Allen v Yarra Valley Railway Incorporated
[2024] VSC 796
•18 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 06072
| Jacqueline Allen | First Plaintiff |
| Eliot Ralph | Second Plaintiff |
| v | |
| Yarra Valley Railway Incorporated | First Defendant |
| State of Victoria (Major Transport Infrastructure Authority) | Second Defendant |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2024 |
DATE OF JUDGMENT: | 18 December 2024 |
CASE MAY BE CITED AS: | Allen v Yarra Valley Railway Incorporated |
MEDIUM NEUTRAL CITATION: | [2024] VSC 796 |
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INTERLOCUTORY INJUNCTION — Whether serious question to be tried — Balance of convenience — Relevance of damages as an adequate compensation — Consideration of the deed of settlement with second defendant — Interlocutory injunction a form of equitable relief — No undertaking as to damages offered —Weak but possible arguable claim on the merits — Weighing of relevant principles — No injunction granted.
NUISANCE — Private nuisance — Alleged nuisance is noise and vibration — Whether interference with use and enjoyment of land substantial and unreasonable — Whether interference is continual — Effect of settlement with the second defendant — Defence of statutory authority not relevant in this instance — Whether behaviour of the plaintiffs relevant — Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] 42 WAR 287, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M. Clarke KC Ms L. Collaris | HM Ong Lawyers |
| For the First Defendant | Mr T. North KC Mr T. Gorton | Vines Lawyers |
| For the Second Defendant | No appearance |
HER HONOUR:
INTRODUCTION
This proceeding was originally instituted against the first defendant, Yarra Valley Railway Incorporated (‘YVR’), and the second defendant, the State of Victoria (Major Transport Infrastructure Authority) (‘the State’). In their summons filed 9 April 2024, Ms Allen and her husband, Mr Ralph (collectively, ‘the plaintiffs’), sought an interlocutory injunction restraining the first defendant and the second defendant from conducting any works at the land known as 30 Tarrawarra Road, Tarrawarra, Victoria (‘the Railway Yard’), including the use of heavy vehicles to transport materials to and from the Railway Yard:
(a) before 7:00am and after 6:00pm, Monday to Fridays;
(b) before 7:00am and after 1:00pm on Saturdays;
(c) on Sundays; and
(d) on public holidays.
The second defendant gave an undertaking to the Court that it would not conduct any of the said works during the specified times for the period of 8 June to 27 August 2024.
On 24 May 2024, the Court adjourned the hearing of the plaintiffs’ application as against the second defendant to 27 August 2024. The second defendant is no longer participating in these proceedings, having settled with the plaintiffs via a deed of release that was entered into between the plaintiffs and the second defendant. A copy of the deed of release was provided to the Court at the hearing of the plaintiffs’ interlocutory injunction on 27 November 2024.
Accordingly, at the hearing on 27 November 2024, the plaintiffs only sought to proceed in their application against YVR.
At the outset of the hearing, the plaintiffs sought to amend the 9 April 2024 summons to reflect the settlement reached with the second defendant and to incorporate recent alleged circumstances in respect of YVR, including an allegation of a drone being used over the plaintiffs’ property as well as an attempt to refine the restrictions on the works sought to be restrained.
The amendment of the summons was opposed by the first defendant. Although some matters of merit were raised in oral submissions by the first defendant, ultimately I allowed the plaintiffs’ amendment at the commencement of the hearing. I was satisfied there was no detriment to the first defendant as it was in a position to respond to the issues raised and that the real issues in dispute between the parties would be facilitated by the proposed amendment.
BACKGROUND
The first and second plaintiff are a couple who live on a large rural property in a green wedge zone in Tarrawarra, Victoria (‘the property’). The plaintiffs have lived on the property since early 2012 and reside there with their two daughters, and their animals. The plaintiffs had also leased land from Tarrawarra Abbey across the road from their property and used this land as a paddock for their horses. However, since August 2024 this arrangement has ceased and the land’s occupation has reverted to Tarrawarra Abbey.
The first defendant is the lessee of the rail corridor constituting the Yarra Valley Railway which runs from Healesville to Yarra Glen, and includes the Tarrawarra Railway Station and Yard (as above, ‘the Railway Yard’). The Railway Yard is located adjacent to the plaintiffs’ property, and part of the rail corridor runs along the northern boundary of their property.
The historic Healesville Railway Line was in operation from about 1889 to 1990. Tarrawarra Station was once located at the site of the Tarrawarra Railway Yard together with a small country siding used to shunt rolling stock.
