Kennedy v Stockland Development Pty Ltd

[2010] NSWLEC 250

Land and Environment Court

of New South Wales

CITATION:

Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250

PARTIES:

APPLICANT
Roy Kennedy
FIRST RESPONDENT
Stockland Development Pty Ltd
SECOND RESPONDENT
Minister for Planning

FILE NUMBER(S):

40880 of 2010

CORAM:

Pain J

KEY ISSUES:

INTERLOCUTORY RELIEF :- whether interlocutory orders restraining excavation and vegetation clearing ought be made - whether serious question to be tried

LEGISLATION CITED:

Contaminated Land Management Act 1997
National Parks and Wildlife Act 1974 s 86
Protection of the Environment Operations Act 1997 s 116
SEPP (Major Development) Amendment (Sandon Point) 2009

CASES CITED:

Castlemaine Tooheys v State of South Australia [1986] HCA 58; (1986) 67 ALR 553 at 557

DATES OF HEARING:

26 November 2010
29 November 2010

 
DATE OF JUDGMENT: 

30 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)

FIRST RESPONDENT
Mr H El-Hage
SOLICITOR
Herbert Geer

SECOND RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 November 2010

40880 of 2010 Kennedy v Stockland Development Pty Ltd and the Minister for Planning

JUDGMENT

: The Applicant seeks urgent interlocutory injunction orders restraining the First Respondent in relation to work on a large residential subdivision at Sandon Point near Wollongong (the site). The First Respondent was granted development consent subject to conditions by the Minister for Planning as a major project under State Environmental Planning Policy (SEPP) (Major Development) Amendment (Sandon Point) 2009 on 29 November 2009. The orders sought are:

1. The Applicant moves for an urgent interlocutory order to restrain the First Respondent it’s [sic] employees, servants and contractors from undertaking any activity involving vegetation clearing, disturbance to soil, earthworks or movement of any item of Aboriginal heritage in the Riparian Zones of Woodlands and Hewitts Creeks as described in the map adopted for the State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009 until further order.
2. An urgent order restraining the First Respondent it’s [sic] employees, servants and contractors from undertaking any activity to remove any remaining vegetation within the development footprint until further order.
3. Any further order or direction the Court deems appropriate.
4. Costs of the Motion.

2 The areas the subject of prayers 1 and 2 are indicated on exhibit D. Prayer 1 refers to restraining work in the riparian zones of Woodlands and Hewitts Creeks. Prayer 2 is intended to restrain the clearing of strips of vegetation around several parts of the boundary of the site. The site was referred to in evidence as the AIR site. Construction certificates were issued on 8 September 2010 and 24 November 2010 as provided for in the major approvals consent.

3 Paragraph 7 of the Points of Claim (POC) states that the Applicant is an Aboriginal person of the Yuin Nation and spokesperson and ambassador for the Sandon Point Aboriginal Tent Embassy (SPATE). The Applicant was represented by his agent Mr Oshlack. The Minister has filed a submitting appearance.

4 The conditions of the major project approval include:

B13(2) Construction Management Plan
The site earthworks are to be staged and limited to a 5ha maximum area at any time to reduce exposed areas. Works are to be topsoiled and seeded immediately after completion to protect the exposed areas from water and wind erosion. The earthwork staging details are to be shown on the Construction Certificate.

B37(1) Detailed Design – Woodlands and Hewitts Creeks
Prior to the release of a Construction Certificate for works relating to Woodlands and Hewitts Creeks the following information must be submitted to and approved by the Department of planning including:
Detailed analysis of shear stresses and rock armour/rock sizing, using 2D dynamic modelling;
Detailing of the rock treatment construction; and
Establishment of stage vegetation management.

B45 Existing vegetation Plan
Every effort shall be made to retain significant existing vegetation on the site. A plan must be prepared which indicates existing vegetation to be retained and existing vegetation to be removed in consideration of the engineering works. This plan is to be submitted and approved by the CA prior to issuing a construction Certificate.

B 46 Tree Exclusion Zone
The erection of a suitable fence around all tree dripline areas is required for all trees capable of being retained with the site, prior to the commencement of any works, in order to preclude vehicular/pedestrian access impacts on such trees. Alternatively, the developer may implement one of the following options:
ensure that a minimum 350 mm layer of mulch is placed and maintained along the access route under the canopy of the tree for the entire period of construction; or
provide wooden slats to be secured over the mulch where the gradient or frequency of access prevents maintenance of the 350 mm depth of mulch.

Certification from a suitably qualified arborist stating that this condition has been complied with must be submitted to the CA prior to land clearing, excavation, and demolition and construction works being carried out.

B49 Riparian Zones
Riparian zones will be implemented in accordance with the Drawing SK41 ‘approved and Proposed Riparian Core/Buffer Zones’ (Cardno Forbes Rigby 5 July 2007). Planting in the riparian zones will be in accordance with the approved landscape Plan and Vegetation Management Plan for the site.

E22(b) Water Quality Monitoring
b) the Proponent shall undertake quarterly monitoring for total phosphorus, total nitrogen, total suspended solids and gross pollutants and provide monitoring reports to Council. The monitoring is to be undertaken by samples taken from the proposed ponds and wetlands and downstream at the boundary. The samples are to be compared against the default trigger pertaining to south-east Australia of slightly disturbed ecosystems in accordance with Table 3.3.2 and the ANZECC 2000 National Water Quality Guidelines. Management/ remedial action of further site-specific investigations should occur if the trigger values are exceeded – i.e. a ‘potential risk’ exists. These measures are to be to the satisfaction of the Council.

Evidence of the Applicant

5 The Applicant tendered two aerial images of the site produced by nearmap.com with date-stamping of 12 January 2010 and 1 September 2010 as exhibit A. Two construction certificates issued on 8 September 2010 and 24 November 2010 were tendered as exhibit C. A land zoning map of the site dated 11 June 2010 was tendered (exhibit D) and utilised to show the areas over which an injunction is sought. A report on acid sulphate soil assessment for the Stockland Development Pty Ltd Sandon Point North Estate prepared by Douglas Partners Pty Ltd (geotechnics, environment and groundwater consultants) dated August 2010 was tendered as exhibit E.

6 Extracts from the 1992 Australian and New Zealand Environment and Conservation Council (ANZECC) guideline on investigation levels for soil and groundwater (table 5-A soil investigation levels and table 5-B groundwater investigation levels) were tendered as exhibit F. The Sandon Point Aboriginal Place and Kuradji Lands vegetation management plan (VMP) prepared by Cumberland Flora and Fauna Interpretative Services for the Illawarra Local Aboriginal Land Council, Wollongong City Council (the Council) and Southern Rivers Catchment Management Authority dated April 2010 (including appendix A6 site 6 Hewitts Creek Environs VMP and appendix A7 site 7 North of Wilkes Walk Vicinity VMP) was tendered as exhibit G.

7 The Wollongong City Council Floodplain Risk Management Study & Plan for Hewitts Creek dated December 2002 was tendered as exhibit H. A water analysis report, identifying a single sample submitted to the Department of Industry and Investment Wollingbar Water Laboratories on 9 November 2010 by SPATE, was tendered as exhibit J. The Applicant tendered a bundle of documents including a soil analysis report by the ALS Laboratory Group (analytical chemistry and testing service) prepared for Wollongong City Council for the period 14 October 2010 to 25 October 2010 as exhibit K. Mr Oshlack states these documents were emailed to him and are documents otherwise to be produced by the Minister pursuant to a Notice to Produce. A bundle of documents was tendered as exhibit L. In a letter dated 30 December 1998 from a Council officer there is reference to 4500 tonnes of contaminated waste needing to be removed from the site as part of the quarry remediation plan.

