Sydney Water Corporation v Maranik

[2025] NSWLEC 114

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sydney Water Corporation v Maranik [2025] NSWLEC 114

Hearing dates:

10 October 2025

Date of orders:

10 October 2025

Decision date:

10 October 2025

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

See orders at [25]

Catchwords:

INTERLOCUTORY APPLICATION – injunctive relief – serious question to be tried – balance of convenience

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) s 9.46

Sydney Water Act 1994 (NSW) ss 102(1)

Cases Cited:

Hawkesbury City Council v Mustapha Kara-Ali [2018] NSWLEC 105

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

Category:

Principal judgment

Parties:

Sydney Water Corporation (Applicant)
Eric Maranik (First Respondent)
Monica Ross-Maranik (Second Respondent)

Representation:

Counsel:
R Coffey (Applicant)

Solicitors:
Wotton Kearney (Applicant)

The respondents did not appear.

File Number(s):

2025/00379308

Publication restriction:

Nil

JUDGMENT

Background

1. By way of summons filed on 2 October 2025 (the summons), Sydney Water Corporation (the applicant) seeks interim relief pursuant to s 102(1) of the Sydney Water Act 1994 (NSW) and s 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that Eric Maranik (the first respondent) and Monica Ross-Maranik (the second respondent), either themselves or through their agents, are prohibited from carrying out any development on a property at 117B Seaforth Road, Seaforth NSW 2092 (Lot 21 of DP 871376) (the land).

2. The summons seeks final relief pursuant to s 102(1) of the Sydney Water Act that the first respondent and the second respondent, either themselves or through their agents, are prohibited from carrying out any development on the land unless and until the applicant grants approval for the development or works to be carried out on, in or over any structure owned or under the control and management of the applicant; and further order, pursuant to s 9.46 of the EPA Act, that the first respondent and second respondent, either themselves or through their agents, are prohibited from carrying out any development on the land, unless and until development consent is obtained.

3. At around 10:37am this morning, the applicant sent a notice of motion by email to the Court. The respondents’ solicitor, Ms Wendy Jacobs, was included in that email.

4. Shortly after midday, my chambers was notified that the applicant had filed a notice of motion seeking interim relief. The notice of motion was listed before me, as duty judge, at 2:00pm today.

5. In Court this afternoon, the applicant filed a notice of motion seeking the following orders:

1 The Applicant’s Summons be returnable instanter before Duty Judge.

2 The Court notes the undertaking of the Applicant’s solicitor to pay any filing fee in respect of the Notice of Motion within 48 business hours.

3 The Court make orders granting the interim relief sought in Prayer 1 and Prayer 2 of the Applicant’s Summons filed on 2 October 2025.

4 The Court make case management orders.

5 Costs of the Motion are reserved.

6. Mr Coffey appeared for the applicant. The respondents did not appear. However, Mr Coffey’s solicitor Laura O’Toole gave evidence that she had received an email from the Court advising of the listing this afternoon at 2:00pm, and that she had spoken with the respondents’ solicitor on the record, Ms Wendy Jacobs, via telephone shortly thereafter, and Ms Jacobs had advised that there would be no appearance this afternoon for the respondents.

7. At the hearing this afternoon, the applicant read the following affidavits:

1. James Clohesy, solicitor on the record for the applicant, dated 1 October 2025; and

2. Frank Vidovic, team leader, operational services team, Sydney Water Corporation, dated 2 October 2025.

8. The applicant tendered the following evidence:

1. exhibit JFC-1 to the affidavit of James Clohesy dated 1 October 2025 (Exhibit A);

2. exhibit FV1 to the affidavit of Frank Vidovic dated 2 October 2025 (Exhibit B); and

3. volume 1 of the applicant’s court book relied upon for the purpose of the application (Exhibit C).

