Friends of Coila Incorporated t/as Friends of Coila v Eurobodalla Shire Council

[2024] NSWLEC 28

Land and Environment Court

New South Wales

Medium Neutral Citation:

Friends of Coila Incorporated t/as Friends of Coila v Eurobodalla Shire Council [2024] NSWLEC 28

Hearing dates:

26 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [76].

Catchwords:

INTERLOCUTORY APPLICATION: application for interim injunctive relief – no serious question to be tried – excessive delay in bringing application for injunctive relief and in commencing judicial review proceedings – whether proceedings brought in the public interest – whether the applicant should pay the respondents’ costs of the application.

Legislation Cited:

Civil Procedure Act 2005, s 98

Environment Planning and Assessment Act 1979, ss 1.3, 4.15, 4.55, 5.5, 6.13, 6.15, Pt 4, Div 6.4

Government Information (Public Access) Act 2009

Land and Environment Court Rules 2007, r 4.2

Uniform Civil Procedure Rules 2005, rr 42.1, 42.7, 59.9, 59.10

Cases Cited:

ABC v O’Neill [2006] HCA 46; (2006) 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 818

Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280

CastlemaineTooheysLtd v South Australia [1986] HCA 58; 161 CLR 148

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142

Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Mundi v Hesse [2018] NSWSC 1548

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778

Palm Beach Protection Incorporated v Northern Beaches Council [2020] NSWLEC 156

Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42

South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7

South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64

Tegra(NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1

Category:

Principal judgment

Parties:

Friends of Coila Incorporated trading as Friends of Coila (Applicant)
Eurobodalla Shire Council (First Respondent)
McCloy Tuross Heads Pty Ltd (Second Respondent)

Representation:

Counsel:
Vuu, E (Applicant)
Reid, J (First Respondent)
Hutton SC, J with Koikas, C (Second Respondent)

Solicitors:
Ken Cush & Associates (Applicant)
Sparke Helmore Lawyers (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)

File Number(s):

2023/444201

Publication restriction:

Nil

JUDGMENT

Friends of Coila Seek Interim Injunctive Relief to Stop Subdivision Works

1. By amended notice of motion filed on 25 March 2024, the applicant, Friends of Coila (“FoC”), seek interim injunctive relief against the second respondent, McCloy Tuross Heads Pty Ltd (“McCloy”), in relation to the ongoing construction of residential units on a parcel of land recorded as Lot 325/DP 244559 situated in Tuross Heads, NSW (“the land”), pursuant to the following approvals:

1. development consent 2248/83 granted on 3 December 1984 (“the 1984 consent”);

2. a modification approval in respect of the 1984 consent granted on 1 March 2022 (“Mod 22”);

3. an Aboriginal Heritage Impact Permit granted on 7 December 2022 (“AHIP”); and

4. a subdivision works certificate granted on 14 March 2024, issued under Mod 22 permitting McCloy to commence excavation works on the land (“swc”).

2. By amended summons filed with leave in Court on 26 March 2024, FoC challenges the validity of Mod 22 and the swc essentially on the basis that the first respondent, Eurobodalla Shire Council (“the Council”) failed to consider, or alternatively to properly consider, certain mandatory relevant matters set out in the amended summons in granting Mod 22 and the swc. Various grounds of review are pleaded but as a consequence of the discussion with FoC’s counsel, Eric Vuu, during the hearing of the application, it is reasonable to distil them as described.

3. Critically, if not fatally, FoC neither challenge the validity of the 1984 consent nor of the AHIP. The significance of this will become apparent below.

4. In my view, the application must fail. There is neither a serious question to be tried nor does the balance of convenience, especially given the gross and largely unexplained delay by FoC in commencing proceedings and in bringing the application, favour the granting of the interim injunction.

A Residential Subdivision is Approved, Modified and Challenged

5. In order to determine the application for injunctive relief, it is necessary to traverse the chronology of events leading up to it.

6. As stated above, the land is subject to an approval for urban subdivision in 1984, which was physically commenced by the construction of sewer mains. The 1984 consent was for 61 urban lots and one public reserve. Neither party tendered a copy of this instrument.

7. Mod 22 amends the 1984 consent by proposing 71 residential lots, three public reserves and one residual lot. Although the proposal adds 11 residential lots, the footprint of the development remains the same. Mod 22 contained conditions relating to, among other things:

1. the filling of land (condition 1d);

2. trunk stormwater drainage works (condition 1g);

3. Aboriginal heritage (condition 1i); and

4. erosion and sediment control (condition 1j).

