State of Queensland v Crowther

[2007] QPEC 107

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	State of Queensland v Crowther [2007] QPEC 107
PARTIES:	STATE OF QUEENSLAND
Applicant V
CLAIRE CROWTHER
Respondent
FILE NO/S:	BD 3123/2007
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING  COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	28 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Paragraph 3 of the Order made by this Court on 27 February 2003 is amended by inserting the following words at the end of that paragraph:
“Unless processes of welding, cutting, machining or grinding of metal are undertaken for the purposes of dismantling and removing the structure known as L Block.”
CATCHWORDS:	ENVIRONMENT PROTECTION – PRACTICE AND PROCEDURE – ORIGINATING APPLICATION –– where reasonable operation by TAFE likely to contravene existing order – whether circumstances exist to warrant its variation
COUNSEL:	G B Wiltshire, Solicitor, for the applicant Respondent in person
SOLICITORS:	Crown Law Respondent self-represented

1. This application is another chapter in long running proceedings involving the respondent and the Yeronga Institute of TAFE. In the original proceedings in 2002 (2377/2002) Ms Crowther established, after a full hearing, that operations at the TAFE involved an environmental nuisance[1] and on 27 February 2003 Robin QC, DCJ made orders in the nature of injunctive relief[2].

   [1]            Crowther v State of Queensland [2002] QPEC 079

   [2] [2003] QPEC 017

2. The Orders referred to particular buildings at the Yeronga TAFE described as C Block, and D Block. Order 2 required that certain steps be taken, within specified periods, to prevent gases, odours and the like escaping from those buildings. Order no 3 provided:

   Order that the respondent ensure that after January 2005, in respect of any processes of welding, cutting, machining or grinding of metal conducted at the Yeronga Institute of TAFE, any outlet for odour emission be located further than 100 metres from Park Road, Yeronga.

3. Evidence filed on behalf of the State in the present application[3] asserts that a structure located within 100 metres of Park Road, known as L Block, has in the past been used for the training of plumbing students, and that is still the case. The evidence of Mr Jim Douglass goes on to assert that the TAFE is intending to cease using the building for plumbing training during the first semester in 2008 and, then, to dismantle and remove it. Mr Douglass says the building is a steel frame structure comprised of units which are welded or bolted together, with timber flooring supported by steel joists welded or bolted to the frame. Dismantling and removing it, he says, will include work involving cutting, machining, grinding and welding of metal, and melting metal to change the composition of steel which comprises the structure.

   [3]            Affidavit of Mr Jim Douglass filed 30 October 2007

4. The State says this work has the capacity to contravene Order 3. It seeks an order that additional words be added to it, in the following terms:

   Unless processes of welding, cutting, machining or grinding of metal are undertaken for the purposes of:

(a)	removing structures within 100 metres from Park Road, Yeronga; or
(b)	adapting buildings in 100 metres from Park Road, Yeronga, or uses which do not ordinarily involve the processes of welding, cutting, machining or grinding of metal.

1. The original Order gave all parties liberty to apply. It is not clear why the State has chosen to bring this application in new, separate proceedings; the ‘liberty to apply’ provision has been used on a number of previous occasions. Nothing material turns, it seems to me, upon that. To understand the contest in this application it may, however, usefully be placed in the particular historical context of ongoing, strong disputation between the parties.

2. Ms Crowther sought to appeal Judge Robin’s original Order, but leave was refused: Crowther v Queensland [2003] QCA 260. Order 3 was then the subject of later proceedings before Senior Judge Skoien, in which he was persuaded to allow the State an additional six months for compliance after the time originally stipulated (January 2005). Leave to appeal that decision was refused by the Court of Appeal on 4 March 2005[4]: The High Court refused special leave[5].

   [4] [2005] QPELR 520

   [5] [2005] HCA Trans 414 (16 June 2005)

3. Later in 2005 Ms Crowther bought further proceedings seeking orders, in effect, that remaining structures adjacent to Park Road be removed, supported by evidence of what were alleged to be ongoing breaches of the earlier order. Robin QC, DCJ dismissed that application[6].

   [6] [2005] QPEC 068

4. In 2006 Ms Crowther bought proceedings against the Crown for contempt. Relief was refused. An appeal failed, again, for want of leave: (2007) 1 Qd R 232.

5. Ms Crowther has filed a lengthy affidavit in opposition to the State’s new application. Her grounds of resistance may be summarised as:

- the absence of any necessity for an order of the kind sought;

- want of specificity about the dates on which the work for removing L Block
would be performed;

- a denial that it is necessary to melt metal to dismantle L Block;

- an alleged increase in the risk of “fugitive culprit odours” from other buildings
within 100 metres of Park Road if the order is made;

- alleged ongoing breaches involving C & D Blocks; and,

- the need, in light of the applicant’s inability to enforce previous orders by contempt proceedings against the State, for any future order to nominate a person who would be amenable to orders seeking relief of that kind – and against whom, of course, they might be enforced.

1. There is no evidence contradicting the clear implication from Mr Douglass’ affidavit that the work is an appropriate element of the ordinary ongoing operations of the College. The submission that some time limits should be placed upon the performance of the work is advanced in reliance upon UCPR r 665. What is sought is not, however, an order which requires a person to perform an act but, rather, one which is permissory. I do not think the imposition of time limits for the work involved in removing L Block is, otherwise, necessary; there is no persuasive reason why the work of removing that structure must be performed within a stipulated period.

2. There is, again, nothing to contradict Mr Douglass’ assertion that the demolition might involve activity which technically breaches the 2003 Order. There is no evidence showing ongoing breaches involving other buildings, or the risk of that – or, any increased risk if L Block is demolished. Nor is there evidence which shows the risks of misconduct are so vivid that, as a condition of any order, the applicant should be obliged to nominate a person who might be amenable to orders involving remedies associated with contempt proceedings.

3. The original Order 3 made in 2003 might, the evidence shows, be the subject of breaches if work of the kind described by Mr Douglass is carried out during the dismantling of L Block. That is not otherwise, however, a purpose which was germane to the proceedings before Robin QC, DCJ or a matter he intended to limit in the orders he made. As his Honour said on 27 February 2003[7]:

   The orders I have foreshadowed involve restricting foundry and welding activities by the device of restricting emissions to outlets more than 100 metres from Park Road…(emphasis added)

   [7] [2003] QPEC 017, at pp 9-10

4. In short, then, an incidental but reasonable and unsurprising operation the TAFE wishes to undertake may give rise to a breach of an existing but, essentially, unrelated Order in circumstances where that ought to be excused.

5. For these reasons, I am prepared to make an Order excusing the particular processes insofar as they involve the dismantling of L Block. The order should be limited to that exercise. Mr Douglass’ affidavit refers only to dismantling L Block. I am not persuaded that the relief sought by the State in paragraph (b) (concerning the adaption of other buildings within 100 metres from Park Road) is warranted, or appropriate.