Braudmont P/L v Gold Coast City Council

Case •

[2014] QPEC 3

•

20 February 2014

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Braudmont P/L & Ors v Gold Coast City Council & Anor [2014] QPEC 3

PARTIES:

BRAUDMONT PTY LTD
(ACN 067 531 131)
(First Applicant)

and

GEMSTONE NOMINEES PTY LTD
(Second Applicant)

and

BRIAN NEIL SINGER
(Third Applicant)

v

GOLD COAST CITY COUNCIL
(First Respondent)

and

CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Second Respondent)

FILE NO:

217/2010

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

20 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2013

JUDGE:

Searles DCJ

ORDER:

The evidence the subject of successful objections as set forth in Schedule A and in this judgment be excluded.

CATCHWORDS:

Application to exclude evidence at resumed hearing on application for declarations involving construction of public access way by Council allegedly without development permit

COUNSEL:

G Allan – applicants

N J Kefford – first respondent

J Dillon – second respondent

SOLICITORS:

Treherne & Associates – applicants

Minter Ellison – respondent

  1. This judgment concerns the determination of numerous objections to evidence raised by Council at a resumed hearing of this matter on 9 December 2013.  The objections arose from the content of the Applicants’ Outline of Principal Issues in Dispute dated 6 December 2013.[1]  The Second Respondent supports the Council’s objections and has further objections of its own.  Later reference to Council objections refers also to those of the Council which the Second Respondent supports.  I heard oral argument from the parties and invited written submissions which in the result totalled 121 pages.

    [1]Exhibit 22.

Nature of Applicants’ Substantive Application

  1. Each Applicant owns residential property fronting unformed road reserve on Pacific Parade, at Currumbin.  In May 2009, the Council constructed a path on Pacific Parade, contiguous with the eastern boundaries of the residential properties fronting Pacific Parade, as a part of a network of paths along beaches from the Gold Coast seaway to Point Danger.  The path on Pacific Parade is apparently constructed on the landward side of, and partly on misaligned, discontinuous boulder walls buried under the coastal dune.

  1. In April 2010 the Applicants sued the Council in this court seeking declarations that the path had been constructed unlawfully, without an effective development permit under the Integrated Planning Act 1997 (IPA).  The Applicants sought consequential orders, including an injunction requiring the Council to remove the path and restore the coastal dune to its original condition, as near as practicable.

History of the Litigation

  1. The progress of this matter by the Applicants has a lamentable history given the philosophy encapsulated in r 4 of this court’s rules whereby a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.  The Originating Application (OA) was filed on 22 April 2010 alleging that the construction of the public access way by the Council in May 2009 without an effective permit was unlawful as it was assessable development namely:-

(a) operational works within or partly within a Coastal Management District under Schedule 8, Part 1, Table 4, Item 5(b)(ix) of the repealed Integrated Planning Act 1997 (‘IPA’); and

(b) operational works under Schedule 8, Part 1, Table 4, Item IF of IPA that included clearing of native vegetation on unallocated State land under the Land Act 1994.

  1. On 20 August 2010 the OA was amended by the Amended Originating Application (AOA).[2]  That amended pleading abandoned the allegation in sub-paragraph (b) above alleging clearing of native vegetation on unallocated State land and raised new allegations including that:-

    [2]Court document number 20.

(a) the construction of a public access way by Gold Coast City Council in May 2009 without an effective development permit was unlawful as it was assessable development, namely operational works within or partly within a Coastal Management District involving interference with quarry material (sand and soil) on State coastal land above the high water mark under Schedule 8, Part 1, Table 4, Item 5(b)(i) of the IPA;

(b)        the decision made by the Gold Coast City Council on 12 May 2008 whereby it resolved to construct a public access way along the beachfront public road reserve was an improper exercise of power, unlawful and invalid;

(c) the construction of a public access way by Gold Coast City Council in May 2009 has caused and will or has the potential to cause serious environmental harm in breach of s 437(2) of the Environmental Protection Act 1994 (EP Act); and

(d) further or in the alternative the construction of a public access way by Gold Coast City Council in May 2009 has caused and will or has the potential to cause material environmental harm in breach of s 438(2) of the EP Act.

  1. The AOA identified the relevant act of the Council supporting the alleged environmental harm as the construction of part of the access way (the path) in May 2009 at the location south of Tomewin Street, Currumbin to the northern corner of Len Wort Park.  Serious and material environmental harm was alleged.  The environmental harm was alleged as:-

(a)        the adverse effect or potential adverse effect of the interference with and damage to, and the continued damage that will be caused to, the stability and integrity of the dune and the exposure of the dune ‘to increased risks of erosion and weed infestation’; and

(b)        caused by the following activities forming part of the relevant act (namely the construction of the path):

(i)          removal of vegetation that maintained the stability and integrity of that part of the frontal dune; and/or

(ii)        interfering and removing a section of the frontal dune surface; and/or

(iii)        removal of the barriers which prevented public access.

  1. The serious environmental harm was alleged to be:-

(a)        the environmental harm caused to ‘an area of high conservation value and/or special significance’; and/or

(b)        the increased risk of structural instability to the residential buildings with frontage to the path.

Further Amended Originating Application – 10 September 2010

  1. On 10 September 2010 leave was granted to the Applicants to file a Further Amended Originating Application (FAOA) making minor amendments to the pleading.[3]

    [3]Court document number 27.

Second Further Amended Originating Application – 4 November 2010

  1. On 4 November 2010 the Applicants sought leave to deliver a further amended pleading (2nd FAOA) in terms of a document earlier delivered to the respondents.  That pleading as delivered:-

(a) abandoned the allegation referred to in paragraph 4(a) above, namely that the construction of a public access way by Gold Coast City Council in May 2009 without an effective development permit was unlawful as it was assessable development, being operational works within or partly within a Coastal Management District involving the removal or interference with coastal dune on land other than State coastal land that is in an erosion prone area and above the high water mark under Schedule 8, Part 1, Table 4, Item 5(b)(ix) of the IPA;

(b)        sought new relief, namely a declaration identifying the location of the Coastal Management District;

(c)        raised additional allegations, including allegations that:

(i)          the construction of a public access way by Gold Coast City Council in August 2010 without an effective development permit was unlawful as it was assessable development, namely operational works within or partly within a Coastal Management District involving interference with quarry material (sand and soil) on State coastal land above the high water mark under Schedule 8, Part 1, Table 4, Item 5(b)(i) of IPA or, in the alternative, under s 232(1)(c) of the Sustainable Planning Act 2009 (SPA) and s 9(1)(a) and s 9(2) and Schedule 3, Part 1, Table 4, Column 2, Item (5)(b)(i) of the Sustainable Planning Regulation 2009;

(ii)        the construction of a public access way by Gold Coast City Council in August 2010 has caused and will or has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act; and

(iii)        further or in the alternative the construction of a public access way by Gold Coast City Council in August 2010 has caused and will or has the potential to cause material environmental harm in breach of s 438(2) of the EP Act;

(iv)       the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately easterly of the laneway situated between Lot 1 RP 91587 and Lot 2 RP 91587 is likely to cause environmental harm in breach of s 319(1) of the EP Act whereby Council failed to take all reasonable and practical measures to prevent or minimise the harm;

(v)        further or in the alternative, the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately easterly of the laneway situated between Lot 1 RP 91587 and Lot 2 RP 91587 has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act or, in the alternative, material environmental harm in breach of s 438(2) of the EP Act;

(vi)       the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately to the south-east of Lot 2 RP 41781 is likely to cause environmental harm in breach of s 319(1) of the EP Act whereby Council failed to take all reasonable and practical measures to prevent or minimise the harm; and

(vii)       further or in the alternative, the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately to the south-east of Lot 2 RP 41781 has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act or, in the alternative, material environmental harm in breach of s 438(2) of the EP Act. (emphasis added)

  1. Some of the proposed amendments were opposed and after argument, on 4 November 2010 the Third Further Amended Original Application (3rd FAOA) was delivered reflecting the amendments allowed.