8. Prior to Mod 22 being determined, parties who made a submission in respect of the modification application were notified of the modification application by letter from the Council on 7 March 2022. The letter relevantly noted that:

1. the proposed development was substantially the same as that the subject of the 1984 consent;

2. an updated environmental impact statement was required. However, because the original development consent approved the clearing of the land in its entirety, there would be no increase in the impact on biodiversity and a biodiversity development assessment was not required;

3. while the site partially contains an endangered ecological community (“EEC”), swap oak flood plain forest, because the footprint of the proposed development was not different to the original approval, no further assessment is required;

4. because there is a coastal wetland adjacent to the proposed development there was the inclusion of a water sensitive urban design and bio retention treatment for water quality;

5. a number of cultural assessments have been carried out previously to assess Indigenous cultural heritage, nevertheless an AHIP was conditioned as necessary to be obtained before work commenced. This involved a separate application process and further cultural heritage assessments; and

6. no clearing beyond what was originally approved or within public reserves would be permitted.

9. The AHIP issued consequent upon Mod 22 contained conditions relating to, among other things:

1. the appointment of a project manager to oversee the actions the subject of the AHIP; and

2. that certain objects must not be harmed, including all human remains.

10. On 9 February 2023 the Council wrote to Robyn Flynn. Flynn is, according to the affidavit of Samuel Tierney (affirmed 22 March 2024) the solicitor for FoC and the Public Officer of FoC.

11. The letter responded to correspondence sent by Flynn to the Council on 15 and 21 December 2022. The letter also observed that the Council had written to Flynn on 3 and 7 March 2022, regarding similar issues and “in response to your submissions during the development application [Mod 22] process.” The letter proceeded to address matters concerning the need for further environmental assessment, the impact of the development upon EECs, the Aboriginal cultural heritage of the land, including noting that the Council must consider the impacts of the proposed development on cultural heritage, and moreover, that there had been several heritage studies already undertaken in this respect.

12. A meeting between officers of the Council and FoC occurred on 22 February 2023 (which lasted two hours), where some of the issues raised and addressed in the correspondence referred to above were discussed and the opposition of FoC to the proposed development was made plain.

13. The Treasurer and Membership Officer of FoC, Michele Belford, made a request for information to the Council under the Government Information (Public Access) Act 2009 on 24 January 2023. The Council’s response to the request was to indicate that the following records were found, namely:

1. the original development application (“the DA”);

2. the 1984 consent; and

3. reports provided as part of the assessment of the DA, including a flora and fauna study and Aboriginal cultural heritage assessment (see below at [33] for a more detailed description of the report).

14. Pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (“UCPR”), the Council published its Statement of Reasons for approving Mod 22 on 27 February 2024.

15. After setting out the public notification chronology of the modification application (the original application was notified between 22 May and 10 June 2020, the amended application was notified between 23 June and 9 July 2021, and the final application was notified between 21 December 2021 and 24 January 2022), the reasons for the decision were stated as follows:

Reasons for decision

12   The Council is the relevant consent authority.

13   The Consent had not lapsed (p 1 and Appendix B Assessment Report).

14   The Assessment Report confirms MDA0124/20 was assessed by Council under section 4.55(1A) of the EPA Act.

15   The Council was satisfied that the proposed modification was of minimal environmental impact for the following reasons (pp 5 - 6 Assessment Report):

(a)   The Consent authorised the clearing of the Land. The proposed modification would not result in any additional impact on biodiversity values or waterways (pp 2 and 5 Assessment Report).

(b)   The amended proposal included a water sensitive stormwater design to ensure that the development has a lessened impact on the runoff water quality and scouring of Coila Lake from that which was originally approved (p 6 Assessment Report).

(c)   The amended proposal minimises the impact the proposal and its infrastructure will have on the natural environment (p 6 Assessment Report).

16   The Council was satisfied that the development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted for the following reasons (p 3 Assessment Report):

(a)   The proposed modification would not change the footprint of the proposed subdivision - changes were proposed to the lot and road layout resulting in an increase from 61 to 72 lots.

(b)   The proposed modification did not change the character of the original development.

(c)   The proposed modification would not have a greater environmental impact but would instead improve environmental outcomes.

17   The Council notified the application in accordance with Council's Advertisement and Notification Code (p3 Assessment Report).

18   The Council considered all submissions made concerning the proposed modification in accordance with Council's Advertisement and Notification Code (pp 4; and 7 - 10 Assessment Report).

19   The Council took into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application (p 7 Assessment Report).

20   The Council took into consideration the reasons identified in the Notice of Determination dated 3 December 1984. The Council did not otherwise give reasons for the grant of the Consent.

16. Attached to the Statement of Reasons was the Assessment Report for Mod 22. Under the heading “Native Vegetation” the Report said:

Native Vegetation

The existing approval is overlaid with the approved subdivision layout.

A biodiversity development assessment report is not required to be submitted if Council is satisfied that the modification will not increase the impact on biodiversity values.

A review of Council's file revealed that the assessment report and development consent whilst not expressly stating clearing is approved, in Council opinion imply that clearing has been considered for removal. The assessment report uses the term under the heading "Impact on Environment and Action proposed/required" total change - previously considered. The consent goes on to require physical works including services road construction and filling of the land implying in Council's opinion that clearing is approved.

