Hunter Community Forum Inc v Crescent Newcastle Pty Ltd [2023] NSWLEC 1

Hunter Community Forum Inc v Crescent Newcastle Pty Ltd [2023] NSWLEC 1

The Notice of Motion was dismissed because the Applicant failed to demonstrate a serious question to be tried: the construction certificate issue was not part of the substantive proceedings, and the Applicant did not identify a sufficient basis for treating asserted offsite impacts as a mandatory relevant consideration or establish a real chance or possibility of those impacts. In any event, the balance of convenience did not favour relief because the substantive hearing was less than two weeks away, the evidence did not establish irreparable harm from continued work during that period, the First Respondent had an operative consent, an injunction would significantly prejudice the...

Jurisdiction
Australia
Judgment Date
03 February 2023
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Development Consent; Interlocutory Injunction Application by Notice of Motion / Interlocutory Application Heard Before Substantive Hearing
Outcome
Application dismissed; costs of the Notice of Motion to be the First Respondent's costs in the cause.
Legal Topics
['interlocutory Injunction' 'development Consent' 'judicial Review' 'mine Grouting Works' 'serious Question to Be Tried' 'balance of Convenience' 'mandatory Relevant Considerations' 'public Interest Litigation' 'undertaking as to Damages' 'delay']
['environmental Planning Law' 'administrative Law' 'civil Procedure'] ['interlocutory Injunction' 'development Consent' 'judicial Review' 'mine Grouting Works' 'serious Question to Be Tried' 'balance of Convenience' 'mandatory Relevant Considerations' 'public Interest Litigation' 'undertaking as to Damages' 'delay']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Development Consent; Interlocutory Injunction Application by Notice of Motion / Interlocutory Application Heard Before Substantive Hearing

Legal Issues

  1. 1 ['Whether the Applicant demonstrated a serious question to be tried in the substantive judicial review proceedings.' 'Whether the balance of convenience favoured restraining the First Respondent from carrying out building work, including grouting and drilling, pursuant to the development consent until further order.' 'Whether there was a risk of irreparable harm from continuation of the Grouting Work before the imminent substantive hearing.' 'Whether delay, prejudice to third parties, preservation of the status quo, public interest and the absence of an undertaking as to damages supported or opposed interlocutory relief.']

Ratio Decidendi

The Notice of Motion was dismissed because the Applicant failed to demonstrate a serious question to be tried: the construction certificate issue was not part of the substantive proceedings, and the Applicant did not identify a sufficient basis for treating asserted offsite impacts as a mandatory relevant consideration or establish a real chance or possibility of those impacts. In any event, the balance of convenience did not favour relief because the substantive hearing was less than two weeks away, the evidence did not establish irreparable harm from continued work during that period, the First Respondent had an operative consent, an injunction would significantly prejudice the...

Court Disposition

Application dismissed; costs of the Notice of Motion to be the First Respondent's costs in the cause.

Orders

  • ["The Applicant's Notice of Motion filed on 30 January 2023 is dismissed." "The costs of the Notice of Motion is to be the First Respondent's costs in the cause." 'The exhibits are returned. The parties are directed to collect the exhibits from my Associate within 7 days of the making of these orders.']