Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 3)

[2010] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION:

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 3) [2010] NSWLEC 221

PARTIES:

APPLICANT
Hill Top Residents Action Group Inc

RESPONDENT
Minister Administering the Sporting Venues Authorities Act 2008

FILE NUMBER(S):

40839 of 2010

CORAM:

Pepper J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- whether alleged breaches of a development approval gave rise to a serious question to be tried - approval not breached - balance of convenience against grant of interim injunctive relief - application refused

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 75W
Interpretation Act 1987 s 24
Land and Environment Court Rules 2007 r 4.2

CASES CITED:

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 2) [2010] NSWLEC 219

DATES OF HEARING:

25 and 26 October 2010

EX TEMPORE JUDGMENT DATE:

26 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Lazarus
SOLICITORS
Pikes Lawyers

RESPONDENT
Mr M Hall
SOLICITORS
Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

26 October 2010

40839 of 2010 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 3)

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: I refer to my two previous decisions in this matter (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210 – the first Hill Top decision - and Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 2) [2010] NSWLEC 219 – the second Hill Top decision). I also refer to the background, evidence and defined terms referred to therein.

2 Hill Top now seeks urgent interim injunctive relief against the Minister from conducting further clearing works on the site until all necessary sediment control features have been installed and from conducting any clearing in respect of the 50 m rifle range, the clubhouse or any ancillary works, on the basis that this clearing may be unapproved.

The History of the Current Application

3 The application came before me at 2.00 pm on 25 October 2010. Until then the Court had understood that pursuant to orders it had made on 21 October 2010 in the second Hill Top decision, that consent short minutes of order were to be presented to the Court governing the expedited preparation and final hearing of the summons. This, however, is not what occurred.

4 Instead, at approximately 11.00 am Hill Top notified the Minister that unless certain undertakings were given by him, further interim injunctive relief would be applied for. Counsel for the Minister informed the Court that this communication was not received until 12.00 pm. No undertakings as sought were offered by the Minister hence the present application.

5 This history is mentioned only because it has a bearing on the rigour with which the Court has permitted evidence to be adduced by the parties, and in particular the Minister.

6 Because oral argument in respect of the application did not conclude until 4.30 pm and because some of the issues raised in the application necessitated further consideration by the Court, including the construction of certain aspects of the approval drawings and documentation, the proceedings were adjourned until 8.00 am today for delivery of an ex tempore judgment. This truncated timeframe and the urgency of the application was driven by the hours of operation of the clearing and construction at the site during weekdays, namely, from 7.00 am to 5.00 pm.

7 When, however, the Court convened this morning, and prior to any delivery of an ex tempore judgment, the Minister tendered additional evidence by way of plans referred to in a modification approval which had been granted on 23 October 2010. This had the instantaneous effect of reversing what would have been the Court’s decision to grant the temporary injunctive relief sought by Hill Top.

Basis of the Interim Injunctive Relief

8 The basis upon which the current relief was sought by Hill Top was two fold:

(a) first, that further clearing had taken place in breach of the approval and the undertaking given to the Court by the Minister on 21 October 2010 in the second Hill Top decision; and

(b) second, that contrary to the terms of the approval, sediment control features had not been installed at the site as required prior to clearing.

Alleged Unapproved Clearing

9 At the commencement of the hearing of the application the Minister handed to the Court an approval in respect of the modification application lodged earlier by him (discussed in the second Hill Top decision at [6(b)]) signed by Mr Sam Haddad, the Director-General of the Department of Planning, dated 23 October 2010.

