work on the relevant land was imminent. However, his Honour expressed some concern as to the nature and extent of that evidence. He noted that the two affidavits relied upon, one from a member of the Association and another from the Association's solicitors, had been in existence for some time. The evidence identified as justifying the urgent application was a letter dated 16 May 2005 and related correspondence which foreshadowed an application for a stay in the absence of undertakings and assurances that nothing would happen on the site. The absence of any satisfactory assurances or undertakings precipitated the stay application. The correspondence was not before the Court in the usual fashion, as an annexure to an affidavit; although counsel for the Association made it clear that the correspondence would be provided in affidavit form in the very near future. It was also put to Hasluck J from the bar table, that residents in the vicinity had observed machinery on the site and that work may have commenced. His Honour remained concerned that he did not have before him sworn evidence testifying to the matters on which counsel sought to rely.

17 Counsel for Silverland accepted that, pursuant to the building licence which had been granted, there had been some marking out and machinery may have been in the vicinity. However, there was no concession made as to whether there was an immediate intention to use it.

18 There was also before Hasluck J an oral application for an injunction, unsupported by any undertaking as to damages and without any indication that an undertaking would be forthcoming. The Association relied on the "special circumstances of the case" as a basis for dispensing with an undertaking. However, his Honour was not prepared to grant the injunction, even for a short period. He considered the situation to be one where the undertaking as to damages should be regarded as a necessity.

19 With respect to the stay application, Hasluck J considered the relevant authorities, in particular Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7 (at [11]) per Owen J, Branch V Lawrence & Ors [2003] WASC 124 per Pullin J and Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, before concluding that there is a jurisdiction to grant a stay of the kind sought but that the jurisdiction is an extraordinary jurisdiction and should only be exercised in "exceptional circumstances". The circumstances said to enliven the discretionary jurisdiction and which will be exceptional is if there is a real risk that it will not be possible for a successful applicant to be restored substantially to his former position: Branch v Lawrence (at [31]). Hasluck J also concluded from the decision in Branch v Lawrence that it is permissible to consider the defendant's prospects of success in the appeal situation and that regard should also be had to the balance of convenience: per Hasluck J (at 9); per Pullin J in Branch v Lawrence (at [34]).

20 Hasluck J also made reference to another consideration: Prima facie, a litigant is entitled to the fruits of his ruling even though there may be an appeal or some other proceedings pending. In this case, emphasis was placed on the fact that prima facie, Silverland had gone through the processes and was entitled to proceed. Hasluck J identified a further factor to be considered. That is, the ruling sought to be acted upon had been handed down by a Tribunal with a presumed special expertise in considering the very kinds of concerns which appeared to be agitating the mind of the applicant for the stay of proceedings.

21 Hasluck J found that he was not in a position to determine the seriousness of the threatened impact upon the landscape. He considered that the materials before him were not especially compelling, nor of an up to date kind, in regard to the nature and imminence of the threat. His Honour also made the following comment:

"I find ultimately as I come to review all these materials before me at short notice that I am not in a position to determine the seriousness of the threatened impact upon the landscape which is of concern to the applicant. It appears from the reasoning of the Tribunal that quite substantial consideration has been given to these matters and therefore one cannot too easily proceed to the conclusion that in some sense the subject matter, or the integrity of the subject matter, will be subverted or displaced by any action of the kind contemplated, because there has already been some consideration given to such matters."

22 Ultimately, his Honour concluded that he was not persuaded that there was sufficient evidence before him to establish exceptional circumstances nor to show that the integrity of the subject matter might be irretrievably altered. It is significant to note that, in reaching that conclusion, his Honour noted that "the entire background of the processes ... described suggest there has already been some attention to that side of the matter": (at 11).

23 On 20 June 2005 and 21 June 2005, the primary application was heard by me and the decision reserved.

24 On 24 February 2006, the Association's solicitors made a request for the primary application to be re-listed so it could renew its application for a stay of proceedings to preserve the integrity of the subject matter of the proceedings. It would appear this action was taken following a decision by the Shire on 25 January 2006 to conditionally approve what is described in the letter as "a further development application". The fact that a development application had been lodged was not raised at the hearing on 20 June 2005 - 21 June 2005. On that basis, the applicant requested that the matter be re-listed before me to seek orders preserving the subject matter of the primary proceedings pending the delivery of the reserved decision. It is apparent from correspondence between the Association's solicitors and the solicitors for Silverland that the applicant sought to confirm whether the conditional approval of the development application was dependent upon the validity of the Tribunal's decision that is the subject of the primary application. Silverland was not prepared to provide the information sought. That correspondence is before the Court as annexures to an affidavit of the Association's solicitor, Alan Phillip Rumsley.

