Hoskin v Victorian Civil and Administrative Tribunal
[2015] VSCA 270
•29 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0088
| JULIE HOSKIN | First Applicant |
| KATHLEEN HOWARD | Second Applicant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| GREATER BENDIGO CITY COUNCIL | Second Respondent |
| AUSTRALIAN ISLAMIC MISSION INC | Third Respondent |
| GREG GARDE AO RFD | Fourth Respondent |
| MARK DWYER | Fifth Respondent |
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| JUDGES: | Warren CJ and Santamaria JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 September 2015 |
| DATE OF JUDGMENT: | 29 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 270 |
| JUDGMENT APPEALED FROM: | Hoskin v Greater Bendigo City Council & Anor [2015] VCAT 1124 |
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PRACTICE AND PROCEDURE – Stay – Application for stay of execution of orders pending appeal – Whether appeal will be rendered nugatory if stay is not granted – Planning Permit issued in accordance with order – No order capable of being stayed – Application for stay dismissed – Maher v Commonwealth Bank of Australia [2008] VSCA 122.
PRACTICE AND PROCEDURE – Injunction – Whether serious question to be tried – Balance of convenience – Injunction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr M C White | Robert Balzola and Associates |
| No appearances for the First, Fourth and Fifth Respondents | ||
| For the Second Respondent | Mr J Rantino | Maddocks Lawyers |
| For the Third Respondent | Mr C T Townshend QC with Ms E C V Porter | Best Hooper Lawyers |
WARREN CJ
SANTAMARIA JA:
Introduction
This is an application pursuant to r 66.16 of the Supreme Court (General Civil Procedure) Rules 2005 for a stay of execution of orders made by the Victorian Civil and Administrative Tribunal (‘Tribunal’) pending the hearing and determination of an appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’).
The proceedings in the Tribunal arose out of an application made to the Greater Bendigo City Council (‘responsible authority’) for a permit for the development and use of a mosque and associated facilities to be established at 9 Rowena Street, East Bendigo. The proposal involved the construction of a place of worship, a separate sports hall, a caretaker’s dwelling and associated facilities such as an office, education room, shop and café. The proposal involved a staged development comprising two prayer halls, a domed courtyard and minaret tower. Those buildings were to be centrally located on the land with ground level car parking for 131 vehicles. Trees abutting the road frontages would be retained. Revegetation was proposed as shown on a landscape plan.
The permit application (DP/937/2013) was granted by the responsible authority in accordance with endorsed plans and on conditions.
Several applications for review were made in the Tribunal. For present purposes two are of significance. First, there is an application by group applicants under s 82 of the Planning and Environment Act 1987 (‘the PE Act’) to review the decision to grant a permit (P1142/2014) (‘the group application’). Second, there is an application by the permit applicant under s 80 of the PE Act to review several conditions in the Notice of Decision to Grant a Permit (P1395/2014).
There were several Practice Day Hearings in respect of the applications in 2014. One such Practice Day Hearing (17 July 2014) appears to have been presided over by Deputy President Mark Dwyer. The principal hearings were heard over six days.[1] The applications were heard by the Tribunal comprising the President the Honourable Greg Garde AO RFD and Senior Member Margaret Baird.
[1]Day 1 (1 December 2014); Day 2 (2 December 2014); Day 3 (3 December 2014); Day 4 (23 February 2015); Day 5 (24 February 2015); Day 6 (11 May 2015).
It appears that there were at least two applications by the group applicants that the President recuse himself. The first of these took place on 15 August 2014;[2] the second on 29 May 2015. The basis for the first application for recusal is not made clear in any of the material. The second application appears to have been based on the existence of two letters from the Victorian Government Solicitor’s Office (‘VGSO’) dated 13 March 2015 and 20 March 2015 respectively. Ms Hoskin has contended that, in instructing the VGSO to send the letters, the President demonstrated that he was not impartial and unbiased in relation to the group application. On each occasion, the President refused the application to recuse himself. At a Practice Day Hearing on 27 July 2015, the President made a statement in which he said that he had had no involvement in the sending of the letters and first became aware of them when he was provided with a copy of the Practice Day Application for recusal made by the group applicants.