It is Council's position that DA 2248/83 has approved the clearing of the land in its entirety. As a result, Council is of the opinion the development will not increase the impact on biodiversity values and as such Section 7.17(2)(C) of the Biodiversity Conservation Act 2016 is considered to be met. An advisory note will be placed on the consent advising the applicant of their obligations under the Environment Protection and Biodiversity Conservation Act 1999. Council also sought legal advice to clarify the position this can be seen in appendix D.

17. In relation to “Aboriginal Heritage”, the Assessment Report opined as follows:

Aboriginal Heritage

There are many cultural heritage sites of significance in the Tuross area. The original archaeologist was likely to have been Henry Warner who did some site assessments in 1966. Further studies were done by Navin Officer Heritage Consultant in 2004 and Grinbergs/ Heritage Solutions in 2007-2008.

No new archaeological assessment was required for the current modification of the 1983 approval. A condition will be imposed that identifies the previous cultural heritage assessments and that an Aboriginal Heritage Impact Permit (AHIP) is required prior to works commencing.

A further application was submitted to Council in 2012 for a similar subdivision and was accompanied by a Cultural Heritage Assessment. This was undertaken by Onsite Cultural Heritage Management and a detailed assessment was provided to Council and the NSW Office of Environment and Heritage (now Heritage NSW). After further assessment by the applicant, General Terms of Approval (GTA) were issued by NSW OEH in March 2018. A requirement of the GTA's is that an AHIP is obtained.

The original consent did not addressed aboriginal heritage, with the above knowledge a condition is proposed to be placed on the consent prior to any works being undertaken an AHIP be obtained. Council also confirmed the imposition of this condition with the legal advice in appendix D.

18. In the “Considerations” section, the Assessment Report noted that 99 submissions had been received, with only three in support. It further stated that “the proposed modification does not result in any additional impact to Biodiversity Values or waterways” and that the proposed development satisfied s 4.15 of the Environment Planning and Assessment Act 1979 (“EPAA”). It noted that a cultural heritage assessment would be required as part of the AHIP process notwithstanding that “a number of assessments has taken place in the past and the significance of the area is known.”

19. The swc was issued on 14 March 2024. Conditions 3, 4 and 5 provided that:

3.   A minimum of two (2) days prior to the commencement of sewer main and/or water main construction works, the contractor is to contact Council's Water and Sewer Operations Coordinator to arrange for inspection:

Adrian Hofsteede (Shire South)   0427 246 021

4.   It is understood that earthworks (cut) in Stage 2 and 3 areas shall form part of Stage 1works. All disturbed areas shall be progressively re-established (topsoiled and grassed) to the satisfaction of Council Development Engineers. Disturbed areas are not to be left un-stabilised for extended periods. Sediment and erosion control measures shall be implemented progressively around all disturbed areas until they are fully established.

5.   If, during the course of carrying out any earthworks on site, acid sulphate materials V are identified, no further earthworks shall take place until the consent holder has lodged an Acid Sulfate Management Plan prepared by a suitably qualified person in accordance with the NSW Acid Sulfate Soils Manual (1998) refer Earthworks can recommence once the plan has been submitted and approved by Council and all necessary remedial works have been undertaken.

Legislative Framework

20. Rule 59.10 of the UCPR deals with the time within which judicial review proceedings must be commenced:

59.10   Time for commencing proceedings

(1)   Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)   The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

(4)   This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5)   This rule does not apply to any proceedings in which the setting aside of a decision is not required.

21. As FoC conceded, it is out of time to challenge the validity of Mod 22 and an extension of time to commence proceedings is required in this regard. The challenge to the swc is, however, within time.

22. Section 4.15(1) of the EPAA states that:

4.15   Evaluation

(1)   Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)   the provisions of—

(i)    any environmental planning instrument, and

(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)    the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)     (Repealed)

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

…

(6)   Definitions In this section—

(a)   reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)   non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

23. Section 5.5(1), which is located in Pt 5 of that Act, provides:

5.5   Duty to consider environmental impact

(1)   For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

24. In s 5.1(1) “activity” is relevantly defined as (emphasis added):

5.1   Definitions

(1)   In this Division—

activity means—

(a)   the use of land, and

(b)   the subdivision of land, and

(c)   the erection of a building, and

(d)   the carrying out of a work, and

(e)   the demolition of a building or work, and

(f)   any other act, matter or thing referred to in section 3.14 that is prescribed by the regulations for the purposes of this definition,

but does not include—

(g)   any act, matter or thing for which development consent under Part 4 is required or has been obtained,…

25. Rule 4.2 of the Land and Environment Court Rules 2007 (“LEC Rules”) provides that:

4.2   Proceedings brought in the public interest

(1)   The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

(2)   The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent’s costs if it is satisfied that the proceedings have been brought in the public interest.

(3)   In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to—

(a)   the injunction or order sought by the applicant, or

(b)   an undertaking offered by the respondent in response to the application,

if it is satisfied that the proceedings have been brought in the public interest.

