Thorpe v Head, Transport for Victoria (Ruling No 2)
[2021] VSC 533
•27 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2020 04091
| MARJORIE THORPE | Plaintiff |
| v | |
| HEAD, TRANSPORT FOR VICTORIA & ORS (according to the Schedule) | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 August 2021 |
DATE OF RULING: | 27 August 2021 |
CASE MAY BE CITED AS: | Thorpe v Head, Transport for Victoria & Ors (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 533 |
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INJUNCTION – Aboriginal Cultural Heritage – Request for directions – Whether specified categories of activities are caught by the interlocutory injunction – Maintenance works – Injunction must be sufficiently clear – Purpose and context of injunction – Preserving the status quo –Proper construction of the term ‘associated works’ - Aboriginal Heritage Act 2006 (Vic) - Aboriginal Heritage Regulations 2018 (Vic) – Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 – Kia Australia Pty Ltd v Chief Executive Officer, Customs [1998] 1060 FCA – Owen Daniel (A pseudonym) v Secretary to the Department of Justice [2015] VSCA 10 - Winslow Constructors v Mt Holden Estates [2004] 10 VR 435.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E. Smith Mr T. Wood Mr J. Murphy | Phi Finney McDonald |
| For the Defendants | Mr C. Young QC Mr T. Barry Ms M. Narayan | MinterEllison |
HER HONOUR:
There is an interlocutory injunction in place over an area defined as the ‘Specified Area’, covering the 12.5km stretch of proposed road upgrade comprising section 2B of the Western Highway Duplication Project[1] (the Project). It restrains the first to fourth defendants (state defendants) from:
… constructing and/or completing the Western Duplication Highway Project Section 2(B) Buangor to Ararat route, and carrying out any associated works in the Specified Area.
[1]The injunction covers the Specified Area as defined by the Map that is Annexure 1 to the Writ filed 28 October 2020.
That injunction was granted on 3 December 2020. The state defendants have issued a summons seeking a direction that specific identified categories of activity and investigation, which are proposed to be undertaken in the area covered by the injunction, do not fall within the description of ‘any associated works’.
This phrase was introduced into the interlocutory injunction that I granted in accordance with my reasons (Reasons).[2] The phrase was not part of the earlier undertaking given to the Court by the state defendants on 28 October 2020, nor in the terms of the interim injunction granted on 29 October 2020. The undertaking and interim injunction identified that the defendants shall not:
construct and/or complete the Western Highway Duplication – Section 2B Buangor to Ararat project insofar as such construction and/or completion is in the Specified Area.
[2]Thorpe v Head, Transport for Victoria and Ors [2020] VSC 804 (‘Reasons’).
The question therefore posed by the summons is the proper construction of the term ‘any associated works’. What is caught by this phrase is capable of some ambiguity. This was recognised in my Reasons, which indicated that I would hear from the parties as to the activities that were to be covered by the injunction.[3] Ultimately, the parties could not agree on activities that were caught by the injunction and the court was not called on at that time to resolve any differences.
[3]Ibid, [90].
The breadth of the interlocutory injunction was argued with a focus on the relevant area to be covered. As my Reasons indicated, three options were canvassed; the Six Trees and their immediate surrounds, the Six Trees and the two focus areas the subject of expert review, or the whole specified area. There was less focus on those activities within that area that were intended to be caught by the injunction. The phrase was not found in the pleadings until amendments in the Further Amended Statement of Claim dated 15 December 2020.
The state defendants rely on two affidavits of Mr D Van Dyke, Project Director, sworn 2 August 2021 and 13 August 2021, the fifth affidavit of Mr B Dodgshun, solicitor, sworn 11 August 2021 and the affidavit of Mr T Price, Program Director, sworn 13 November 2020. The plaintiff relies on the twenty-first affidavit of Mr B Spiegel, solicitor, sworn 18 August 2021 and the Construction Environment Management Plan applicable for Section 2B.[4] She also relies on a variety of documents created for the purpose of the Project, in particular the Incorporated Document dated June 2017,[5] the Environmental Effects Statement,[6] and the 2013 Cultural Heritage Management Plan[7] applicable to Section 2B of the highway.
[4]Plaintiff, Twenty-First Affidavit of Brett Spiegel, 18 August 2021, Exhibit BS21-1.
