Sunline Developments Pty Ltd v City of Campbelltown and Genesis Equity (SA) Pty Ltd - [2006] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SUNLINE DEVELOPMENTS PTY LTD v CITY OF CAMPBELLTOWN AND GENESIS EQUITY (SA) PTY LTD
[2006] SASC 270
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
30 August 2006
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING
Appeal against order of Judge of Environment Resources and Development Court granting a permanent injunction to restrain tree-damaging activity - following grant of an interim injunction, issue between parties was resolved by conclusion of a Land Management Agreement and grant of Development Approval - whether Judge erred in granting the permanent injunction - Held - no basis for injunctive relief made out - both permanent and interim injunctions were too broad and failed to identify adequately activity restrained - appeal allowed - permanent injunction set aside - costs order set aside - action dismissed - Council to pay costs of Genesis and Sunline of the trial and of appeal to be taxed.
Development Act 1993 (SA) s 57(2), s 85, referred to.

SUNLINE DEVELOPMENTS PTY LTD v CITY OF CAMPBELLTOWN AND GENESIS EQUITY (SA) PTY LTD
[2006] SASC 270
Full Court: Bleby, Gray and Anderson JJ
BLEBY J:

I agree with the orders proposed by Gray J. It appears that the interim ex parte injunction was made with less than the full disclosure required of the applicant. If the injunction application was to proceed, it should have proceeded on notice. It is doubtful, in those circumstances, that an order would have been justified.
After the parties had conferred, the amended Development Approval obtained and the Land Management Agreement entered into, there were no grounds for apprehending that Genesis would not proceed with the development in accordance with that approval and the agreement. There was no suggestion that by doing so Genesis would become involved in any tree damaging activity. There was no justification for the permanent injunction. It follows that I agree with the reasons of Gray J.
The other issues debated before the Environment Resources and Development Court ceased to be relevant following the agreement resulting in the granting of the amended Development Approval and the execution of the Land Management Agreement. It was not necessary for the Court or the parties to devote the time and resources that were devoted to them.
I agree that the Council should pay the costs of Genesis and Sunline of the proceedings in the Environment, Resources and Development Court and of this appeal.
GRAY J:
This is an appeal from an order granting a permanent injunction.
Introduction
The City of Campbelltown (“the Council”) issued enforcement proceedings pursuant to section 85 of the Development Act 1993 (SA) in the Environment, Resources and Development Court of South Australia. Genesis Equity (SA) Pty Ltd (“Genesis”) and its contractor, Sunline Developments Pty Ltd (“Sunline”), were undertaking work in suburban Adelaide. It was the Council’s case that tree-damaging activity was occurring. The Council sought and obtained an ex parte interim injunction to restrain the tree damage. The Council proceeded to trial and obtained a permanent injunction. The trial Judge ordered that:
1Genesis Equity (SA) Pty Ltd is restrained from undertaking tree damaging activity in relation to significant trees on the land at 101 Morialta Road, Rostrevor, South Australia, being the land comprised in Certificate of Title Register Book Volume 5705 Folio 320 without first having obtained development approval for that tree damaging activity.
2Genesis Equity (SA) Pty Ltd must pay 60% of the Council’s costs of this action.
3Sunline Developments Pty Ltd must pay 40% of the Council’s costs of this action.
Genesis complained on appeal that the interim and permanent injunctions were wrongly granted, both as a matter of fact and of law. Sunline was not subjected to the permanent injunction. However, Sunline asserted that the interim injunction should not have been granted and that in any event, orders for costs made against it should be set aside and costs ordered in its favour.
The Facts
In or about October 2003, Genesis engaged Sunline to construct a car park on land at Rostrevor. Sunline commenced construction works in accordance with a site plan provided to it by Genesis and in accordance with Development Approval issued by the Council on 12 June 2003.
On 16 October 2003, the Council directed Sunline to stop construction works. Initially, the Council gave that direction orally and then confirmed it in writing within 24 hours.