Legal Principles Applying to the Grant of an Interim Injunction

26. The legal principles to be applied in determining whether or not to grant interim injunctive relief, although well traversed, bear repetition in the present case.

27. An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction (Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 at 153-4, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6] and South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 at [32]).

28. Although normally the Court does not give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 818at 622), in some cases the strength of the applicant’s case, above the threshold of a serious question, may be relevant to the risk of doing an injustice (Castlemaine at 154 and Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533at 536). Put another way, the applicant must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief were granted. That is, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending trial (ABC v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] and [65]).

29. In Tegra (at [41]), Preston J noted that, “the court may consider the relative strength of each party’s case: Hubbard v Vosper [1972] 2 QB 84 at 96. Courts in Australia have taken the view that the relative strength of each party’s case should be considered along with all the other factors in evaluating the balance of convenience”.

30. Even if an applicant demonstrates a prima facie case, the strength of the case may be relevant to the balance of convenience (Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42 at [62]).

31. The balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice (Kolback at 536). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent, or a third party, would be likely to suffer if the injunction were granted (Beecham at [18]–[19]).

32. In South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 Pritchard J, referring to Tegra, summarised the factors relevant to the balance of convenience (at [162]), which I respectively adopt:

162   In Tegra (NSW) Pty Ltd v Gundagai Shire Council (Tegra), Preston CJ of LEC identified the following factors as relevant to the balance of convenience:

(1)   whether irreparable injury will be caused (at [18]);

(2)   whether damages are an adequate remedy (at [26]);

(3)   whether undertaking as to damages are offered (at [29] to [31]);

(4)   where the status quo lies (at [35]);

(5)   the nature of interlocutory relief sought (at [37] to [38]);

(6)   the relative strength of each party's case (at [41]);

(7)   equitable considerations (at [43]);

(8)   prejudice to third parties (at [51]);

(9)   the public interest (at [54] to [56]); and

(10)   the time period before a final hearing (at [58]).

Evidence of the Parties

33. In addition to the documents referred to above, the parties relied on the following evidence. In respect of FoC:

1. an affidavit of Nicole Parsons, an elder of the Walbunja Wawarrawarri people, affirmed on 22 March 2024. She deposed to the physical and spiritual harm to country caused by the development the subject of the 1984 consent, Mod 22 and the swc. Email communication exhibited to her affidavit dated 24 January 2023 to McCloy, requested that the development cease to avoid damage to the land;

2. an affidavit of Sam Tierney, the solicitor for FoC, affirmed 22 March 2024. In that affidavit, Tierney stated that the mission of FoC, which was incorporated on 18 October 2022, is “to advocate on behalf of the natural environment of Coila Lake, its catchment and surrounds”. All of its Committee members are volunteers, are not legally trained, and do not own any real property bordering the land. Moreover, he has learned from various members of FoC that the land has important cultural significance to the First Nations people, namely, the Walbunja and Brinja-Yuin, who use it to conduct their business. Finally, he deposed that it was not until 15 March 2024, that residents whose properties adjoined the land were notified that works the subject of the swc would commence on 18 March 2023;

3. an Aboriginal Cultural Heritage Assessment & Aboriginal Heritage Impact Permit application in respect of the subdivision prepared by OnSite in May 2015 (“OnSite Report”). The Report noted a moderate potential for burials to occur within the land; that in consultation with Registered Aboriginal Parties a number of strategies to mitigate loss of Aboriginal heritage values were endorsed, including the salvage of the many artefacts located on and in the land; and that the subdivision would have a “substantial impact” on the identified values of the land; and

4. a Flora and Fauna Study Proposed Subdivision report prepared by PMA on 8 November 2002 (“the PMA Report”), that concluded that “the proposed subdivision upon the study area will be able to commence without having a ‘significant effect’ on any threatened species, populations or ecological communities or their habitats.”

34. McCloy relied upon:

1. an affidavit of Danielle Le Breton, solicitor for McCloy, sworn on 11 December 2023, annexing a schedule of works to take place on the land, including the works programmed for the weeks commencing 4, 11 and 18 December 2023, and the estimated cost of those works, including that “approximately $400K has been spent to date this year undertaking cultural heritage work that is required as part of our DA.” A list of this work was annexed to her affidavit, together with a statement that McCloy has spent over $1.1million as at 10 December 2023 in preparation to undertake the works required to deliver the development; and

2. three affidavits of Louise McAndrew, a solicitor employed by the solicitor on the record for McCloy, affirmed on 15, 20 and 26 March 2024. McAndrew deposed to the history of the proceedings, including an abandoned attempt at seeking interim interlocutory relief by FoC on 11 December 2023 before Duggan J because it was not ready to proceed. Importantly, she also gave evidence that should works cease, the standdown costs would be approximately $19,800 per day, in addition to demobilisation costs of $19,000 and remobilisation costs of $19,000.

