Brisbane City Council v Georgeray Contracting P/L t/a Deen Bros Contracting & Ors [1995] QSC 57

,q\ ..h s c_ Cj5ros-7 .:,_cate Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J Writ No 528 of 1995 BRISBANE CITY COUNCIL and GEORGERAY CONTRACTING PTY LTD trading as DEEN BROS CONTRACTING and GAINSCOW HOLDING PTY LTD and SULTAN MOHAMMED DEEN (also known as GEORGE DEEN) and HAMMEEF MOHAMMED DEEN (also known as FUNNY DEED) BRISBANE .. DATE O7 / 0 4 / 9 5 JUDGMENT 1 REVISED COPIES ISSUED State P.0po11ing Bureau Date /<[1 s' Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant 4th Floor, The Lmv Courts, George StrL'el, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 18 -- 070495 T 1/RB M/T 4946/RB (Mackenzie J) HIS HONOUR: The order is that the motion for an injunction is refused with costs tp be taxed. I publish my reasons. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 18 -- IN THE SUPREME COURT OF QUEENSLAND BRISBANE Writ No. 528 of 1995 [Brisbane City Council v. Georgeray Contracting Pty Ltd & Ors] BETWEEN: AND: AND: AND: BRISBANE CITY COUNCIL GEORGERAY CONTRACTING PTY LTD trading as DEEN BROS. CONTRACTING GAINSCOW HOLDING PTY LTD Plaintiff First Defendant Second Defendant SULTAN MOHAMMED DEEN (also known as GEORGE DEEN) Third Defendant AND: HAMMEEF MOHAMMED DEEN (also known as FUNNY DEEN) Fourth Defendant REASONS FOR JUDGMENT - MACKENZIE J. Delivered 7 April 1995 CATCHWORDS: INJUNCTION - Intedocutoiy - to restrain actual or threatened breach of criminal law - discretion - respondent depositing mate1ial at site not authorised to be a 1-efuse tip under Regulation 15 of the Refuse Management Regulations - whether material in question is 'refuse' - whether deliberate flouting of the c1iminal law - whether se1ious environmental or public health consequences requhing urgent action - adequacy of scientific evidence. Counsel: R. Gotterson QC and M. Rackemann for applicant. J. Gallagher QC and R Litster for respondents. Solicitors: City Solicitor for applicant. John M. O'Connor and Company for respondents. Hearing Date: 4 April 1995 -- 3 of 18 -- IN THE SUPREME COURT OF QUEENSLAND BRISBANE [Brisbane City Council v. Georgeray Contracting Pty Ltd & Ors] BETWEEN: AND: AND: AND: BRISBANE CITY COUNCIL GEORGERAY CONTRACTING PTY LTD trading as DEEN BROS. CONTRACTING GAINSCOW HOLDING PTY LTD Writ No. 528 of 1995 Plaintiff First Defendant Second Defendant SULTAN MOHAMMED DEEN (also known as GEORGE DEEN) Third Defendant AND: HAMMEEF MOHAMMED DEEN (also known as FUNNY DEEN) Fourth Defendant REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 7 April 1995 The Brisbane City Council has sought an interlocutory injunction against the defendants restraining them from depositing material from the demolition of stands at the Brisbane Cricket Ground and from a site at Breakfast Creek at premises at Willawong. The material being deposited at the site is primarily concrete and bricks but contains some steel and timber. When the matter was first before me last Friday, a point was taken as to the standing of the Brisbane City Council to bring the proceedings, but that h~ since been abandoned. -- 4 of 18 -- 2 The Council's case is that it is an offence against the Refuse Management Regulations 1983 to d~posit or dispose of the material at the site because it has not been authorised by the Director General of Health as a refuse tip (regulation 15). Regulation 15(1) contains a proviso that a person may deposit or dispose of refuse derived from the demolition or construction of buildings at a place and in a manner as may be approved by the local authority. No such authority has been given. If the mat~rial is "refuse", it would be "industrial refuse" within the meaning of the regulations. The question of what is "refuse" is brought into focus in this case by evidence that the material produced as the result of demolition of structures is commonly used as fill on construction sites. Numerous examples of such use at sites in the Brisbane area are deposed to. The point sought to be made by the respondents is that such material is not "refuse" because it does not conform to the notion of refuse being "that which is discarded as worthless or useless" (Macquarie Dictionary) or "what is regarded as worthless or left over after use" (Concise Oxford Dictionary). It is easy to accept that reusable items salvaged during the course of demolition of a building are not "refuse". The more difficult question is whether the demolition material which serves a useful purpose as fill is "refuse". What is said later in these reasons is concerned with the kind of material derived from demolition of buildings commonly used as fill. The only quantitative evidence of the composition of the material being deposited on the site in question is that of Mr. Bristow, a scientific consultant and industrial chemist working in the field of water and environmental analysis, who in a report provided for the respondents said that after a "cursory assessment on the site" he formed the opinion that fill constituted 80% .of the material dumped, concrete and brick work 10-15% and steel and timber 5-10%. There was evidence which the applicant did not attempt to challenge that building demolition -- 5 of 18 -- 3 rubble the components of which were concrete, brick, masonry, reinforcing and structural steel, metal