[2]See [18] below.
In the event, on 6 August 2015, the Tribunal published two sets of reasons. In its first reasons, it dismissed the application for review in proceeding P1142/2014 and allowed in part the application for review in proceeding P1395/2014 (‘the principal reasons’).[3] In its second reasons, the Tribunal explained why it had dismissed the application made on 29 May 2015 that the President recuse himself (‘the recusal reasons’).[4]
[3]Hoskin v Greater Bendigo CC & Anor [2015] VCAT 1124.
[4]Hoskin v Greater Bendigo CC & Anor [2015] VCAT 1125.
Proposed Grounds of Appeal
On 15 September 2015, the group applicants filed an amended application for leave to appeal to the Court of Appeal. The proposed grounds of appeal are as follows:
1.That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the decision;
2.That procedures that were required by law to be observed in connection with the making of the decision were not observed;
3.That the person who purported to make the decision did not have jurisdiction to make the decision;
4.That the decision was not authorized by the enactment in pursuance of which it was purported to be made;
5.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
6.That the decision involved an error of law, whether or not the error appears on the record of the decision;
7.That there was in part no evidence or other material to justify the making of the decision;
8. That the decision was otherwise contrary to law.
9.That the decision took into account irrelevant considerations in the exercise of a power;
10.That the decision maker failed to take relevant considerations into account in the exercise of a power;
11.That the decision maker exercised a power for a purpose other than a purpose for which the power is conferred;
12. That the decision maker exercised a discretionary power in bad faith;
13.That the decision maker exercise a personal discretionary power at the direction or behest of another person;
14.That the decision maker exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
15.That the exercise of the powers were so unreasonable that no reasonable person could have so exercised the power;
16.That the exercise of a power is exercised in such a way that it results in the exercise of that power being uncertain; and
17.That the exercise of a power is in a way that constitutes abuse of the power.
18. Bias.
The proposed grounds of appeal are innocent of any particulars whatsoever. So, for example, there is no indication of which procedures were required to be observed but were not observed (ground 2); there is no indication as to why it is said that the person who made the decision did not have jurisdiction to do so (ground 3); there is no indication of the facts and circumstances as a result of which it is said that the discretionary power has been exercised in bad faith (ground 12); there is no indication of the facts and circumstances as a result of which it is said that the decision maker exercised a power ‘at the direction or behest of another person’ let alone any identification of that other person (ground 13); and, there is no indication of the facts and circumstances as a result of which it is said that the decision maker exercised a power in accordance with a rule or policy without regard to the merits of the particular case let alone any identification of what that rule or policy might be (ground 14).
Application for Stay
On 16 September 2015, the applicant for leave to appeal filed an application for ‘Stay of execution pursuant to Rule 66.16 upon Orders 1 to 6 in the judgment below’.
That application was supported by an affidavit of Julie Hoskin sworn 2 September 2015. In addition, the applicant has filed an outline of submissions dated 16 September 2015.
The application is opposed by the responsible authority, which is the second respondent. In support of its opposition, it relies upon an affidavit of Katherine Anne Kennedy sworn 18 September 2015. In her affidavit, Ms Kennedy says that the responsible authority issued Planning Permit No. DP/937/2013 (‘Permit’) on 6 August 2015 in accordance with clause 5 of the order of the Tribunal dated 6 August 2015. She also exhibited a copy of the permit and deposed that the development approved by the Permit cannot commence until certain of the conditions described within it are satisfied.
In addition, the responsible authority has filed short written submissions dated 18 September 2015. In those submissions, it is pointed out that the planning permit has been issued in accordance with the order and ‘[i]t follows that there is no order of the Tribunal capable of being stayed’.
