Case: NRMCA (Queensland) Limited v Andrew (1993) 2 Qd R 706
Outcome: cited
is convenient also to make some comment in respect of what one might term a root authority in relation to factors that are relevant in deciding whether or not, in planning and environment cases, to grant injunctive relief as a consequence of a failure to comply with a condition of land use or with an unlawful use of land in some other way. That case is Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. In that case (at page 339), Kirby P, as his Honour then was, sets out a number of guidelines for the exercise of a court's discretion in relation to the granting of injunctive relief. Whilst whether or not injunctive relief should be granted in the present case is dependent upon the terms of s 475 and also is informed by s 479, his Honour's guidelines nonetheless have a persuasive value. So, too, so far as the granting of injunctive relief is concerned as a matter of discretion, do remarks made in the Queensland Court of Appeal in NRMCA (Queensland) Limited v Andrew (1993) 2 Qd R 706 at 713. These remarks were made in the context of the width of the discretion granted to the court under Queensland's Local Government (Planning and Environment) Act 1990 (Qld). It was that stated that the discretion to grant or refuse an injunction is not constrained by any rule that it must enjoin the illegality unless special circumstances are shown. The court rejected a submission that there was a prima facie right to an injunction in the case before it, instead endorsing that the correct approach was to treat the matter as necessitating the exercise of wide discretion. Paragraphs 53 - 59 are as follows: Representations made to obtain approval In seeking to obtain the approval the respondent submitted an environmental impact statement ("the EIS") to the Minister in September 2001 that, inter alia , proposed to install a fish transfer device to mitigate impacts on the passage of fish movement caused by the construction of the dam at an estimated cost of $1,492,000 within an overall project cost then estimated at $180,864,000. The fish transfer device was proposed by the respondent in the EIS to mitigate the impacts of the dam on a number of fish species, including lungfish. On 4 November 2002, Mike Montefiore, then Director of the respondent, wrote to the department then administering the EPBC Act, Environment Australia, regarding actions the respondent proposed to take focussed on the lungfish and giving commitments to implement a range of initiatives "to ensure the ongoing health fo the species." In his correspondence of 4 November 2002 Mr Montefiore stated that the project specific actions to protect lungfish to be undertaken by the respondent were, inter alia : incorporation of a fishway into the Burnett River Dam ... to allow downstream and upstream passage of fish, including lungfish. The fishway has been designed to accommodate the lungfish. Based, inter alia , on the respondent's commitments to incorporate a fish transfer device into the dam, between or about 3 April 2003 and 29 July 2003 Environment Australia and the respondent negotiated and agreed to additional conditions to be attached to the approval focused on the lungfish. The respondent represented to Environment Australia on or about 26 June 2003 that the additional conditions were: ... specifically relevant to the lungfish that would, in the opinion of Burnett Water Pty Ltd and its expert advisers, be appropriate to protect the lungfish and mitigate damage to the lungfish from the construction and operation of the Burnett River Dam. The additional conditions attached to the approval of the dam by the Minister on 8 August 2003 adopted to the respondent's commitments to "a suite of initiatives to address the long-term survival of the Australian lungfish." These paragraphs are directed to allegations in respect of representations said to have been made on behalf of Burnett Water in order to obtain the approval subject to conditions. They are not relevant to whether or not the condition has been breached. In relation to whether, as a matter of discretion, injunctive relief should go, it is possible to see how, having regard to Warringah Shire Council (1987) 10 NSWLR 335 and the NRMCA (Queensland) Limited (1993) 2 Qd R 706 , evidence of what was put to the Minister might have a relevance if what was constructed was something completely different.