and corrugated sheeting and wood has a use and is commonly used for civil engineering purposes in land fill and land reclamation. No inference should be drawn that merely describing something as fill when it does not substantially have the characteristics of material ordinarily used for that purpose will necessarily assist a person to avoid the conclusion that what has been deposited is refuse. The reasons which follow must be read in the context of the evidence in this case. The applicant says that the material is "refuse" because regulation 15.1, in its proviso, refers to "refuse derived from the demolition or construction of buildings". It submits that it was intended to include demolition material of the kind involved in this case in the concept of "refuse". The respondents submit that because the material has some intrinsic value and usefulness to the respondents as fill, it is not "refuse". There is no authority, as far as researches extend, in which the question has been authoritatively answered. Cases concerned with other statutory provisions or other contexts in documents may shed some light on possible approaches to the question but, in the end, the meaning of Regulation 15 must be resolved in its own context. So far as the Council's conception was concerned, arising from cross-examination of Mr Taylor, a scientific officer employed by the Council in connection with industrial and commercial waste, a series of documents from Council files was tendered. The earliest was a report generated on 31 March 1994 in the Town Planning Investigation Unit which referred to investigations in connection with filling and possible depositing of contaminated material at several sites (not including the site with which I am presently concerned) within the City of Brisbane. So far as the Waste Management Regulations were concerned, the main focus -- 6 of 18 -- 4 was on putrescible materials (which the material in the present case is not). The author of the memorandum, a town planning investigator, observed: "Without going into detail it would seem to me an issue which is better handled through the Refuse Management Regulations despite claims by Waste Management Branch that the regulations are not enforceable." One of the recommendations was: " ... that the issue of the enforcement of the Refuse Management Regulations be addressed, specifically as it relates to the use of the Town Plan to achieve results which may obtainable through the application of the Refuse Management Regulations." This memorandum apparently found its way to the Lord Mayor who wrote to the manager of the Works Department with a copy to the manager of the Development & Planning Department to the following effect: "Please ensure that if any of these facilities are in breach of either the Town Plan of Waste Management Regulations, they are brought into line or else prosecuted as a matter of priority." That memorandum is dated 18 April 1994. There is a handwritten note from the Lord Mayor on the memorandum apparently addressed to the two officers to the following effect: "We seem to have a loop hole here that needs to be closed. Can we have an E & C to give us better management of this issue?" By 23 June 1994 advice had been obtained from a solicitor employed by the Council. It records: "At the meeting discussion focussed upon three avenues of 'attack' as regards landfill sites:- • Contaminated Land Act 1991; • Refuse Management Regulations 1983; • Town Plan. Of those avenues it was concluded that the Town Plan was undoubtedly the most effective basis for controlling landfill sites." -- 7 of 18 -- 5 Later the memorandum of advice contains the following: "Regulation 15 of the Refuse Management Regulations 1983 has some application in the present circumstances because what is being deposited, I understand is 'refuse derived from the demolition or construction of buildings'." After discussion about perceived uncertainty about whose obligation it was to apply for approval under Regulation 15, it was observed that the matter would only be resolved upon prosecution under Regulation 15 of a site operator. The advice also records the following: "Mark Taylor advised at the meeting that Council had not endeavoured to enforce Regulation 15 in the past. No doubt, if that is the case, that is a product of the deficient wording of the regulation." The matter was left on the basis that the Town Planning investigators and the Works Department should collect evidence for submission to the Legal Services Branch. It can be inferred from the chain of events that certainly at field level Council officers were not optimistic about the usefulness of Regulation 15 as a means of controlling the deposit of materials of the kind in question on sites with which they were then concerned. In evidence in the present proceedings Mr Taylor was asked :- " .. .it appears that it will be suggested that building rubble does have use as fill, a legitimate use as fill. Does the Council have any particular policy or attitude towards that of which you're aware?-- Yes, we do. We most definitely do. What's the situation?-- Well, the situation is at the moment we've - for example we've applied for an amendment to the City of Brisbane Town Plan to clarify the definition of clean fill in order that developments do not contaminate their land by filling with anything other than clean fill. Is there a degree of ambiguity as to what is clean fill as far as you're concerned at the moment under the current legislative regime?