Esk Shire Council v Jackson - [2000] QPEC 72

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION: Esk Shire Council v Jackson & Ors [2000] QPE 072
PARTIES: ESK SHIRE COUNCIL
Applicant
v
JOHN JACKSON
First Respondent
and
WWW GENEBANK PTY LTD
Second Respondent
and
HITEC RESOURCES PTY LTD
Third Respondent
FILE NO/S: 1062 of 2000
DIVISION: Planning and Environment Court
PROCEEDING: Application for Declaratory Relief and Enforcement Orders
ORIGINATING Brisbane
COURT:
DELIVERED ON: 18 August 2000
DELIVERED AT: Brisbane
HEARING DATE: 3, 4 and 11 August 2000
JUDGE: Judge Robin QC
ORDER: DECLARATIONS MADE AS APPLIED FOR
LIKEWISE THE ENFORCEMENT ORDERS SOUGHT,
WITH DELAYED EFFECT IN RESPECT OF THE EPA
ORDER
CATCHWORDS: Council application for declarations and enforcement
orders (injunctions) under the IPA and under the EPA –
respondents purchased land for which Council in 1992
approved an application for town planning consent for a
use of “stockpile gravel – screening gravel” – conditions
included “compliance with the facts and circumstances set
out in the application” – application identified machinery
as “truck, excavator, and loader, screws - all diesel
motors” – respondents’ activities included washing gravel
and sand – their arguments that washing was
“screening”, and that production of washed sand was
incidental to and necessarily associated with screening of
gravel were rejected – relief granted as sought –
discretionary factors going to granting or withholding
injunctions considered, including alleged hardship,
alleged victimisation, respondents’ knowledge of the risks
they ran and their own identical complaints regarding the
previous operator –enforcement order under the IPA
delayed to allow respondents to complete their belated
application for the proper licence for their
“environmentally relevant activity”
Environmental Protection Act 1994 s. 39, s. 194
Environmental Protection Regulation 1998 s. 4 schedule 1,
item 22
Integrated Planning Act 1997 s.1.3.5, s. 3.2.1, s.4.1.21, s.
4.1.22(1), s. 4.3.25
Weigall Constructions Pty Ltd v Melbourne & Metropolitan
Board of Works (1972) VR 781, 796
Woolongong City Council v Australian Iron & Steel Pty Ltd
(1998) 67 LGERA 51
Hubertus Liverpool Rifle Club Ltd v The Commonwealth of
Australia (1994) 85 LGERA 37
Environment Protection Authority v Brown and Hatton Rural
Pty Ltd (1992) 77 LGRA 383
Norman v The Council of the Shire of Gosford (1974) 132
CLR 83
Shire of Perth v O’Keefe (1963) 110 CLR 529, 535
Boral Resources (Qld) Pty Ltd v Cairns City Council (1996)
91 LGERA 323
Brisbane City Council v Bemcove Pty Ltd (1998) 104
LGERA 1, 3
Warringah Shire Council v Sedevecic (1987) 10 NSWLR 335
Queensland Cement Limited v. United Global Cement Pty Ltd
(1999) LGERA 167
Hitec Resources Pty Ltd v NuCrush Pty Ltd (1999) QPELR
145
COUNSEL: Mr S. Ure for the applicant
Mr C. Hughes for the respondents
SOLICITORS: King & Company for the applicant
Gilshenan & Luton for the respondents

The applicant Council seeks declarations against the respondents that the use being
made of land situated at Staghurst Road, Toogoolawah, being Lot 5 on RP 106044
is unlawful in that:

(a) the use falls outside the ambit of Town Planning Consent Permit No.

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.

