Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council

[2011] NSWLEC 200

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2011] NSWLEC 200

Hearing dates:

10 November 2011

Decision date:

10 November 2011

Jurisdiction:

Class 4

Before:

Biscoe J

Decision:

(1) The application for an interlocutory injunction is refused.

(2) The proceedings are stood over to 18 November 2011 before the list judge.

(3) On or before 14 November 2011 the applicant is to serve the respondent with the summons and any supporting evidence and notify the respondent of the orders made today.

Catchwords:

INTERLOCUTORY INJUNCTION: - to restrain construction and operation of fluoride dosage facility - balance of convenience.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 110, 111, 112

Cases Cited:

Plaintiffs M168/10 v Commonwealth [2011] HCA 25, 279 ALR 1

Category:

Interlocutory applications

Parties:

Eurobodalla Fluoride Issues Inc (Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

REPRESENTATIVES:
Ms M E Vine (in person)
SOLICITORS:
N/A

File Number(s):

41030 of 2011

EX TEMPORE Judgment

1. About half an hour or so ago a summons was filed by Eurobodalla Fluoride Issues Inc against Eurobodalla Shire Council claiming the following relief:

(1) A declaration that the respondent has failed to comply with s 110 of the Environmental Planning and Assessment Act 1979 (EP&A Act) by carrying out an activity by way of construction and proposed operation of a fluoride dosage facility for the Eurobodalla water supply without consideration of the impact on the environment pursuant to s 111 or 112 of the EP&Act.

(2)   Further or in the alternative any decision purportedly approving or determining the construction and operation of a Fluoride dosage facility for the Eurobodalla water supply is invalid, void and of no effect by virtue by the respondent's failure to comply with Part 5 of the EP&A Act.

(3)   An order restraining the respondent, its employees, contractors and servants from undertaking any work involved in the construction and operation of a fluoride dosage facility for the Eurobodalla water supply.

(4)   An order that the respondent remove any facility constructed for the purpose of dosing fluoride into the Eurobodalla water supply.

(5)   Any further order or direction the Court deems appropriate.

(6)   Costs.

1. At the applicant's request, the matter was immediately referred to me as the duty judge to hear the applicant's ex parte application for an interlocutory order in terms of paragraph 3 of the summons.

1. Ms Marilyn Estelle Vine appeared for the applicant and told me that she is its public officer.

1. The only evidence that has been put before me is an affidavit of Ms Vine in which she says:

"I Marilyn Estelle Vine declare that Eurobodalla Shire Council has failed to provide evidence that they are in compliance with ss 110 and 112 of the Environmental Planning and Assessment Act.

Until such evidence of compliance is provided by Eurobodalla Shire Council no fluoride should be added to the Eurobodalla water supply."

1. Ms Vine has indicated to me that she intended to include a reference to s 111 in this affidavit.

1. That is the totality of the evidence.

1. Ms Vine has told me from the bar table that:

(a)   she has written to the council requesting information concerning the council's proposed fluoridation of the water supply but that this information has not been provided;

(b)   she understands that the council will be fluoridating the water supply as of next Monday 14 November 2011; and

(c)   she has asked the council for a copy of an environmental review which it had carried out, council indicated that she could inspect it at the council chambers, and that it is a lengthy document of 400 pages or so.

1. In order to obtain an interlocutory injunction it is necessary for an applicant to establish that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction: Plaintiffs M168/10 v Commonwealth [2011] HCA 25, 279 ALR 1 at [19] per Crennan J.

1. The evidence that has been put before the Court is quite inadequate to establish that an interlocutory injunction should be granted. Even if I were to take into account the information additionally communicated orally to the Court, it would still be inadequate. I therefore refuse the application for an interlocutory injunction.

1. I propose to stand over the proceedings to next week before the list judge and to direct the applicant to serve the summons and any supporting evidence before then. I will also give the applicant liberty to apply in view of its perception that there is urgency in this matter: that would enable it to bring the matter back before the Court on an earlier date if there is a proper basis to do so.

1. The orders of the Court are as follows:

1.   The application for an interlocutory injunction is refused.

2.   The proceedings are stood over to 18 November 2011 before the list judge.

3.   On or before 14 November 2011 the applicant is to serve the respondent with the summons and any supporting evidence and notify the respondent of the orders made today.

4.   Liberty to apply.