Hearing 4 May 2011

  1. The matter was then set down for three days on 4 May 2011. It commenced on the basis of the then current 3rd FAOA pleading. On that day the Applicants sought to amend paragraph 9 of that pleading dealing with the construction of the subject path by further alleging that the construction involved the collection and deposit of sand from Currumbin Beach being quarry material within IPA, the interference with such quarry material constituting operational works. That application was opposed, argument heard, and the decision reserved. To avoid loss of court time the hearing proceeded on the basis of the then current unamended pleading. That afternoon, the court delivered its decision dismissing the application.[4]

    [4]Transcript 1.47-50.

5 May 2011

  1. The following day, 5 May 2011, the Applicants sought further amendments and produced a further proposed Draft Fourth Further Amended Originating Application (Draft 4th FAOA).[5]  Again, to avoid loss of court time, a site inspection was undertaken and argument on the amendment was heard in the afternoon.  The proposed amended pleading contained paragraphs objected to by Council, being paragraphs 1(f) and (g) on pages 4 and 5 and paragraphs 20 to 29 dealing with the construction of boulder seawalls.  The court refused leave to make those amendments.

    [5]Exhibit 17.

  1. Other paragraphs in that pleading were abandoned by the Applicants without objection from Council.  They included allegations to the effect that:

(a)        the decision made by the Gold Coast City Council on 12 May 2008 whereby it resolved to construct a public access way along the beachfront public road reserve was an improper exercise of power, unlawful and invalid;

(b)        the construction of a public access way by Gold Coast City Council in August 2010 without an effective development permit was unlawful as it was assessable development, namely operational works within or partly within a Coastal Management District involving interference with quarry material (sand and soil) on State coastal land above the high water mark under Schedule 8, Part 1, Table 4, Item 5(b)(i) of the IPA or, in the alternative, under s 232(1)(c) of SPA and s 9(1)(a) and s 9(2) and Schedule 3, Part 1, Table 4, Column 2, Item (5)(b)(i) of the Sustainable Planning Regulation 2009;

(c)        the construction of a public access way by Gold Coast City Council in August 2010 has caused and will or has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act; and

(d)        further or in the alternative the construction of a public access way by Gold Coast City Council in August 2010 has caused and will or has the potential to cause material environmental harm in breach of s 438(2) of the EP Act;

(e)        the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately easterly of the laneway situated between Lot 1 RP 91587 and Lot 2 RP 91587 has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act or, in the alternative, material environmental harm in breach of s 438(2) of the EP Act; and

(f)         the construction of the beach access way on dates unknown between about 1998 and 2002 across the unformed road reserve and situated immediately to the south-east of Lot 2 RP 41781 has the potential to cause serious environmental harm in breach of s 437(2) of the EP Act or, in the alternative, material environmental harm in breach of s 438(2) of the EP Act. (emphasis added)

  1. The effect of the striking out of the paragraphs objected to by Council was that the Applicants’ case did not involve any issue that the misalignment or discontinuous nature of the boulder seawalls under the path or their construction caused or contributed to the alleged environmental harm.  The Fourth Amended Originating Application (4th FAOA)[6] reflects the pleadings following the application to amend decision.  The hearing was then adjourned to Brisbane and later set down for a further three days commencing 14 November 2011.

    [6]Court document number 58.

Applicants’ Particulars provided 11 October 2011

  1. On 11 October 2011, prior to the 14 November 2011 resumed hearing, some five months after the May 2011 adjournment, the Applicants wrote to the Council providing unsolicited particulars in relation to paragraphs 14 and 15 of the 4th FAOA.  The letter provided:-

“We refer to the above matter which is part heard, and will resume in the Planning and Environment Court in Brisbane on 14 November 2011.

In the light of the evidence led at the part-heard trial, the Applicants provide the following further and better particulars of paragraphs 14 and 15 of the 4th Further Amended Originating Application:

(e) The path is constructed on parts of and immediately landward of the boulder seawalls which are malaligned and discontinuous as shown on the Goodwin Midson Sketch Plan 13802-9 dated 28 April 2011 and in front of the Sanctuary Beach Development (CP BUP 525) along the alignment approved by the Beach Protection Authority as shown on Plan No. 40223A;

(f) By reason of the matters alleged herein:

(i)        the frontal dune faces increased risk of erosion;

(ii) residential buildings with frontage to the path face increased risk of damage during significant storm surge events;

(iii) members of the public (including the owners and occupiers of the residential buildings with frontage to the path) are exposed to increased risk of injury or death during significant storm surge events.”  (emphasis added)

Subpoenas Issued by Applicants

Resumed Hearing – 14 November 2011

  1. On the day of the resumed hearing, 14 November 2011, the court heard Council’s application to set aside five subpoenas issued by the Applicants on 4 November 2011 against its CEO and various Councillors.  In the result the subpoenas were set aside as an abuse of process and the Applicants ordered to pay costs.[7]  An appeal from that decision to the Court of Appeal was heard on 12 May 2012 and judgment dismissing the appeal with costs delivered on 29 May 2012.

Court of Appeal Decision[8]

[7]Braudmont Pty Ltd & Ors v Gold Coast City Council & Anor [2011] QPE (16 November 2011).

[8]Braudmont Pty Ltd & Ors v Gold Coast City Council [2012] QCA 140, at [3]-[4].

  1. In their reasons, Fraser JA, with whom Muir JA and Martin J agreed, said:-

“[17] The Applicants submitted that the documents sought by the subpoena were apparently relevant to the following allegations in their fourth further amended originating application:

‘14 The construction of part of the public accessway (the path) in May 2009 at the location south of Tomewin Street, Currumbin to the northern corner of Len Wort Park (more particularly described as Lot 318 on Plan Wd 5519, Parish of Tallebudgera, County of Ward) has caused and will continue to cause serious environmental harm in breach of s 437(2) of the Environmental Protection Act 1994.

Particulars

(a) The path is constructed on the rear section of a frontal coastal dune, in an erosion prone area with significant ecological values, namely an area of high conservation value and/or special significance.

(b) The path as constructed involved the removal of vegetation that maintained the stability and integrity of that part of the frontal dune.

(c) The path as constructed involved interfering and removing a section of the frontal dune surface (sand and/or soil) for a distance of approximately 143 metres, varying in width from approximately 3.95 metres in the northern section, to 3.6 metres in the southern section and comprising approximately twenty percent of the area of the frontal dune.

(d) The removal of the barriers which prevented public access to that part of the frontal coastal dune where the path was constructed and the construction of the path, has allowed unrestricted public access to the coastal dune which has interfered with and damaged and will continue to damage the stability and integrity of the dune, exposing the dune to increased risks of erosion and weed infestation.

(e) By reason of the matters alleged in subparagraphs (a) to (d) herein, the residential buildings with frontage to the path face increasing risk of structural instability due to storm surge.

15Further or in the alternative, the construction of part of the public accessway (the path) in May 2009 at the location south of Tomewin Street, Currumbin, to the northern corner of Len Work [sic] Park, has caused and will continue to cause material environmental harm in breach of s 438(2) of the Environmental Protection Act 1994.’

(The particulars of paragraph 15 repeated those in paragraph 14.)

[18] The allegations in paragraphs 14 and 15 must be understood in the context of the particulars of those allegations. Those particulars made it plain that the case mounted by the Applicants did not involve any allegation that the boulder walls had any role in the alleged effect of the construction of the path in causing environmental harm. This was made clearer still by the presence in the fourth amended originating application of text which was struck through to indicate that the Applicants abandoned allegations in the preceding pleading. Those abandoned allegations had made a case that the boulder wall was implicated in the alleged environmental harm:

‘When the Council constructed the boulder seawall as hereinbefore alleged it knew or ought to have known the leading edge of the boulder seawall was constructed on the wrong alignment, namely, not on the alignment approved by the Chief Executive administering the CPMA as depicted on Drawing No. 40223A, and was not continuous and thereby had the potential to cause serious environmental harm...

