Seek Justice Pty Ltd v Blue Mountains City Council

[2021] NSWLEC 42

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Seek Justice Pty Ltd v Blue Mountains City Council and Anor [2021] NSWLEC 42

Hearing dates:

7 May 2021

Date of orders:

10 May 2021

Decision date:

10 May 2021

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [114]

Catchwords:

PROCEDURE - challenge to validity of development consent for event - application for interlocutory injunction to restrain event - event to take place before final hearing - Applicant does not offer usual undertaking - arguable grounds for challenge assumed - balance of convenience - minimal (at its highest) evidence of any potential adverse impacts from holding the event - adverse impacts of transitory nature if occurring -significant adverse economic impact on local community if event cancelled - significant adverse social impact on thousands of participants registered to take part in the event - adverse economic impacts on event promoter and other service providers to the event - balance of convenience against granting injunction - injunction refused

COSTS - presumption that costs follow the event in Class 4 litigation - Applicant relies on public interest exception to resist making of costs order - Applicant incorporated three weeks prior to commencement of proceedings - only evidence of public interest nature of Applicant are assertions by its director - documentary evidence does not support conclusion the Applicant is a not-for-profit entity - taking the position for the Applicant at its highest and assuming characterisation as public interest litigation, nothing demonstrating “something more” than mere characterisation as public interest litigation - Applicant ordered to pay the Second Respondent’s costs

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 9.45

Government Information (Public Access) Act 2009

Land and Environment Court Rules 2007, r 4.2

Cases Cited:

Beecham Group Ltd v Bristol Laboratories Pty Limited (1968) 118 CLR 618

Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59

Jeray v Blue Mountains City Council [2021] NSWCATAD 67

Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231

Save Our Figs Inc v General Manager Newcastle City Council (2012) 186 LGERA 127; [2011] NSWLEC 207

Tegra (NSW) Pty Limited v Gundagai Shire Council and Anor (2007) 160 LGERA 1; [2007] NSWLEC 806

Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335

Category:

Procedural rulings

Parties:

Seek Justice Pty Ltd (Applicant)
Blue Mountains City Council (First Respondent)
USM Events Pty Ltd (Second Respondent)

Representation:

Counsel:
Mr I Jeray - director (Applicant)
Submitting appearance (First Respondent)
Mr T To, barrister (Second Respondent)

Solicitors:
Seek Justice Pty Ltd (Applicant)
Marsdens Law Group (First Respondent)
Sparke Helmore (Second Respondent)

File Number(s):

121055 of 2021

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Applicant’s pre-commencement communications

The Applicant’s Summons

The injunction application

The interlocutory hearing

Representation

The evidence for interlocutory purposes

Mr Jeray’s representation of the Applicant

The “usual undertaking as to damages and costs”

Introduction

The status of the Applicant

Land and Environment Court Rules 2007

Mr Beeche’s evidence

Introduction

Mr Beeche’s affidavit evidence

Introduction

The Company's event

The involvement of other individuals and entities

Economic benefits to the local community

The commitment of the participants

The impact on the Company

Community impacts

Mr Beeche’s cross‑examination

Matters for determination

Introduction

A serious question to be tried

The balance of convenience

Mr Jeray’s submissions

The Company’s submissions

Mr Jeray’s submissions in reply

Consideration

Introduction

Will irreparable injury be caused?

Are damages an adequate remedy?

No undertaking as to damages is offered

Preservation of the status quo

The nature of the interlocutory relief sought

The relative strength of each party's case

Are there any relevant equitable considerations?

Will there be any prejudice to third parties?

The public interest

The time period before a final hearing of the matter

Conclusion

Costs

Orders

Judgment

Introduction

1. Seek Justice Pty Ltd (the Applicant) commenced these Class 4 proceedings on 30 April 2021. For present purposes, it is sufficient to describe the outcome sought by the Applicant to be determinations that the development consent process undertaken by the Blue Mountains Local Planning Panel (the Panel) on behalf of the Blue Mountains City Council (the Council) was defective in its granting of approval for an event known as an ultra‑trail running event (the event). That event operated by USM Events Pty Ltd (the Company) is scheduled to take place commencing on Thursday 13 May 2021.

The Applicant’s pre-commencement communications

2. Mr Jeray (the Applicant’s director and advocate on this motion) annexed to his affidavit of 7 May 2021 copies of three e‑mails which he had addressed to Mr Tom Landon‑Smith at his e‑mail address at ultratrailaustralia.com. Each of these e‑mails was also copied to the e‑mail address of [email protected].

3. The first of these e‑mails, dated 15 April 2021, advised that the Applicant considered that the consent granted to the Company for the 2021 event was invalid; urged the Company to cancel the 2021 event and surrender its development consent; and put the Company on notice that, if the Applicant's requests were not met, the Applicant would commence proceedings in the Court seeking to challenge the validity of the development consent and to restrain the event from taking place.

4. Shortly after sending that e‑mail, the Applicant received an automatically generated acknowledgement e‑mail. It is not necessary to set out the terms of that response, it is sufficient to note that it was of a purely place‑holding nature and did not address the matters in the Applicant's initial e‑mail.

5. On 26 April 2021, further e‑mails were sent to Mr Landon‑Smith and the Company by the Applicant. In these e‑mails, the Applicant indicated that the absence of a substantive response from the Company cancelling the event meant that the Applicant considered that it was now necessary to commence these proceedings.

6. A further automatically generated e‑mail of a similar place‑holding nature was received in response to these.

7. Finally, on May 3 2021, a further e‑mail was sent by the Applicant to Mr Landon‑Smith and the Company attaching copies of the Summons, the Notice of Motion with which I am presently dealing and Mr Jeray’s 30 April 2021 affidavit.

8. A further automatically generated placeholder e‑mail response was sent from the Company to the Applicant.

The Applicant’s Summons

9. It is not necessary, for present purposes, to set out the detail of the relief sought by the Applicant in its Summons filed on 30 April 2021. It is sufficient to note that five specific declarations are sought concerning what are said to be defects in the conduct of the Panel or the Council and a concluding declaration that Development Consent X/687/2020 is invalid. This development consent is that which has been granted to the Company for the purposes of the event.