Images of the plaintiffs’ property and the Railway Yard taken in 2011 appear and are described at paragraph 18 of the affidavit of Jacqueline Allen sworn 28 March 2024 (‘First Allen Affidavit’). An aerial image showing the proximity of the plaintiffs’ property and the land they had leased from the Tarrawarra Abbey to the Railway Yard is at paragraph 17 of the First Allen Affidavit.
YVR is a not‑for‑profit incorporated association. At all material times YVR has leased the Railway Yard and the rail corridor from Victorian Rail Track (commonly known as ‘VicTrack’), a government entity. YVR took possession of the Railway Yard in about 2014.
Since 2014, YVR has been restoring and reconstructing the Healesville Railway Line and, in particular, the rail corridor between Tarrawarra and Yarra Glen Stations that run alongside the northern boundary of the plaintiffs’ property. The plaintiffs say work is carried out at any time of the day, including before and after hours and on weekends, and that the work has included:
(a) clearing the land using small machinery such as chainsaws, welders, whipper snippers, and small farm vehicles;
(b) removing the old railway track using large and noisy diggers;
(c) excavating the Railway Yard to a size that is now larger than Southern Cross Station; and
(d) constructing two large sheds to store vintage rail assets.
An aerial image of the Railway Yard taken in February 2024 appears and is described at paragraph 19 of the First Allen Affidavit.
About nine years ago, YVR removed the old track on the railway line between Tarrawarra and Yarra Glen Stations, however, since then, no new track has been laid. Three tracks have been laid behind what is to be Tarrawarra Station. They are approximately 150 metres in length but have dead ends on both ends. The construction of the new Tarrawarra Station has not yet commenced. Part of the plaintiffs’ concern about ongoing alleged interference with their use and enjoyment of their land is that there they have no information as to when the reconstruction of the Healesville Railway Line by YVR is to be completed. Images and descriptions of the current state of the works by YVR are at paragraphs 108 and 109 of the First Allen Affidavit.
NUISANCE AS ALLEGED BY THE PLAINTIFFS
The plaintiffs contend that the nuisance that has been caused and continues as a result of the works being carried out by YVR since 2014 have become ‘intolerable’. As stated in the First Allen Affidavit, the works alleged are frequently carried out before 7:00am and after 6:00pm on weekdays and throughout the weekend. The plaintiffs’ mental and physical health is said by them to be badly affected, together with that of their children and their horses and their other animals.
The plaintiffs are not seeking to stop the works by YVR altogether but, rather, they want YVR to carry out their works within what they submit are reasonable hours and in accordance with s 4.3 of the Civil Construction, Building and Demolition Guide issued by the Environment Protection Agency Victoria (‘EPA’) on 12 September 2023.
POSITION OF THE FIRST DEFENDANT
The first defendant opposes the interlocutory injunction sought by the plaintiffs to prevent YVR from carrying out any works at the Railway Yard outside of ‘normal business hours’. It alleges the plaintiffs have failed to identify any activities carried out by YVR outside of normal business hours that cause an unreasonable interference with the quiet enjoyment of the plaintiffs’ property. Put another way, the plaintiffs have not identified a serious question to be tried.
Moreover, it was submitted that the activities of the first defendant may be contrasted with the activities of the second defendant who, it is accepted, have from time to time carried out work at night in delivering ballast and constructed elements to the Railway Yard as part of the Level Crossing Removal Project.
Further, YVR submitted that the balance of convenience does not favour the grant of an injunction and, further, the plaintiffs’ own behaviour towards YVR, including trespass and assault, is disentitling to equitable relief.
LEGAL PRINCIPLES TO BE APPLIED
Interlocutory Injunction
The principles to be applied in a claim for interlocutory injunctive relief are well established and uncontroversial as between the parties. The debate is whether, on the material before the Court, the Court ought to make the orders sought by the plaintiffs.
The legal test to be applied for an interlocutory injunction requires the Court to consider whether there is a serious question to be tried, whether in the absence of an injunction the plaintiffs will suffer irreparable injury which will not be adequately compensated by damages, and whether the balance of convenience or justice favours the granting of the proposed relief.
Whether there is a ‘serious question to be tried’ requires a judgement to be made, examining both the legal foundations of the claim made in the proceeding and such of the evidence in support as is exposed on the material before the Court. Unless the Court concludes that the applicant’s claims are not reasonably arguable, that is, they do not have ‘any real prospect of succeeding’, then the Court will ordinarily be satisfied there is a serious question to be tried.[1]
[1]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, [13].