In addition to there being no boulder wall constructed by the Council under the beach access ways, no boulder wall has been constructed and/or required by Council to be constructed:
(a)  in front of Lot 3 RP 1983 (the Adler property);
(b)  in front of CP on BUP 400 (Seaspray property);
(c)  in front of CP on BUP 547 (the Singer property).

...

Accordingly, as at about October 2002, the boulder walls that have been constructed in the unformed road reserve Pacific Parade south of Tomewin Street:
(a)  do not form part of a continuous boulder wall;

(b)  are not constructed on the alignment of the GC aline as shown in Plan No. 40233A. ...

...

In the premises, the Council’s action to construct a boulder seawall has the potential to cause serious and/or material harm in the form of increased erosion to the frontal coastal dune and structural damage to the oceanfront residential properties front the unmade section of Pacific Parade during significant, or in the alternative, ARI 100 year events.’

[19] As the primary judge observed, the only reference in the fourth amended originating application to the alignment of the boulder wall was in paragraph 5 R(c)(viii), which alleged that Drawing No 40223A “...as it depicts the ‘GC aline’” “shows a different alignment for the ‘leading edge’ for the boulder sea wall” to that shown on certain other maps. The documents sought by the subpoena were not referable to that allegation. The primary judge therefore concluded both that there was no issue that the misalignment of the boulder wall under the path caused or contributed to the alleged environmental harm and that no issue had been raised about any of the other subjects described in the subpoena.

[20] The Applicants’ challenge to that analysis relied upon their solicitor’s letter of 11 October 2011, in which they purported to give further and better particulars of paragraphs 14 and 15 of the fourth further amended originating application. No request for any such particulars had been made. The Applicants purported to give the following particulars, substituting a new paragraph (e) and adding paragraph (f):

‘(e) The path is constructed on parts of and immediately landward of the boulder seawalls which are malaligned and discontinuous as shown on the Goodwin Midson Sketch Plan 13802-9 dated 28 April 2011 and in front of the Sanctuary Beach Development (CP BUP 525) along the alignment approved by the Beach Protection Authority as shown on Plan No. 40223A;

(f) By reason of the matters alleged herein:

(i)the frontal dune faces increased risk of erosion;

(ii) residential buildings with frontage to the path face increased risk of damage during significant storm surge events;

(iii) members of the public (including the owners and occupiers of the residential buildings with frontage to the path) are exposed to increased risk of injury or death during significant storm surge events.”

[21] The Applicants argued that the primary judge wrongly disregarded those particulars when deciding that the pleadings did not raise any issue concerning the subjects mentioned in the subpoena. They argued that the documents sought in the subpoena might be relevant to evidence already before the Court concerning the discontinuous nature of the boulder walls and the effect of that discontinuity in relation to the potential for erosion of the coastal dune of the construction of the path. It was submitted that the new particulars merely reflected that evidence, which had been adduced without objection. The Council pointed out, however, that this evidence was adduced at a time when the issues were defined by reference to the preceding pleading. As I have indicated, the relevant allegations were abandoned in the pleading which was current when the subpoena was issued.

[22] I have difficulty in accepting that, under the guise of supplying particulars which had not been requested, the Applicants were entitled unilaterally to expand their case to reintroduce a case which they had earlier abandoned. In any case, the subpoena does not limit the documents sought by reference to the allegations in paragraphs 14 and 15 as so particularised. There was no justification for requiring the production of documents which referred or related in any way to the boulder walls, or their discontinuous nature, for example. That would inevitably catch documents which had no conceivable bearing upon the allegations in paragraphs 14 and 15 that the construction of the path caused or would cause environmental harm.”

The court’s statement concerning the attempt to expand disputed issues by the provision of particulars is consistent with the statement of Gleeson CJ in Goldsmith v Sandilands[9] that the function of particulars is not to expand the issues defined by the pleadings, but “to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.”

Fifth FAOA – 13 December 2013[10]

[9][2002] HCA 31 at [2].

[10]Court document number 69.

  1. The current pleading is the Fifth Further Amended Originating Application (5th FAOA) Particulars 14(e) and (f) and 15(e) and (f) are the same particulars dealt with by the Court of Appeal being those provided by the Applicants’ solicitors’ letter of 11 October 2011.

  1. On 16 November 2011 Council made application to strike out the particulars set out in 11 October 2011 letter but was unsuccessful.  Following the decision of the Court of Appeal on 29 May 2012, the matter then languished until, on the court’s instigation, it was set down for further hearing on Monday 9 December 2013.  On that day Council took its present objection to evidence proposed to be relied upon by the Applicants, after reading their Outline of Principal Issues delivered the previous Friday 6 December 2013.

Council’s Submissions

  1. Council says that having regard to the current state of the pleadings the only documents relevant to the boulder seawalls are those that establish the location of those seawalls and that they are malaligned and discontinuous.  Further, any evidence seeking to establish any of the following would be irrelevant to the issues in dispute:-

(a)        how the boulder seawalls came to be at their current location;

(b)        who built the boulder seawalls;

(c)        Council’s policy about the appropriate location of seawalls;

(d)        any other government agencies’ position about the appropriate location of seawalls or the intended location of the existing seawall;

(e)        inconsistency between Council’s policy and earlier approvals by the Beach Protection Agency or any other government agency; or

(f)         environmental harm (serious or material) caused by an act or omission by Council relating to the mal-aligned, discontinuous boulder seawalls.

  1. I agree with that submission.  I should say Council does not dispute the mal-alignment and discontinuity of the boulder seawalls as alleged but says in response to particulars 14(e) and 15(e) that to the extent the Turf Pathways constructed on parts of, and immediately landward of, the boulder seawalls which are mal-aligned and discontinuous, its location does not, either alone or in conjunction with other activities and factors, cause either serious or material environmental harm.

  1. Considering the content of the Applicants’ Outline of Principal Issues in Dispute, Council says it is apparent the Applicants seek to:-

(a)        rely on evidence admitted without objection when the relevant pleading was the Third Further Amended Originating Application;

(b)        adduce evidence under the guise of relevance to particulars of the Fifth Further Amended Originating Application, and

(c)        rely on this evidence, in combination with the Applicant’s Summary of Opening dated 3 May 2011 and the draft Fourth Further Amended Originating Application, to support a position that the Court ought make orders and grant relief that is not in issue in the Fifth Further Amended Originating Application on the basis that Council has not been taken by surprise.

The Applicants’ Outline supports that submission.

  1. In other words, Council says, the Applicants seek orders to remedy or restrain environmental harm other than that caused by the identified Council activity, construction of the subject path.  Rather, the Applicants seek orders to seek to remedy or restrain environmental harm caused by the existence of the alleged malaligned and discontinuous seawalls.  That issue is not raised on the pleadings.  I agree with that submission.

  1. Given that it prepared its case on the pleadings, Council says its case has not been prepared to answer any case involving:-

(a)        how the boulder seawalls came to be at their current location;

(b)        who built the boulder seawalls;

(c)        Council’s policy about the appropriate location of seawalls;

(d)        any other government agencies’ position about the appropriate location of seawalls or the intended location of the existing seawall;

(e)        inconsistency between Council’s policy and earlier approvals by the Beach Protection Agency, or any other government agency; or

(f)         environmental harm (serious or material) caused by an act or omission by Council relating to the malaligned, discontinuous boulder seawalls (other than its act in constructing the public access way in May 2009).

  1. Council says that its position is unsurprising given that, on 14 November 2011 in relation to the Applicants’ 11 October 2011 particulars confirmed to the court that the following allegations are “all gone”:-[11]

    [11]Transcript 4.91.1-4.92.18.