10. The operative order sought as a consequence of the making of the proposed declarations is that the Company be required to surrender the development consent for the event.

The injunction application

11. By Notice of Motion, also filed on 30 April 2021, the Applicant seeks an interim injunction restraining the Company from going ahead with the event until the substantive Class 4 challenge to the development consent processes has been heard and determined. This decision solely addresses the Applicant's Notice of Motion seeking the interlocutory restraining injunction.

The interlocutory hearing

12. The Applicant's Notice of Motion was listed for hearing before me at 2.00 pm on Friday 7 May 2021, in my role as Duty Judge. As later described in a little more detail, although the possibility existed that I might hear and determine the substantive Class 4 proceedings commencing on Friday 7 May and concluding on Monday 10 May 2021 (in order that I might determine the substantive proceedings before the scheduled date of the Company's event), that did not eventuate. The hearing on the Applicant's Notice of Motion for an interim injunction concluded late on the afternoon of Friday 7 May 2021, when I reserved my decision. At that time, I listed the matter for the delivery of this decision at 1.00 pm on Monday 10 May.

Representation

13. The Applicant was represented by its director, Mr Jeray, on this interim injunction application. It will later be necessary to describe a little concerning the short history of the Applicant’s formation and its current status. The Company was represented by Mr To, barrister. Mr To provided concise written submissions opposing the granting of an interlocutory injunction. The Council entered a submitting appearance, save as to costs.

The evidence for interlocutory purposes

14. The evidence on behalf of the Applicant comprised two affidavits deposed by Mr Jeray. The first of them was dated 30 April 2021 and the second dated 7 May 2021. Both affidavits were read without objection on behalf of the Applicant. Mr Jeray was not required for cross‑examination. Each of the affidavits had documents annexed to it and it will later be necessary to refer to a number of those documents in more detail.

15. On behalf of the Company, an affidavit from Mr Beeche, the Senior Vice President and Managing Director of the IRONMAN Group in Oceania, was read without any objection being raised to it by Mr Jeray. The Company is the trading entity for the purpose of running Ironman events in Australia and New Zealand.

16. Mr Beeche was required for cross‑examination. It will later be necessary to address Mr Beeche’s evidence in a little more detail. It is sufficient, for present purposes, to note that his affidavit did not have any documents annexed to it.

17. Limited documentary evidence was tendered on behalf of the Company. These comprised extracts from official Commonwealth records concerning the Applicant. These documents comprised:

1. An extract from the register maintained by the Australian Charities and Not-for-profit Commission. This extract demonstrated that the Applicant was not registered as a charity with that Commission. This extract became Exhibit 1;

2. An extract from the Australian Business Register. This extract demonstrated that the Applicant was not registered for GST purposes and was not entitled to receive tax deductible gifts. This extract became Exhibit 2; and

3. An extract from the records of the Australian Securities and Investments Commission (ASIC). This document demonstrated that the Applicant had been incorporated on 8 April 2021. This extract became Exhibit 3.

Mr Jeray’s representation of the Applicant

18. Mr Jeray, as the sole director and the guiding mind of the Applicant, appeared on the Applicant’s behalf in this hearing. At the commencement of the hearing, without objection from Mr To, I indicated to Mr Jeray that I proposed to treat him as a self-represented litigant for the purposes of this hearing and that, as a consequence, I would provide him with assistance on procedural matters (subject to any objections which Mr To might raise in the course of me doing so). I observe that, with respect to those matters where I provided procedural explanations to Mr Jeray during the course of the hearing, no objection to any of them was raised by Mr To. A number of short adjournments were taken during the course of the afternoon to enable Mr Jeray to think about the implications of procedural explanations I had given to him.

19. Finally, in this regard, it is to be observed that, during the course of Mr Jeray’s submissions, he made a number of statements that would, ordinarily, be regarded as evidence. I proposed to Mr To (he and I well understanding the difference between evidence and submissions) that I should permit Mr Jeray to continue his presentation to me in narrative form on the basis that Mr To and I would understand what elements of it should be regarded as evidence and what elements should be regarded as submissions (with me giving such weight as I considered appropriate to those matters in his presentation that were appropriate to be regarded as evidence). Mr Jeray’s presentation was to be given from the Bar Table. Mr To indicated that he was happy to have Mr Jeray continue his presentation on that mixed basis. Mr To did not object to any of the material put to me subsequently by Mr Jeray on that basis.

The “usual undertaking as to damages and costs”

Introduction

20. I enquired of Mr Jeray as to whether or not the Applicant would offer the usual undertaking as to damages and costs if I was to grant the injunction that was now sought. Mr Jeray indicated that the Applicant did not offer that undertaking. He submitted that, as the proceedings had been brought by the Applicant as public interest proceedings, it was appropriate that I conclude that I should not require the Applicant to give that undertaking. He relied on, for this purpose, r 4.2(3) of the Land and Environment Court Rules 2007 (the Court Rules).

The status of the Applicant

21. I have earlier set out the nature of the three documents tendered on behalf of the Company concerning the status of the Applicant. It is to be observed that, in his affidavit of 30 April 2021, Mr Jeray deposed the following concerning the status of the Applicant:

2   Seek Justice Pty Ltd is a not-for-profit organisation that seeks to serve, protect and pursue the public interest.

22. In response to the documents tendered for the Company concerning the status of the Applicant, the position advanced by Mr Jeray was that, in light of the recent incorporation of the Applicant, he was still undertaking dealings with ASIC in order to seek to clarify the status of the Applicant as being a not‑for‑profit corporation.

Land and Environment Court Rules 2007

23. In this context, it will later be necessary to consider the Company's documentary evidence concerning the Applicant, and that which has been put by Mr Jeray in reliance on r 4.2(3) of the Court Rules. At this point, it is sufficient to note that the relevant portion of the rule is in the following terms:

4.2   Proceedings brought in the public interest

(1)   …

(2)   …

(3)   In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to—

(a)   the injunction or order sought by the applicant, or

(b)   …,

if it is satisfied that the proceedings have been brought in the public interest.