In determining whether the remedy of injunction ought to flow, the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[2]
[2]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, [35].
The applicable principles are not entirely separate and must be examined together.
Nuisance
The plaintiffs’ claim relies on the establishment of the tort of nuisance. The legal elements of the tort of nuisance are uncontroversial and well‑established.
The tort of private nuisance is committed where a person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable. Liability for nuisance is founded upon a state of affairs created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.[3]
[3]Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [15].
Commonly, undue interference with the use and enjoyment of a plaintiff’s land will be caused by an activity or state of affairs on a defendant’s land so that the tort is often described as one dealing with the respective rights of neighbouring landowners or occupiers.[4]
[4]Hargrave v Goldman (1963) 110 CLR 40.
What constitutes a substantial interference is a question of fact. In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management[5] (‘Southern Properties’), the range of considerations that may be relevant to the question of reasonableness was summarised as follows:
To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.[6]
[5][2012] 42 WAR 287.
[6]Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] 42 WAR 287, [118]; applied in Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, [180]–[181]; Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768, [93]; Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512, [69]–[70].
In the recent decision of Hunt Leather Pty Ltd v Transport for NSW[7] (‘Hunt Leather’), it was observed that there are three types of interference with land which may constitute a nuisance, including causing encroachment on the neighbour’s land short of trespass; causing physical damage to the neighbour’s land or any building, works or vegetation on it; and unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land.[8] It is the third type of interference with land that is relevant here.
[7][2023] NSWSC 840.
[8]Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840, [587] quoting Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, [54].
The interference with the plaintiffs’ use of their land must be substantial and unreasonable. What is unreasonable is to be considered objectively between the parties having regard to a range of factors (as set out above at [28]). The interference may be unreasonable even if the defendant took reasonable care. The fact that the defendant did take reasonable care may be a relevant factor but that in and of itself does not provide a defence whereby the plaintiffs cannot succeed.
The question of ‘public benefit‘ may be relevant to the consideration of the reasonableness of the interference to the use and enjoyment of the plaintiffs’ land. However, the mere fact that there is a public benefit to the activity which is said to create an unreasonable interference with the use and enjoyment of the land, does not operate as a defence.
Further, there may be a defence of statutory authority available to a defendant. The defence of statutory authority requires that the nuisance be an inevitable consequence of the authorised undertaking. Moreover, a defendant will only be liable if it acted negligently in the exercise of its statutory powers.[9]
[9]Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 [16]; applied in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] 42 WAR 287, [121].
As McLure P explained in Southern Properties:
In considering whether a nuisance is inevitable it is necessary to distinguish between statutory provisions that require a specified activity to be carried out and provisions that permit, but do not require, a specified activity to be carried out. In the former case … any nuisance resulting from the activity will be authorised unless it is caused by negligence on the part of the person conducting the activity. All that is required is that the specified activity be executed (performed) with reasonable care.[10]
[10]Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] 42 WAR 287, [122]; See further Trindale F, Cane P and Lunney M, The Law of Torts in Australia (4th ed, OUP, 2007) [4.1.6.3].
YVR conceded that the defence of statutory authority does not arise in this matter and no such defences were pleaded.
ANALYSIS
In order for the Court to be satisfied that it should make the orders sought by the plaintiffs, it is necessary for the plaintiffs to establish the following:
(a) that there is a serious question to be tried in that there is a nuisance being caused by the first defendant. In other words, there is an unreasonable interference with the use and enjoyment of the plaintiffs’ land;
(b) that the plaintiffs will suffer irreparable injury for which damages will not be adequate compensation unless the proposed injunctive relief is granted; and
(c) that the balance of convenience favours the grant of the interlocutory relief.
Has nuisance been established?
The first principle requires the Court to be satisfied that the plaintiffs’ claims are reasonably arguable. In the absence of forming the view that the claims made do not have ‘any real prospect of succeeding’, the Court will ordinarily be satisfied there is a serious question to be tried. As set out in the affidavits of the plaintiffs, they claim that there has been unreasonable interference with the use and enjoyment of their land over a considerable period of time. Specifically, they complain about noise, dust, and vibration caused by the variety of works being undertaken on the YVR land. The affidavit material before the Court addressed these complaints either in whole or in part. The plaintiffs relied on the following:
·First Allen Affidavit;
·Further Affidavit of Jacqueline Allen, sworn 27 May 2024;
·Third Affidavit of Jacqueline Allen, sworn 21 June 2024;
·Affidavit of Eliot Ralph, sworn 21 June 2024;
·Fourth Affidavit of Jacqueline Allen, sworn 18 November 2024; and
·Further Affidavit of Eliot Ralph, sworn 26 November 2024.
