Hunter Community Forum Inc v Crescent Newcastle Pty Ltd

[2023] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hunter Community Forum Inc v Crescent Newcastle Pty Ltd [2023] NSWLEC 1

Hearing dates:

31 January and 1 February 2023

Date of orders:

3 February 2023

Decision date:

03 February 2023

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraph 54

Catchwords:

INTERLOCUTORY INJUNCTION – principles applicable to interlocutory applications – no serious question to be tried – balance of convenience – whether there is risk of irreparable harm – the preservation of the status quo – prejudice to third parties – public interest – no undertaking as to damages – delay in making application – application dismissed – costs in the cause

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW)

Cases Cited:

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Tegra (NSW) Pty Ltd v Gundagai Shire Council and Another (2007) 160 LGERA 1

Category:

Procedural rulings

Parties:

Hunter Community Forum Inc. (Applicant on the Notice of Motion)
Crescent Newcastle Pty Ltd (First Respondent on the Notice of Motion)
Hunter and Central Coast Planning Panel (Second Respondent on the Notice of Motion)

Representation:

Counsel:
C Honnery (Applicant on the Notice of Motion)
J Hutton SC and D Farinha (First Respondent on the Notice of Motion)
Submitting appearance (Second Respondent on the Notice of Motion)

Solicitors:
Stringybark Legal (Applicant on the Notice of Motion)
Sparke Helmore Lawyers (First Respondent on the Notice of Motion)
Department of Planning and Environment (Second Respondent on the Notice of Motion)

File Number(s):

2022/309378

Publication restriction:

No

Judgment

Nature of proceedings

1. By Notice of Motion filed on 30 January 2023 the Applicant seeks an interlocutory order in the following terms:

Order that the First Respondent, by itself, its servants and agents, be restrained from carrying out any building work, including grouting and drilling, pursuant to the consent granted by the Hunter and Central Coast Regional Planning Panel in relation to DA2019/00061 at 11-17 Mosbri Crescent, the Hill dated 7 July 2022 (Consent) without further order of the Court

(the Interlocutory Application).

2. The Applicant has commenced by way of Summons filed on 7 October 2021 judicial review proceedings seeking declarations and orders in relation to the grant of the development consent to the First Respondent’s Development Application by the Second Respondent (the Panel) for mine grouting work, demolition of existing buildings and construction of 166 residential units at 11-17 Mosbi Crescent, the Hill (the Land). The Applicant contends that the Consent is invalid for reasons relating to the adequacy of the Panel’s consideration of the offsite impacts said to arise from the proposed mine grouting and seeks orders restraining the First Respondent from acting upon the Consent.

3. The hearing of the substantive proceedings is listed for 3 days commencing on 13 February 2023. The Panel has filed a submitting appearance.

4. The Applicant filed an Amended Summons on 30 January 2023 making minor amendments and adding a further ground that the Panel had failed to exercise its jurisdiction by failing to make inquiry from three recited expert reports that were in existence at the time of the determination by the Panel.

5. The Applicant sought an urgent hearing of the Interlocutory Application, and the matter was heard before me as Duty Judge on 31 January and 1 February 2023. Short service was granted to the Interlocutory Application which was required to be served by 10am on 31 January 2023, with the hearing commencing at 2pm. Upon enquiry by me I was advised by the Applicant that it had not served the Interlocutory Application upon the Panel, however, after being directed to do so, the solicitor for the Applicant made contact with the Panel and I was informed that it did not wish to be heard in connection with the Interlocutory Application.

6. The First Respondent opposes the grant of the interlocutory relief.

Evidence and facts

7. Both the Applicant and the First Respondent relied upon a large volume of evidence comprising affidavits and documentary material for the purposes of the Interlocutory Application. This evidence, in large part, has not been filed in connection with the substantive proceedings and was prepared solely for the purpose of the Interlocutory Application.

