Cuthbert v Moreton Bay Regional Council - [2015] QPEC 63

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cuthbert v Moreton Bay Regional Council [2015] QPEC 63

PARTIES:

HEATHER LORRAINE CUTHBERT

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2283/2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2015, 1, 2, 3, 4 & 21 September 2015

JUDGE:

Morzone QC DCJ

ORDER:

1. APPEAL ALLOWED IN PART.

2. I WILL HEAR FURTHER SUBMISSIONS ON THE FORM OF ORDERS TO ISSUE A SUBSTITUTED ENVIRONMENTAL PROTECTION ORDER AND THE FUTURE CONDUCT OF THE PROCEEDING.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – whether breach of conditions of environmental authority – whether Environmental Protection Order needed to secure future compliance – whether the exercise of the discretion under s 358 of the Environmental Protection Act 1994 (Qld) should result in the issue of Environmental Protection Order.

LEGISLATION:

Environmental Protection Act 1994 (Qld), ss 358, 521 & 531.

Sustainable Planning Act 2009 (Qld)

CASES:

Loader v Moreton Bay Regional Council (unreported QPEC
Griffin DCJ 20 December 2012) and on appeal Loader v Moreton Bay Regional Council [2013] QCA 269, related.
Cuthbert v Moreton Bay Regional Council [2015] QPEC 36, related.
Briginshaw v Briginshaw (1938) 60 CLR 336
Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262
Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222
Attorney‑General New South Wales v Quin (1989) 170 CLR 1

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111

COUNSEL:

A Skoien with D Purcell for the Appellant

S Ure for the Respondent

SOLICITORS:

Butler McDermott Lawyers for the Appellant

Thomson Geer Lawyers for the Respondent

The appellant’s use of a slipway to repair, sand, spray, fibreglass, water-blast and anti-foul boats has been a nucleus of disputation with the respondent council amid a chorus of complaints from local residents.

The appellant now appeals against the council’s internal review that affirmed the issuance of an environmental protection order against the appellant.

Background

Since 2002 the appellant has carried on the business of a boat maintenance and repair facility at 48 Bishop Parade at Toorbul, comprising Lot 20 on RP 7294 and Lot 1 on AP 2986. The facility is adjacent to Elimbah Creek, near the Pumicestone Passage. The overlayed aerial photographs show Lot 1 as an extension of Lot 20 across Bishop Parade and into Elimbah Creek. Lot 20 is a freehold lot improved by a house and a shed. The shed fronts Bishop Parade and is adjacent to Lot 1 over which the applicant holds a permit to occupy. Lot 1 is unallocated State land improved by a boat ramp, slipway and jetty.

Several owners operated the facility without formal environmental controls for 34 years between 1962 and 1996. After the introduction of the Environmental Protection Act 1994 (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QPEC 63
Decision Date: 18 December 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the respondent, Moreton Bay Regional Council, against an Environmental Protection Order (EPO) issued by the first respondent, the Environmental Protection Agency. The appellant sought to challenge the EPO imposed for an environmentally relevant activity. The central dispute revolved around whether the EPO was justified, focusing on whether there was a breach of the general environmental duty, whether conditions of the environmental authority were violated, and if the EPO was necessary to ensure future compliance. The case was heard in the Queensland Land Court, indicating its significance in environmental law and planning.

The legal issues addressed by the court included the interpretation and application of the Environmental Protection Act 1994 (Qld), specifically sections 358 and 359. The primary question was whether the discretion under section 358 of the Act warranted the issuance of an EPO to secure compliance with environmental obligations. The court also needed to determine if the EPO was necessary to ensure compliance with the conditions of the environmental authority and to prevent future breaches of the general environmental duty.

The court's reasoning focused on the balance between the need for compliance with environmental obligations and the proportionality of the EPO in this context. The judge found that while there were breaches of the general environmental duty and conditions of the environmental authority, the EPO issued by the EPA was not the most appropriate or proportionate response. The court considered the discretion under section 358 and concluded that a substituted EPO might be more suitable to ensure compliance while avoiding excessive punitive measures. The court allowed the appeal in part, indicating a need for further submissions on the form of the substituted EPO and the future conduct of the proceedings.

In light of the court's decision, the orders included allowing the appeal in part and scheduling further submissions to determine the appropriate form of the substituted EPO and to outline the future conduct of the proceedings. The court's approach highlighted the need for a balanced and proportionate response in environmental compliance matters, ensuring both the protection of environmental interests and the fair treatment of the parties involved.

Orders

Orders of the court

1. APPEAL ALLOWED IN PART.

2. I WILL HEAR FURTHER SUBMISSIONS ON THE FORM OF ORDERS TO ISSUE A SUBSTITUTED ENVIRONMENTAL PROTECTION ORDER AND THE FUTURE CONDUCT OF THE PROCEEDING.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cuthbert v Moreton Bay Regional Council [2015] QPEC 63
PARTIES:	HEATHER LORRAINE CUTHBERT (Appellant) v MORETON BAY REGIONAL COUNCIL (Respondent)
FILE NO/S:	2283/2015
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2015, 1, 2, 3, 4 & 21 September 2015
JUDGE:	Morzone QC DCJ
ORDER:	1. APPEAL ALLOWED IN PART. 2. I WILL HEAR FURTHER SUBMISSIONS ON THE FORM OF ORDERS TO ISSUE A SUBSTITUTED ENVIRONMENTAL PROTECTION ORDER AND THE FUTURE CONDUCT OF THE PROCEEDING.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – whether breach of conditions of environmental authority – whether Environmental Protection Order needed to secure future compliance – whether the exercise of the discretion under s 358 of the Environmental Protection Act 1994 (Qld) should result in the issue of Environmental Protection Order.
LEGISLATION:	Environmental Protection Act 1994 (Qld), ss 358, 521 & 531. Sustainable Planning Act 2009 (Qld)
CASES:	Loader v Moreton Bay Regional Council (unreported QPEC Griffin DCJ 20 December 2012) and on appeal Loader v Moreton Bay Regional Council [2013] QCA 269, related. Cuthbert v Moreton Bay Regional Council [2015] QPEC 36, related. Briginshaw v Briginshaw (1938) 60 CLR 336 Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262 Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222 Attorney‑General New South Wales v Quin (1989) 170 CLR 1 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111
COUNSEL:	A Skoien with D Purcell for the Appellant S Ure for the Respondent
SOLICITORS:	Butler McDermott Lawyers for the Appellant Thomson Geer Lawyers for the Respondent