-- The ambiguity arises out of the definition in the refuse management regulations. As to what is refuse?-- Which - exactly. It doesn't - it defines waste by origin rather than the nature of the material." -- 8 of 18 -- 6 Mr Gotterson submitted that the proper construction of Regulation 15 was that the general rule was that a local authority could not approve a person to deposit or dispose of refuse at a place other than an approved place of treatment unless and until the Director- General had authorised the use of such place as a refuse tip. However in the case of refuse derived from demolition or construction of buildings, a person could deposit or dispose of refuse at a place in a manner approved by the local authority. He submitted that "refuse" was any material derived from the demolition or construction of buildings remaining after the material saved with the view to reuse as building materials had been removed. He relied on Stewart v. Lizars [1965] VR 210 as establishing a wide meaning for the phrase "refuse or rubbish" in the particular statutory definition. The decision turned largely on whether the ejusdem generis rule applied to limit the definition more narrowly than the ordinary grammatical meaning proposed of "that which is rejected as useless or waste matter". I derive no particular assistance from that case. Mr Gotterson also relied on Wollongong City Council v. Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51 where a condition of development approval in respect of an "emplacement" for the long-term deposit of industrial waste of a steelworks provided that "all waste material" should be transported by rail unless transport by road was approved in a period of emergency. The factual aspects of the case relied on as having a similarity to the present case were that it was claimed that the blast furnace slag was "construction material" because it was used in the course of construction of the "emplacement" as a base course and drainage blanket and that it was at one time given away and later sold for road-making, filling and like activities. Mr. Gotterson relied on the rejection of that argument on the basis that the condition referred to waste as regards the manufacturing process. Holland J said that an -- 9 of 18 -- 7 overtechnical approach to the meaning of words in a permit (which was not a legislative instrument) was not as a general rule called for. He also said (57): " On the respondent's argument blast furnace slag carried to the site is waste or not waste according to what use is to be made of it at the site; but, whatever use is made of it there, it is by-product material superfluous to the manufacturing industry carried on by the respondent that has to be got rid of ~d is got rid of by transporting it to the site, depositing or placing it on the site and leaving it there. The fact that it may happen to be useful or used at the site for drainage or other construction purposes in the process is simply coincidental and is of no consequence from the point of view of environmental control and protection to which the conditions were being directed." Mr Gallagher on the other hand submitted that Paull v. Lewis (1971) 3 SASR 230 bore a very close resemblance to the present case. The defendant was charged with contravening a municipal by-law the effect of which was that no person should, without the Council's consent, deposit in any land any rubbish. The agreed facts were that the defendant deposited a truck-load of wooden boxes, scrap timber, porcelain insulators, steel, off-cuts of wire, broken electrical equipment, waste-paper and cardboard on the land. He then set fire to it intending to get rid of the inflammable material and to clean the metallic component. After the fire he retrieved and sold the scrap metal and disposed of ash at a municipal tip. The residue was left as "hard fill" to recompense the owner for the use of the land. Hogarth J and the Full Court (Bray CJ, Walters and Zelling JJ) held that in the hands of the defendant the load of material deposited on the land was not rubbish at the time when it was deposited on the land. Hogarth J held that at the time of deposit on the land each component of the load had a designed purpose, viz, the wood for fuel, the metal for sale, and the hard fill for use as such, and that the load was not therefore "rubbish". On appeal Bray CJ said that the by-law contemplated "the dumping on land of abandoned or waste material for which the dumper had no use and of which he wished to be forever quit". It did not contemplate the processing on land of material for the purpose of -- 10 of 18 -- 8 some economic benefit to the processor. Walters J held that the mischief aimed at was the deposit of "waste or refuse material, debris, litter or rejected and useless matter which if allowed to remain would be likely to become injurious to public health or to become a nuisance or annoyance". He said (236) " . . . when it becomes necessary to determine whether waste materials are 'rubbish' within the scope of the statute, regard must be had to their character and the use for which they are intended to be