Wall v. Hamcor Pty Ltd
[2008] QPEC 15
•25 February 2008
[2008] QPEC 15
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
No 3154 of 2006
| TERRY WALL | Applicant |
| and | |
| HAMCOR PTY LTD and DONALD CHARLES HAYWARD and WILLIAM MARTON HAYWARD and TERRENCE ARTHUR ARMSTRONG | Respondent Respondent Respondent Respondent |
BRISBANE
..DATE 25/02/2008
ORDER
HIS HONOUR: This is an application for an order, pursuant to Rule 668, to vary an order which I made on the 10th of October 2007. That order was, in turn, one which varied an earlier order of Judge Kingham, made on the 31st of January 2007.
The subject matter of the proceedings is a contaminated site which is being remediated. The terms of the orders go to what is required of Hamcor and the other respondents to the initial proceedings ("Hamcor") in furtherance of that remediation.
The application was ultimately persisted with only in respect of three paragraphs of the order, namely paragraphs 11, 14 and 30.
The application has been made on the basis that, subsequent to the order being made on the 10th of October 2007, facts have arisen or have been discovered which would lead the Court to relieve Hamcor from having to comply with the orders, in the terms in which they were made, and to vary orders 11 and 30.
As to paragraph 14 of the order, it required that, by the 30th of November 2007, any stormwater generated from the sealed hard stand areas must be passed through vegetated treatment systems at the front of the land. The material shows that it has subsequently become evident that that is not a requirement which is practical or appropriate any further and the EPA does not oppose the order being varied by the deletion of paragraph 14.
As to the other two paragraphs, the respondents to the initial proceedings, who are the applicants to vary, seek to vary those orders so as to permit a longer timeframe in which they are to be complied with. The orders are as follows:
"11. By 30 November 2007 underground piping and sumps are
to be tested and if found to introduce contamination
above acceptable levels, namely Schedule 1 of the
Environment Protection (Water) Policy 1997, then the
pipework and sumps must be sealed, bypassed or
replaced.
30. By 29 February 2008 the respondents must complete
the investigation report (which must include a
remediation action plan) a draft of which report has
been reviewed by Dr Yin Foong."
In each case it is now sought to have until the 30th of April 2008 to complete the actions required by those orders.
Insofar as paragraph 11 is concerned, Mr Lee who is an environmental consultant charged with the responsibility of carrying out the remediation on behalf of Hamcor, gave evidence that, at the time of the orders of the 10th of October 2007, he had participated in two days of negotiations which led to the making of that order, which was made by consent. It was pursuant to his instructions that the timetable was set in respect of the various orders. His evidence was that he understood that the order only required the testing of the piping and sumps to be done by that date. He did not, at the time of acquesing in the making of those orders, understand that they might be interpreted as requiring the pipe work and sumps to be sealed, bypassed or replaced by the 30th of November 2007.
Counsel for the EPA was critical of him in that regard and pointed out that order number 11 exists in a context. In particular paragraphs 10, 12 and 13 of the order require a number of things to be done by the 30th of November 2007. Read in context, it was suggested that it was evident that not only was the testing to be done but any necessary pipe work or sumps were to be sealed, bypassed or replaced by the 30th of November 2007.
Whatever be the proper interpretation of that clause however, it seems evident, from the evidence of Mr Lee, that it has subsequently become apparent that the necessary replacement of the pipework and sumps is not something which could have been achieved by the 30th of November 2007.
As at the 10th of October there was still much to do in getting access to the site. Testing has been done and the results have convinced Mr Lee that the amount of contamination is above acceptable levels and he has determined to replace something in the order of 80 per cent of the pipework and, in addition to that, to install further pipework and gully traps. His evidence is that the extent of the work required was not appreciated by him and certainty was not clear as of the 10th of October 2007.
Accordingly, the facts which have arisen after the order or have been discovered after the order was made are that a greater than expected amount of work needs to be done in this regard and it is impractical for it to have been done by the 30th of November 2007.
Paragraph 30 relates to the completion of an investigation report, a draft of which had been reviewed by Dr Foong in mid 2007. Dr Foong gave evidence that, since the order of the 10th of October 2007, he has not received a further draft. Dr Foong is an employee of Golders. Golders have been appointed as the third party reviewer of the site investigation report. In order for Golders to complete that task Dr Foong has had to appoint a multi-disciplinary team within Golders itself, to be prepared to review the final document.
He says that, once a final version of the document is received from Mr Lee, then he will distribute it to his expert team for their comment. How long it then takes to have the report finalised depends upon the extent of communication thereafter. So that, for example, if the final investigation report from Mr Lee is in all respects satisfactory to all of the consultants from the outset, the matter might be completed in a relatively short period of time. However, if there are matters in the report given to him by Mr Lee which raise issues in the minds of the expert team, then they will have to revert to Mr Lee for those matters to be attended to and that may also involve some liaison with the EPA. Hence the matter may take somewhat longer. Allowing for that iterative process, the doctor thought that he would need up to two months for the matter to be finalised once the report is given to him by Mr Lee.
