Land and Environment Court New South Wales

• Medium Neutral Citation: Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207
• Hearing dates: 14 November 2011
• Decision date: 17 November 2011
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

Order that respondents not cause the destruction or removal of fig trees at Laman Street, Cooks Hill until final determination of the proceedings. Proceedings expedited and final hearing dates fixed.

• Catchwords: INJUNCTIONS:-whether interlocutory injunction should be granted that respondents not cause destruction or removal of certain trees - whether serious question to be tried - whether general manager of council, when discharging function under s 335(1) Local Government Act, was bound to consider an offer by Premier - meaning of obligation to consider - whether balance of convenience favours grant of interlocutory injunction.
• Legislation Cited: Environmental Planning and Assessment Act 1979 Part 3A; Land and Environment Court Rules 2007 r 4.2; Local Government Act 1993 ss 335(1), 372(5), 382(1), 440F(1), 674(1); Local Government (General) Regulation 2005 cl 283(3); Roads Act 1993 s 88
• Cases Cited: Alexander v Yass Valley Council [2011] NSWLEC 148; Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Capital Airports Group Pty Ltd v Director General, NSW Department of Planning (No 2) [2011] NSWLEC 83; Craig v State of South Australia [1995] HCA 58,184 CLR 163; Foster v Minister for Customs and Justice [2000] HCA 38, 200 CLR 442; Walsh v Parramatta City Council [2007] NSWLEC 255, 161 LGERA 118; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, 162 CLR 24; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 273 ALR 122; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323; Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, 179 LGERA 346; Plaintiffs M168/10 v Commonwealth [2011] HCA 25, 85 ALJR 790
• Category: Interlocutory applications
• Parties: Save Our Figs Inc (Applicant); General Manager, Newcastle City Council (First Respondent); Newcastle City Council (Second Respondent)
• Representation: COUNSEL: Mr M A Robinson SC and Mr S A Beckett (Applicant); Mr J Stevenson SC and Mr A Shearer (Respondents); SOLICITORS: Catherine Henry Partners (Applicant); Newcastle City Council (Respondents)
• File Number(s): 40997 of 2011

Judgment

1 This is an application by Save Our Figs Inc for an interim inunction that the first respondent, the general manager of Newcastle City Council, and the second respondent, Newcastle City Council, not cause the destruction or removal of 14 fig trees at Laman Street, Cooks Hill (a suburb of Newcastle) until the final determination of the proceedings or until further order.

2 The proceedings concern the general manager's implementation of the council's resolution of 19 July 2011 to remove the trees (July 2011 resolution). The trees are over 70 years old, iconic and much appreciated by many in the community. Many people have petitioned the council not to remove them.

3 An earlier council decision in 2010 to remove the trees was the subject of previous judicial review proceedings before me: Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173 (interim injunction granted) and Parks and Playgrounds Inc v Newcastle City Council [2010] NSWLEC 231, 179 LGERA 346 (proceedings dismissed).

4 The present proceedings are also judicial review proceedings. In such proceedings, the Court has no power to enter into the merits of the council's decision to remove the trees. The Court's power is limited to adjudicating the lawfulness of such a decision and the lawfulness of its implementation.

5 These proceedings were commenced by summons filed with leave in Court on 2 November 2011. That afternoon the applicant sought an urgent interim injunction to stop the council from removing the trees. At that moment the council's contractors were on site poised to remove the trees.

6 At the hearing on 2 November 2011 the council gave an undertaking to the Court that until 4 pm on Friday 11 November 2011 it would not cause the destruction or removal of the trees. On 9 November 2011 the council extended that undertaking to the Court until 10.30am on Tuesday 15 November 2011 and the matter was fixed for an interlocutory hearing on Monday 14 November 2011. At that hearing, the council and its general manager gave an undertaking to the Court in the same terms until 5 pm on the day that I deliver this judgment.

7 On 3 November 2011 the applicant amended its summons. At the hearing before me on 14 November it amended it further. The final relief now sought is as follows:

"2. A declaration that the first defendant, in purporting to exercise his discretion or in making his decision pursuant to section 335(1) of the Local Government Act 1993 (NSW) determining when to implement the resolution of the second defendant of 19 July 2011 ("the tree felling resolution") failed to take into account a relevant consideration, namely, that on 25 October 2011, the Premier of NSW offered to appoint an independent arborist to consider whether it was necessary or not to remove the trees at Laman Street, Cooks Hill, New South Wales ("the Premier's offer").

3. Alternatively, a declaration that the first defendant failed to afford the Premier's offer proper, genuine and realistic consideration in this regard.

4. A declaration that the first defendant in determining to implement the tree felling resolution failed to properly construe the words " without undue delay " within the meaning of section 335(2) of the Local Government Act 1993 by excluding from his consideration or failing to take into account or failing to afford proper, genuine and realistic consideration to the fact of the Premier's offer.