10 Schedule 2 contained the subject matter of the approved modification. It states as follows:

SCHEDULE 2
Project approval MP 06/0232 determined on 1 March 2010 is modified as follows:
a) Condition A2 is amended to read as follows:
A2 Development in Accordance with Plans and Documentation

The development shall be generally in accordance with the NSW Sport and Recreation Southern Highlands Regional Shooting Complex Environmental Assessment dated February 2008 prepared by GHD and all Appendices, except where varied by the Preferred Project Report NSW Sport and Recreation Southern Highlands Regional Shooting Complex Submissions Report prepared by GHD dated July 2008, including the revised Statement of Commitments and all Appendices, and as amended by the modification application prepared by Communities NSW – Sport and Recreation dated 19 October 2010 including the following drawings for the 500m rifle range and 200m combined rifle and pistol shooting range:

Drawing Number	Rev	Date	Prepared by
21-17580-C004	1	11 October 2010	GHD
21-17850-C010	1	11 October 2010	GHD
21-17850-C003	0	11 October 2010	GHD


b) Condition C1 is amended to read as follows:
C1 Vegetation clearance
The vegetation clearing for the shooting ranges, internal roads and facilities shall be undertaken in a staged manner. Approval is granted for the clearing of vegetation associated with the 500m rifle range, 50m pistol range, clubhouse and ancillary works (including clearing for the construction of the sedimentation ponds). Prior to any further vegetation clearing for any other ranges and/or facilities, written authorisation shall be obtained from the Director General once documentation is provided confirming the funding agreements and timing for completion of the other ranges and/or facilities, and that a management plan for the additional clearing has been approved by DECC.

11 The modification approval, submitted the Minister, not only approved the earlier conceded unapproved clearing, but also rendered lawful the clearing currently complained of.

12 Hill Top relied on the evidence contained in the previously read affidavits of Mr Peter Jackson, Mr Alexander Horton and Mr John Shipway, together with a new affidavit of Mr Matthew Handbury, sworn 25 October 2010, together with exhibits.

13 In his new affidavit, Mr Handbury stated that from his recent observations of the site:

(a) no sedimentation control features had been installed in the cleared areas, either by way of fencing or by the construction of ponds; and

(b) additional unapproved clearing had taken place.

14 As stated above, but for the tender of the additional plans this morning, I would have granted an interim injunction halting any further clearing. The reasons for this are as follows, and while now otiose, they are nevertheless set out because of their relevance to the issue of costs.

15 The alleged unapproved clearing the subject of this application relates to an area cleared for the construction of a sedimentation pond which at first glance appears, if regard is had to drawing no 21-17850-C004 Rev A, to be part of the 200 m range. It is not in dispute that no clearing approval has been given to construct the 200 m rifle range.

16 In response, the Minister argued that the clearing formed part of the approved clearance works for the 500 m range.

17 In response, Hill Top relied on the words in condition C1 of the unmodified approval, which state that “clearing for the 500 m range is to be in accordance with Drawing No. 21-17859-C004 Rev A prepared by GHD”. As discussed in the second Hill Top decision, the reference to “Drawing No. 21-17859-C004 Rev A” in that condition is an error and should be a reference to drawing no 21-17850-C004 Rev A. Thus, Hill Top submitted, the clearing for the 500 m range must be in accordance with this latter drawing. But when regard is had to this drawing, it is clear that no sedimentation pond in the location in which clearing has occurred is permitted. This is because in its present location the cleared sedimentation pond could only form part of the clearing required for the 200 m range - as indicated by, and consistent with, drawing no 21-17850-C004 Rev A - for which no approval has been given. It could not, in its present location, form part of the clearing for the 500 m range.

18 The Minister relied on the words “ancillary works” in condition C1 of the unmodified approval to submit that approval had been given to clear for “ancillary works” and that the sedimentation pond was a lawful ancillary work for the 500 m range.

19 In my view, however, the reference to “ancillary works” in condition C1 is a reference only to the ancillary works depicted on drawing no 21-17850-C004 Rev A and not to “ancillary works” at large. When regard is had to that drawing it is clear that the “ancillary works” provided for in that plan are not in the same location as the area that has been currently cleared. While I accept that there is no plan detailing the precise location of the 50 m pistol range, clubhouse or ancillary works and that approval has nevertheless been given to clear the vegetation associated with these works, I do not accept that a proper construction of condition C1 permits these works to be carved out of, and cleared from, an area for which no approval has been given, namely, the 200 m range.

20 It follows, therefore, that for present purposes no unmodified approval has been given for the clearing now complained of.