8. The Applicant read evidence by way of affidavits (with documents annexed) from:

1. Mr Ryan, the Applicant’s instructing solicitor, sworn 22 December 2022, and 30 January 2023; and

2. Ms Doyle, convenor of the Applicant, sworn 21 December 2021, 29 January 2023, and 1 February 2023.

9. The First Respondent read evidence by way of affidavits (with documents annexed or exhibited) from:

1. Mr McKelvey, the First Respondent’s instructing solicitor, sworn 31 January 2023; and

2. Mr Rosewarne, employed by the company appointed by the First Respondent as Project Manager for the development, sworn 20 January 2023, 31 January 2023, and 1 February 2023.

10. From that evidence the undisputed facts are that:

1. The First Respondent has commenced work on the Land pursuant to the Consent;

2. The work includes the undertaking of mine grouting of what is known as the Yard Seam and the Borehole Seam commencing with the perimeter of the Land (the Grouting Work);

3. The Grouting Work commenced on around 5 October 2022 and have proceeded with the exception of the period 23 December to 9 January to date and continuing;

4. Depending upon the volume of grout required for the mine grouting, the Grouting Work will be completed by April or August 2023; and

5. A construction certificate for the Grouting Work has not been issued.

Principles applicable to interlocutory applications

11. In order for an interlocutory injunction to be granted the Applicant must demonstrate that there is a serious question to be tried and that the balance of convenience favours the grant of such an injunction.

12. What is required in the consideration of these factors was described by Preston CJ in LEC in Tegra (NSW) Pty Ltd v Gundagai Shire Council and Another (2007) 160 LGERA 1 (Tegra) at [7], [13] and [14] in the following terms:

7   Satisfaction of the test of a serious question to be tried is an essential condition of obtaining interlocutory injunctive relief. The applicant must identify the legal (which may include statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought (which need not be injunctive in nature). A court does not have jurisdiction to grant an interlocutory injunction where no legal (including statutory) or equitable rights are to be determined: Australian Broadcasting Commission v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 218 [15], [16], 232 [60] - 233 [62], 241 [91], 267 [159(4)] and 296 [246].

13   The phrase “balance of convenience” is not a term of art. It simply means that the court must consider “whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted”: Beecham Group Ltd v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 623. The greater the hardship to the defendant, the greater the reluctance of the court to grant the injunction. However, if an equal or greater hardship would be caused to the plaintiff by refusing an injunction, that reluctance will be dissipated: R Meagher, D Heydon, M Leeming, Equity Doctrine and Remedies, 4th ed, LexisNexis Butterworths, 2002, p 785.

14   In its consideration, the court looks at all of the factors which are relevant in the particular circumstances of the individual case….

13. The parties agreed that the relevant considerations relating to the balance of convenience in this case involved a consideration of:

1. Whether there was a risk of irreparable harm;

2. The preservation of the status quo;

3. Prejudice to third parties;

4. The public interest including whether an undertaking as to damages was offered; and

5. Delay in the making of the application.

14. I will address each of these matters in turn.

Serious question to be tried?

15. In this case, the Applicant’s primary submission was that the injunction should be granted on the basis that the Grouting Work was being undertaken without a construction certificate where such a certificate was a legal precondition to the carrying out of those works.

16. The Applicant acknowledged that it was no part of its case in the substantive proceedings, either as originally formulated or as identified in its Amended Summons, that related to the need to obtain a construction certificate for the Grouting Work. During the course of submissions, the Applicant indicated that if the Court in hearing this application determined that a construction certificate was required (whether the injunction was granted or not) the Applicant would consider making a further amendment to its Summons to raise the issue in the substantive proceedings.

17. The First Respondent indicated that it wished for this issue to be determined finally in the Interlocutory Application by me so as to prevent the issue being raised and, thereby, requiring further argument in the substantive proceedings.

