Carriage v Stockland (Constructors) Pty Ltd [No 3] - [2003] NSWLEC 86

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Ors [No 3] [2003] NSWLEC 86

PARTIES:
APPLICANT
Allan Carriage
RESPONDENTS
Stockland (Constructors) Pty Ltd and Ors

FILE NUMBER(S): 40863 of 2002

CORAM: Pain J

KEY ISSUES: Injunctions and Declarations :- second application for interlocutory injunction - whether circumstances have changed since first application such as to warrant grant of injunction - discretionary considerations - whether serious question to be tried - irreparable damage - balance of convenience

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80(12)
Environmental Planning and Assessment Regulation 2000 cl 145(2)
National Parks and Wildlife Act 1974 s 90
Threatened Species Conservation Act 1995

CASES CITED: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148

DATES OF HEARING: 19, 21/02/2003

DATE OF JUDGMENT:
02/24/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr T Hale SC
with Mr S Brockwell (barrister)
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Ms A Pearman (barrister)
SOLICITORS
National Parks and Wildlife Services
THIRD RESPONDENT
submitting appearance
FOURTH RESPONDENT
submitting appearance

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40863 of 2002

Pain J

24 February 2003

ALLAN CARRIAGE

Applicant

STOCKLAND (CONSTRUCTORS) PTY LTD

First Respondent

DIRECTOR-GENERAL OF THE NATIONAL PARKS AND WILDLIFESERVICE OF NEW SOUTH WALES

Second Respondent

THE MINISTER FOR THE DEPARTMENT OF LAND AND WATER CONSERVATION

Third Respondent

WOLLONGONG CITY COUNCIL

Fourth Respondent

Judgment

1 The Applicant is seeking an interlocutory order in its Notice of Motion dated 3 February 2002. The urgent interlocutory order sought is an order:

…restraining the First Respondent from carrying out any activity which relies on authorisation granted by consent 1427 granted by the Second Respondent to the First Respondent and in terms set out in paragraph 13 of the Amended Application Class 4 until further order.

2 For reasons that I will give shortly I have decided that I should not grant that application.

3 This order is in virtually identical terms to one of the interlocutory orders sought on a previous occasion by the Applicant and in relation to which I gave judgment on 20 November 2002 (see Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216). In that judgment I declined to grant relief in relation to the order sought. When a further interlocutory order is sought after the first application is unsuccessful the Applicant must show there is a relevant change of circumstance for the Court to consider in revisiting the same question on a subsequent interlocutory application such as this.

4 The Applicant was represented by Mr Oshlack, a non legally qualified agent. I note the Second Respondent was represented by a barrister at the hearing but did not bring forward any evidence and did not make any submissions to the Court at the hearing. The Third and Fourth Respondents have filed submitting appearances only and did not appear at the hearing.

5 The area of land at Sandon Point…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 86
Decision Date: 02/24/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Allan Carriage, the Applicant, sought an interlocutory injunction against Stockland (Constructors) Pty Ltd and others, the Respondents, to prevent them from carrying out activities on a specific land parcel at Sandon Point. The application followed a previous unsuccessful attempt by the Applicant to secure similar relief. The primary legal issues the Court needed to resolve were whether there had been a significant change in circumstances since the first application, whether the Applicant had established a serious question to be tried, and whether the balance of convenience favoured the grant of the injunction.

The Court, after considering the submissions and evidence from both parties, found that although the Applicant had better articulated its case and presented additional evidence, it had not sufficiently demonstrated a change in circumstances that would warrant a reconsideration of the previous decision. The Court noted that the additional evidence, such as affidavits and documents, did not sufficiently support the Applicant's claims regarding the legality of the activities or the irreparable harm to the site. Furthermore, the Court found that the balance of convenience did not favour the Applicant, given that the contested activities were nearly complete, and there was no clear demonstration of irreparable harm. The Court also observed that the public interest argument presented by the Applicant did not meet the required threshold.

In conclusion, the Court denied the Applicant's request for an interlocutory injunction. The Court determined that the Applicant had not met the necessary criteria to warrant the grant of such an order, and thus, the balance of convenience did not support the injunction. The Court ordered that the first prayer in the Applicant's Notice of Motion dated 3 February 2003 be refused.

Orders