Krajniw v Brisbane City Council

[2010] QPEC 12

[2010] QPEC 12

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3411 of 2007

TONY KRAJNIW	Appellant
and
BRISBANE CITY COUNCIL & ORS	Respondents

BRISBANE

..DATE 03/02/2010

ORDER

CATCHWORDS

Appeal against preliminary approvals dismissed (adjourned for a final order incorporating conditions) - Court of Appeal dismissed application for leave to appeal - Council's conditions in its decision notice to be changed by agreement of parties (including in other submitter appeals) but not of the appellant - appellant sought wide ranging disclosure - held limited to new documents bearing on such of the changed conditions as he indicates opposition to (in accordance with a court direction) - disclosure issues otherwise were concluded in the appeal and application for leave.

HIS HONOUR:  There has been referred to the court today an application by Mr Krajniw, the appellant, for an order for disclosure in aid of a review listed before Judge Rackemann on the 12th of February 2010. 

...

HIS HONOUR:  One would have thought the appeal was over.  It concerns a large development based on a golf course which the Council has been keen to see near Bulimba Creek for years, the price of which is going to be substantial residential and other development proposed by the private developer which was a successful tenderer.

Mr Krajniw has been pursuing in a single-minded and determined way opposition to this proposal, he says in the interests of thousands of local people who want to have an area largely in its natural state preserved for their enjoyment and their children's.  His concerns are many and various.  They concern flooding to residences.  They focus heavily on protection of wildlife habitat and movement corridors. 

Judge Wilson heard the appeal in which more than 20 expert witnesses were called by the Council and co-respondent developer.  None were called by Mr Krajniw, but there's nothing wrong about that.  It's open to a lay appellant to challenge expert evidence by telling cross-examination or perhaps even by lay evidence. 

Mr Krajniw was unsuccessful in his attempts in that regard and Judge Wilson on the 6th of August 2008 published reasons indicating that the appeal was dismissed.  The Associate's file endorsement shows an endorsement "appeal dismissed reasons published to parties" on that date when persons were in attendance including Mr Krajniw and the solicitors for the Council and the co-respondent.

There seems to be no order taken out and sealed by the Registrar indicating that the appeal is dismissed.  Exactly what has happened is perhaps obscure.  The Court of Appeal was willing to entertain an application for leave to appeal on the basis that the appeal to this Court had been dismissed.

...

HIS HONOUR:  Judge Wilson's reasons conclude by stating "the matter will be adjourned to a date convenient to the parties for a final order incorporating conditions".  The reason why the appeal was left alive appears to be that in a couple of similar appeals which might have been heard with Mr Krajniw’s compromises were reached requiring a change to the proposal the subject of the preliminary approvals appealed against.  In particular, those provided a buffer to provide separation of the envisaged development from existing residential development. 

I understand that in respect of drainage and such matters the developer and the Council came to the view that the conditions set out in great detail in the Council's decision notice of October 2007 might advantageously be changed.  I infer that the reason why Judge Wilson appears to have left the appeal standing was so that there could be a single set of conditions agreed upon and/or ordered in the resolution of all three appeals.  While any of them remains on foot the decision notice can't be taken advantage of.  I would think that, subject to the effect of any order, once all appeals are finally disposed of the decision notice will spring back into life. 

The matter has been reviewed on various occasions in court.  On the 27th of November 2009 Judge Rackemann ordered Mr Krajniw to indicate by the 22nd of January 2010 what conditions he opposed.  Mr Krajniw hasn't done that, despite having access to what might be called the current “agreed” draft order.  He says he can't do it until he gets the extensive further disclosure described in a lengthy written submission he has provided to the court.  That document complains of various matters such as contempt of court for contravention of orders by other parties and the like.  Mr Krajniw’s complaints today extend to the Environmental Protection Agency allegedly confiscating all his notes made in inspecting documents on the ground that he had ignored an instruction to look only at documents that were “flagged”.  My understanding is that my remit today is limited to matters to do with disclosure which Mr Krajniw seeks to have extended to matters under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 et cetera. 

In my view, the disclosure aspect up to the 24th of June 2008 was concluded by the ruling Judge Wilson made which is referred to in his reasons published at [2008] QPEC48. Complaint was made in an application for leave to appeal about many aspects including what Judge Wilson did in regard to disclosure. The Court of Appeal in their reasons, published at [2009] QCA 76, among other aspects referred to that of disclosure.

In my opinion the proceeding was such that back in 2008 the disclosure now sought, if pertinent, was appropriate in light of the issues in the appeal.  The decisions of Judge Wilson and the Court of Appeal in my view conclusively establish that that disclosure did not need to be extended, and, indeed the way in which the isses in the appeal were resolved.  If there's to be any further disclosure it can only be pursuant to the continuing duty to make disclosure and relate to documents coming into existence or available after 24th of June 2008 when Judge Wilson made his ruling. 

Further, I think every consideration points to the disclosure that might now be appropriate being limited to the changes in the conditions originally promulgated by the Council.  Those are extremely limited.  The conditions are in many parts and number in excess of 160.  The only really significant changes appear to relate to erosion and landscaping. 

Mr Krajniw has failed to identify the objections that he has to the conditions in which exercise, in my view, he's restricted to the changes.  Any complaints he has about the conditions which remain the same ought in principle to have been dealt with in his appeal.  He complains that he wasn't given adequate opportunity in the appeal to ventilate concerns.

But the situation in my view is one in which it is not open to me to accept complaints along those lines.  I'm certainly not expressing any view that there might be anything in them - at each point when Mr Krajniw has complained that his Honour has overlooked something, Mr Williamson has been able, by referring to the reasons, to demonstrate that that is not the case. 

In my opinion, Mr Krajniw is seeking, impermissibly a “second bite at the cherry” by re-examination of issues decided against him in this court and the Court of Appeal.  What I will do today is declare that no disclosure is now required except for documents coming into existence after the 24th of June 2008 in respect of such of the changes to conditions in the Council decision notice of October 2007, highlighted in the enclosure to Exhibit 1, the Council's letter to the appellant of 6 January 2009, as the appellant has in writing notified his opposition to (as he has been required to be by the 22nd of January 2010 by order of Judge Rackemann on the 27th of November 2009) by the extended date of 5th of February 2010. 

I'll grant leave to the respondent Council and to the co-respondent Developer to file affidavits deposing that there are no such documents.  I am totally unpersuaded by Mr Krajniw's assertions that he's unable, without further disclosure, to identify the conditions he wishes to challenge on the 12th of February 2010 when the matter's next set down. 

In principle the first thing that has to happen is identification of the issues and only then might disclosure become appropriate.  I have been assured by Mr Williamson and Mr Trotter, representing the developer and Council respectively, that there are no documents, in any event, which is the reason for the provision for leave to file affidavits in the order. 
...

-----