Pacific View Farm (Queensland) Pty Ltd v Gold Coast City Council

[2011] QPEC 114

[2011] QPEC 114

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3352 of 2011

PACIFIC VIEW FARM (QUEENSLAND) PTY LTD	Applicant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 01/09/2011

ORDER

CATCHWORDS

Environmental Protection Act 1994 s 522

Application for stay of direction notices pending completion by Council of review by it of decisions to issue the notices - applicant says it is fearful of prosecution for failure to comply with specific directions by fixed times - notice of application inadequate to enable Council to prepare evidence to show its concerns - Council officers denied access to site - Magistrate recently issued warrant(s) for access - hearing adjourned for 6 days - times that would elapse in the meantime extended to the adjournment day

HIS HONOUR:  The orders of the court are:

1.Adjourn the application to 10:00am on 7 September 2011.

2.Pursuant to s 522 of the Environmental Protection Act 1994, extend until 4pm on that day the time for taking of steps fixed in terms of 2 September 2011 by Direction Notices of 12 August 2011 and 25 August 2011 (two in each case) - without prejudice to the respondent’s entitlement to argue that it is too late to challenge the Notices of 12 August 2011.

The applicant brought before the court at very short notice an originating application seeking a stay of direction notices given by the Council pursuant to s 522 of the Environmental Protection Act 1994. The applicant has sought review of the Council under s 521 of the decisions to issue the notices.

Those arise out of the Council's apparent concern that forestry-type operations or associated works threaten contaminants being released into waterways.

The applicant contends that it's following proper practices in what's been described as "operational native forest practice" and has some support from Mr Freebairn who may or may not be an expert with the qualifications the Council's notices demand of a person who's required to certify that what it seeks is being appropriately pursued by the applicant.  There's no information or material from the Council yet and there hasn't been time for that to be prepared.

The Council has not met with the cooperation it hoped for in getting its personnel onto the site for purposes of gathering evidence as to what occurs there. There have been differences about the safety of the Council officers on the sites, their interfering with operations and livestock on the property and the like and differences in respect of time or times of day which might be convenient for purposes of inspections.

The Council has had to resort to obtaining warrants permitting entry from a Magistrate which are effective only for a limited time.  I understand a warrant or warrants was (or were) obtained earlier this week and that advantage has to be taken of them by 9 a.m. next Monday.

The court is - and should be - reluctant to make orders with the Council unable to mount its case and present evidence to the court of the risk to the environment which it apprehends, in particular risk associated with any stay.  It's very difficult to infer that from the material before the court notwithstanding that the notices of the 25th of August 2011 contain helpful aerial photographs with features marked out on them. 

Those later notices appear to have been given in deference to the applicant's contentions that the original ones were defective, perhaps in not indicating clearly enough what was required to be done.  On my cursory examination of those documents, I confess to similar mystification - which doesn't mean that other circumstances might not have alerted the applicant to what this was all about.

The Council has been invited to withdraw the earlier notices and declined to do it. 

Mr Labone, for the applicant, justifies the application for stay on an urgent interim or interlocutory basis on the risk that his client faces of criminal proceedings if in breach of directions to do things by particular times on particular days.

Generally speaking, my view is that having availed itself now of recourse to the court to avoid getting into default by seeking of extensions of time and the like, the applicant has protected itself.  I think it's inconceivable that now that the court's seized of the matter, prosecution could properly ensue in respect of failure to meet time limits which lie in the future.  The case may be different for those already passed but I don't think the applicant risks further trouble from additional time elapsing with the non-compliance continuing.

This is not a case, for all that appears, in which the applicant wants a stay because adverse economic consequences might flow from its having to comply with what the Council wants, which the Act gives a statutory permission to challenge and have tested.

The difference between the parties that emerges in today's short hearing appears to relate to the way to handle earth over which waters may flow more or less forcefully.  Mr Labone contends that what his client proposes amounts to best or usual practice and that's to try to stabilise the ground by planting grass.

I've perhaps inappropriately described the conflict between the parties as whether protection of the environment that needs protection is being entrusted to grass seeds as the wet season is about to get under way as opposed to placing grass there which appears to be what the Council wants.  All these matters can be looked at next Wednesday when the council will have its own expert reports, presumably, after its people have got onto the site.

Mr Nicholson, for the Council, complained that his client not only hadn't had what he says is the appropriate three clear days' notice of the application, which the UCPR would allow, but that it hasn't been served at all. That may be technically correct, an assumption having been made by the applicant that service might be effected on the solicitors instructing Mr Nicholson, who've apparently had earlier involvement in the matter. It wasn't clear what
Mr Nicholson was proposing the Court ought to do about his service points.
As things turn out his client gets the time it's entitled to. Mr Labone is right that the contexts in which s 522 is invoked, as his client has here, may often by ones in which insisting three clear days’ notice is inappropriate. There's no point, in my view, in requiring further service upon the Council.

...

‑‑‑‑‑