Cuthbert v Moreton Bay Regional Council No. 2 - [2018] QPEC 40

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cuthbert v Moreton Bay Regional Council No. 2 [2018] QPEC 40

PARTIES:

HEATHER LORRAINE CUTHBERT

(appellant)

v

MORETON BAY REGIONAL COUNCIL
(respondent)

FILE NO/S:

2283/2015 & 5102/2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 August 2018

DELIVERED AT:

Cairns

HEARING DATE:

6, 7, 8 & 9 March 2017, 27 April 2017.

JUDGE:

Morzone QC DCJ

ORDER:

In respect of appeal number 2283 of 2015 I order that the appellant’s revised Site Based Environmental Management Plan (exhibit 4) is approved subject to the following changes:1.

Section 3, ought better identify the noise sensitive receptors.     (a)

Paragraphs 134, 135 and 150 must be modified to ensure that no spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(b)

Paragraphs 172 – 175 ought be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (c)

Paragraphs 29(d), 176, and 178 must be modified to two 10,000 litre tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank.(d)

Paragraphs 29(g), 57, and 188 conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted. (e)

In respect of application number 5102 of 2016 I order on and from 4pm on 14 September 2018 that the appellant be restrained by injunction from:2.

Conducting spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(a)

Undertaking any work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (b)

Irrigating any land with holding tank water.  (c)

I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.3.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – findings of breach of conditions of environmental authority –Environmental Protection Order needed to secure future compliance – substituted Environmental Protection Order requiring stormwater management plan and site based environment management plan to address relevant conditions of Environmental Authority – further disputation about terms and conditions of required management plans – determination by court of site based environmental management plan.

Legislation

Environmental Protection Act 1994 (Qld) ss 9, 319, 430, 431, 505, 531
Environmental Protection Regulation 2008 (Qld) sch 7 pt 1
Sustainable Planning Act 2009 (Qld) s 232
Sustainable Planning Regulation 2009…

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: [2018] QPEC 40
Decision Date: 31 August 2018

CaseChat Overview and Summary

In the matter of Cuthbert v Moreton Bay Regional Council No. 2, the appellant, Cuthbert, sought to appeal against an Environmental Protection Order (EPO) imposed by the Moreton Bay Regional Council. The dispute arose from allegations that Cuthbert had breached the general environmental duty and specific conditions of an environmental authority related to an environmentally relevant activity. The court was tasked with determining whether the EPO was necessary to secure future compliance with environmental regulations and if the proposed Site Based Environmental Management Plan was adequate to address the relevant conditions of the Environmental Authority.

The central legal issues the court had to decide were whether the EPO was justified to enforce compliance with environmental regulations and if Cuthbert's proposed Site Based Environmental Management Plan was sufficient. The court had to examine if the proposed plan appropriately addressed the conditions of the Environmental Authority and whether modifications were necessary to ensure compliance with environmental standards. Additionally, the court needed to decide on the terms and conditions of the required management plans, particularly in light of further disputation about the specifics of these plans.

The court found that while Cuthbert's revised Site Based Environmental Management Plan was generally acceptable, several modifications were necessary to ensure compliance with the Environmental Authority's conditions. The court approved the appellant's revised plan with specific modifications, including better identification of noise-sensitive receptors and adjustments to certain paragraphs to align with the conditions of the Environmental Authority. The court also issued an injunction to prevent Cuthbert from conducting certain activities until compliance measures, such as installing an approved spray booth, were in place. The court ordered further submissions on the form of orders and the future conduct of the proceedings.

Orders

Orders of the court

In respect of appeal number 2283 of 2015 I order that the appellant’s revised Site Based Environmental Management Plan (exhibit 4) is approved subject to the following changes:1.

Section 3, ought better identify the noise sensitive receptors. (a)

Paragraphs 134, 135 and 150 must be modified to ensure that no spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(b)

Paragraphs 172 – 175 ought be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (c)

Paragraphs 29(d), 176, and 178 must be modified to two 10,000 litre tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank.(d)

Paragraphs 29(g), 57, and 188 conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted. (e)

In respect of application number 5102 of 2016 I order on and from 4pm on 14 September 2018 that the appellant be restrained by injunction from:2.

Conducting spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(a)

Undertaking any work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (b)

Irrigating any land with holding tank water. (c)

I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.3.

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 No. 2 [2018] QPEC 40
PARTIES:	HEATHER LORRAINE CUTHBERT (appellant) v MORETON BAY REGIONAL COUNCIL (respondent)
FILE NO/S:	2283/2015 & 5102/2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	31 August 2018
DELIVERED AT:	Cairns
HEARING DATE:	6, 7, 8 & 9 March 2017, 27 April 2017.
JUDGE:	Morzone QC DCJ
ORDER:	In respect of appeal number 2283 of 2015 I order that the appellant’s revised Site Based Environmental Management Plan (exhibit 4) is approved subject to the following changes:1. Section 3, ought better identify the noise sensitive receptors. (a) Paragraphs 134, 135 and 150 must be modified to ensure that no spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(b) Paragraphs 172 – 175 ought be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (c) Paragraphs 29(d), 176, and 178 must be modified to two 10,000 litre tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank.(d) Paragraphs 29(g), 57, and 188 conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted. (e) In respect of application number 5102 of 2016 I order on and from 4pm on 14 September 2018 that the appellant be restrained by injunction from:2. Conducting spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).(a) Undertaking any work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). (b) Irrigating any land with holding tank water. (c) I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.3.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – findings of breach of conditions of environmental authority –Environmental Protection Order needed to secure future compliance – substituted Environmental Protection Order requiring stormwater management plan and site based environment management plan to address relevant conditions of Environmental Authority – further disputation about terms and conditions of required management plans – determination by court of site based environmental management plan. Legislation Environmental Protection Act 1994 (Qld) ss 9, 319, 430, 431, 505, 531 Environmental Protection Regulation 2008 (Qld) sch 7 pt 1 Sustainable Planning Act 2009 (Qld) s 232 Sustainable Planning Regulation 2009…