Wall, Director-General of Environmental Protection Agency v. Douglas Shire Council

[2007] QPEC 15

[2007] QPEC 015

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No P & E APPLICATION 35 of 2007

TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY	Applicant
and
DOUGLAS SHIRE COUNCIL	Respondent

BRISBANE

..DATE 14/02/2007

ORDER
CATCHWORDS: Preliminary determination held appropriate of question whether EPA had a role in assessment of a development application under Integrated Planning Act 1997 Schedule 8 part 1 Table 4, item 5(b)(i).

HIS HONOUR:  From the point of view of citizens and taxpayers,

this is an unfortunate proceeding in which the EPA and the

local government are at loggerheads about the entitlement of

the former to be involved in the assessment of a development

proposal for the construction of public toilet facilities of

modest scale at the Daintree River.

The council has been encouraged and financially assisted to do

the work, the building presently being partly constructed by

the Wet Tropics Management Authority which I take to be

another emanation of the State Government.

The EPA's originating application seeks a determination that

"Operational work being interfering with quarry materials on

state coastal land above the highwater mark...is assessable

development under schedule 8", referring to schedule

8 part 1 table 4, item 5(b)(i) of the Integrated Planning Act

1997.

The council has to issue itself the relevant development

approval, cutting out the EPA.  It seeks today an order that

there be determination of preliminary points of law proposed

to occur on half a day in next month's sittings.  The EPA

through Mr Houston submits that there is not or may not be

simply a question of law involved that some detailed factual

understanding of the circumstances and implications of the

proposed work may be necessary.

There is a call from the EPA which has engaged a well-known

hydraulics expert for disclosure of significant amounts of

documentation for use by him and perhaps other purposes.  The

EPA suggests a one day hearing in April is achievable for its

application .  I would be doubtful, particularly if the

council engages its own expert, that the matter could be so

confined.

I have experience myself of it becoming necessary where

similar questions arise under schedule 8 for some factual

query to be embarked upon.  Speaking generally, it seems to me

to be a highly undesirable situation when the provisions of

schedule 8 and the like are incapable of clear application to

particular proposed developments.

My view is that there is a sufficient prospect of the

originating application being resolved against the EPA if the

preliminary issues formulated by Mr Everson are decided

against it to justify the Court's proceeding as he submits it

should, notwithstanding the lack of certainty that it will

resolve the whole originating application.

An early hearing date can be expected and if there is a final

resolution of the application achieved it will obviate the

delay, effort and cost implicit in Mr Houston's suggestions in

the alternative draft orders submitted by him.

The order will be in terms of the draft submitted by

Mr Everson which I'll initial.  It calls for the matter to be

adjourned to the callover next week.

-----