Armidale Local Aboriginal Land Council v Transgrid

[2000] NSWLEC 141

Land and Environment Court

of New South Wales

CITATION:	Armidale Local Aboriginal Land Council v Transgrid [2000] NSWLEC 141
PARTIES:	APPLICANT: Armidale Local Aboriginal Land Council RESPONDENT: Transgrid
FILE NUMBER(S):	40073 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Interlocutory Relief :- interlocutory injunction - application to restrain further works to protect indigenous heritage items - whether serious question to be tried - delay in making application - prejudice to third parties
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 115A, s 115B State Environmental Planning Policy No.4
CASES CITED:	Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148
DATES OF HEARING:	17/05/2000
EX TEMPORE JUDGMENT DATE :	05/17/2000
LEGAL REPRESENTATIVES:	APPLICANT: T S Hale SC SOLICITORS: Beesley & Hughes RESPONDENT: N A Hemmings QC (Solicitor) SOLICITORS: Allen Allen & Hemsley

JUDGMENT:

1

IN THE LAND AND Matter No: 40073 of 1996

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 17 May 2000

Armidale Local Aboriginal Land Council

Applicant

v

Transgrid

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The applicant applies for an interlocutory injunction restraining the respondent, which is a statutory corporation, from carrying out works in connection with the construction of an electricity transmission line within certain identified areas of land.

2. The principal proceedings were commenced by application filed in the Court on 15 May 2000. That application seeks, firstly, a declaration that the respondent has failed to properly consult the applicant as required by condition 51 of the schedule to an instrument of approval under section 115B(2) of the Environmental Planning and Assessment Act 1979; secondly, a declaration that in carrying out works pursuant to the said approval without first complying with condition 51 the respondent is acting in breach of that approval; and thirdly, an order that until the respondent complies with condition 51 of the schedule to the instrument of approval under section 115B(2) of the Environmental Planning and Assessment Act, the respondent be restrained from carrying out further works upon certain identified areas of land as referred to in the Indigenous Heritage Management Plan prepared by the respondent dated 31 December 1999.

3. The respondent is the proponent for the construction of electricity transmission lines for “ the Queensland Interconnection and Transmission Line ”. Development consent is not required under Part 4 of the Environmental Planning and Assessment Act, apparently by reason of State Environmental Planning Policy No. 4. The proposal is an activity under Part 5 of the Environmental Planning and Assessment Act, requiring the Minister's approval under sections 115A and 115B of that Act.

4. The preferred alignment or corridor for the transmission line is situated on land within the boundaries of six Aboriginal Land Councils, including that of the applicant, the Armidale Local Aboriginal Land Council. On 4 November 1998 the Minister gave his approval for the respondent to carry out the activity, that is, the construction of the electricity transmission line along the preferred alignment subject to conditions. Section 115A(1) of the Act provides as follows:

A determining authority is not to carry out an activity to which this Division applies if it is the proponent of the activity unless the Minister has approved of the activity being carried out. The determining authority is to comply with any condition to which such an approval is subject.

5. The approval referred to in that section was, as I have said, subject to a number of conditions, including condition 15 which reads:

At least one month prior to the commencement of any construction works for the project, or within such other period as the Director General may agree to, that subject to condition 16(ii), the proponent shall prepare a Construction Environmental Management Plan (EMP). The Construction EMP shall:

(i) be updated as required and when requested by the Director General. Any significant changes to the environmental management plan shall be referred to the Director General for approval; and
(ii) be made publicly available and copies of the current version supplied to the Department, EPA, DLWC, NPWS and the relevant Councils.
The Construction EMP shall be approved by the Director-General in consultation with the relevant agencies.

6. Condition 51 provides as follows:

The proponent shall prepare an Indigenous Heritage Management Plan to be included as part of the Construction EMP which shall be developed in consultation with the NPWS and relevant LALCs. The following issues shall be addressed in the Plan ...

7. The applicant alleges that the respondent has failed to comply with condition 51 in that the Indigenous Heritage Management Plan, which forms part of the Construction Environmental Management Plan, was not developed in consultation with the applicant being a relevant Local Aboriginal Land Council.