[5]First to Fourth Defendants, Affidavit of Damian Van Dyke, 2 August 2021 (‘Affidavit of D Van Dyke’), Exhibit DPV-1.
[6]Defendant, Affidavit of Ben Dodgshun, 28 October 2020 (Affidavit of Ben Dodgshun), Exhibit BAD-8 [VIC.602.011.7359].
[7]Ibid BAD-7.
The specific activities for which the state defendants seek a direction as to whether they are caught by the injunction involve the following:
1.1 Maintenance activities to sediment basins and drains;
1.2 Maintenance activities to access tracks;
1.3 Maintaining construction and safety assets;
1.4 Safety inspections and consequential maintenance;
1.5 Weed management;
1.6Investigations for the preparation of a new cultural heritage management plan;
1.7 Road, rail and utility maintenance activities;
1.8 Dust suppression;
1.9 Grass cutting; and
1.10 Annual environmental investigations.
Collectively, these have been defined in the submissions as the ‘environmental maintenance and safety activities’.
The ten categories of activities are divided into works that are urgent, works that are ongoing and seasonal works. The state defendants’ affidavits, both in support of the interlocutory injunction and this application, refer to seven Works Areas within the length of the road duplication for Section 2B. In Work Area 5, also described as ‘the allowable works area’, works were undertaken to progress construction on a stretch of newly aligned road approximately 3.85km in length. This work was undertaken pursuant to an agreement reached in the context of judicial review before the Federal Court of the relevant Minister’s refusal to grant a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).[8] As a result of that agreement, from 1 October 2019 certain work was undertaken.[9]
[8]Affidavit of B Dodgshun (n 6), [34]-[37]; Clark & Ors v Minister for the Environment (No 2) [2019] FCA 2028 (per Robertson J).
[9]Defendant, Affidavit of Timothy Price, 13 November 2020 (‘Affidavit of Timothy Price’), [92].
The works in Work Area 5 involved clearing of vegetation, installation of fencing to protect remaining vegetation within no go zones, establishment of a site compound on Hillside Road, bulk earthworks including the construction of road formation of two new lanes constructed above and below the natural ground surface, installation of silt fencing and sediment ponds, preparation for layers of crushed rock to be placed, relocating underground telecommunications, excavation for the installation of drainage infrastructure and partial construction of the intersection at Hillside Road.[10] Those works were halted by the interim injunction.
[10]Ibid.
The sediment ponds and drains constructed in Work Area 5 are to manage water runoff and stormwater in compliance with various environmental obligations. Turbid water is caught by these ponds and sediment allowed to settle ensuring the overflow or release of water into existing landscape and waterways is clean. There needs to be periodic removal of sediment build-up to permit the ponds and drains to function properly. There is a need to repair or upgrade filters at overflow points and works to ensure any overflow of silt is captured, and to clean truck washout bays. The state of the ponds and basins is that sediment levels are presently high and a heavy or major rainfall event is likely to cause overflow with likely adverse environmental consequences. The works are considered urgent.
Other urgent works were identified as maintenance to access tracks. The affidavit material indicated that some works were performed to two access tracks on 3 and 4 August 2021. The plaintiff has issued a summons in relation to that work. That summons is pending and I will make no specific findings in relation to that work in these reasons.
Other proposed ongoing and seasonal works generally conform to their descriptions and it is not necessary for present purposes to expand on the detail set out in the affidavit of Mr Van Dyke.
There has been no suggestion that any of the activities that are the subject of the summons come within the definition of construction or completion of the Western Highway Duplication. Two views are proffered as to the correct or preferable construction of any associated works. The state defendants argue that associated works are confined to those undertaken to bring forward, advance or progress the construction and completion of the new section 2B. The plaintiff submits a broader interpretation – works that are ‘associated with or consequential upon’ the construction of section 2B – identifies activities that are caught. She submits that both works related to the advancement of construction, and works now required because of work already undertaken prior to the injunction, are caught and so restrained.
The state defendants’ summons further seeks that, if the proper construction of the phrase ‘any associated works’ does restrain some or all of the ten activities identified in the summons, then a variation of the injunction be made to permit those acts to occur. The plaintiff opposes any variation beyond that to which the plaintiff has given agreement. That agreement has been conditional on her acceptance that the activity is both necessary and not likely to cause harm and on the basis that any variation should allow for the opportunity for a Djab Wurrung person to view the works.