18. I do not consider that the determination of the question of whether a construction certificate is necessary to undertake the Grouting Work is relevant to a determination of whether there is a serious question to be tried. The question as posed in proceedings such as these is whether the legal or equitable rights to be determined in the substantive proceedings can be said to raise a serious question to be tried. In this case, as there is no part of the Applicant’s case that relates to the issue of whether a construction certificate is required for the Grouting Work the reliance upon these submissions does not assist at all in the determination of the relevant question and is not of assistance in the determination of the relevant consideration.

19. Further, to the extent that I was urged to finally determine the issue even if not relevant to the question of the Interlocutory Application I consider that such course is inappropriate on the grounds that:

1. The question does not arise in the proceedings and there is, therefore, no dispute for me to determine. To determine in the present context is akin to delivering judicial advice;

2. It is inappropriate to determine the question in the context of an urgent hearing when sitting as Duty Judge where a decision on all relevant matters is required to be produced as a matter of urgency. If the issue of the construction certificate was also considered it would require a determination of disputed questions of statutory construction and the application to facts where the assistance of clear and considered argument is unavailable. In the present urgent circumstances time does not permit a decision to be produced in the time required if this issue is to be determined; and

3. The Applicant has elected as late as the same day as the filing of the Interlocutory Application and the date on which it prepared written submissions traversing this question, not to raise the question in the proceedings as to whether a construction certificate is required for the Grouting Work and, therefore, reinforces the lack of utility in the determination of the question for the purposes of either the Interlocutory Application or the substantive hearing.

20. As to consideration of whether the substantive proceedings identify a serious question to be tried the Applicant made little submissions apart from the written submissions at [32]-[35] that stated (citations omitted):

32.   Taking relevant matters into consideration calls for more than simply adverting to them. Kiefel J (as her Honour then was) explained in Tickner v Chapman, “To “consider” is a word having a definite meaning in the judicial context.” Giles JA confirmed in Weal v Bathurst City Council, “There has to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.”

33.   The Panel’s reasons do not satisfy this requirement. Rather, they indicate the Panel failed to consider significant matters in the relevant legal sense. This was a failure to carry out the relevant statutory function according to law.

34.   The Panel’s reliance upon Subsidence Advisory NSW’s approval did not relieve the Panel of their obligation to consider all matters of relevance. Consistent with the decision in Weal v Bathurst City Council, the Panel’s consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters”. That did not occur here.

35.   It is clear that there are serious questions to be tried in this case.

21. Apart from summarising the Applicant’s case the Applicant did not seek, through reference to the evidence proposed to be adduced at the substantive hearing, to articulate the foundation for the case as pleaded. I accept that the issue of the consideration of a mandatory matter may be open to judicial review as to the extent to which a determining authority in fact “considered” the matter and whether the consideration undertaken conforms with such requirements. However, as is to be observed from the opening sentence of [32] of the Applicant’s submissions the Applicant focussed on “relevant matters” and has not identified the manner in which it is said that such “relevant consideration” is to be characterised as a mandatory relevant consideration. The defect complained of only has a legal or equitable consequence in the circumstances of this case if it is a mandatory relevant consideration.

22. The Applicant did, in the context of the balance of convenience, seek to draw inferences from a report of a Mr Piccolo that there were offsite impacts, and those impacts had the potential to be substantial.

23. The First Respondent submitted that the Applicant had failed to satisfy that there was a serious question to be tried in the substantive proceedings as the Applicant had not demonstrated that the asserted failure to take a factor into account was a mandatory consideration. The First Respondent submitted that as the consequences of the Grouting Work complained of related to potential offsite impacts it was necessary for the Applicant to establish that such impacts were likely in the sense of a real chance or possibility rather than more probable than not: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [8], in order that such a consideration fell to be considered as a mandatory consideration for the purposes of s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

24. The First Respondent contended that the Court could not be satisfied in the Interlocutory Application that there was a serious question to be tried as formulated in the substantive proceedings as:

1. No leave had been sought or granted to rely upon expert evidence in the substantive proceedings. Therefore, a reliance upon the report annexed to Mr Ryan’s affidavit of Mr Piccolo opining as to the potential for offsite impacts was not relevant.