(a)        against the Council that they constructed or should have been aware of the malaligned and discontinuous nature of the boulder wall; and

(b)        about imputed knowledge or actual knowledge of the malaligned and discontinuous nature of the boulder wall; and

(c)        about Council’s role in actually building and their responsibility in causing others to build the malaligned and discontinuous boulder wall.

Applicants’ position

  1. The Applicants provided detailed written submissions which essentially involved the following propositions:-

(a)        Evidence relating to Particulars 14(e) and (f) and 15(e) and (f) of the 5th FAOA referring to the malaligned and discontinuous boulder seawall is admissible as it bears on the court’s wide discretion to grant the relief sought;

(b)        That evidence should not be confined to merely establishing that the relevant boulder seawalls are malaligned and discontinuous.  Rather it should extend to evidence as to what actions the Council or any other entity or person took which caused the subject seawalls to be thereby dangerous;

(c)        As to the Applicants’ environmental harm case, the orders sought are directed towards remedying the dangerous location of the path by requiring the Council to fix the gaps in the malaligned walls, render them continuous by addressing their present alleged discontinuity and to ensure the walls are built on the landward boundary of the relevant Coastal Management District;

(d)        Once the court finds the alleged environmental harm has/will constitute an offence if not remedied or restrained, its discretion to remedy or restrain is very wide under the Environmental Protection Act 1994;

(e)        That wide discretionary power coupled with the fact that the orders are sought against the Council, render it relevant for the Applicants to prove not only that the boulder seawalls are malaligned and discontinuous but also to prove the history of the cause of that present condition and whether the Council is responsible for it;

(f)         In the context of the environmental harm case the malalignment and discontinuous nature of the boulder seawalls has been a live issue since 16 November 2011 when the Council sought unsuccessfully to exclude the above particulars 14 (e) and (f) and 15 (e) and (f).

  1. I cannot accept any of the Applicant’s written submissions.  Notwithstanding the fact of the dismissal of the Applicants’ amendment application on 5 May 2011 to introduce the issue of the construction of the boulder seawalls, their malalignment and discontinuity and any environmental harm resulting therefrom; notwithstanding the comments of the Court of Appeal I have outlined stating in the plainest language that there is no issue on the pleadings that the malalignment and discontinuous nature of the boulder wall under the path caused or contributed to the alleged environmental harm, the Applicants persist in agitating that issue.  The fact that the Court of Appeal was dealing with the issue of subpoenas does not affect the relevance or force of its statements.  The Applicants again seek to rely upon the unsolicited particulars of 11 October 2011 to seek to add the issue of, and lead evidence as to the construction of the boulder walls.

  1. It would indeed be a highly undesirable and unacceptable situation if a party, being unsuccessful in amending its pleadings to agitate a particular issue, could then claim relief based on that rejected amendment to support an argument that it thereby becomes an issue and the court should receive evidence to assist it in ordering that relief. 

  1. Lest it still be unclear to the Applicants, I again say that there is no issue before the court as to the history of the construction of the boulder walls or any environmental harm said to have been caused as a result of their construction including resulting from their malalignment or discontinuity.  Any evidence on those issues was, as the Court of Appeal clearly accepted, adduced at a time when the issues were defined by reference to the preceding pleading.[12]  That is prior to the dismissal of the Applicants’ application to amend to include those issues.  Nothing in the submissions of the Applicants changes that situation.

    [12]Braudmont Pl  Pty Ltd & Ors v Gold Coast City Council 2012 QCA 140 at [21].

Boundary of Currumbin Coastal Management District

  1. Before dealing with the individual objections, it is helpful to identify the issue pleaded in relation to the Currumbin CMD boundary.  It is the Applicants’ case that the construction of the subject path constituted operational works within the Currumbin CMD and was thereby assessable development for which no development permit was secured.  Council says no such permit was required.

  1. When one looks carefully at the 5th FAOA it can be seen that the Applicants’ allege that the boundary of the Currumbin CMD (being Segment No. 3057 of the South East Queensland CMD) is recorded in Table Figure 1 to the relevant Map 13.33 in Part 4 of the Schedule to the Coastal Protection and Management (Coastal Management Districts) Regulation 2003 as the GC aline. The particularised argument as to the CMD boundary then refers to Drawing No. 40223A entitled “Currumbin Boulder Wall Teemangum to Tomewin Streets Beach Replenishment and states that this plan depicts the abovementioned GC aline, being the CMD boundary.

  1. Then the pleading alleges that Plan 40223A was submitted by Council to the Beach Protection Authority for approval under the Beach Protection Act1968 and was approved as the alignment to be adopted for the “leading edge” of the Currumbin boulder seawall construction.

  1. Next it is alleged that the GC aline depicted in that Plan was adopted by Council as the GC aline and landward boundary of the CMD on Map 13.33 earlier referred to.  It is then said that the GC aline shows a different alignment to the leading edge for the Currumbin boulder seawall as depicted in a Foreshore Seawall Line Map in the Council’s 1994 Planning Scheme.  That, it is said, justifies determining the CMD boundary as the western boundary of the unformed road referred to in the pleading, in accordance with s. 61(d)(ii) of the Survey and Mapping Infrastructure Act 2003 (SMIA).

  1. The above is not intended to be a full exposition of the Applicants’ case on this issue but rather to identify the absence of any allegation that the CMD boundary line (GC aline) must correlate with the alignment of the leading edge of the Currumbin boulder seawall.  It seems to me that any such misalignment between those two does not inform the issue of the identification of the CMD boundary and that those parts of the pleadings speaking of their divergence is of historical interest only, but not relevant to the issue of the correct CMD boundary.  It relates to the irrelevant issue of the construction of the boulder seawall.

Evidence Objected to by Council

I turn now to Council’s objections.

Exhibit 1 – First Byrom Report

  1. The Council objects to the paragraphs 49 (but for the first sentence), 50-52, 57, 72, 74, 76 and 81 of Mr Byrom’s report of 4 November 2010.  It also objects to Plan 13802-7 in Appendix D except to the extent that it is relied on as evidence of an existing factor (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm.  Further it objects to pp 100-130 of Appendix J except for a letter from the Beach Protection Authority to Gold Coast City Council dated 28 October 1988 (pp 114-118) on the basis that the letter is admitted only as evidence of a document considered by Mr Byrom and not as truth of its contents.  Finally Council objects to documents at pp 151-161 of Appendix L to the report other than to the extent that it is relied on as evidence of an existing factor (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm.

  1. The Applicants argue that the evidence under attack is directly relevant to the Coastal Management District boundary argument in paragraphs 5A-5S of the 5th FAOA and to the environmental harm case as particularised in paragraphs 14(e) and 15(e) of that pleading.  Those are the particulars earlier referred to which included reference to the boulder seawalls as being mal-aligned and discontinuous.  The subject evidence, it is said, informed Mr Byrom’s final opinion that the best approach to determining the landward boundary of the Coastal Management District (CMD) results in it coinciding with the western boundary of the unformed s of Pacific Parade, south of Tomewin Street.  In other words it is part of the source material considered to arrive at that conclusion.

  1. The paragraphs of Exhibit 1 abovementioned deal with the history of the construction of the boulder seawalls.  Given the history of the pleadings and their current state the only issue in relation to the alleged mal-aligned and discontinuous boulder seawalls is whether the alleged environmental harm was caused by the Council constructing the subject path “on parts of an immediately landward of the boulder seawalls which are mal-aligned and discontinuous” – vide paragraphs 14(e) and 15(e) of 5th FAOA.  That does not involve any consideration of the history of the construction of the subject wall or its mal-alignment or discontinuous nature.  As to Mr Byrom’s formulation of an opinion as to the boundary of the CMD at the relevant time, evidence relating to the construction of the walls, as opposed to evidence of the establishment of the CMD boundary is not relevant.  The objection is upheld.