An injunction must be clear
Where an order injuncts a person, either prohibiting or mandating particular acts, it must be sufficiently clear in expression that the person subject to the order knows what, as a matter of fact, they are required to do. In the context of clarity in a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) to which an appellant was subject, Priest JA said:
In view of the serious consequences which may flow from the breach of a condition of a supervision order, in my opinion it is desirable that such conditions be expressed with the same clarity and precision as is appropriate for injunctions. The necessity for clarity in the expression of injunctions was discussed by Dr I C F Spry…. Having referred to the general statement of Lord Upjohn, that a defendant is entitled to know what he is required to do, ‘and this means not as a matter of law but as a matter of fact’,[11] the learned author made the following observations under the heading, The Clarity of Orders:
From this statement of Lord Upjohn it is evident that it is not ordinarily desirable that, for example, the defendant should be ordered simply to abstain from wrongful acts, unless it is reasonably clear to him from the order of the court what are the limits of the class of acts so enjoined. Hence it is generally necessary that he should be directed not to perform or continue particular defined acts…. The defendant is entitled to have made reasonably clear what he must abstain from in order to comply with the order of the court. So it has been said that an injunction ‘should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ’…[12]
[11]Citing Redland Bricks Ltd v Morris [1970] AC 652, 666.
[12]Owen Daniel (A pseudonym) v Secretary to the Department of Justice [2015] VSCA 10 [24] (Weinberg and Beach JJA agreeing).
Therefore, the construction must be one that provides the state defendants with that factual clarity. Balanced with this is the context and purpose of the injunction – to preserve the status quo between the parties pending trial, usually to protect the subject matter of the dispute. Here, the subject matter is the presence of Aboriginal cultural heritage within the Specified Area and the dispute is the prospect that unlawful harm will occur by the construction and completion of Section 2B. The unlawfulness arises from the absence of a cultural heritage management plan that would permit harm as approved and registered in accordance with the Aboriginal Heritage Act 2006 (Vic) (the Heritage Act). The question of what cultural heritage is present in the specified area and what harm might be caused to cultural heritage are issues for trial. The purpose of the interlocutory injunction is to preserve the status quo and thereby prevent further harm from occurring.
The parties were not in agreement describing the status quo that is maintained by the interlocutory injunction. The plaintiff described the status quo to be the preservation of the claim to Aboriginal cultural heritage, by preserving the landscape from activities which could cause harm within that landscape.[13] The state defendants described the status quo as that which preserves the landscape as it was when the interlocutory injunction was granted – a landscape that included incomplete construction works.
[13]Plaintiff, Submissions in Reply to the State Defendants’ Submissions, 20 August 2021, [22].
The parties are agreed that in ascertaining the meaning of the order, regard may be had to extrinsic material, including the reasons for judgment, and the broader context and subject matter of the proceeding.[14] Insofar as extrinsic material is relevant, the pleadings provide no assistance as the introduction of the phrase ‘associated works’ post-dated the injunction and is not defined in the subsequent pleading.
[14]Ganesh & Anor v National Australia Bank Limited [2021] VSCA 45 [74]; Athens & Anor v Randwick City Council [2005] NSWCA 317, [28]-[29]; Slea Pty Ltd v Connective Services Pty Ltd & Ors (2018) 341 FLR 208, 214 [27]-[30].
Associated works
The parties referred me to a number of cases that considered the meaning of the word ‘associate’ or ‘associated’ in the context of statutory interpretation. Finkelstein J in Kia Australia Pty Ltd v Chief Executive Officer, Customs,[15] considered the meaning of an ‘associate’ of a vendor of goods, and ‘associated with the vendor’ in the Customs (Valuation) Amendment Act1987 (Cth). An ‘associate’ was defined in the legislation. The Judge observed in giving the word its ordinary meaning, the task involved deciding which of several ordinary meanings was appropriate. This requires considering the purpose and objects of the statute being interpreted and the need to avoid illogical and irrational consequences. In construing the interpretation of what amounts to an association between persons ‘something more than a connection between agent and vendor’, and in particular more than a mere shareholding by one in another was required.
[15][1998] 1060 FCA.
