Engadine Area Traffic Action Group v Sutherland Shire Council

[2004] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION:

Engadine Area Traffic Action Group v Sutherland Shire Council and Anor [2004] NSWLEC 127

PARTIES:

APPLICANT
Engadine Area Traffic Action Group

FIRST RESPONDENT
Sutherland Shire Council

SECOND RESPONDENT
Wallis & Moore Pty Limited (ACN 000 971 719)

FILE NUMBER(S):

40087 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Interlocutory Relief :- restraint of repayment of contributions - serious question to be tried.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 93, s 123
Land and Environment Court Rules 1996, Pt 1 r 8
Sutherland Local Environmental Plan 2000

CASES CITED:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Castlemaine Tooheys Limited v State of South Australia [1986] 161 CLR 148

DATES OF HEARING:

09/02/2004

EX TEMPORE
JUDGMENT DATE :

02/09/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Daintry (as agent)

FIRST RESPONDENT
Mr J. Cole (Solicitor)

SOLICITORS
Abbott Tout

SECOND RESPONDENT
Mr G. Newport (Barrister)

SOLICITORS
R. S. Davis & Davis

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40087 of 2004

Cowdroy J

9 February 2004

Engadine Area Traffic Action Group

Applicant
v

Sutherland Shire Council

First Respondent

Wallis & Moore Pty Limited (ACN 000 971 719)

Second Respondent

Judgment

Facts

1 This is an application for an interlocutory injunction seeking the restraining of the repayment of contributions by the Sutherland Shire Council (“the council”) to Wallis and Moore Pty Limited (“Wallis and Moore”).

2 The evidence in support is contained in the affidavit of Brett Daintry sworn 6 February 2004, Thomas White sworn 6 February 2004, and Craig McLaren sworn 4 February 2004. The council has provided evidence in the affidavit of Greg Hand sworn 9 February 2004, and the evidence of the second respondent is contained in the affidavit of Ralph Sydney Davis sworn 9 February 2004.

3 I shall briefly summarise the history of these proceedings. On 15 April 1982, Assessor Hansen delivered judgment in respect of a development appeal by Wallis and Moore relating to a subdivision of land on the Woronora Plateau. One of the issues raised concerned the existence of a track or fire trail, which is also referred to subsequently as ‘the northern access”. Having considered various proposals put to him, Assessor Hansen made the following determination:-

I think however that the orders which I make below should make it sufficiently clear that I am granting consent to the total subdivision application including all Crown land subject to the provision of the road link and fire trail to the south, with construction of the fire trail access to the north [the northern access] , such fire trail to be constructed to public road standards completely to the council’s satisfaction and the payment of a cash contribution towards the construction of a northern road link by the council in such location and subject to such design and conditions as council determines after proper investigation.

One of the conditions to the approval is as follows:-

17. A contribution of $1,500 per residential lot shall be payable to the council towards the cost of road works providing access to the subdivision. This sum shall be adjusted annually in accordance with the movements in the consumer price index.

Pursuant to Condition 17 Wallis and Moore duly paid the required contributions and they have been held by council ever since.

4 The evidence establishes that at present the northern access consists of a bitumen surfaced track which is locked at both ends to prevent public access. The council has recently resolved to abandon provision of the proposed roadway and to abandon the northern access.

5 The evidence also establishes that the council had received an environmental impact statement (“EIS”) and a report entitled Menai Engadine Traffic Study 1999 (“the traffic study”) which confirmed the need for the northern access to be provided, at least to public transport in peak hours and possibly for the public outside of peak use.

6 The site of the northern access is currently zoned 5(e) Special Uses (Proposed Road) pursuant to the Sutherland Local Environmental Plan 2000 (“the LEP”). The council has now resolved by proposed Draft Amendment 17 to the LEP to seek a rezoning of that area to zone 7(b) Environmental Protection, Bushland.

7 These proceedings are brought pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (“the Act”) on the basis that there is the need to restrain a breach of the Act. The alleged breach relied upon is the council’s decision to abandon the proposed northern access and to refund the contributions made pursuant to s 93 of the Act. The applicant claims that the council’s decision is unreasonable in the Wednesbury sense, namely that properly advised, no reasonable council could make that decision: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Findings

8 The ultimate determination of the applicant’s claim would require a detailed consideration of Assessor Hansen’s judgment and other evidence including the EIS, the traffic study, and reports into the January 1994 bushfire. At this stage the Court has but one inquiry. That is, whether on the evidence placed before the Court, the applicant has made out a serious question to be tried. The High Court of Australia in Castlemaine Tooheys Limited v State of South Australia [1986] 161 CLR 148 devised three tests which must be satisfied for a court to grant interlocutory relief as explained (at p 153) by Mason J as he then was, namely:

(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.