  1. As to Appendix J, pp 100-130 of Mr Byrom’s report contain correspondence and memoranda going back to 1975 in relation to the Gold Coast Boulder Seawalls Alignment line.  The area the subject of those documents stretch from Main Beach to Coolangatta.  This history is not relevant to any issue in dispute.  This case is not an inquiry into the history of boulder seawalls on the Gold Coast.  Council’s objection is upheld in relation to Exhibit J.

  1. As to the documents in Appendix L, pp 151-161 of Mr Byrom’s report, they relate to the construction of the boulder seawalls and include structural inspection certificates, invoices for work done, quotations for future work and correspondence relating to the construction.  They are not relevant to any issue in this case.  Council’s objection is upheld.

Exhibit 2 – Second Byrom Report

  1. In relation to Mr Byrom’s second report of 10 January 2011, Council objects to the final sentence in paragraph 13 other than to the extent that it is relied on as evidence of an existing fact (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm.  That particular sentence refers to Sketch Plan No. 13802-9 relating to recently constructed boulder seawalls adjacent to Lot 1 owned by the Applicant Braudmont and Lot 1 owned by the Applicant Gemstone.

  1. Council also objects to Plan 12802-9 above referred to being Appendix E to the report other than to the extent it is relied on as evidence of an existing fact (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm.  The Council says that that evidence is no longer relevant to any issue in dispute.

  1. The Applicants repeat and rely upon their response in relation to the first Byrom report.  Again construction of the walls is not relevant to an issue in dispute other than on the limited basis contended for by the Council.  Its objection is upheld.

Exhibit 3 – Bundle of Plans

  1. This bundle contains the two plans, 13802-7 and 13802-9, the subject of the earlier objections and objected to on the same basis of irrelevancy.  Consistent with the above rulings this objection is upheld.

Exhibit 8 – Warren Report

  1. Council’s objections to the report of Mr Warren of November 2010 are contained in paragraphs 108(a) to (w) of its written submissions.

Paragraph 108(a)

  1. In paragraph 108(a), Council objects to s 2 of the report on p 6 which is a review of the literature relating to Sand Dune Vegetation.  Council says that this material is not an expression of an opinion by an expert but rather a summary of literature.  But this would not be the first time in this jurisdiction that an expert has put in evidence this material relevant to the formulation of an expert opinion on a relevant issue.  In my view Mr Warren can rely upon that material and any such opinion formed can be the subject of cross-examination and ultimate submissions.  The objection is overruled.

Paragraph 108(b)

  1. In s 3.2 at p 13-15 of the Warren report, Mr Warren sets out a local history of the management of sand dunes in the Currumbin locality.  Council says that is not relevant to any issue in dispute and contains inadmissible expressions of opinion.  Again I am not prepared to exclude that evidence, given the Applicants’ case that the subject path was constructed on a frontal coastal dune in an erosion prone area.  Of course, again, any opinion expressed by Mr Warren must relevant to an issue in dispute.  The objection is overruled.

Paragraph 108(c)

  1. Council objects to s 3.3 of the report dealing with the Gold Coast City Council Planning Scheme Policy 15 – Management of Coastal Dune Areas on the basis that it is not relevant to an issue in dispute.  The applicants say that the evidence is admissible that deals with the protection of dune areas and is something Mr Warren as a botanist is entitled to consider.  Whilst there is no allegation of any breach by the Council of this Policy hence no such issue arises, Mr Warren should be allowed to consider this policy as another opinion as to proper dune management, in formulating his own opinion.  He will not be allowed to give evidence of any alleged breach of that policy because no such issue arises.  The evidence will be admitted on that limited basis.

Paragraph 108(d)

  1. Council objects to paragraph 4.3.2(2) on p 18 of the report on the basis that it is not relevant to any issue in dispute.  The applicants accept that this evidence is no longer relevant.  Accordingly it will be excluded.

Paragraph 108(f)

  1. Council next objects to reference in Mr Warren’s report in Table 1 on p 25 to vegetation communities on the subject site, namely nos 2 (new turf), 6 (low/closed grass land) and 7 (low/closed shrub land) on the basis that it is not relevant to any issue.  I am not prepared to exclude that evidence given the nature of the Applicants’ case set out in relation to paragraph 108(b).  Objection is overruled.

Paragraphs 108(g)-(i)

  1. This objection relates to subsection 4.3.2 – Community 2 – New turf, 4.3.2.6 – Community 6 – low/closed grass land and subsection 4.3.7 – Community – low/closed shrub land.  This relates to the same communities in Table 1 mentioned above and I decline to exclude that evidence for the same reasons as applied to Table 1.  The objection is overruled.

Paragraphs 108(k)

  1. The objection in paragraph 108(k) takes the point that Mr Warren is not qualified to express an opinion about the impact of location in an erosion prone area on the stability or integrity of the frontal dunes.  Mr Warren can be cross-examined on that issue and it can then be the subject of final submissions.  I am not prepared to exclude that evidence.  The objection is overruled.

Paragraph 108(l)

  1. Council objects to the first paragraph on p 32 of the report to the extent that it refers to “un-vegetated walkways to the beach” on the basis that is not relevant to any issue in dispute.  The applicants say that this evidence is relevant to the condition of the coastal sand dune.  I agree with that.  The integrity of the sand dune is in issue and although no specific allegation has been made as to un-vegetated walkways to the beach, nevertheless I consider that evidence relevant to the issue of the overall condition of the sand dune.  The objection is overruled.

Paragraph 108(m)

  1. As to paragraph 108(m), objection is taken to an expression of opinion by Mr Warren that a combination of the construction of the subject walkway, the poor condition of the fenced dunal area east of the walkway and the unvegetated walkways to the beach, either singularly or in combination could be said to cause adverse environmental harm including structural instability of the buildings with frontage to the two walkways due to storm surge.  The Council says he is not qualified to express that opinion.  I uphold the objection to the extent that Mr Warren cannot give evidence of impact on structural stability of the subject buildings.

Paragraph 108(n)

  1. This objection also relates to p 32 of Mr Warren’s report where he states that the walkway construction may lead to an irreversible degradation of the frontal dune and consequent damage to adjacent property.  I uphold the objection on the same basis as for paragraph 108(m). 

Paragraph 108(o)

  1. Council objects to paragraph 4 on p 34 of Mr Warren’s report on the grounds of irrelevancy. Paragraph 4 on p 34 seeks to explain the reason for the construction of seawalls east of the boundaries of two properties on the subject site.  The applicants say the evidence is a summary of the contents of Council’s Planning Scheme Policy 15 – Management of Coastal Dune Areas.  I do not see that that is the case as the paragraph speaks of Policies 7 and 11 but not 15.  In any event I regard that paragraph as dealing with the history of the construction of the wall and it should be excluded.  The objection is upheld.

Paragraph 108(p)

  1. Council objects on the grounds of relevancy to sub-paragraphs (f) to (j) on pp 34 and 35 of the report dealing with Council Policy 15 above.  For the same reasons given in relation to para 108(c) relating to Council Policy 15 – Management of Coastal Dune Areas I allow this evidence on the same basis as for paragraph 108(c).

Paragraph 108(q)

  1. Council objects to part of para 3 on p 35 of the report where Mr Warren expresses the opinion that the construction of the walkway on the frontal dune amounts to material environmental harm and may amount to serious environmental harm.  The objection is taken on the basis that he swears the issue.  In response, the applicants rely on their submission in relation to para 108(n).  The Council’s objection is valid and is upheld.

Paragraph 108(r)-(s)

  1. Council objects to two passages on p 35 of the report being the second last and third last dot points in which Mr Warren expressed the view that the walkway construction could lead to damage and loss of land to adjacent properties and may lead to irreversible degradation of the frontal dune and consequent damage to adjacent properties.  The applicants respond by saying Mr Warren is simply stating his opinion as to the potential for irreversible degradation.  This objection is upheld only to the extent consistent with the ruling in relation to paragraph 108(m) above.