2. Even if Mr Piccolo’s evidence was permitted to be tendered as expert evidence in the substantive proceedings it does not provide an evidentiary foundation for a finding that there is likely to be an adverse impact as a consequence of the Grouting Work. At best Mr Piccolo in his report:

1. Observed he had done no analysis himself but relied upon an assumption that a report of another author Dr Pells was accurate;

2. Was unaware that Dr Pells had himself in a joint report stated that the Grouting Work was appropriate and reasonable (Exhibit 3 page 1347); and

3. Neither Mr Piccolo nor Dr Pells had expressed an opinion sufficient to enable a finding of the asserted risk as comprising a real chance or possibility in the relevant sense.

25. The First Respondent submitted that the failure to establish that there was serious question to be tried was fatal to the Interlocutory Application.

26. On the basis of the case put before me in the Interlocutory Application I have real reservations as to whether the substantive proceedings reveal that there is a serious question to be tried. Neither the submissions, the evidence adduced, nor the case as pleaded in the Amended Summons, identifies the basis on which it is contended that the purported offsite impacts of the mine grouting are a mandatory relevant consideration. To the extent that this was explored before me, the Applicant has failed to meaningfully articulate a foundation for the claim that there was a real chance or possibility of the consequences relied upon. Namely, the potential for increased risk on buildings and infrastructure from a subsidence event if mine grouting beneath the Land was undertaken.

27. To the extent that the Applicant sought to rely upon the evidence of Mr Piccolo, such evidence is not part of the evidence to be adduced at the substantive proceedings. Even if leave were granted, it appears to be deficient in the necessary respect of: forming an opinion of the expert himself (as opposed to assuming the accuracy of the opinion of another expert); or, the expression of an opinion that addressed the required threshold of a real chance or possibility of such an impact occurring.

28. In the circumstances, taking all of the Applicant’s evidence and submissions at the highest I am not satisfied that the substantive proceedings disclose a serious question to be tried. As such the Interlocutory Application is fatally flawed and must be dismissed. However, I will also turn to consider the balance of convenience, notwithstanding that it is not strictly necessary.

Balance of convenience

Whether there is a risk of irreparable harm

29. The undisputed evidence is that some Grouting Work has been undertaken since 5 October 2022. This Interlocutory Application does not relate to those works. The Interlocutory Application seeks to prevent the continuation of the Grouting Work in the period between the present application and the hearing of the substantive proceedings, less than two weeks hence. The evidence before me is insufficient to establish what damage will be occasioned by the continuation of the Grouting Work for a further two-week period.

30. The Applicant submitted that it was primarily concerned with the Grouting Work in the Borehole Seam. The evidence is that as at the present date some 150 cubic metres of grout has been placed in that seam with a total estimated amount in excess of 20,000 cubic meters being required to fully attend to that seam. In the circumstances, I am not satisfied on the evidence before me that the continuation of the Grouting Work for a further two weeks will cause or risk irreparable harm.

The preservation of the status quo

31. The status quo in this case is twofold. First, the Applicant suggests that the Land is only grouted to a certain extent and that further grouting will alter the status quo. The Applicant relies upon the First Respondent’s Response to Summons wherein it contends that if the grouting is completed the proceedings will be of no utility. Secondly, the First Respondent at present has a development consent upon which it is entitled to act until such consent is declared invalid.

32. In considering the preservation of the status quo I take into account: the short period between the current application and the hearing date for the final hearing; the fact that the Grouting Work has been continuing since 5 October 2022; and the lack of evidence of irreversible harm. In those circumstances I consider that, on balance, the preservation of the First Respondent’s presently lawful entitlement to rely upon the consent as paramount, particularly, having regard to the factors relating to the delay in the bringing of the Interlocutory Application and the prejudice to third parties that I refer to below.

