Rundle v Tweed Shire Council

[1988] NSWLEC 108

Land and Environment Court

of New South Wales

CITATION:	Rundle v Tweed Shire Council & Anor [1988] NSWLEC 108
PARTIES:	APPLICANT Dianne Rundle RESPONDANT Tweed Shire Council and the Far North Coast County Council
FILE NUMBER(S):	40241 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:
DATES OF HEARING:	27/11/1987, 26/02/1988
DATE OF JUDGMENT:	02/26/1988
LEGAL REPRESENTATIVES:	APPLICANT Slater and Gordon RESPONDENT Mr. Colquhoun

JUDGMENT:

JUDGMENT ON NOTICE OF MOTION

HIS HONOUR: This is a Notice of Motion seeking an order that the respondents, the Tweed Shire Council and the Far North Coast County Council, be restrained from continuing to carry out or permit the spraying of herbicide 2,4-D on a certain property at Burrell Creek in the north of the State pending the hearing of an application made by Dianne Rundle, which application has been specially fixed to commence on 30 March 1988, a period of approximately four weeks' time.

It appears that spraying of the herbicide has, up to some time in November last year, occurred in order to eradicate Groundsell Bush, a noxious weed. The Court made an ex parte order on 24 November last until 27 November, restraining the respondents from spraying the herbicide on the subject property. On 27 November, the Notice of Motion was returnable before the Chief Judge and by consent it appears that the order I had made on 24 November was continued in the form of undertakings given by the respondents not to spray, (those undertakings being current to 3l January 1988).

The Chief Judge ordered an expedited hearing. Unfortunately, the Registrar was only able to allocate the 30 March, as an expedited hearing date. The file note from the Chief Judge of 27 November, noted the following:

Respondents 1 and 2 to give seven days' notice to applicant of intention to recommence spraying after that date, (that is 3l January), if the matter had not been heard by then.

Apart from the filing of a number of affidavits on both sides pursuant to Directions given by the Registrar, the only thing that has occurred in that time is that on 15 February, the applicant's solicitors wrote to the solicitors for each respondent, inter alia, saying that it is assumed that your client is prepared to extend the undertaking, (that is the undertaking that had expired on 3l January given to the Court not to resume spraying prior to the determination of the matter by the Court).

By way of response the solicitors for the Far North Coast County Council, which is a weed eradication Council, wrote to the applicant's solicitors saying quite clearly that she should not assume that their client was prepared to extend the undertaking given to the Court; that it expired on 3l January; and that they had given advice to their client that there was presently nothing to stop the spraying recommencing on the property. That letter was received on 24 February by the applicant's solicitors at around about 9.00 a.m. and then, in a very short space of time that morning, the applicant's solicitors faxed responses both to Kim Holwell & Co. and to the solicitors for the Tweed Shire Council which gave notice that a further application would be made to the Court for an extension of the interim injunction or renewal of it, (to put it more correctly), unless an undertaking was received from each respondent not to recommence spraying pending the hearing.

I accept what Mr. Colquhoun says on behalf of both respondents that he, and I assume therefore his respective solicitors, none of whom were present before the Chief Judge on 27 November, were not aware of any order or direction of the Chief Judge that seven days' notice be given of any intention to resume spraying. I accept what he says.

However, leaving that to one side, what apparently transpired after the receipt of the faxed letters on the morning of 24 February is apparently that at some stage later in the day, the chief weed inspector of the County Council made attempts to contact the applicant who lives on the subject property, to indicate that it was proposed that spraying be recommenced the following morning. In fact he was able to contact her at about 10.00 p.m. in the evening of 24 February and informed her that spraying would recommence on the morning of 25 February. Later that evening, on the application of the solicitor for the applicant, I made an ex parte order restraining spraying until this morning. I have now before me a Notice of Motion seeking an order that the respondents be restrained from carrying out or permitting the spraying of the herbicide, 2,4-D pending the hearing of the Application on 30 March 1988.

The applicant's case is essentially, as I understand it, that the spraying of the herbicide is an activity within Part V of the Environmental Planning and Assessment Act, and it is an activity likely to significantly affect the environment. It follows that the proponent of the activity needs to prepare an Environmental Impact Statement which would be exhibited in accordance with the Act and the determining authority will have to consider that Environmental Impact Statement before making a decision as to whether the activity should proceed or otherwise. It is the case of the applicant that the spraying of this herbicide is both deleterious to her own personal health, amongst others, and unnecessary on the basis that she says that there are alternative means available to control the Groundsell Bush.