By reply, the first defendant filed the following material:
· Affidavit of Caleb Fielding, sworn 27 May 2024; and
· Second Affidavit of Caleb Fielding, sworn 17 August 2024.
The first defendant submitted there is a disconnect between (i) the matters pleaded by the plaintiffs in their Statement of Claim; (ii) the matters now complained of by the first plaintiff in her affidavit; and (iii) the relief sought in the proceedings.
In their Statement of Claim, the plaintiffs allege a nuisance arising from noise and vibration.[11] In their prayer for relief and in their summons, an interlocutory injunction is sought only to prevent activities described as ‘any works’. It had confined the use of heavy vehicles to transport materials to and from the Railway Yard to specified times.
[11]Plaintiffs, ‘Amended Statement of Claim’, document filed in Allen v Yarra Valley Railway Incorporated, S ECI 2023 06072, filed 2 April 2024, [10]–[11].
However, various affidavits deposed to by the plaintiffs refer to multiple events that were carried out by YVR wholly within the certain hours for which a remedy is not sought. That is, the plaintiffs appear to be raising allegations in respect of work activities that, even were they to succeed in the proceedings, would be unaffected by any injunction. This would appear to suggest that the activities and the effect is not unreasonable and substantial.
The Court was urged to cautiously assess the plaintiffs’ claims for specifics and not generalities. It was submitted that, despite the plaintiffs’ attempt to be more precise in what they were seeking to restrain, the restraint sought by the amended summons was still wide and problematic.
The Court was further urged to give regard to this lack of clarity in determining whether the plaintiffs have shown a serious question to be tried. That is, if the nuisance cannot be defined with particularity, then it cannot be a strong case and should not be left to interpretation.
Historical and current complaints and the risk of nuisance now
The first defendant urged the Court to consider the plaintiffs’ material by reference to when the activities complained of are occurring.
The plaintiffs appear to rely upon events from 2014 onwards. The first defendant submitted that not only are such matters subject to limitation periods, but it is also irrelevant to the current application to control conduct in the future. This is an application for a prospective interlocutory injunction. What occurred years ago is not relevant now. It was submitted that what is relevant is what is occurring now and what is likely to occur in the future. This submission was emphasised in the context of the settlement deed agreed between the plaintiffs and the State.
For that reason, YVR’s evidence has focussed upon allegations relating to the years 2023 and 2024 only.[12] It was contended that nothing before that time can be of any assistance to the Court in determining whether a prospective injunction ought be granted now.
[12]First Defendant, ‘Affidavit of Caleb Fielding’, document filed in Allen v Yarra Valley Railway Incorporated, S ECI 2023 06072, filed 27 May 2024, [51]–[93].
I accept that there is evidence from both parties which demonstrates the activities at night and the interference caused by delivery works resulting from the activities of the State in carrying out the Level Crossing Removal Project. I accept that YVR benefits from the receipt of those materials but I also accept that they are activities not directly carried out by YVR, notwithstanding the activities occurred on or near the YVR land. Now that a settlement has been achieved between the plaintiffs and the State, and the works are controlled by the terms of the deed of settlement, and that those works are to cease, any substantial justification for relief required on an interlocutory basis falls away.
I also accept that YVR’s works are primarily carried out during the day, notwithstanding they occur on the weekend and on public holidays. As YVR is a volunteer organisation, this is understandable. However, the question then becomes whether the activities carried out by YVR have created and will continue to create unreasonable interference with the use and enjoyment of the plaintiffs’ land.
Taking into account the allegations and information provided in the plaintiffs’ affidavits, I have formed the view that any adverse impact on the use and enjoyment of the plaintiffs’ land, which was occasioned in the past, was primarily caused by the effect of the works being undertaken by the State as a consequence of the Level Crossing Removal Project. The settlement with the State makes the potential for nuisance to be caused effectively redundant. The receipt of surplus materials by YVR is a consequence of railway work undertaken by the State and has been moderated and controlled by reason of the settlement achieved between the State and the plaintiffs. When one analyses the activities to occur in the future, there is no persuasive evidence which leads me to the conclusion that there is a risk that there will be interference with the plaintiffs’ use and enjoyment of their land in the same manner and effect that appears to have occurred at times in the past which would justify the Court’s intervention at this time.