25 The stay application was heard by me on 15 March 2006. Part of the material before the Court was the affidavit of John William Price, a member of the Association. He deposed to the fact that he received from the Shire a letter dated 9 February 2006, in which the Shire confirmed that on 25 January 2006 Council resolved to approve, subject to conditions, a development application in relation to lot 500 at the corner of Valley Road and Dawson Drive, Yallingup. It is clear from the terms of the resolution, set out in the letter, that the application was received by the Shire on 26 May 2005 and proposed 20 tourist accommodation units and two commercial tenancies (including one 128 seat restaurant and a shop). It was approved as being generally consistent with TPS 20 and the policies of the Shire.

26 It is apparent from Mr Price's affidavit that some members of the Association became aware that the Shire was to consider on 25 January 2006, a further development application lodged by Silverland. The affidavit is silent as to the source of the information or when the deponent or others first became aware that the development application had been lodged and was to be heard on that date. In any event, representatives of the Association attended the Shire's offices when Council was considering the development application and made oral submissions. Councillors were reminded of the fact that the decision on the primary application had been reserved and that, in the event the decision went in favour of the Association, it was possible that the site might have to be restored to its original condition. The Shire was requested to wait for the Court's decision to be handed down before approving any further application. The possibility of seeking an injunction to prevent any works being undertaken on the site was also drawn to the Councillor's attention. As to the merits of the application, the density of the development was addressed and the Council was told that the density under the existing short term stay residential zoning allowed for 360 metres per lot whereas the density of the proposed development was 260 metres per lot in the event that permission was given to build on the sand dune. It was also submitted that, irrespective of the zoning density, there should be no development of the dune. Another proposition that was put to the Councillors was that the amendment was in direct conflict with State planning policy of enhancing tourism because of the relocation of the commercial/tourism aspect of the development away from public access. The adverse impact on the community of the additional traffic flow and parking problems was also raised. Finally, it was put to the Councillors that the application was for an ill-conceived high-density development which would despoil an iconic piece of coastline.

27 The affidavit of Glyn Crimp, who is a director of Silverland, was provided to the Association and to the Court on the morning of the hearing and filed on the following day. Mr Crimp deposes to the fact that the development application approved by the Shire on 25 January 2006, is a separate approval to the subject of the letter from the solicitors for the Association dated 24 February 2006. Mr Crimp also sets out the matters which have occurred with respect to the land since the decision of the Tribunal. The matters include site surveys, investigations by environmental scientists on effluent disposal and storm water drainage, architects drawings and sketches, the design of site works and the engagement of relevant personnel. Significantly, in the context of this application, Mr Crimp deposes to the following facts:

"(i) that the site has been cleared and vegetation disposed of for that part of the site the subject of the earthworks;

(j) the earthworks have been completed and the excess soil has been removed from the site;

(k) retaining walls have been constructed between the portion of the site the subject of the earthworks and those areas of the dune system to be preserved;

(l) stabilisation and revegetation of the earth worked areas has been effected;"

28 It is said by Mr Crimp that the purported fragility of the dune system and the effect on that dune system of the proposed earthworks and the construction of retaining walls was a significant factor in the basis for the application of the Association in these proceedings. Mr Crimp states that substantive works to give effect to the decision of the Tribunal were concluded in late July and early August 2005 and hence the Association knew or ought to have known that the earthworks and the construction of the retaining wall had already been effected. Mr Crimp also stated that the works effected on the site to date are works which fall within the scope of the approval granted by the Tribunal and the decision of the Shire on 25 January 2006 in that those works are common to both approvals.