The respondents submit that the applicant's case is misconceived as to the effect of the herbicide, particularly in the diluted solution which it is used and that it is not in any way dangerous or harmful. Mr. Colquhoun, on behalf of the respondents, does not concede that there is a serious issue to be tried. And that is the first matter I have to decide, is there a serious issue to be tried? The first thing I note is that extensive evidence has been filed to this point of time by both sides, including expert reports. It is also clear, without being able to absorb any of the voluminous material presently before the Court, that there are substantial disputed issues of fact as to the effect of the herbicide. It is also likely that there will be a number of issues of law which arise from the facts that may be ultimately found to be proven.

On the material before the Court I would have no doubt, at this point of time, that there is a serious issue to be tried. That bring me to the balance of convenience. Each side submits that the balance of convenience favours the case it wishes to bring, i.e., the applicant says that the balance of convenience is in favour of the making of an order and not against it; and the respondents say the balance of convenience is in favour of refusing the order. There are a whole host of matters that go into assessing what is the balance of convenience and I will only mention a few but I take all of the matters before me into account.

On the applicant's side, the applicant claims, (and there is some medical evidence to support her), that her health has already been damaged by the herbicide and that if spraying recommences she, upon medical advice, will have to leave her home, otherwise she apprehends some further injury to her health.

On the respondents' side, it is submitted that the evidence discloses that if the spraying of 2,4-d is not recommenced before the flowering season of the Groundsell Bush, then the cost of eradication will be increased, and the bush is likely to multiply to such an extent that it will become harmful to the environment and obviously increase the cost of eradication. It seems that the flowering commences late in March and during April and May and flowering is certainly likely to have commenced during the time the matter will be heard.

As against that submission in the respondents' case, alternative herbicides are disclosed, but they are seen to be not as effective as 2,4-D and their cost is significantly higher.

On the applicant's side, it is suggested that an already imported biological control organism, the Gall Fly can deal with the necessary control of the Groundsell Bush.

In relation to the balance of convenience it is also claimed by the applicant that if the spraying recommences, a good deal of the subject matter of the proceedings will be lost, and to a great extent the proceedings will be useless to the applicant.

On the other hand the respondents' submit that firstly, on the evidence before the Court, it is highly unlikely that there will be any deleterious effect on the applicant, or anybody else's health, by the recommencement of the spraying and that the proceedings, (even if the spraying recommences), will still have their significance, that being a wider significance than the subject property at Burrell Creek, near Murwillumbah.

I have to balance the factors which comprise "the convenience" and it seems to me that in all the circumstances, the balance falls in favour of making the order rather than refusing, which will result in the recommencement of the spraying prior to the time in which the Court will be able to embark upon a final hearing.

Before making the order I wish to add one matter. Accepting as I have already have, Mr. Colquhoun's indication of his, and I assume therefore his respective instructing attorney's lack of knowledge of the Direction or order made by the Chief Judge of seven days' notice to be given if spraying was to be recommenced, I have to comment, (as I have in discussion when the submissions were being made), that it seems to me at the very least a grave discourtesy by, I assume, the Far North Coast County Council, (and I know of no involvement of the Tweed Shire Council in the decision to recommence the spraying), to give directly to the applicant who is legally represented in the proceedings, (as indeed is the Far North Coast County Council and the Tweed Shire Council), telephone advice of little more than seven hours at 10.00 p.m. on 24 February, that spraying would recommence the following morning. I say that because, whilst it is obvious that the undertaking to the Court given by the respondents had expired on 3l Mar

ch, the course of correspondence between 15 February and as late as a facsimile delivered sometime after 10.00 a.m. on 24 February, quite clearly shows that it would have been common courtesy for the applicant's solicitors to be advised that the County Council proposed to resume spraying and when it so intended. No such notice was given. In fact, it quite possibly is the case that the solicitors acting for the County Council did not know what was intended. To that extent, therefore, I am making no criticism of the solicitors for the respondents because I have no information of their state of awareness and am prepared to accept that they did not know that the County Council had taken the decision to recommence spraying and had decided to communicate that directly to the applicant around about 10.00 p.m. on 24 February.

Having made that comment I make the order sought in paragraph 1 of the Notice of Motion of 25 February 1988.

Are there any other matters?

CASHMAN: The only other matter is the matter that is referred to in paragraph 2 of the Notice of Motion which is costs of this application Your Honour. It would be my submission, in view of the evidence before Your Honour, and in view of Your Honour's own Judgment, though comments of course can be judgment, that an order for costs would be made in connection with the cost of this application. I appreciate that it is not the normal course that the Court makes orders for costs.

STEIN J: No, I would not say that on a Notice of Motion in a Class 4 proceeding, the normal course more than the abnormal course is that costs follow the event, unless there are exceptional circumstances.