Mr Beeche’s evidence

Introduction

24. Mr Beeche’s evidence was, as earlier noted, initially given by affidavit but Mr Beeche had been required for cross‑examination by Mr Jeray.

25. As Mr Beeche is a resident of New Zealand and, at the time of the hearing was located in New Zealand, his evidence was taken by audio‑visual link utilising the Microsoft Teams software. Mr Beeche confirmed that his affidavit (dated 6 May 2021) had been affirmed in Auckland and the affidavit had been witnessed by a New Zealand barrister.

Mr Beeche’s affidavit evidence

Introduction

26. Mr Beeche’s affidavit was comparatively short (comprising four substantive pages). The most convenient way to understand the elements of this evidence is to set out the relevant paragraphs in full.

The Company's event

27. Those activities for which the Panel had granted development consent, as the delegate of the Council, form part of the activities of the event conducted by the Company - an event known as Ultra‑Trail Australia (UTA). Mr Beeche’s affidavit, in paragraphs 3 to 5, described the event as follows:

Ultra-Trail Australia

3   UTA is the largest Trail running event in the southern hemisphere and the 3rd largest in the world. UTA is held within the Blue Mountains National Park, a World Heritage listed area. UTA is part of the international Ultra-Trail World Tour (UTWT) which incorporates the most iconic races from around the world. UTA is the only Australian race on the UTWT.

4   UTA has been operating for 13 years and has seen significant growth since it started in 2008 with 204 entries. In 2019 there were 7,500 competitors across the four major event distances - UTA100 (100km course), UTA50 (50km course), UTA22 (22km course), and UTA11 (11km course). UTA is the one event that all Ultra-Trail runners want to complete at some stage in their running careers and it attracts people from across Australia and internationally. The 100km and 50km course events sell out within hours of going on sale.

5   UTA is based in Katoomba and enjoys strong local government and community support. We engage around 750 volunteers. In an ordinary year, UTA attracts nearly 20,000 runners and supporters to the region who on average stay 2 nights, and deliver an economic impact to the region in excess of $9 million.

28. Mr Beeche’s affidavit deposed, in paragraphs 11 and 12, as to the nature of the Company’s broad activities and the number of persons employed by it:

11   The efforts that USM have gone to to ensure that UTA can take place on 13-16 May 2021 are significant. USM is a business that operates mass participation sporting events, and due to the impact that Covid had in 2020, it is very important to the business that 2021 is a year of recovery. Of the 27 of our events scheduled across Australia and New Zealand in 2020, only 10 were able to be delivered (the majority prior to March 2020) due to mass gathering restrictions and border closures. USM has worked diligently to preserve all possible jobs within the organisation in Oceania. The planning and operational work involved in getting the 2021 UTA event up and running has been a significant part of that. Across Oceania, IRONMAN has 73 permanent staff - 33 of whom have worked on the UTA event in some capacity, of which 8 staff have a leading role in UTA directly (with these staff either on site now, or due to arrive in the next few days. The event also engages around 40 casual staff, some of whom are Blue Mountains locals.

12   Beyond our organisation, the list of contractors who receive direct financial benefit from work on the event include those providing; timing services, temporary infrastructure rental, course signage services, graphic designers, AV/production contractors, bus hire companies, medical providers, food for staff/volunteers, entertainment providers and gear suppliers (medals, shirts, athlete bags, awards). It has been an immensely difficult year for those involved in the events industry due to mass gathering restrictions, and these contractors and vendors rely on this event for their economic recovery.

The involvement of other individuals and entities

29. Mr Beeche’s affidavit also deposed, in paragraphs 13 and 14, as to the nature of the involvement of other individuals and entities in the Company's event. This evidence was in the following terms:

13   The event includes an “Expo”, to be held at Scenic World in Katoomba, in which 19 exhibitors will participate. Product sales from the Expo go directly to these exhibitors. While some exhibitors are known or significant brands, many are small businesses servicing the loyal and passionate trail running community. With UTA being the largest trail running event in the Southern Hemisphere, it is my opinion the 2021 event will be the best opportunity these exhibitors will get to reach their ultra trail running customers in 2021.

14   In addition to exhibitors, there are a dozen key commercial partners for the event. In 2021, our commercial partners will provide approximately $90K in sponsorship revenue (a combination of cash and value in-kind products, much of which is already to be delivered to athletes out on the course and, if consumable, can be perishable). Like our exhibitors, these companies rely on this event for exposure to the trail community, and include established brands (La Sportiva, Petzl, Buff, Koda, Prepd, Injinji, Aerodaks) and brands reaching out to our community for the first time (Plant B Life, Fixx Nutrition). We also rely on the commercial support of the iconic Fairmont Resort & Spa (in Leura) and Scenic World (Katoomba), who in turn benefit significantly from the 20,000 visitors to the region our event generates in an ordinary year.

Economic benefits to the local community

30. Mr Beeche’s affidavit evidence, at paragraph 15, also addressed the question of the direct economic benefits to the local community of the conduct of the event in the following terms:

15   I estimate, based on athlete survey research, that each participant in UTA spends $239 per day while they are in the Blue Mountains and stay for an average of 1.9 days - this is spent with accommodation providers (ranging from large resorts to small B&Bs/guesthouses), retail stores, local attractions, and local restaurants and cafes. At a minimum, based on 2021 entries, this would be $3,259,984 of spending which does not take into account the supporters that each participant may bring along.

The commitment of the participants

31. Mr Beeche’s affidavit, at paragraph 17, also deposed as to the number of registered competitors for the 2021 event and the nature of their commitment to it:

17   Of the 7179 registered participants over the four days of 2021 event, I estimate just under 6,500 will start, and 6,164 to finish. Each of these individuals will have dedicated months - often years - of their life preparing for their UTA distance event, being 11km, 22km, 50km or 100km. As an experienced runner of ultra distances (which is defined as anything longer than the traditional marathon on length of 42 km), it is likely that the minimum preparation for someone attempting the 100km event would be more than 2 years of consistent running, with at least 6-12 months of preparation for this distance specifically, and a commitment of 10-20 hours of running a week. It is, simply put, an enormous commitment. For the 50km distance, around 3-6 months of direct preparation, in the realm of 8-12 hours a week, also with a background of consistent running. Training for trail events includes running in all sorts of conditions, day and night, on a range of terrains

The impact on the Company

32. In paragraph 19 of his affidavit, Mr Beeche addressed the question of the impact on the Company if the 2021 event did not proceed. His evidence was:

19   … Given how close we are to the event, I estimate the financial impact to our business if the event does not proceed will be in the vicinity of $2.5 million (which includes sponsorship revenue, which may need to be returned or allocated to another event, event entries which may need to be refunded, and hard costs that have already committed). In addition, there would be significant reputation damage, which I have not factored in to this amount.

