Land and Environment Court New South Wales

• Medium Neutral Citation: Blacktown City Council v The Penatrators Pty Limited [2013] NSWLEC 169
• Hearing dates: 2, 3 and 4 October 2013
• Decision date: 04 October 2013
• Jurisdiction: Class 4
• Before: Pepper J

Decision

See orders at [39].

• Catchwords: INJUNCTIONS: application for interlocutory relief to restrain further waste material being deposited and stored onsite - whether correct corporate entity a party to proceedings - applicable legal principles - whether a serious question to be tried - balance of convenience - usual undertaking as to damages not offered by council - public interest - interim injunction granted.
• Legislation Cited: Civil Procedure Act 2005, s 56; Environmental Planning and Assessment Act 1979, ss 76A, 76B, 121B; Land and Environment Court Rules 2007, r 4.2(3); State Environment Planning Policy (Exempt and Complying Development Codes) 2008; State Environmental Planning Policy (Sydney Region Growth Centres) 2006
• Cases Cited: Dungog Shire Council v B and E Clarke [2009] NSWLEC 16; Hill Top Residents Action Group Inc v Minister Administering the Sport Venues Authorities Act 2008 [2010] NSWLEC 210; Hooper v Port Stephens Council [2009] NSWLEC 234; Hume Coal Pty Limited v Alexander [2012] NSWLEC 267; International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; Liverpool Plains Shire Council v Vella [2013] NSWLEC 54; Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127; Seven Network Ltd v QIC Pty Ltd [2012] NSWLEC 201; Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1; Willoughby City Council v Sahade [2000] NSWLEC 38
• Category: Interlocutory applications
• Parties: Blacktown City Council (Applicant); The Penatrators Pty Limited (First Respondent); Mr Michael Galainy (Second Respondent)
• Representation: Mr A Pickles (Applicant); N/A (Respondents); Lindsay Taylor Lawyers (Applicant); N/A (Respondents)
• File Number(s): 40699 of 2013

EX TEMPORE Judgment

The Council Seeks to Restrain the First Respondent From Unlawfully Dumping Waste

1 By notice of motion dated 2 October 2013, the applicant, Blacktown City Council ("the council"), seeks interim injunctive relief to stop the first respondent, The Penatrators Pty Limited ("the company"), from depositing or receiving any further waste material on land at Lots 23-25 of section 47 in DP 1480 ("the site"). The second respondent, Mr Michael Galainy, is the sole director of the company.

2 On 19 June 2013 the council had issued an order to the company under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") requiring, within one day of the date of the order, the cessation of the use of the site for the purpose of the receipt and storage of waste. It was ignored.

3 On 13 September 2013, proceedings were commenced against the company and Mr Galainy by the council, by summons, seeking declaratory and injunctive relief in respect of the unlawful dumping and storage of waste material on the site contrary to either ss 76B or 76A of the EPAA.

4 Since the summons was filed, Mr Galainy has repeatedly indicated informally to council officers that he would lodge a development application in respect of the use of the site. To date he has failed to do so.

5 The need for the restraining order has become urgent because, as the affidavit evidence discussed below demonstrates, the waste material is being deposited at the site at an accelerated rate and it currently poses a potential threat to the environment and to human safety.

6 On the material before the Court, I am satisfied that it is an appropriate exercise of my discretion to grant the interlocutory injunctive relief sought.

History of the Application

7 When the matter came before the Court initially on 2 October 2013, neither Mr Galainy nor anyone on behalf of the company appeared.

8 The council attempted to move on their notice of motion seeking relief absent either respondent. They did so on the basis of material contained in an affidavit of Mr Glenn Apps, the Team Leader of Regulatory Planning at the council, affirmed 2 October 2013, and in an affidavit of Ms Kim Silvio, a Development Control Officer at the council, also affirmed 2 October 2013.

9 On the basis of the evidence deposed to in those affidavits, the council submitted that adequate notification had been given to the respondents that if a written undertaking was not provided by the company to ensure no further receipt and deposit on the site of any waste materials, then the council would approach the Court to seek appropriate orders to restrain that activity.

10 Reliance was also placed on a telephone conversation between Ms Silvio and Mr Galainy on 2 October 2013 at approximately 10am, wherein Mr Galainy had told Ms Silvio that he had sought independent advice in relation to the matter and that he would not be providing an undertaking. The attitude expressed by Mr Galainy in the telephone conversation was consistent with that expressed by him in an earlier conversation with Mr Apps on 18 September 2013, during which Mr Galainy threatened, in what can only be described as florid and colourful language, to report the council to the Independent Commission Against Corruption if it persisted pursuing the company.