21 But, this is not the end of the matter. Regard must also be had to the approved modification.

22 While Hill Top initially submitted that the modification approval was invalid because there was no evidence of any proper delegation authorising the Director-General of the Department of Planning to grant it, evidence tendered today in the form of an Official Notice published in the New South Wales Government Gazette No 30, dated 5 February 2010, proved conclusively that the function of modifying an approval under s 75W of the Environmental Planning and Assessment Act 1979 has been delegated to, amongst other individuals, Mr Haddad in his capacity as the Director-General of the Department of Planning. In any event, even absent this proof I would nevertheless have accepted the invitation by the Minister to infer that such a delegation was in existence.

23 Significantly, when regard is had to the text of the modification approval, a critical disparity emerges. This is that drawing no 21-17850-C004 Rev 0, which was referred to in Mr Shipway’s affidavit as the relevant drawing the subject of the modification application, is not included in the drawings approved by the modification. Instead, in respect of drawing no 21-17850-C004 it is “Rev 1”, and not “Rev 0”, that has been approved as modified.

24 This drawing was not, until early this morning, before the Court. Indeed none of the drawings referred to in the modified approval were, until very recently, before the Court. It was therefore not clear if the clearing that had taken place the subject of this application, purportedly pursuant to “Rev 0”, had been authorised by the approval as modified.

25 Prior to the tender of the approved modified plans and in order to overcome this lack of clarity, the Minister sought to rely on the following words in modified condition C1:

…Approval is granted for the clearing of vegetation associated with the 500 m rifle range, 50 m pistol range, clubhouse and ancillary works (including clearing for the construction of the sedimentation ponds)…

26 The Minister submitted that the modification approved clearing for “ancillary works” which expressly included a reference to the construction of the sedimentation ponds. This meant that the land that had been cleared had approval because it fell within that description.

27 I was not prepared to accept this submission. Again, absent approval having been granted to clear the 200 m range, I could not accept, in the absence of having been furnished with the modified drawings referred to in condition A2, that plenary approval had been given to clear for the construction of sedimentation ponds, wherever they were located on the site.

28 It therefore followed that there was a serious question to be tried in relation to the ambit of the clearing approved by the granted modification application.

29 Furthermore, in light of the evidence presented to the Court during the second Hill Top decision, and notwithstanding the impact that the granting of the injunction would have had in delaying the development, because the vegetation once cleared could not be restored if its removal was unlawful and because of the high conservation value of the area, the balance of convenience would have favoured the granting of the interim injunctive relief.

30 However, upon the tender of the drawings referred to in condition A2 of the modified approval, in particular, drawing no 21-17850-C004 Rev 1, it became tolerably clear that the area in dispute cleared for the construction of a sedimentation pond had been approved for clearing. Accordingly, there was no longer a serious question to be tried in this regard.

31 Hill Top additionally submitted that there was a serious question to be tried insofar as the approval for the modification was signed and dated 23 October 2010, and as a consequence, the clearing the subject of this application must have taken place, given the size of the area that had been cleared, on 22 October 2010 (the proceedings did not conclude on 21 October 2010 until after 5.00 pm), at a time when it was unapproved.

32 Counsel for the Minister was unable to indicate to the Court exactly when on 23 October 2010 the approval had been signed. The Minister did, however, by analogy to s 24 of the Interpretation Act 1987 (which states that if a statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence or be deemed to have commenced at the beginning of that day) submit that the approval ought to be taken to have been made, absent any evidence to the contrary, at the beginning of 23 October 2010.

33 I remain unconvinced that this rule applies to the granting of approvals. But having said this, I find that it is entirely possible that the clearing occurred wholly on 23 October 2010, irrespective of the fact that, according to the terms of the approval, the clearing could only take place for half of that day. Absent any evidence by Hill Top that the clearing had occurred at a time when no approval had been given, I decline, as I was urged to do so by Hill Top, to draw an inference to this effect.

34 In any event, even if I were to draw this inference, it would not assist Hill Top. This is because the unapproved clearing is a past event and the approved modification now permits the Minister to clear land which previously would have been unlawful because it trespassed into the 200 m range.