Prejudice to third parties

33. Mr Rosewarne deposed that the contractor engaged to carry out the Grouting Work is a small specialist firm. A delay of two weeks would require the contractor to incur costs in the order of $25,300 per day. Alternatively, there was a risk that the 11 workers presently employed on the Land would be stood down to avoid the continuing payment of wages during the period work was not being undertaken.

34. The retainer of the contractor was undertaken in circumstances where, as is indicated below, the Applicant had elected not to seek to restrain the carrying out of the Grouting Work pending determination of the substantive proceedings.

35. In the circumstances, I consider the prejudice to the third party and potentially the workers as being significant.

The public interest including whether an undertaking as to damages was offered

36. The Applicant declined to offer an undertaking as to damages on the basis that it was bringing the proceedings in the public interest. Both parties accepted that the failure to offer an undertaking as to damages was not, of itself, fatal to an application for interlocutory relief but was a factor to be taken into account in determining the balance of convenience.

37. The Applicant adduced evidence as to the nature of the Incorporated Association to support that it was a community group rather than a group intended to protect private interest.

38. The evidence also indicates that there are at least some office bearers that have a private interest in the outcome of the proceedings being the owners or occupiers of properties said to be potentially affected by the asserted offsite impacts of the development.

39. I make no final determination as to whether the proceedings are brought in the public interest. In the circumstances, this is a matter more appropriate for determination in the substantive proceedings. I consider it inappropriate on an interlocutory basis to make such a determination on the basis of the limited evidence available to me, which was prepared on short notice and largely limited to the office bearers as opposed to the membership of the association.

40. For the purpose of consideration of the balance of convenience, I am prepared to assume that the proceedings are brought in the public interest in the relevant sense. As such, it is appropriate that the Applicant’s failure to offer an undertaking as to damages is not a matter that would weigh against it in the consideration of the balance of convenience.

Delay in the making of the application

41. The Applicant submitted that there was no delay in the bringing of the Interlocutory Application and contended that it only became aware of the Grouting Work occurring on 20 January 2023. It was contended that prior to that time the Applicant was of the opinion that the Grouting Work could not commence until after all asbestos had been removed from the Land which would require all of the buildings to be demolished. As the buildings had not been demolished the Applicant assumed the Grouting Work had not commenced. It was said that such an assumption was made in reliance upon the express terms of the First Respondent’s construction management plan (CMP): Ms Doyle affidavit sworn 29 January 2023 at [12].

42. The evidence discloses an exchange of correspondence between the solicitors for the Applicant and the First Respondent, which correspondence is said was the first notice the Applicant had that the Grouting Work had commenced. That correspondence comprised:

1. The Applicant’s solicitor wrote to the First Respondent’s solicitor on 21 December 2022 in the following terms:

1.   I act for Hunter Community Forum Inc. in this matter.

2.   This is an informal request for information regarding the proposed schedule of grouting works (including drilling in preparation for the insertion of grouting).

3.   As you are aware the above matter is set down for hearing on 13, 14 and 15 February 2023. My client requested these early dates to maintain the utility of the proceedings and in an endeavour to avoid consideration of an injunction.

4.   The issue will continue after the hearing to the extent that the time between hearing dates and delivering judgement may also become a factor.

5.   In order that my client may be clear on your client's proposed scheduling of grouting (and inform the court if necessary) we would appreciate being informed of the intended scheduling of those works.

If you have questions arising from this correspondence please don't hesitate to contact me.

2. By response on 23 January 2023 the First Respondent’s solicitor replied, in terms:

1   We refer to your letter of 21 December 2022 informally requesting information about the schedule for grouting works, including drilling works in preparation for grouting. We also refer to the affidavit affirmed by Therese Doyle on 21 December 2022, touching on her knowledge of works on site.

