Over Our Dead Body Society Inc. v Byron Shire Council

[2002] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION:

Over Our Dead Body Society Inc. v Byron Shire Council and Anor. [2002] NSWLEC 6

PARTIES:

APPLICANT:
Over Our Dead Body Society Inc.

RESPONDENTS:
Byron Shire Council and Anor.

FILE NUMBER(S):

40242 of 2001

CORAM:

Bignold J

KEY ISSUES:

Injunctions and Declarations :- Interlocutory injunction-balance of convenience-injunction refused

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

11 January 2002

EX TEMPORE
JUDGMENT DATE :

01/11/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr Bolster, Barrister

SOLICITORS:
Beesley & Hughes

FIRST RESPONDENT:
N/A
SECOND RESPONDENT:
Mr Morrison, Solicitor

SOLICITORS:
FIRST RESPONDENT
N/A
SECOND RESPONDENT
Stone and Partners

JUDGMENT:

IN THE LAND AND

Matter No. 40242 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

11 January 2002

OVER OUR DEAD BODY SOCIETY INC.

Applicant

v

BYRON SHIRE COUNCIL

First Respondent

BYRON BAY COMMUNITY ASSOCIATION INC.

Second Respondent

JUDGMENT

Bignold J:

1. This is an application for urgent injunctive relief on an interim basis which I have had the benefit of hearing by telephone link up with the Applicant’s Barrister claiming the interim injunctive relief and the Solicitor acting for the second Respondent in the proceedings the Byron Bay Community Association Incorporated.

2. The Byron Shire Council is the first Respondent in class 4 proceedings commenced on 24 December 2001 claiming declaratory and injunctive relief in relation to a foreshadowed payment by the Byron Council to the second Respondent of the sum of some $410,000 out of the Environmental Planning and Assessment Act 1979, s 94 Fund held by the Council, to assist in the construction costs estimated at some 2.4 million dollars for the redevelopment of the Byron Bay Community Centre.

3. The claim for interim relief is made on the basis that the Applicant today learned that the contractor engaged on the project proposed to commence construction work on Monday of next week and presumably the construction work to be commenced on Monday would involve the continuing demolition of those parts of the existing structure that have been approved for demolition in the Council’s development consent for the re-development of the Community Centre.

4. The application for interim relief is to hold the matter over until the first return date on Wednesday of next week, 16 January 2002 when the class 4 proceedings would come before the Court on their first return day. The second Respondent has opposed the interim relief very vigorously and has indicated that it has filed a Notice of Motion seeking the payment of the substantial amount of security for costs in relation to the substantive proceedings. That Motion is also returnable on 16 January 2002.

5. Having heard the competing arguments, I am of the opinion that the balance of convenience favours the withholding of injunctive relief even for this brief period of three to five days. The reason for so concluding is intrinsically caught up with the progress and ultimate outcome on 21 December 2001 of earlier class 4 proceedings (No 40088 of 2001) brought by the same Applicant against the second Respondent in respect of work undertaken in partial demolition on the Community Centre pursuant to a development consent granted by the Byron Council. In a judgment delivered in June 2001 ((2001) NSWLEC 125), I upheld the Applicant’s contention that the partial demolition work undertaken to the existing structure had been undertaken without the necessary construction certificate under the Environmental Planning and Assessment Act 1979.

6. The sole matter dealt with in that adjudication was whether or not the work undertaken in partial demolition required the issue of a construction certificate. I upheld the Applicant’s contention that a construction certificate was required. The proceedings after that judgment remained on foot in the Court for a period of some six months ultimately being concluded on 21 December in circumstances which I will presently relate, but it is important to note that the proceedings remained on foot because the Applicant would not abandon its claim to mandatory injunctive relief, for the possible rehabilitation or reinstatement of the partly demolished building until it was satisfied, and the Court could be satisfied, that the project for the re-development of the Community Centre was shown to be financially viable.

