Lester v Minister for Planning - [2011] NSWLEC 178

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 90
Cases 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 155
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLEC 178
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the case of Lester v Minister for Planning, the plaintiff sought to prevent the defendant from approving a development application concerning land owned by the plaintiff. The High Court of Australia was tasked with resolving the dispute. The central legal issue was whether the court had jurisdiction to grant an interlocutory injunction and an undertaking in lieu of security for costs against a Minister of the Crown in proceedings concerning planning matters.

The court examined the relevant statutory provisions and the common law principles governing the grant of interlocutory injunctions. The court found that the statutory scheme governing planning approvals did not preclude the court from exercising its inherent jurisdiction to grant interlocutory relief. The court held that the principles of equity and natural justice required that the court have the power to prevent irreparable harm to the plaintiff's rights. The court also noted that the undertaking in lieu of security for costs was an appropriate remedy in the circumstances, as it would not unduly burden the defendant while protecting the plaintiff's rights. The court therefore granted the relief sought by the plaintiff.

Orders

Orders of the court

Interlocutory undertaking and injunction recorded in paragraph 25

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 90
Cases 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 155
Category:	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