The application for the stay is also opposed by the third respondent, the Australian Islamic Mission Inc. In support of its opposition, the third respondent relies on an affidavit of Seyed Alavi Seyed Sheriffdeen sworn 18 September 2015. Dr Sheriffdeen is the Secretary of the third respondent. In addition, the third respondent relies upon written submissions dated 18 September 2015.
Submitting Appearance by Tribunal
It will be noticed that the applicant has joined the Tribunal as the first respondent and the President and Dwyer DP as the fourth and fifth respondents respectively. On 16 September 2015, the Acting Principal Registrar of the Tribunal (Mr Jacobs) sent a letter to the Judicial Registrar of the Court of Appeal informing the Court that the Tribunal, the President and Dwyer DP do not intend to take an active role in this proceeding, except as regard any question of their costs. In doing so, the Acting Principal Registrar referred to R v Australian Broadcasting Tribunal, ex parte Hardiman and Ors.[5]
[5](1980) 144 CLR 13, 35.
The Hoskin Affidavit
As indicated above, the applicants for leave to appeal and for the stay rely upon (a) the Hoskin affidavit and (b) the outline of submissions. However, the affidavit addresses facts and circumstances different from those addressed in the outline of submissions. In her affidavit, Ms Hoskin says that a stay application ‘is required to also deal with the haphazard manner in which the hearing on the 17th of July 2014 was conducted’. Thereafter, Ms Hoskin describes what occurred at a Practice Day Hearing on 17 July 2014 that appears to have been presided over by Dwyer DP. It is not altogether easy to discern from the affidavit what occurred on that date. But, it seems that separate proceedings had been commenced by a Ms Monika Evers and that Ms Evers had applied to have her name supressed. The day before Ms Evers’s application was to be heard, the Tribunal gave notice by email to Ms Hoskin and the other group applicants of the application. Ms Hoskin has deposed that the short notice made it impossible for the group applicants to attend and provide proper instructions. She says that what occurred before Dwyer DP on 17 July 2014 was confusing and impossible to understand. In addition, at that hearing, Dwyer DP directed that there be a change in the name of the applicant for the permit. It appears that the original applicant for the permit had been ‘Munshi Nawaz of the Tomkinson Group’.
In her affidavit, Ms Hoskin says that there was a further Practice Day Hearing held on 15 August 2014 before the President. She prepared a statement that contained a list of all her concerns about the conduct of Dwyer DP and the directions which were made by him on 17 July 2014. She deposed:
I stated that we did not believe that we would be given a fair hearing due to a number of factors that implicated both President, Greg Garde and Deputy President, Mark Dwyer and we asked that they stand down. After a brief adjournment, President, Greg Garde refused to do so …
No mention was made in subsequent orders about this statement or the fact that we had asked the President and Vice President to stand down.
Finally, Ms Hoskin says:
I rely on the pleadings supplied in my affidavit and verily say and believe that the benefit of the forthcoming litigation would be deprived if development is commenced during the duration of this appeal.
Written submissions of group applicants
On the other hand, the written submissions filed in support of the stay identify the decision of the President not to recuse himself announced on 27 July 2015 as a significant cause of complaint. No reference is made to the Practice Day Hearing on 17 July 2014 or to the refusal of the President to recuse himself on 15 August 2014. Rather, the submissions refer to the application to the President to recuse himself by reason of the VGSO letters. It appears that, when the President refused to recuse himself on 27 July 2015, no reasons were given apart from a short oral statement. At some point, probably on that day, counsel for the group applicants gave notice of their intention to approach the Supreme Court to apply for an order in the nature of a writ of prohibition to prevent the President from continuing to sit given his decision not to recuse himself. The written submission says that the President said that it would be open to the group applicants to raise the question of bias on any appeal as it was a question of law within the jurisdiction of the Court on an appeal from the Tribunal.[6] He is quoted as having said:
[Importantly the] position of the group applicants will not be adversely affected in any way [by not seeking a writ of prohibition]. They have rights of appeal to the Court of Appeal on question of law under s 148 of the VCAT Act. A failure to recuse or to provide procedural fairness is a matter of law. It is likely to be most convenient for all challenges to the tribunal’s deliberations and decision to be made and heard at the same time.
