Chambers, a v Maclean Shire Council

[2003] NSWLEC 451

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Chambers, A v Maclean Shire Council and Ors. [2003]  NSWLEC 451

PARTIES:
APPLICANT:
Chambers, A

RESPONDENTS:
Maclean Shire Council and Ors.

CASE NUMBER:      40140 of        2001

CATCH WORDS:     Injunctions and Declarations

LEGISLATION CITED:
Rivers and Foreshore Improvement Act, 1948

CORAM:        Bignold J

DATES OF HEARING:          24/09/2003

EX TEMPORE DATE:          24/09/2003

LEGAL REPRESENTATIVES

APPLICANT:
Ms S Winters, Barrister

SOLICITOR
N/A

FIRST RESPONDENT:
N/A
2ND AND 3RD RESPONDENTS:
Mr P Smith

SOLICITORS
FIRST RESPONDENT:
Pickering Priestley
2ND AND THIRD RESPONDENTS:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

24 September 2003

40140 of 2001  ANITA CHAMBERS v MACLEAN SHIRE COUNCIL & ORS

JUDGMENT

HIS HONOUR

1. This is an application for injunctive relief in class 4 proceedings in which the Applicant claimed a declaration that a development consent granted by the Maclean Shire Council in respect of land known as Lot 12 Deposited Plan 1009500, School Road, Palmers Island as a prawn farm and research station, was prohibited development and a declaration that the development consent granted by the Council to Mr and Mrs Smith on 11 July 2001 for the establishment of the prawn farm and research station on the land was void and of no effect.  The application also claimed an order restraining the Smiths from carrying out the development, the subject of the development consent.

2. The proceedings came before Justice Sheahan for the determination of a preliminary question concerning the permissibility of the development, the subject of the grant of development consent.  On 14 January 2002 his Honour published reasons for his decision that the development was a permissible development and the Council was entitled to so determine in granting the development consent.  An appeal against his Honour’s decision was taken to the Court of Appeal.  That appeal was not heard until 4 April 2003 and in a reserved Judgment published on 13 June 2003, the Court of Appeal upheld the appeal, set aside the orders made by Justice Sheahan, declared as at the relevant date of the Council’s determination, the development application, namely 11 July 2001, that development on the aforesaid land for the purpose of a prawn farm and research station was prohibited development and declared the development consent granted by the Council on that date was void and of no effect.

3. So the matter would have ended in this Court but for the fact that on 17 July 2002 the Applicant attained an interlocutory injunction restraining the Smiths from carrying out works on their land to implement the development consent.  Justice Pain made orders on that occasion, having a few days earlier granted an ex parte injunction restraining works being constructed on the land after a telephone hearing.  The orders made by her Honour were of an interlocutory nature and operated:

   until determination of the application for leave to appeal and the appeal if leave is granted in the Court of Appeal proceedings involving the Applicant’s appeal against Justice Sheahan’s decision from this Court.

4. In granting an interlocutory injunction on that basis, Justice Pain expressly excepted from the scope of such an interlocutory injunction, matters referred to in Orders 2 and 3.  In Order 2, her Honour granted in effect, an interlocutory mandatory order requiring the Smiths to lay concrete pipes in the channel that had been dug immediately behind the river bank of the Clarence River and to remediate the river bank in the manner specified in paras A, B and C.  Order 3 is not relevant for present purposes but appeared to allow the Smiths to continue to carry out works by way of vehicular crossing from School Road to the subject property.  Costs were reserved by her Honour.

5. Following the decision of the Court of Appeal, on 13 June 2003, the Applicant has moved the Court for further orders against the second and third Respondents.  By Notice Of Motion filed on 9 July, she claimed a permanent injunction restraining the Smiths from carrying out works on the property in pursuance of the development consent declared by the Court of Appeal to be invalid.  Except for works referred to in par 2 of the Motion, those works require the Smiths to remediate the site in the river bank by carrying out works referred to in paras A and B.  An order for costs was also claimed.

