Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd [2012] NSWLEC 207

Procedural Posture

Class 4 Proceedings; Interlocutory Application / Interlocutory Application for Injunctive Relief Pending Substantive Proceedings and Application for Expedition

Legal Issues

1. 1 ['Whether interlocutory relief should restrain Dart Energy Ltd from carrying out development for the Pilot Appraisal Exploration Program pending judgment in the substantive proceedings.' 'Whether the applicant had shown a serious question to be tried concerning the lawfulness of the approval processes, including whether the PAEP was designated development requiring consent under Part 4 of the Environmental Planning and Assessment Act 1979 or whether the Part 5 Approval was invalid.' 'Whether the balance of convenience favoured restraining works beyond the on-ground or above-ground component of Phase (1).' 'Whether any undertaking as to damages should be required in circumstances said to involve public interest proceedings.' 'Whether alleged protest activity, delay, or effects on third parties should defeat interlocutory relief.']

Ratio Decidendi

The applicant established a reasonably arguable case on aspects of the approval processes and serious issues to be tried. Although completion of the surface or above-ground Phase (1) works was not shown to warrant intervention, the applicant's real concerns arose with drilling and potential subsurface environmental harm, for which damages would not be an adequate remedy. The balance of convenience therefore favoured restraining Dart Energy Ltd from works beyond completion of Phase (1), while expediting the substantive hearing. The Court rejected the unclean hands argument, accepted the explanation for delay, and treated third-party effects as relatively insignificant.

Court Disposition

Interlocutory relief granted in part; substantive proceedings expedited; costs reserved.

Orders

• ['Until further order, the first respondent is restrained from carrying out any development for its Pilot Appraisal Exploration Program beyond completion of the on-ground or above ground component in Phase (1), involving site preparation and drilling compound construction.' 'The hearing of the substantive...