CASHMAN: Well it is my application that the costs of this application be, in any event, in favour of the applicant, the proceedings could have been avoided, or at least could have been conducted somewhat more measuredly and the activities of the respondent in proposing to resume spraying the manner in which it did propose, gave rise to not only added cost but considerable inconvenience, not only to the applicant, the applicant's solicitors, but to the Court itself, given the necessity to seek an order from Your Honour after 10.30 p.m. in the evening and I appreciate that cost orders are not for the purpose of punishing people but in my submission, the applicant ought not bear the costs of this particular application for the reasons that I have referred to.

STEIN J: What do you say about costs Mr. Colquhoun?

COLQUHOUN: We would have been back here anyway to argue this matter regardless of what was no doubt the final proceeding, we would have been back here to argue it.

STEIN J: Put all that to one side, do not worry about that. I am not interested in punishment. I am only interested in whether or not the Motion succeeded and it being necessary for the applicant to bring the Motion to the Court in any event. Why should not the cost of the Motion follow the event?

COLQUHOUN: Well Your Honour is only deciding an interlocutory matter and the balance of convenience--

STEIN J: I am only talking about a Notice of Motion.

COLQUHOUN: So in relation to that Your Honour it is a matter which I would respectfully suggest that costs might be reserved to the hearing of the matter because that is where the substance of what we already argued about will be decided, and it is a reasonable basis for the respondents to resist the order. I mean the applicant has got an order, a favourable order, but it is reasonable to resist in the circumstances because what they are doing is something that they have been doing for a long time and a matter of importance, the eradication of the Groundsell and they are using the most effective and proper means of doing it and it was in November they started to do it, and stopped and so that their conduct has been so far as resisting the Motion is concerned has been reasonable, it has not been - as far as resisting the Motion something that was not reasonable to do. They are carrying out a public purpose and it is an important thing to eradicate Groundsell and of course with the flowering season coming up, i

t makes it important that it be done reasonably soon.

STEIN J: The applicant makes an application for costs of the Notice of Motion, she having succeeded in obtaining the order sought. The application is opposed by the respondents who submit that it is more appropriate for costs to be reserved. Mr. Colquhoun submits that it was reasonable for the respondents to oppose the Notice of Motion and I agree with that. I would not suggest otherwise. However, it seems to me that to some extent it is immaterial to the question of costs. It appears to me to be appropriate to order costs since the applicant was forced to come to Court to seek the order, the respondents having made it quite clear that they would not agree to any extension. The applicant having succeeded in the application the costs of the Notice of Motion should follow the event of the order. I therefore order the respondents to pay the applicant's costs of the Notice of Motion. There was one letter which became an exhibit and that may be returned. Is there anything else?

COLQUHOUN: Yes, there was perhaps three things Your Honour. One is this, that this order and the order sought only relates to 2,4-D so that it is open to the respondents to use the other matters that are referred to in paragraph 8. If they wish to, we don't want to be coming back to the Court, could the applicant indicate to Your Honour, whether there is any objection to that.

STEIN J: That would be between you and Mr. Cashman. You can go and talk about it outside but I am not going to sit here while we discuss the use of other alternative herbicides. It is a decision to be made by the respondents, and if they wish to consult the applicant about it beforehand to avoid any likelihood of any further application to the Court, well that is a very sensible approach to adopt. But I am not going to make any rulings about alternative herbicides. The order that is made only goes to 2,4-D. That is plain on its face and no other herbicide has been sought to be included.

COLQUHOUN: Your Honour I have given that advice, but I was asked Your Honour to ask, well I said that I didn't think it would be appropriate, but to ask that there be an order made that those other substances be used.

STEIN J: Well I am not going to make any such order. If there is going to be an application made to the Court then it will be considered in the proper way.

COLQUHOUN: The second matter is my instructing solicitors have been - as Mr. Cashman has said in his affidavit, he is acting together with - in conjunction with Mr. Greg Rooney, solicitor from Murwillumbah. Now he wishes to deal with one solicitor on the record or one solicitor for the applicant, not talking to both of them and repeating themselves and getting things confused.

STEIN J: The solicitors on the record are Slater and Gordon, 78 Liverpool Street, Sydney. So that is where you should be directing yourselves. In the circumstances of what arose late last Wednesday I can well imagine the local agent becoming involved.

COLQUHOUN: The question of further evidence being filed and the question of the hearing that will no doubt occur after 3lst March--

STEIN J: What I will do is that if you can agree on a date I will put it back before the Registrar so that he can consider any further Directions. I will place the matter, let us say, before the Registrar in a week's time and both parties ought to be able to be in a good position to tell the Registrar their assessments. I will place the matter before the Registrar on Friday, 4 March 1988. If the Department of Agriculture is still interested, perhaps somebody should let them know.

Associate