Lester v Minister for Planning
[2011] NSWLEC 178
•12 October 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Lester v Minister for Planning [2011] NSWLEC 178 Hearing dates: 12 October 2011 Decision date: 12 October 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Interlocutory undertaking and injunction recorded in paragraph 25
Catchwords: INJUNCTIONS:- interlocutory injunction and undertaking to restrain work pending determination of claim that development consent invalid - discretionary considerations including the Applicant's delay in commencing proceedings and further delay in seeking injunction - whether interlocutory injunction should be granted on balance of convenience. Legislation Cited: Environmental Planning and Assessment Act 1979
National Parks and Wildlife Act 1974 s 90Cases Cited: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249
Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155Category: Interlocutory applications Parties: Robert Lester (Applicant)
Minister for Planning (First Respondent)
Ashton Coal Operations Pty Ltd (Second Respondent)Representation: Mr A Oshlack, agent (Applicant)
Ms V M Bosnjak (First Respondent)
Mr T Howard (Second Respondent)
Department of Planning and Infrastructure (First Respondent)
McCullough Robertson (Second Respondent)
File Number(s): 40840 of 2011
EX TEMPORE Judgment
This is a motion by the applicant for interlocutory injunctions against the second respondent.
By summons filed on 15 September 2011 the applicant, Robert Lester, claims the following relief against the first respondent, the Minister for Planning ( Minister ), and the second respondent, Ashton Coal Mining Operations Pty Ltd ( Ashton ):
1. A declaration that DA 309-11-2001 Mod 7, consented to [sic] the First Respondent on the 15 th of June, 2011 to the Second Respondent on land within Mining Lease ML 1533 described as Lot 3 1114623 and Lot 2 1089848 ("The Land") is invalid void and of no effect insofar as it allows the construction and operation of 15 gas venting wells on the surface of the land above the underground mine.
2. An order restraining the First Respondent from carrying out any work which includes land clearance and construction of related infrastructure for the gas venting wells on, within and below the land which seeks reliance on the authority of the determination.
3. An order granting access for the Applicant and his archaeological and mining experts onto the land for the legitimate forensic purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, of the extent of work and consequential impact on Aboriginal sites by the activities of the First Respondent.
The summons was returnable on 7 October 2011. A notice of motion was filed and served that day in which the applicant seeks interlocutory injunctions in terms of paragraphs 2 and 3 of the summons. I have heard the motion today. Any interlocutory injunction would be for less than three weeks because the final hearing is to be expedited to 1 November 2011.
Ashton offers the following interlocutory undertaking:
The second respondent undertakes to the Court not to carry out works for the purpose of the construction of any new surface gas well (including any land clearing for any such purpose) in reliance on Modification No 7, granted on 15 June 2011 to DA 309-11-201 for the period until 4.00 pm on 1 November 2011.
The applicant seeks a supplementary interlocutory injunction until 1 November 2011: see [13] below.
In light of the undertaking offered by Ashton, and without any admission by the respondents, the parties were content for the Court to proceed on the assumption that there was a serious question to be tried and to determine the residual question of the additional interlocutory injunction sought by the applicant on the balance of convenience.
BACKGROUND
It is necessary to say something briefly about the background to the matter.
Ashton operates underground and open cut coal mining operations in the Camberwell district about 14 kilometres north-west of Singleton in the upper Hunter Valley. The operations are conducted subject to a development consent granted in 2002 under the Environmental Planning and Assessment Act 1979 ( EPA Act ).
The Minister has approved a number of modifications to the 2002 consent under Pt 3A of the EPA Act. The latest is the June 2011 modification the subject of these proceedings ( Modification 7 ) insofar as it allows the construction and operation of 15 gas venting wells on the subject land.
On 25 August 2011 two Commissioners of this Court granted an Aboriginal Heritage Impact Permit ( AHIP ) under s 90 of the National Parks and Wildlife Act 1974 to Ashton in relation to proposed works including gas wells on the subject land: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249.
There is a relevant nexus between the AHIP and Modification 7. Attachment 2 of the AHIP provides for the salvage of Aboriginal objects:. Aboriginal objects may only be damaged where damage is incidental to the carrying out of the proposed works, grader scrapes and subsidence and where the conditions of the AHIP have been complied with: Condition 14. Under the AHIP Ashton is responsible for obtaining and complying with all approvals necessary to lawfully carry out the work referred to in the AHIP. If Modification 7 is invalid to the extent alleged, it may be that the related work under the AHIP could not lawfully be carried out.
On 29 August 2011 the Court refused Mr Lester's application for a stay of the Commissioners' orders: Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155.
The applicant now seeks an interlocutory injunction until 1 November 2011 that Ashton not carry out salvage work under the AHIP for the purpose of construction of the new surface gas wells under Modification 7. The applicant is said to be an Aboriginal person with special interest in avoiding disturbance of Aboriginal heritage objects.
DISCUSSION
Ashton opposes the supplementary interlocutory injunction sought by the applicant on two main grounds:
(a) the salvage work permitted under the AHIP has to be done generally throughout the site for a number of purposes not limited to the purpose of construction of the new gas wells under Modification 7. Therefore, even if the applicant were successful in these proceedings, Ashton would still be entitled to carry out salvage work under the AHIP for other purposes generally throughout the site; and
(b) there has been delay by the applicant in commencing these proceedings for some three months and further delay of some weeks in pressing for interlocutory injunctions.
The applicant does not concede that the first submission made by Ashton is factually correct.
I consider that an interlocutory injunction can be moulded to accommodate the applicant's concern and any qualification to the generality of Ashton's submission. That can be done by limiting the injunction to restrain Ashton from carrying out salvage work under the AHIP solely for the purposes of the construction of any new surface gas wells.
Ashton expresses concern that such an injunction raises a possibility of further challenge alleging its breach. However, such a risk is inherent in injunctions generally.
I turn to the issue of the applicant's delay for some three months in commencing the proceedings and some further weeks before pressing for interlocutory injunctions. Delay is a relevant discretionary consideration.
The applicant endeavours to explain the delay in three ways. First, he says that Aboriginal people were not consulted about the modification proposal. Ashton disputes this. On the evidence before me, it is not possible to resolve that dispute on this interlocutory application.
Secondly, the applicant submits that the delay has not been unduly prejudicial to Ashton.
Thirdly, the applicant submits that in order to properly consider, formulate and mount its case, it had to carefully consider a significant number of documents and, moreover, some of them were not publicly available.
I think that there is sufficient weight in the second and third of those submissions such that the applicant's delay should not disentitle it to a limited interlocutory injunction for a short period.
Having regard to the nexus between the AHIP and Modification 7, I conclude that the balance of convenience favours the grant of a limited interlocutory injunction until the expedited final hearing commencing on 1 November 2011.
ORDERS
The parties have agreed on directions for evidence and submissions leading to the hearing commencing on 1 November 2011.
The orders of the Court are as follows:
1. The Court notes the undertaking of the second respondent to the Court in paragraph 1 of the short minutes of orders dated 12 October 2011.
2. Directions in accordance with paragraphs 2 to 8 of those short minutes.
3. Order that the second respondent be restrained from carrying out salvage works under the Aboriginal Heritage Impact Permit granted by this Court on 25 August 2011 in proceedings 10335 of 2011 solely for the purpose of construction of any new surface gas wells in reliance of Modification No 7 granted on 15 June 2011 to DA 309-11-2001 for the period until 4pm on 1 November 2011.
4. The costs of the applicant's notice of motion filed on 7 October 2011 are reserved.
Decision last updated: 13 October 2011
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