5. An order in the nature of certiorari or a declaration quashing or setting aside the decision of the first defendant as to when to implement the tree felling resolution made after the Premier's offer has been made.

5A. A declaration that the first defendant breached section 335(1) of the Local Government Act 1993 (NSW) in this regard.

6. A declaration that the action of the four councillors who left the meeting of the second defendant of 21 November 2011 causing it to become inquorate was capable of constituting an act of disorder and constituted misbehaviour within the meaning of s 440F(1)(c) of the Local Government Act 1993.

7. That the first and second defendants not implement the tree felling resolution until the Council lawfully constituted by a quorum has met to consider the Premier's offer.

8. That the first and second defendant not otherwise cause the destruction or removal of the trees at Laman Street, Cooks Hill, New South Wales until the Council, lawfully constituted by a quorum, has met to consider the Premier's offer."

8 At a directions hearing before me on 3 November 2011, senior counsel for the applicant indicated that if the council considered "the Premier's offer" referred to in the amended summons (even if it did not accept the offer), then the applicant would not press its claim for injunctive relief; and that all it might still press at a final hearing would be the claim for declaratory relief in prayer 6.

BACKGROUND

9 From 2006 the council received a substantial number of reports from external consultants (arborists and others) in respect of the trees, peer reviews of those reports, and reports from its own expert staff. They have generally considered that the trees are unsafe and should be removed.

10 On 17 August 2010 the council resolved to remove the trees under s 88 of the Roads Act 1993 as soon as practical. There followed the litigation referred to at [ 3 ] above.

11 Thereafter on 14 December 2010, the council resolved to retain the trees while preservation methodologies were explored.

12 On 15 June 2011 the council's public liability insurer told the council that the risk of injury and damage from the trees was unacceptable from an underwriting point of view and that from 31 August 2011 the insurer would be off risk in respect of claims arising from the trees unless the council provided further expert evidence as to the continued viability and integrity of the trees beyond that date. The insurer indicated that it would consider providing cover after that date if an exclusion zone were put in place in the area for pedestrians and vehicles. Subsequently, insurance cover was extended to 30 November 2011 subject to implementation of an exclusion zone. However, the insurer seems willing to grant at least a small extension beyond that date if needed.

13 On 19 July 2011 the council made the July 2011 resolution as follows:

"Council resolve to remove and replace, with regards to the Street Tree Masterplan, the 14 Fig Trees as soon as practical under section 88 of the Roads Act 1993 (NSW) because the Council is of the opinion that the Fig Trees are likely to cause danger to traffic, property and persons in the use of Laman Street and are a traffic hazard in severe weather events."

14 On 2 August 2011 the issue was referred to mediation, which occurred on 18 August 2011.

15 On 25 August 2011 a council meeting was held. A motion to rescind the July 2011 resolution was lost. A motion to proceed with a third party determination of "Laman Street Trees matter" was also lost.

16 On 13 September 2011 a resolution was passed by the council which included that it "agreed in principal [sic] to proceed with third party determination" including the appointment of an independent expert. However, on 4 October 2011 the council resolved to rescind that resolution.

17 On 7 October 2011 council contractors commenced removal of the trees. Due to protest action on site, the only work done was the lopping of some limbs from three of the trees.

18 On or about 11 October 2011 the general manager of the council determined that there be an independent assessment of the trees. Nine councillors signed an agreement on 14 October 2011 that the matter be referred to a certain person.

19 On 21 October 2011 the parties entered into an "Agreement to Procure Independent Expert Assessment". It provided for independent expert assessment of the trees. That assessment did not proceed, as discussed in more detail at [ 66 ] below.

20 On 25 October 2011 the Premier was asked about the issue in the course of a Budget Estimates Committee hearing of the NSW Parliament. In response, the Premier stated that, "If we were asked for a State Government arborist, I would be happy to make one available" (Premier's offer). A fuller text of the Premier's response is as follows:

" If we were asked for a State Government arborist, I would be happy to make one available . But understand that our whole offer at the election was to restore power to local communities and to have a new relationship with local government across the State. That relationship means that local government, like State Government, should make its decisions and be held responsible for those decisions. If the people of Newcastle are upset about what is or is not going to happen with the Laman Street figs, they have an opportunity in 11 months time to vent their anger, frustration or view, just as at a State level people have an opportunity every four years to do the same.

...

If the general manager wants an arborist and cannot source one, we are happy to assist. But it has to be a decision of the council. It is not going to be a decision that will be imposed by the Government.

...

I am aware that it is an issue for local government. Newcastle City Council should sort it out. As I say, if the general manager cannot source an arborist somewhere else and wants to source an arborist, I am sure the RTA, as you are recommending - I do not know whether you have anyone in mind -

- or the Office of Environment and Heritage could provide one.

It should be underscored, though, by no change of policy on the basis that local government has to sort ou t this issue."