Community impacts

33. In paragraph 8 of his affidavit, Mr Beeche addressed the community impacts:

8   USM invests a lot of time and resources in minimising the impact that an event of this scale has on the local community, including through venue and course design. USM also work to try and keep road and traffic impacts to an absolute minimum. To that end, USM has been working with Blue Mountains City Council over the last 24 months to improve impacts on local residents, in particular, around parking on local streets which can cause blockages on suburban roads. The car parking capacity for the event has been doubled as a result of the approval to use the abandoned golf course as a temporary parking facility.

Mr Beeche’s cross‑examination

34. Mr Beeche’s cross‑examination by Mr Jeray was comparatively brief. Nothing arises from that cross‑examination which warrants specific recording in this decision.

Matters for determination

Introduction

35. Two matters arise for consideration on the question of whether an injunction should be granted. The first is whether the proceedings give rise to a serious question to be tried. If this is established, I am then required to consider whether, on the “balance of convenience” it is appropriate, on the basis of the evidence before me, to restrain the Company from going ahead with the event.

A serious question to be tried

36. I earlier noted that Mr To had provided written submissions in support of the Company’s position opposing the application for an interlocutory injunction. At paragraph 11 of those submissions, Mr To wrote:

For the purposes of this application only, USM Events accepts that the proceedings involve a serious question to be tried.

37. This confined concession, as was explained to Mr Jeray several times during the course of the interlocutory hearing, set aside the necessity for him to demonstrate that there was a sufficiently arguable potential defect in the Panel’s and/or Council’s processes as a first step in considering whether an injunction restraining the event going ahead should be issued.

38. As a consequence, as was also explained to Mr Jeray, it was not necessary for him to tender, at this interlocutory stage, the range of statutory or policy documents with respect to which it was asserted for the Applicant that the Panel and/or the Council had not complied as mandated. It was made clear to Mr Jeray that, however, when the matter went to substantive hearing, the concession which had been made for the Company for the limited purposes of the interlocutory hearing would not apply and that the Applicant would need, at the substantive hearing, to prove the various breaches that it alleged occurred in the processes of the Panel and/or the Council.

The balance of convenience

Mr Jeray’s submissions

39. Mr Jeray’s submissions as to why the event should not be permitted to go ahead prior to the substantive challenge being heard and determined can be summarised as follows:

• opponents of the proposed event were not afforded an adequate opportunity to be heard to explain why consent should not have been given;

• the Panel did not have proper evidence before it upon which to base its decision to approve the aspects of the event which required development consent;

• there will be damage to people who are not even aware of the proposed development and the event which depends on it. In particular, he submitted that there would be:

-   financial impacts on local businesses;

-   adverse impacts on land values;

-   noise and interference with local residential amenity. In this regard, Mr Jeray said he been approached by a number of people (a number not specified, I note) concerning amenity impacts; and

• unacceptable traffic and parking impacts. Similarly, as I understood him, Mr Jeray said he been approached by a number of people (a number also not specified, I note) concerning traffic and parking impacts.

40. He submitted that preventing the event from going ahead would provide an appropriate opportunity to enable proper public information to be made available and thus provide a broader opportunity for public submissions concerning the proposal.

41. He further submitted that permitting the event to go ahead in circumstances where there were deficiencies in the development approval process would be unfair to the public and, as I understood him, by implication, would significantly undermine the integrity of the planning system.

42. He also submitted that Ground 3 of the matters which were contained in Annexure A to his affidavit of 30 April 2021 had not been adequately addressed by the Panel and that the failure to address the safety issues there pleaded also warranted preventing the event from going ahead. Annexure A to his affidavit of 30 April 2021 is entitled “GROUNDS IN SUPPORT OF THE APPLICANT'S SUMMONS”. Ground 3 as set out in Annexure A is in the following terms:

The Blue Mountains Local Planning Panel/Blue Mountains City Council irresponsibly failed to relevantly consider whether the Ultra Trail Australia event will exceed the safe handling capacity of Scenic World, the Katoomba Christian Convention sports oval, auditorium and plaza and Katoomba Golf Course in breach of section 4.15 (1) (b), (c) and (e) of the Environmental Planning and Assessment Act 1979.

43. Finally, he submitted that the Company's own website acknowledged that postponement was possible and that the information on the website indicated that postponement would not have the adverse impact on the Company, as I understood his submission, that Mr Beeche had given evidence would arise.

44. In support of this submission, Mr Jeray took me to Annexure E to his affidavit of 30 April 2021. Annexure E is described in paragraph 9 of his affidavit in the following terms:

9   Annexed hereto and marked with the letter “E” is a copy of the “Entry Overview” web page from Ultra Trail Australia's web site that was accessed on 29 April 2021, which shows Ultra Trail Australia's “Policies relating to Covid-19” (highlighted in yellow).

45. The portion of Annexure E in which Mr Jeray submitted that the impact on the Company would not be significant is in the following terms:

POLICIES RELATING TO COVID-19

What if the event does not take place on 13-16 May 2021, for reasons relating to the Covid-19 pandemic?

Where possible, the event will be rescheduled, and if this happens all registered athletes will have their race registration (and any additional purchases) automatically moved to the new event date. We will provide as much notice as we can.

If, for reasons beyond the Event Organisers control the event does not take place at all (including reasons relating to Covid-19), all registered athletes will have their race registrations (and any additional purchases) automatically moved to the same event in 2022 (or, if the event is not confirmed to take place in 2022, athletes will be provided with an Event Credit to the value of their entry fee which can be used on any of the Event Organisers portfolio of events in the country of purchase for three years from issue).