6. In her Affidavit sworn 23 August 2003, the Applicant refers to the Interlocutory Injunction made by Justice Pain on 17 July following an ex parte injunction made on 15 July 2003.  She recites the subsequent history of the case in the Court of Appeal leading up to the decision of the Court of Appeal to uphold the appeal and hold the development prohibited in its decision of 13 June 2003.  Thereafter, the Affidavit refers to action taken by the Applicant in respect of the river bank of the Smith’s property.  Included in the affidavit is a communication made on behalf of the Applicant by her legal representative with the Department of Land and Water Conservation seeking advice as to the best way to remediate the site without causing further damage to the river bank.

7. This led to a response being received under the hand of Gerry Ryan, Coasts and Estuaries, Department of Infrastructure, Planning and Natural Resources.  It refers to the letter seeking the Department’s advice regarding the remediation of the section of river bank where an inlet pipe had been installed as part of the proposed prawn farm development.  Then it goes on to say that he had inspected the site on 18 June and then offers advice as follows:

   The small recess formed in the bank at the pipe inlet is not considered a significant hazard to the overall stability of the river bank.  There are a number of similar deviations from the river bank alignment along the reach of the river without any noticeable adverse impact where the presence of rock armour is maintaining a stability.  For example, the pipe with a flat valve located just upstream of the subject site.  There is however some soil loss from the bank in that area above mean high water level, caused by wave action and possibly by higher level flows eroding the soil from behind existing rock armour.  To prevent further erosion at the inlet site and ensure its long term stability, two options can be considered

   (a)Placement of smaller rock of approximate diameter 100 to 300 millimetres over the larger existing larger rock so as to fill the void, preventing excessive wave action and turbulence between the rocks, thus minimising soil loss from behind and above the armour.  The rocks should be placed carefully over the full height and length of the pipe inlet area from the tow or bottom of the bank at the invert level of the pipe up to the top of the existing level of rock armour at a grade no steeper than the 1 vertical to 1 horizontal 1:1 or forty-five degrees.

(b)If the pipe is not going to be used as a future inlet outlet it could be blocked at its river end using small rock and aggregate, fifty to 100 millimetres in diameter, across the entire opening and then covered with the larger rock to achieve a layer of armour similar to that already existing along the rest of the bank.  This should include a component of the 100 to 300 millimetre rock mentioned above, to fill gaps and provide longer term erosion control.

To completely remove the pipe and reinstate the levy and its original alignment would create an unnecessary amount of disturbance of the river bank and would present a risk of greater damage.

1. As a result of obtaining that advice, the Applicant informed the Smiths of the injunctive orders that she would be seeking today, both of a prohibitory and mandatory nature.  In response to that advice, the Smiths filed on 19 August 2003, a document purporting to be a submitting appearance, submitting to the jurisdiction of the Court except as to costs.  Upon learning of the submitting appearance, the Applicant wrote recently to the Smiths asking whether they would consent to orders being made by the Court in respect of the remediation works.  In response to that part of the submitting appearance which excepts costs, the Applicant informed the Smiths that she intended to ask the Court to make a costs order in respect of the whole of the proceedings for the injunction for the remediation works.

2. As it turned out, Mr Smith appeared on behalf of himself and, I assume, his wife today.  He expressed some reticence about his appearance but in the end, and not withstanding the filing of the submitting appearance, I take it that he has appeared to resist the making of any injunctive orders against him and his wife and in opposing the application to costs.  He has informed the Court and it is not disputed by the Applicant, that he fully complied with the mandatory interlocutory orders made by Justice Pain on 17 July last year and that he has in fact undertaken works on the river bank which essentially satisfy the intent and purport of the first of the two options proffered in Mr Ryan’s letter, from which I have earlier quoted.  He has also informed me, and I think it is not disputed on behalf of the Applicant, that he has in recent times undertaken work at the premises in a manner designed to satisfy the demands of the Applicant.  This has involved spreading piles of soil over the land and placing small rocks upon some of the exposed earth river banks.

3. The dispute that has largely emerged as a result of today’s hearing, concerns the claim by the Applicant that there be placed along the edge of the river bank upon large boulders and the like for bank stabilisation, eliminating the intrusion into that alignment necessarily made when the concrete pipe was placed in the river bank.  In my judgment, the Applicant has not by appropriate evidence, established any need for that work to be undertaken.

