Hawkesbury City Council v Jarvie

[2005] NSWLEC 775

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Jarvie [2005] NSWLEC 775

PARTIES:

APPLICANT:
Hawkesbury City Council

RESPONDENT:
Russell Jarvie

FILE NUMBER(S):

40691 of 2005

CORAM:

Lloyd J

KEY ISSUES:

Interlocutory Relief :- continuation of injunction - drilling of a test bore - no evidence of irreparable harm - undertaking to carry out the drilling in accordance with the licence conditions - injunction discharged

CASES CITED:

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 161

DATES OF HEARING:

05/07/2005

EX TEMPORE JUDGMENT DATE:

07/05/2005

LEGAL REPRESENTATIVES:

APPLICANT:
J M Reilly (solicitor)
SOLICITORS:
Abbott Tout

RESPONDENT:
C D Norton (barrister)
SOLICITORS:
Woolf Associates

JUDGMENT:

- 4 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

5 July 2005

LEC No. 40691 of 2005

HAWKESBURY CITY COUNCIL v JARVIE [2005] NSWLEC 775

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application for the continuation of an injunction granted by the Court on 1 July 2005.

2 The relevant facts may be briefly described. On or about 29 October 2003 the respondent, Mr Russell Jarvie, applied to the applicant, Hawkesbury City Council, for development consent for a commercial bore on his land in the lower Blue Mountains at No. 1575 Bells Line of Road, Kurrajong Heights. The application was apparently refused and an appeal was brought to this Court on 3 November 2004 in Class 1 of the Court’s jurisdiction against the refusal of the development application for a commercial bore. Directions were made for the conduct of those proceedings, including the appointment of a court expert, Mr C M Jewell, who in a report provided in April 2005 recommended that the application be refused on the basis that what was sought was a commercial water supply bore to extract fifteen megalitres a year. Mr Jewell recommended, however, that if an application for a lower volume of extraction is to be considered, then further information was required including a long-term pumping test to be carried out on an existing bore.

3 What appears to have happened is that the respondent then commenced the drilling of a new test bore intended to go to a depth of some 200 metres. The existing test bore, as I understand, only goes down to a depth of 91.5 metres. It is the drilling of the new test bore which has presently reached a depth of 150 metres that the council now seeks to restrain.

4 The determination I make must be based upon the somewhat incomplete information presently before the Court. It seems that the council requires further information which it sought by letter dated 30 June 2005 from the applicant’s solicitors relating to some technical details of the bore and its impact. The present drilling activities are the subject of a licence granted under Pt 5 of the Water Act 1912 by the Department of Infrastructure Planning and Natural Resources. The licence has been granted subject to a number of conditions which are designed to ensure that the activity will have minimal environmental harm. Apparently it is proposed that once the bore reaches its designed depth of 200 metres then a long term pumping test will be carried out in order to establish the suitability of the proposal for a commercial bore as a raw water source for bottled mineral water.

5 The drilling appears to be carried out, at least on a prima facie basis, in accordance with the licence conditions and in accordance with the recommendations of the respondent’s own expert hydrologist, Mr J Rose of Parsons Brinckerhoff Australia Pty Limited. There is, however, a question as to whether or not what is now being done is permissible with or without development consent.

6 The principles governing the grant or refusal of interlocutory injunctions in cases like this are settled, and are described by Mason J in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 141 at 153:

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (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 an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

7 In the present case the question of whether there is a serious question to be tried, that is, whether or not development consent is required for the test bore, is one which remains open and in view of what I am about to say I do not have to decide that question.

8 The second question to be determined is whether irreparable injury will be suffered if an injunction is not granted. There is some hearsay evidence that the Department of Environment and Conservation has received anecdotal reports that the test bore has impacted on flows in a feeder stream to a creek which flows into the Blue Mountains National Park. This evidence does not satisfy me that irreparable harm will be a consequence if an injunction is not continued.

9 The respondent has offered to give the following undertaking to the Court as a condition of the Court lifting the injunction that was granted on 1 July 2005, namely, that he, his servants, agents, workmen, contractors and the like will carry out the drilling as follows:

(a) in the manner described in the letter from Parsons Brinkerhoff to the respondent dated 14 July 2003, save that casing will be inserted in the borehole to a depth of 90 metres rather than 15 metres;

(b) in accordance with the facsimile from Mr Jarvie to Woolf Associates dated 9 May 2005;

(c) in accordance with Bore Licence Certification No. 10BL165234 issued by the Department of Infrastructure, Planning and Natural Resources on 16 June 2005; and

(d) pumping will take place over a period of maximum 48 hours and all water extracted will be pumped to an existing dam on the subject property.

10 The reference to a facsimile from Mr Jarvie to Woolf Associates dated 9 May 2005 describes in greater detail the activities to be carried out. It concludes by stating that after the test, the bore will be temporarily capped prior to conducting a more extensive pumping test and water quality testing. It seems to me that the terms of the undertaking proffered by Mr Jarvie and the licence conditions themselves suggest that there will not be irreparable injury in the sense described by Mason J in Castlemaine Tooheys.

11 It therefore follows that the injunction granted on 1 July 2005 will not be continued. The formal order of the court is that the court notes the undertaking of the respondent in the terms set out in para 20 of his affidavit of 5 July 2005 and upon that undertaking the injunction granted on 1 July 2005 is discharged. The question of costs is reserved.

COUNSEL ADDRESSED

12 I direct that the court expert, Mr Jewell, answer the questions raised by the applicant’s solicitors in their letter dated 30 May 2005 by 19 July 2005 and the Class 1 proceedings be listed before the Registrar on 26 July 2006.

13 In accordance with the Court’s usual practice, the Class 4 proceedings will await the outcome of the Class 1 proceedings.

I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate