Kiama Municipal Council v Cleary Bros Transport Pty Limited
[1988] NSWLEC 12
•08/25/1988
Land and Environment Court
of New South Wales
CITATION: Kiama Municipal Council v Cleary Bros Transport Pty Limited [1988] NSWLEC 12 PARTIES: APPLICANT
Kiama Municipal CouncilRESPONDENT
Cleary Bros Transport Pty LimitedFILE NUMBER(S): 40140 of 1987 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kiama Local Environmental PlanCASES CITED: Baulkham Hills Shire Council v. O'Donnell (1987);
Fraser v. Evans (1969);
Baulkham Hills Shire Council v. Kittler (1985);
Hubbard v. Vosper (1972);
Ashburton Oil No Liability v. Alpha Minerals No Liability (1971);
Smith v. Day (1882);
North Sydney Municipal Council v. Eebstein (1985)DATES OF HEARING: DATE OF JUDGMENT:
08/25/1988LEGAL REPRESENTATIVES:
JUDGMENT:
Bignold J.: On 6th July, 1988 the Applicant commenced class 4 proceedings claiming declaratory and injunctive relief against the Respondent's use for the purpose of an extractive industry of land situate at Gerroa known as Portion 258 Parish of Broughton.
In its application the Applicant claimed the following interlocutory relief:-
"An order that the Respondent by itself its servants and agents be restrained from using Portion 258 for the purpose of an extractive industry without the prior approval of the Applicant and any other relevant authorities."
On the hearing of the application for interlocutory relief affidavits filed by each party have been read without cross-examination of the deponents. In support of its claim the Applicant has offered the usual undertaking as to damages.
It is clear from the affidavit material that there is a real and substantial factual dispute as to whether a section of Portion 258 located in its south-eastern corner and containing the present sand extraction working pit or area was used for the purpose of sand extraction at various relevant times, including the period prior to the introduction of town planning control to the Municipality of Kiama. The determination of this factual dispute is likely to prove decisive to the question whether the Respondent's current sand extraction use of the subject land has the benefit of s.109 of the Environmental Planning and Assessment Act 1979. If the Respondent is ultimately to succeed on this issue a further question is likely to be raised concerning the limitations on any right conferred by s.109(1) operating by virtue of s.109(2). These are similar questions to those decided in Baulkham Hills Shire Council v. O'Donnell (1987) 62 LGRA 7.
On the material relied upon by the Applicant at the hearing it appears that Portion 258 is zoned Rural 1(a) under Kiama Local Environmental Plan No. 5 and that within that zone development for the purposes of "extractive industries for the winning of sand, clay, soil or turf" is development that may not be carried out except with consent of the Respondent, that the Respondent's aforesaid use is development for the aforesaid purpose (winning of sand) and that no relevant development consent has been granted under the Environmental Planning and Assessment Act 1979.
However as I have stated the affidavit material indicates that the Respondent will seek to invoke the protection accorded by s.109 of the Act.
It appears that the Applicant when it was investigating the case prior to commencing the class 4 proceedings acknowledged the possibility of an "existing use" issue being raised by the Respondent. Moreover it appears that in those investigations the Applicant mistakenly believed that town planning controls began to operate in the Municipality of Kiama only when the Kiama Planning Scheme took effect on 7th March, 1969. However at the hearing the Applicant's case was that in fact town planning controls in Kiama Municipality commenced on 14th October, 1960.
It would appear that a consequence of this apparent fact is that if the Respondent is to successfully invoke s.109 it will be necessary for it to establish that the use for sand extraction of the relevant section of Portion 258 either preceded 14th October, 1960 or was permitted under the provisions of The Town and Country Planning (General Interim Development) Ordinance that were applicable during the period 14th October, 1960 to 7th March, 1969.
The affidavits relied upon by the Respondent contain material that indicates that a section of Portion 258 generally in the location of the existing pit was used for sand extraction in the 1950s. The affidavits relied upon by the Applicant would appear to dispute this proposition. These are the affidavits of the adjoining property owner and the affidavit of the son of the former owner of the subject land who sold his interest to a member of the Cleary family in 1966.
At this stage it is not possible to be definite in evaluating the particular strengths and weaknesses of the Applicant's case that the Respondent's use constitutes a breach of the Environmental Planning and Assessment Act and of the Respondent's defence based upon s.109(1). The relative positions of the parties in respect of the further question concerning the operation of s.109(2) likely to be in dispute between the parties, in the event of the Respondent successfully invoking the protection of s.109(1), also, at this early stage are not susceptible of definite evaluation.
In proceedings where interlocutory relief is sought in aid of the civil enforcement of the Environmental Planning and Assessment Act 1979 it is customary for the Court to consider the case by reference to two considerations namely (i) whether the Applicant has demonstrated that its claim raises a serious question (to be tried) and (ii) where the balance of convenience between the parties lies. These specific considerations derive from the broad basis of the Court's discretion in granting or declining an interlocutory injunction which I have previously described in Baulkham Hills Shire Council v. Kittler (unreported 24th December, 1985) by adopting the words of Lord Denning MR in Hubbard v. Vosper (1972) 2 QB 84 in the following terms:-
"............ In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. For instance, in Fraser v. Evans (1969) 1 QB 349, although the plaintiff owned the copyright, we did not grant an injunction, because the defendant might have a defence of fair dealing. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."
As will be apparent from what I have already said the Applicant's claim to permanent relief obviously raises a serious question to be tried. However it is not possible at this stage to judge the relative strengths and weaknesses of the Applicant's claim and of the Respondent's defence based upon s.109. On the material thus far adduced the respective positions of the parties appear to me to be evenly balanced.
I come then to consider the balance of convenience, which involves a consideration of the question whether the "inconvenience or injury which the Applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the inconvenience or injury the Respondent would suffer if an injunction were granted" (Ashburton Oil No Liability v. Alpha Minerals No Liability (1971) 123 CLR 614 at p.644 per Gibbs J.) recognising however that in these proceedings the Applicant in seeking the enforcement of the Environmental Planning and Assessment Act 1979 is acting in the public interest and that the equitable concept of 'balance of convenience' must be modified to accommodate the significant additional dimension of public interest cf. Commercial Bank of Australia v. Insurance Brokers Association of Australia (1977) 16 ALR 161 and see generally my discussion of this subject in Ellison v. Warringah Shire Council 55 LGRA 1. However in the present case, as in Ellison, it is possible to identify an eleme
nt of public interest that countervails the public interest sought to be advanced by the Applicant in the enforcement of the Environmental Planning and Assessment Act, namely the public interest in according full force and effect to rights such as those conferred by ss.106-109 of the Act. Stated more precisely in recognising the public interest in the proper enforcement of the Environmental Planning and Assessment Act it is also important to recognise the rights conferred by that Act. In the present case there is thus a need to harmonise ss.76(2), 109 and 123 of the Act.
Thus to say in a case such as the present, where it appears that the Respondent is genuinely attempting to invoke the protection of s.109, that the Applicant is advancing the public interest in enforcing the Environmental Planning and Assessment Act by proceeding for injunction against the Respondent is to risk distortion because the Applicant will only in truth be promoting the public interest in enforcing the Act against the Respondent if it ultimately succeeds in its application and the Respondent fails to invoke the protection accorded by s.109.
Having established the true nature of the public interest raised by the case (or alternatively stated that the case appears to involve countervailing public interests, at this stage in a state of equilibrium) it is appropriate to return to the question of the balance of convenience in its ordinary connotation. In this respect it may be helpful to recall what I said in Ellison (p.8) concerning the purpose of an interlocutory injunction:-
"The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action: Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 2nd ed. par. 2166; cf Spry, Equitable Remedies, 3rd ed. at 436-440. The reason for preserving the status quo is to avoid "the possibility that, without an interlocutory injunction, the right which the plaintiff seeks to vindicate might be destroyed, or substantially impaired, between the issue of the initiating process and the final determination of the proceedings": Meagher, Gummow and Lehane, par. 2166. As Cotton LJ in Preston v. Luck (1884) 27 ChD 497 stated (at 505):-
"This is an application for an interlocutory injunction, the object of which is to keep things in status quo, so that if at the hearing the plaintiffs obtain a judgment in their favour, the defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual"."
What then is the injury that will be sustained by the Applicant if the interlocutory injunction is refused? It does not assert any specific injury. There is of course the general public detriment of the planning laws not being observed - see North Sydney Municipal Council v. Eebstein (1985) 54 LGRA 440. However pending the final determination of the question whether the Respondent is entitled to the protection of s.109 it would be neither accurate nor proper to assert or to hold that the Respondent"s current use of Portion 258 for sand extraction is in breach of the planning laws. Thus at this stage no public harm is asserted by the Applicant.
Moreover in respect of the Respondent's current use the Applicant has not asserted any specific environmental harm.
It is true that the neighbouring property owners (who appear to have complained to the Applicant concerning the Respondent's current activity on Portion 258) have deposed to hearing from their home (some distance removed) the sound of machines extracting the sand. However it is not claimed that that noise constitutes a nuisance, public or private and on the material before me I do not infer this to be the case. The same persons had their Solicitors write to the Applicant on 12th September, 1986 complaining about the Respondent's clearing of a section of the wooded south-eastern corner of Portion 258 (wherein is located the current excavation or working sand pit) and asking the Applicant to ensure that "the remaining rain forest not be cleared". (The evidence does not indicate what, if any, response was given by the Applicant to this complaint).
Moreover in view of certain undertakings (hereinafter mentioned) offerred to the Court on behalf of the Respondent regulating and confining its use of the subject land for the purpose of sand extraction it is not likely that any environmental harm will be caused in the future pending the trial of the case. One of the undertakings is not to expand laterally the working area of the current pit.
In this respect I should note that according to the affidavit material relied upon by the Respondent large volumes of sand have already been extracted from the pit on the subject land in the years 1984, 1985, 1986, 1987 and to July this year are as follows:-
1984 - 23,438 tonnes
1985 - 22,849 tonnes
1986 - 16,222 tonnes
1987 - 19,705 tonnes
1988
(January
to
July) - 19,129 tonnes
Turning to the injury or inconvenience likely to be suffered by the Respondent if an injunction is granted the Respondent's affidavit material indicates that substantial financial disadvantage will be incurred by virtue of the Respondent having to purchase fill sand (which is the type of sand being extracted from the subject land) from competitors in order for it to discharge its obligations under current contracts. It is also deposed by the Respondent's Accountant that 3 employees of the Respondent who are engaged in full time work at the subject land will lose their employment if the injunction is granted.
It may be accepted that much of the financial disadvantage likely to be suffered by the Respondent in the event of an injunction being granted would be mitigated or compensated by the enforcement of the Applicant's undertaking as to damages because the assessment of damages payable pursuant to such an undertaking is as was stated by Lord Diplock in Hoffman-La Roche & Co. v. Secretary of State for Trade and Industry (1975) AC 295 at p.361 "made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction: see Smith v. Day (1882) 21 CLD 421 per Brett LJ at p.427". However it may be that this will not result in a full indemnity of the Respondent's financial loss and it is not likely to avert the termination of the employment of the 3 employees working at the pit on the subject
land.
It follows from the foregoing assessment that the inconvenience and injury likely to be suffered by the Respondent in the event of an injunction being granted outweighs the inconvenience and injury likely to be sufferred by the Applicant in the event of a injunction not being granted.
Having regard to all of the circumstances of the case and on the material placed before me at the hearing I am of the opinion that justice will be done in this case by exercising my discretion to refuse to grant the interlocutory injunction.
Accordingly I make the following orders:-
1. On the undertaking of the Respondent given to the Court that the Respondent in the use of Portion 258 Parish of Broughton shall strictly observe the following operational conditions:-
(i). no further trees shall be removed or excavated from the subject land;
(ii).no further lateral extension of the sand pit (as it exists) shall be undertaken;
(iii). truck loads of sand removed from the subject land shall not exceed 1800 tonnes per month (on average) and shall not exceed 1900 tonnes in any one month;
(iv). hours of operation shall be limited to 7am to 5pm Monday to Friday.
the application for interlocutory injunction be dismissed.
2. Exhibits may be returned.
3. Question of costs be reserved.
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