35 While Hill Top submitted that the cumulative effect of the earlier conceded breach of the approval by the Minister, together with this likely breach, was sufficient to raise a serious question to be tried that unapproved clearing would take place in the future, I do not accept this submission. In my view, it cannot be said that the conduct of the Minister to date has been so egregious that the Court should issue the injunction on this basis alone.

Sediment Control Features

36 Hill Top submitted that all of the clearing that had taken place to date was in breach of the approval (either unmodified or modified) because it had taken place prior to the installation of sediment control features as mandated by the terms of the approval. These features were necessary to prevent runoff from exposed soils and stockpiles in order to minimise the potential for adverse impacts on surrounding and downstream habitats. Hill Top relied on the recent affidavit evidence of Mr Handbury in this regard.

37 However, in my opinion, it is not sufficiently clear that the terms of the approval have been breached as alleged. I note once again (see the second Hill Top decision) that the approval documentation is internally inconsistent in this regard. On the one hand, the Southern Highlands Regional Shooting Complex Construction Environmental Management Plan states, “install sediment control features prior to clearing activities”; on the other hand it says, “construction of silt fences around disturbed areas to stop soil leaving the cleared areas. Cleared vegetation would be used to provide a further filter outside the silt fences”. These two statements are contradictory with respect to whether the clearing must occur before or after the installation of sediment control features.

38 In light of the inconsistency, I cannot find that there has been a breach of the approval, at least insofar as this application is concerned. As a consequence, I cannot find there is a serious question to be tried in this regard.

39 But, in any event, even if I am incorrect in my conclusion that there is no serious question to be tried raised by the application, in my opinion, the evidence of Mr Horton makes it abundantly clear that the balance of convenience is weighted against the granting of any interim injunctive relief on this basis.

40 Mr Horton stated that sediment control features are being implemented in tandem with the clearing of vegetation. Mr Horton also stated that the clearing that has been undertaken is, in part, in order to install sediment and erosion control devices. According to Mr Horton, it is necessary to clear the entirety of some areas at the site, rather than merely clearing the perimeter of a particular area, in order to properly implement these controls.

41 Mr Horton’s evidence was confirmed by counsel for the Minister, who stated that sediment fencing was presently being erected at the site and that it would take approximately three days to complete this task. And, that it would take approximately two to three weeks to complete the construction of sedimentation ponds.

42 I therefore find that adequate measures are being implemented to protect the environment from any sedimentation discharge occasioned by the clearing. I am confident that sediment control features are being implemented in a timely way in accordance with the spirit, if not the letter, of the terms of approval. These considerations, together with the fact that no evidence has been presented to the Court of any harm or any likely harm to the environment consequent upon any inadequacy in the sedimentation control features currently being implemented by the Minister, compel the conclusion that the balance of convenience does not favour the granting of the interim injunction sought.

43 In so holding I am mindful not only of the high conservation value of the site and the surrounding area, but also of the negative impact the imposition of an injunction would have in delaying the development given that all clearing must cease on 1 November 2010 for a period of six months.

Costs

44 As indicated earlier in the judgment, but for the very late tender of the additional drawings referred to in the modification approval, interim injunctive relief would have been granted by the Court. On this basis it is not appropriate that, notwithstanding that ultimately the application has been refused, Hill Top should be ordered to pay the Minister’s costs.

45 The Minister again submitted that in all the circumstances the appropriate costs order should be its costs in the cause. But in my view, the more appropriate order is that each party bear its own costs.

46 In any event, had I been required to so find, again, I would have in all likelihood found that this application was brought in the public interest pursuant to r 4.2 of the Land and Environment Court Rules 2007, an identical result would have ensued.

Orders

47 The orders of the Court are therefore as follows:

(1) the application for interim injunctive relief is dismissed, with no order as to costs; and

(2) the matter is stood over to 2.00 pm 27 October 2010, to permit the parties to bring in consent short minutes of order for the further timetabling, on an expedited basis, of the proceedings.


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