29 Before turning to consider the submissions made by the parties to this application, it would be appropriate to identify the factors to be considered in an application of this type. The power to grant the order sought can be found in O 56 r 5(2) of the Rules of the Supreme Court, although it is also part of the inherent jurisdiction of the Supreme Court. Subsection (2) relevantly states that an order nisi for certiorari, shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders. In Stampalia Owen J formulated the test in these terms: The applicant for the stay must demonstrate that there are special circumstances sufficient to satisfy the Court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation: (at [11]). Owen J also considered that this formulation was sufficiently broad to encompass factors that would normally be taken into account in considering the balance of convenience: (at [11]). In forming the view that the test should be formulated in the terms outlined above, Owen J considered a number of authorities, including Hamersley Iron Pty Ltd v Lovell which was also considered by Pullin J in Branch v Lawrence.

30 In Hamersley Iron Pty Ltd v Lovell the Court considered an application for an order staying execution pending the hearing of an application to the High Court for special leave to appeal. As a threshold issue, the Court determined that the approach of the Court in determining whether to grant a stay of execution pending an application for special leave to the High Court should be the same as the approach taken by the High Court to the same application: per Ipp J (at 85); per Anderson J (at 91). As to the nature of that test, the Full Court held that the jurisdiction to grant a stay pending an application for special leave was an extraordinary jurisdiction only to be exercised in exceptional circumstances: see Ipp J (at 81, 82); Anderson J (at 89). The Full Court also concluded that, generally speaking, a stay will only be granted where it is necessary to preserve the subject matter of the litigation and where there is a real risk that it will not be possible for a successful applicant to be restored substantially to his or her former position: per Ipp J (at 85); Anderson J (at 89).

31 In Branch v Lawrence, Pullin J referred relied upon Hamersley Iron Pty Ltd v Lovell as defining the way in which the jurisdiction to grant a stay pending appeal ought to be applied. He said (at [31]):

"That case makes it clear that a stay is not granted simply for the asking; that it is not normal to grant a stay; and that the jurisdiction to grant a stay is an 'extraordinary jurisdiction' and only to be exercised in 'exceptional circumstances'."

32 It may well be that the difference in approach is explained by the fact that Branch v Lawrence was a case of an appeal from the decision of the Court of Appeal pending an application for special leave, whereas Stampalia involved an order nisi for a writ of certiorari, as in this case. However, with respect to Owen J, I agree with Hasluck J that the test to be applied is as stated by Pullin J in Branch v Lawrence. I note that in Hamersley Iron Pty Ltd v Lovell, the Court determined that the approach of the Court in determining whether to grant a stay of execution pending an application for special leave to the High Court should be the same as the approach taken by the High Court to the same application: per Ipp J (at 85); per Anderson J (at 91). The reason given by Ipp J was that the rules which applied to the High Court were counterparts of the Rules of the Supreme Court. Ipp J considered that the relevant considerations do not differ depending on whether the application for a stay is made to the High Court or the Supreme Court: (at 85). Anderson J took a slightly different approach. His Honour considered that there should be a general conformity between the approach taken by the Supreme Court in the exercise of its jurisdiction to stay pending applications for special leave to appeal and the approach that would be taken by the High Court to the same application: (at 91). An application for a writ of certiorari may be returnable for a single Judge or the Full Court and, as with appeals from the Full Court to the High Court, often involve situations where the appeal may well be futile if a stay is not granted or require preservation of the subject matter if the appeal is not to be rendered nugatory. In my view, I can see no reason why the conformity seen as desirable by Anderson J in Hamersley Iron Pty Ltd v Lovell is not also desirable in applications for a stay of proceedings pending the grant of a prerogative writ. In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J observed that it is important to emphasis that the power to grant a stay is an exceptional jurisdiction lest the impression be created that, in the conduct of litigation, such orders are available to keep matters in status quo until litigation is finally resolved. I consider that this proposition applies equally to any type of appeal, including an "appeal" by way of an application for a writ of certiorari. For these reasons, I prefer the test outlined by Pullin J in Branch v Lawrence to that of Owen J in Stampalia.

33 In the written submissions filed on behalf of the Association, reference was made to Hasluck J's conclusion that he was not persuaded that there was sufficient evidence before him to grant the stay. The additional evidence on which the Association relies as now justifying a stay of proceedings is the approval by the Shire of a further development application for a higher density tourist development that which was previously approved. The higher density referred to is the application for 20 tourist accommodation units rather than the previous 19. The failure to advise the Association or the Court during the hearing before me or, indeed, before Hasluck J, is also relied upon in support of the Association's application.