It is not always persons that might be associates of each other or ‘associated with’ each other. Activities or works might be associated. In Winslow Constructors v Mt Holden Estates,[16] the phrase ‘associated works’ required a direct connection, ‘beyond a mere nexus’ and in the context of that factual scenario ‘some degree of contemporaneity’.[17] This issue there was whether works carried out for the subdivision of land were ‘associated works’[18] for the purpose of erecting or constructing homes on that subdivided land. Hansen JA, with whom Callaway JA and Buchanan JA agreed, noted associated included definitions of ‘allied to’ or ‘accompany’ and held that a ‘relationship beyond a mere nexus or connection’ was required.
[16][2004] 10 VR 435.
[17]Ibid [55].
[18]As defined in the Domestic Building Contracts Act 1995 (Vic), s 5(1).
The degree of guidance that these cases provide in construing the terms of the injunction in this case may not take matters very far. On either construction advanced by the parties, some nexus can be drawn between construction of the road and the relevant activities. The real question is, in this context what is sufficient nexus?
Reference was also made to Deal v Father Pius Kodakkathanath.[19] The phrase ‘associated with’ used in the Occupational Health and Safety Regulations 2007 (Vic) obliged employers to identify certain risks ‘associated with’ hazardous manual handling. The High Court said:
In its natural and ordinary sense, the phrase “associated with” may mean either combined in terms of circumstances or combined in terms of classification. If it is used… in the former sense of combined in terms of circumstances, it would imply that the risk… .could fall within reg 3.1.2 whatever the cause of the musculoskeletal disorder. By contrast, if it is used in the more limited sense of combined in terms of classification, it would imply that a risk… cannot fall within reg 3.1.2 unless the risk is caused by one or more of the characteristics which define a manual handling task as a hazardous manual handling task….[20]
[19](2016) 258 CLR 281 (‘Deal’).
[20]Deal (n 19), [39].
The constructional choice posed by the phrase led to the High Court accepting the latter construction – combined in terms of classification. One reason for doing so was that the broader construction would overlap and to some extent conflict with other obligations arising from hazard specific parts of the Regulations.[21]
[21]Ibid [45].
The plaintiff submits that a broad construction is appropriate as it is both consistent with the protective purpose of the interlocutory injunction and it provides certainty. She submits that associated works are those ‘associated with the Project’ so that the association is both direct and consequential. It was submitted that this best protects cultural heritage from harm. On this interpretation, works would be caught even if they were needed because of construction work that was undertaken at any time prior to the injunction, bearing in mind such work commenced in August 2016.[22]
[22]Affidavit of Timothy Price (n 9), [49].
The plaintiff contends that her construction is supported by the Incorporated Document, a document dated June 2017 that had the effect of exempting certain activities from planning requirements under the Ararat Planning Scheme. The stated purpose of the Incorporated Document is to ‘exempt use and development associated with the project from the need for a planning permit’. In that document the project is defined to include, but is not limited to, a list of activities. They are divided into two categories: Roadworks, and Ancillary works. Within each category, the descriptions focus on construction, demolition or removal and relocation. Unsurprisingly, the activities are described by reference to things that would ordinarily attract planning permission for land use or development. The list provides no guidance on whether or how maintenance of structures once constructed, or sites once demolished, might occur. On one view, silence on such matters might lend weight to an argument that such activities are not associated works. However, I think the better view is that the Incorporated Document is directed at activities that would otherwise require planning approval for land use or development. I do not accept that this document provides a good basis upon which to construct the terms of the injunction, particularly where it affects activities for which planning statutes are not relevant.
I have not lost sight of the fact that the wording of the injunction does not seek to restrain works ‘associated with’ construction or completion of Section 2B, but injuncts construction and/or completion and ‘carrying out any associated works’. Used in this way, ‘associated’ describes the works, rather than being used as a verb to combine or join persons or activities. In my view this favours a narrow construction.
I adopt the approach that was taken in Deal by the High Court. The constructional choice in this context favours one where the works caught by the injunction have, as part of their intrinsic characteristic, something that advances the construction or completion of the road duplication along Section 2B. It does not capture tasks that are completely unrelated to road construction such as grass cutting, or activities that have become necessary by reason of construction done prior to 3 December 2020, which has been halted. To construe the terms more broadly, as being linked by the circumstances of the Project, would conflict with other statutory obligations imposed on the state defendants as occupiers of public land and a continued employer and occupier of a worksite, notwithstanding the halt in work. To the extent that the ten listed activities do not in any way progress construction or have characteristics intrinsic to advancing construction, then they are not caught by the terms of the injunction.
