Krajniw v. Brisbane City Council

[2008] QPEC 28

[2008] QPEC 28

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E APPEAL No 1190 of 2008

TONY KRAJNIW	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
DEPARTMENT OF INFRASTRUCTURE AND PLANNING	Co-Respondent
and
DEPARTMENT OF NATURAL RESOURCES	Co-Respondent
and
ENVIRONMENTAL PROTECTION AGENCY	Co-Respondent

P&E APPEAL No 1191 of 2008

TONY KRAJNIW	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
DEPARTMENT OF INFRASTRUCTURE AND PLANNING	Co-Respondent
and
DEPARTMENT OF NATURAL RESOURCES	Co-Respondent
and
ENVIRONMENTAL PROTECTION AGENCY	Co-Respondent

BRISBANE

..DATE 28/05/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.3.24 - interim enforcement order against Council refused - applicant contended bikeway construction in Minnippi Parklands unlawful - Council undertook to do no further clearing - works on current stage substantially finished - completion was the best way of rendering the location safe - Council in a position to rehabilitate area if required - interim relief withheld - directions to advance proceedings made

HIS HONOUR:  The Court has made orders in terms of initialled drafts in both of these applications.  They both relate to work the Council has done by way of constructing a concrete bikeway and associated 5-metre security corridor along one side of it in the Minnippi Parklands, I think on the east side of Bulimba Creek – is that where it is?

The applicant seeks an interim injunction in one of the applications which can be understood as getting interim enforcement orders under Section 4.3.24 of the Integrated Planning Act 1997. In the other application, declaratory relief is sought to establish that the Brisbane City Council needed a development permit of some kind to undertake the operational works involved in clearing of vegetation, excavation to the extent that it’s necessary to permit allowing of the 3 metre wide bikeway and the construction of that facility.

The work is essentially complete.  The applicant meets submissions that he has come too late by protesting that he’s been given the 'run around' - not his expression - by various Departments within the Council.  I’m in no position to comment about that. 

The Council has produced an affidavit this morning by
Ms Johnston which indicates the work that’s being done is 80 or 90 per cent complete in the 720 metres or thereabouts of bikeway to be constructed, which is of present relevance.  This section is part of a larger proposal for further bikeways.  According to Mr Job, for the Council, nothing will happen in respect of the next stage, which causes the applicant as much concern as the one whose progress is illustrated in his photographs in Exhibit 1 before July next year.

Ms Johnston’s affidavit indicates that within the Council deliberation and inquiry occurred as to whether the Council ought to apply to itself or to anyone else for authority, the conclusion being reached that that was unnecessary.  The land in question  is owned by the Council in fee simple, it’s designated park, it may well be that ultimately it’s determined that the works in question could be implemented by the Council in the way that has happened.  One of the exhibits to Ms Johnston’s affidavit indicates that authority was, indeed, sought for one aspect of the work from the Department of Natural Resources and Water, which is the second
co-respondent in each of the applications and the only one not to appear today, although the Court has information from Ms Pavey, representing the third co-respondent, to indicate that it’s aware of today’s hearing, but it's probably not aware of the affidavit material recently filed by the applicant.

The DNR letter which I mentioned is dated the 23rd of October 2007.  It indicates the Department’s view that the bikeway project was exempt from requiring a permit to clear.  There's also, in paragraph 2, an assertion that "no trees would be removed" which attracted the attention of Mr Krajniw’s helper who is able to point to an indication in one of the plans of one tree marked for removal. 

The Court’s in no position today, nor I would think are the parties, to deal with what might be complicated issues regarding whether the work that the Council has done was impact-assessable.  The applicant makes the assertion that it is, without citing chapter and verse, indeed, anything beyond general references to the IPA.   