In the circumstances set out above, there will be no refund of the athlete’s entry fee (or any portion of) or any other costs incurred in connection with the event.

What if I can't make the date I have automatically been moved to?

Athletes will be given a limited opportunity to alternatively take an Event Credit to the value of their entry (including additional purchases). This Event Credit can be used on any of the Event Organiser’s portfolio of events in the country of purchase.

The Company’s submissions

46. As earlier noted, Mr To provided a concise written outline of submissions on behalf of the Company. He also made oral submissions to supplement them.

47. It is appropriate, first, to set out a number of short extracts from his written submissions, submissions proposing that the balance of convenience was, in his words, “overwhelmingly in favour of refusal of the injunction”. At paragraphs 14 and 15 of his written submissions, he wrote in support of this proposition:

14   This is so given that the harm that might be occasioned if the injunction is refused is limited in time to the 4 day period of the event, and also limited in its nature, being the potential adverse impacts from the conduct of the temporary activities - but which the Blue Mountains Local Planning Panel determined was not a sufficient basis to withhold consent.

15   Notably, the applicant's Grounds document does not in any way allege that adverse impacts or other harm would result from the carrying out of the approved temporary activities. Nor is there any evidence of such harm or any likelihood.

48. Mr To’s written submissions then set out, in a list of summary points, matters from Mr Beeche’s affidavit evidence. Relevantly, I have earlier set out the extracts which are here relevant.

49. On this basis, Mr To’s written submissions advanced the proposition, at paragraph 18, that:

18   On the evidence, the Court would be satisfied that the harm that would be suffered by the applicant (or the environment) by refusing the injunction would be outweighed, and by a significant margin, by the harm to USM Events and a wide range of third parties if an injunction were to be granted.

50. Mr To’s written submissions then turned to address the question of the usual undertaking as to damages. He noted that it was possible (as is in fact the case) that the Applicant would seek to rely on r 4.2(3) of the Court Rules.

51. He relied upon the documentary evidence earlier tendered for the Company as demonstrating there was no basis upon which I could conclude that the Applicant was not a company operating for profit.

52. His written submissions then turned to address the proposition that I might be prepared to conclude that the proceedings were correctly to be characterised as being brought in the public interest. He said, at paragraphs 26 and 27 of his written submissions, that:

26 However, if the proceedings were considered to be brought in the public interest, in the context of the discretion afforded by r4.2(3), the Court has previously applied, by way of analogy, the tests in the related context of costs orders: cf Save Our Figs Inc. v. General Manager Newcastle City Council ([2011] NSWLEC 207; (2012) 186 LGERA 127 at [68]-[72] (Biscoe J)).

27   Adopting this approach, the applicant cannot demonstrate the “something more” required to enliven a discretion to not require an undertaking as to damages. There is no great or irreparable harm to the environment, or any novel question of law of significance, or any other factor that would qualify.

53. Mr To commenced his oral submissions by referring to the decision of Preston CJ in Tegra (NSW) Pty Limited v Gundagai Shire Council and Anor (2007) 160 LGERA 1; [2007] NSWLEC 806 (Tegra). In this context, he submitted that it was necessary that I balance the public interest in upholding the planning laws said by the Applicant to be breached, compared with the economic benefits which will accrue to the Katoomba community (and which, he said, had accrued since 2008).

54. He submitted that there was no evidence that there would be any irreversible physical impact on the environment if the event was permitted to proceed. This was because they were limited activities in Katoomba, with these being confined to:

• the start and finish points;

• the location of the “Expo” where the exhibitors would display their goods and services; and

• parking at the former golf course.

55. He pointed to the fact that, as deposed by Mr Beeche in his affidavit, the vast portion of the event’s running activities would not take place in Katoomba but would be activities which (in Mr Beeche’s words) would “traverse land owned/managed by National Parks, Crown Lands, Blue Mountains City Council, Sydney Water, and a handful of private landowners” (Beeche affidavit at paragraph 6).

56. Next Mr To submitted that there was no reason not to preserve the status quo - that is, that the development consent remains lawful until it is set aside.

57. He submitted that, with respect to the absence of offering the usual undertaking, I could not be satisfied that the Applicant had commenced these proceedings in the public interest.

58. He pointed to the wide extent of the adverse economic impacts which would arise to the local community; individuals or entities involved commercially with the running of the event; and to the Company itself as having been demonstrated by Mr Beeche’s uncontradicted evidence. He submitted that the economic impacts of preventing the event going ahead would fall not only on the Company, but on a wide range of third parties and that it was not necessary, for present purposes, for Mr Beeche to detail these with precision. As I understood this latter proposition, it was that the breadth of Mr Beeche’s uncontradicted evidence made it obvious that adverse impacts of great economic significance would fall not only on the Company, but on third parties.

59. These factors, taken together, when weighed against the transitory and negligible potential adverse impacts, as I understood his submission, meant that the balance of convenience overwhelmingly lay against the granting of the injunction.

Mr Jeray’s submissions in reply

60. In response to the submissions from Mr To, Mr Jeray put a number of propositions. These are to be considered in the fashion previously noted at [19], as some elements constituted evidence given from the Bar Table and some were submissions. The matters which Mr Jeray raised in reply were:

• permitting parking for the event on the former golf course required the removal of a number of trees to permit access to the designated areas. Mr Jeray noted that this tree‑felling had already occurred;

• the Company’s event had, with the exception of the alteration to its operation by the incorporation of parking on the former golf course, been conducted for over five years occasioning adverse impacts on the community on these occasions;

• permitting parking on the former golf course was likely to cause damage to its surface by creating many vehicle track ruts (particularly if rain softened the ground). This increased the likelihood of damage to the surface of the grassed area of the former golf course; and

• if the Council was receiving money from the parking on the former golf course, this would demonstrate that the Council was receiving a financial benefit from the Company’s event. As I understood what Mr Jeray meant by this proposition, it was that such a financial benefit to the Council had not been disclosed.