8. I think it is fair to say that the evidence at this stage of the proceedings is somewhat incomplete. There is evidence in the form of affidavits by Mr V M Kim, the chairman of the Armidale Local Aboriginal Land Council and by Ms J L Reilly, the public officer and co-ordinator of the Local Aboriginal Land Council, that there has been no consultation between the respondent and the applicant regarding the terms of the Indigenous Heritage Management Plan referred to in condition 51. In particular it is said that the applicant has not been supplied with a draft Indigenous Heritage Management Plan by the respondent for comment.

9. On the other hand there is evidence by Mr M de Rome, a project manager employed by the respondent, that there have been consultations with the Armidale Local Aboriginal Land Council. As well as those discussions, there has been the funding by the respondent of an archaeological study by archaeologists, nominated by the applicant, from the University of New England, who were to act on the applicant’s behalf. It was ultimately agreed that the respondent would provide funding of $36,394.40, which was paid to the University of New England, and $14,427.60 to the applicant for work by its representatives. I understand archaeological survey work was then undertaken by those representatives. According to Mr de Rome the respondent adopted all the recommendations made by the University of New England archaeologists without amendment and which were then included in the Indigenous Heritage Management Plan. The Indigenous Heritage Management Plan was submitted to the Director General of the Department of Urban Affairs and Planning and approved by the Director General on 16 December 1999.

10. Indigenous monitors nominated by the applicant have been employed by the respondent on the of the relevant section of the works at all times when work has been undertaken by the respondent or by its contractors. That is to say, the works undertaken by the respondent have been carried out in accordance with the Indigenous Heritage Management Plan and in the presence of monitors nominated by the applicant.

11. I have noted that the proceedings were commenced by the filing of an application in the Court on 15 May 2000. The present motion for interlocutory relief was also filed on 15 May 2000. The work has been proceeding for some time and, as I have said, in the presence of monitors nominated by the applicant.

12. If the Indigenous Heritage Management Plan had not been developed in consultation with the applicant or its representatives then the question arises as to why the applicant has left it until now to seek the relief it now seeks.

13. I am not satisfied at this stage of the proceedings that the applicant has established that the Indigenous Heritage Management Plan was not developed in consultation with the applicant. The evidence discloses that the applicant nominated archaeologists from the University of New England to act on its behalf in the preparation of the Indigenous Heritage Management Plan. In that event I would have thought that there was a consultation between the respondent and the applicant (by its representatives, the archaeologists it had nominated from the University of New England). Moreover, the fact that work has proceeded for some time in the presence of monitors nominated by the applicant suggests that the applicant was aware that such work was proceeding in accordance with the Indigenous Heritage Management Plan and that it had no complaint about either the work itself or the Indigenous Heritage Management Plan. Moreover, it gives rise to a discretionary consideration. Why should a court grant urgent relief when an applicant's tardiness in applying for it casts doubt on the reality of the alleged breach? I am not satisfied, therefore, that on the present state of the evidence there is a serious question to be tried.

14. The principles governing the grant of interlocutory relief are settled. For example, in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 Sir Anthony Mason said (at 153):

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless the injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

15. The applicant has not overcome the first hurdle described by Sir Anthony Mason. It is thus not strictly necessary for me to consider, in particular, the important question of the balance of convenience. Two matters suggest, however, that the balance of convenience is against the granting of relief. The first is the delay in the bringing of these proceedings. I have referred to the principle which governs this consideration. The second is the absence of any undertaking as to damages. The Court does not normally grant an interim or interlocutory injunction without requiring the party in whose favour the injunction is sought to give an undertaking to be liable for any damage suffered by the opposing party by reason of the injunction in the event that, at the time at the trial, the claim for final relief fails. There are of course exceptions. Those exceptions relate to cases where the party seeking the injunction is a liquidator, or where the party seeking the injunction is the Crown, or where the party is seeking to enforce a planning or environmental law. In the latter case however, the presence or absence of an undertaking as to damages is merely another matter which the Court should take into account on the balance of convenience, the presence or absence of an undertaking being one of the considerations in the balancing exercise.

16. In the present case the balance of convenience suggests that injunction should not be granted. Firstly, because of the delay in the bringing of these proceedings; secondly, third parties would be prejudiced; thirdly, the respondent is under contractual obligations to third parties; and fourthly, the orders sought appear to be too wide and relate to of land areas which are apparently outside that of the Armidale Local Aboriginal Land Council.

17. The formal order is that the applicant's notice of motion dated 12 May 2000 is dismissed.

I