2   As you know, the Hunter and Central Coast Regional Planning Panel determined to grant development consent for this project including grouting more than six months ago, on 7 July 2022. The publicly available materials submitted in support of the development application included a Construction Management Plan dated 20 January 2022 (refer to Exhibit DR-1, tab A). This plan recorded (at [5.04] and [5.09]) that drilling of boreholes for the Yard Seam would commence after site establishment and that it was anticipated that mines remediation works would take approximately 5 months to complete.

3   On 28 September 2022, our client arranged for a project update (refer to Exhibit DR-1, tab E) to be distributed to neighbouring properties within the shaded area of the map contained in Exhibit DR-1, tab F, which includes properties at which members of your client reside. As indicated in that update, our client has appointed Howard Construction and Earthmoving Pty Ltd (Howard Construction) for the completion of early works, including site establishment works that commenced on 16 September 2022, and grouting works then scheduled to "follow" and "be ongoing until later in the year". Members of your client have been observing works on site since about the time of the project update, as appears from the photographs included in Ms Doyle's affidavit (in Annexure C at p 8).

4   It is clear that your client has been on notice of works on site, including drilling and grouting works, for several months.

5   On 7 October 2022, about a week after that update was distributed, your client commenced this proceeding, challenging the development consent on grounds related to grouting. On 16 November 2022, more than a month later, your client requested an undertaking from our client that "no grouting, or drilling to facilitate grouting, will take place until judgment or further order, with liberty to apply on 3 days' notice". No cross-undertaking as to damages was proffered, and no information about the drilling or grouting works to date or scheduled was sought.

6   On 17 November 2022, we wrote that our client would not respond to any request for an undertaking unless your client offered a secured undertaking as to damages. On the same day, your client provided short minutes omitting any request for an undertaking, which became the basis for the later timetable directed by the Court (subject to changes that are not presently relevant).

7   Your informal request for information regarding the proposed schedule of grouting works was only sent on 21 December 2022 - almost three months after the project update and more than a month after your client decided not to press its request for an undertaking. By the time of this request, the court term had ended and works on site were ceasing for the year. In those circumstances, we communicated that we would only be in a position to respond from around 16 January 2023, as we now do.

8   We are instructed that drilling commenced on 5 October 2022, and that grout pumping commenced around early December. The grouting methodology has focused on the southern section of the site to allow the drilling and grouting works to be completed in this area, enabling the demolition contractor to follow. The Studio 1 building in the north of the site will remain until the end of the grouting works as it is being used to store material and manage the grouting in accordance with the approved development application.

9   We are also instructed that, as at today's date, the following works have been completed:

(a)   41 holes have been drilled to the Yard Seam;

(b)   Approximately 146 cubic metres of grout has been poured to the Yard Seam;

(c)   9 holes have been drilled to the Borehole Seam; and

(d)   Approximately 150 cubic metres of grout has been poured to the Borehole Seam.

10   We are informed that Howard Construction has ordered all grouting materials, and Tetra Tech Coffey is onsite investigating holes that have been drilled using sonar technology.

11   The best-case scenario for grouting works to be completed is by the end of April 2023, and the latest they are anticipated to be completed by is August 2023.

3. The Applicant’s solicitor further responded by letter dated 27 January 2023 in terms:

1.   I act for the Applicant in the above matter.

2.   I refer to your correspondence of 20 January 2023, responding to my request on 21 December 2022 for the "proposed scheduling of grouting works (including drilling in preparation for the insertion of grouting)."

3.   I note that your response of 20 January 2023:

a)   advised that grouting and drilling works have commenced on the Yard Seam and Borehole Seam, and "best-case scenario for grouting works to be completed is by the end of April 2023, and the latest they are anticipated to be completed by is August 2023."

b)   included an Amended Response to Summons dated 20 January 2023, which raised the issue of futility in light of the scheduled completion of the grouting works, stating [7](b): "even if any one or more of grounds 1 to 5 were upheld, there would be no useful purpose in the court granting any of the following relief after the completion of such works."

