Byron Shire Council v Vaughan; Vaughan v Byron Shire Council (No 2)
[2009] NSWLEC 110
•30 June 2009
Land and Environment Court
of New South Wales
CITATION: Byron Shire Council v Vaughan; Vaughan v Byron Shire Council (No 2) [2009] NSWLEC 110 PARTIES: 40344 of 2009
APPLICANT:
Byron Shire CouncilRESPONDENTS
John and Anne Vaughan40342 of 2009
RESPONDENT
APPLICANTS
John and Anne Vaughan
Byron Shire CouncilFILE NUMBER(S): 40344; 40342 of 2009 CORAM: Biscoe J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- Interlocutory injunction – identical interlocutory injunction made in two different proceedings against the respondents in one proceeding who were the applicants in the other proceeding – subsequent consent order varying the injunction in the first proceeding but not the second proceeding – whether injunction should be discharged in the second proceeding. LEGISLATION CITED: Civil Procedure Act 2005, ss 149A - 149E
Civil Procedure Amendment (Transfer of Proceedings) Act 2009CASES CITED: Byron Shire Council v Vaughan; Vaughan v Byron Shire Council [2009] NSWLEC 88 DATES OF HEARING: 30 June 2009
DATE OF JUDGMENT:
30 June 2009LEGAL REPRESENTATIVES: APPLICANT (40344 of 2009):
Ms K Gerathy, solicitor
SOLICITORS
HWL EbsworthRESPONDENTS (40344 of 2009):
Ms A Kempton, solicitor
SOLICITORS
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
30 June 2009
40344 of 2009
BYRON SHIRE COUNCIL v VAUGHAN & ANOR
40342 of 2009
JUDGMENTVAUGHAN & ANOR v BYRON SHIRE COUNCIL
1 HIS HONOUR: In late May 2009 the Byron Bay coastline was subject to severe storms. There was substantial erosion of Belongil Beach including about 10 metres of beachfront property owned by John and Anne Vaughan. The erosion appears to have been caused by waves overlapping a geobag erosion control wall along Belongil Beach constructed by Byron Shire Council in or about 2002.
2 On 27 May 2009 the council commenced an action against the Vaughans in this Court to injunct them from carrying out threatened remedial erosion protection work involving the placement of rock without development consent. The Vaughans promptly responded, on 29 May 2009, by bringing an action against the council in this Court, alleging breach by the council of conditions of a 2001 development consent granted by the council to itself for the construction of the wall; seeking to enforce the development consent by mandatory injunctions that the council construct the wall in accordance with the consent, or alternatively seeking a declaration or order that the applicants are entitled to do so, and claiming damages and other relief for nuisance and negligence. Some of those causes of action may raise questions as to this Court’s jurisdiction to entertain them. However, that might be met by pleading them in an action in the Supreme Court and then seeking an order in the Supreme Court for transfer of that action to this Court pursuant to the recently enacted ss 149A-149E of the Civil Procedure Act 2005: see the Civil Procedure Amendment (Transfer of Proceedings) Act 2009.
3 On the evening of Friday 29 May 2009, after an urgent hearing, Pain J granted the council, on its undertaking as to damages, an interlocutory injunction against the Vaughans restraining them from carrying out any erosion protection work on and adjacent to their property involving the placement of rock or other material: Byron Shire Council v Vaughan; Vaughan v Byron Shire Council [2009] NSWLEC 88. The formal order was made in both proceedings. By consent her Honour directed that there be a final hearing of both proceedings commencing on or after 8 June 2009.
4 Upon the matter being called on for final hearing before me on 9 June 2009, the parties agreed that, despite their best endeavours, the very short time frame had proved to be quite insufficient for either action to be properly prepared for hearing on a final basis, particularly as the issues had greatly expanded since 29 May. I acceded to their application to vacate the final hearing dates. Instead, I proceeded to hear, over several days, a motion by the Vaughans to vary the interlocutory injunction by excluding from its ambit reinstatement of the wall to the condition that it was in before the May event.
5 After the conclusion of the interlocutory hearing, I was requested, and agreed, to defer delivering judgment for a few days because an interlocutory settlement between the parties seemed likely.
6 The interlocutory settlement eventuated and was reflected in consent of orders dated 17 June 2009 in the council action only, which in effect varied the interlocutory injunction in those proceedings by excluding certain remedial works from its ambit.
7 It appears that the parties overlooked that an unqualified, and therefore inconsistent, injunction remained on foot in the Vaughan action.
8 The next day, I drew this to the parties’ attention by email from my Associate, noting that the consent orders had only been made in the council action and suggesting for the parties’ consideration that the injunction in the Vaughan action be vacated.
9 The council consented to that course but the Vaughans did not. The council suggested that the parties make written submissions on the point and that I determine it in chambers. The Vaughans did not oppose that suggestion.
10 On 25 June 2009 I made a direction that the parties deliver written submissions on the point and that I would determine it in chambers.
11 In written submissions, each party went beyond the short point of discharge of the injunction in the Vaughan action. The Vaughans submitted that the two proceedings should be consolidated. The council protested that this went beyond the point the subject of my direction, that it was concerned as to prejudice, and that consolidation should be made the subject of a formal application. For its part, the council submitted that its undertaking as to damages in support of the injunction in the Vaughan action should be discharged with costs reserved. The Vaughans strongly resisted that course and submitted that it would need to be the subject of a contested hearing.
12 Given that I am dealing in chambers with a discrete point as to the discharge of the inconsistent injunction in the Vaughan action, I do not propose to consider either an application for consolidation nor a contested application for discharge of the undertaking as to damages. If the parties wish to press either of those matters, they should do so by notice of motion.
13 The Vaughans submit that the failure of the consent order to include the number of the Vaughan action in the header was an oversight. In the absence of agreement by the council that that was so, I am unable to make such a determination on this application. It is unclear whether the submission goes so far as to say that the parties intended to include that number in the header but failed to do so.
14 The Vaughans submit that the same consent order should be made in the council action. That is impossible without the consent of the council, which is absent, or without proceeding to deliver reasons for judgment on the contested interlocutory application, which is inappropriate because it would be inconsistent with the settlement between the parties reflected in the consent orders in the council action.
15 The Vaughans submit that the discharge of the injunction in their action would ordinarily be attended by a debate as to costs and potentially raises questions of uncertainty. I agree with the costs submission, which can be met by reserving costs. However, I can see no potential uncertainty that would justify leaving the inconsistent injunction on foot in the Vaughan action.
16 Without dissent from the parties and acting urgently on a Friday evening, Pain J took the course, after giving her reasons for judgment, of making identical orders in both actions, on the council’s undertaking as to damages. Since then, things have moved on. With the benefit of time for reflection, there is no reason, in my opinion, to continue to have identical interlocutory injunctions in both actions. The injunction appropriately belongs in the council action where the council sought to injunct the works threatened by the Vaughans, which is the subject of the interlocutory injunction. Having regard to the consent variation of the injunction in the council action only, the inconsistent injunction in the Vaughan action cannot be allowed to continue. In the absence of consent by both parties to an identical variation of the injunction in the Vaughan action, that injunction should be discharged.
17 The orders of the Court in the Vaughan action 40342 of 2009 are as follows:
1. The interlocutory injunction granted on 29 May 2009 is discharged.
2. The costs relating to that interlocutory injunction are reserved.
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