Consideration

Introduction

61. I am now required, given the concession noted at [36] (given only for the purposes of these injunction proceedings and not generally), to consider whether, on the balance of convenience, the Company should be restrained from conducting the event commencing next Thursday. Weighing the factors arising from the evidence before me requires me to determine “whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted” (Beecham Group Ltd v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 623).

62. In Tegra, Preston CJ set out a (non-exhaustive) list of factors to be considered in assessing where the balance of convenience fell. These factors were ones there relevant in the particular circumstances of that case. All of the relevant factors requiring consideration in these proceedings are encompassed by that list (and, indeed, the list includes matters not here relevant). The potential factors of relevance listed by his Honour were:

1. whether irreparable injury will be caused;

2. whether damages are an adequate remedy;

3. whether an undertaking as to damages is offered;

4. where the status quo lies;

5. the nature of the interlocutory relief sought;

6. the relative strength of each party's case;

7. equitable considerations;

8. prejudice to third parties;

9. the public interest; and

10. the time period before a final hearing of the matter.

63. In the circumstances of these proceedings, I consider it appropriate that I address each of the matters listed above for the purpose of my assessment of the factors requiring to be balanced in determining whether or not to grant the Applicant the injunction which it now seeks. No factors other than those listed above here require consideration.

Will irreparable injury be caused?

64. Preston CJ noted, when considering this topic in Tegra, at [18], that:

18   In environmental cases, irreparable harm does not need to be suffered by the applicant personally; harm to the environment and to the enforcement of the law will also suffice.

65. In these proceedings, Mr Jeray has submitted that the harm to the environment in Katoomba falls, as I understood his submissions, into two categories. The first was the amenity impact arising in the residential area of Katoomba, with this impact relating to both the large number of people who would be in the area compared to during periods when the event was not in progress, and to traffic and parking impacts in local streets. To the extent that these are factors requiring consideration, Mr Jeray brought no evidence that would enable any quantification of these impacts and, as the nature of the event is transitory (it being confined to four days), I am satisfied that these impacts could not be regarded as substantial.

66. The only other impacts to which Mr Jeray adverted were:

1. the cutting down of trees to provide access for the parking areas to be provided on the former golf course; and

2. what he submitted was the likelihood of surface damage to the former golf course itself by those parking activities.

67. As to the first of those factors, Mr Jeray noted that such tree‑felling as was required to provide the access for parking on the former golf course had already occurred. Thus, whatever damage that might embody (a matter about which I have no detailed evidence), it is not a matter weighing in favour of granting an injunction, as those impacts, to the extent that they exist, have already crystallised and would not be prevented by the granting of an injunction.

68. To the extent that Mr Jeray complains that there would be damage to the grass surface of the former golf course by it being permitted to be used for parking for the Company’s event, such damage as might be occasioned, even if there was to be rain in Katoomba in the days leading up to the event, would also be of comparative insignificance (even if it was to last longer than the transitory nature of the impacts on residential amenity).

69. As a consequence, I am satisfied that the potential for environmental harm arising as a consequence of the Company being permitted to run its event would be, if not de minimus, certainly not a factor of significance in favour of granting an injunction and preventing the Company’s event from going ahead.

Are damages an adequate remedy?

70. As Preston CJ observed in Tegra, at [17]:

17   In environmental cases, where public rights under environmental statutes are being enforced, no question arises as to whether an adequate remedy in damages would be available in lieu of the grant of an injunction.

71. As the case here mounted on behalf of the Applicant is entirely one relating to the enforcement of relevant provisions of the planning laws concerning the grant of development consent to the Company for its proposed event and no complaint is made by Mr Jeray of any impact on the Applicant, the issue of damages does not require consideration.

No undertaking as to damages is offered

72. As earlier discussed at [20] to [23], Mr Jeray declined, on behalf of the Applicant, to offer the usual undertaking as to damages and costs. He proposed that I should conclude, on the basis of his affidavit evidence, that the Applicant was pursuing these proceedings purely on a public interest basis. I have earlier set out his explanation as to why some formalisation of the Applicant as a not-for-profit corporation had not yet been achieved.

73. The first step is to consider whether the litigation can be characterised as having been brought in the public interest. For present purposes, given the nature of the matters about which the Applicant complains and the absence of any demonstrated, or otherwise, obvious proprietary interest of the Applicant in the bringing of the litigation, I am satisfied that it is appropriate to characterise it as being brought in the public interest, as it seeks to uphold what the Applicant considers are requirements of the statutory planning system in circumstances where the Applicant asserts that the processes undertaken by the Panel and/or the Council have not been carried out in accordance with the necessary mandated requirements.

74. In response to this broad proposition advanced on behalf of the Applicant, Mr To, as earlier noted, relied on the discussion in Save Our Figs Inc v General Manager Newcastle City Council (2012) 186 LGERA 127; [2011] NSWLEC 207 (Save Our Figs), at [68] to [72]. Biscoe J there adopted the approach he had earlier taken in earlier litigation concerning the proposed felling of the same trees (Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 - Parks and Playgrounds) (being a costs application in the earlier litigation). He had applied the approach adopted by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 (Caroona (No 3)) at [13] (also a decision concerning costs) - being that there needed to be “something more than mere characterisation of the litigation as having been brought into public interest”. In Save Our Figs, Biscoe J held that “something more” was also required to permit discretionary financial protection to be afforded to an initiating party in public interest planning litigation.

75. Biscoe J, in Save Our Figs, also approached the question of whether a party seeking to take advantage of the public interest exception, in r 4.2(3) of the Court Rules, also needed to demonstrate that there was “something more than mere characterisation of the litigation as having been brought in the public interest” when consideration was being undertaken, on the balance of convenience, as to whether a prohibitory injunction should be granted.

76. Given the nature of the matters I have earlier set out concerning the inconsequential nature of the potential for environmental harm (despite the concession noted on behalf of the Company, for these interlocutory proceedings only, that the Applicant had an arguable case concerning the complaints about non-compliance by the Panel and/or the Council of mandated processes), I am satisfied that, for these interlocutory purposes, “something more” than that embodied in the Company’s concession has not been demonstrated by the Applicant that would permit it to be afforded the protective operation of r 4.2(3) of the Court Rules.