put at the time of the deposit, rather than to the source of their origin, the manner in which they were produced, and the broad nature of their extrinsic peculiarity or quality. Accordingly, I think that if at the time of the deposit, the materials, about which complaint is made, have a commercial value to the owner, and so long as he intends, within reasonable bounds, to use them for their purpose as articles of trade, they cannot be considered as rubbish. In my view, they do not lose their character as articles available for commercial purposes, even though they have initially been produced or acquired as rejected or useless matter." Zelling J said (239): "... It is seen today that there is great importance to be attached to the re-user of materials by recycling them; thus recovering the useable material for further use and preventing pollution. The same observation applies to the disposal of waste material which cannot be recycled. Mr Hunter laid great stress in this aspect of his argument on the fact that if the material had simply been dumped as rubbish for the filling of land no one would fail to characterise it as rubbish. I do not agree. If in fact it was to be so dumped and immediately covered with earth as is going on today in many places, this is now seen as a beneficial disposal of waste material and no longer as rubbish. It is a question of fact and degree in every case .... " He also said (241): "In my opinion, the materials deposited for the purpose of recovering and reselling the items of value and of using the rest as hard filling do not come within the ordinary acceptation of "rubbish" as that word is used today, whatever the position may have been in the past." It is not necessary in these proceedings to decide whether there are any differences between the formulations of the principle in the Full Court. It is however noteworthy that no -- 11 of 18 -- 9 adverse comment was made on Hogarth J's formulation. Neither Wollongong City Council v. Australian Iron & Steel Pty Ltd nor Paull v. Lewis can be directly applied to the interpretation of Regulation 15, but the concepts discussed in them demonstrate that it is by no means clear that what has been done constitutes an offence against Regulation 15 and conversely that it is by no means beyond argument that the regulation does not extend to the present case. This is of particular significance in the resolution of the matter since the applicant must establish an ongoing intention to persist in breaching the law. It is not\ sufficient to prove that there is an intention to continue conduct which may or may not ultimately prove to be an offence if tested in an appropriate court on appropriate evidence. It has always been recognised that the issuing of an injunction to restrain an actual or threatened breach of criminal law is exceptional. The right to invoke the aid of the civil courts in enforcing criminal law is one which "is confined in practice to cases where an offence is frequently repeated in disregard of a usually inadequate penalty ... or to cases of emergency". (Gouriet v. Union of Post Office Workers [1978] AC. 435, 481 Lord Wilberforce, cited in Commonwealth of Australia v. John Fairfax & Sons Ltd (1980) 147 CLR 3 9 by Mason J.) In Peek v. New South Wales Egg Corporation (1986) 6 NSWLR 5 Glass JA (with whom Samuels JA agreed) said that an examination of authority showed that: " ... circumstances can exist which justify the exercise of a discretion to grant equitable relief to restrain the commission of future offences notwithstanding that criminal sanctions have not been exhausted. They fail to establish any principles which determine when that discretion may or may not be exercised. Nor in my opinion would it be possible to extract from the myriad of fact permutations a classification which would permit circumstances to be defined a priori as special or not special for the purposes of justifying or not justifying a discretionary grant of equitable relief. The trial judge must have regard to all the circumstances which relevantly militate for and against the granting of relief and then make a discretionary judgment." -- 12 of 18 -- 10 Kirby P. said: " The primary rule is stated by Lord Herschell LC in Institute of Patent Agents v. Lockwood [1984] AC 347 at 361-362. More recently, it has been explained by Lord Wilberforce in Gouriet v. Union of Post Office Workers [1978] AC 435 at 481: see also Viscount Dilhome (ibid at 490). From these and other authorities may be derived the several reasons which have been offered by the courts for the restraint which should be exercised in providing injunctive relief where the legislature or the common law provide criminal sanctions which have not been exhausted." .. ' After referring to reasons offered by the courts for the restraint which should be exercised in providing injunctive relief where criminal sanctions have not been exhausted and observing that it was "not particularly helpful to say that 'special' or 'exceptional' circumstances must be established" he said that a number of earlier judgments illustrated, without exhausting them, the kind of circumstances in which injunctive relief would be offered although criminal sanctions remained unexhausted. He said that such circumstances included cases where: "(a) The criminal penalty