Perpetual Trustee Company Ltd v Chief Executive, Department of Environment and Heritage Protection

[2014] QPEC 26

[2014] QPEC 26

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No 1809 of 2014

PERPETUAL TRUSTEE COMPANY LIMITED       Applicant

and

CHIEF EXECUTIVE, DEPARTMENT OF
ENVIRONMENT AND HERITAGE PROTECTION  Respondent

BRISBANE

16 MAY 2014

EX TEMPORE JUDGMENT

HIS HONOUR: In this matter, I am required to deal with a stay application brought under the Environmental Protection Act 1994. The applicant seeks to, in effect, stay the effect and ramifications of a notice of decision to consider an act upon a site investigation report, in which it was relevantly decided by the respondent that the subject land should be entered in the a Land Contamination Register and that action be required to be taken. The concern is one, as I understand it, primarily surrounding a risk to contamination of the aquifer beneath the subject land and also extending beyond the boundaries of the subject land. There is no suggestion that the respondent’s concerns are in any way frivolous or based on anything other than a genuine concern.

Subsequent to the decision, the applicant notified the respondent that it intended to seek a review of the decision and subsequent to that, a document setting out the details of the review were forwarded to the respondent.  Notwithstanding that, the land was entered onto the register.  It is not in dispute that entering the land on the register, in effect, puts that information into the public domain.  I do not intend to go into it in detail, but the affidavit of Paul Gedoun, a director of a company interested in purchasing and developing the subject land, identified a number of potential negative ramifications associated with entering the land on the register.  It seems to me that many if not most of those issues will have to be dealt with in any event if it turns out that the notice was a properly issued one. However, it was submitted that the applicant should not be exposed to those risks prematurely.  That is, before the validity of the notice has been tested. 

It is not in dispute that the relevant tests in an application such as this is, first, that it is no longer necessary for the applicant to have to show special or exceptional circumstances.  It is also not necessary to go into a great analysis of the prospects of succeeding on the review.  Suffice it to say, that on the material I have been taken to, it seems to me that at the very least, the applicant does have an arguable case.  Whether or not it finally succeeds, of course, is a matter for another day.

The real issue here was the potential prejudice to the respective parties.  As I have said, the prejudice or the potential prejudice was deposed to in the affidavit of Mr Gedoun.  Mr Brown, for the respondent indicated, quite rightly, that it was important that the contaminated land be notified to the public and that his client Department be able to act to remedy such contamination – or require to be remedied such contamination in the public interest.  No one in this courtroom doubts that there are important public policy considerations involved.

However, it became tolerably clear to me that in addition to the other matters that I have already raised, a stay is warranted in these circumstances, provided that conditions largely addressing the concerns raised by the respondent were addressed.  Through sensible and helpful discussion with counsel at the bar table, those conditions were able to be identified and they included limiting or preventing development on the land until otherwise ordered by the court or until otherwise resolved, the delivery of certain reports that are identified in the material and the continuation on of a regime which was put in place as far back as 2005, concerning a site management plan over the site. 

On balance, as I have said, provided those conditions are included, I am satisfied that the stay ought be granted.  I have left it to the parties to determine the final form of the orders.  And can I also just include this observation, that neither parties required reasons to be given but I thought it appropriate to at least identify some of the more significant matters that I have taken into account in reaching the decision that I have.  They are not the only ones, but they are the more significant ones.

Now, can I just indicate that to avoid any further costs being incurred, if that is possible, Mr Williamson, if you are able to put together an order incorporating all the matters that we have discussed and you and Mr Brown have discussed in my absence, and if that is forwarded to my associate and providing I am able to be satisfied by the attending paper trail that Mr Brown and/or someone else responsible officer in his department, has accepted that they are the orders that were thrashed out today, then I will initial them, place them on the file without any further need for attendance.     You are content with that?

MR WILLIAMSON:   Perfectly.

HIS HONOUR:   Mr Brown?

MR BROWN:   Thank you, your Honour.

HIS HONOUR:   All right. 

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