11 But on 1 October 2013 the council had sent a letter by email to Mr Galainy, in his capacity as director of the company, stating that if the undertaking referred to above was not delivered to the council, or to the offices of the council's solicitors, by "no later than close of business (5.00pm) on Wednesday 2 October 2013, I am instructed to approach the Land and Environment Court seeking appropriate orders from the Court to restrain the Company".

12 Thus when the council came before me at approximately 3pm, Mr Galainy still had two hours within which to provide the undertaking as requested. In these circumstances, it would not have been fair to hear the council's application for injunctive relief in his, or the company's, absence.

13 Moreover, the letter sent by the council gave no indication of when the council would approach the Court for the orders referred to in the letter. Again, as a matter of fairness to the first respondent, this information ought to have been provided with some precision (I am fortified in this view by the comments made by Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [150], which has been endorsed and applied in this Court in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [6] and Hill Top Residents Action Group Inc v Minister Administering the Sport Venues Authorities Act 2008 [2010] NSWLEC 210 at [10]-[11]).

14 In all the circumstances, therefore, the Court adjourned the hearing of the notice of motion until 3 October 2013. As it transpired, this was the correct course.

15 When the matter came before the Court on 3 October 2013, Mr Galainy and the company were, initially at least, represented by Mr Peter Lowe of counsel on what appeared to be a direct access brief. However, after a brief adjournment at Mr Lowe's request, the Court was informed that Mr Lowe's instructions had been withdrawn. The company, and Mr Galainy as its sole director, continued their participation in the application as self-represented litigants.

16 As a consequence, Mr Galainy sought an adjournment of the proceedings to permit him to obtain legal representation. He indicated to the Court that he had never met the barrister who had appeared for him earlier, and that it was "a solicitor friend" who had, at short notice, organised for him to be represented by counsel. He also told the Court that he had only just received the material the council was seeking to rely upon at the hearing of the motion for interlocutory relief.

17 In addition, Mr Galainy stated from the bar table that:

(a) contrary to the council's claim, the site was not being used as a waste storage facility but was a recycling transfer station, that, he conceded, required development consent;

(b) he had a "DA ready to go" but that he had not lodged it with the council because the council would only reject it;

(c) the council had acted corruptly in its dealings with him and that some of the evidence it was relying upon for the purpose of the application for interim relief had been "fabricated";

(d) the NSW Environmental Protection Authority and WorkCover NSW had inspected the site and had "found nothing wrong";

(e) the council had sued the wrong company and had misspelt his name in the summons; and

(f) in any event, some of his equipment had been tampered with and therefore he could not bring any more material onto the site, at least on that day.

18 The council again sought an undertaking from either the company or Mr Galainy in exchange for its acquiescence to an adjournment of the matter. Mr Galainy refused to provide one personally, and moreover, candidly informed the Court that if the company gave one "it would not be worth the paper it was written on" because another company was responsible for the deposition and storage of waste on the site. This is elaborated upon below.

19 Notwithstanding the refusal of either respondent to provide the undertaking, given the matters raised by Mr Galainy, albeit unsubstantiated, the Court considered that, having regard to the overriding purpose rule contained in s 56 of the Civil Procedure Act 2005 ("the CPA"), it was "just" to grant an adjournment for a limited time to permit Mr Galainy to obtain legal representation.

20 Only a brief adjournment was warranted, however, having regard to the absence of any undertaking to cease depositing and storing waste on the site, the escalation in the rate of deposition, the volume of material stored on the site, the concession from Mr Galainy that, at the very least, he required development consent for the current use of the site and that none had been obtained (discussed in greater detail below), the continuing contravention of the s 121B order, and the continuing potential hazard that the storage of the waste on the site posed. Accordingly, the Court adjourned the motion until 10am on 4 October 2013.

21 When the matter resumed on 4 October 2013, Mr Galainy appeared without legal representation. He claimed that he had had insufficient time to obtain legal representation. He also claimed that his wife had had a miscarriage the previous night. He did not produce any evidence, medical or otherwise, to verify this claim, nor did he indicate what steps, if any, he had taken to obtain legal representation. The Court therefore continued to hear the council's application for interim injunctive relief.

22 The council was granted leave to file in Court a notice of motion seeking to join Riverstone Waste Transfer Pty Ltd ("Riverstone") to the proceedings generally and as a party to the application seeking interlocutory relief. The motion was brought about by statements made by Mr Galainy on the previous day that The Penetrators Pty Limited was not the correct corporate entity to pursue in the proceedings and that Riverstone was the company responsible for the waste onsite.