8 Mr Oshlack read the affidavit of Roy “Dootch” Kennedy, on behalf of and as spokesperson for SPATE, affirmed 28 October 2010, stating that Aboriginal people (including himself) “use the creek for fishing we eat eels, prawns and harvest some of the plants and reeds for food and fibre”. He states his concern about the impact of pollution on these natural resources, and that he had instructed Mr Daniel Jones (SPATE technical assistant) on 11 October 2010 to have water samples tested and to inform Wollongong Council about the problem. He states that the “Aboriginal Place holds special reverence for all the Tribes and Families of the Illawarra down through the Yuin Nation and up to La Perouse and beyond because of the Kuradji Burial and many other significant Cultural Heritage sites on the land”. Mr Kennedy attests to his status as a traditional owner and his concerns about the impact of polluted water from the site impacting on the gazetted aboriginal place at Sandon Point.

9 The Applicant also relied on a statutory declaration of Daniel Russell Jones, technical officer, dated 29 November 2010 stating that he went to the Stockland development site at Sandon Point on 11 November 2010 and collected a water sample from Woodlands Creek at the area east of the drain pipe affecting Woodlands Creek. He states that the water sample kit was posted on 11 November 2010 and received by the Department of Industry and Investment Wollingbar Water Laboratories on 12 November 2010. The results of the water sample were emailed to Mr Jones on 19 November 2010.

10 A statutory declaration of Karen Jane Gough, media officer for SPATE, dated 29 November 2010 was read by the Applicant. Ms Gough states that she accompanied Mr Jones to Woodlands Creek on 11 November 2010 and directed Mr Jones to take a water sample from the stream of water flowing out from the piped section of the creek. She states that she observed clearing of the entire AIR site north of Woodlands Creek, and also observed that the whole area of Woodlands Creek had been excavated below and above the pipe section. Annexed to Ms Gough’s statement is an undated aerial image of the Sandon Point site marked with a cross to indicate the approximate water sample collection location.

11 An oral submission was made by the Applicant’s agent stating that the water sample collection date of 11 November 2010 referred to in the statements of Ms Gough and Mr Jones was in error. It was submitted, without further evidence, that the correct date was 9 November 2010.

First Respondent’s evidence

12 The First Respondent read an affidavit of James Richard Clouten, construction development manager of the First Repondent, affirmed 29 November 2010. Mr Clouten states that his chief responsibility is the management of construction works on the land known as the development site at Sandon Point formerly known as the AIR Site. Annexed to his affidavit is a nearmap.com aerial image dated 12 January 2010 which Mr Clouten says looks like the development site at the date of his first site inspection in July 2010. He states that work did not commence on the site until 8 September 2010 as there was no construction certificate prior to that date. He provides summaries of the site “day diary” records for activities conducted on the site for the period 8-10 September 2010 (including additional aerial images and dated supplier receipts as annexures to his affidavit) which include mowing and slashing undergrowth, soil and water management sediment control installation, and the slashing of some small scrubby trees. He states that an ecologist was engaged by the First Respondent to inspect trees being removed and for fauna.

13 The First Respondent also read an affidavit of Andrew Lau, an Environment Protection Authority accredited auditor with JBS Environmental Pty Ltd engaged by the First Respondent, affirmed 29 November 2010. Mr Lau states he has reviewed a one page water analysis report dated 19 November 2010 provided by the Applicant, and considers the data contained in it could not be relied on for any purpose for the following reasons:

a. The sample location is not provided. This, together with the omission of pH and conductivity, does not allow the selection of appropriate assessment criteria against which the data can be assessed. (He notes that within the Department of Environment (DECCW), Climate Change and Water testing guidelines, pursuant to the Contaminated Land Management Act 1997, there are a range of specific criteria from which data can be assessed depending on the nature of the receiving environment and the identified potential receptors).
b. The sample collection, preservation, handling, storage and transport details are not provided, so it is uncertain as to whether the sampling protocols were appropriate.
c. The actual sampling date is unknown. Whilst the report indicates that the sample was received by the laboratory on 9 November 2010 and analysed on 17 November 2010, the absence of chain of custody documentation means it is uncertain whether the sample was analysed within the required “holding times”. Samples analysed outside of maximum holding times can result in unreliable/inaccurate data.

14 He has also reviewed soil (sample date 21 October 2010) and water (sample date 19 October 2010) testing reports provided by Douglas Partners which indicate that the soil is suitable to remain on site, and all reported concentrations were within relevant DECCW criteria. The water analyses indicate that water quality in Hewitts Creek and Woodlands Creek has not been degraded, with comparable results reported both up and down the gradient of the works. Mr Lau also reviewed sediment data collected and reported by Wollongong City Council officers around 14 October 2010. The analytical results were reviewed and confirmed that Council’s statement that any sediment constituents were below National Health and Medical Research Council (NHMRC) Guidelines for residential land with gardens was consistent with the analytical results provided by the testing laboratory.

15 An affidavit of Michael Braithwaite, development manager of the First Respondent affirmed 24 November 2010, was tendered by the Applicant as exhibit B. Annexed to this affidavit are the approved concept plan for redevelopment of Sandon Point (Ministerial approval dated 21 December 2006), approval for determination of major project residential subdivision at Sandon Point (Ministerial approval 29 November 2009) and the recommended conditions of approval. Environmental assessment reports dated June 2006 and September 2007 are also annexed to the affidavit. Mr Braithwaite states that no works were conducted on the site prior to the issue of the construction certificate. He states that condition B13(2) of the conditions of approval limits site earthworks, but did not limit vegetation clearing. He states that any works carried out on the site have been consistent with the conditions of approval.

16 A further affidavit of Mr Braithwaite, affirmed 29 November 2010, provides details of site works on 11 September 2010 in preparation for a sales exhibition event to be held at the site on 11-12 September 2010. He states that a total of 70 lots (from a total of 74 available lots) on the AIR site are under contract. Four lots are currently available for purchase. Any further delays in completion of works results in lost sales of an average of $430,000 per lot. By December 2010 90 lots are anticipated to be sold which would give rise to a potential loss of $38.7 million revenue to the project.

17 Mr Braithwaite gave oral evidence that the AIR site was purchased in 1999 when it was then owned by BHP. The site had to be remediated by BHP as part of the conditions of sale and site audit clearance certification was provided that it was free of contamination and capable of residential use. The site was then in disrepair and 100% cleared with extensive earthworks having taken place over the site. There was significant uncontrolled fill across the site including where residential development was proposed. BHP operated on the site for decades. The major project approval allows broadly two types of work, firstly the construction of allotments, and secondly the recreation of riparian zones. Woodlands Creek was piped for large sections by BHP across three quarters to the eastern boundary when it enters a formed channel. The conditions of consent require rehabilitation and installation of rock gabions and widening of the creek bed to 40 to 80m wide to create creek banks which will require significant earthworks. The pipe will be ripped up from Woodlands Creek and excavated to create creek banks. Significant replanting is then required with plants from the local area.

18 Mr Braithwaite was cross-examined by Mr Oshlack in relation to work done on the site. He confirmed that no work was commenced before 8 September 2010 on the road to the marquee shown in the September 2010 nearmap.com photograph. The stockpile shown in the north of the site has been there for some time and is probably revealed in the September 2010 photograph because the grass has been mown revealing the surface of the site. A number of pre-existing long standing stockpiles are revealed across the site. These have been there for the eight years he has worked for the company. There has been clearing of vegetation in the northern area of the site since 8 September 2010. He did not personally arrange the clearing in the presence of the ecologist referred to in par 15 of his affidavit. Excavation works commenced on 8 September 2010 in accordance with the 5ha requirement in condition B13 and up to 3.85ha has been excavated as measured by survey. Vegetation removal has occurred across a wider area, also in accordance with the consent. Nothing has been done to the existing stockpiles except some have been added to where soil has been moved. The First Respondent has undertaken three water samples of pH and suspended solids. No testing of polyaromatic hydrocarbons (PAHs) or heavy metals has been undertaken.