Is There a Serious Question to be Tried?

35. FoC in its amended summons and written and oral submissions identified the serious question to be tried as whether the Council had failed to take into account the following mandatory relevant considerations in determining to grant Mod 22 and issue the swc (“the mandatory relevant considerations”) (ground one):

1. “the environment, being the native flora and fauna on or surrounding the land”;

2. the cultural significance of the land to First Nations people;

3. the matters referred to in s 4.15(1) of the EPAA;

4. “intergenerational and intragenerational equity, and the conservation of biological diversity and ecological integrity as being relevant to the objects embodied in the EPAA”;

5. the PMA Report, the OnSite Report, the letter from the Council dated 7 March 2022, and the 99 submissions made to the Council in respect of the proposed development; and

6. the public interest in relation to preserving Indigenous cultural heritage.

36. FoC submitted that:

1. the First Nations people have expressed opposition to the development on the basis that it would cause harm to the environment, which was a fact known to the Council, as the Parsons’s evidence demonstrates;

2. the only credible and reliable evidence about the impact of the development on the Walbunja People can come from an Indigenous elder, such as Parsons; and

3. an inference is available that the Council failed to take into account the concerns of relevant Indigenous peoples, such as Parsons, because no conditions were attached to Mod 22 or swc in order to avoid or mitigate the impact of the proposed development on the Walbunja People.

37. According to FoC the Council has not identified with any real precision what material it has relied upon in making either of the impugned decisions, and to the extent that this material is identified, it remains opaque as to why certain evidence and submissions were preferred over other competing evidence and submissions (such as the submissions opposing the development).

38. In addition, FoC argued that “the precautionary principle may be enlivened should this matter proceed to hearing given that there is a threat of serious or irreversible environmental damage; and there is a degree of scientific uncertainty with respect to that damage” to the affected Indigenous community.

39. In the alternative, FoC submitted that there was a serious question to be tried as to whether the Council paid mere lip service to the mandatory relevant considerations identified by FoC and in doing so whether it constructively failed to exercise its jurisdiction in determining to grant Mod 22 and issue the swc (ground two).

40. Finally, FoC contended that whether the decision to grant Mod 22 and issue the swc was unreasonable, due principally to its failure to give sufficient weight to the mandatory relevant considerations, was a serious question to be tried, especially having regard to s 4.55 of the EPAA (dealing with the modification of consents) (ground three).

There is No Serious Question to be Tried

41. In my opinion, there is no serious question to be tried raised by the amended summons. First, as to Mod 22, as McCloy submits, the challenge to the determination is out of time by well over a year (see r 59.10(1) of the UCPR). As the factual chronology above reveals, FoC was aware of the modification application and the decision to grant Mod 22 as early as 3 March 2022, but there is no explanation for the delay in commencing proceedings by FoC in an appropriate form (the affidavits relied upon by it were silent in this regard).

42. Although not requiring determination in this application, the fact that the proceedings have been filed out of time in respect of Mod 22 is a factor that the Court is entitled to take into account in weighing the strength of FoC’s case. It is unlikely, in my view, that when regard is had to the considerable pecuniary prejudice to McCloy were time to be extended, the inherent weakness of FoC’s case as presently pleaded in the amended summons and the unexplained delay, an extension of time pursuant to r 59.10(2) of the UCPR is unlikely.

43. Although the limitation issue does not apply to the swc, for reasons discussed below, this ultimately does not assist FoC.

44. Second, as stated above, the gravamen of FoC’s challenge is that the mandatory relevant considerations were not considered, or not properly considered must be rejected. On the face of the material before the Court in this application, these matters were specifically considered by the Council in issuing Mod 22. The Statement of Reasons and the accompanying Assessment Report expressly refer to:

1. the impact of the proposed development on native vegetation and Aboriginal heritage, noting in particular, the cultural significance of the area and that a new archaeological assessment was required as part of the modification application approval process, including the need to obtain an AHIP. The AHIP contains protections against the desecration of burial sites and certain artefacts. While respecting the evidence of Parsons, it cannot be said that the Council did not have regard to the cultural significance of the land to First Nations people. It plainly did;

2. the 99 submissions received, of which there were 84 objections. The document also noted that two petitions were received which, (it may be inferred, were against the proposed development). It was not necessary for the Council in its Statement of Reasons or Assessment Report to set out an analysis of each submission, as FoC seemed to suggest;

3. express reference was made to s 4.15 of the EPAA in the Statement of Reasons and the Assessment Report. The factors contained in s 4.15 of the EPAA were considered at length, especially when the Assessment Report is read as a whole;

4. the environmental impact of the development was discussed in the Statement of Reasons and the Assessment Report and the conclusion was reached that the proposed modification would not result in any additional impact to biodiversity values or waterways to that already approved by the 1984 consent. In this context, it must be remembered that no challenge is made to the 1984 consent;

