Wearn Industries Pty Limited v NJW Contractors Pty Limited

[1988] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:	Wearn Industries Pty Limited v NJW Contractors Pty Limited & Ors [1988] NSWLEC 157
PARTIES:	APPLICANT Wearn Industries Pty. Limited RESPONDENT N.J.W. Contractors Pty. Limited
FILE NUMBER(S):	40260 of 1987
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:	Kolback v. Epoch Mining ((l987); Cayne v Global Natural Resources plc (1984); Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983)
DATES OF HEARING:
DATE OF JUDGMENT:	02/10/1988
LEGAL REPRESENTATIVES:	APPLICANT Mr. Simpkins

JUDGMENT:

HIS HONOUR: The applicant, Wearn Industries Pty. Limited, seeks an order against the first respondent, N.J.W. Contractors Pty. Limited, that pending the hearing of the application the first respondent be restrained from placing rubbish or causing or allowing rubbish to be placed on certain land at Mulgoa identified in the Schedule to the Application proper. The other parties to the application are the Penrith City Council and E. Kelly Pty. Limited, the owner of the subject land. No interlocutory orders are sought against those respondents.

The land is an old quarry coming to the end of its life. Extractive industry has been carried out on the site since the early 1960s. The applicant carried out quarrying activities there until mid-1984. There are disputes between the parties as to the responsibility for reinstatement and restoration of the land, some of which are the subject of proceedings in the Supreme Court. The Council is anxious that the land be restored.

Prior to 11 December 1987 the land was zoned Rural l(Al) by Interim Development Order No. 93, Penrith. Under this zoning waste disposal was a use permissible with consent. The Sydney Regional Environmental Plan No. l3, Mulgoa Valley (the REP) was gazetted on 11 December 1987. Under the REP the subject land is now zoned Rural Conservation - Zone l, and the use for the purpose of waste disposal is prohibited.

It is the applicant's case that the first respondent is presently using the land for the purpose of waste disposal contrary to the REP. Prima facie it appeared that the applicant had a strong case. However, a few days before the hearing of the Motion before me on 5 February, the Council located or "discovered" a development consent issued to the applicant on 17 June 1977 for the tipping of solid waste material on the site. One of the purposes of the consent was apparently the ultimate restoration of the land

One might have thought that this lately discovered consent might have been an end to the matter, but Mr. Simpkins, on behalf of the applicant, submits that this consent does not apply to the first respondent's current operations which are outside the ambit of the consent and therefore prohibited activities. The consent contains a condition No. 2(ii) in the following terms:-

"The waste materials received at the site being restricted to naturally excavated materials, demolition materials, including builders' rubbish and waste ceramic products from brick, pipe and tile works, but excluding all other wastes of any nature."

It is the submission of Mr. Simpkins that the waste materials being presently deposited on the site are not "demolition materials, including builders' rubbish....", or otherwise within the condition.

At this stage, as is not unusual in interlocutory proceedings, the facts before the Court are sparse. So far as I can understand the evidence rubbish is being dumped on the land which includes general refuse and gypsum or plasterboard, the latter in fairly large quantities. However, it is difficult to see the relevance of the quantities of gypsum because no maximum quantity of waste material is specified in the 1977 consent.

I find it extremely difficult to comprehend how it could be concluded that the rubbish and waste material apparently being dumped on the land is outside the materials referred to in the special condition to the consent. It may be that some of the rubbish being deposited is not within the materials specified in the condition but this would not justify the making of an interim order in the terms sought.

Further, Mr. Simpkins does not concede that the l977 consent was ever executed. However, there is evidence before the Court that it was carried into effect.

I should also mention that there is no direct evidence that the first respondent is carrying out the dumping of rubbish on the land. However, in my opinion, there is sufficient evidence before the Court to allow me to infer that the first respondent is so doing, especially in the absence of any evidence, denial or explanation being made by the first respondent.

Is there a serious question to be tried which, if resolved in the applicant's favour, would entitle it to final relief? This question involves both issues of law and fact. Clearly the facts are not all in at this time and it would be inappropriate for the Court to decide the factual issues on the interlocutory application. As to the question of law it may or may not be appropriate to decide on the interlocutory application.

While it may be fairly concluded that there is a serious question to be tried, i.e., the applicability of the 1977 consent, it is desirable in the circumstances of this particular application, and in the consideration of the balance of convenience, to examine the strength of the applicant's case for final relief.

In Kolback_v._Epoch_Mining ((l987) 8 NSWLR 533) McLelland J. underlined the basic principle that, in deciding to grant or refuse an interlocutory injunction, the Court must consider "what course is best calculated to achieve justice between the parties", pending the resolution of the uncertainty of the applicant's entitlement to final relief. His Honour referred to:-

"....some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc (1984) l All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682;559."

In my opinion, although the circumstances are somewhat different to Kolback, it is appropriate to consider the strength of the applicant's case for final relief. When I do this it appears that it is more likely than not that the application will ultimately be lost. The applicant's submission of the non-applicability of the 1977 consent is, in my opinion, very thin. If an interim injunction is granted the first respondent is likely to suffer prejudice should the applicant ultimately be held not to be entitled to final relief. When one considers the applicant's limited prospects of success in the litigation, and weighs this in the balance of convenience, it is not in the interests of justice between the parties to make the interlocutory injunction.

I decline to make the interim order sought and the Notice of Motion is dismissed with costs. The exhibits may be returned.