Tamworth Regional Council v Johnson

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tamworth Regional Council v Johnson [2019] NSWLEC 32
Hearing dates:	22 March 2019
Date of orders:	23 March 2019
Decision date:	25 March 2019
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [35].
Catchwords:	INJUNCTION: urgent ex parte application for interim injunctive relief – legal principles to be applied – appropriate to proceed on an ex parte basis – serious question to be tried – potential for real harm to the environment and human health – usual undertaking as to damages given – balance of convenience favours granting of interim injunction for limited period of duration.
Legislation Cited:	Protection of the Environment Operations Act 1997, ss 9, 252 Uniform Civil Procedure Rules 2005, r 36.17
Cases Cited:	Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Category:	Procedural and other rulings
Parties:	Tamworth Regional Council (Plaintiff) Jennifer Lynette Johnson (Defendant)
Representation:	Counsel: Mr Peter McEwen SC (Plaintiff) N/A (Defendant)   Solicitors: Coutts Mallik Rees Solicitors (Plaintiff) N/A (Defendant)
File Number(s):	2019/91274
Publication restriction:	N/A

Judgment

Tamworth Regional Council Seeks to Restrain the Demolition of a Structure on Land Contaminated by Asbestos

1. An application by the plaintiff, Tamworth Regional Council (“the Council”), for an ex parte interlocutory injunction, came before the duty judge on the evening of Friday, 22 March 2019.

2. The Council sought to restrain the defendant, Ms Jennifer Johnson, from demolishing, disturbing, or removing, in whole or in part, a structure on land owned by her at 24 Northbrook Lane, Manilla (“the Property”), primarily on the basis that the land and the structure are contaminated with friable asbestos. The Property is on a suburban lot located in a residential area, approximately 300m from a school.

3. The Court determined that the injunction should be granted, however, because it was sought and obtained on an ex parte basis, the relief ordered was of limited duration, namely, until such time as the matter could be brought back before the Court.

4. Due to the time at which the application concluded, in granting the relief the Court gave brief oral reasons with the promise of a more fulsome judgment to be published prior to the matter returning before the Duty Judge. This is that judgment.

The Application for Interlocutory Relief Was on an Ex Parte Basis

5. The granting of ex parte injunctions ought to be rare. It is generally only appropriate to entertain an application for injunctive relief where no notice has been given in circumstances where the giving of such notice would enable the defendant to take steps to defeat the subject matter of the injunction, or there has literally been no time to give or obtain notice before the injunction is required to prevent or halt the alleged unlawful act.

6. In International…