77. As a consequence, the refusal of the Applicant to offer the usual undertaking as to damages and costs weighs against the granting of the injunction now sought by the Applicant.

78. In the event that I might be wrong in reaching this conclusion, I note that the Applicant is an entity of very recent incorporation and has, as can be seen on page 3 of Exhibit 3, a paid-up capital of $1.00 so that the reasonable inference would be that, had the Applicant offered the usual undertaking, it would have been of no functional effect and, therefore, to be disregarded.

Preservation of the status quo

79. In Tegra, at [34], Preston CJ said:

34   The basis for the grant of an interlocutory injunction is the need to preserve the status quo so that if, at the final hearing, the applicant obtains a judgement in its favour, the respondent will have been prevented from acting in the meantime in such a way as to make that judgement ineffectual.

80. He then observed, at [35], that “where other factors are evenly balanced, the status quo should be preserved” (citations omitted). He then continued, saying:

… In environmental cases, preserving the status quo would include preserving the environment from harm, particularly irreversible damage.

81. I later discuss the unusual position which arose in these proceedings where I had offered to proceed directly to the substantive hearing with me undertaking to give a decision on the substantive issues prior to the Company's event taking place. For reasons later set out in more detail, Mr Jeray declined this opportunity. In this context, I am satisfied that there is no factor weighing in favour of preservation of the status quo pending the determination of the substantive proceedings.

82. In so determining, I am fortified by my earlier set out conclusions as to the minimal nature of any potential environmental harm which might be occasioned by the Company being permitted to continue holding the event.

The nature of the interlocutory relief sought

83. As is to be expected in litigation of this type, the Applicant seeks a prohibitory injunction - one which would prevent the Company’s event going ahead as scheduled. However, as Preston CJ observed in Tegra, at [39], whether the injunction sought was prohibitory or mandatory:

39   … the court should grant an interlocutory injunction whenever refusing such relief would carry a greater risk of injustice than granting the relief.

The relative strength of each party's case

84. Given the concession made by the Company for the purposes of these interlocutory proceedings, there has not been any necessity to explore, in any fashion whatsoever, the relative strength of each party's position on the alleged breaches by the Panel and/or the Council as advanced in the Applicant’s Summons and supported by the grounds set out in Annexure A to Mr Jeray’s affidavit of 30 April 2021.

85. As a consequence, this potential factor plays no part in my current balancing consideration.

Are there any relevant equitable considerations?

86. In these proceedings, the Company makes no complaint that there has been any delay (let alone any unreasonable delay) in the Applicant commencing these proceedings.

87. As is described in paragraph 5 of Mr Jeray's affidavit of 30 April 2021, the Council's public notice of its approval of a deferred commencement consent for the Company's activities for which consent was required to permit the event to go ahead was published in the Blue Mountains Gazette on 14 April 2021. The alleged non-compliance by the Council with the mandated requirements for the terms of such a notice forms part of the Applicant's case and forms one element of the fifth declaration sought by the Applicant in its Summons.

88. Under these circumstances, I am satisfied that there are no matters arising under this heading of consideration which weigh against the granting of the injunction sought by the Applicant.

Will there be any prejudice to third parties?

89. I have earlier set out, at [26] to [33], Mr Beeche’s uncontradicted evidence concerning the impacts that will fall on three disparate interest groups if the Company's event is not permitted to proceed. Those interest groups are:

1. The various enterprises in the Katoomba region which could be expected to benefit economically from the attendance of the competitors and spectators at the event. Mr Beeche gave general quantitative evidence concerning the per capita expenditure to be expected from each of the competitors of $239 per person and a (surprisingly precise) gross economic benefit to the Katoomba region of $3,239,984 (see [30] above);

2. Mr Beeche also gave uncontradicted evidence concerning the impact on service suppliers to the event and on exhibitors who were to display their goods and services at the “Expo” being held in conjunction with the event; and

3. Mr Beeche also gave uncontradicted evidence of the impact on the competitors who had registered to participate in the event, there being some 7,159 of them (see [31] above).

90. Whilst I can conclude that the impact on the latter group of third parties (competitors) who would be affected if the event did not go ahead might be significantly ameliorated - for reasons submitted by Mr Jeray based on the element of Annexure E to his affidavit of 30 April 2021 reproduced earlier at [45], the same cannot be said with respect to the first two categories of parties who will be impacted if the Applicant is granted an injunction to prevent the event taking place.

91. I am satisfied, on the basis of Mr Beeche’s uncontradicted evidence earlier set out, that the prejudice to the first two categories described would be of great significance, particularly in circumstances of the well-known adverse economic impacts that have flowed from necessary public health policy restrictions imposed as a consequence of the impact of the COVID-19 pandemic over at least the past 12 months.

92. These potential adverse economic impacts weigh significantly against the granting of the injunction sought by the Applicant.

The public interest

93. In Tegra, at [53] to [56], Preston CJ set out a number of factors potentially weighing as to the public interest in proceedings such as these. He observed, at [53]:

53   … The public interest is multi-faceted and may be a factor in favour or against the granting of an interlocutory injunction.

94. His Honour cited the well-known principles set out by Kirby P in Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335. For present purposes, I have regard to the sixth of those principles, it being that:

6.   Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens.

95. Here, the enforcement action is sought by a private corporate entity, the Applicant, as is its right pursuant to the open standing provisions in s 9.45 of the Environmental Planning and Assessment Act 1979, by which it seeks to restrain what the Applicant considers are multiple breaches of the mandatory planning regime. However, although this is a factor of public interest consideration, it is not to receive any additional weight compared to that which would arise if the enforcing entity was a public body charged with that role.

96. In addition, here, as in Tegra, at [57]:

57   … The carrying out of the works and the use of the land are, therefore, currently lawful. The case differs from the situation where a respondent is prima facie the carrying out development without lawful authority.

97. As noted by Preston CJ in Tegra, the concept of the public interest is multi‑faceted. In this instance, the Applicant seeks to uphold the planning regime which it asserts has been breached by the Panel and/or the Council with respect to a number of mandatory requirements.