34 The Association submits that, having produced evidence of the proposed development to the extent available to it, that evidence should be weighed according to the proof that was within the power of the Association to have produced and was in the power of Silverland to have contradicted. It is said that neither the Shire nor Silverland have contradicted the Association's evidence. In support of this proposition, counsel relied on the decision of Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 98 ER 969. In Blatch v Archer, on the trial of a civil action of debt against a sheriff for the escape of a person in custody, an issue arose as to whether the arrest was legal. The warrant justifying the arrest was in the hands of the sheriff and therefore it was not in the power of the plaintiff in the action to produce it. Lord Mansfield held (at 970) that it was certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted. That decision was followed in Apollo Shower Screens Pty Ltd & Anor v Building and Construction Industry Long Service Payments Corporation [1985] 1 NSWLR 561 where the Court was called on to determine whether the plaintiff was required to lodge returns or pay into the long service leave fund administered by the defendant which had the legislative responsibility for the fund. The question which arose was whether the work carried out by the plaintiff's employees was work of the kind usually performed by a carpenter and, therefore, building and construction work for the purposes of the Act. The plaintiff's case was that it did not meet that definition. Hunt J considered that the defendant had the greater means to produce evidence which contradicts the negative proposition for which the plaintiff contended. Provided the plaintiff established sufficient evidence from which the negative proposition may be inferred, the defendant carried an evidential burden to advance in evidence any particular matters with which the plaintiff would have to deal in the discharge of their overall burden of proof: (at 565). However, Hunt J emphasised that the plaintiff was required to produce more than only comparatively slight, or a mere scintilla of evidence to discharge its onus. He concluded by making the following observation (at 565):

"What I do intend to suggest is that the plaintiff's burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition. That is a pale reflection of the 'scintilla' doctrine. It is but an application of the more general maxim, not restricted to cases where the facts are peculiarly within the knowledge of one party, that all evidence is to be weighted according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted."

35 I have some reservations about the application of the principle in Blatch v Archer to the situation being dealt with in the Apollo Shower Screens case. I have some difficulty with the proposition that, in this case, all that is required is for the Association to produce some evidence from which an inference could be drawn that potentially damaging works will be carried out on the site, after which the obligation is on Silverland to provide the Court with an accurate and up to date account of the works being carried out. However, in my view, it is unnecessary to decide whether the principle applies in this case. In view of the affidavit evidence adduced by Silverland, I consider that there is sufficient evidence before the Court to identify the work to be carried out and potential risk.

36 I note in passing that the basis of the application before Hasluck J for a stay of proceedings was that the balance of convenience favoured the Association because, if the vegetation on the primary dune is disturbed, there is a real risk that the primary dune will be further destabilised, which will adversely affect the Yallingup townsite. However, it appears from the affidavit of Mr Crimp that the work which had the potential to damage the site has already been carried out as a consequence of the order of the Tribunal under the original development application.

37 At the hearing of the further stay application, counsel for the Association conceded that the work being carried out was in relation to the same application for development approval that was reviewed in the Tribunal and was the subject of the primary action. However, according to counsel, there is one nuance. Subsequent to that approval but prior to the hearing of the consolidated action, a further development application was submitted by Silverland for a 20 unit tourist development which differs from the 19 tourist development application that the Tribunal approved. In effect, there was a further application to develop the same area in a different way. It was that further development application about which the Association was not informed and which was not put before the Court on the hearing of the combined action. According to counsel, as these proposals are dealt with between the Shire and the developer, the Association is not provided with details or a plan of the proposed development.

38 The Association does not dispute that, after the decision of Hasluck J but before the hearing of the substantive application, work commenced to construct a retaining wall which disturbed the site. According to counsel, as far as the Association is aware, no other work has been done on the site. Counsel emphasised that the Association has never sought to stop any of the work to be done to commence development except for work which disturbed the site, including the construction of buildings. The Association's position is that there is a great deal of work which Silverland could proceed with which does not involve damaging the site. However, counsel was not clear as to what that work was and there was no affidavit material before me addressing that issue. As I understand the evidence of Mr Crimp, the only work remaining is of that character, in that the work already done which, on his evidence, is common to both the initial and the amended development application, is the work which has had what the Association would say was an adverse impact on the site.

