No.
4505
of
2003
- This matter first came before me on 14 February 2003 in the
Practice Court as an ex parte application for interim injunction.
On that day I ordered that until 10.30 am on Tuesday, 18 February 2003 or
further order, the
third defendant, Roads Corporation, be restrained from
demolishing or otherwise disturbing the historic site complex known as Clonnard
Homestead (as identified in the Registration of the Heritage Council and by the
National Trust of Australia). That order has since
been extended by consent
until this afternoon.
- The matter now comes before me as the plaintiff's application
for interlocutory injunction to restrain demolition or disturbance
of Clonnard
until the hearing and determination of the proceeding. Dr Pannam, one of Her
Majesty's counsel, appears with Mr Carmichael
for the plaintiff, and Mr Morris
of Her Majesty's counsel appears for the Roads Corporation. Mr Tweedie appears
for the first and
second defendants.
- I have been favoured with a large amount of documentary
material, most of which I have had the opportunity of reading in advance
of the
hearing, and also with detailed written and oral submissions from counsel.
They cover a broad range of issues and identify
a volume of authority which is
said to bear upon the ultimate determination of the issues. But the question
that I have to decide
for the purposes of this application is relatively
simple. Is the strength of the plaintiff's case as it stands, and the balance
of convenience, such that I should any longer restrain the Roads Corporation
from disturbing Clonnard?
- I turn first to the strength of the plaintiff's case and, to
begin with, to something of the facts and the evidence additional to
the
matters which I mentioned in my reasons for judgment when the matter was last
before me.
- Relevantly, the facts begin in May 1997, with the appointment
by the Minister of the First Advisory Committee for the purposes of
s 5(1)
of the Land (Acquisition and Compensation) Act 1986. Amongst other
things which that committee had before it were letters of the plaintiff to the
Roads Corporation dated 14 February
1997 and 27 February 1997 as to the worth
of the rock resource on the plaintiff's land. By reason of those letters the
Roads Corporation
and the First Advisory Committee knew that the resource was
of significant worth, both to the plaintiff and to society generally,
as a
ready and competitive source of rock for quarrying.
- It also appears that there was evidence before the Committee,
or if there were not, it appears that it should have been known to
the
Committee, that the owner of the land immediately to the west of the
plaintiff's land had some time before entered into an agreement
with the
Whittlesea Council. The effect of the agreement was that in consideration of
the Council agreeing to vary of the zoning
of the land from rural to industrial
development, the owner agreed that if any of the land were later to be acquired
compulsorily,
he would seek compensation at the lesser value attributable to
its prior rural zoning and not at the higher value which might otherwise
be
accorded to its rezoned industrial development status .
- Following submissions, the First Advisory Committee produced a
report in October 1999 in which it recommended Option 5 as the route
for the
proposed Hume Freeway extension. That route ran along a 150m wide strip of the
land which was the subject of the agreement
with the Whittlesea Council
immediately to the west of the plaintiff's land. The recommendation appears to
have been based upon
the view that it was desirable to preserve the potential
for exploitation of the plaintiff's land as a rock resource. Hence the
freeway
should not be constructed on the plaintiff's land.
- The committee observed that the potential for exploitation was
limited by the need to provide an adequate buffer area within the
plaintiff's
land, and that it would be so whether or not the buffer were between the quarry
and a freeway or between the quarry and
an adjoining industrial commercial
development. But the committee concluded that, having considered all possible
variations of Options
2 and 5 in the area north of Cooper Street, the route
which was selected best met the objectives of integrating transport and land
use planning, including the objectives of state planning policy with respect to
extractive industry and the local planning policy
objectives set out in the
Whittlesea MSS and in the Cooper Street precinct strategy.
- The Minister nevertheless rejected the Committee's
recommendation and on or about 25 November 1999 the Minister refused the
plaintiff
a permit under the Extractive Industries Development Act to
quarry that part of the plaintiff's land immediately to the east of the route
defined in Option 5. Shortly afterwards, the Minister
set up a working party
within the department to formulate other options for the route of the proposed
freeway.
- In July 2000, the working party prepared a second planning
assessment report, in which it recommended three new options: X, Y and
Z, and
in which it made specific mention of the point of intersection between the
proposed freeway and Cooper Street. It concluded
that the alignment of the
proposed freeway should be moved east from the line of Option5 to a new line,
described as Option Y, along
the plaintiff's land.