Paragraph 108(t)-(u)

  1. The Council objects to Mr Warren stating at p 36 of his report that a key recommendation for the management of frontal dunes includes the construction of boardwalks on unconsolidated sand access tracks and the installation of fences and signage to exclude the public from the dune area and says that is not relevant to any issue in dispute.  It is relevant to the relief sought to protect the integrity of the sand dunes, namely to reinstate structures to a state as before the path construction and to close public access.  The objection is overruled.

Paragraph 108(v)

  1. Council objection to Plan 13802-7 in Appendix 4 to the Warren report is the same objection in relation to the same plan in Mr Byrom’s report which I have already dealt with.

Paragraph 108(w)

  1. Council objects to Appendix 5 of the report which is a schedule entitled “Existence/Location Boulder Seawall – South of Tomewin Street, Currumbin”, other than to the extent that it is relied on as evidence of an existing factor (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm, on the basis that it is not relevant to an issue in dispute.  The applicants rely on the same grounds they relied on relation to objection 108(u).  This schedule deals with the details of the construction of the boulder wall which is not an issue.  It should be excluded.

That then deals with the objections is paragraph 108 of the Council’s written submissions.

Exhibit 9 – Collins Report

  1. Council objects to paragraphs 5-9 on page 1 on this report.  These paragraphs deal with the history of the stabilisation of the Gold Coast foreshore, a 1994 Council policy – Foreshore Rock Wall Design and Construction, August 2003 Policy 7 – Foreshore Rock Wall – Design and Construction, a statement that Council has been requiring the construction of standard boulder walls across the frontage extent of property boundaries located in Crown land seaward of the property boundary and finally reference to Appendix D which contains the current Policy 7 and the previous Local Planning Policy 11.0 of the Council.  The Council says they are irrelevant to any issue.

  1. The applicants say that the Council has already tendered Exhibit 16 which contains the above policies but they were tendered on 5 May 2011 before the Applicants’ unsuccessful application from them to the pleading to include reference to the construction of boulder seawalls.  Policy 7 and 11 deal with the design and construction of the foreshore rock walls before the approximately 42 kilometre Pacific Ocean coast line is not relevant to an issue in dispute.  The objection is upheld.

  1. The Council next objects to the last paragraph on p 2 of the report which reads:-

“Without a continuous, effective protection seawall, there is a high probability of major erosion of the existing properties occurring again within the design life of the existing houses.”

Council objects to the admission of that statement other than to the extent that it is relied on as evidence of an existing factor (mainly the location and discontinuous nature of the boulder wall) that, in combination with the construction of the path, causes environmental harm.  The Applicants in response say that this is part of the history of the erosion scarps referred to in Exhibit 3 drawings and is relevant to Mr Collins’ expertise in determining the risks to persons and property in storm surge events.  To me it plainly speaks of the construction of seawall which is not issue.  The objection is upheld.

  1. Next the Council objects to s 3 on p 3 of the report under the heading – Review of the Existing Seawalls again on the basis that it is not relevant to any issue in dispute.  The applicants have not addressed this objection in their written submissions but in any event the section involves the history of the construction of seawalls from 1987 which is not relevant to an issue in dispute.  The objection is upheld.

  1. The next objection is to the opening paragraphs on the following page 4 under the heading effectiveness of existing seawalls.  They deal with the alleged insufficiency of the existing seawalls and the subject area has been largely ineffective.  This is not relevant to an issue in dispute.  The objection is upheld.

  1. The next objection is to the inclusions on p 5 of the report other than to the extent that it is relied on as evidence of an existing factor (namely the location and discontinuous nature of the boulder wall) that, in combination with the construction of the path, causes environmental harm.  Again the Applicants’ written submissions don’t address this paragraph.  The objection is upheld.

  1. Next the Council objects to Appendix E of the report which is a Schedule entitled Existence/Location Boulder Seawall – South of Tomewin Street, Currumbin.  It details 12 properties, identifies whether or not a boulder wall has been constructed relevant to the property and gives details of those where a wall has been constructed.  The Council says this is not relevant to any issue in dispute.  The Applicants’ written submissions don’t address this particular issue.  In any event it relates to boulder wall construction which is not in issue.  The objection is upheld.

  1. Finally in relation to the Collins report Council objects to Appendix F which contains an affidavit from a Mr Adler of 4 Tomewin Street, Currumbin deposing to the construction of rock walls by his neighbours in October 2002 which involves large scale excavation, the fact that he has not been required to build a boulder wall and finally he is aware of a person who disappeared into a hole created by sea erosion of the rock wall a time unspecified.  Again Council says this is not relevant to any issue and is hearsay evidence.  The Applicants say that Mr Adler’s evidence is directly relevant as he observed the construction of the boulder seawalls in question and it is directly relevant to the CMD boundary argument.  I do not agree.  I agree with the Council.  The objection is upheld.

Court Document 64 – Supplementary Collins Report dated November 2011

  1. The Council has the following objections to this report:

(a)        Council objects to portion of the report on p 2.1 under the heading – New Information.  Words objected to are:-

“And the boulder wall (as constructed).  In light of the new information relating to the actual location of seawalls, it is appropriate that I provide an additional response in relation to environmental harm caused by the pathway and boulder wall.”

The Applicants’ say that the evidence is directly relevant to the particularised grounds in the fifth FAOA and bears upon the course of discretion to make orders against the Council to fix the malaligned discontinuous walls.  I disagree.  The passage relates to the construction of boulder walls and is irrelevant.  The objection is upheld;

(b)        The next objection is to the passage on p 3.2 in these words:-

“The large gaps in and misalignment of the seawalls is contrary to the purpose for which the seawalls were designed i.e. to protect the foreshore properties with a continuous, smooth, appropriately designed seawall.”

The Council’s objection is to relevancy.  The Applicants’ response is the same as for sub-paragraph (a).  My decision is the same as for sub-paragraph (a).  The objection is upheld.

(c)        Council then objects to the entirety of the remaining s 3 on pp 3.1 and 3.2 absent the passage already excluded in relation to sub-paragraph (b) above, other than to the extent that it is relied on as evidence of an existing factor (namely the location and discontinuous nature of the boulder wall) that, in combination with the construction of the path, causes environmental harm, on the basis that it is not relevant to an issue in dispute.  The applicants repeat their response as for sub-paragraph (a) above.

S 3 has the heading – “Specific Considerations of the Consequences of Gaps in and Misalignment of the Boulder Seawalls.  That is not an issue in dispute.  The objection is upheld.

(d)        Council next objects to s 4 paragraphs (b)-(g) again on the basis of irrelevancy to any issue in dispute.  The applicants repeat their response to sub-paragraph (a).  S 4 is headed Review of Coastal Environment Report and the sub-paragraphs under attack deal respectively with misalignments or gaps in the seawall, the need for complete reconstruction of the misaligned walls and for appropriate walls placed on proper alignment to close the gap, this agreement that the wall sections to date are constructed in accordance with the A line, speculation as to the outcome of the correction of minor misalignments of the seawall with a final statement that the engineered wall has not be constructed along the A line.

Again the applicants rely on their response to sub-paragraph (a).  The passages deal with the construction of boulder seawalls which is not an issue.  The objection is upheld.

(e)        The next objection is to s 5 of the report under the heading Review of Sultmann Report.  The relevant paragraphs deal with issues of the collapse of the boulder wall in severe storm, the discontinuous nature of the seawalls and their gaps preventing development of erosion prone areas, the need to correct the discontinuous and malaligned features of the walls and the significant risk of environmental harm until that is done.

The applicants’ response is the same as to sub-paragraph (a).  These passages deal with the construction of the boulder seawalls and are not relevant.  The objection is upheld.

Court Documents 30 and 31

  1. The Council objects to these on the basis that neither are relevant to any issue in dispute.  Document 31 is an application by the Applicants of 29 October 2010 to amend their Further Amended Originating Application and document 30 is the Order of Wall QC DCJ of 29 October 2010 on that application.  From both past history I cannot see any situation where they might be relevant.  The applicants have not addressed the objection in their written submission.  The objection is upheld.