(emphasis added)

21 On 27 October 2011 a meeting was held between members of the plaintiff and the general manager at which the latter said:

"I am obliged to proceed with the resolution of 19 July 2011 to remove the trees. The agreement for independent assessment of the trees cannot continue due to a refusal of the arborist to assess the trees. I am not willing to appoint another arborist or call in the State government."

22 On 28 October 2011 three councillors gave notice seeking a council meeting "to consider and respond to the recent offer of assistance from the Premier, Barry O'Farrrell, in relation to the Laman Street fig trees".

23 On 28 October 2011, the Lord Mayor convened a council meeting to consider his motion relating to the Premier's offer, set out at [ 29 ] below (Mayor's motion).

24 On 31 October 2011 the general manager sent an email to all councillors advising that the Mayor's motion should be ruled out of order because it is unlawful. He wrote: "Council's 19 July resolution cannot be 'altered or rescinded' until three months have passed since the last attempt to alter or rescind (ie 25 November)".

25 This advice appears to have been based on (a) the fact that on 25 August 2011 a motion to rescind the July 2011 resolution had been defeated, and (b) the proposition that the Mayor's motion was a "similar" motion and therefore could not be brought forward within three months under s 372(5) of the Local Government Act 1993 (LGA). Section 372(5) provides:

"372 Rescinding or altering resolutions

(5) If a motion to alter or rescind a resolution has been negatived, or if a motion which has the same effect as a previously negatived motion, is negatived, no similar motion may be brought forward within 3 months. This subsection may not be evaded by substituting a motion differently worded, but in principle the same."

26 There was no quorum for the meeting on 31 October 2011 and the meeting was adjourned to 1 November 2011.

27 On 1 November 2011 the Lord Mayor reopened the adjourned meeting. Nine councillors were present. Four councillors were absent. When the deferred Mayor's motion was reached, four councillors left the chamber and there was then no quorum. They explained that they did so because they considered the motion to be unlawful. The Lord Mayor announced to the meeting that the meeting would be adjourned to 8 November 2011.

28 On 2 November 2011 the council's contractors assembled on the site to commence work to remove the trees. A representative of the applicant told the contractors that an injunction was being sought. That afternoon these proceedings were commenced and came on for hearing before me. The events in Court on that occasion and thereafter have been recounted at [ 5 ] - [ 8 ] above, culminating in an undertaking to the Court by both respondents not to cause the destruction or removal of the trees before 5pm on the day that I deliver this judgment.

29 At a meeting on 8 November 2011 the Mayor's motion was brought forward. It was in the following terms:

"1. That council:

a) Thanks the Premier, Mr Barry O'Farrell, for his offer to provide an arborist to conduct an expert assessment of the risk posed by the Laman St figs.

b) notes that the General Manager believes that he cannot accept the Premier's offer without either the support of a council resolution, or formal state intervention in this matter.

c) requests the state government to intervene in the matter to the extent necessary, and by whatever means is most effective and appropriate, to facilitate the independent expert assessment of the risk posed by the trees.

2. That this be considered a matter of urgency, and as a matter affecting the practicality of implementing council's decision to remove the trees."

30 A councillor took a point of order that the Mayor's motion was unlawful and should be ruled out of order by the chairperson. The Lord Mayor did not uphold the point of order. A councillor then moved a motion of dissent from the Lord Mayor's ruling on the point of order. The motion of dissent was carried. The Lord Mayor then ruled the Mayor's motion out of order.

31 A further motion in the following terms was then put and defeated:

"(a) It is noted that an application for an injunction has been agreed to by the General Manager, which has the effect of delaying the implementation of the valid Council resolution of 19 th July 2011 until 4pm on Friday 11 th November 2011.

(b) Council therefore directs the General Manager to approach the Premier to obtain the services of an agreed arborist who meets the necessary criteria as determined by the Mediation Reference Panel in the attempt to gain an Independent evaluation, who can ascertain if Council's decision of 19 th July 2011 was reasonable in the circumstances of the advice of the officers.

(c) Unless the selected arborist reports to the General manager by 4pm Friday 11 th November 2011 that the decision of Council of 19 th July 2011 was unreasonable, the General Manager is directed to remove and replace the Laman St tree immediately."

32 The following further motion was then put, which the council determined to let lie on the table to enable it to receive legal advice:

"1. That Council:

a) Thanks the Premier, Mr Barry O'Farrell MP, for his offer to provide an arborist to conduct an expert assessment of the risk posed by the Laman Street trees;

b) notes that the General Manager believes that he cannot accept the Premier's offer without either the support of a Council Resolution, or some formal state intervention in this matter;

c) requests the State Government to assist Council by intervening and/or assisting in the matter to the extent necessary, and by whatever means in most effective and appropriate, to resolve community concerns over this matter in a way that would not place either Council or the General Manager in a potentially unlawful position.