- The working party's reasoning appears to have been that the
plaintiff's land could no longer be regarded as a potential quarry site,
because the plaintiff's application for an extractive industries permit had by
then been refused, and accordingly the route of the
freeway should be moved
east thereby freeing up more of the land to the west of the plaintiff's land
for development as an industrial
park. It was also considered that Option Y
had the advantage of avoiding damage to the Craigieburn East grasslands as well
as offering
significant cost savings and traffic benefits.
- On 21 August 2000, the Minister appointed the Second Advisory
Committee for the purposes of sub-section (5)(1) of the Act, and in
the months
which followed, the working party received 1930 submissions from persons
claiming to be interested in the process. Those
submissions included a
submission from the Roads Corporation that it may be possible to make some
minor route changes within Option
Y to avoid destruction of historically
significant properties or alternatively to preserve the historical significance
of them by
archaeological supervision of their destruction.
- On September 2002 the Second Advisory Committee released its
report recommending Option Y, except for a section north of Craigieburn
Road
which it suggested be moved to the east to minimise intrusion on to the
grasslands and the Curly Sedge Creek.
- In February of 2001 the Minister considered the Second
Advisory Committee report and decided that Option Y ought be implemented
and
the planning scheme amended accordingly. In the same month the Minister issued
a Press release announcing the route of Option
Y and later that month, the
Minister or his department released a pamphlet concerning the decision.
- On 4 September 2001, the Planning Scheme Amendment No C23
showing the adoption of Route Y was gazetted in Government Gazette No
146
and on 17 September 2001 details of the amendment, including details of Option
Y, were released on the Department of Planning
and Industry's web-site.
- On 21 November 2002, Proposed Amendment No C44 for an
interchange between the Craigieburn bypass and O'Hearns Road, in the vicinity
of Clonnard was raised and an explanatory representation of it was placed on
exhibition and on 24 December 2002 the plaintiff lodged
objection to it. Panel
hearings in relation to proposed amendment NoC44 were conducted on 17 and 18
this month, but the panel is
yet to conclude its deliberations.
- In its Statement of Claim, the plaintiff seeks a declaration
that the decision to effect Amendment C23 to the Whittlesea Planning
Scheme is
null and void; a declaration that a decision of the second defendant to approve
the compulsory acquisition of the plaintiff's
land by the Roads Corporation for
the purposes of the construction of the freeway is null and void; and a
declaration or perhaps
an order that the compulsory acquisition of the
plaintiff's land be set aside, on a number of grounds.
- This morning Dr Pannam took me in considerable detail through
the evidence which is relied upon by the plaintiff in support of those
claims
and by reference to that evidence he has identified as the serious questions to
be tried for the purposes of this application,
the following:
* That the decision of the Minister to effect Amendment C23 or
the decision of the Minister or of the third defendant to acquire the
plaintiff's land was so unreasonable that no decision-maker could properly have
come to it.
* That the decision or decisions left out of account or gave manifestly
insufficient weight to the fact that the 150 metre-wide
strip of land
immediately to the west of the plaintiff's land was available to be used for
the construction of the freeway (by reason,
amongst other things, of the
arrangement into which the owner of that land had entered at the time of the
re-zoning of the land for
its acquisition at rural value).
* That the decision left out of account or again gave manifestly insufficient
weight to the consideration that if the 150 metre
strip of land were used
instead of the plaintiff's land, it would leave the plaintiff's land unaffected
and thus available as a valuable
quarry resource.
* That it was plain from the Second Advisory Committee's report that in
deciding to prefer the interests of commercial development
on the land to the
west of the plaintiff's land to quarrying upon the plaintiff's land, the
committee erroneously assumed that the
decision of the Minister to refuse the
plaintiff an extractive industries permit had the effect of forever sterilising
the quarrying
potential of the land.
* That if the Committee had ignored the refusal of the permit, as they should
have done, and decided the issue on the basis only
of proper considerations, it
was overwhelmingly probable, or at least certainly likely, that the freeway
would have been constructed
on the land to the west of the plaintiff's land and
that an extractive industries permit would then have been granted to the
plaintiff
(because, after the motorway had been constructed, the land
immediately to its east would not be of much use for anything else).
* That the Committee had erred in preferring local planning policy (which it
was said is opposed to quarrying) to State development
policy (which it was
said requires that paramountcy be given to the preservation and exploitation of
rock resources).
