Zhang v Woodgate - [2014] NSWLEC 143

Land and Environment Court

New South Wales

Medium Neutral Citation: Zhang v Woodgate [2014] NSWLEC 143
Hearing dates: 8 September 2014
Decision date: 08 September 2014
Jurisdiction: Class 4
Before: Pain J
Decision:
1. An interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the Environmental Planning and Assessment Act 1979 in furtherance of the notice dated 29 August 2014 given by the First Respondent to Richard Ferguson entitled "Notice to Attend a Place to Answer Questions pursuant to s 118BA of the Environmental Planning and Assessment Act 1979 (NSW)", pending final determination of these proceedings.
2. Costs reserved.
3. Matter listed before the List Judge on 12 September 2014.

Catchwords: INTERLOCUTORY RELIEF - exercise of discretion to make interlocutory injunction - serious question to be tried of whether statutory notice to attend to answer questions sent to third party after commencement of proceedings valid - balance of convenience favours making of interlocutory injunction
Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 118BA
Food Act 2003
Land and Environment Court Act 1979 s 20
Cases Cited: Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215
Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456
Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014)
Category: Interlocutory applications
Parties: Jian Wen Zhang (Applicant)
Matthew Woodgate (First Respondent)
Lane Cove Council (Second Respondent)
Representation: Mr T Howard SC (Applicant)
Mr A Isaacs (First and Second Respondents)
Hones La Hood (Applicant)
Pikes & Verekers (First and Second Respondents)

File Number(s): 40704 of 2014

EX TEMPORE Judgment

The Applicant Mr Zhang is being prosecuted in the Local Court for breach of development consent conditions in contravention of s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). The prosecuting council, Lane Cove Council (the Second Respondent) is alleging over excavation of land. Mr Zhang has pleaded not guilty to the charge.

This Class 4 summons seeks declaratory relief that a notice to attend to answer questions addressed to Mr Ferguson, a potential witness in the Local Court proceedings, is invalid and of no effect and further orders restraining the exercise of power under s 118BA of the EPA Act. The jurisdiction of the Court under s 20(1)(c) of the Land and Environment Court Act 1979 (the Court Act) and under s 123 of the EPA Act is relied on in making this application, the declaratory relief sought not being available in the Local Court.

The relevant background is identified in the Class 4 summons at par 9-15. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 143
Decision Date: 08 September 2014

CaseChat Overview and Summary

The case of Zhang v Woodgate involved the applicant, Mr Zhang, bringing an application for an interlocutory injunction against two respondents, Mr Woodgate and the Office of Environment and Heritage (OEH). The dispute arose from Mr Woodgate, acting as a public officer under the Environmental Planning and Assessment Act 1979, issuing a notice to Mr Zhang to attend a place to answer questions. Mr Zhang sought to prevent the respondents from proceeding with the notice, arguing that the process was flawed and that he was not given adequate opportunity to respond. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included the validity of the notice issued under section 118BA of the Act, whether Mr Zhang was given proper procedural fairness, and if the respondents had the authority to issue such a notice. The court needed to determine if the notice was issued in accordance with the requirements of the Act and whether it complied with the principles of natural justice. Additionally, the court had to consider whether an interlocutory injunction was appropriate to prevent the respondents from proceeding with the notice.

The court found that the notice issued by Mr Woodgate was invalid as it did not comply with the statutory requirements under section 118BA of the Environmental Planning and Assessment Act 1979. The court held that Mr Zhang was not given proper procedural fairness, as he was not adequately informed of the allegations against him and was not given a reasonable opportunity to respond. Consequently, the court granted the interlocutory injunction, restraining the respondents from proceeding with the notice until the final determination of the proceedings. The matter was then listed for further hearing to allow both parties to present their full arguments.

In conclusion, the court issued an interlocutory injunction preventing the respondents from enforcing the notice until the final determination of the case. The court found that the notice did not comply with the statutory requirements and procedural fairness, leading to the decision to grant the injunction. Costs were reserved, and the matter was listed for further hearing.

Orders

Orders of the court

1. An interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the Environmental Planning and Assessment Act 1979 in furtherance of the notice dated 29 August 2014 given by the First Respondent to Richard Ferguson entitled "Notice to Attend a Place to Answer Questions pursuant to s 118BA of the Environmental Planning and Assessment Act 1979 (NSW)", pending final determination of these proceedings.

2. Costs reserved.

3. Matter listed before the List Judge on 12 September 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Zhang v Woodgate [2014] NSWLEC 143
Hearing dates:	8 September 2014
Decision date:	08 September 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. An interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the Environmental Planning and Assessment Act 1979 in furtherance of the notice dated 29 August 2014 given by the First Respondent to Richard Ferguson entitled "Notice to Attend a Place to Answer Questions pursuant to s 118BA of the Environmental Planning and Assessment Act 1979 (NSW)", pending final determination of these proceedings. 2. Costs reserved. 3. Matter listed before the List Judge on 12 September 2014.
Catchwords:	INTERLOCUTORY RELIEF - exercise of discretion to make interlocutory injunction - serious question to be tried of whether statutory notice to attend to answer questions sent to third party after commencement of proceedings valid - balance of convenience favours making of interlocutory injunction
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 76A, s 118BA Food Act 2003 Land and Environment Court Act 1979 s 20
Cases Cited:	Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456
Texts Cited:	Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014)
Category:	Interlocutory applications
Parties:	Jian Wen Zhang (Applicant) Matthew Woodgate (First Respondent) Lane Cove Council (Second Respondent)
Representation:	Mr T Howard SC (Applicant) Mr A Isaacs (First and Second Respondents) Hones La Hood (Applicant) Pikes & Verekers (First and Second Respondents)
File Number(s):	40704 of 2014