9. It appears that the parties have been in dispute since February 2023 in relation to work that the respondents seek to carry out on the land in relation to Sydney Water infrastructure, namely, a sewer main. On a number of occasions, the respondents have provided an undertaking to the applicant not to undertake works involving the encasing of or shrouding over the top of the sewer main until the issues in dispute between them are resolved. On 30 May 2023, the applicant and respondents entered a Developers Work Deed (the Deed) concerning the land and the construction of a dwelling identified in plan DA04_Rev H_14 February 2020 (the dwelling).

10. The dispute presently between the parties concerns the construction of the Deed and the impact of the works proposed to be carried out on sewerage services to the Seaforth area. Today, the applicant drew attention to a previous instance involving the impact of works to a sewer main, referred to as the Laura Street incident. There appears to be an argument between the parties as to whether the Deed has been repudiated.

11. I have determined to make the following orders:

1. ORDERS, until 5:00pm on Wednesday 15 October 2025, pursuant to s 102(1) of the Sydney Water Act 1994 that the Eric Maranik (the first respondent) and Monica Ross-Maranik (the second respondent) are prohibited from carrying out any development or works on land legally described as Lot 21 of DP 871376 (117B Seaforth Road, Seaforth NSW 2092) (the land).

2. ORDERS, until 5:00pm on Wednesday 15 October 2025, pursuant to s 9.46 of the Environmental Planning and Assessment Act 1979 that the first respondent and second respondent are prohibited from carrying out any development or works on the land.

3. ORDERS, that the applicant’s notice of motion filed in Court on 10 October 2025 be listed for hearing before the duty judge on Wednesday 15 October 2025 at 10:00am.

4. ORDERS, the respondents to file and serve any evidence they intend to rely on in respect to the applicant’s notice of motion for interim relief by 3:00pm on Tuesday 14 October 2025.

5. ORDERS, that the question of costs of the applicant’s notice of motion be reserved.

6. ORDERS, that the parties are granted leave to apply to restore the proceedings on 24 hours’ notice.

7. ORDERS, solicitor for the applicants to send a copy of these orders to the solicitor for the respondents by 6pm on Friday 10 October 2025.

Legal principles

12. The principles governing the grant of an interlocutory injunction include whether there is a serious question to be tried and whether the balance of convenience favours the making of an interim order pending trial: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6] (Preston CJ) (Tegra). The Court will also consider whether the applicant has provided the usual undertaking as to damages.

13. In Tegra, Preston CJ said at [7]-[8] in relation to a “serious question to be tried”:

…The applicant must identify the legal (which may include statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought (which need not be injunctive in nature). A court does not have jurisdiction to grant an interlocutory injunction where no legal (including statutory) or equitable rights are to be determined: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [15], [16], [60]-[62], [91], [159](4) and [246].

In this case, Tegra has established that there are serious questions to be tried in relation to breaches of the Act in the grant by the Council of the development consent and in the subsequent notification of the consent. Martin Hay concedes as much for the purposes only of the application for interlocutory injunctive relief.

14. In relation to the balance of convenience, the Court must consider whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if the injunction were granted: Tegra at [13].

15. 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: Tegra at [17]. Similarly, in such 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: Tegra at [18].

Serious question to be tried

16. In relation to a serious question to be tried, the applicant contended that the proposed works gives rise to the following issues:

1. the approval by the applicant pursuant to s 44 of the Sydney Water Act;

2. development consent for the purposes of the EPA Act;

3. whether the proposed works will destroy, damage or interfere with the applicant’s infrastructure; and

4. the status of the Deed.

17. In determining to grant the interlocutory relief sought this afternoon, and to stand the motion for interim relief over until Wednesday, 15 October 2025 at 10:00am, I am satisfied that the applicant has established a serious question to be tried, namely, in relation to the operation of s 44 of the Sydney Water Act, the construction of the Deed, and whether the Deed has been frustrated.

Balance of convenience

18. In relation to the balance of convenience, the applicant relied on the evidence of Mr Vidovic in respect of:

1. the risk of failure of the sewer main;

2. the risk of a pollution incident;

3. the risk of damage to property and/or the environment (including land or the harbour); and

4. the risk of disruption to sewerage services to other customers in the area.

