Pacific View Farm (Queensland) Pty v Gold Coast City Council (No 2)

[2011] QPEC 135

[2011] QPEC 135

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 4006 of 2011
                3352 of 2011

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

BRISBANE

..DATE 4/11/2011

ORDER

CATCHWORDS

Environmental Protection Act 1994 s 485

Proceeding regarding enforcement notice - issues on mention date whether Council has effectively undertaken not to further inspect the site, whether after date for compliance, times for compliance should be extended

HIS HONOUR: The principal proceeding now is appeal 4006 of 2011, which complains of a review decision made under section 520(5)(c) of the Environmental Protection Act 1994. 3352 of 2011 was a challenge to the decisions underlying the direction notice, the subject of the review.

The new proceeding came before Judge Searles on the 14th of October, having been filed on the 11th of October.  His Honour declined to order a stay of the decision, the subject of the appeal, being persuaded by Mr Nicolson, who represents the Council, that there was little point in a stay, given that non-compliance with the directions incorporated in the review decision by 5 p.m. on the 7th of October 2011 would already have occurred and with the possible consequence that a prosecutable offence had been committed.

The matter is listed formally this afternoon by special arrangement, rather than coming on in the ordinary mentions list this morning.  It was thought that savings of time might occur given my general familiarity with the factual context derived in 3352 of 2011.

In that proceeding, I was concerned that while the validity of the Council's direction was being examined by the Court, it would be unfortunate if prosecutions were instituted by reference to the direction.  Some amelioration of the appellant's position was available by extending dates for compliance directions.

Accepting that 7th of October 2011 is an effective date (as to which there may be an issue owing to what was said to be a mistaken earlier communication, referring to the 14th of October), Pacific View Farm left it too late to seek an extension of time in this proceeding.

The matter today presents as a conventional review, resulting in directions for the further progress of the appeal.  The contentious issue in that regard relates to the Council's proposal that there be included in the order a requirement for the appellant to grant access to the respondent to enter the relevant premises for the purpose of confirming that certain works which Mr Atkins’ affidavit, sworn on the 14th of October 2011, had deposed to, had occurred on lot 11.

The effect of such works was said to be to deal with some of the Council's concerns.  Mr Fahl, representing the appellant, has made it clear to the Court that it's not contended that any such works occurred on lot 11.  References in the affidavit to “the land” might have given that impression, but it's on lot 10, as I understand it, and certainly not on lot 11, that works have been done that the appellant contends should alleviate the Council's concerns.  In those circumstances, Mr Nicolson didn't press for further inspection. 

I haven't had the opportunity to embark on any examination of the factual background sufficient to enable statements to be made with any confidence about the merits, however, the Council's concerns appear to be genuine.

I assume that the Council is driven to act in this matter by complaints to do with a residential area downstream from the appellant's property.  Water flowing along a watercourse that traverses that property, in my understanding, passes through a dump and then in close proximity to residential areas.

The Council's concern is said to be that clearing on the appellant's property has led to material getting into the watercourse which threatens environmental harm or worse.  The Council's concerns are proper ones. 

Mr Atkins is the principal of the appellant or at least the deponent presenting its point of view.  From the outset in 3352 of 2011, he has expressed concern at the prospect of Council officers, perhaps with consultants, entering the property with a view to inspecting and recording what's going on there; he refers to interference with the rural or husbandry operations occurring on the property and some threat to them from inspections, unless they're closely supervised.

He expresses concern about the expenditure of his and others’ time in accompanying those carrying out inspections and even for the safety of persons carrying out inspections, given unspecified conditions on the property. He has not acceded to a recent request by the Council pursuant to section 485 of the Act to consent to entry.

Instead, this appeal has been commenced.  Taking the viewpoint of those who regard for one's home as one's castle, Mr Atkins is disinclined to face further inspections.  That said, inspections have occurred on numerous occasions for the purposes of this and the earlier proceeding.

Consultants have been involved and they have made suggestions as to what might occur to deal with protection of the water course.  The Council is not pressing on this occasion for a Court order permitting an inspection.  As I recall, I've made an order along those lines in the past and it's accepted that a warrant can be obtained in certain circumstances from a Magistrate authorising entry and perhaps multiple entries.

Mr Fahl expresses concern today at what his client regards as departure by the Council from comfort which it's asserted was given before Judge Searles on the 14th of October, that his client was "not at risk of the Council proceeding to prosecution because of its appreciation that there's an appeal to be determined."  See transcript 1/15 for that day.

...

HIS HONOUR:  His Honour, before the passage quoted, which led to Mr Nicolson, after taking instructions, confirming an understanding that his Honour's suggestion was "so" had referred to the Council not "doing anything towards prosecution until the appeal is determined," and subsequently, on the same page, he had described as "the Council's position, your client's not at risk in it - the Council taking steps towards entering, assessing, prosecuting if they found a ground."

Later still, his Honour said, "The Council has made it clear through Mr Nicolson that it's aware that the appeal is on foot and proceedings to enforce will not be taken.  Steps won't be taken towards that end until the appeal is determined.  Your client's concern that he does continue to be in breach is entirely theoretical in the sense that if you lose the appeal, yes, you were, if you win the appeal, no, you're not.  The time for compliance has passed."

The appellant has taken from such statements that it will not be plagued by further inspections by the Council's officers - it seems to me on analysis that the appellant has focused more on the statements by his Honour that Mr Nicolson didn't specifically agree to than on the one that was.

There's been correspondence between the lawyers.  The Council's lawyer's letter of 27th of October 2011, in my view, makes clear the Council's position, which I think was the one Mr Nicolson committed himself to, that there'll be no proceedings, which I would take to refer to commencement of a prosecution by complaint and summons and not to what might retrospectively turn out to be preliminaries such as evidence gathering.

The letter does confirm that if the Council wishes to enter the land for some purpose outside the scope of these proceedings, it reserves its entitlements to do so.  The circumstances, I think, are ones in which the Council is probably entitled to seek from this or another Court authority to enter.  That's not presently sought.

Mr Fahl's hoping to get from Mr Nicolson today an assurance that inspections or entries wouldn't occur.  As I understand it, he wasn't asking the Court to make any order today that might have the effect of such an assurance. 

In Mr Atkins' view, the Council has already gone too far.  He deposes to an occasion on the 25th of October 2011, not long after 3 p.m., when it's said that the Council officer, Mr Glenn Liscombe, and an unidentified accompanying gentleman were on the property and, indeed, photographed on it.

It's said that, by reference to a surveyor's peg which appears in the photographs, Mr Liscombe and the other gentleman were inside the property, which Mr Fahl says his client doesn’t want Council officers or anyone else stomping all over.  This - the issue of whether or not there was an entry has comical aspects, and is somewhat akin to a photo finish in a horse race.

It may be the case that one or both gentlemen had crossed a line but the photographs appear to me to suggest that they were attempting to gather evidence from outside the property and were acting in the spirit of not entering it, which they would know full well would accord with Mr Atkins' expectations.

I order in terms of the initialled draft that's in 4006 of 11 - and, as indicated in the other matter a next mention date of 25th of November is ordered.

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