7. In a subsequent judgment ((2001) NSWLEC 211), I accepted the Applicant’s contention that on the question of the granting of mandatory injunctive relief it was a legitimate inquiry to investigate whether or not the approved redevelopment could be undertaken and that inquiry involved the consideration of the financial wherewithal to undertake the works.

8. The matter came before me on a number of occasions subsequent to my judgment in June and culminated with the matter coming before me on 21 December 2001 on which occasion Senior Counsel for the present Applicant conceded that the second Respondent had adduced evidence sufficient to satisfy the Applicant and the Court that funding for the proposed redevelopment in the order of $2.4 million had been shown to be currently available, and that according to the Applicant, would not seek mandatory injunctive relief.

9. Significantly that funding included an amount of some $410,000 to be provided by the Council from Section 94 Contribution Fund. Upon the tender of that evidence and the concessions made by the Applicant, the earlier class 4 proceedings were effectively concluded by the Court discharging or releasing the second Respondent from its then current undertaking not to carry out further construction work on the project or any further demolition work until further order of the Court and with the consent of the Applicant, the Court on 21 December 2001 released the second Respondent from that undertaking on the basis that there was no longer any justification to insist upon the undertaking.

10. Part of the proof adduced by the second Respondent was the entry into a commercial contract for the construction of the approved re-development and it was intimated that the second Respondent, having secured the public funding from various sources was desirous of commencing the development as soon as possible.

11. Somewhat inexplicably, and I say this without any criticism of Mr Bolster, who has appeared for the Applicant today, the Applicant on the very next business day, namely 24 December 2001 commenced the present proceedings claiming that the Council’s decision to provide $410,000 funding out of its Section 94 Fund to the second Respondent in respect of the redevelopment of the community hall was invalid. It was on the basis of this claim for substantive relief that the Applicant today moved the Court urgently for the interim injunction in the terms that I have earlier indicated.

12. No satisfactory explanation of the relationship between the concluded proceedings (concluded on the Friday, 21 December 2001) and the commencement of the fresh proceedings on the following Monday has really been given by Counsel for the Applicant, save for the fact that the Applicant was alerted by the Council of its formal decision approving the Section 94 Contributions Plan (or some amendment to the existing Section 94 Plan) in late November.

13. However the plain fact is that the Council had committed itself to a payment from the s 94 Contributions Fund as early as March of 2001 and the Applicant was well aware of that matter when it commenced the earlier proceedings which were concluded on Friday 21 December 2001.

14. In these circumstances, the claim to interlocutory injunction on the basis of the present proceedings commenced on 24 December 2001, in my view, comes far too late in the day. In so concluding, I am of a clear opinion that the question of the Section 94 Contributions Plan and the decision of the Council to fund the present project from the Section 94 Fund were live and relevant issues in the first set of proceedings. They were not prosecuted in those proceedings. Moreover they were, as it were, implicitly conceded by the Applicant in its overall concession that funding to the tune of $2.4 million had been shown to exist and provided the basis for the Court releasing the second Respondent from its undertaking which remained in force right up until 21 December 2001.

15. In these circumstances, and notwithstanding what has been said by Mr Bolster on behalf of the Applicant, and notwithstanding the tender of the usual undertakings for damages, I am of the opinion that the lateness of the claim and the failure to explain how it comes about that the present proceedings arise in circumstances which are integrally related to the earlier proceedings which were concluded on 21 December 2001 (where the issue now sought to be raised could and should have been raised) satisfies me that the balance of convenience firmly favours withholding injunctive relief for the foregoing reasons.

16. Accordingly, The claim to interlocutory injunction is refused.
MORRISON: Your Honour, is now an appropriate time to raise the question of costs in this matter?

HIS HONOUR: I think Mr Morrison the costs in the claim for interlocutory relief should remain costs in the proceedings. Is that satisfactory to you Mr Morrison?

MORRISON: Yes your Honour.