2. That this be considered a matter of urgency, and as a matter affecting the practicality of implementing Council's decision to emove the trees.

3. This is subject to Save Our Figs Inc withdrawing legal proceedings in the Land and Environment Court."

33 A further motion was also foreshadowed by a councillor but not put to the meeting.

34 The council directed that legal advice be provided in relation to the further motion, the motion laid on the table and the foreshadowed motion referred to at [31] - [33] above.

35 The general manager has neither requested nor received any written offer from the Premier or any representative of the State Government relating to further assessment of the trees.

36 The area around the trees has been established as an exclusion zone. This has involved the closure of the road to both motor vehicles and, at times, pedestrian traffic as well as the closure of the local library and art gallery on Laman Street during certain periods.

LEGAL PRINCIPLES

37 In order to obtain an interlocutory injunction, it is necessary for the applicant to establish that there is a serious question to be tried and that the balance of convenience - perhaps better described as the balance of the risk of doing an injustice - favours the grant of the injunction. Normally, the Court does not undertake a preliminary trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 - 623; Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57; Plaintiffs M168/10 v Commonwealth [2011] HCA 25, 85 ALJR 790 at [14] - [19]. The general approach to interlocutory injunctions was stated as follows by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 (omitting citations):

"Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question. If the Court does decide the question of law the uncertainty is to that extent removed.

Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused."

38 In the present case there are contested questions of law which, in the circumstances, are inappropriate to decide on this interlocutory application.

SERIOUS QUESTION TO BE TRIED

39 The applicant submits that there is a serious question to be tried under paragraphs 2 and 4 of the further amended summons, and that paragraph 5 follows from orders made under paragraphs 2 and 4: see [ 7 ] above.

40 The respondents submit that the strength of the applicant's prima facie case must be high having regard to the nature of the rights in issue; that is, an interlocutory injunction can prevent the general manager from performing his statutory obligation under s 335(1) of the LGA to implement a valid council resolution "without undue delay".

41 Section 335(1) of the LGA provides:

"335 Functions of general manager

(1) The general manager is generally responsible for the efficient and effective operation of the council's organisation and for ensuring the implementation, without undue delay, of decisions of the council."

42 I do not accept that the general manager would be in breach of his statutory obligation if the Court were to enjoin him from implementing the July 2011 resolution. I also disagree that the applicant's case must be high for present purposes. There has been a lengthy delay already in implementing the council's July 2011 resolution to remove the trees. So too with the council's 2010 decision to remove them. If the trees are destroyed before a final hearing, the proceedings will be futile. In these circumstances, I consider that the strength of the applicant's case does not have to be high.

43 The applicant propounds two grounds as giving rise to serious questions to be tried in relation to the general manager's decision under s 335(1) to implement the July 2011 resolution to remove and replace the trees as soon as practicable:

(a) the general manager did not take into account or give proper genuine and realistic consideration to the Premier's offer that, if asked for a State Government arborist, he would be happy to make one available; and

(b) the general manager misconstrued the requirements of the words "undue delay" in s 335 of the LGA by not taking into account at all, or by not giving proper, genuine and realistic consideration to the Premier's offer.

44 More particularly, the applicant submits as follows:

(a) The Premier's offer is a mandatory relevant consideration: Minister for Aboriginal Affairs v Peko - Wallsend Ltd [1986] HCA 40, 162 CLR 24. The offer is relevant to the general manager's responsibility to implement the resolution without undue delay because it provides the council with an opportunity for the State Government to provide an independent arborist to assess the trees. The general manager needs to assess when the July 2011 resolution is to be implemented. It is relevant to such a consideration for him to consider relevant matters such as: whether the Lord Mayor is in support of the resolution, whether council is likely to rescind the motion, whether the council supports further assessment of the fig trees before implementation, whether there will be civil disturbance or disobedience as a result of implementation of the resolution, and whether steps might be taken to help justify removal to those opposed to the implementation through a properly independent assessment of the need to remove the fig trees.

(b) An independent assessment which reviews previous conclusions and reassesses the need to remove the trees will have a direct bearing upon those relevant considerations. If the assessment is supportive of the conclusion that the trees are dangerous and need to be removed, then it may persuade those councillors who are opposed to the removal and members of the public who are also opposed that removal is, in fact, necessary. If the assessment concludes that removal is unnecessary then it may call into question the views of those currently supportive of removal.

(c) If there is a reasonable possibility that the council will be persuaded by such an independent assessment and rescind its July 2011 resolution, then it must be relevant to consider the offer of an independent assessment by the Premier.

(d) The council had been trying to appoint an independent assessor at the time the Premier made his offer and had been unsuccessful. It appears inconsistent for the general manager to (presumably) assert legality in the process of trying to agree an independent assessor with the applicant yet decline the offer of assistance from an independent and important third party.

(e) Accordingly, there is a prima facie case that paragraph 2 of the further amended summons will succeed.