At this stage, the Court is not trying the proceedings and does not form a view one way or the other as to whether the action is likely to succeed.

9 The Court is satisfied upon the evidence that the applicant has raised a serious question to be tried. The evidence raises a prima facie case requiring an investigation of the council’s reason for abandoning the northern access. Prima facie, the provision of the northern access was one of the key requirements of Assessor Hansen’s judgment. The evidence tendered both in the EIS and in the traffic study suggests that the northern access was fundamental to traffic requirements for the future of the Woronora area.

10 It could not be said that the applicant would suffer irreparable injury for which damages would not be an adequate remedy unless the injunction is granted. However, the Court is satisfied that if the contributions of $825,810.17 were repaid to Wallis and Moore the existing budget and future budget of the council may be inadequate to carry out completion of the northern access should the Court ultimately determine that the council is bound to provide the northern access. Accordingly, any benefit which might accrue in favour of the applicant if the Court ultimately determined in its favour might be a pyrrhic victory.

11 The third question relates to the balance of convenience. The council does not raise any issue in opposition to the application for the interlocutory injunction. Wallis and Moore raises opposition based upon the fact that if the injunction is granted they will lose the opportunity of dealing with those funds which they expected to be repaid. However, no specific detriment is indicated if the repayment is withheld, and presumably the contributions are invested and currently earning income. Accordingly, should repayment be ordered the contributions are not at risk.

12 Wallis and Moore through their counsel, Mr Newport, and through the evidence of Mr Davis have submitted that the applicant has had ample opportunity in which to bring these proceedings at an earlier date. The history of the litigation in proceedings 40529 of 2002 shows that Wallis and Moore sought the repayment of the contributions from the council. The council entered into consent orders which were made on 4 November 2003 by the Registrar providing for the repayment of the contributions. Paragraph 2 of such orders provided that the contributions were not to be repaid for a period of three months to allow the applicant to institute proceedings. The applicant was invited by Wallis and Moore to be joined in the proceedings but did not do so. The applicant did not file its Application class 4 until 30 January 2004 and then approached the Court for interlocutory relief one day after the time expired as set out in paragraph 2. When the matter came before the Court on 5 February 2004, the Court extended the orders which were made by consent in proceedings 40529 of 2002.

13 Mr Daintry, who appears as agent of the applicant, has said that the delay in taking active proceedings resulted from a lack of funds. The applicant is not legally represented, although it was legally represented when the consent orders were made on 4 November 2003. The explanation for the failure of the applicant to take proceedings more promptly is barely satisfactory, but the Court does not consider that its failure to do so disqualifies it from the relief which it seeks.

14 The Court being satisfied that the balance of convenience lies in the favour of granting the orders sought, will make order 7 as set out in the Application class 4 subject to the alterations listed hereunder.

15 The words “as also mentioned by the Court’s consent orders in Wallis and Moore Pty Limited v Sutherland Shire Council 40529 of 2003” will be deleted.

16 The contributions will be identified as the contributions referred to in the consent orders in proceedings 40529 of 2003.

17 The words commencing with the word “collected” in line 4 of order 7 down to and including the word “Wales” will be deleted as those words are superfluous. Accordingly, the Court will make order 7 which I will pronounce.

18 The Court is aware that an application to make the amendment known as Draft Amendment number 17 to the LEP is currently before the Minister. The Court cannot restrain the Minister from making such amendment since he is not a party to these proceedings, but the Court can direct that the council notify the Minister of these proceedings and request the Minister take no further action pending the determination of these proceedings.

19 The Court will again extend the time for compliance with order number 2 in proceedings 40529 of 2002 pending further order, pursuant to Part 1 rule 8 of the Land and Environment Court Rules 1996. The Court does not regard the making of such an order as constituting an interference with an adjudicated decision of the Court, since such orders were made by consent.

Orders

20 Accordingly, the Court makes the following orders:

1. Order that the first respondent be restrained from disposing of, releasing or otherwise dealing with the contributions referred to in proceedings 40529 of 2002 otherwise than for the purpose of investment pending further order of the Court;

2. Order that the first respondent notify Planning NSW of the existence of these proceedings and request Planning NSW to take no further action concerning the making of Draft Amendment number 17 to the Sutherland Local Environmental Plan 2000 pending further order of the Court;

3. The Court directs that these proceedings be placed in the Registrar’s list tomorrow for the purpose of the allocation of a hearing date;

4. The Court directs that these proceedings be granted expedition;

5. In proceedings 40529 of 2002 the Court directs that order 2 made on 4 November 2003 be further extended pending further order;

6. In proceedings 40087 of 2004, the Court directs that the exhibits be returned;

7. Costs are reserved.