19 The First Respondent tendered an invoice for catering and party hire requisites (marquee, furniture and incidentals) for 11 September 2010 as exhibit 1. Licence details (accessed and printed 28 November 2010) from the internet homepage of nearmap.com were tendered as exhibit 2. This includes a disclaimer in relation to the date which appears on nearmap.com photographs. Drawing number SK41 titled Approved & Proposed Riparian Core/Buffer Zones was tendered as exhibit 3. This was one of the plans approved as part of the major project approval. Email communications between the First Respondent’s solicitor and a representative of nearmap.com for 28-29 November 2010 identifying the (in)accuracy of image date-stamping of an aerial photomap of the Sandon Point site were tendered as exhibit 4. I also allowed the tender by the First Respondent of an email from an employee at nearmap.com which states that the date of the photograph was between 12 and 15 September 2010.

Applicant’s submissions

20 The Applicant’s agent relies on some paragraphs of the POC which in turn refer to some of the major approval conditions of consent to support its application in particular:

a. par 34 POC alleges that work has been undertaken without a valid construction certificate being issued in breach of condition B of approval. As the first construction certificate was issued on 8 September 2010 and extensive clearing was undertaken on the site by the First Respondent between January 2010 and 1 September 2010 according to the two aerial photographs tendered, then that work was done illegally
b. par 35 POC alleges that clearing and excavating of the site without staging works or limiting work to a 5ha maximum at any time required by condition B13(2) has been breached as a large area has been cleared and is devoid of vegetation. This is attested to by Ms Gough in the declaration and can be seen in the two aerial photographs.
c. par 39 POC alleges a breach of condition B37(1) of the approval by clearing the Woodlands Creek riparian zone prior to the Second Respondent approving the three types of information specified in that condition.
d. par 42 POC alleges a breach of s 116 of the Protection of the Environment Operations Act 1997 (the POEO Act) by the First Respondent causing discharge of polluted water from the site as a result of the excavation and clearing work being undertaken.
g. par 43 POC alleges that the discharge of polluted water is causing harm and desecration to the Sandon Point Aboriginal place in breach of s 86(4) of the National Parks and Wildlife Act 1974.

21 The Kuradji Lands VMP prepared in April 2010, tendered in part in relation to Hewitts Creek (site 6) and Woodlands Creek (site 7) was relied on by the Applicant to emphasise the importance of the vegetation on the site.

22 The letter from the Council officer dated 30 December 1998 refers to the large amount of contaminated waste, 4500 tonnes, that had to be removed from the site. The Hewitts Creek Floodplain Risk Management Study was relied on in part by the Applicant largely to underpin a submission that this area is highly flood prone, contaminated by heavy metals and PAHs and therefore clearing would exacerbate polluted water travelling off the site. There is polluted water escaping from the site which is impacting on the Applicant as a traditional owner as attested to in his affidavit.

23 The Applicant relied on the results of a water sample taken from Woodlands Creek by Mr Jones, see statutory declaration of Mr Jones who took the sample and of Ms Gough who posted the sample. This shows greatly elevated levels of aluminium, chromium, iron, lead, manganese and zinc. When compared to the 1992 ANZECC guidelines the Applicant’s agent submitted the levels were generally very high. No licence has been issued under the POEO Act authorising this discharge from the site.