(f) Paragraph 4 of the further amended summons concerns an impermissible construction of s 335(1) of the LGA by the general manager. The construction which he appears to have adopted in October 2011 was that he was "required" to proceed with the removal of the trees forthwith. That construction gives no meaning or effect to the words "without undue delay". Those words have meaning and that meaning requires the General manager to consider what might be a "due delay". Often such matters will be practical but they may also involve more fundamental matters such as whether the removal of the fig trees is in fact based on a proper and independent assessment of the trees. To exclude such matters from his consideration consists of a misconstruction of his discretion and the power conferred on him by s 335(1) of the LGA. It is an error of law to so misconstrue the provision: Craig v State of South Australia [1995] HCA 58, 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [82].

(g) Accordingly, there is a prima facie case that paragraph 4 of the amended summons will succeed.

(h) Paragraph 5 of the amended summons follows from a declaration made under paragraphs 2 or 4.

45 In summary, the respondents submit that there is no serious question to be tried given that:

(a) Section 335 of the LGA imposes an obligation and a duty on the general manager to implement decisions of the council. It does not in terms confer upon him a public administrative decision - making power. Accordingly, judicial review principles relied upon by the applicant concerning the making of public administrative decisions do not apply.

(b) Whether or not a given matter is a mandatory relevant consideration is a question of statutory construction. As a matter of statutory construction, it cannot be said that consideration of the Premier's offer is a mandatory relevant consideration for the purposes of s 335(1) of the LGA.

(c) The evidence shows that as a matter of fact the general manager was aware of the Premier's offer, but proceeded by not accepting it. The relevant grounds must fail as a matter of fact.

(d) No passage in any decision has been identified showing where the general manager is alleged to have misconstrued the words "undue delay" in s 335(1) of the LGA. There is no error of law in implementing a resolution without "undue delay" which requires removal of trees "as soon as practical", in not stopping their removal to take up an offer to consider whether they should be removed. Rather, that involves second - guessing whether or not the trees should be removed.

(e) In any event, the words "undue delay" are ordinary English words and their meaning is a question of fact.

46 There are considerable difficulties in the applicant's case. The general manager's statutory obligation is to implement a council decision without undue delay. Ordinarily, he is not in breach of his statutory obligation by not delaying implementation; nor is he under a statutory obligation to implement a decision with "due" delay. It is one thing to complain that the general manager is in breach of his statutory obligation because he has unduly delayed implementing a council decision. It is another thing to complain that he proposes to implement it before the delay has become undue.

47 Nevertheless, there are number of authorities which may provide building blocks for the demonstration of a serious question to be tried in the present case.

48 In Minister for Aboriginal Affairs v Peko - Wallsend Ltd [1986] HCA 40, 162 CLR 24 at 39 Mason J said (excluding citations):

"(a) The ground of failure to take into account a relevant consideration can only be made out if a decision - maker fails to take into account a consideration which he is bound to take into account in making that decision...

(b) What factors a decision - maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision - maker is bound to consider - are not expressly stated, they must be determined by implication from the subject - matter, scope and purpose of the Act."

49 The statute must expressly or impliedly oblige the decision - maker to consider the subject matter at the level of particularity involved in the applicant's submission: Foster v Minister for Customs and Justice [2000] HCA 38, 200 CLR 442 at [23]; Walsh v Parramatta City Council [2007] NSWLEC 255, 161 LGERA 118 at [60] (Preston CJ).

50 The statutory duty to "consider" means to give "proper, genuine and realistic consideration" to the merits of the case, but those words should not be permitted to encourage a slide into impermissible merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 273 ALR 122 at [26], [30]; Capital Airports Group Pty Ltd v Director General, NSW Department of Planning (No 2) [2011] NSWLEC 83 at [98] - [100] (Biscoe J); Alexander v Yass Valley Council [2011] NSWLEC 148 at [107] - [109] (Pain J). As noted in Capital , the High Court in SZJSS did not mention, but its decision prevails over, a view earlier expressed in the NSW Court of Appeal that it is preferable to avoid using such a formula or similar descriptive formulae (but that more is required than mere lip service).

51 In Walker v Minister for Planning [2008] NSWCA 224, 161 LGERA 423 it was held that in determining whether to grant a concept plan approval under Part 3A of the Environmental Planning and Assessment Act 1979, the Minister was under an implied obligation to consider the public interest: at [39]. The further question had to be addressed whether that obligation would operate at the level of particularity involved in the applicant's submission (ie consideration of the effect of climate change flood risk on a flood constrained coastal plain project): at [41]. It was held that it would in the future: at [56] - [60]. Although decided in a different context, the decision arguably may provide an analogy in the present case in support of the proposition that the general manager is under an implied obligation to consider the public interest insofar as it is relevant when determining whether a lengthy delay in implementing the Council's July 2011 resolution, in circumstances of significant public controversy, has become undue or is not undue.