From the applicant’s point of view, the conclusion he argues for is obvious given what he says is valuable vegetation on the site which has already been damaged and faces further damage by reason of lopping of branches, et cetera, to keep the bikeway safe for users as well as areas alongside.  Further, he refers to wildlife for which the vegetation in the parklands is important habitat wildlife, including the squirrel glider, whose presence there he is, it seems, able to establish by photographic evidence.   From the other point of view, the construction of bikeways is seen generally as a public good and in the designated parklands may seem such an unexceptional kind of development that it might be odd if great formality, by way of public notification and the like, were required before the Council could proceed.  The project appears to be depicted in the Cannon Hill District Local Plan, according to Brisbane City Plan volume 1, chapter 4, page 31. 

After some difficulty the Court has been able to settle on directions to secure a hearing in the August sittings for a couple of days.  The delay - to the extent there is any – is attributable to the applicant’s involvement in an 8 day hearing in this Court relating to another part of the parklands which is to commence on the 23rd of June. 

The other aspect requiring the Court’s attention today is the granting of interim relief.  It’s highly problematic whether the applicant could have obtained any given the advanced state of the work. 

He appeared to me to accept himself that the best way of rendering what's there already safe is to complete the concrete strip and make its immediate surrounds, including the security zone, safe.  The Court, in the end, doesn’t have to get involved in issues as to where on the balance of convenience one would place assertions in the affidavit that within the Council cessation of works at this stage - Mr Krajniw suggests that they could be completed by the end of the week - would result in one corporatised or
semi-corporatised arm of the Council having to pay a penalty to another. 

It’s easy enough to accept that it would be efficient to complete the work while it’s underway.  Mr Job offers an undertaking on the Council’s behalf that it won’t carry out clearing in relation to bikeway provision.  I’ve explained to the applicant that that gives him as much protection as he could hope for in an interim enforcement order.  He’s not in any position to give a worthwhile undertaking as to damages, as he’s told me. His application includes the seeking of an order that the Council reinstate the areas where works have been done; that provides the Court with some comfort in its approach of allowing the works to be completed by the Council. 

It would be unusually well-placed to remove works and rehabilitate the terrain.  I read into the record for the convenience of everybody the order that I’ve made in application 1190 of 2008.  The order in the other is identical, except that in paragraph 1 it refers to originating application 1190 of 2008.

The Court is satisfied that there has been compliance by the applicant relating to the giving of notice of the originating application. 

Upon the respondent undertaken by its counsel not to carry out any clearing in Minnippi Parklands in association with the provision of bikeways until determination of the application or earlier order, it is ordered that:

(1) the application and originating application 1191 of 2008 be heard together and evidence if one be treated as evidence in the other;

(2) the respondents deliver any requests of – that should be the respondent and co-respondents, I suppose – or all they all respondents?

...

HIS HONOUR:  So at paragraph 2, we’ll say the respondent and co-respondents named above - I'm dodging responsibility if they should be respondents - deliver any request for particulars of the grounds relied upon by the applicant on or before 4th June 2008;

(3) The applicant provide any further and better particulars requested in accordance with this order on or before 18 June 2008. 

4) The parties give disclosure by a list of documents on or before 3 July 2008. 

(5) The parties produce for inspection such documents as may be requested on or before 4 July 2008.

6) The applicant deliver any affidavit material upon which he intends to rely at the hearing of this application on or before 10 July 2008. 

(7) The respondents provide any affidavit material upon which they intend to rely at the hearing of this application within 2 weeks of receiving the applicant’s affidavit material; 

(8) The parties exchange written outlines of submissions 2 business days before the allocated date for hearing of the originating application;

(9) The application be set down for hearing at Brisbane 2 days in August sitting of the Court;

(10) The application be adjourned to 11 July 2008 for further mention;

(11) The application be listed for hearing dates to be fixed at the call over on 14 July 2008:

(12) Extend until tomorrow the time for the third
co-respondent to file an entry of appearance;

(13) Excuse the third co-respondent from further participation in the appeal;

(14) Liberty to apply (including to the third co-respondent to become an active party, depending on the particulars supplied under order 3 above). 

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