* That the decision was vitiated by the failure of the Committee to provide for
minor route variations in Option Y sufficient to
save Clonnard and other
structures of like historical significance.
- In the written submissions which were filed in advance of the
hearing, it was also contended that the decisions to implement C23
and
compulsorily to acquire the plaintiff's land were rendered void or voidable by
reason of the failure of the decision makers to
afford the plaintiff procedural
fairness at the time at which the decisions were made (although that contention
has not been pursued
today).
- In opposing the application for injunction, Mr Morris began by
observing that the effect of sub-s (5)(1) of the Land Acquisition and
Compensation Act is to create a regime in Victoria under which land is not
to be acquired compulsorily for road construction purposes unless and
until the
land has been reserved under a planning instrument, and that it is the essence
of the regime that considerations of the
kind to which Dr Pannam referred, such
as the relative weighting of the worth of the rock resource and the commercial
development
potential of the land to the west of the plaintiff's land, are to
be taken into account by the authority that considers the proposal
for
reservation and balanced by them against each other and a host of other
competing considerations, including State and local planning
policies and
environmental impact.
- Mr Morris submitted that when one sees that that is exactly
what the Second Advisory Committee did, it is just not arguable that
the
relative weighting which the Committee gave to industrial development as
opposed to the quarrying, and the relative weight which
they gave to local
development policy as opposed to some other policy which might be thought to
apply more widely throughout the
State, in some way vitiated their decision.
And once that point was reached, Mr Morris submitted, the contention that the
subsequent
decisions (to implement C23 and compulsorily to acquire the
plaintiff's land under s 42 of the Transport Act) were void was
also bound to fail.
- Further, it was submitted, even if the third defendant were
now to attempt to adopt a different route to that authorised by C23,
unless
there were consent on the part of the owner of the land which was to be used in
place of the plaintiff's land, there would
have to be yet another planning
process gone through under the Planning and Environment Act and the
Lands Acquisition Act before the land could be acquired for the purposes
of road construction and there could be no guarantee that it would not result
in
exactly the same conclusion of the Second Advisory Committee.
- It is I think unnecessary and undesirable that I say too much
about the strength of the plaintiff's case or about the submissions
advanced on
behalf of the defendants. Suffice it to say for the present purposes that
despite defendants' contention that the plaintiff's
case is hopeless, I am
persuaded by Dr Pannam's submissions that there is a serious question to be
tried: as to whether the decision
to effect amendment C23, and the
consequential decision under s 42 of the Transport Act 1983
compulsorily to acquire the plaintiff's land, are vitiated in the respects
identified by Dr Pannam.
- That is not to say, however, that I think that the case is
likely to succeed at trial. Indeed as at present advised I am inclined
to
doubt it. It is simply to say that upon the low standard which I regard as
applicable to the establishment of a serious question
to be tried, I regard one
as having been made out.
- I turn therefore to the balance of convenience, which is
perhaps the more significant consideration for present purposes.
- In a beguilingly simple submission, Dr Pannam argued that
whatever compensation might or might not subsequently be recovered by
the
plaintiff, if the land is compulsorily acquired the plaintiff will suffer
irreparable damage. There is a house upon it, he said,
which has special
significance for the plaintiff (because of its history and also because of the
commercial and fiscal advantages
which it confers upon him), and that such land
has about it a unique quality which monetary compensation cannot adequately
allow
for.
- Further, Dr Pannam submitted, inasmuch as the First Advisory
Committee accepted and the Second Advisory Committee were told that
it may be
possible by minor route deviations to save structures such as Clonnard, until
and unless it is demonstrated by the defendants
that it is necessary to destroy
Clonnard in order to carry out construction of the freeway along the route of
Option Y, there is
no compelling reason why they should not be enjoined from
permitting its destruction until the hearing of the action.
- There is obviously something in what Dr Pannam says. Land
does have about it a quality which cannot always be measured in terms
of money
alone. And money cannot always and frequently does not satisfy the sense of
loss and grievance which owners experience
when their land is taken from them
against their will. But all that having been said, it appears to me that the
plaintiff's loss
and sense of grievance in this case is really no different to
the loss and sense of grievance felt by most owners of land which is
compulsorily acquired. They may not wish the land to be acquired. But they
are obliged to content themselves with the compensation
for which the Act
provides. And in monetary terms, I do not see any reason why the plaintiff's
loss should not result in adequate
compensation under the formulae laid down in
the Act.
