Kranjniw v Brisbane City Council & Ors
[2009] QCA 127
•19 June 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Krajniw v Brisbane CC & Ors [2009] QCA 127
PARTIES:
TONY KRAJNIW
(applicant/applicant)
v
BRISBANE CITY COUNCIL
(first respondent/first respondent)
ENVIRONMENTAL PROTECTION AGENCY
(second respondent/second respondent)
DEPARTMENT OF NATURAL RESOURCES AND WATER
(third respondent/third respondent)
DEPARTMENT OF INFRASTRUCTURE AND PLANNING
(fourth respondent/fourth respondent)FILE NO/S:
Appeal No 12927 of 2008
DC No 1190 of 2008
DC No 1191 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Integrated Planning Act
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED EX TEMPORE ON:
19 May 2009DELIVERED AT:
Brisbane
HEARING DATE:
19 May 2009
JUDGES:
Holmes JA, McMurdo and Applegarth JJ,
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Application for leave to appeal dismissed;
2. Paragraphs 14, 15 and 16 of the applicant’s outline of argument filed 27 January 2009, paragraphs 23, 24 and 25 of the outline of submissions filed 15 May 2009, and paragraphs 11, 12 and 13 of the notice of appeal struck out and removed from the Court file;
3. Applicant pay the costs of the first and second respondents.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where applicant sought leave to appeal against decision of Planning and Environment Court dismissing his applications for declarations that first respondent was carrying out works without development approval and injunctions to stop the work – where s 4.1.56 of the Integrated Planning Act 1997 (Qld) limits grounds of appeal to “error or mistake in law”, lack of jurisdiction or excess of jurisdiction – whether applicant identified an error of law or lack or excess of jurisdiction
Integrated Planning Act 1997 (Qld), s 4.1.56
COUNSEL:
The applicant appeared on his own behalf
M D Hinson SC for the first respondent
M T Labone for the second respondent
P Pavey (sol) for the third and fourth respondentsSOLICITORS:
The applicant appeared on his own behalf
Brisbane City Legal Practice for the first respondent
Department of Environment and Resource Management for the second respondent
Crown Law for the third and fourth respondents
HOLMES JA: At the end of March 2008, the first respondent began construction of a bikeway through an area of parkland in Tingalpa, in the course of which two native trees were removed. When the work was largely completed the applicant applied to the Planning and Environment Court for declarations to the effect that it was being carried out without the necessary development approval, and injunctions to halt the development and restore the area. Those applications were dismissed by the Planning and Environment Court and the applicant now seeks leave to appeal against that decision. That leave is required under section 4.1.56 of the Integrated Planning Act 1997 (Qld) which also limits the grounds of an appeal to error of law and lack or excess of jurisdiction.
The applicant's case at first instance was that the development constituted by the bikeway required approval because it was declared assessable under the planning scheme as a material change of use and also fell within a number of forms of assessable development itemised under schedule 8 of the Integrated Planning Act. But the learned judge concluded that the development was not assessable and did not require a development permit. It was not declared as assessable under the planning scheme; instead, section 2.3 of chapter 3 of the City Plan identified it as exempt development. It was a development involving the construction of a road (which the bikeway was by virtue of relevant definitions) by the Brisbane City Council.
The applicant had contended that the development was assessable as falling within three possible parts of item 5 of table 4, part 1, schedule 8 of the Integrated Planning Act. It was operational work carried out within a coastal management district which answered either the description of interfering with quarry material on State coastal land above high water mark, or that of constructing or installing works in a water course; alternatively, it was operational work carried out in an urban development area.
The judge did not accept any of those contentions. As a matter of fact the land was not a declared urban development area as that expression is defined. The applicant had failed on the evidence to establish that the works were constructed or installed in a water course; and as freehold land, the land was not "State coastal land" as defined in the relevant legislation.
A further argument, that the work fell within item 1A of table 4, part 1, schedule 8 as operational work that was clearing native vegetation on freehold land, failed because the exceptions to that item included clearing "for urban purposes in an urban area" of a "remnant of concern regional ecosystem". The learned judge found as a fact that the area was an urban area: it was identified on planning scheme maps as for urban purposes, having regard to its depiction as within the parkland area, with the expressed intent that it be used as a regional park to serve the surrounding urban community for recreational purposes, with bikeway networks linking to external features and communities. The clearing, such as it was, was correspondingly for urban purposes.
The applicant's proposed notice of appeal contained some 55 grounds, starting in number at ground 5. Grounds 5 to 9 assert breaches of the rules of natural justice by the learned primary judge in failing to: give the applicant a fair hearing, assist him in presenting his case, explain the proceedings, properly consider his material and properly identify his submissions.
The applicant did not point to any examples in the transcript of such failures. An examination of the transcript shows that the learned judge treated the applicant with courtesy, fairness and commendable patience, doing his best against considerable odds to clarify the issues for the applicant and to establish what it was that the applicant sought to contend. (See in particular the transcript in the appeal record 8 to 11, 326 to 3998.) Those grounds are patently without substance.
Grounds 10 to 13 make a number of serious and unsupported allegations of professional misconduct and indeed criminal conduct on the part of the legal representatives of the first and second respondent. One allegation was that threats were made by one of the representatives before the hearing; it was not raised before the primary Judge and is not the subject of particularisation or affidavit material from the applicant.
