Cuthbert v Moreton Bay Regional Council - [2015] QPEC 36

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cuthbert v Moreton Bay Regional Council [2015] QPEC 36

PARTIES:

HEATHER LORRAINE CUTHBERT

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2283/15

DIVISION:

Planning and Environment

PROCEEDING:

Application (in Appeal)

DELIVERED ON:

31 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 June 2015

JUDGE:

Searles DCJ

ORDER:

That paragraphs 3 – 4 and 13 – 26 of the Appellant’s Notice of Appeal be struck out pursuant to s 171 of the Uniform Civil Procedure Rules 19991.       .

That the costs of the strike out application be reserved2.       .

That pursuant to s 535 of the Environmental Protection Act 1994, and subject to further order of the Court, the operation of the following Requirements of Environmental Protection Order dated 31 March 2015, issued by the Respondent to the Appellant, be stayed pending the final determination of the Appeal3.       :-

1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1, 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.46.

That costs of the stay application be reserved4.       .

CATCHWORDS:

PROCEDURE – PLEADINGS – STRIKE OUT APPLICATION – Impugned paragraphs in Notice of Appeal pertain to historical matters in previous but related proceedings – Whether impugned paragraphs are irrelevant to the issues in dispute – Whether impugned paragraphs should be struck out.

PROCEDURE – STAY OF PROCEEDINGS – Where, in the substantive appeal, Appellant seeks orders varying or setting aside Environmental Protection Order issued by Council – EPO pertains to Appellant’s boat maintaining and repairing facility - Where Council’s position is that Appellant has failed to comply with requirements of an Environmental Authority permitting carrying out of facility – Whether refusal to grant a stay would impact on the ultimate effectiveness of any orders made in the appeal - Whether grant of stay will threaten the integrity of appeal decision - Whether any threat of irreparable prejudice to the Appellant if proceeding not stayed.

COUNSEL:

A Skoien of Counsel for the Appellant

S Ure of Counsel for the Respondent

SOLICITORS:

Butler McDermott for the Appellant

Thomson Geer for the Respondent

This judgment relates to two applications in the substantive appeal. The first, made on 9 June 2015 by the Appellant pursuant to s 535 of the Environmental Protection Act 1994 (EPA), seeks an order that the decision of Council to issue an Environmental Protection Order (EPO) on 31 March 2015 be stayed pending the final determination of the Appeal (Stay Application). The second, made by Council on 16 June 2015 and subsequently amended on 18 June 2015, seeks the strike out of parts of the Appellant’s Notice of Appeal pursuant to s 171 of the Uniform Civil Procedure Rules 1999 (UCPR) on the ground that they are unnecessary because of irrelevancy to the determination of the issues in dispute in the Appeal (Strike Out Application).

In the Appeal, the Appellant seeks orders that the EPO be set…

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 36
Decision Date: 31 July 2015

CaseChat Overview and Summary

In the case of Cuthbert v Moreton Bay Regional Council, the dispute revolves around the Appellant's challenge to an Environmental Protection Order (EPO) issued by the Moreton Bay Regional Council. The Appellant, who operates a boat maintaining and repairing facility, argues that the EPO should be varied or set aside. The Respondent contends that the Appellant has failed to comply with the conditions of an Environmental Authority, which permits the operation of the facility. The case was heard in the Queensland Land Court, where the Appellant filed a Notice of Appeal.

The primary legal issues before the court were whether certain paragraphs in the Notice of Appeal, which pertain to historical matters from a previous but related proceeding, should be struck out as irrelevant to the current issues. The court also had to decide whether the operation of specific requirements of the EPO should be stayed pending the final determination of the appeal. The Appellant argued that a stay would prevent irreparable prejudice, while the Respondent contended that a stay could threaten the integrity of the appeal decision.

The court found that the impugned paragraphs in the Notice of Appeal were indeed irrelevant to the issues in the current appeal and, accordingly, struck them out pursuant to section 171 of the Uniform Civil Procedure Rules 1999. The court reasoned that the historical matters did not contribute to resolving the current dispute. In relation to the stay application, the court considered the potential impact on the effectiveness of any orders made in the appeal and the threat to the integrity of the appeal decision. The court determined that the Appellant would suffer irreparable prejudice if the stay was not granted, and thus ordered a partial stay of the EPO requirements.

The final orders of the court were that certain paragraphs of the Notice of Appeal be struck out, and the costs of the strike out application be reserved. Additionally, the operation of specific requirements of the EPO was stayed pending the final determination of the appeal, with the costs of the stay application also reserved.

Orders

Orders of the court

That paragraphs 3 – 4 and 13 – 26 of the Appellant’s Notice of Appeal be struck out pursuant to s 171 of the Uniform Civil Procedure Rules 19991. .

That the costs of the strike out application be reserved2. .

That pursuant to s 535 of the Environmental Protection Act 1994, and subject to further order of the Court, the operation of the following Requirements of Environmental Protection Order dated 31 March 2015, issued by the Respondent to the Appellant, be stayed pending the final determination of the Appeal3. :-

1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1, 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.46.

That costs of the stay application be reserved4. .

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 36
PARTIES:	HEATHER LORRAINE CUTHBERT (Appellant) v MORETON BAY REGIONAL COUNCIL (Respondent)
FILE NO/S:	2283/15
DIVISION:	Planning and Environment
PROCEEDING:	Application (in Appeal)
DELIVERED ON:	31 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	29 June 2015
JUDGE:	Searles DCJ
ORDER:	That paragraphs 3 – 4 and 13 – 26 of the Appellant’s Notice of Appeal be struck out pursuant to s 171 of the Uniform Civil Procedure Rules 19991. . That the costs of the strike out application be reserved2. . That pursuant to s 535 of the Environmental Protection Act 1994, and subject to further order of the Court, the operation of the following Requirements of Environmental Protection Order dated 31 March 2015, issued by the Respondent to the Appellant, be stayed pending the final determination of the Appeal3. :- 1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1, 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.46. That costs of the stay application be reserved4. .
CATCHWORDS:	PROCEDURE – PLEADINGS – STRIKE OUT APPLICATION – Impugned paragraphs in Notice of Appeal pertain to historical matters in previous but related proceedings – Whether impugned paragraphs are irrelevant to the issues in dispute – Whether impugned paragraphs should be struck out. PROCEDURE – STAY OF PROCEEDINGS – Where, in the substantive appeal, Appellant seeks orders varying or setting aside Environmental Protection Order issued by Council – EPO pertains to Appellant’s boat maintaining and repairing facility - Where Council’s position is that Appellant has failed to comply with requirements of an Environmental Authority permitting carrying out of facility – Whether refusal to grant a stay would impact on the ultimate effectiveness of any orders made in the appeal - Whether grant of stay will threaten the integrity of appeal decision - Whether any threat of irreparable prejudice to the Appellant if proceeding not stayed.
COUNSEL:	A Skoien of Counsel for the Appellant S Ure of Counsel for the Respondent
SOLICITORS:	Butler McDermott for the Appellant Thomson Geer for the Respondent