[6]Appeals to the Court from the Tribunal are confined to questions of law and are subject to the grant of leave: s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998. As the Tribunal was constituted by the President, the application for leave to appeal is made to the Court of Appeal: s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.
It was not until 6 August 2015 that the Tribunal published its reasons for the President refusing to recuse himself. The applicants contend that, by publishing his reasons for refusing to recuse himself at the same time as the reasons on the substantive application, the President may have prevented the applicants from pursuing a confined administrative review for an order in the nature of prohibition on the non-recusal on its own right.
The group applicants also contend that a stay is necessary in order to preserve the subject matter of the litigation. While the permit remains on foot and can be acted upon, work on the mosque development can commence. The permit holder can enter significant commercial contracts immediately. They contend:
Hypothetically, if the application for leave was granted and ultimately some matters were ordered to be remitted to VCAT for further or fresh consideration, the ultimate outcome of such a remittance could take many months to deliberate. If a stay is not granted then during that entire period substantial earth works could commence and significant commercial progress might be made in the furtherance of constructing the mosque and related facilities.
A stay on the Orders is the only way to preserve the subject matter of the litigation, in the absence of which the Australian Islamic Mission would have a free hand to contract agents in the commencement of construction on a building which is the subject matter of this Appeal.
The group applicants say that a stay will not cause undue loss to the permit holder. On the contrary, they argue that, if the permit holder sets out on a course of commercial dealings, those dealings may be frustrated by a decision of the Court and a new Tribunal. They say:
The safer course is for the application for leave and any consequential hearings be finally resolved before the permit can be acted upon; that is both prudent and commercially realistic.
Finally, the group applicants say that the balance of convenience favours the grant of a stay. Work has not been commenced; the land has not been developed beyond the condition it was in at the time the original permit application was submitted to council. The present proceedings may succeed and any work done by the permit holder would have to be set aside. They referred to Brown v AEP Belgium SA[7] and Neate v Thoroughbred International Marketing Pty Ltd.[8] As the applicants put it:
[Australian Islamic Mission] are not relying on the decision of VCAT to ‘fund’ the development or the preconstruction contracts for the mosque or any other activities that the Mission pursues. The stay concerns physical alteration of the subject land rather than the mere handing over of money which can be undone, reversed or altered by way of a straightforward bank transaction.
[7][2004] VSC 255.
[8](2012) 34 VR 318.
Oral Submissions
During his oral submissions, counsel for the group applicants identified a further error of law that had not been developed in the written submissions but which is referred to in the Amended Application for Leave to Appeal dated 15 September 2015. He said that the Tribunal had erred in law in holding that a social impact statement was not admissible in evidence or relevant to a consideration of the planning provisions of s 60 of the PE Act.
Counsel for the group applicants also recognised that the permit had already issued and that, in truth, the application was to restrain conduct authorised by the permit.[9] Counsel said that:
[9]In their Application other than leave to appeal dated 11 September 2015, the group applicants had said that they were applying for a stay of execution pursuant to r 66.16. During oral submissions, counsel for the group applicants said that the application was also based on r 66.14. Rule 66.14 of the Supreme Court (General Civil Procedure) Rules 2005 provides: ‘The Court may stay execution of a judgment, or make such order as the nature of the case requires, on the ground of matters occurring after the judgment.’ In the Supreme Court (General Civil Procedure) Rules 2015 (which come into force on 23 November 2015), r 66.14 is in the same form.