The remaining allegations seem in large part to turn around a claim that the representatives were in possession of some undisclosed maps - an essential habitat map and a regional ecosystem map - on the strength of which the applicant asserts they should have advised the Court that the development was assessable.
There is no evidence whatsoever that anything was withheld by any of the legal representatives. Indeed here the applicant seems to accept that both of those maps were before the Court but he has not modified his allegations in consequence. The essential habitat map was tendered at first instance by the applicant, who said then that it had been provided to him by the solicitor for the first respondent. The regional ecosystem map was already before the Court, annexed to the affidavit of an expert witness in order to establish that the area was properly described as a "remnant of concern regional ecosystem".
As to any other possible relevance of the maps, in grounds 14 to 18 the applicant seeks to rely on them identifying that the development was in a category 1 or, alternatively, a category 2 area under the Vegetation Management Act 1999 (Qld) to argue that the development was assessable. But neither of the maps was a "property map of assessable vegetation" upon which such categories are shown under the Vegetation Management Act and which is the only form of map mentioned in table 4, part 1, schedule 8. They appear to have no relevance to whether the work falls within the exception of clearing "for urban purposes in an urban area" found by the learned primary judge.
Those grounds are baseless, as are those which rely on alleged misconduct by the respondents' legal representatives. Counsel for the first respondent is correct in his contention that the making of those allegations is an abuse of process and that the relevant paragraphs of the outlines of argument and notice of appeal should be struck out and removed from the Court file.
At grounds 19 to 21 the applicant asserts that the judge erred in failing to conclude that the development involved a material change of use of premises, but that is beside the point given his Honour's conclusion, not challenged, that the work was an exempt development under the City Plan.
In grounds 22 to 24 the applicant makes arguments about the status of the vegetation as supposedly in a category 1 area, riparian, and in a vegetation corridor (all terms used in the Vegetation Management Act), to reiterate that the work was assessable and did not fall within the exception in item 1A(g) of table 4 of part 1 of schedule 8; again, those arguments have no discernible relevance to the Integrated Planning Act.
Ground 25 accuses the learned judge of erring in his construction of schedule 8 part 1 table 4 item 5(b)(4) by failing to understand that operational works within a coastal management district which were constructing or installing a water course was assessable development. It ignores the learned judge's finding that the applicant had failed as a matter of fact to establish that the works were constructed or installed in a water course.
Other grounds, 26 to 35, turn around provisions of the Vegetation Management Act and the Regional Vegetation Management Code which are irrelevant to his Honour's considerations. Grounds 36 to 41 and ground 53 make complaints about conflict with the Integrated Planning Act which are based on the unestablished premise that the development was assessable, and grounds 42 to 45 similarly assert conflict with the planning scheme which is similarly based on the unestablished premise that the development was assessable. Grounds 46 to 49 concern provisions of the Nature Conservation Act 1992 (Qld), irrelevant to the question of whether the development was assessable. Similarly irrelevant are assertions made in grounds 50 to 52 about alleged contraventions of Commonwealth legislation, policy and treaties. Framed as grounds 55 to 60 are an array of complaints about the work, including one of arson, which are at best irrelevant and at worst libellous in nature.
No error of law or excess of or lack of jurisdiction on the part of the learned primary Judge has been identified. The application for leave to appeal should be dismissed. Paragraphs 14, 15 and 16 of the applicant's outline of argument filed on the 27th of January 2009, paragraphs 23, 24 and 25 of the outline of submissions filed on the 15th of May 2009, and paragraphs 11, 12 and 13 of the notice of appeal should be struck out and removed from the Court file.
McMURDO J: I agree.
APPLEGARTH J: I agree with the reasons of Justice Holmes and with the orders that her Honour proposes.
HOLMES JA: Are there any further orders sought?
MR HINSON: I'd ask for costs, your Honour.
MR LABONE: Yes, costs, please, your Honour.
HOLMES JA: Ms Pavey?
MS PAVEY: No, thank you, your Honour.
HOLMES JA: Mr Krajniw, do you have anything to say in relation to that?
APPLICANT: Your Honour, when I received the letter from Deacons I spent the last eight days sleepless. I've put out very, very clear - went through the Judge's decisions. There are errors of law, definitely errors of law. I've done my best to point out exactly where the errors occurred. Have they no meaning at all?
HOLMES JA: Unfortunately, no, Mr Krajniw. But I'm asking you about the question of costs given that the application is to be dismissed.
APPLICANT: Your Honour, these Court cases have been very tiring for me and everything else. My place was broken into and somebody sympathetic to the development's destroyed all my private papers, my mother's death certificates, my father's death certificates, so I could be here - then you turn around and you don't even look at my evidence. I had a car when I started - I couldn't fix it; it rotted away - so I could be here. And, I come here, you dismiss everything I've put in yesterday. You didn't bother even looking at it. That's - is that justice?
HOLMES JA: Mr Krajniw, that's simply not so; that is just not so. Your submissions were considered properly but there was only one possible conclusion.
Now, I'm asking you about whether there is any reason you shouldn't pay the first and second respondents' costs, and I think you've probably said as much as you can.
APPLICANT: Your Honour, I live in a caravan. It's worth nothing. I have no car, I have a $5,000 debt in a bank. It makes no difference.
HOLMES JA: All right.
APPLICANT: Makes no difference.
HOLMES JA: The application is dismissed. The applicant is to pay the costs of the first and second respondents. Adjourn the Court.
0
0
1