I should record the plaintiff’s position regarding the proposed works. The following are submitted to be ‘associated works’ in part because they closely relate to works previously undertaken as part of the construction of Section 2B:
·Maintenance activities to sediment basins and drains;
·Maintenance of construction and safety assets, particularly the temporary site compound erected in 2018, including maintenance and repair work on the septic tank located at the Site Compound in Work Area 5;
·Consequential maintenance arising from safety inspections of plant and equipment present in the area for the purpose of construction of Section 2B, including the construction of fences;
·Access track maintenance work;
·Dust suppression;
·Annual environmental investigations.
The plaintiff contends that the following are not associated works:
·Activities to maintain existing road, rail and utility infrastructure but not access track maintenance work;
·Grass cutting;
·Weed management;
·Investigations for a new cultural heritage management plan.
In correspondence,[23] the plaintiff agreed that some works, including those she considered to be associated works, could be undertaken subject to agreement on a case by case basis and an opportunity to observe works being undertaken. They were drainage of water from the sediment basins and desilting, safety inspections (but not the identified maintenance without further discussion and agreement), weed inspection and suppression, dust suppression activities carried out in a particular manner, and some annual environmental investigations. Such a piecemeal approach illustrates the ambiguity created by a broad construction that ought be avoided.
[23]Correspondence in Affidavit of Ben Dodgshun (n 6), Exhibits BAD-22, BAD-28. See also transcript of 23 November 2020 at T260.16-20.
In my view, the premise underlying the plaintiff’s broad construction; that the preservation of the status quo is needed for the purpose of preventing any harm to Aboriginal cultural heritage in the area, is somewhat misconceived. Certainly a purpose of the injunction is to prevent potentially unlawful harm to such heritage from occurring pending trial. However, the injunction is not the sole mechanism for protection of existing cultural heritage from harm.
Work undertaken to comply with other obligations not caught by the injunction cannot ignore or disregard the presence of Aboriginal cultural heritage. The Heritage Act must still apply to actions permitted despite the injunction because they do not fall within the phrase ‘associated works’. The dispute in this proceeding is the lawfulness and the efficacy of any protection afforded by the 2013 CHMP. The injunction protects from potentially unlawful harm, not from any harm in absolute terms. Given the state defendants’ stated intention that they will not rely on the 2013 CHMP[24] in relation to any action going forward, the presence of Aboriginal cultural heritage remains protected beyond the terms of the injunction by statute and regulation. The Heritage Act makes cultural heritage plans mandatory, including by regulations that may specify circumstances in which a cultural heritage plan is required. Relevantly, cultural heritage management plans are required for activity in areas of cultural heritage sensitivity or for high impact activities and for activity involving significant ground disturbance as defined in the Aboriginal Heritage Regulations 2018 (Vic) (Regulations).[25] The specified area contains areas of cultural heritage sensitivity.[26] The Regulations also specify exempt activities.[27]
[24]As advised to the Court by the first to fourth defendants’ Counsel at a directions hearing on 23 March 2021 (Transcript, 23 March 2021, p 290).
[25]Aboriginal Heritage Regulations 2018 (Vic) (‘Regulations’), r 5.
[26]As identified in maps annexed to the On Country Heritage and Consulting report, December 2018; found in First Affidavit of Brett Spiegel, 2 November 2020, Exhibit BS-8.
[27]Regulations, Part 2 Division 2.
It is relevant in my view, and consistent with the obligations imposed by the Regulations, that some of the proposed activities will not involve:
(a)Any cutting or removal of any trees or tree branches located within the Specified Area, which includes the Six Trees;
(b)Disturbing the ground within the root zone of any of the Six Trees; or
(c)Disturbing any ground that has not already been disturbed prior to the injunction.[28]
[28]Affidavit of D van Dyke (n 5), See - maintaining construction and safety assets in Work Area 1 and 7 at [60], Safety Inspection and consequential maintenance at [70], weed management at [70], investigations for CHMP – test pits at [72], Dust suppression at [85], Annual Environmental Investigations at [91], Grass cutting at [89].
Other activity proposed by Mr Van Dyke’s affidavit does not exclude the prospect of some ground disturbance, but does not involve activity within (a) and (b) in the preceding paragraph. Those works are:
(i) 1.1 Maintenance activities to sediment basins and drains;[29]
(ii)1.2 maintenance activities to access tracks;[30]
(iii)1.6 Road, rail and utility management.[31]
[29]Affidavit of D van Dyke (n 5), [28].