The Council issued proceedings on 17 October 2003, pursuant to section 85 of the Development Act, seeking the following orders:
1That [Genesis and Sunline] be restrained from breaching the Development Act 1993 (“the Act”) by undertaking development, namely tree damaging activity in relation to Significant Trees on the land situated at 101 Morialta Road, Rostrevor in the said State being the land comprised in Certificate of Title Register Book Volume 5705 Folio 320 (“the Subject Land”) without first having obtained a Development Approval from the relevant Planning Authority.
2That an interim Order be made immediately restraining [Genesis and Sunline] from breaching the Act in the manner specified above.
3That in any final Order [Genesis and Sunline] make good the breach of the Act in the following manner:
3.1    Remove all earthworks from the base of all Significant Trees on the Subject Land;
3.2    Removal of those Significant Trees at the cost of [Genesis and Sunline], which, as a result of the level of tree damaging activity that has occurred can no longer survive;
3.3    Replacement of those Significant Trees mentioned in 3.2 with replacement trees of an indigenous species of advanced growth to be planted in a location on the Subject Land approved by Council;
3.4    Remedial works to be undertaken by [Genesis and Sunline] to ensure the survival of the remaining Significant Trees that have been damaged but may still be able to survive.
The application proceeded ex parte and was supported by an affidavit filed by the Manager of City Development at the Council.
The affidavit established that, following a complaint made in relation to the car park construction works, the City Development Manager attended on site on 16 October 2003 and observed construction works being undertaken. The city manager noted that earthworks were being mounded against the base of a number of trees described as “Significant Trees”. The Manager then arranged for a qualified arborist to attend on site.
On 16 October 2003, the senior planner of the Council attended on site. The senior planner made observations of work being undertaken. The senior planner, pursuant to section 84(3) of the Development Act, issued an oral direction to the two workmen on site, both employees of Sunline, to cease carrying out any further construction work until further notice. The affidavit did not disclose what response, if any, there was to the oral direction.
The Interim Injunction
The application for the interim injunction was heard on 17 October 2003 by the Environment, Resources and Development Court. A Judge of the Court granted an injunction inter alia as follows:
Upon hearing Ms Ryan of Counsel for [the Council] and upon reading the Affidavit of Shelagh Catherine Noble this Court does order:-
…
2That [Genesis and Sunline] be immediately restrained from breaching the Development Act 1993 (“the Act”) by undertaking development, namely tree damaging activity in relation to Significant Trees on the land situated at 101 Morialta Road, Rostrevor in the said State being the land comprised in Certificate of Title Register Book Volume 5705 Folio 320 (“the Subject Land”) without first having obtained a Development Approval from the relevant Planning Authority.
In accordance with the oral direction, the construction works on site stopped immediately. They have not resumed. It is relevant to record that those events following the delivery of the oral direction were not disclosed to the judge at the time of the seeking of the interim injunction.
On 17 October 2003, a written enforcement notice was served on Genesis directing that Genesis “make good the breach [i.e. tree damaging activity] by immediately ceasing any further grading and compaction causing tree damage until further notice”.
On appeal, the question of the appropriateness of the granting of the interim injunction was debated. Genesis and Sunline submitted that as there was immediate compliance with the oral direction given pursuant to section 84, there was no need for any injunctive relief, let alone ex parte injunctive relief. This topic is discussed later in these reasons.
The Land Management Agreement
Following the cessation of work, discussion ensued between Genesis and the Council. Experts’ reports were exchanged concerning the topic of tree damage. The ongoing discussion led to an application for provisional Development Plan Consent to vary the car park layout. On 18 January 2005, the Council granted Development Approval with respect to this application. This approval recorded that:
The Consent or Approval indicated on the attached Decision Notification Form has been granted subject to the following conditions.
Then followed a number of detailed conditions most of which were designed to preserve and protect existing trees on the land.
