FEDERAL COURT OF AUSTRALIA

 Village Building Co Limited v Airservices Australia [2008] FCA 247

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025  v AIRSERVICES AUSTRALIA AND CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548

 ACD 37 OF 2007

MOORE J

7 MARCH 2008

CANBERRA

THE COURT ORDERS THAT:

1.                  The appellant write forthwith to the New South Wales Department of Planning requesting that the Department take no further steps to consider or process its application of 21 November 2007 until judgment is given in the appeal and requesting the Department to provide a written undertaking to do so to both the appellant and the second respondent within seven days of this judgment that it will not do so.

2.                  If the Department gives the undertaking referred to in order 1, the appellant shall file an affidavit evidencing receipt of the correspondence and do so within 24 hours of its receipt.

3.                  If no affidavit of the type referred to in order 2 is filed within eight days of the date of this judgment, the appellant shall withdraw within 24 hours thereafter its application lodged on or about 21 November 2007 with the Department requesting that the determination of the rezoning application for South Tralee be dealt with under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW).

4.                  The appellant pay the costs of this application.

5.                  The parties have liberty to apply on two days' notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 15 August 2007, a judge of this Court dismissed an application by The Village Building Co Ltd for judicial review of conduct associated with the development of an Australian Noise Exposure Forecast ("ANEF"): The Village Building Co Ltd v Airservices Australia [2007] FCA 1242.  Putting to one side challenges made in this litigation, the ANEF probably will, in due course, be considered as an element in the planning for the future use of Canberra Airport.  Village appealed against that judgment.  The appeal was expedited and heard on 29 October 2007, although judgment in the appeal has not been given.  The lessee of the airport and the second respondent in the appeal, Canberra International Airport Pty Ltd, has applied, by way of notice of motion dated 23 January 2008, for an injunction restraining Village from taking any step to advance the rezoning of its land which arguably is potentially seriously affected by airport noise.  Canberra International also seeks what in substance is a mandatory injunction requiring Village to withdraw a request to the New South Wales Department of Planning to determine a rezoning application in a particular way.  This relief is sought pending judgment in the appeal.

2                     Some of the background needs to be mentioned but no more than is necessary to determine this application.  At the heart of the dispute between Village and Canberra International, at least as manifest in this Court, is a proposed ANEF awaiting endorsement by Airservices Australia which will probably then be incorporated in a draft master plan for the airport prepared by Canberra International.  Airservices Australia has indicated it is in a position to, and will, endorse the ANEF.

3                     However on 2 October 2007, Gyles J made an order restraining Airservices Australia from endorsing any new draft ANEF until 2 November 2007.  It is clear from his Honour's reasons that he knew the appeal was likely to be heard on 29 October 2007 and that he contemplated the Full Court could consider what, if any, interlocutory regime should be put in place after the hearing of the appeal and pending judgment.  His Honour made the order on the basis that Village gave an undertaking to "take no further steps to advance the rezoning of Tralee", Tralee being an area of land that is located in the vicinity of the southern flight path near Canberra International Airport.

4                     Towards the end of the hearing on 29 October 2007, one of the members of the Full Court, Graham J, asked senior counsel appearing for Village whether he offered to continue the undertakings to the Court set out in the order of Gyles J, paraphrased by Graham J in the following terms:

Mr Martin, you offer to continue your undertakings to the court that were set out in the order which is 863, you won’t try and secure the rezoning of your land, or take any step in that direction?

That question was met by an unambiguous response by senior counsel for Village:

No, your Honour, that undertaking is continued.   

5                     That response was met by a question from another member of the bench, Branson J, about the worth of the undertaking and the extent to which the matter was in the hands of Village and a discussion about that matter.  While it is not free from doubt, it does not appear to me that the further discussion was intended to detract from what had been said by senior counsel representing Village in response to the question by Graham J.  Following this exchange with senior counsel for Village, there was a discussion with senior counsel for Airservices Australia which ultimately led to an intimation and probably an undertaking, although not given formally, that Airservices Australia would not endorse the draft ANEF without giving the parties five days' notice of its intention to do so.

6                     On 21 November 2007, the Chief Executive of Village wrote to the Director-General of the New South Wales Department of Planning requesting the determination of the rezoning application of South Tralee under Part 3A of the Environmental Planning and Assessment Act 1979 (NSW).  The letter was accompanied by an application form.  The letter noted that "the attached application provides documentation to support concurrent consideration by the Minister for Planning of the rezoning of South Tralee for residential and employment use as a major project, or listing as a state significance site".  If the remarks of senior counsel for Village are to be treated as an undertaking, there is little doubt in my opinion, that it was breached by the letter of 21 November 2007 and the accompanying application.