19. The applicant was aware of, and concerned about, the consequence of a failure during a residential redevelopment nearby (the Laura Street incident) in the same suburb which involved concrete shrouding over a sewer main without realigning. In that case, the sewer main failed at the cement mortar joint(s) and sewage leaked out between the shroud encasement and the rock trench base underneath the building, downhill into the residential stormwater system and into Middle Harbour which is an inlet of the Tasman Sea. The incident was a notifiable pollution event pursuant to the Protection of the Environment Operations Act 1997 (NSW).

20. The applicant submitted that the continuation of the construction of the dwelling on the land without completing either the “Reline & Shroud or Replace & Encase option” would not only interfere with the applicant’s maintenance and operation of the sewer main, but would also significantly increase the risk of the sewer main failing and causing a pollution event in Middle Harbour. This was submitted to be a known material risk as it has occurred on the same asset upstream.

21. I am satisfied in light of the evidence to which Mr Coffey took the Court, and the submissions made by him this afternoon, that the balance of convenience favours the granting of interim relief until 5:00pm, Wednesday 15 October 2025.

Usual undertaking

22. The applicant referred to authority in the United Kingdom in which it has been held that a public authority (such as the applicant here) is not required to provide the usual undertaking as to damages. However, he acknowledged that this line of authority has not been taken up by courts in this country.

23. The applicant also referred, in the context of public authorities seeking interlocutory relief and not proffering the usual undertaking as to damages, Hawkesbury City Council v Mustapha Kara-Ali [2018] NSWLEC 105 where Robson J said at [33]:

[33]  I note that Council has not proferred the usual undertaking as to damages, but as it is a public authority acting in the public interest insofar as there is a real and necessary public interest in upholding the planning laws of the State by Council, I do not consider that this is disentitling. This approach has been frequently adopted by this Court: Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91; Blacktown City Council v Penatrators Pty Ltd [2013] NSWLEC 169; (2013) 199 LGERA 73 at [33]–[35]; Tenterfield Shire Council v Budd [2016] NSWLEC 89 at [13]; Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38 at [22].

24. I am satisfied in the circumstances, where the interim relief I propose to order is only until 5:00pm on Wednesday, 15 October 2025, and that this will ensure that the respondents, if they wish, can appear and be heard in relation to the continuation of interim relief, that the absence of the usual undertaking is not disentitling conduct such as to militate against the orders I will make here. This is particularly so in circumstances where the balance of convenience so strongly favours the granting of the relief sought this afternoon by the applicant.

Conclusion and orders

25. The Court:

1. ORDERS, until 5:00pm on Wednesday 15 October 2025, pursuant to s 102(1) of the Sydney Water Act 1994 that the Eric Maranik (the first respondent) and Monica Ross-Maranik (the second respondent) are prohibited from carrying out any development or works on land legally described as Lot 21 of DP 871376 (117B Seaforth Road, Seaforth NSW 2092) (the land).

2. ORDERS, until 5pm on Wednesday 15 October 2025, pursuant to s 9.46 of the Environmental Planning and Assessment Act 1979 that the first respondent and second respondent are prohibited from carrying out any development or works on the land.

3. ORDERS, that the applicant’s notice of motion filed in Court on 10 October 2025 be listed for hearing before the duty judge on Wednesday 15 October 2025 at 10:00am.

4. ORDERS, the respondents to file and serve any evidence they intend to rely on in respect to the applicant’s notice of motion for interim relief by 3:00pm on Tuesday 14 October 2025.

5. ORDERS, that the question of costs of the applicant’s notice of motion be reserved.

6. ORDERS, that the parties are granted leave to apply to restore the proceedings on 24 hours’ notice.

7. ORDERS, solicitor for the applicants to send a copy of these orders to the solicitor for the respondents by 6:00pm on Friday 10 October 2025.

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Decision last updated: 10 October 2025