provided is not effective or is wholly ineffective in the circumstances to deter the unlawful conduct of the party whom it is sought to restrain, such that the conclusion is readily reached that prosecution and the processes of the criminal law will not deter that party from a continuing breach of the criminal law: see A ttomey-General v. Sheffield Gas Consumers Co (1853) 3 De GM & G 304 at 320-321; 43 ER 119 at 125, 126; cf Mason Jin Commonwealth of Australia v. John Fai,fax & Sons Ltd (1980) 147 CLR 39 at 49, 50. (b) The party whom it is sought to restrain has evidenced a clear and unequivocal intention to continue to flout the criminal law: see Lord Templeman in Stoke-on-Trent, (at 776). ( c) Unless the party in breach of the criminal law is stopped, there is a significant risk that widespread breaches of the law will be encouraged by others, resentful of the continuing activities of the party in breach or encouraged in that course by the example of such a breach: see Slade J in Burnley Borough Council v. England (1977) 76 LGR 393; cf Lord Denning MR in Stafford Borough Council v. Elkenford Ltd (at 329; 527)." -- 13 of 18 -- 11 The reference to Stoke-on-Trent Council v. B & 0 Ltd [1984] 1 AC 754 is to a passage in which Lord Templeman quoted with approval a passage of Bridge LJ in Stafford Borough Council v. Elkenford Ltd (1977) 1 WLR 324,330 the relevant passage of which for present purposes is the following: "The reason why it is ordinarily proper to ask whether the authority seeking the injunction has first exhausted the statutory remedies is because in the ordinary case it is only because those remedies have been invoked and have proved inadequate that one can draw the inference, which is the essential foundation for the exercise of the court's discretion to grant an injunction, that the offender is ... 'deliberately and flagrantly flouting the law'." Proof that there is a deliberate flouting of law is therefore fundamental in an application of this kind. It follows that if the law is unclear and there is room for a genuine difference of views whether it is an offence to deposit or dispose of material on the site for the purpose of using it as fill, it cannot be maintained that there is a deliberate flouting of the law in the relevant sense. The uncontradicted evidence is that the Council has not launched any prosecution action, although it has been aware of the practice of depositing materials at the site for at least six months. It is true that it has been concerned with the incidence of dumping by persons in the Brisbane City area but the perception that under the existing legal regime there are ambiguities and anomalies which leave the ability to control such activities in doubt appears to have hindered the Council's officers. If the result is that existing controls are inadequate, the remedy is legislative, not legal action. The reality of the situation, therefore, is that the applicant has failed to establish that any of the respondents are evidencing a clear and unequivocal intention to flout the criminal law. Examination of the cases where an injunction has been granted in this kind of case demonstrates that the party whose activities are prohibited is involved in what are, beyond argument, repeated offences in circumstances -- 14 of 18 -- 12 where the conclusion to be drawn is that, because it is more financially advantageous to pay fines than to stop the activity, or for other reasons, the threat of criminal prosecution will not deter further offences. If that inference cannot be drawn, the cases demonstrate that an injunction will not be granted. The applicant has failed to establish grounds for an injunction on this basis. Another circumstance in which an injunction may lie is where there is a threatened breach of the criminal law which because of its potential consequences requires urgent action to stop it. Although the applicant has failed to establish that there is a deliberate intention to breach the law for reasons that I have already given and which are equally applicable to this aspect of the matter and an injunction will not be available, I should nevertheless comment on one aspect of this claim of relief. The Council led some evidence designed to suggest that dumping posed a hazard to the environment and perhaps to public health. I should make it plain in this regard that only the alleged breach of the Refuse Management Regulations was relied on in the proceedings. It was not submitted that any provision of environmental legislation had been contravened. The importance of preserving the environment and public health is obvious. There is no suggestion that any of the material deposited at the site is lethal or noxious per se either immediately or in the long term. The evidence suggests that it is relatively inert and its breakdown will occur over a long time if it ever does break down significantly. The only evidence led by the applicant was from a Council officer with a Masters degree in pollution control. To set his evidence in context, the evidence establishes that material is being deposited at or near the edge of a body of water variously described as a lagoon or a dredge pond created by previous excavation of sand. It is not directly connected to Oxley Creek but it is reasonable to infer that by natural processes water from the pond will permeate into the creek. -- 15 of 18 -- 13 In the deponent's first affidavit the evidence 1s contained solely in the following paragraphs: "5. From my experience I can say that the location of the demolition material is such that there is a risk of leachate entering the creek via the lagoon particularly as a consequence of a rain event. 