Further, the activities which are complained of and the likely frequency and extent of them makes it difficult to accept that the Court can be satisfied that there is ongoing nuisance being caused by YVR. Critically assessed, the complaints made against the first defendant are in this context over sensitive and, as such, would not reasonably fall within the realm of unreasonable interference.
I have reviewed the photographs and the videos which were provided as part of the plaintiffs’ evidence. The characterisation of this material was strongly challenged by the first defendant. I am not satisfied that, for the purposes of establishing a serious question to be tried, the allegation of unreasonable noise and effect of the works which are said to have occurred on 3, 7, 9, 15 and 16 December 2023; 12, 13, 15 to 17 February 2024; 5, 9 and 11 March 2024; 5 and 25 April 2024; and 5 May 2024,[13] satisfy me that, without more, the complaints made by the plaintiffs constitute unreasonable interference with the use and enjoyment of their land.
[13]First Defendant, ‘Outline of Submissions Opposing Interlocutory Inunction’, document filed in Allen v Yarra Valley Railway Incorporated, S ECI 2023 06072, filed 30 May 2024, [50]–[111].
There is little doubt from the affidavits of the plaintiffs that they are upset by the change in circumstances which has occurred nearby their property. That is, however, not the test.
I also accept that YVR has sought to ameliorate any impact of the works that they undertake by locating the hard stand areas a considerable distance from the plaintiffs’ property.[14] Noise attenuation measures including retaining walls 2.5 m in height and large ballast piles have been installed between the hard stand and the plaintiffs’ property since 2019.
[14]The hard stand areas are respectively 320 m and 500 m from the plaintiffs’ property; see First Defendant, ‘Affidavit of Caleb Fielding’, document filed in Allen v Yarra Valley Railway Incorporated, S ECI 2023 06072, filed 27 May 2024, [91]; and First Defendant, ‘Outline of Submissions Opposing Interlocutory Inunction’, document filed in Allen v Yarra Valley Railway Incorporated, S ECI 2023 06072, filed 30 May 2024, [32].
The state of the evidence in respect of noise and dust monitoring said to have been carried out in 2023 and 2024 is equivocal. There are questions as to its robustness and its relevance and, as a consequence, I am not satisfied that it is of much assistance to the plaintiffs’ claim and I consequently, at this point, give no weight to it either way.
Interlocutory injunction is a form of equitable relief
The first defendant argued that, as an interlocutory injunction is a form of equitable relief, it is discretionary relief to be granted consistent with the principles of equity.
I am putting to one side the allegations of assault or damage which have led to criminal charges being laid against both plaintiffs. In my view, for the purposes of my determination at this juncture, whilst unedifying and clearly unacceptable behaviour, no matter what the sensitivity and, to use a colloquialism, the ‘length of wick’ one might have, this type of ‘self‑help’ is not the proper course. I do not give any weight, at this time, to the first defendant’s argument that this behaviour of the plaintiffs disqualifies them from seeking equitable relief.
The authorities relied on by the plaintiffs are not apposite
It was submitted by the first defendant that several of the authorities referred to by the plaintiffs were not apposite.
The decision in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd[15] (‘Codelfa’) was said by the first defendant to be no way analogous to the complaints made against YVR. In the Codelfa case, detonation of explosives was occurring.
[15](1981) NSW ConvR 55–038.
The facts in Hunt Leather were also sought to be distinguished by the first defendant.
In any event, I accept that the question of substantial interference is a question of fact to be determined objectively, and I am of the view that the Court is not authoritatively assisted by references to other cases and factual situations which do not replicate the facts before this Court.
FINDINGS
Is there a serious question to be tried?
The first question is whether there is a serious question to be tried. Put another way, have the plaintiffs demonstrated that they have a prima facie case in that there is sufficient likelihood of success at trial to justify in the circumstances the proposed injunctive relief?
At this time and on the evidence before me, the answer to this question is a line ball. I currently have formed the view that there is a possibility, but not a probability, that the plaintiffs might succeed. I have formed this view on the affidavits filed by the plaintiffs (or on their behalf),[16] and the opposing evidence filed on behalf of YVR,[17] and taking into account the role of the State and the settlement between the plaintiffs and the State. In my view, the strength of the plaintiffs’ case, when taken in conjunction with the other factors relevant to be taken into account, is not a strong factor in favour of the grant of the form of injunctive relief sought by the plaintiffs.