52 In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 at [45] Basten JA (Giles and Macfarlan JJA agreeing) held:

"If the law imposes an obligation on a decision - maker to consider a specified matter as a precondition to the validity of the decision, there will be an implied obligation to consider whether a factor potentially falling within the scope of the mandatory consideration does or does not so qualify."

53 Building on the principles expressed in these authorities and having regard to the evidence, it seems arguable that:

(a) against a background of public controversy and substantial delay in implementing the July 2011 resolution, the general manager has in fact decided that further delay is undue;

(b) in making that decision s 335 of the LGA imposed on the general manager an implied obligation to consider the public interest insofar as it was relevant;

(c) therefore the general manager was under an implied obligation to consider whether a factor potentially falling within the scope of that mandatory consideration does or does not so qualify;

(d) the Premier's offer was such a factor; and

(e) the general manager did not in fact consider the Premier's offer when making the decision, or failed to consider whether it does or does not qualify as such a factor, or failed to give it proper, genuine and realistic consideration.

54 As to the last point, the Mayor's motion involved the council considering the Premier's offer. The motion was ruled out of order on the basis that it could not be lawfully considered before 25 November 2011 by reason of s 335(1) of the LGA. The respondents submit that the Mayor's motion was nevertheless considered by the council because cl 238(3) of the Local Government (General) Regulations 2005 provides that: "Any motion...that the chairperson has ruled out of order is taken to have been rejected". To say the least, it is arguably unrealistic to say that a motion has been relevantly considered when it has been ruled out of order. The respondents also submit that in any event the Mayor's motion was considered by the council when the further motion referred to at [ 31 ] above was put and lost. It is arguable, however, that the qualifications in that motion were such that the Premier's offer itself was not relevantly considered.

55 Moreover, it is arguable that any consideration by the council does not translate to consideration by the general manager. The respondents submit that in fact the general manager did otherwise consider the Premier's offer, but that too, in my view, is arguable.

56 The argument outlined above is not strong and is bedevilled by difficulties including those referred to at [ 46 ] above. However, on balance, I am prepared to accept that it just rises to the status of a serious question to be tried. For present purposes, it is unnecessary to determine whether there is any other serious question to be tried.

BALANCE OF CONVENIENCE

57 As to the balance of convenience, the respondents, in summary, made the following oral submissions.

58 First, the respondents submit that an interlocutory injunction will interfere with implementation of the July 2011 resolution, the validity of which is not challenged. I do not think that this is a weighty consideration. The applicant's challenge is to the lawfulness of the general manager's conduct in relation to implementation. If that conduct is unlawful, then it is only right that the general manager re - exercise his power lawfully.

59 Secondly, the respondents submit that there is evidence that the trees are a continuing danger. That is so, although the applicant does not accept that assessment and sought another independent assessment. Expert reports that the trees represent a danger were reviewed by me in Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, 179 LGERA 346 at [19] - [30]. However, the council has since 2009 implemented measures to mitigate the risk posed by the trees. Since July 2011, the council has introduced further risk mitigation measures, which include closure of the Art Gallery on Laman Street during adverse weather conditions because the only public access is from Laman Street, and permanently closing Laman Street to vehicles.

60 Thirdly, the respondents submit that there is no assurance that the council will have any public liability insurance associated with the trees after 30 November 2011. The respondents also submit that this will place the council in breach of s 382(1) of the Local Government Act 1993, which provides that: "a council must make arrangements for its adequate insurance against public liability and professional liability".

61 I have touched on this insurance issue at [ 12 ] above. The council's public liability insurer offered to pay for certain testing of the trees "conditional on all stakeholders being willing to accept that the results of the testing will be the final arbitrament as to the future of the trees". The reasons given by the council for refusing the offer were that the testing was "point in time" testing; the testing results may recommend that one or more of the trees require removal; and removal of individual trees may, according to expert advice, compromise the stability of the remaining trees. The insurer agreed to extend cover to 30 November 2011, subject to continuation of the current risk management steps remaining in place pending resolution of the issues. An email from the insurer to the council of 3 November 2011 says that: "If an extension is needed, maybe we should only grant a small extension..." I accept that there is a risk that the insurer will be off risk after 30 November 2011; however, it seems willing to grant at least a small extension beyond that date if needed.

62 The applicant submits that if the insurer goes off risk, it is the council's own fault in refusing to accept the insurer's offer to pay for the testing. The respondents submit that the refusal was justified, given the condition that the insurer wished to impose. I do not think that I can resolve the merits of the refusal on this interlocutory application.

63 Assuming that the insurer declines to extend cover beyond a certain date, I do not accept that that fact, of itself, will put the council in breach of s 382(1).

64 Fourthly, the respondents submit that the matter has been the subject of much consideration. That is so.

65 Fifthly, the respondents submit that there will be significant disruption to public access so long as the July 2011 resolution is not implemented. That is so.