7                     No issue was raised in these proceedings about the power of a single judge of this Court to issue the injunctive relief sought.  In one authority which supports the existence of the power, Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87, French J considered not only the question of power but also how the discretion attending the power might be exercised.  His Honour said (at [15]):

The order sought by the applicants in this case is in the nature of an interlocutory injunction.  In the ordinary course it is a necessary condition of the grant of such an injunction that the applicant demonstrate a serious case to be tried and that the balance of convenience favours imposition of the restraint.  These requirements apply with equal force to a case, such as the present, where the restraint is sought effectively to prevent a party from exercising what have been found to be its rights after trial of an action – Hollier v Australian Maritime Safety Authority (Fed Court, unrep, 27/4/98, Sundberg J).  It is to be remembered also that the strength of the case and the assessment of where the balance of convenience lies are interdependent – Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472.  Where the applicant’s case has been tried and found wanting there may nevertheless be a serious case to be tried on appeal.  However, the Court’s assessment of the strength of that case will be influenced by the fact that there has been an adverse judgment at first instance.  It is relevant to the balance of convenience that the appeal may be nugatory if the restraint is not granted.  It is also relevant that the successful party will be prejudiced if impeded in the exercise of its judicially vindicated rights.  The factors relevant to the grant of an interlocutory injunction under s 23 pending appeal are similar to those applicable under s 29, O 37 and O 52, but capable of expression in terms of the considerations usually applied to the grant of interlocutory relief. 

In the present matter, it is the unsuccessful party in the first instance proceedings, Village, that is resisting an order sought by a successful party, Canberra International, to preserve the status quo pending judgment in the appeal.

8                     In my opinion, the status quo should be preserved pending the determination of the appeal, particularly in circumstances where Airservices Australia has stayed its hand, potentially to the detriment of Canberra International.  The status quo existing at the time of the hearing of the appeal (indeed since the appeal was lodged) has been altered by the application by Village seeking approval of the rezoning.  It appears that this appeal is but part of a far more broadly based contest between Village and Canberra International involving planning authorities and local, state and federal governments.  In my opinion, it is inappropriate that Village can, by prosecuting its appeal, possibly gain an advantage in circumstances where it is not at all certain that its appeal will succeed.

9                     Central to Village's case in opposition to the injunctive order sought was the contention that the draft ANEF and its implications were being considered in the planning process put in train by the application made on 21 November 2007.  This is far from clear from the material relied upon by Village.  Indeed, there is a real prospect that the approval process will result in consideration of Village's application by reference to the existing ANEF and not the draft ANEF that is awaiting Airservices Australia's endorsement.  This appears to me to be the import of existing Ministerial directions guiding the approval process.  Also, as counsel for Canberra International pointed out, Village's application itself seeks to rely upon the existing ANEF in presenting a case in support of approval.  Moreover, the New South Wales Minister for Planning wrote to the Commonwealth Minister for Transport and Regional Services in July 2007 expressing concern about a draft ANEF (it appears that this is the same draft ANEF awaiting endorsement by Airservices Australia), both as to the period it covered and the assumptions on which it was based.  The Minister for Planning characterised one of the assumptions (number of flights) as appearing to be "absurd".  For my part, I am not prepared to accept Village's contention that regard will be had to the draft ANEF in the sense of it being a factor militating against the grant of approval if it manifests unacceptably high levels of aircraft noise in areas to which the approval relates.

10                  It may be accepted that the judgment of the Full Court will be given in the near future.  It may be inappropriate, at this time, to require Village to withdraw the application in its entirety.  I consider the appropriate course is to require Village to request the New South Wales Department of Planning to take no further steps to consider or process its application of 21 November 2007 until judgment is given in the appeal and further, to request the Department to provide a written undertaking both to Village and Canberra International within seven days of this judgment that it will not do so.  To accommodate the possibility that the undertaking is not given (and if it is, it should be evidenced by an affidavit filed by Village in this Court), I will make a self-executing order requiring Village to withdraw its application forthwith.  It is possible, for example, that the Department will take the view that it is under a statutory obligation to continue to consider or process the application unless it is withdrawn.  I will give the parties, for the benefit particularly of Village, liberty to apply on two days' notice in the event that Airservices Australia gives notice of its intention to endorse the draft ANEF.  Canberra International also sought an order that Village be restrained from taking any step to advance the rezoning of Tralee based on the current ANEF.  At the moment I think it is unnecessary to make an order cast in such wide terms, but Canberra International can exercise the liberty to apply if it transpires that Village does, or proposes to, take such a step.

11                  In my opinion, Canberra International should have its costs of this application.  Firstly, it has been substantially successful.  Secondly, the application has been necessary because Village, in making the application of 21 November 2007, probably acted inconsistently with what its senior counsel told the Court at the hearing on 29 October 2007.  Even accepting, as I do, that some doubt or ambiguity attended what was said, having regard to further discussions at the hearing, the appropriate course would have been for Village to have approached the Court to be released from any undertaking it may have been understood to have given the Court or to secure a ruling that no undertaking had been given.  However, one matter is, in my opinion, beyond doubt.  It is that it was not open to Village to take the position that what had been said at the hearing on 29 October 2007 was so clear as to enable it to proceed to do what it did, namely lodge the application for approval on 21 November 2007, without the matter being clarified by the Court. No undertaking as to damages was sought by Village in the event that orders were made concerning its application for approval of 21 November 2007.

Associate:

Dated:         6 March 2008