[16]This includes the four affidavits sworn by Jacqueline Allen, two affidavits sworn by Eliot Ralph, an affidavit of Hui Meng Ong, and the expert witness statement of Matthew Harrison.
[17]This includes two affidavits sworn by Caleb Fielding.
Of course, at this stage of the proceedings, the evidence of the witnesses who have filed affidavits has not been tested by cross‑examination.
I have formed the view that YVR’s activities, when properly and contemporarily analysed, do not amount to an unreasonable interference in the plaintiffs’ enjoyment of their land, such that an interlocutory injunction ought be granted.
I am satisfied that the complaints made by the plaintiffs relate to a very small number of discrete events occurring for a very limited period of time.
The somewhat emotional claims of the impact on the plaintiffs are, in my view, overstated and exaggerated, and do not establish a level of interference which can be properly characterised as unreasonable as against YVR.
There is little doubt that the plaintiffs are disappointed that the Railway Yard and rail corridor are being reactivated again. However, it remains the fact that the land constitutes a railway corridor and there was always the prospect that activity associated with the railway might occur. Whilst that is no conclusive answer to a claim for nuisance, the legitimate land use, pattern, and history are relevant considerations.
I also note that an area of land previously leased by the plaintiffs immediately adjacent to a substantial part of the YVR land is no longer leased by the plaintiffs, thus the use and enjoyment of this land in close proximity to the YVR land serves to improve the distance between the plaintiffs’ land and the activities on the YVR land. This together with a number of measures to limit the interference with the plaintiffs’ enjoyment of their property are factors which are relevant to the Court’s consideration.
The plaintiffs seek to place significant weight on the EPA Guidelines, though it is conceded by them that they have no legal effect. The reference to ‘normal business hours’ contained in the EPA Guidelines and adopted by the plaintiffs is not determinative of what is reasonable activity. I do, however, accept that they can be a gauge as to commonly accepted levels of activity for construction sites generally. Though, in these circumstances, it is not determinative, even if it might be considered as a convenient marker.
Balance of convenience
In forming the view as to whether the Court should intervene by way of injunctive relief, I must consider each of the relevant principles. As previously noted, the applicable principles are not entirely separate and must be examined together.
Having considered that the plaintiffs have a line‑ball case on whether there is a serious question to be tried, it is necessary to consider the balance of convenience.
The first defendant rejected the plaintiffs’ argument around the urgency or establishment of a need to protect them from irreparable damage by reason of the grant of the relief sought. They submitted that the plaintiffs’ own behaviour had contributed to a slower pace of work, for example, by limiting the number of volunteers and contractors allowed on the site.
Additionally, it was submitted that an interlocutory injunction in the terms sought would prejudice YVR and its members who would be unable to work on weekends, a time when they are most available. This would create significant financial and environmental impacts on the first defendant.
Finally, it was submitted that even though YVR does not consistently work at the Railway Yard on Sundays, on the plaintiffs’ argument, the Court should injunct work being carried out on this day in the future.
In my view, the balance of convenience favours the maintenance of the status quo.
Damages as relief
Where damages are considered to be an adequate remedy, the Court has discretion to award a monetary sum instead of injunctive relief.[18] Whilst this issue was not explicitly addressed by the parties in the application before me, it is a relevant consideration. Given my findings and observations on the evidence above in discussing the serious question to be tried and balance of convenience issues, I do not consider that this factor weighs in favour of a grant of injunctive relief.
[18]Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [337].
No undertaking offered
I note that no undertaking as to damages has been proffered by the plaintiffs and no explanation as to this course has been provided. This factor does not support the relief sought.
CONCLUSION
The first defendant argued the current work patterns of YVR are the only relevant matter to be considered when determining the balance of convenience. In my view, the current circumstances after the settlement with the State, the recent operations on the site and the likely proposed operations are not of the character and impact to warrant the restriction on YVR’s use of its land, and I am not persuade that the form of relief sought is justified. I am not satisfied that the plaintiffs have sufficiently made out a case for the Court’s intervention by way of injunctive relief at this point. The strength of the plaintiffs’ nuisance claim against the first defendant is marginal, but possibly arguable. However, taking into account the potential for compensation by way of damages at trial, and the low level of risk in the future given the current circumstances and proposed operations on the YVR land, I am not satisfied that the balance of convenience supports the relief sought.
Consequently, the plaintiffs’ application for interlocutory injunctive relief is refused.
Any application for costs can be made in writing by 1 February 2024. Unless otherwise directed, I will determine any costs question on the papers.
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