66 Sixthly, the respondents submit that the applicant had the opportunity to nominate an expert to assess the trees under a recent agreement between the parties and did not utilise the opportunity. This refers to the written "Agreement to Procure Independent Expert Assessment" dated 21 October 2011 referred to at [ 19 ] above. It was executed on 20 October 2011 and held in escrow until certain amendments were attended to. The agreement recited: that there was a dispute between the parties as to the safety of the trees; the terms of the July 2011 resolution; that the applicant disputed the reliability of the expert opinion on which the council relied to make the resolution; that at present the council's general manager considers it "not practical" to remove the trees; and that the agreement provided for independent assessment of the trees. Clause 2.1 provided that within one business day the applicant must select, in order of preference, which of the three experts listed in Schedule 2 is to be appointed by the Council. However, this appears to have been overridden by handwritten pages apparently forming part of the agreement which stated that the applicant selected one of the three and would not assign a preference to the others because it considered they were unsuitable for the task, either because they had insufficient expertise or were too close to the respondent (a conflict of interest); and that if the applicant's choice of the three was not available the proposed expert assessment would not proceed. As it turned out, the expert selected by the applicant was not available. Assuming it is relevant, I am unable, on the evidence in this interlocutory application, to determine whether or not the applicant's rejection of the other two experts was reasonable. I therefore do not propose to hold that rejection against the applicant when considering the balance of convenience. I note that at the hearing I raised with both parties whether even now they could not revive the 21 October agreement by agreeing on an expert, but there was no substantive response.

67 Seventhly, the applicant does not offer the usual undertaking as to damages. Even if it made the offer, the undertaking would likely be virtually worthless because the applicant has no significant assets. The respondents submit that therefore the Court should decline to grant an interlocutory injunction.

68 However, the applicant submits that it should not be required to give an undertaking as to damages under r 4.2(3) of the Land and Environment Court Rules 2007. Rule 4.2 provides:

"4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

(2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent's costs if it is satisfied that the proceedings have been brought in the public interest.

(3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to:

(a) the injunction or order sought by the applicant, or

(b) an undertaking offered by the respondent in response to the application,

if it is satisfied that the proceedings have been brought in the public interest."

69 In earlier litigation concerning these trees, Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, 179 LGERA 346 at [171] - [173], I considered the public interest costs provision in r 4.2(1) as follows:

"171 A principled three step approach has been developed in determining whether to make no order for costs against an unsuccessful applicant under LECR 4.2(1). First, can the litigation be characterised as having been brought in the public interest? Secondly, if so, is there something more than the mere characterisation of the litigation as having been brought in the public interest? Thirdly, are there any countervailing circumstances which speak against departure from the usual costs rule?: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 at [13]; Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155 at [39].

172 The following observations as to the answers to these questions are preliminary and subject to considering any contrary submissions that the parties may wish to put.

173 As to the first question, the litigation can be characterised as having been brought in the public interest for it was brought to uphold and enforce a public law statutory obligation and to ensure that the council's power was lawful. As to the second question, there is something more than mere characterisation of the litigation as having been brought in the public interest in two respects: (a) the extent of the public interest in the lawfulness of the council's proposed removal of these much loved Trees is considerable; and (b) the case raised issues of statutory interpretation of general importance, in particular the proper construction of s 88 of the Roads Act and cl 98(2) of ISEPP and their interrelationship with Parts 4 and 5 of the EPA Act. As to the third question, countervailing circumstances, the council foreshadowed a possible submission that certain costs were wasted due to some aspects of the applicant's conduct in respect of which it may seek costs whichever way the proceedings went. If this is to be pressed, I will provide the council with an opportunity to do so."

70 In that case, no contrary submission was put by the council to my observations in [173]. Consequently, under r 4.2(1), no order for costs was made against the unsuccessful applicant.

71 In the present case, in my view, the litigation can similarly be characterised as having been brought in the public interest for it was brought to uphold a public law statutory obligation of the general manger to implement a council resolution "without undue delay": s 335(1) LGA. Secondly, there is something more than mere characterisation of the litigation as having been brought in the public interest in two respects: (a) the extent of the public interest in the lawfulness of the council's proposed removal of these much loved trees is considerable; and (b) the case raises an issue of statutory interpretation of general importance concerning the existence and content of any obligation of the general manager of a council to give consideration to relevant matters when determining whether there is undue delay under s 335 of the LGA. Finally, there does not appear to be any countervailing circumstances which speak against departure from the usual principle that an undertaking in damages is required.

72 Accordingly, I consider that r 4.2(3) is enlivened and that I should exercise my discretion in favour of the applicant. Thus, I do not require the applicant to give the usual undertaking as to damages.

73 A number of other balance of convenience considerations were noted in the respondent's written submissions, which were not expressly referred to in its closing oral submissions. I have taken them into account but do not think they are weighty.