39 It is further said on behalf of the Association that, if it were to be successful with respect to that part of the combined action dealing with the zoning, then it may be the case that the proposed development, insofar as it is outside the requirements for the lesser zoning, would not proceed. The Association's position is not that the site ought not to be developed. Indeed, it is said that it is in everyone's interests that the site be developed. However, the Association's position is that it should be developed only in accordance with a short stay residential zoning or a group housing zoning, both of which permit construction of a development but not one of the density provided for in the amended application.

40 Counsel for the Association submitted that it could be inferred from the exchange of correspondence between the parties and the material in the affidavit that the lodgement by Silverland of an application for a building licence is imminent and that the Shire is predisposed to the grant of that building licence. It is said that the grant of a building licence will permit further destruction of the site and the construction of a 20 unit tourist development which, according to counsel, is the activity to which the stay is directed. As outlined in the correspondence annexed to the affidavit of Mr Rumsley, the Association simply wishes to stay any action, the grant of any licence or permit or other authority leading to any disturbance of the vegetation on the primary sand dune.

41 Counsel for the Association was specifically asked to define the new information or new circumstances on which he relies in support of this stay application. According to counsel, one reason is the fact that Hasluck J was not told that a further application for a 20 unit tourist development was prepared and about to be lodged. He was not told that within days bulldozers moved onto the site to commence preparation for the construction of the retaining wall. The second point is that Hasluck J's second reason for not granting the stay was that he could not determine the merits or otherwise of the points being made in the substantive action. It is said that that position has changed because the substantive action has now been heard and, as the presiding Judge, I am privy to that information. The third matter identified is that the 20 unit tourist development has been approved by the Shire, albeit subject to conditions. The final matter of difference is that the inference can be drawn that a further building licence is shortly to be applied for and, by further inference, will be granted. Apparently, a limited building licence was granted for the construction of the retaining wall, on the basis that it is open to the Shire to grant building licences in sections rather than with respect to the entirety of a development. I accept that some of the concerns expressed by Hasluck J have now been overcome. In particular, there is now additional evidence before the Court of the work carried out on the site and of the stage which the development has reached. As to the merits of the primary application, while I agree that this is a relevant consideration, I have some difficulty with foreshadowing the outcome of the primary action which would be the effect of addressing this issue. In any event, because of other factors to which I shall refer, it is unnecessary to consider this factor.

42 Counsel for Silverland summarised its position as follows. On 14 March 2005, requests were made for undertakings in relation to giving effect to the decision of the Tribunal. Those requests were declined. On 16 May an application was made before Hasluck J and was refused. On 26 May a new application was made by Silverland to the Shire seeking approval to a variation to the proposed development. The earthworks, including clearing vegetation from the site, completing earthworks and the removal of excess soil, the construction of retaining walls had been commenced and were effectively completed in July and early August last year. The application made on 26 May was not determined by the Shire until 25 January 2006. The Association was clearly aware of the application and the determination as is apparent from Mr Price's affidavit and the evidence that members of the Association attended the relevant Council meeting. It is also said on behalf of Silverland that the application to vary the proposed development is an entirely different type of application from an approval to commence development which was the subject of the review in the Tribunal. Put another way, there is no apparent nexus between the 26 May application and the subject matter of the primary action. I do not accept that proposition. It is on Silverland's own admission, a variation of the initial application presented to the Shire by way of an amended application. It relates to the same site and is a similar development also the density of the development differ. I consider that there is a nexus between this application and the initial application the subject of review. Reliance on the fact that an amended application has been lodged to negate the nexus sufficient to justify a stay is, in my view, a contrivance.

43 On behalf of Silverland it is said that the works the subject of approval were effected in accordance with the approval issued by the then Tribunal and were completed some seven months ago. It is said that the trigger of a new decision by the Shire in relation to a new application seems to be irrelevant, leaving aside the issue whether the fact that new material has come into existence to bolster the perceived deficiencies of the material before Hasluck J suffice to substantiate the stay. Silverland submits that they can not because these matters are now of many months' age and the decision of the Shire in January this year bears no relevance to it. I do not accept that, simply because certain works have already been completed, approval of a new application is irrelevant. Much would turn on the nature of the change to the development and the work required to be carried out on site as a result of it. However, in the circumstances of this case where it is said that the work likely to cause damage to the site has already been done under the authority of the initial application, this would, as a matter of fact and, if accepted, render the approval of an amended development irrelevant to the issues applicable to a stay application.