On 11 April 2005, a Land Management Agreement was entered into between the Council and Genesis. This agreement incorporated the new car park plan as well as a tree-management program. The agreement was executed as a deed. It recited that the deed was made pursuant to section 57(2) of the Development Act. The agreement related to the future development of management, preservation and conservation of the subject land. The agreement set out the obligations of Genesis as follows:
THE OWNER’S OBLIGATIONS’
4[Genesis] agrees that the trees shall be preserved and maintained in accordance with the Maintenance Guidelines attached hereto and marked Annexure “C”.
5[Genesis] shall not cause, suffer or permit any tree damaging activity within the meaning of the Act to be undertaken on the trees in contravention of the provisions of Annexure “C”.
Provision was made for Council’s powers of entry in the following terms:
COUNCILS POWERS OF ENTRY ETC
7The requirements of this Deed are at all times to be construed as additional to the requirements of the Act and any other legislation affecting development of the said land AND the consent of the Council pursuant to this Deed shall be obtained prior to the Owner seeking any consent under the Act. Nothing contained in this Deed shall fetter the Council in the exercise of its discretion as the Relevant Authority under the Act.
8The Council or any employee or authorised officer of the Council may at any reasonable time upon giving 24 hours written or verbal notice to [Genesis] or any occupier enter into and upon the said land for the purposes of:-
8.1 inspecting the said land; and
8.2 exercising any other powers of the Council under this Deed or pursuant to law.
PROVIDED HOWEVER the Council or any employee or authorised officer shall not be required to give such notice if in the reasonable opinion of the Council or such employee or authorised officer urgent entry is required.
9If [Genesis] is in breach of this Deed the Council may by notice in writing served on [Genesis] require [Genesis] to remedy the breach within such time as nominated by the Council in the notice (not being less than twenty-eight days (28) of the date of service of the notice and if [Genesis] fails to so remedy the breach the Council or its servants or agents may carry out the requirements of the notice and in so doing may perform any necessary works upon the land and recover any costs thereby incurred from [Genesis].
10The Council may delegate any of its powers under this agreement to any person.
The deed also recorded the existence of eight Significant Trees on the land. In particular, the recitals in the deed provided:
Eight significant trees are located on the land (“the trees”). Those trees are more particularly delineated as “Existing Trees all to be retained” and are numbered 1 to 8 on the car parking plan attached hereto and marked Annexure “A”. Specific information on each of the trees is set out in the Table attached hereto and marked Annexure “B”.
Annexure B provided, in respect of each of the eight trees, an estimate of age, a description of species and dimensions, a comment about the health and details about structure.
Annexure C provided maintenance guidelines in the following terms:
MAINTENANCE GUIDELINES
YEARLY
[Genesis] shall ensure that the following maintenance works are undertaken on the trees each year:
1The irrigation system function and setting must be inspected three (3) times per year at regular intervals.
2During each such inspection the filter system must be cleaned and the output system adjusted as required.
3The trees health and condition shall be monitored regularly throughout the year and any site issues which may impact on the health and safety of any or all of the trees shall be addressed and such action taken as required to protect the health and safety of the tree(s).
BI-ANNUALLY
[Genesis] shall ensure that the following maintenance works are undertaken on the trees every two (2) years:
4A qualified arborist shall be engaged to undertake an assessment and provide a report on the health and safety of Trees 1, 2, 3, 4, 5, 6, 7 and 8. A copy of the arborist’s report shall be provided to Council.
5A qualified arborist shall be engaged to undertaken crown reductions in the order of 10-15% of the total volume where required on each of the trees.
6The area beneath each of the tree crowns on each of the trees shall be topped up with mulch to maintain a 50-75mm thick layer of organic mulch.
ONGOING MANAGEMENT
[Genesis] shall ensure that:
7The irrigation of trees 2, 3 and 4 is reduced by 25% per year from year 6 so that by year 10 trees 2, 3 and 4 receive no water other than natural rainfall.