5. while there is no express reference to intergenerational or intragenerational equity (to the extent that this is part of the object of facilitating ecological sustainable development referred to in s 1.3 of the EPAA) in the Statement of Reasons or the Assessment Report, assuming for present purposes that it is a discrete mandatory relevant consideration, it may be inferred, in the absence of any evidence to the contrary, that this was considered by the Council in its assessment of the impact of the proposed modification on the environment and the Indigenous cultural heritage of the land;

6. the Council took into account the reasons identified in the Notice of Determination of the 1984 consent. Although this instrument was not before the Court, the PMA Report and the OnSite Report were before the Council when it determined the 1984 consent and regard to the 1984 consent was had by the Council in granting Mod 22;

7. the letter dated 7 March 2022 was the Council’s letter. It is difficult to understand how it therefore did not consider the matters referred to therein. The content of this letter again demonstrates that the mandatory relevant matters about which FoC complain were taken into account by the Council in determining to grant approval to the modification application; and

8. the public interest as articulated by FoC was extensively considered and discussed (see the reasoning above).

45. Third, even if FoC were successful in setting aside Mod 22, the development can nevertheless proceed pursuant to the 1984 consent and the AHIP. Any relief granted would thereby be largely inutile because clearing, excavation and damage to Indigenous artefacts are already permitted.

46. Fourth, as for the unreasonableness ground, leaving aside the oblique reference to s 4.55 of the EPAA in the amended summons, the relevance of which not explained by Vuu, it was properly conceded during oral argument that if FoC were to fail on grounds one and two, it would not be successful on ground three.

47. Fifth, in relation to the swc, the basis of the independent challenge to this instrument appeared to be that an assessment under Pt 5 (s 5.5) of the EPAA was required to be carried out before the swc could be granted. But the purpose of the Pt 5 assessment regime is to ensure that public authorities consider environmental issues before they undertake or approve activities that do not require development consent under Pt 4. Activities for which consent under Pt 4 of the EPAA is required, or has been obtained, are specifically excluded (see ss 5(1)(g) and Div 6.4 of the EPAA). The swc is predicated on a development consent granted under Pt 4 of the EPAA (ss 6.13 and 6.15 of the EPAA), and therefore, the independent challenge is misconceived. In this context, FoC’s reliance, albeit by analogy, on the authority of Palm Beach Protection Incorporated v Northern Beaches Council [2020] NSWLEC 156 (at [254]-[261]) does not assist it insofar as that case can be distinguished on the basis that s 5.5 of the EPAA does not presently apply.

48. Sixth, to the extent that FoC sought in oral argument to draw a distinction between the works permitted under Mod 22 (described as “vegetation clearing”) and the swc (characterised as “excavation”) as a basis for circumventing the fact that the challenge to Mod 22 was out of time and if not set aside, would allow damage to Indigenous cultural heritage and to the environment in any event, it is difficult to understand how this assists FoC. Under Mod 22 earthworks, including excavation (for example, the filling of land, trunk stormwater drainage works, and erosion and sediment control) are permitted. These works are likely to, even in the absence of an swc, entail some degree of “excavation”.

49. Seventh, even if the above conclusion that there is no serious question to be tried in relation to the challenge to either Mod 22 or the swc is erroneous, at the very least, the challenge cannot be characterised as anything other than weak.

Where Does the Balance of Convenience Lie?

50. FoC submitted that the balance of convenience favours the grant of interim relief for the following reasons:

1. if FoC succeeds in challenging the validity of Mod 2022 and the swc, without injunctive relief the judgment of the Court is likely to be rendered ineffectual;

2. there is no appreciable prejudice that would be suffered by McCloy if the restraint is imposed. By contrast, there is a real likelihood that if the works are allowed to continue, that First Nations people will lose their spiritual connection to the land, in addition to the potential for destruction of culturally significant items;

3. FoC’s interests are consonant with the public interest, whereas McCloy’s interest are private in nature. The private interests of McCloy must yield to the public interest of preserving Indigenous cultural heritage where there is evidence of the irreparable harm caused to that heritage by the proposed development;

4. because the motion has been brought in the public interest, there is no need to proffer an undertaking as to damages by FoC; and

5. there was no delay in bringing the application for injunctive relief because the Statement of Reasons was only provided on 27 February 2024 and the swc was only issued on 14 March 2024.