- I add that it also appears from the material filed in support
of the application that the historical value of Clonnard is not great.
The
Heritage Council takes the view that such historical quality as it represents
can sufficiently be preserved by archaeological
controls and documentation at
the time of demolition.
- Over and above those matters there has been considerable delay
on the part of the plaintiff in taking action to restrain the implementation
of
amendment C23 and the compulsory acquisition of the land under s 42 of the
Transport Act. Amendment C23 showing Route Y appeared in the Government
Gazette as long ago as 21 November 2001 and yet it was only in the second
half
of this month that plaintiff instituted this proceeding attacking the amendment
and the acquisition of his land.
- It is true, as Dr Pannam and Mr Carmichael both pointed out,
that in the months which followed December 2001 considerable correspondence
passed between the plaintiff and his representatives and the ministries which
are involved, and at all points the plaintiff has made
plain in correspondence
that he is vehemently opposed to C23 and to the compulsory acquisition of his
land. But it is one thing
to complain and it is another to do something about
it.
- If a plaintiff is aggrieved by a reservation such as C23 or an
order for compulsory acquisition, he or she must move with alacrity
if they are
to stand much chance of obtaining interlocutory injunctive relief to restrain
its implementation. It is not enough in
a case like this, if it is ever
enough, to stand and do nothing but complain and then expect at the eleventh
hour to succeed in obtaining
the extraordinary remedy of injunction to restrain
activities directed to the construction of a motorway on a reserve expressly
set
aside for the purpose in accordance with the Act.
- That is not to say that delay of itself is sufficient reason
in this case, if it is ever sufficient reason, to refuse interlocutory
injunction. But it is to say that where delay occurs it is often the case, and
here by reason of the delay which has occurred it
is the case, that much has
happened by way of planning, development, acquisition and the letting of
contracts which would not have
happened if application had been made with
alacrity and injunction had gone. I draw the inference that matters have now
so far progressed
that if the construction of the freeway were in any way
significantly restrained, it would have the potential to cause and in all
probability would cause considerable damage to the defendants.
- It is true, as Dr Pannam points out, that all that is sought
to be enjoined is disturbance of Clonnard, and the evidence which has
been put
on by the defendants in opposition to the application rises no higher than to
say that the contractor, Abigroup, who has
been engaged to design and construct
the freeway, might be disturbed in the works which are being undertaken. But I
think that
Mr Morris is correct in the contention that when one looks at so
much of the contract as is in evidence, and sees that it is a design
and
construct project which entails penalties for delay, it is to be inferred that
any sort of restriction upon the works that the
contractor might undertake upon
Clonnard is likely to lead to differences about the application of the penalty
provisions and the
potential for significant damage to the
defendants.
- Towards the end of Dr Pannam's submissions and again towards
the end of Mr Carmichael's submissions in reply, the possibility of
limiting
the scope of the injunctive relief was mentioned and to some extent dealt with.
A formulation of a more limited injunction
is set out in the plaintiff's
summary of submissions and it was said that all that the plaintiff really seeks
at this point is an
order which preserves from demolition so much of the
Clonnard homestead and complex as is possible without impeding the construction
of the freeway.
- Despite the delays which have occurred, and whatever I might
think about the strength of the plaintiff's case, I would be inclined
to make
such an order if it could be drawn sufficiently precisely to enable those to
whom it is addressed to know with certainty
what they are restrained from
doing, and if I were satisfied that it would not cause delay or damage or
claims for compensation under
the penalty provisions of the Abigroup
contract.
- But as matters stand, the formulation in paragraph 21 of the
submission is not sufficiently precise. The question of what would
be possible
without "impeding the construction of the freeway" is problematic to say the
least. One has only to recall that the
ex parte application in this
matter took three hours, and that thus far we have taken close to another five
to deal with the matter on an
inter partes basis, to conclude that there
is room for argument at almost every point about things of that kind.
- If it is later demonstrated by more precise drafting and
cogent evidence that certainty and the avoidance of damage are possible,
I
think that I would be prepared to make the order then sought. But at this
point, on the application which is before me, I am not
disposed to make an
order even in the limited terms set out in paragraph 21 of the
submissions.
- For those reasons, I refuse the plaintiff's application for
interlocutory injunction.
---
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