8Management of the irrigation system on each of the trees is to end in year 9.
The Development Approval and the Land Management Agreement resolved the dispute between the Council and Genesis and, by necessary implication, any dispute between the Council and Sunline. Sunline, as earlier observed, was the contractor undertaking the construction work at the site on behalf of Genesis. One matter that remained unresolved was the costs of the proceedings taken by the Council in the Environment Court.
The Permanent Injunction
Notwithstanding that there had been compliance with the oral and written enforcement notices, as well as with the amended Development Approval and the Land Management Agreement, the Council determined to proceed in the Environment Court, seeking a permanent injunction and costs.
On 2 May 2005, the Council gave notice of the orders that it sought. Relevantly, the notice provided:
That [Genesis and Sunline] be restrained from breaching the Development Act 1993 (“the Act”) by undertaking further development, namely tree damaging activity in relation to the eight significant trees upon which tree damaging activity occurred on or around the 15th day of October 2003 without having obtained a Development Approval from the relevant Planning Authority. Such trees are located on the land situated at 101 Morialta Road, Rostrevor in the said State being the land comprised in Certificate of Title Register Book Volume 5705 Folio 320 (“the Subject Land”) and are depicted on the attached plan marked Exhibit A1 and are described in the attached table marked Exhibit A2.
That [Genesis and Sunline] pay the [Council’s] costs to be agreed or taxed.
Exhibit A to the notice comprised the same text as annexure A to the Land Management Agreement. Exhibit A2 to the notice comprised the same text as annexure B to the Land Management Agreement.
The proceedings came before the Environment Court for directions on that day. The record of outcome provides inter alia:
[Counsel for] the applicant, requested that matter be listed for hearing of the matter in relation to the draft minutes of order handed up today.
The trial proceeded in early August 2005. The Judge granted a permanent injunction and made orders for costs as previously outlined. In her reasons, the trial Judge, having set out relevant background matters, observed:
Negotiations between the parties followed the making of the interim order. Ultimately, this process resulted in the carpark being redesigned, and development approval being sought and obtained for the new design. A land management agreement, the subject matter of which was the new carpark design and a tree management regime, has now been signed by the Council and Genesis. Despite this, the parties have been unable to settle these proceedings.
The trial Judge then considered whether a tree identified as tree No 1 was a Significant Tree; whether tree-damaging activity had occurred; the effect of the Development Approval originally granted; and the exercise of the Judge’s discretion to grant a permanent injunction.
The Judge concluded that tree No 1 was a Significant Tree; that tree-damaging activity had occurred; and that the Development Approval did not authorise the tree-damaging activity that had occurred. It is with this background that the Judge came to consider her discretion with respect to the granting of a permanent injunction. Her Honour’s reasons in this respect are succinct:
The Council seeks an order restraining the respondents from undertaking tree damaging activity without approval.
[Counsel for Genesis] argued that the making of an order against Genesis under s 85 would now serve no purpose, in the light of the outcome of the negotiations which have taken place. There is no doubt that the Court has a discretion as to whether to make the orders sought. Taking all of the evidence into account, I am satisfied that a breach of the Act has occurred, in that tree damaging activity has taken place or been threatened in relation to trees 1, 2, 3, 4, 5, 6, 7 and 9. I am satisfied that Genesis, as the owner, at the very least suffered that development to occur on the land, and therefore undertook it within the meaning of the Act. The trees remain on the land. There is evidence that they will require further work. There is a land management agreement in place which makes some provision for that. There is no evidence from any officer of Genesis as to future intentions with respect to the land. In all of the circumstances, I will make the order sought against Genesis.
[Counsel for Sunline] argued that [Sunline] should not be the subject of any order because, in effect, it has no on-going relationship with the land. It was merely Genesis’ contractor. It seems to me that there is no need for a restraining order against [Sunline].
I will hear the parties with respect to the Council’s application for costs.