4. As I read the letter of advice from the Department of Infrastructure, Planning and Natural Resources, that work is not considered necessary to achieve overall stability of the river bank and I refer in particular to the first paragraph from that letter that I recited earlier in these reasons.  Another matter that Mr Smith has raised, concerns his desire to eventually develop his land by the proposed prawn farm and research station.  In that behalf he has tendered documentary evidence indicating that within a few weeks of the Court of Appeal decision which was adverse to him, he has commenced action to make another development application to the Council to seek fresh approval for that development.  Changes to State Environmental Plan 62 which were made following the decision of Justice Sheahan in this Court but before the decision on appeal by the Court of Appeal, operate in his favour and the development that he proposes is no longer prohibited development by dint of that state policy.  Mr Smith also tendered a letter dated 23 July that he wrote to the Applicant advising of his action taken following the Court of Appeal’s decision to resurrect his proposal for that development on his land.  That letter also canvasses the matters raised in the Applicant’s Motion seeking rectification works.

5. The work undertaken by the Smiths in July 2002 which were intercepted by the Applicant obtaining the ex parte injunction of Justice Pain and then finally the interlocutory injunction that I have referred to on 17 July, was done by Mr Smith in order to preserve the approval that he obtained for such work pursuant to Pt III(a) of the Rivers and Foreshores Improvement Act.  It was done at a time when the Applicant had failed in her claim before Justice Sheahan to establish that the prawn farm and research station development was a prohibited development and at a time when there were no firm indications of the hearing of any appeal by the Court of Appeal.  Prior thereto, no interlocutory relief had been obtained, no doubt because the Applicant apprehended that pending the proceedings, the Smiths would not take action implementing the approval.  In my view there was nothing unreasonable in the Smiths taking the action that they did in July 2002 to preserve the benefit of the Pt III(a) approval under the Rivers and Foreshores Protection Act.  The interlocutory relief, both prohibitory and mandatory granted by Justice Pain on 17 July 2003 was expressed to be only until the determination of the application for leave to appeal against Justice Sheahan’s decision to the Court of Appeal and if leave were granted, the determination of the appeal.  With the Court of Appeal Judgment on the appeal being handed down on 13 July 2003, Justice Pain’s interlocutory orders came to an end.

6. At the present time I accept that Mr Smith will, as a responsible landowner, take further remedial action as suggested in Mr Ryan’s letter if the pipe is not to be used in any future development, so that if Smiths’ intended fresh development application seeking approval for the prawn farm and research station ultimately fails, I am satisfied that Mr Smith will take whatever action is appropriate at the river bank, to maintain river bank stability.  However, I am firmly of the view that no justification has been made out in the case presented by the Applicant for any injunctive relief by way of remediation.

7. In so concluding, I am satisfied from the advice given by Mr Ryan, that no hazard is presented to river bank stability by the existing situation on the Smith’s block.  In the circumstances, the application for injunctive relief of a mandatory nature is refused.  Insofar as the application seeks a prohibitory injunction to restrain the Smiths from acting upon the development consent now declared to be null and void by the Court of Appeal’s decision, I am satisfied that no such injunctive relief is required in the present case.  The Smiths are fully cognisant of the outcome of the Court of Appeal’s decision.  The Court of Appeal’s decision expressed considerable sympathy with the plight of the Smiths.  I refer in particular to the Judgment of Mr Justice Ipp, pars 136 and 137 of his leading Judgment.  In my view, no further relief in the proceedings against the Smiths is warranted and for that reason, the claims for injunctive relief are refused.

8. The application for costs must be determined on the basis of that outcome on the hearing today.  The only possible justification for costs against the Smiths lies in reserve costs reserved by Justice Pain.  In my view for the reason given the action, enjoined by Justice Pain on that occasion that had been taken by the Smiths, was not unreasonable or objectionable conduct.  The Applicant was entitled to claim the interlocutory relief which she succeeded in obtaining.  In all the circumstances, no costs order should be made in respect of those separate interlocutory proceedings, particularly in light of the outcome of the final hearing wherein exercise of my discretion I have refused injunctive relief.

9. For all the foregoing reasons, I order that the claim for injunctive relief and costs contained in the Applicant’s Notice of Motion filed on 9 July 2003 be dismissed and that there be no order as to costs.