23 The council sought an order that the motion be made returnable instanter. Given that Mr Galainy had been given no notice whatsoever of the application and that he was unrepresented, the Court declined, as a matter of fairness to Mr Galainy, to hear and determine the motion immediately and instead set it down for final hearing before the duty judge on 9 October 2013.

24 The Court returned to the application presently before it. The council gave a brief overview of the evidence it relied upon and the submissions it would be making in support of its application. At the end of the overview, the Court asked Mr Galainy if he wished to object to any part of the affidavits that had been read, if he wished to give evidence (noting that he would be subject to cross-examination), or if he wished to cross-examine any of the council's witnesses. He declined to do so, stating that he would say nothing further until he had been given time to obtain legal representation. The Court then asked Mr Galainy if he wished to respond in any way to the allegations and claims made by the council. He repeated his earlier statement about saying nothing further until he had obtained legal representation. The Court then advised Mr Galainy that it would consider the evidence and submissions made by the parties during the hearing and deliver an ex tempore judgment. This is that judgment.

Legal Principles Applicable to the Granting of Interlocutory Injunctions

25 The legal principles to be applied in determining whether or not to grant interlocutory relief have been set out in a number of cases in this Court (see Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6]-[58]; Bridgewater Investments at [4]-[6]; Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 at [37] and Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 at [69]-[82]).

26 In Bridgewater Investments, Biscoe J helpfully and succinctly summarised the principles, which I respectfully adopt, as follows (at [4]-[5]):

4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]-[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536.

5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court's anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The "usual undertaking as to damages" is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows:

"25.8 Meaning of "usual undertaking as to damages"

The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking."

There is a Serious Question to be Tried

27 The council relied upon the following affidavits to establish the breach of ss 76B or 76A of the EPAA alleged in the summons:

(a) affidavits of Mr Apps affirmed 5 September, 2 and 3 October 2013;

(b) affidavits of Ms Silvio affirmed 5 September and 2 October 2013; and

(c) an affidavit of Mr Jason Roberts, a Development Control Officer with the council, sworn 2 October 2013.

28 In summary, these affidavits disclosed that:

(a) company searches indicate that Mr Galainy is the sole director of the company;

(b) the site is covered with stockpiles of construction and demolition waste, such as bricks, soil, concrete, timber, plastics, steel and other metals;

(c) approximately 70% of the site is covered with this waste, some of which is stockpiled underneath power lines and the height of which in places exceeds the fence surrounding the perimeter of the site;

(d) there is no equipment on the site that would indicate that the sorting and recycling of material, as claimed by Mr Galainy, is in fact taking place;

(e) some of the material stored on the site appears to be fibro and there is therefore a risk that asbestos is present within the accumulated waste that is not being appropriately managed;

(f) photographs taken during several inspections of the site indicate that:

(i) the quantity of waste being deposited on the site has increased dramatically during the past two weeks; and

(ii) vehicles registered to the company have been depositing excavation and building materials at the site;

(g) the site is burdened by an easement for an electricity transmission line vested in the New South Wales Electricity Transmission Authority (now formally "Transgrid"). Demolition material has been deposited in close proximity to these power lines and appears to be encroaching upon the easement;

(h) the site is zoned IN2 Light Industrial under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ("the SEPP")). Under cl 4 of the IN2 Zone, a "waste or resource management facility" is prohibited and under cl 3 of that Zone, a "waste or resource transfer station" is permitted but only with consent;

(i) it does not appear that there is any category of exempt development under either the SEPP or the State Environment Planning Policy (Exempt and Complying Development Codes) 2008 applicable to the receipt and storage of waste observed on the site;

(j) as stated above, a search of the council records reveals no record of any development consent, including any complying development certificate, having been issued in relation to this site. Furthermore, and again as previously stated, these records indicate that there is no development application before the council for the current use of the site to receive and store waste;

(k) there is no protection for surrounding properties if fragments of the material stored on the site become airborne; and

(l) the council has received approximately 30 telephone calls from members of the community complaining about the activities on this site.

29 I am satisfied that there is a serious question to be tried, based on the council's evidence as summarised above, in that the respondents are carrying out an activity in continuing breach of the EPAA insofar as, at the very least, development consent is required to use the site as a waste or resource transfer station, and, as Mr Galainy has admitted, none has been obtained; or, at the very worst, the use of the site as a waste or resource management facility is prohibited within the Zone under the SEPP.