24 According to the Applicant’s agent the amount shown in the table of data prepared by ALS shows a total level of PAH of 10.5 whereas the Council officer identified only 5.3 in an email summarising the results. This is not a negligible level of PAH, although below the trigger level of 20 requiring action identified in the ANZECC guidelines. The First Respondent’s counsel identified that the relevant data was located in a different part of the ALS report and was accurately reflected in the email summarising the test results by a Council officer. Mr Oshlack accepted this was the case but maintained his submission that while the testing undertaken at the Council’s request by ALS is within ANZECC guidelines the levels are nevertheless indicative of contamination on the site.

25 Little weight should be given to Mr Lau’s affidavit evidence as he does not annexe the data to which he refers. Nor does his criticism of the Applicant’s water sampling data take into account the statement of Ms Gough and Mr Jones as to where the testing was conducted. (I note these statements were not available to the First Respondent until after morning tea on the second hearing day after Mr Lau’s affidavit was sworn).

26 The Douglas Partners report identifies finding acid sulphate soil at one point in Hewitts Creek (p 7) which if excavated would give rise to potential contamination from this source.

27 The Applicant is prepared to give the necessary undertaking as to damages.

First Respondent’s submissions

28 The 1 September 2010 date of the nearmap.com aerial photograph is incorrect. Mr Braithwaite attests to the presence of the marquee in the photograph which was erected on 11 September 2010 and removed on 13 September 2010. Mr Clouton’s evidence supports this evidence. His evidence is that on-site work commenced on 8 September 2010, confirmed by diary entries on those days. Exhibit 1 is the invoice for the marquee hire for 11 September 2010.

29 In relation to vegetation removal, there is no evidence that any removal is unlawful. The evidence of Mr Braithwaite is that condition B13(2) is being complied with in relation to the 5ha limit, with 3.85ha being excavated at present. That limitation does not apply to the clearing of vegetation.

30 In relation to the allegation of polluted water being released from the site the report of Douglas Partners attests to pH testing (p 2) which is identified as elevated but within the limit set by the relevant criteria. Mr Lau refers to this in his report at par 9. The soil testing undertaken by ALS for the Council shows that those levels tested are well within the relevant ANZECC guidelines. The relevant criteria are not those referred to in exhibit F tendered by the Applicant’s agent which are the 1992 ANZECC guidelines but those referred to in condition E22(b) of the consent which refers to the ANZECC 2000 National Water Quality Guidelines. Ms Gough refers to sampling the water from the piped section of Woodlands Creek, which transports water from a place upstream of the site not water from the AIR site. The report based on that sampling is inherently unreliable for the other reasons stated by Mr Lau.

Finding

31 The principles the Court should apply in relation to interlocutory injunction applications are identified in Castlemaine Tooheysv State of South Australia [1986] HCA 58; (1986) 67 ALR 553 at 557. An applicant for such an injunction must show that there is a serious question to be tried or that there is a prima facie case, that damages are an insufficient remedy for the irreparable injury caused and whether the balance of convenience favours an injunction being issued.

32 I will first consider whether there is a serious question to be tried. The Applicant has not established that there was any illegal work undertaken before the construction certificate was issued on 8 September 2010. The evidence of Mr Braithwaite and Mr Clauson and supporting documents such as invoices for the marquee relied on by the First Respondent establish that work to implement the major project approval did not commence until after the construction certificate was issued on 8 September 2010. The date of 1 September 2010 on the nearmap.com aerial photograph appears incorrect. It shows the marquee, and the evidence is that the marquee was erected after that date. This view is confirmed by the email from nearmap.com which I allowed the First Respondent to tender which suggests the correct date is on or after 12 September 2010. Ms Gough stated that she saw the AIR site had been cleared and that there was excavation of the Woodlands Creek area on 11 September 2010 which Mr Oshlack submitted from the bar table was on 9 September 2010. Either of these dates is after the issue of the construction certificate on 8 September 2010, suggesting that any work undertaken was authorised.

