Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157

Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157

Although the applicant established a reasonably arguable case that the proposed rock wall construction was likely to have a significant effect on the environment, the balance of convenience weighed against an interlocutory injunction. The evidence did not show an immediate significant environmental effect from...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 September 2015
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Approval to Undertake Beach Protection Works / Notice of Motion for Urgent Interlocutory Injunction
Outcome
Applicant's notice of motion for interlocutory relief dismissed.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'environmental Impact Assessment' 'beach Protection Works' 'review of Environmental Factors' 'environmental Impact Statement' 'public Interest Litigation']
['environmental Law' 'planning and Development' 'coastal Protection' 'civil Procedure'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'environmental Impact Assessment' 'beach Protection Works' 'review of Environmental Factors' 'environmental Impact Statement' 'public Interest Litigation']

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Approval to Undertake Beach Protection Works / Notice of Motion for Urgent Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the applicant demonstrated a serious question to be tried that the proposed beach access stabilisation works were likely to significantly affect the environment so as to require an environmental impact statement under s 112 of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the balance of convenience favoured restraining the Council from carrying out the proposed works pending final determination of the proceedings.' 'Whether competing public interests, potential environmental and property harm, absence of an undertaking as to damages, preservation of the status quo, relative strength of the case, and prejudice to third parties supported or opposed interlocutory relief.']

Ratio Decidendi

Although the applicant established a reasonably arguable case that the proposed rock wall construction was likely to have a significant effect on the environment, the balance of convenience weighed against an interlocutory injunction. The evidence did not show an immediate significant environmental effect from construction, the wall could be removed if the applicant succeeded, and refusing the works exposed the public and private domain to a real risk of greater and potentially irreversible damage from storm events because the existing geobag wall was fragile and likely to fail.

Court Disposition

Applicant's notice of motion for interlocutory relief dismissed.

Orders

  • ["Dismiss the applicant's notice of motion dated 4 September 2015." 'Stand over the proceedings to 9.15am on Tuesday 15 September 2015 for directions and to fix a date for hearing.' 'Costs of the motion are reserved.']