30 In relation to Mr Galainy's unsubstantiated claim that the council has proceeded against the wrong corporate entity, despite unsworn allegations from the bar table by Mr Galainy that the activities at the site are not being carried out by the company but are being undertaken by Riverstone, this is contradicted by the following evidence:

(a) the presence of a Ford utility vehicle onsite registered to the company;

(b) conversations between Mr Apps and a person onsite indicating that Mr Galainy was a person having control and knowledge of the site;

(c) the presence of Mr Galainy onsite on 1 October 2013 and conversations between Mr Galainy and the council concerning the activities taking place on the site, wherein at no stage did Mr Galainy deny that the company was carrying out the development or assert any fact to the contrary;

(d) repeated admissions by Mr Galainy of an intent to lodge a development application for the use of the site, which again contained no assertion that the development application would be lodged by, or on behalf of, an entity other than the company; and

(e) the webpage for the company describes its activities as including "demolition". This is consistent with the deposition of waste material on the site by the company, and moreover, is inconsistent with Mr Galainy's description of the company as only being engaged in concreting activities.

31 I am therefore satisfied for the purpose of this application that there is a serious question to be tried in respect of the company.

The Balance of Convenience Favours the Granting of the Interim Injunction

32 The balance of convenience weighs heavily in favour of granting the relief sought by the council. This is principally because:

(a) even on Mr Galainy's own statements, there has been, and continues to be, a breach of the EPAA insofar as, there is no development consent to use the site as a waste or resource transfer station. To the extent that it is necessary to so find, on the material presently before the Court, the substantive case against the respondents may be described as strong;

(b) Mr Galainy has not demonstrated any willingness to cease the breach of the EPAA by agreeing by way of appropriate undertaking to halt any further receipts, deposition and storage of waste on the site. If anything, in face of the council's attempts to get him to stop, he has escalated the unlawful use of the site;

(c) to date Mr Galainy has, through his dealings with the council, demonstrated a marked unwillingness to assist the council in resolving the matter. For example, he has, despite repeated assurances that he would do so, not lodged a development application in an attempt to regularise his use of the site; and

(d) the use of the land is potentially hazardous to the environment and to human health insofar as the materials may contain asbestos and other contaminants, the material is uncovered, and the material is, in some places, stored in close proximity to power lines presenting (I readily infer) an attendant fire risk. These dangers are exacerbated when consideration is given to the fact that the site is situated near to residential dwellings.

There is No Undertaking as to Damages

33 The council did not offer the usual undertaking as to damages. However, in proceedings such as these this is not fatal to the application for interim injunctive relief.

34 Rule 4.2(3) of the Land and Environment Court Rules 2007 provides the following:

4.2 Proceedings 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.

35 I am satisfied that the proceedings have been brought in the public interest insofar as there is a real and necessary public interest in upholding the planning laws of this State by the council (see Willoughby City Council v Sahade [2000] NSWLEC 38 at [24]; Tegra at [28]-[31]; Hooper v Port Stephens Council [2009] NSWLEC 234 at [28]; Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 at [14] and Liverpool Plains Shire Council v Vella [2013] NSWLEC 54 at [29]).

Conclusion

36 In these circumstances, particularly given the need to take immediate action to protect the environment and surrounding residences, I am persuaded that the balance of convenience favours the grant of the interlocutory injunction in the terms sought by the council, mindful as I am of the principles stated in International Finance Trust Company per Heydon J at [146]-[150]; Bridgewater Investments at [6] and Seven Network Ltd v QIC Pty Ltd [2012] NSWLEC 201 at [50].

Orders Regarding Service

37 The council also seeks specific orders for the service of documents upon Mr Galainy and the first respondent in light of the fact that both are self-represented. In particular, it seeks an order that personal service be dispensed with and that service on the respondents be effected electronically by serving a copy of all documents at the following email address: [e-mail], shown to be that of Mr Galainy.

38 In the circumstances of this case, I am prepared to make such an order. But I believe that it is appropriate that, in addition to this mode of service, the council should also serve a copy of all documentation by sending it by registered post to Mr Galainy and the company at the address of the company's registered office.

Orders

39 In conformity with the reasons given above, the orders of the Court are:

(1) an order that, until further order of the Court, the first respondent, by itself, or its servants and agents, be restrained from carrying out, causing or allowing the receipt or deposit of any waste material on the land at Lots 23-25 of Section 47 in DP 1480 (located at Hamilton Street immediately north of the unformed road of Albert Street, Vineyard);

(2) an order that the requirement for personal service of any documents on the respondents in these proceedings be dispensed with and that service be effected instead by the applicant by:

(a) sending a copy of any document by registered post to the respondent at the address of the first respondent's registered office; and

(b) sending a copy of any document electronically to the email address [e-mail]; and

(3) the first respondent is to pay the applicant's costs of the motion.

**********

Decision last updated: 04 October 2013