44 As I understand it, counsel for Silverland did accept that, if judgment had been given for the plaintiff prior to this further stay application, Silverland would not have been entitled to do the work that it is now doing that is the subject of this further stay application. However, counsel said that there is an argument that, had a decision been made which invalidated TPS 20 or a portion of TPS 20 Silverland would have been entitled to proceed in any event under the then revived Town Planning Scheme No 5 ("TPS 5") in relation to which there were other controls with which this development complied. So there is an argument that a decision in favour of Association on the consolidated actions might not be fatal to Silverland's application. Counsel for the Association described this submission as fanciful. However, counsel considered that if the argument is open, it is in the Association's favour because it shows that everybody contemplates there will be development on this site according to law and whether the current development meets that test will be decided in the primary action. In my view, neither position assists in resolving this application. I am simply not in a position to determine whether Silverland would be entitled to proceed under TPS 5.

45 Counsel for Silverland submitted that, putting to one side the potential outcome of the substantive action, the issue on this stay application is simply whether Silverland takes the risk in relation to carrying out works in circumstances where there may ultimately be a decision which carries with it the possibility that the approval upon which those works are based is itself ineffective and that risk was taken in the middle of 2005. I reject that proposition as being the key issue because while there may be a risk to Silverland, the fact that the site has been destroyed or damaged is also an issue of considerable concern to the Court. While Silverland might take the risk of continuing with a development which might have to be demolished or altered in some way, thereby incurring irrecoverable costs, the more significant issue for the purposes of this application is whether irreversible damage to the site may result.

46 It was also submitted on behalf of Silverland that the perceived damage which is at the heart of these applications is damage which relates to the work effected in late July, early August 2005 about which no application was brought or, at least, no successful application. I accept that the work done to date has already caused damage the site. However, the more significant question is whether, as a result of the amended application, any further work is required which would also cause damage to the site.

47 Counsel for the Association submits that the propositions put by counsel for Silverland on the issue of damage are illusory. It is said that the first type of damage is the destruction of the site and the second kind is construction of the now proposed 20 unit tourist development that will not fit the zoning or the amenity. When pressed on how the construction of housing equates to damage, counsel responded by saying that it is damage because it leaves an invalid building complex within a town site that otherwise does not have amenity and will have to be pulled down. I have some difficulty in accepting that construction necessarily causes irreversible damage to a site. It seems to me that if damage is merely the existence of a building complex then, if the substantive action is successful, it is Silverland's obligation to remove the buildings and the balance of convenience would not lie with the Association.

48 Counsel for Silverland did not respond directly to the question whether the work pursuant to the recent approval was work that will not cause further damage. Counsel said that his client simply did not know what the entertained fears of the applicant are in that respect because, based on Mr Crimp's affidavit, the work done to date is work which is common to both approvals, the approval of the Tribunal and the approval of the Shire in January 2006. It was said by counsel that the approval involves built form development on the site because the clearing of the vegetation, the levelling of the site, the removal of the earth and the construction of the retaining walls, which Silverland understands was at the heart of the Association's original complaint, is all work which has been concluded. Further work to be done included the installation of drainage facilities, the construction of roads and the construction of the built form development, ie the houses. In response to a question from the Court, counsel for Silverland indicated that it is not his understanding that the construction of roads and the related matters would cause further damage to the dune.

49 I have some difficult with the information supplied by or on behalf of Silverland. Counsel was extremely careful in responding to questions on the damage which was likely to result from carrying out further works pursuant to the amended application. It seems to me that common sense dictates that it would be impossible to install drainage facilities and construct roads and houses without causing some damage to the site.