The Balance of Convenience Favours Refusing Interim Relief

51. In my opinion, the balance of convenience clearly favours McCloy and the interim relief sought by FoC must be refused. This is because, first, FoC has engaged in considerable delay both in challenging Mod 22 and in seeking an interim injunction, notwithstanding that it was aware from at least December 2023 that works were being carried out on the land. The evidence establishes the following:

1. application to modify the 1984 consent was granted on 1 March 2022;

2. FoC was aware of Mod 22 at the time that it was made and was engaged in discussion with the Council concerning its merits;

3. on 7 December 2023 FoC commenced these proceedings and brought an application for urgent interlocutory relief seeking to restrain McCloy from carrying out work on the land;

4. on 11 December 2023, in response to the application for urgent interlocutory relief, McCloy filed and served the Le Breton affidavit, which informed FoC in manifestly clear terms that preliminary works had commenced on 27 November 2023; that tree removal (with cultural heritage supervision) would commence in the week commencing 11 December 2023; and that construction work would begin in January 2024 when the swc was expected to be issued;

5. despite being aware that works had commenced, FoC did not press its application for urgent interlocutory relief when it was listed for hearing before Duggan J on 11 December 2023 because, amongst other things, it was not ready (T4:01-12);

6. the only identifiable basis of challenge in the original summons was that the 1984 consent had lapsed; that basis was abandoned in correspondence over January 2024 by FoC;

7. on 7 February 2024 McCloy invited FoC to withdraw the interlocutory application (which it had not sought to reagitate since 11 December 2023) and also queried why the proceedings should not be dismissed given the absence of any grounds of review in the summons;

8. FoC did not respond to the letter of 7 February 2024, nor did it seek leave to amend its summons to plead grounds of review despite its counsel admitting before the Court at a directions hearing on 16 February 2024, that it needed to do so; and

9. on 14 March 2024 FoC gave notice that it would be seeking to amend its summons by notice of motion returnable on 3 May 2024. No notice was given to McCloy or the Council that it would continue to press the interlocutory application.

52. This chronology demonstrates that the delay is egregious. FoC stood by from 11 December 2023 until 22 March 2024, making no real effort to address the identified deficiency in its summons or press its urgent application for interlocutory relief, despite it being aware that work on site had commenced in December 2023, and that construction work was expected to commence in January 2024.

53. A party, even one acting in the public interest, is unlikely to be granted an interlocutory injunction where they have engaged in delay of this magnitude. As Griffith AJA in South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 recently opined (at [33]):

33   … there are, however, sound reasons why interlocutory injunctive relief should not be granted. The primary reason is that I consider that the applicant’s unexplained delay in commencing the proceedings in the LEC is a sufficient basis for refusing such relief. As the Full Court of the Federal Court observed in Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at 638:

The grant of injunctive relief, interim or final, is, of course, discretionary. Delay by an applicant in instituting or in prosecuting a claim for an injunction may be a ground for refusing relief, even at a final hearing. Where an interim injunction is sought on the basis that the applicant need show only a “serious” question of fact or of law, delay in seeking that relief is an important discretionary consideration…

54. FoC were not entitled to wait until the Statement of Reasons was issued to commence proceedings. The Statement of Reasons was provided as late as 27 February 2024, because that is when it was requested by FoC. Similarly, any delay caused by the production of documents that FoC says that it was obliged to obtain from the respondents in order to decide whether or not to commence proceedings is because the material could, and should, have been sought earlier.

55. FoC have not explained in affidavit form the reason for the delay. Its failure to do so, together with the excessive delay in commencing proceedings and in seeking injunctive relief, is, in my view, sufficient in an of itself to refuse to grant an injunction (South East Forest Rescue Incorporated at [59]).

56. Second, as the McAndrew’s evidence establishes, substantial financial prejudice will be suffered by McCloy if the injunction is granted. This evidence was not challenged by FoC. Specifically:

1. the cost of standing down equipment and workers is nearly $20,000 per day;

2. the demobilisation and remobilisation costs are also significant; and

3. any significant stoppage will impact on the construction programme, with unknown consequences.

57. Furthermore, as indicated to FoC as early as 11 December 2023, significant works have commenced on the land. In particular:

1. the stripping of topsoil is currently underway under the supervision of a heritage consultant and members of the local Indigenous groups in accordance with a Cultural Heritage Management Plan; and

2. substantive earthworks are due to commence on 4 April 2024.

58. To reiterate, a party who seeks equitable relief must act promptly, particularly when they are aware that the other party is taking steps that will result in it being prejudiced if relief is sought following delay.

59. Third, the risk of irreparable harm is minimised given that:

1. development can still occur under the 1984 consent;

2. the AHIP (not challenged) permits damage to Aboriginal artefacts in any event. It is, however, conditioned to mitigate and avoid damage to Indigenous cultural heritage; and

3. McCloy will consent to an expedited final hearing if sought by FoC.

60. Fourth, there is no principle that private interests must give way to the public interest in determining whether to grant interim relief. No authority was cited by FoC in support of this broad proposition.

