Ocean Shores Community Association Inc v Byron Shire Council (No 4)

[2015] NSWLEC 175

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ocean Shores Community Association Inc v Byron Shire Council (No 4) [2015] NSWLEC 175
Hearing dates:	30 October 2015
Date of orders:	30 October 2015
Decision date:	30 October 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See paragraph [6]
Catchwords:	INJUNCTIONS AND DECLARATIONS – exercise of discretion not to continue injunction restraining the sale of land following finalisation of judicial review proceedings in favour of respondent council
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1993 (NSW)
Cases Cited:	Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171
Category:	Procedural and other rulings
Parties:	Ocean Shores Community Association Inc (Applicant) Byron Shire Council (First Respondent) Minister for Planning (Second Respondent)
Representation:	COUNSEL: Ms I J King (Applicant) Ms K McLellan, solicitor (First Respondent) Ms L Sims, solicitor (Second Respondent)   SOLICITORS: Woolf Associates (Applicant) Marsdens Law Group (First Respondent) Minister for Planning (Second Respondent)
File Number(s):	40906 of 2015

EX TEMPORE Judgment

1. I have just delivered a final judgment dismissing the Applicant’s amended summons dated 20 October 2015 in Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171. The Applicant has made an oral application returnable instanter and with no notice to the other parties seeking a continuation of the injunction restraining the sale of land at Orana Road, Ocean Shores (the land) which I was otherwise minded to dissolve as these proceedings have been finalised.

2. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 683-684 identifies that the exercise of discretion in such circumstances is an extraordinary jurisdiction, not exercised unless very strong and special grounds are shown suggesting that the court should exercise its discretion to stay the effect of orders to which a successful party would otherwise be entitled.

3. Essentially the Applicant’s only argument, but it is significant, is that the subdivided land the subject of the proceedings is the subject of numerous contracts of sale some of which are intended to settle this afternoon. The subject matter of the proceedings will be removed if no injunction is continued, a circumstance giving rise to the extraordinary jurisdiction of the Court. The extension of the current injunction is to allow consideration by the Applicant of whether an appeal ought to be made to the Court of Appeal and if so to make a future urgent application for an injunction restraining the sale pending an appeal in that Court.

4. I have power to make such an order in the exercise of my judicial discretion and consider the matter very finely balanced. I am aware the Applicant as a community group is seeking to preserve the land as community land. If the injunction to restrain the sales of the land is not continued the Applicant loses the opportunity of seeking to change the classification of the land from operational to community. I also take into account that the Council as owner of the land is able to reclassify it if the correct processes under the Environmental Planning and Assessment Act 1979 (NSW) and Local Government Act 1993 (NSW) are followed. My judgment in Ocean Shores (No 3) confirms that they have been. As identified in Jennings at 685, in exercising the extraordinary jurisdiction and to paraphrase the following factors are relevant to consider. Firstly, whether there is a substantial prospect of success on the appeal, which I do not think there is. Any appeal has very poor prospects in my view.

5. Secondly, whether there is a failure to take steps by the party applying for relief, and there is none here. Thirdly and more relevantly, whether the continuation of the injunction will cause loss to the successful Respondent Council. Loss will be caused to the Council and others. The Council is the owner of the land which it is trying to sell. In addition there are the interests of eleven incoming purchasers who have been prevented from completing the purchases of the land pending the outcome of these proceedings. Fourthly, where the balance of convenience lies. Here it lies in the Council being able to avail itself of its success in these proceedings.

6. I decline to continue the injunction restraining the sale of the land. Accordingly the Applicant’s oral application is dismissed.

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Decision last updated: 10 November 2015