50 On behalf of the Shire it was said that its request of the Association to advise it of the grounds of its further stay application did not elicit a response. As a result counsel only became aware of the basis of the application on receipt of the affidavits and on hearing counsel for the Association's submissions at the hearing. Consequently, it is said that the Shire is limited in the factual matters it could bring to the attention of the Court. Counsel confirmed that it wrote to the Association on 28 February 2005 and made it plain that the Shire had received an application for a building licence in relation to the land and was obliged to deal with it on that basis. Counsel reminded the Court of its submission to Hasluck J that, if an application were received for a development approval, unless a stay was given or an injunction granted, the Shire would be obliged to deal with it on its merits, which it has done with Silverland's second application. Therefore, the Shire's position is that the only thing that has happened is that which it foreshadowed to Hasluck J at the time he refused the stay application. Of course, that proposition does not undermine the decision of Hasluck J because his decision was primarily based on the absence of adequate evidence. Neither does it undermine the effect of this stay application because the triggering factor is that the approval has in fact been granted and must necessarily involve further works on the site.

51 Counsel for the Shire posited this question: If the Court were to make the orders sought by the Association in the substantive action, what effect would it have? Counsel's answer to the question is that it would leave this development application still on foot. Indeed, counsel went even further and submitted that, as a matter of law it would have no effect on the planning approval of 25 January 2006. Counsel amplified this proposition by noting that the order nisi being sought seeks to "operate as a stay of the respondent's determination in Town Planning Appeal Tribunal Appeal number 47" and observing that the appeal relates to a different development application. It is said that there is no jurisdictional basis for relying on O 56 r 5 when the Court is now dealing with a different development application. Counsel conceded that this proposition was not put to the Court on the hearing of the substantive action.

52 Essentially, the submission on behalf of the Shire is that this stay application is misconceived simply because an order nisi made in the terms as requested will have no operation, as a matter of law, on the further development application. It is said that it may, from a practical perspective, lead the parties to consider or reconsider their respective positions, but bringing the fact of the amended development application before the Court as part of the substantive action, would have the effect of seeking to interpose in another matter. The position of the Shire is that, as a matter of law, there would have to be a further substantive application.

53 This submission on behalf of the Shire overlooks the fact that it is apparent on the evidence that the amended application remains outside the zoning which would apply were the Association successful and the only reason why the amended development application was approved was because of the decision in the Tribunal which is the subject of the substantive action and the reason for the stay application. In my view, a developer cannot avoid or overcome the effect of either the substantive application or the stay application by preparing, lodging and obtaining Council approval of an amended development application and then submitting that there is no longer any jurisdiction to prevent a stay to preserve the site, the subject of the development. If that were the case, a developer could prevent an interested party from exercising its legal rights and prevent the Court from exercising its inherent jurisdiction to order a stay of the proceedings brought by the interested party simply by continually lodging slightly different applications for development. I do not accept that such conduct has any impact on the substantive or any ancillary application while ever the development application remains outside the parameters urged on the Court in the substantive application; in this case, the previous zoning.

54 The final matter on which the Shire relies is that one of the key reasons Hasluck J refused the application was that he was not satisfied because there was no affidavit evidence before him that any damage, in the sense of real environmental damage, would be caused to the dune. It is said that there is still before the Court on this application no evidence as to what damage as distinct from works has been carried out on the land. The Tribunal, being the expert tribunal, concluded that whilst there would be works there would be no damage as such environmentally. Counsel for the Shire submits that the position remains unchanged. I accept that the Tribunal may have considered that physical damage to the site did not necessarily equate with environmental damage. However, the type of damage which is relevant to an application of this type is actual damage which may not be capable of repair to the point that the site is returned to its original condition. In my view, there is before the Court evidence of damage of this type. The real issues are whether that damage has already occurred and whether further damage is likely to occur as a result of the amended development application.

55 However, having considered all the information provided to me, in particular the evidence provided by Silverland, I consider the position to be that the irreversible damage to the site of which the Association complains has already occurred as a result of the decision of the Tribunal and was lawfully carried out in the absence of the grant of a stay of the Tribunal's decision. Further, while I consider that the work to be carried out in the future will inevitably cause some damage, I do not consider that such damage is either irreversible or sufficiently serious to justify the grant of the stay application brought by the Association.

56 For these reasons I am unpersuaded that the circumstances justify the grant of an order to stay the determination which is the subject of the application for a writ of certiorari. I would dismiss the Association's application.