(a) the Hoskin affidavit provided an entry point to understanding the procedural unfairness to which the group applicants were subjected; and
(b) his written outline was intended to focus attention on:
(i) the refusal of the President to recuse himself in the context of the VGSO letters; and
(ii) the fact that, by publishing his reasons for refusing to recuse himself at the same time as the Tribunal published its reasons for dismissing the substantive application, the group applicants were deprived of the opportunity to get an order in the nature of prohibition before the Tribunal became functus officio.
When it was issued, the permit provided that the development could not commence until various conditions had been satisfied. Several of these appear to be quite onerous. The group applicants (upon whom the onus lies) adduced no evidence relating to these conditions or the extent, if at all, to which they had been satisfied. Counsel for the group applicants was unable to provide the Court with any instructions about the matter. Rather, he contended that, if there was any possibility of the site being ‘shovel ready’ and of works commencing such that the ‘pristine’ character of the site was disturbed before the appeal was heard, the Court should adopt the ‘precautionary principle’ and ensure that nothing was done before the hearing and determination of the appeal.
Respondents’ Oral Submissions
Counsel for the second respondent told the Court that the site had not been disturbed in any way and that there was no chance of the conditions being satisfied before the date (6 November 2015) scheduled for the hearing of the appeal.
Senior counsel for the third respondent said that the proposed grounds of law raised in the further amended application were, at best, tenuous. There was, he said, no finding by the Tribunal which could provide a basis for the complaint that it had erred in holding that a social impact statement was not admissible in evidence or relevant to a consideration of the planning provisions of the PE Act. Further, the President had said that he had no knowledge of the VGSO letters that formed the basis of the second recusal application.[10] Further, counsel said that the existence of the conditions made the grant of a stay unnecessary: there was no prospect of any physical development taking place on the site before 6 November 2015. He added that the permit did not authorise the doing of anything which, if done before the hearing of the appeal, would make the appeal nugatory. It was not as if the permit authorised the demolition of a heritage building or the operation of, say, a (noisy) night club. Finally, he contended that, if his client was to be enjoined from exercising the rights conferred upon it by the permit, any such injunction should be confined to the carrying out of physical works: the work needed to be done to comply with the conditions should not be restrained.
[10]See [6] above.
Authorities
In Maher v Commonwealth Bank of Australia,[11] Dodds-Streeton JA summarised the principles governing a stay of execution of judgment pending the hearing and determination of an appeal. She said:
[11][2008] VSCA 122.
Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
In Cellante and Ors v G Kallis Industries Pty Ltd (Cellante), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:
… where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
Young CJ concluded that an applicant for a stay under r 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.
The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.
The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[12]
[12]Ibid [20]-[27] (citations omitted).
In Gangemi v Osborne,[13] the Court (Warren CJ and Neave JA) said:
[13][2008] VSCA 221.
An appeal does not operate as a stay of execution, but the Court may order a stay pending an appeal where exceptional or special circumstances exist that justify a stay. There is a presumption in favour of a stay not being ordered and Gangemi bears the burden of demonstrating the existence of exceptional or special circumstances.
In Cellante v G Kallis Industries Pty Ltd, Young CJ stated that special circumstances would exist where:
[F]or whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.
This is typically expressed as the risk where, if an appellant were successful on appeal, they would be denied the fruits of the appeal if a stay is not ordered.
In summary, the factors relevant in considering whether to order a stay of a decision below are the prospect of an appeal being rendered nugatory, the balance of prejudice in depriving a party of the fruits of judgment against the risk that an appeal might be rendered nugatory, and the prospects of success of the appeal.[14]
[14]Ibid [12]-[15] (citations omitted).
Accordingly, it is necessary to consider whether, if a stay is not granted, the appeal will be rendered nugatory, and the prospects of success, or, if in the alternative an injunction is to be considered, whether there is a serious question to be tried and where the balance of convenience lies.