4.   In light of these factors, I am instructed to seek a formal undertaking from the First Respondent that no further grouting, or drilling to facilitate grouting, take place until the hearing of these proceedings concludes on 15 February 2023.

5.   The Applicant is unable to offer an undertaking as to damages. However, such an undertaking may not be required if proceedings have been brought in the public interest: LECR r 4.2(3).

6.   Please advise whether the First Respondent agrees to give the undertaking by 9am Friday 27 January 2023, failing which I will confirm instructions to seek an injunction that the First Respondent, by itself, its servants and agents, be restrained from carrying out any further grouting, or drilling to facilitate grouting, until further order.

If you have questions arising from this correspondence please don't hesitate to contact me.

4. A further response from the First Respondent’s solicitor dated 27 January 2023 stated:

We refer to our letter dated 20 January 2023 and your letter in response dated 25 January 2023. We note the short time provided for a response has included a public holiday.

As explained in our letter, your client has been on notice of works on the site, including drilling and grouting, for several months. In November 2022, more than a month after commencing this proceeding, your client requested an undertaking not to perform grouting or drilling until judgment but then withdrew that request in circumstances where our client required a secured undertaking as to damages before responding to such a request.

Since that time, our client has incurred significant expenses on works including grouting undertaken by third parties, as detailed in the affidavit of Mr David Rosewarne affirmed 20 January 2023. As anticipated, those works have continued in the three business days between our letter and your letter in response. Suspension of the works at this stage would disrupt the Grouting Strategy approved by Subsidence Advisory identified by Mr Rosewarne, to the significant prejudice of our client and the third parties engaged in the works.

Without addressing these matters, your letter now seeks an undertaking that no further grouting, or drilling to facilitate grouting, take place until the hearing of these proceedings concludes. In doing so, your letter asserts that the applicant is "unable" to offer an undertaking as to damages but provides no explanation as to why that is, how this proceeding is being funded, or the position of any members involved in the litigation. In these circumstances, our client remains unwilling to provide the undertaking requested, and that position is fortified by the circumstances since the last request.

We note your instructions to seek an injunction restraining our client from carrying out any further grouting, or drilling to facilitate grouting, until further order in the absence of an undertaking. Your letter does not articulate the grounds on which you are instructed to seek any injunction, let alone one extending beyond grouting in the Borehole Seam (the subject of the proceeding) to all grouting and indeed even drilling.

For the reasons set out in our response to your summons and arising from the evidence served on 20 January 2023, our client does not accept that your client has a sufficient likelihood of success in the proceedings to justify preservation of the status quo. In any event, the balance of convenience is overwhelmingly against the grant of any injunction, including in light of the refusal to provide any undertaking as to damages.

43. In the circumstances the Applicant submitted that there was no unreasonable delay.

44. The First Respondent disputes that there was no unreasonable delay. Additional evidence was adduced by the First Respondent that indicated:

1. A letterbox drop had occurred in September 2022 to properties neighbouring the Land which included advice that the Grouting Work would commence after site establishment works which were to commence on 16 September 2022;

2. The CMP had been uploaded to the Council’s DA tracker website on 29 September 2022;

3. On 19 October 2022, a person known as Gillian Sullivan, a member of the Applicant, was advised in response to a verbal enquiry by her of the contractor on the Site that certain earthworks were being undertaken to provide access for the “drill rig” and that the same person was advised orally on 3 November 2022 that the issue that was raised was nothing to do with the Grouting Work [being undertaken by him] and she should contact the Council;

4. On 19 October 2022, a publication appeared in the Newcastle Herald which included a photograph of and commentary by office bearers of the Applicant relating to the development and the substantive proceedings. In the text of that publication a representative of the First Respondent is quoted as saying:

It’s been approved, the JRPP [Joint Regional Planning Panel] approved it, the mine subsidence board has approved it and we’re grouting.

