Blacktown City Council v Wilkie

[2001] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION:

Blacktown City Council v Wilkie and Ors [2001] NSWLEC 162

PARTIES:

APPLICANT
Blacktown City Council

RESPONDENTS
Wilkie and Ors

FILE NUMBER(S):

40025 of 2001

CORAM:

Pearlman J

KEY ISSUES:

Interlocutory Relief :- injunction - environmental harm

LEGISLATION CITED:

CASES CITED:

Blacktown City Council v Wilkie & (2) Ors [2001] NSWLEC 91

DATES OF HEARING:

10/07/2001

EX TEMPORE
JUDGMENT DATE :

07/10/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr D R Parry (Barrister)
SOLICITORS
Houston Dearn O'Connor

FIRST RESPONDENT
in person
SOLICITORS
N/A

SECOND AND THIRD RESPONDENTS
Mr R W Killalea (Barrister)
SOLICITORS
Low & Associates

JUDGMENT:

IN THE LAND AND 40025 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 10 July 2001

BLACKTOWN CITY COUNCIL

Applicant

v

MISTY WILKIE

First Respondent

MARK REID trading as GRAVEYARD RECYCLING and

THE GRAVEYARD RECYCLING

Second Respondent

GRAVEYARD RECYCLING PTY LTD

Third Respondent

JUDGMENT

1. The application before me is for interlocutory relief.

2. The orders which are sought are threefold. They are set out in the amended class 4 application and I do not need to repeat them in full. It is sufficient if I say that the first order sought is that the first, second and third respondents cease using the premises for the purpose of a tip, waste management facility, garbage depot, recycling yard or like use. The second order sought is that the first, second and third respondents be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste onto the premises. Lastly an order for costs is sought.

3. This is the second time an application has been made for interlocutory relief. The first application came before his Honour Justice Lloyd on 6 March 2001 (Blacktown City Council v Wilkie & (2) Ors [2001] NSWLEC 91). On that date his Honour declined to make orders for interlocutory relief. As his Honour pointed out in par 13 of his judgment the relevant principles are well settled. There must be a serious question to be tried and there is a question of where the balance of convenience lies, that is, does the balance of convenience favour the granting of an injunction or does it favour not granting an injunction.

4. His Honour at that stage took into account a number of matters. He was satisfied that there is a serious question to be tried (see par 14), but on the balance of convenience, taking into account, firstly, the number of employees in the business, namely six, and, secondly, the absence of any actual environmental harm (see par 18), his Honour declined to grant interlocutory relief.

5. The matter was set down for hearing today. On the application of the first respondent, who is unrepresented, I have granted an adjournment and therefore the application for interlocutory relief is re-agitated by the council.

6. What has changed in the interim between 6 March 2001 (when Justice Lloyd heard the matter), and today is that there is now substantial evidence of actual harm, and substantial evidence of potential harm. The actual harm is set out in the affidavit of Mr G Sheehy sworn on 24 May 2001. He deposes to dirt and water and silt flowing out of the premises into the unnamed creek adjacent to the premises and causing dust along the road. He deposes to a gap in the concrete blocks that form part of the so-called retaining wall so that material has fallen through the gap and onto the bank of the unnamed creek. He deposes to a scouring of the unnamed creek’s bank below the gap. In his further affidavit sworn on 4 July 2001, Mr Sheehy deposes to the fact that the material contains asbestos sheeting which, in his opinion, is dangerous to human health.

7. The potential for further harm is graphically described by Dr P J N Pells in his affidavit sworn 25 May 2001. He explained that during an intense rain event there is a high risk of failure of the walls surrounding the mound of material. That failure, in his opinion, would take the form of a toppling failure of portions of the wall and the sloughing of waste into the stream on the western side or towards the road on the southern side.

8. Is there a serious question to be tried? I think there is a serious question to be tried, the question being whether or not the respondents are in breach of the planning laws. On the material before me there is an arguable case that the council would be entitled to relief.

9. It seems to me in the circumstances of the actual and potential environmental harm that I have described that the balance of convenience falls on the side of granting an injunction. I note in this respect that the council has given the usual undertaking as to damages, which is different to what was offered when the matter was before Justice Lloyd (see par 16 of his Honour’s judgment), and I take that into account as also favouring the grant of an injunction.

10. This is not a trivial matter. This is a matter where, if the council is correct, there is a breach of the planning laws that has harmful consequences, and it is important I think that the status quo be preserved, that is, that the use of the premises cease until this matter is tried and the full evidence can be taken into account by the Court.

[Counsel addressed on the form of orders.]

11. As to the question of costs, although the council at this stage seeks its costs, I think the appropriate order is to reserve the question of costs.

12. I grant the following interlocutory relief:

(1) An order that the first respondent, second respondent and third respondent forthwith cease using or causing, permitting or allowing the use of the premises known as part lot 2 in deposited plan 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the subject premises”) for the purpose of a tip, waste management facility, garbage depot, recycling yard or like use.

(2) An order that the first respondent, second respondent and third respondent forthwith be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste onto the subject premises.

(3) I reserve the question of costs.

(4) I grant liberty to any of the parties to apply on three days notice

(5) I grant leave to the parties to approach the Registrar to obtain a further date for hearing before me.