74 In my view, the following countervailing balance of convenience considerations should be weighed against those referred to above:

(a) If the trees are destroyed they cannot be restored. They are over 70 years old, iconic and much loved by many. The planting of replacement trees is unlikely to restore the area to its former position for decades.

(b) An interlocutory injunction would be for a relatively short time because the Court is able to hear the matter on a final basis in less than three weeks, on 5 and 6 December 2011. The parties estimate that a final hearing will take a day plus.

(c) The strength of the serious question to be tried is relevant. In my view, the applicant's case is not strong. Nevertheless, I consider that is a less significant consideration where the period of interlocutory injunction is relatively short. It will be relatively short due to the ability of the Court to provide final hearing dates in less than three weeks time. That assumes that the proceedings do not resolve in the meantime because of the matter discussed at (d) below.

(d) An interlocutory injunction for a relatively short period would have the incidental effect of disposing of the great bulk, if not all, of the proceedings, including the claim for injunctive relief, if the Council were to consider the Mayor's motion concerning the Premier's offer, which it could lawfully do after 25 November 2011. The Mayor's motion, which would have required consideration of the Premier's offer, was ruled out of order on the basis that it was unlawful under s 372(5) of the LGA: see [ 23 ], [ 29 ], [ 30 ] above. The point of order was based on the proposition that the Mayor's motion could not be put forward within three months after the unsuccessful motion of 25 August 2011 to rescind the July 2011 resolution ie not before 25 November 2011. That is now only eight days away. Assuming that s 372(5) is an impediment to considering the Premier's motion before 25 November 2011, an interlocutory injunction would have the incidental effect of removing the impediment after that date. Senior counsel for the applicant said at an earlier interlocutory hearing that if the council considers the Premier's offer, then the applicant will no longer press for any injunctive relief, and that may well be the end of the entire proceedings: see [8] above. On that basis, if after 25 November 2011 the Mayor's motion were to be considered, even if it were to be defeated, or if the Premier's offer were otherwise to be considered, that would dispose of the bulk or all of the proceedings including the claim for injunctive relief.

75 After weighing the various considerations, I conclude that the balance of convenience marginally favours the grant of an interlocutory injunction until final determination of the proceedings.

DISCRETION

76 The respondents also contend in their written submissions that, if the Court were otherwise minded to grant interlocutory relief, the Court in its discretion should refuse relief because the evidence suggests, or gives rise to serious concerns, that the proceedings are an abuse of process. That is said to be because they have been brought for an improper purpose, namely, (a) to delay things until after expiry of the time limit in s 372(5) of the LGA in the hope of an alternative outcome; and (b) to bring improper pressure to bear on councillors who left the meeting on 1 November 2011.

77 Delay as an end in itself is an abuse of process. But on the evidence before me it does not appear to be an end in itself in this case. If an interlocutory injunction is otherwise justified, it does not matter that the time bar in s 372(5) will expire in the meantime. The evidence also does not seem to support the allegation that the, or a, purpose of the proceedings is to put improper pressure on some councillors. If there is any residual concern or suspicion, I do not think it rises to the level of a weighty discretionary consideration.

78 Finally, the respondents submit that relief should be refused on discretionary grounds because (a) officers of the applicant were engaged in acts of civil disobedience by breaching exclusion zones and perimeter fencing; and (b) the applicant assured the Court that if the Mayor's motion was considered by the council it would not pursue injunctive relief. I have dealt with the second of those points earlier and do not consider it to be a weighty discretionary consideration. If the first point is factually correct, I do not regard it as weighty. In a democracy, the Court should be slow to countenance refusing interlocutory relief to which an applicant is otherwise entitled because it engaged in peaceful protest in a context where a respondent arguably was behaving unlawfully in its administrative decision - making.

JURISDICTION

79 The respondents made a written submission that the Court had no jurisdiction in respect of the proceedings. That was said to be because the applicant relied on the open standing provision in s 674(1) of the LGA, which permits any person to bring proceedings to remedy or restrain "a breach" of the LGA; and the case does not involve any allegation of breach. However, subsequently the applicant amended it summons to expressly allege a breach. Consequently, as I understand it, the respondents no longer press the jurisdiction point.

ORDERS

80 The orders of the Court are as follows:

(1) Order that until final determination of these proceedings the respondents not cause the destruction or removal of the fig trees in Laman Street, Cooks Hill.

(2) The proceedings are expedited and the final hearing is fixed for 5 and 6 December 2011.

(3) Direct the applicant to file and serve any further evidence on which it relies and its submissions by 25 November 2011.

(4) Direct the respondents to file and serve any further evidence on which they rely and their submissions by 1 December 2011.

(5) Costs are reserved.

(6) The exhibits may be returned.

(7) Liberty to apply.

Decision last updated: 17 November 2011