5. In addition, since October there has been present on the Land and visible:

1. A batching plant;

2. Loader;

3. Pump; and

4. Two drill rigs.

45. On that evidence, the First Respondent submits that it cannot be credibly accepted that the Applicant was not aware that the Grouting Work had commenced or, if that view was held, the holding of that view was unreasonable in the circumstances.

46. Having regard to the totality of the evidence I find that there has been an unreasonable delay in the bringing of the Interlocutory Application. From a reading of the CMP, it is clear that Grouting Work was not required to await the removal of the buildings, or the asbestos as contended by the Applicant. The Applicant read the CMP and it was otherwise available for public inspection on the Council website from September 2022. Further, the clear statements made to the local community by letterbox drop; and the Newcastle Herald publication made it apparent that the Grouting Work was being undertaken. Even a passing interest in the Land would have disclosed that work of the type associated with the Grouting Work was being undertaken. This fact is reinforced by the verbal enquiries made by a member of the Applicant who had made observation of site works and the verbal confirmation she received that the Grouting Work was commencing. On that basis, I find that even if the Applicant was initially of the opinion that the Grouting Work would await some earlier site works the retention of that opinion after October 2022 was not an opinion reasonably held.

47. The Applicant also contended that there was some understanding that the Grouting Work would not commence until after the substantive hearing due to the negotiations relating to the fixing of a hearing date. At the time of the fixing of the hearing date the Applicant sought an undertaking from the First Respondent that it would not act upon the Consent until after the hearing. The First Respondent indicated that it would not give such undertaking unless the Applicant proffered the usual undertaking as to damages. The Applicant declined but pressed for a hearing date and nominated the first available dates in March/April 2023. It was said that such represented an expedition of the proceedings. I reject this submission.

48. First, no application for expedition was sought or granted. The dates allocated were available in the usual course and were in the order of 5-6 months after commencement of the proceedings. If expedition was sought and granted, the Court could have listed the matter for hearing and determination at a much earlier date.

49. Second, the Applicant’s request for the undertaking and the rejection by the First Respondent should have put the Applicant on notice that there was a risk that the First Respondent would commence work in accordance with the Consent. It took no steps to seek an injunction from the Court in the face of the First Respondent’s failure to provide the undertaking sought.

50. For all of the reasons outlined above, I consider that the Applicant has delayed unreasonably in the bringing of the Interlocutory Application and that such delay has contributed to the creation of the factual situation it now relies upon to support the Interlocutory Application. With the hearing date a mere two weeks away, such delay speaks strongly against the balance of convenience in the granting of the interlocutory relief.

51. Taking into account all of the factors outlined above in relation to the balance of convenience, I find that it does not warrant the making of the relief sought. The proximity of the hearing, the prejudice to third parties and the delay in the bringing of the Interlocutory Application indicate that the balance of convenience lies in declining relief even on the assumption that the application is brought in the public interest.

Conclusion on Interlocutory Application

52. For the reasons outlined above, I find that the Notice of Motion must be dismissed as the Applicant has failed to demonstrate on the material before me that it has a serious question to be tried and that the balance of convenience warrants the refusal of relief. The Notice of Motion will therefore be dismissed.

Costs

53. In proceedings as these, such costs are usually on the basis that the successful party is entitled to an order for costs on the usual basis unless the circumstances indicate that another order as to costs should be made. I indicated to the parties that if the Interlocutory Application was dismissed, one option for a costs order would be that the costs of this Notice of Motion would be the First Respondent’s costs in the cause. The parties did not submit that such was not the appropriate order in the circumstances. In light of the Applicant’s assertion that it is bringing the proceedings in the public interest and that such a matter remains for determination in the substantive proceedings, I will so order.

Orders

54. The Court orders that:

1. The Applicant’s Notice of Motion filed on 30 January 2023 is dismissed;

2. The costs of the Notice of Motion is to be the First Respondent’s costs in the cause; and

3. The exhibits are returned. The parties are directed to collect the exhibits from my Associate within 7 days of the making of these orders.

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Decision last updated: 08 February 2023