6. By reason of the nature of the demolition material, which includes concrete and other cement based materials, it is likely that in the event of leachate entering the creek, the ph level of the creek water will be altered which, in tum, will detrimentally impact upon the natural habitat of the creek. 7. Further, there is potential for contamination of ground water (which also enters Oxley Creek), from any hazardous materials which may be contained in the abovementioned drums. 8. Further, there is a potential for fire, as the demolition material has not been compacted and is not compartmentalised. 9. The environmental risk associated with each of the abovementioned matters increases as more demolition material is dumped on the property." I should mention that the deponent had not examined the drums and, from the Bar Table, Mr. Gotterson conceded that there was nothing to suggest that there were any hazardous materials in them. An affidavit filed on behalf of the respondents deposed that the only drums were for refuelling machinery on site. In his second affidavit the evidence is supplemented by the following information: "2. The dumping of concrete and other cement based materials poses an environmental risk because of the lime which is present in such material. In the event of rain (or if the materials are dumped directly into water) the lime dissolves in the water causing that water to become alkaline. The alkaline water is itself harmful to the natural habitat of the creek. In addition, the alkaline water reacts with metals which leads to the presence of heavy metals in the water entering the creek. This further adversely impacts upon the natural habitat of the creek. 3. The abovementioned risks are significant in this case given the close proximity of the site to the creek, the sandy nature of the soils which -- 16 of 18 -- 14 I observed on site (and which readily transmit water) and the lack of any lining to prevent leachate entering the creek via the lagoons." The discretion to grant an injunction in a case where an offence against the criminal law was threatened and the commission of that offence would have serious environmental or public health consequences if it occurred would most likely be exercised in favour of an injunction. It is easy to imagine cases where the consequences would not be immediate but were such that it could be predicted that at some future time such damage of a serious nature would occur. Where the factor relied on for an exercise of the discretion is a situation of emergency that will occur if the criminal offence is committed, it is incumbent that an applicant, who bears the onus, establish the emergent circumstances cogently. As the jurisdiction is an equitable one it is also important that full disclosure of relevant circumstances be made. Anyone with a reasonable general knowledge would be aware that the pH level of soil or water can have an influence on what thrives in that environment and what does not. In this connection, it does not greatly assist a Court to be told that the pH level of creek water will be altered which would detrimentally impact upon the "natural habitat" of the creek without even a basic scientific explanation of what the effect of the alteration will be in terms of water quality and what the nature and extent of the predicted detrimental impact will be. It is also not particularly helpful to a Court to be told in the most general terms that alkaline water reacts with metals leading to the presence of heavy metals in the water entering the creek. Once again, it is within the scope of a reasonable general knowledge that contamination with heavy metal compounds can cause serious environmental problems. However, it is relevant to know, but not addressed except in the most general of terms in the affidavit, whether the risk is theoretical or real in the particular case. For these reasons I described the evidence, placed before me either for the purpose of persuading me that there was a serious incipient environmental or public health problem or on the issue of balance of -- 17 of 18 -- 15 convenience, as "not very compelling". There can be no argument with the proposition that it is most important to protect the environment and public health. However if a serious case is to be mounted, even at the interlocutory injunction stage, that a circumstance justifying the exceptional use of a power to restrain the commission of a criminal offence exists, the evidence should descend to sufficient detail and particularity commensurate with the scale and immediacy of the apprehended danger to justify the Court comfortably drawing the conclusion it is asked to draw as to the possible impact on the environment. Needless to say, if the kind of risk is drastic and obvious less detail will suffice than in a case where the degree of risk is less obvious and its causation more subtle. The order is that the motion for an injunction is refused. -- 18 of 18 --