61. Fifth, although not necessarily fatal to FoC, on the evidence before me (as contained in the Tierney affidavit), I am not satisfied that the proceedings have been brought in the public interest as claimed by FoC, thereby facilitating the need to dispense with the usual undertaking as to damages. This is because:

1. merely because the members of FoC are voluntary, are not legally trained, and that its mission statement states that its aim is to advocate on behalf of the natural environment of Coila Lake, does not, without “something more”, render the proceedings as having been brought in public interest for the Court to exercise its discretion under r 4.2(3) of the LEC Rules (Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 at [13-[17] and [60]-[61] and Seek Justice at [75]). FoC have not identified anything “more”; and

2. absent significant irreversible environmental harm, an injunction is not normally granted without an undertaking as to damages (Seek Justice at [76]). Again, FoC has not demonstrated to any degree that such harm will occur. The evidence of Parsons is not, in my view, sufficient. In any event, the harm complained of can still occur pursuant to the 1984 consent and the AHIP.

62. Sixth, the apparent weakness of the grounds of review, and the serious questions to be tried that they give rise to, militate against the grant of an injunction.

63. For these reasons, the application must be refused.

FoC Should Pay the Respondents’ Costs of the Application

64. In light of the failure of FoC to obtain the injunctive relief in its application, McCloy and the Council sought an order that FoC pay their costs of the application (given the very limited role that the Council played, these are likely to be minimal). FoC resisted this and submitted instead that the appropriate order should be that each party should bear their own costs because this was public interest litigation, or alternatively, that the costs should be reserved.

65. As I have concluded above, I cannot find on the evidence presently before the Court and the issues presently raised by the amended summons, that the proceedings have been brought in the public interest, and therefore, r 4.2(1) of the LEC Rules is not engaged.

66. The Court’s power to award costs in civil matters is conferred by s 98 of the Civil Procedure Act 2005 (“CPA”), which relevantly provides that:

98   Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)    the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2)    Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3)    An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

67. Section 98(3) and (4) of the CPA make it clear that the Court can order costs notwithstanding that the proceedings have not yet been finally determined.

68. The power to award costs in s 98 of the CPA has been refined by r 42.1 of the UCPR, which states:

42.1   General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

69. Accordingly, if the Court exercises its discretion to award costs then the presumptive rule, which may be displaced by the circumstances of the case, is that costs follow the event. This is consistent with the principle articulated by the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (at 566-567) and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [67]) that costs, being compensatory and not punitive, should be awarded to the successful party. In this instance McCloy is the successful party.

70. Rule 42.7(1) of the UCPR provides the following with respect to interlocutory applications:

42.7   Interlocutory applications and reserved costs

(1)   Unless the court orders otherwise, the costs of any application or other step in any proceedings, including—

(a)   costs that are reserved, and

(b)   costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

71. In Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778, Rees J described r 42.7 of the UCPR as the “’default’ position in respect of the costs of interlocutory applications” (at [37], see also His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142 at [16] and [28]). Were it otherwise, the word “including” when read in the context of the rule would have little, if any, work to do.

72. As Rees J explained in an earlier decision (Mundi v Hesse [2018] NSWSC 1548 at [58]):

58 The sense in r 42.7 is perhaps illustrated by this application for a different costs order. To consider the application, the Court has had to canvass a detailed and complicated procedural history in not one, but two hard fought proceedings and the detailed submissions made in support of and against the costs orders. Rule 42.7 appears to be directed to discouraging parties from expending further resources on such costs disputes and to focus on the substantive proceedings. If I might use an imperfect sporting analogy: if litigation is compared to a sporting match, then r 42.7 indicates that the normal result after an interlocutory application is that the parties should “play on” until the final hearing.

73. Of course, circumstances can arise where there is some aspect of the conduct of the proceedings by one or more parties that, to extend the sporting analogy adopted by her Honour, requires the referee to blow the whistle and award a free kick. It is for this reason that a broad discretion is retained in r 42.7 by the words “unless the court orders otherwise”.

74. Rule 42.7 of the UCPR is therefore the starting point in determining the appropriate cost order in interlocutory applications (or in relation to “other steps in the proceedings”). In Metropolitan Petar, the Court opined that in relation to applications for interlocutory injunctions, the usual costs rule to be applied is that costs be costs in the cause (at [20]-[28]). This is because at this nascent stage of the proceeding a court is not in a position to adjudicate on the ultimate outcome of the proceeding. The default position of costs in the cause may, however, be displaced by the express discretionary power contained in that rule. That power, although unfettered (Metropolitan Petar at [28]), must nevertheless be exercised judicially having regard to established principle (Oshlack at [134]) and, of course, as the Court of Appeal has cautioned, “each case must depend upon its own facts” (Metropolitan Petar at [21]).

75. In the present case, having determined that these proceedings are not public interest proceedings for the purpose of r 4.2(1) of the LEC Rules, the principles above are applicable. Given the conduct of FoC as outlined above in bringing this application, especially having regard to its delay, I am of the opinion that it is appropriate that FoC pay the respondents’ costs of the application.

Orders

76. It follows that the formal orders of the Court are that:

1. with the exception of order 7, the applicant’s amended notice of motion filed on 25 March 2024 is dismissed;

2. the applicant is to pay the respondents’ costs of the application; and

3. the exhibits are to be returned.

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Decision last updated: 02 April 2024