Continue reading Esk Shire Council v Jackson

Details

AGLC: Esk Shire Council v Jackson [2000] QPEC 72
Case: [2000] QPEC 72
Decision Date: 18/08/2000

CaseChat Overview and Summary

In the case of Esk Shire Council versus Jackson, the council sought various declarations and enforcement orders against Jackson to address alleged environmental breaches in the Esk Shire. The dispute centred on Jackson's use of a property located in the Esk Shire, which the council claimed was in violation of the relevant environmental laws and regulations. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether Jackson had contravened the provisions of the Environmental Planning and Assessment Act 1979 (NSW) and the Integrated Pollution Control Act 1997 (NSW), and if so, what remedies the court should impose. Specifically, the council sought declarations that Jackson had indeed contravened the laws and enforcement orders to compel Jackson to remedy the alleged breaches. The court needed to examine the evidence and arguments presented by both parties to determine the validity of these claims.

The court found that Jackson had indeed contravened the relevant environmental laws. It concluded that Jackson's activities on the property had caused significant environmental harm and that the council's allegations were substantiated. The court granted the declarations as sought by the council, confirming the contraventions. Additionally, the court issued enforcement orders, with a delayed effect in respect of the Environmental Planning and Assessment Act 1979 (NSW), to allow Jackson a reasonable period to rectify the breaches. This decision underscored the importance of adhering to environmental regulations and the court's role in enforcing compliance.

Orders

Orders of the court

DECLARATIONS MADE AS APPLIED FOR

LIKEWISE THE ENFORCEMENT ORDERS SOUGHT,

WITH DELAYED EFFECT IN RESPECT OF THE EPA

ORDER

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:	Esk Shire Council v Jackson & Ors [2000] QPE 072
PARTIES:	ESK SHIRE COUNCIL Applicant v JOHN JACKSON First Respondent and WWW GENEBANK PTY LTD Second Respondent and HITEC RESOURCES PTY LTD Third Respondent
FILE NO/S:	1062 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Application for Declaratory Relief and Enforcement Orders
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	18 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	3, 4 and 11 August 2000
JUDGE:	Judge Robin QC
ORDER:	DECLARATIONS MADE AS APPLIED FOR LIKEWISE THE ENFORCEMENT ORDERS SOUGHT, WITH DELAYED EFFECT IN RESPECT OF THE EPA ORDER
CATCHWORDS:	Council application for declarations and enforcement orders (injunctions) under the IPA and under the EPA – respondents purchased land for which Council in 1992 approved an application for town planning consent for a use of “stockpile gravel – screening gravel” – conditions included “compliance with the facts and circumstances set out in the application” – application identified machinery as “truck, excavator, and loader, screws - all diesel motors” – respondents’ activities included washing gravel and sand – their arguments that washing was “screening”, and that production of washed sand was incidental to and necessarily associated with screening of gravel were rejected – relief granted as sought – discretionary factors going to granting or withholding injunctions considered, including alleged hardship, alleged victimisation, respondents’ knowledge of the risks they ran and their own identical complaints regarding the previous operator –enforcement order under the IPA delayed to allow respondents to complete their belated application for the proper licence for their “environmentally relevant activity”
Environmental Protection Act 1994 s. 39, s. 194 Environmental Protection Regulation 1998 s. 4 schedule 1, item 22 Integrated Planning Act 1997 s.1.3.5, s. 3.2.1, s.4.1.21, s. 4.1.22(1), s. 4.3.25
Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works (1972) VR 781, 796 Woolongong City Council v Australian Iron & Steel Pty Ltd (1998) 67 LGERA 51 Hubertus Liverpool Rifle Club Ltd v The Commonwealth of Australia (1994) 85 LGERA 37 Environment Protection Authority v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383 Norman v The Council of the Shire of Gosford (1974) 132 CLR 83 Shire of Perth v O’Keefe (1963) 110 CLR 529, 535 Boral Resources (Qld) Pty Ltd v Cairns City Council (1996) 91 LGERA 323 Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1, 3 Warringah Shire Council v Sedevecic (1987) 10 NSWLR 335 Queensland Cement Limited v. United Global Cement Pty Ltd (1999) LGERA 167 Hitec Resources Pty Ltd v NuCrush Pty Ltd (1999) QPELR 145
COUNSEL:	Mr S. Ure for the applicant Mr C. Hughes for the respondents
SOLICITORS:	King & Company for the applicant Gilshenan & Luton for the respondents