Position of the Third Respondent
As indicated above, the third respondent relies on the affidavit of Dr Sheriffdeen. In that affidavit he has deposed that the ultimate cost of construction of the mosque will be in the order of $3,000,000 and that, thus far, $300,000 has been raised. He says that he has been involved in the construction of mosques and community centres in Australia in excess of 20 years and that, in his experience, the willingness of the local community to contribute funds increases as the construction begins and takes shape. Accordingly, if the construction of the mosque is delayed the ability of the respondent to raise funds to meet its current mortgage obligations will be prejudiced.
The third respondent has also filed written submissions in opposition to the present application. It has advanced four principal contentions. First, it says that the application is misconceived as, the permit having been issued, there is now no order of the Tribunal below that is amenable to a stay of execution. Second, it says that there are no special or exceptional circumstances. It recognises that the permit that has been granted to it is the subject of an application for leave to appeal and that, should (a) there be a successful appeal and (b) a subsequent Tribunal refuse to issue a permit in a form appropriate to the proposed use or development, the proposal will not be able to proceed. The third respondent says:
Should that permit ultimately be held invalid on appeal, any use or development of the land in reliance upon that permit would become unlawful, and any person could apply under s 114 of the Act for an enforcement order, which may, among other things, direct any person against whom it is made to stop the use or development, and to restore the land as nearly as practicable to its condition immediately before the use or development started: s 119.
A person who acts on a permit in circumstances where the grant of that permit is the subject of appeal proceedings does so at their own risk, in the knowledge that they may in the future be compelled to stop the use or development, and restore the land to its original condition.
Third, it has contended that the group applicants have not articulated any ground of appeal which has a real prospect of success; it says that the grounds of appeal are generic and unsubstantiated. Finally, it says that if it is delayed in proceeding with the development of the mosque, its ability to raise funds for its construction will be prejudiced.
Analysis
It is true that, from one perspective, the present application is misconceived in that the permit has already been issued and there remains nothing to stay. Nevertheless, the jurisdiction of the Court is broad and would extend to enjoining the commencement of any works, or of any use of the land, otherwise justified by the permit. In truth, that appears to be what the group applicants are seeking to achieve by their present application.
However, it cannot be said that their appeal will be rendered nugatory unless works done pursuant to the permit are restrained pending the hearing and determination of the appeal. Further, even if the Court were to assume that the present application raises a serious question to be tried, it cannot be said that the balance of convenience is in favour of the present applicants. In the event that an appeal is allowed and is successful, and no satisfactory permit issues in the future, the proposed development will not be able lawfully to proceed, let alone any use which is authorised by the permit. If the third respondent proceeds, now, to act upon the permit, it does so at its own risk. However, as the third respondent has submitted, it accepts this risk in the knowledge that it may be compelled to stop the development or use and restore the land to its original condition. Any such restoration does not seem impossible; it is not as if the present application seeks to restrain the demolition of any existing structure. This consideration alone means that the present application cannot succeed and should be dismissed. The group applicants have pointed to no prejudice that they will suffer if a stay is not granted.
The conditions attached to the permit must be satisfied before any development or use commences. This Court has been able to set down the present application for leave to appeal during the present term. The group applicants adduced before the Court no evidence as to the current state of those conditions. Further, the Court has no reason to doubt the submission made to the Court, on behalf of the third respondent, that there is no prospect of any physical work occurring on the site before the date listed for the hearing of the application for leave to appeal. That provides a further reason for refusing the present application whether it is characterised as a stay or an injunction application.
In the circumstances, it is unnecessary for this Court to consider the prospects of success of the application for leave to appeal and we expressly decline to do so.
The Court orders:
(a) The application for a stay or, alternatively, for an injunction be dismissed;
(b) Costs of the application be costs in the appeal.
The Court also directs that by 4pm on 29 September 2015, the applicants file a further amended application for leave to appeal in which the proposed grounds of appeal are expressed in proper form.
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