Court Document 32 – Affidavit of M T Treherne

(a)        This is the affidavit of the Applicants’ solicitor Mr Treherne dated 29 October 2010 in support of the above application of the same date.  Council objects to paragraphs 15 to 24 under the heading Environmental Harm.  It deals with the issue of environmental harm resulting from the misalignment of the boulder seawalls.  It foreshadows a claim against the Council for its failure to build a continuous rock wall.  The Applicants say it is directly relevant to their environmental harm case.  I do not agree.  It deals with environmental harm resulting from the malalignment and discontinuous nature of the seawall which is not an issue in this case.  The objection is upheld.

(b)        The next objection is to paragraphs 25 to 36 of the same affidavit detailing an explanation for the delay in bringing the application.  That may be relevant in the event that the Council relies on that delay against the Applicants on the issue of the Court’s discretion to grant any appropriate relief.  The objection is overruled.

(c)        The next objection to the affidavit is to Exhibit MTT19 on pp 12 and 13 which is an application for the production of certain documents which may be paraphrased as:-

·    Permits and/or approvals issued by the Beach Protection Authority in respect of the construction and/or erection and/or alteration of foreshore rock walls adjacent to Pacific Parade and Len Wort Park;

·    Applications and permits and/or approval and/or permissions in writing in respect of the interference with any sand, stone, gravel, rock, clay on unoccupied Crown land in the same area;

·    Applications made to Council and/or DERM in respect of the upgrading and/or construction of any boulder wall in the same area;

·    Development applications made and/or referred to and/or development approvals in respect of any assessable development under the Integrated Planning Act 1997 to be carried out within or partly within or adjacent to the relevant section of Pacific Parade and Len Wort Park.  Again the Applicants say this is relevant to the environmental harm case.  I disagree.  The document relates to the construction of boulder seawalls.  It is not relevant.  The objection is upheld.

(d)        Next the Council objects to pp 22-26 of Exhibit MTT20 of the affidavit again on the grounds of relevance.  Those pages comprise a letter dated 28 February 2000 from the Beach Protection Authority to the Council entitled “Section 471(A) of the Beach Protection Act 1968 – Approval for Construction of Boulder Walls”.  This is in response to a Council approval to construct boulder walls on open coastal areas of the Gold Coast City.  A letter granted permission to interfere with any sand etc. on unoccupied Crown land for the purpose of construction.  Council says it is irrelevant to any issue.  Again the Applicants say it is relevant to the environmental case.  I do not agree.  It deals with permission for the Council to build boulder seawalls all along the coast line of its city.  It is not relevant to any issue in dispute.  The objection is upheld.

(e)        The next objection is to pages 34 and 35 of Exhibit MTT23(b) which is a Decision Notice of the Council dated 8 October 2002 directed to Bastemeyers Demolition advising the Council had no objection to the construction of a boulder seawall at the property at 698 Pacific Parade, Currumbin being lot 1 on registered plan 41781, one of the properties owned by the Applicant Gemstone.  The Council objects to this document as irrelevant to any issue in dispute.  The Applicants say it is relevant to the environmental harm case.  I do not agree.  The objection is upheld.

(f)         

Next the Council objects to Exhibit MTT24 which comprises 52 pages being a letter and enclosures dated 27 October 2010 from Mr Collins to the Applicants’ solicitors in the preliminary report on Coastal Erosion and Hazard between Tomewin Street and Len Wort Park, Currumbin.  The report is said to particularly relate to the existing level of protection provided to properties with a frontage to the unmade road reserve section of Pacific Parade by the existing seawalls constructed to the date of that report.  The letter encloses historic photographs from 1952 to 2009, Council’s 1994 local planning policy 11 – Foreshore Rock Wall Design and Construction and its Subsequent Policy 7 which I have already dealt with.  It moves on to deal with an assessment of Coastal Erosion concluding that, without a continuous effective protection of seawalls, there is a higher probability of major erosion.  The letter then reviews existing seawalls stating that prior to the adoption of the A line and the standard bold wall design there had been an ad hoc and generally ineffectual approach to protection walls with individual owners attempting their own works.  The next section of the letter deals with the effectiveness of Existing Seawalls stating that they will be largely ineffective during major storm/erosion events because of their discontinuous nature. 



The Council says that is not relevant to any issue in dispute.  In response the Applicants say it is relevant to the environmental harm case.  It seems to me to deal quite clearly with the design and construction of boulder seawalls which is not an issue in this case.  The objection is upheld.

(g)        Next is the objection to pp 93-95 of Exhibit MTT24(a).  This is another copy of the pages of Exhibit MTT23B which I have already dealt with except that when comparing the two copies that Exhibit 23(b) does not have the final page of the letter.  That does not affect my ruling.  This objection is upheld.

(h)        Finally in relation to Mr Treherne’s affidavit Council objects to Exhibit MTT25 which is a handwritten note to Mr Treherne dated 18 August 2009 on RipCurl letterhead enclosing documents relating to the construction of a boulder seawall at 1 Fenton Place, Currumbin.  The Applicants say these documents are relevant to their environmental harm case.  I do not agree.  The objection is upheld.

Court Document 38 – Order Wall QC, DCJ dated 4 November 2010

  1. This is an interlocutory order objected to by Council on the grounds of relevancy.  The Applicants do not oppose it.  Any objection is upheld.

Exhibit 14 – Affidavit M Treherne

  1. The Council objects to this on the grounds of irrelevance.  The Applicants say it is relevant to the CMD boundary argument and point to Exhibits MTT 29 to 32.  The affidavit was filed and read by leave on 5 May 2011 when counsel for the Applicants told the court that it went to answer one of the issues raised by the Council regarding delay relevant to the exercise of the court’s discretion in relation to obtaining the declaration sought.  The documents in the exhibits relied upon by the Applicants to attract relevance are respectively a notice to DERM dated 11 August 2010 under the Evidence Act enclosing an unauthored works plan said to identify the seawall A line, proposed turf corridor and new dune fencing, the Tomewin Street to Flat Rock Creek public accessway, a letter from Mr Treherne to DERM dated 29 April 2011 foreshadowing objections the Applicants intended to take to the affidavit of Mr Sultmann at the May 2011 substantive hearing of the matter and DERM’s response.  I cannot see that that is relevant.  The objection is upheld.

Exhibit 15 – Affidavit Chantal Winship

  1. The Council objects to this evidence on the grounds of relevance.  This is an affidavit by a resident of No. 2 Tomewin Street, Currumbin deposing to storm surge event in May 2009 and seeing excavation work done on the beach near Len Wort Park some weeks before Easter 2009.  The applicants say this is relevant to their environmental harm case.  Given the limited nature of that case which excludes any allegation linking the malaligned and discontinuous boulder seawalls to the environmental harm and the irrelevance of the history of the construction of boulder walls generally I cannot see that this is of any relevance to any issue in dispute.  The objection is upheld.

Applicants’ Summary of Opening – 3 May 2011

  1. The Council objects to this document and the Applicants say it was merely tendered at the court’s request on 3 May 2011.  It was not intended to prove any alleged fact.  The Applicants will abide the order of the Court.  I cannot see that it is any longer relevant.  The objection is upheld.

Exhibit 5 – Decision Notice to Braudmont Pty Ltd – 16 September 2002

  1. This document is a Decision Notice of the Council directed to Braudmont Pty Ltd dated 16 September 2002 approving subject to conditions the construction of a boulder seawall at the property at lot 1, registered on RP91587.  This document was admitted when the third FAOA was the current pleading but subsequently deleted.  It is no longer relevant.  For the same reasons I gave in relation to Exhibit MTT 24(a) as being the decision notice for the construction of a boulder wall for lot 1 on RP 41781, this objection is upheld.