98. On the other hand, impacts on the three interests, earlier described at [59] (particularly the first and second of them), are also matters where potentially broad public impacts, well beyond any impacts on the Company, would arise and, in these circumstances, these are clearly to be regarded as a facet of the public interest.

The time period before a final hearing of the matter

99. I have earlier noted that the application for an interlocutory injunction came before me on the afternoon of Friday 7 May 2021 in circumstances where the Company’s event is scheduled to commence on Thursday 13 May 2021. Because of the comparatively confined nature of the matters which are outlined in the Applicant's Summons and in Annexure A to Mr Jeray’s affidavit of 30 April 2001 (Annexure A, in effect, comprising particularisation in some detail of the grounds upon which the Applicant would seek to rely at the substantive hearing), I indicated that, rather than continuing to hear the matter on an interlocutory basis, I was prepared to treat the evidence which had already been admitted (comprising Mr Jeray’s affidavits and Mr Beeche's affidavit) as being evidence in the substantive proceedings and to then continue to hear the substantive proceedings for the remainder of the afternoon and all day Monday (including starting early and truncating the morning and luncheon adjournment periods, if necessary).

100. This offer was repeated by me on several occasions during the course of the Friday afternoon hearing. On each occasion, Mr Jeray was granted a short adjournment (without opposition) to permit him to consider whether he wished to proceed on this basis.

101. Mr Jeray raised with me two matters which he regarded as impediments to this course. The first was that he would wish to require the attendance of several officers of the Council to give evidence and, second, he proposed to seek to require the Council to produce documents which he regarded as relevant to the Applicant's case.

102. As to the first of these matters, I indicated that I was not in a position, on short notice, to order attendance of such council officers absent the issuing of subpoenas to them requiring them to attend and give evidence.

103. As to the latter position, it is clear that Mr Jeray has been in dispute with the Council for some time (including prior to the incorporation of the Applicant) in his quest to have access to papers held by the Council concerning the Company's event. This is evidenced by a decision in the Civil and Administrative Tribunal concerning an application by Mr Jeray pursuant to the Government Information (Public Access) Act 2009 (Jeray v Blue Mountains City Council [2021] NSWCATAD 67 - 17 March 2021). As Mr Jeray was unwilling to proceed immediately to a final hearing, it was entirely inappropriate that I compel that that occur.

104. However, the fact that the offer was made and rejected, for the reasons I have outlined, in circumstances where Mr Jeray could be assumed to know that an injunction as sought would inevitably lead to the cancelling of the event, diminishes the weight to be accorded to the fact that declining to issue an injunction restraining the Company from proceeding with the event would, to a very significant result (if not complete effect), render the proceedings nugatory.

Conclusion

105. The balance of convenience, I am satisfied, is overwhelmingly in favour of denying the Applicant the interlocutory injunction which it seeks.

106. The limited range of matters weighing in favour of restraining the Company (the minimal and transitory nature of any environmental impacts), coupled with the desirability of upholding the integrity of the planning system, cannot, in this instance, counterbalance the quite significant economic impacts that would fall on the businesses in the Katoomba region which will benefit if the event proceeds and similar benefits that would accrue to the exhibitors of the goods and services at the “Expo” being conducted in conjunction with the event. To these adverse economic impacts must be added the adverse economic impacts on the direct suppliers of goods and services to the Company for the purposes of conducting the event.

107. Although it might be that less weight should be given to the impact on the Company itself or to competitors registered for the event - as the Company’s cancellation policy earlier set out at [45] shows that there would be some cost and inconvenience to the Company, and, certainly, inconvenience to the registered competitors - I conclude that these are of less (but by no means no) importance when compared to the earlier third-party adverse impacts.

108. Whilst declining to grant the interlocutory injunction now sought will have the effect of frustrating the Applicant’s desire to prevent the carrying out of the event in 2021, if the Applicant's complaints turn out to be well‑founded in the determination made from the final hearing that will provide significant guidance to the Panel and/or the Council in the consideration and determination process for any activities for future conduct of the event (as it is clearly the Company's intention, it is to be inferred, that the event will be repeated in future years).

109. Under all circumstances, I am satisfied that the application for an interlocutory injunction should be refused, resulting in the Applicant's Notice of Motion being dismissed.

Costs

110. The elements of Mr Jeray's submissions overall on the public interest nature of the proceedings necessarily implied (although he did not specifically address) the proposition that the Applicant should be protected from the making of any adverse costs order by virtue of r 4.2(1) of the Court Rules. This rule is in the following terms:

4.2   Proceedings brought in the public interest

(1)   The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

111. I have earlier addressed why this litigation could not be regarded as having “something more”, at this interlocutory stage, in the sense discussed in Parks and Playgrounds. The principles upon which Biscoe J's decision in Parks and Playgrounds was based were those in Caroona (No 3) and Save Our Figs, these being as to what might be necessary for the shield in r 4.2(1) of the Court Rules being available to an Applicant pursuing what is characterised as public interest litigation to protect the framework of the planning system. The requirement, as earlier explained, is that there must be “something more” than simply being public interest litigation.

111. I have earlier explained why I am satisfied, in the context of whether or not the usual undertaking as to damages should be excused in these proceedings, that it was not appropriate to do so as there was not “something more” demonstrated at this time in these interlocutory proceedings. That position applies, equally, to the question of costs of this Notice of Motion. As a consequence of there not being “something more”, it is appropriate that the Applicant be ordered to pay the Company’s costs of this Notice of Motion as agreed or assessed.

112. This determination, self-evidently, applies to these interlocutory proceedings only. It may well be that, at the substantive hearing, the Applicant can demonstrate that there is “something more” and that costs’ protection should be afforded to it in the event that it fails at the substantive hearing.

Orders

114. The orders of the Court are:

1. The Applicant’s Notice of Motion is dismissed;

2. The Applicant is to pay the Second Respondent’s costs of the motion as agreed or assessed;

3. The Applicant’s Summons is set down before the List Judge on 14 May 2021 for further directions; and

4. The exhibits are returned.

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Amendments

12 May 2021 - [12] amended to correct the hearing date from 7 April 2021 to 7 May 2021.

Decision last updated: 12 May 2021