Krajniw v Brisbane City Council

[2010] QPEC 55

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Krajniw v Brisbane City Council & Anor [2010] QPEC 55

PARTIES:

TONY KRAJNIW
Applicant

v

BRISBANE CITY COUNCIL
First respondent

And

DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (PREVIOUSLY ENVIRONMENTAL PROTECTION AGENCY & DEPARTMENT OF NATURAL RESOURCES AND WATER)
Second and third respondents

And

DEPARTMENT OF INFRASTRUCTURE AND PLANNING
Fourth respondent

FILE NO/S:

3672 of 2009
3673 of 2009

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

11 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Issue adjourned from judgment delivered on 31 March 2010

JUDGE:

Judge Rackemann

ORDER:

The remainder of the application be dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Originating application for declaration and enforcement orders – lawfulness of stage 2 of bikeway – whether development approval valid – whether further approvals required – where permit for the taking of protected plants under section 89 of the Nature Conservation Act found to be required by council for the clearing of least concern vegetation and/or vegetation of a higher category – whether an offence under Nature Conservation Wildlife Management Regulation relating to offence where a person tampers with an animal breeding place will be committed

COUNSEL:

Mr Krajniw (self-represented) for the applicant

Mr Trotter for the first respondent 
Mr Peate and Ms Wilson for the second and third respondents

SOLICITORS:

Brisbane City Legal Practice for the first respondent

Department of Environment and Resource Management for the second and third respondents

HIS HONOUR:  On the 31st of March 2010 I gave ex tempore reasons which concluded that the majority of the matters raised by Mr Krajniw in his application ought be dismissed, however, I adjourned the proceedings to enable time for the council to look into three matters referred to in my reasons.

As I recorded in those earlier reasons, section 89 of the Nature Conservation Act creates offences for taking a protected plant that lives in the wild.  Ultimately, the council conceded, quite properly, that its proposal would involve the taking of protected plants, at least by taking least concern vegetation.  Further, it was not possible, on the material then before the Court, to determine whether vegetation of a higher category was also to be taken.

The relevance of those categories is that the exemptions provided for in relation to the taking of protected plants would permit the taking of least concern vegetation on private land by the land-holder, but otherwise the Chief Executive's approval would be required.  The council is the land-holder of much of the land that is subject to this stage of the bikeway/walkway, but Lot 6 is not private land. Accordingly an approval was required in respect of that lot.

The affidavit of Mr Lee demonstrates that the council has now subsequently obtained an approval in respect of Lot 6.  The exemption for taking least concern plants on private land would apply to the clearing on other land, the subject of the proposal, so long as that vegetation falls within the least concern category, rather than any other category.  The affidavit of Mr Lee also establishes that none of the species proposed to be taken fall within any higher category. Accordingly those two matters have been attended to.

The third matter, referred to in my previous, reasons involves the Nature Conservation Wildlife Management Regulation 2006 and, in particular, section 332 which creates an offence where a person, without reasonable excuse, tampers with an animal breeding place that has been used by a protected animal to incubate or rear the animal's offspring.

Mr Lee, who is an environmental officer in environment management within the council, has since inspected all the trees which are proposed for removal and has reached the conclusion that the proposed works would not involve tampering with any animal breeding place that has been used by protected animals to incubate or rear the animal's offspring.  I accept his evidence. Accordingly that matter has also been satisfied.

Accordingly, the outstanding matters now having been satisfied by the council. I dismiss the remainder of Mr Krajniw's application.

I will direct that if the first respondent wishes to apply for costs that it file and serve an application dealing with any supporting affidavit material on or before the 25th of June, and in the absence of any such application there will be no order as to costs.