Exhibit 12 – Letter A W Smith to Council – 10 February 1988

  1. This is a letter certifying inspection by Mr Smith a civil engineer in relation to the construction of a boulder seawall at no. 47 Teemangum Street, Currumbin.  It was admitted into evidence prior to the amendment to the Applicants’ pleadings mirrored in the fourth FAOA and is no longer relevant.  The Applicants do not address this objection in their written submissions.  I agree with the Council that it is not relevant.  The objection is upheld.

Exhibit 17 – Fourth Further Amended Originating Application

  1. The applicants make it clear they do not rely upon this document to prove any fact and make the same submission as they made in relation to the summary of their opening statement of 3 May 2011.  For completeness however I uphold the objection.

Documents produced by Council pursuant to Applicants’ s 134A Notice

  1. Council objects to all documents except document 6 which is a letter dated 31 May 1988 from the Beach Protection Authority to the Council giving blanket approval for the construction of boulder walls.  Otherwise the folder deals with correspondence in relation to the construction of boulder walls along the Gold Coast which balance documents the Council say are irrelevant to any issue.  I must say I cannot see that document 6 attracts relevance and Council has not articulated basis for its relevance.  The Applicants have not addressed this objection.  I do not see that it is irrelevant.  The objection is upheld including document 6.

Affidavit of Mr Byrom 5 December 2013

  1. Council objects to this on the grounds of relevancy.  It is an affidavit dealing with a review by Mr Byrom of the Council’s Standard Drawing – Foreshore Seawall Type 1 (Clay and Shale) – drawing no. 05-04-001 (2005 Edition) to confirm the intent and dimensions shown therein are consistent with historical Standard Drawings of the Foreshore Seawall in the 1994 and 2003 Gold Coast Planning Scheme respectively confirms that the Council’s Standard Drawing – Foreshore Seawall Type 1 (Clay and Shale) drawing no. 05-04-001 (2005 Edition) are the same in intent and dimensions as Standard Drawings No. 52701 (1993 Edition) and 59402 (1999 Edition).  Mr Byrom then goes on to say he prepared a plan to superimpose Drawing No. 05-04-001 (2005 Edition) along the Currumbin boulder wall alignment.

  1. The Applicants argue that the affidavit and drawings are directly relevant to the relief being sort.  Clearly the drawings relate to seawall construction and are more of the history of that topic.  They are not relevant to any issue in dispute.  The objection is upheld.

Second Respondent’s Objections

  1. I believe all the Second Respondent’s objections have been dealt with above but for its submission that the documents at pp 72-103 documents produced pursuant to the s 134A Notice served by the Applicants should be admissible to the extent only that they relate to the existence, configuration and design standard of constructed boulder seawall.  I have already upheld the Council’s objections to those documents.

  1. Schedule A is a schedule summarising the decision in relation to each of the objections.  The order of the court is that the evidence the subject of successful objections by Council as set forth in Schedule A and in this judgment be excluded.  I shall hear the parties on costs.

Schedule A
Summary of Objections

Objection To: Decision
Exhibit 1 – First Byrom Report
Paragraphs 49 (but for the first sentence), 50-52, 57, 72, 74, 76 and 81. Upheld.
Pages 100-130 of Appendix J except for pages 114-118. Upheld.
Documents at pages 151-161 of Appendix L other than to the extent that it is relied on as evidence of an existing factor. Upheld.
Exhibit 2 – Second Byrom Report
The final sentence in paragraph 13 other than to the extent that it is relied on as evidence of an existing fact. Upheld.
Plan 12802-9 as Appendix E other than to the extent it is relied on as evidence of an existing fact. Upheld.
Exhibit 3 – Bundle of Plans
Plans 13802-7 and 13802-9. Upheld.
Exhibit 8 – Warren Report
S 2 of the report on page 6. Overruled.
S 3.2 at pages 13-15. Overruled.
S 3.3. Evidence limited to Mr Warren’s consideration of policy as another opinion as to proper dune management.
Paragraph 4.3.2(2) on page 18. Upheld.
Reference in Table 1 on page 25 to vegetation communities on the subject site. Overruled.
Subsections 4.3.2, 4.3.2.6 and 4.3.7. Overruled.
Mr Warren’s qualifications to express an opinion about the impact of location in an erosion prone area on the stability or integrity of the frontal dunes. Overruled.
The first paragraph on page 32 to the extent that it refers to “un-vegetated walkways to the beach”. Overruled.
An expression of opinion by Mr Warren that a combination of the construction of the subject walkway, the poor condition of the fenced dunal area east of the walkway and the unvegetated walkways to the beach, either singularly or in combination could be said to cause adverse environmental harm including structural instability of the buildings with frontage to the two walkways due to storm surge. Upheld to the extent that Mr Warren cannot give evidence of impact on structural stability of the subject buildings.
Page 32. Upheld as immediately above.
Paragraph 4 on page 34.  Upheld.
Sub-paragraphs (f) to (j) on pages 34 and 35. Overruled.
Part of paragraph 3 on page 35. Upheld.
Two passages on page 35 being the second last and third last dot points. Objection upheld only to the extent consistent with the ruling in relation to paragraph 108(m).
Mr Warren stating at page 36 that a key recommendation for the management of frontal dunes includes the construction of boardwalks on unconsolidated sand access tracks and the installation of fences and signage to exclude the public from the dune area. Overruled.
Plan 13802-7 in Appendix 4. Upheld.
Appendix 5 other than to the extent that it is relied on as evidence of an existing factor (namely the location of the boulder wall) that, in combination with the construction of the path, causes environmental harm, on the basis that it is not relevant to an issue in dispute. Upheld.
Exhibit 9 – Collins Report
Paragraphs 5-9 on page 1. Upheld.
The last paragraph on page 2. Upheld.
S 3 on page 3. Upheld.
The opening paragraphs on page 4. Upheld.
The inclusions on page 5 other than to the extent that it is relied on as evidence of an existing factor (namely the location and discontinuous nature of the boulder wall) that, in combination with the construction of the path, causes environmental harm. Upheld.
Appendix E. Upheld.
Appendix F. Upheld.
Court Document 64 – Supplementary Collins Report dated November 2011
Portion of the report on page 2.1. Upheld.
The passage on page 3.2. Upheld
The entirety of the remaining s 3 on pages 3.1 and 3.2. Upheld.
S 4 paragraphs (b)-(g). Upheld.
S 5. Upheld.
Court Documents 30 and 31
These documents in their entirety. Upheld.
Court Document 32 – Affidavit of M T Treherne
Paragraphs 15 to 24. Upheld.
Paragraphs 25 to 36. Overruled.
Exhibit MTT19 on pages 12 and 13. Upheld.
Pages 22-26 of Exhibit MTT20. Upheld.
Pages 34 and 35 of Exhibit MTT23(b). Upheld.
Exhibit MTT24. Upheld.
Exhibit MTT25. Upheld.
Court Document 38 – Order Wall QC, DCJ dated 4 November 2010
An interlocutory order. Upheld
Exhibit 14 – Affidavit M Treherne
This affidavit on the grounds of relevance. Upheld.
Exhibit 15 – Affidavit Chantal Winship
This affidavit on the grounds of relevance. Upheld.
Applicants’ Summary of Opening – 3 May 2011
The document in its entirety. Upheld.
Exhibit 5 – Decision Notice to Braudmont Pty Ltd – 16 September 2002
The document in its entirety. Upheld.
Exhibit 12 – Letter A W Smith to Council – 10 February 1988
The document in its entirety. Upheld.
Exhibit 17 – Fourth Further Amended Originating Application
The document in its entirety. Upheld.
Documents produced by Council pursuant to Applicants’ s 134A Notice
All documents except document 6. Objection upheld including document 6.
Affidavit of Mr Byrom 5 December 2013
The document in its entirety. Upheld.

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Braudmont Pty Ltd v Gold Coast City Council [2012] QCA 140
Goldsmith v Sandilands [2002] HCA 31