The Judge then heard argument on costs and published separate reasons for her costs orders. As earlier noted, the Judge ordered that Genesis pay 60 per cent of the costs of the Council and that Sunline pay 40 per cent of the costs of the Council. Her Honour dismissed an application by Sunline for costs and damages. I will return to the issue of costs later in these reasons.
The Appeal
Injunctive Relief

Counsel for Genesis submitted that the Judge, when granting a permanent injunction, failed to have proper regard to the terms of the Development Approval of January 2005 and to the terms of the Land Management Agreement. Counsel said that, when read together, the Approval and the Agreement provided a clear basis for concluding that there was no threat or risk of further tree-damaging activity. Counsel argued that the entry into the Land Management Agreement was cogent evidence of the intention of Genesis to meet the Council’s requirements. There was no evidence to suggest that Genesis were other than entirely bona fides in this respect. Counsel contended that the Judge failed to weigh these matters properly. Counsel further contended that it was an error in reasoning by the Judge to conclude that, as there was no evidence from any officer of Genesis as to future intentions with respect to the land, a permanent injunction should be ordered.
These submissions should be accepted. There was no evidence led on behalf of the Council or before the Court that disclosed any ongoing risk of tree-damaging activity. To the contrary, the evidence disclosed that the oral and written enforcement notices had been complied with; that the amended Development Approval, that addressed the need for tree protection, had been obtained; and that a Land Management Agreement as envisaged by the Development Act had been entered into which provided a tree-management program agreed to by Genesis and the Council.
One might ask, what more could Genesis do? There was no need for evidence from the officer of Genesis as to its future intentions. There was cogent evidence to support a finding that Genesis had acted in a bona fides manner, and had acted responsibly and with the intention of complying with its legal obligations. The Judge appears to have overlooked that the onus was on the Council to establish a threat or risk of damage to support its application. There was no evidence to establish any threat or risk of tree-damaging activity.
Counsel for Genesis further complained that the permanent injunction did no more than require Genesis to meet its legal and contractual obligations. Counsel submitted that it was inappropriate to grant an injunction in terms that did no more than echo a legal obligation.
This submission should be accepted. The permanent injunction does not seek to restrain any specific activity. It does no more than echo existing legal obligations. A permanent injunction should provide with particularity the restrained activity. This order did not do so. For these reasons the permanent injunction should be set aside.
Although the interim order had ceased to have effect, its appropriateness was the subject of challenge. A party proceeding ex parte has an obligation to bring forward all relevant information for and against the application. As earlier observed, there was relevant information known to the Council that was not placed before the Court at the time the ex parte order was sought.
The Judge was not made aware that the oral enforcement notice had been complied with, nor that work had stopped and not resumed. This was relevant and material evidence. The Council fell short of its obligation to inform the Court of all relevant matters. Additionally, there was no reason why the application could not have proceeded inter partes.
The interim order was drawn too widely. Although more specific than the permanent order, it failed to identify the conduct restrained. There was potentially a debate as to what conduct amounted to tree-damaging activity. It was important for the order to identify clearly the construction works to be restrained.
Other Issues
The other grounds advanced on the appeal attacked findings by the trial Judge with respect to the trees on the site and tree-damaging activity that had occurred in the past. Having regard to my foregoing reasons concerning injunctive relief, it is unnecessary to resolve these further grounds of appeal.
Costs
Having regard to these reasons, it is appropriate that the order for the costs made by the trial Judge be set aside. The following orders should be made:
-That the Council pay the costs of Genesis and Sunline of the proceedings in the Environment Resources and Development Court.
-That the Council pay the costs of Genesis and Sunline of this appeal.
Conclusion
I would order that the appeal be allowed, that the order for a permanent injunction be set aside and that the costs order made by the trial Judge be set aside. I would further order that the action be dismissed, that the Council pay the costs of Genesis and Sunline of the trial and of this appeal to be taxed.
ANDERSON J I also agree with the orders suggested by Gray J, and I agree with his reasons for making those orders.