[30]Ibid [43]
[31]Ibid [77].
In the event that the proposed works involve significant ground disturbance, the Regulations will apply. That is to say the narrow construction of the terms of the injunction in preserving the status quo is not inconsistent with the overall statutory scheme for the protection of existing cultural heritage where certain types of activity are proposed. It remains for the statute and its regulations, not the injunction, to generally protect heritage.
There is no inconsistency between the Reasons where they refer to ‘preservation of the status quo broadly beyond the presently identified trees’[32] and a narrow construction of ‘associated works’. Works that are not caught by the injunction are still caught by the Regulations which make specific provisions for activities that change the landscape by high impact uses or ground disturbances. In this way, obligations not to cause harm to Aboriginal cultural heritage remain on the state defendants in the same way that environmental, health and safety, and other regulations continue to regulate their activities.
[32]Reasons (n 2), [86].
The completion of construction of Section 2B is subject to the additional impost of the injunction. If for example, the replacement of the type of filters as proposed by the work on the sediment basins involves a level of ground disturbance as defined in the Regulations, then although not precluded by the terms of the injunction, it will need to comply with the Heritage Act and Regulations. It is not the purpose of these reasons to prescribe what might be required to undertake works not caught by the injunction.
I should say that my understanding from Mr Van Dyke’s affidavit is that the sediment basins are purpose-built dams to manage runoff during construction. I do not take them to be associated with management of runoff once the road is completed. Therefore, to the extent that the work upgrades the filters and reduces erosion, if it is necessary because of a halt in works, then it is not caught by ‘associated works’. If the upgrade is connected with the operation of the water management as it will continue on completion then it might amount to ‘associated works’ and a variation would be required. Given the plaintiff does not oppose the work being undertaken it would seem that, if necessary, there would be no impediment to a variation.
One of the express purposes for not granting an injunction over a more limited area was the double handling and inefficiencies by allowing parts of the construction to continue, without knowing whether the outcome of the trial might render such work obsolete. Its purpose was to preclude construction throughout. I can therefore see no distinction between maintenance of facilities that were in existence prior to the commencement of works on Section 2B and maintenance of facilities constructed since commencement. They cannot be distinguished by the purpose of maintenance. If, for example, a fence requires maintenance because a tree has fallen over the fence, it cannot matter whether its purpose is to keep livestock away from the existing highway, or to keep livestock away from the works in Work Area 5. In neither circumstance could such maintenance be characterised as furthering the construction of Section 2B.
Equally, an interpretation that permits activities that ‘do not cause harm’ upon which the plaintiff’s qualified consent rested,[33] lacks the clarity necessary for the state defendants to objectively understand their obligations. It would be unsatisfactory if a determination of what amounts to ‘associated works’ in any given circumstance is dependent upon specific facts that cannot be readily and objectively ascertained.
[33]As referred to in the first to fourth defendants’ Submissions, 19 August 2021, [79] and outlined in correspondence from the plaintiff in Affidavit of B Dodgshun (n 6), Exhibit BAD-28.
The affidavit of Mr van Dyke outlines ten categories of works as described, with the qualification as to what they do not involve. They are not ‘associated works’ carried out in the construction and/or completion of Section 2B. To be clear, the evidence discloses no immediate circumstance where work that would involve lopping, removing or otherwise disturbing the Six Trees or their root systems in the Specified Area, that is needed for reasons other than the advancement of Section 2B. None have been suggested thus far.
Given these conclusions, there is no need to vary the terms of the injunction, subject to the possible qualification at [37] above.
Subject to any submissions that the parties might wish to make, the defendants seek their costs of the application, and I anticipate that costs ought follow the outcome.
SCHEDULE OF PARTIES
| MARJORIE THORPE | Plaintiff |
| v | |
| HEAD, TRANSPORT FOR VICTORIA | First Defendant |
| and | |
| MINISTER FOR TRANSPORT INFRASTRUCTURE | Second Defendant |
| and | |
| SECRETARY, DEPARTMENT OF TRANSPORT | Third Defendant |
| and | |
| STATE OF VICTORIA | Fourth Defendant |
| and | |
| MARTANG PTY LTD | Fifth Defendant |
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