33 In relation to whether there has been illegal clearing of vegetation, there is no evidence of this. The unchallenged evidence of Mr Braithwaite is that condition B13(2) limiting excavation to 5 ha in area at any time is being complied with. That condition does not apply to vegetation clearing, as can be seen from its terms. That there is additionally vegetation clearance in other areas of the site has not been shown in any evidence as not being in accordance with the terms of the major approvals consent. Those conditions include condition B49 which requires implementation of a plan for the recreation of the riparian zones along the Woodlands and Hewitts Creek areas in accordance with SK 41 (tendered by the First Respondent). Implementing this plan requires the removal of vegetation, removal of the pipe along much of Woodlands Creek, excavation to create wider creek beds and extensive replanting of these zones, according to Mr Braithwaite’s oral evidence. The consent allows for vegetation clearing to achieve these goals.

34 These findings mean that no breach of conditions B13(2), B45 or B46 have been established. No evidence was tendered in relation to the alleged breach of condition 37(1). While raised in opening submissions by Mr Oshlack that condition was not mentioned again. I am not in a position to make any preliminary finding on whether there is a breach of that condition.

35 It is an important consideration for this application that there is no demonstrated breach of the development consent conditions by the First Respondent. The major approval consent granted to the First Respondent provides authority to build in accordance with a large number of plans specified in the conditions of approval. The Applicant’s reliance on the Hewitts Creek Floodplain Risk Management Study 2002 prepared for the Council does not suggest that there is any relevant breach of the conditions of consent. The same point can be made in relation to the Kuradji lands vegetation management plan also tendered by the Applicant. Referring to the large amount of contaminated waste that had to be removed as part of the quarry remediation process as identified in the Council’s letter dated 30 December 1998 does not establish that the AIR site is contaminated now. Mr Braithwaite referred in oral evidence to the requirement on BHP, the previous owner, to clean up the site before the First Respondent took possession. His evidence is that the site had to be made acceptable for residential development and the required site certification documents were provided.

36 The issue of whether polluted water is escaping from the site in breach of s 116 of the POEO Act and s 86 of the National Parks and Wildlife Act 1974 is also raised by the Applicant. The testing by Douglas Partners for the First Respondent and ALS for the Council of soil and/or water shows that levels of chemicals and other matter in the water and soil tested are within the relevant ANZECC guideline limits of acceptability. It is not fair to characterise this evidence as indicative of contamination as the Applicant’s agent otherwise does. The Applicant’s agent relies on the single sample taken by Mr Jones from the end of a pipe along Woodlands Creek as showing that there are elevated levels of heavy metals and PAHs in the water coming from the site. The Applicant submits that this results from the excavation and clearing by the First Respondent of the AIR site. The uncontested evidence of Mr Braithwaite is that the pipe from the end of which the sample was taken commences off the AIR site and therefore carries water onto the site from elsewhere. This suggests that the water tested was unlikely to be generated by the First Respondent’s activity on the AIR site.

37 Further, Mr Lau criticised the sampling process of that single sample on numerous bases, including that the location and timing of the sample was unknown. Some of that criticism is overcome by the statements of Ms Gough and Mr Jones, leaving aside the uncertainty of whether the sample was taken on 9 or 11 September 2010 which statements were not available to Mr Lau in time. His other criticisms of the sampling process set out above in par 13 are not all met by the Applicant’s evidence. There is no evidence of water quality below the AIR site to confirm the Applicant’s agent’s submission that there are downstream impacts. I am not prepared to find on a preliminary basis on the available evidence that there is a serious question arising of whether the First Respondent is causing polluted water to escape from the AIR site.

38 The Applicant has failed to satisfy me that there is a serious question to be tried. As that is a threshold issue which has not been satisfied, it is unnecessary that I make any finding in relation to the other matters identified in Castlemaine.

39 The Applicant’s application for urgent interlocutory orders sought in the Notice of Motion dated 26 November 2010 is dismissed. The question of costs of the Applicant’s motion also needs to be resolved.