Scenic Rim Regional Council v Gillion Pty Ltd

[2014] QPEC 6

[2014] QPEC 6

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No 2608 of 2009

SCENIC RIM REGIONAL COUNCIL  Applicant

and

GILLION PTY LTD  Respondent

BRISBANE

12.51 PM, FRIDAY, 28 FEBRUARY 2014

EX TEMPORE JUDGMENT

HIS HONOUR:  I am concerned with what is essentially an application to allow the company Gillion Proprietary Limited to continue to operate for some nine weeks up until the 7^th of May 2014, despite its appeal to this court being dismissed in May 2013 and its appeal to the Court of Appeal being dismissed on 21 February 2014.  Very briefly, Gillion owns land on which it conducts the business of extracting ground water, bottling that water and then transporting it to various customers.  That business has been operating for a number of years.  Subsequently, the council refused an application made by Gillion for a material change of use designed to regularise or make lawful that use on the land.  The council refused the application and, as I’ve said, Gillion then unsuccessfully appealed to this court and then the Court of Appeal.  Based on the affidavit of a Ms Gill, a director of Gillion, the company is now seeking an extension of its use of the land up until 7 May 2014. 

A draft order was tendered on behalf of the company which, in effect, sought orders to that effect, subject to a number of conditions.  The respondent, Scenic Rim Regional Council, and the second respondent, the Chief Executive Department of Transport and Main Roads, were agreeable to the conditional extension of time, subject to it being made clear that no more extensions would be entertained.  Mr Williamson, counsel for Gillion, put on the record that there was no intention to seek any further extensions of time.  There were numerous residents named as co-respondents in the substantive appeal opposing Gillion’s application, which was determined by Judge Robertson.  The only opponent to the relief now being sought by Gillion is that of one co-respondent who, as I understand it, lives nearby to the land on which Gillion conducts its business.  On behalf of that first co-respondent, an alternate draft order was tendered which included a further draft condition, condition number eight, and sought to limit the extension of time to 4 April 2014.  It was said that any extension was conditional upon the inclusion of that condition.

Gillion did not agree to the proposed condition and, in any event, I ruled, for reasons given during argument, that I was not inclined to impose a condition of that type. Accordingly, the primary position of the first co-respondent was that I should dismiss the application which would, in effect, require Gillion to cease all operations as of today. The first co-respondent’s fallback position was that time be extended but only to 4 April 2014. No evidence was tendered on behalf of the first co-respondent to establish any particular prejudice if Gillion was allowed to operate through until 7 May 2014, however, given the various reasons for the dismissing of the substantive appeal heard in this court and reported in (2013) QPEC 15, it would not be unreasonable to proceed on the basis that the first co-respondent would be subjected to ongoing negative impacts on amenity for any period of extension, albeit even if intangible and unspecified impacts.

As I said, Gillion relies on the affidavit of Ms Gill to support its case.  Parts of her affidavit were successfully objected to and therefore I have to consider her evidence on that basis.  However, apart from those technical objections to her evidence, it was otherwise unchallenged.  The relevant matters relied on by Ms Gill to justify the

extension of time are not really concerned with how long it would take to decommission the plant and equipment on the site but was more concerned with matters such as the impact on employees, customers and third parties involved in providing various services to the company, including a number of transport contractors.  In previous proceedings, Ms Gill, relying on essentially the same matters, contended that a period of six weeks would be required, rather than the nine weeks now contended for.  I refer here to exhibit 2.  Reference was also made to a statement made by counsel for Gillion on a previous occasion which, at first blush, might suggest that Gillion would be able to cease its operations immediately.  I reject that submission.  In context, that concession seems to be one which simply recognises the hard truth of the potential impact of the decisions of the courts.  It was not, in my view, a statement concerning the time that would be needed for a timely winding down of the company. 

There seems little doubt that an immediate closure of the business of the company would result in it going into voluntary liquidation.  On the material before me, that consequence might well arise even after the extension of time if Gillion is not able to locate an alternate supply of water and an alternate site from which to operate.  The closure of the business has the potential to materially, if not drastically, impact on the future of 37 employees, six distributors, up to 1000 customers and, as I have said, a number of various contractors and suppliers of goods and services.  That is to be contrasted with the unspecified, intangible impacts on amenity suffered by one resident for a relatively short period of time. 

I must say, the first co-respondent’s primary position is one that, to me, not only lacks common sense and compassion but also smacks of a degree of personal hostility.  The primary thrust of the first co-respondent is that Gillion ought to be granted little, if any, time in which to wind down its business because it has been on notice of that possible consequence for months, if not years.  That is true but it was not until the decision of the Court of Appeal on 21 February 2014 that the company knew that its run was finally over.  Until then, it was entitled, pursuant to various orders made by this court, to continue its operations, subject only to the various conditions imposed by the court.  That is, the company was under no obligation to begin winding down its operations.  That said, there is some merit, in my view, for the submission made by Mr Laidely, counsel for the first co-respondent, to the effect that, at the very least, Gillion ought to have been considering its operations, including alternate water sources and operational siting from at least the time the Scenic Rim Regional Council refused its application for a material change of use.  That notice was received by the company on 28 October 2011.  And certainly by the time of the decision of Judge Robertson in May of 2013, those investigations should have been intensified. 

Balancing the competing considerations, the ramifications flowing from an unnecessarily premature closure of the business outweighs the non-specific and relatively short-term impacts on the first co-respondent.  As I have said, Ms Gills’ original estimate for the winding down of the business was six weeks.  It is now nine weeks.  Both are, of course, estimates but they seem to have been based on materially the same facts, matters and circumstances.  During submissions, I was not

pointed to any evidence to suggest that one estimate was accurate than the other.  And, as I have said already, the company ought to be much more advanced in its exploration of alternatives now than it was in 2011.  In circumstances where what is being sought is permission to continue an unlawful activity which has negative impacts on amenity, I consider it appropriate to adopt the shorter timeframe originally contended for by Ms Gill.  That is, of about six weeks. 

However, I propose to extend that period somewhat to take into account the fact that the Easter holidays also fall within that timeframe.  Accordingly, I will effectively give what will be a two-month extension which will be to the 28^th of April 2014.  Accordingly, the order of the court will be in the terms set out in exhibit 6A, subject only to the change of the date from 7 May 2014 being to 28 April 2014.

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