Mr Lee, for his part, at the time of participating in the drawing of the consent order, did not appreciate, he says, that it may take as long as two months. He thought it would be more of the order of one month. The more substantive reason for the delay in providing the report however, is that it has taken longer than was anticipated, as of October last year, in order to get sufficient access to the site in order to carry out tests for the purposes of compiling the report. In that regard there were delays experienced in having the contractor remove solid and liquid wastes from the site. These matters then constitute the facts which have been discovered after the order which form the basis of the application under Rule 668.
The EPA, for its part, has expressed, through its counsel, its profound disappointment that the orders, which were the product of a lengthy negotiation on the last occasion, have not been complied with in all respects and, in particular, in the respects which are germane for today's purposes. It also complains that there are other respects in which Hamcor's performance under the order has been less than satisfactory. It was submitted by Mr Everson that the evidence of Mr Lee would not fill me with great confidence.
There are aspects of Mr Lee's evidence which are less than satisfactory. For example, order 10 of the order required that all hard stand areas were to be sealed by a certain time. The hard stand areas comprise areas of concrete which have expansion joints between them. The EPA pointed out that although some waterproofing compound had been applied to the concrete, the area constituting the hard stand area had not been sealed, in particular, by failure to seal all of the expansion joints between the concrete. Mr Lee endeavoured to read down order 10, so it related only to the concrete within the hard stand areas, but it is difficult to justify such an interpretation.
Another example concerned the delay in the contractor removing liquid contaminants. Initially, in his evidence today, I was told that, at the time the orders were made in October last year, the material was still destined to be sent within Queensland and it was only at some later time that it became evident that the material would instead have to go to Melbourne. It was only after I recovered the transcript from the last hearing, in which counsel for Hamcor then told me that the material had to be sent to Melbourne, that Mr Lee's evidence changed, to say that indeed, as of 10th of October, that was the position, but the possibility of it going elsewhere arose subsequently, causing some delay.
I will not go through, in detail, the other respects in which there was some issue taken with the performance of the order. While I understand the EPA's concern in that regard, I am not prepared to dismiss Mr Lee's evidence with respect to the changes of circumstances that are relevant to the orders which are now sought to be varied.
I should also point out, in fairness to Mr Lee, and to his client, that Mr Lee's evidence is to the effect that it is his endeavour and his client's earnest endeavour, to have this site remediated as soon as is possible. In particular, he says that no delay has, in any respect, been due to instructions from his client or the absence of instructions from his client.
In the circumstances, I am prepared to vary the orders, although I do so with a degree of reluctance given the matters urged by the EPA.
It is important, I think however, in order to avoid any further issues arising, and to guard against that possibility, that there be clarity and confidence in relation to the dates by which things will happen and the assumptions which are made in giving those predictions. It is for that reason that I questioned Mr Lee about those matters, when he was in the witness box. If there was any over-confidence in agreeing to timetables at an earlier stage, in order to reach agreement, then hopefully the experience of today will have served as a sobering one in that respect and emphasised the importance of Court orders and the gravity of agreeing to Court orders and the gravity of breaches of them.
In relation to paragraph 11, Mr Lee's evidence is that he has engaged people to make the necessary cuts in the surfaces to enable the pipework and sumps to be replaced and the new pipes to be laid. His evidence was that that entire process should take something of the order of five weeks. The draft order allows for a longer period of time, being to the 30th of April 2008. The only qualification on Mr lee's evidence about the length of time that would be required was if there is intervention of wet weather. The draft however, provides for in excess of three weeks' time to be lost to wet weather, which seems to be a very generous estimate in the circumstances.
In the circumstances I will allow, in paragraph 11, to the 21st of April, which is eight weeks from today and which would appear to be ample time, on the evidence, even allowing for significant wet weather. To achieve clarity, given the differences of opinion about interpretation last time, it would be best if order 11 was varied not by altering the opening words of the 30th of November 2007, but by adding the words by 21st of April 2008 at the end of that paragraph so that it is clear that the pipework and sumps must be sealed, bypassed or replaced by the 21st of April 2008.
Insofar as paragraph 30 is concerned, what was sought was a variation from the 29th of February 2008 to the 30th of April 2008. It seems to me however, that a longer period should be specified. I say that not because I think that the consultants to Hamcor deserve any particular leniency, but because it appeared from the evidence of Mr Lee, upon questioning from me, that there is a good prospect that the investigation will prove not to be able to be done or completed by the 30th of April 2008.
As I have already mentioned there is at least a two part process. The first involves the completion, by Mr Lee, of what he considers to be the final investigation report. In the second stage that is then given to Dr Foong, for his team's review and comment before ultimate finalisation. On Mr Lee's evidence, he can have the report to Dr Foong within three weeks.
...
HIS HONOUR: If it is assumed then that, allowing a couple of days leniency to that three weeks, the report is provided to Dr Foong by the 19th of March, then, on Dr Foong's evidence, it will take up to two months for the matter to be finalised from there. Accordingly, rather than adopt the 30th of April, I think paragraph 30 ought be amended so that the date for the completion of the investigation report is the 19th of May, but that the order also be amended so as to require Mr Lee to deliver what he regards as the final investigation report to Dr Foong for review by the 19th of March 2008.
...
HIS HONOUR: Order 30 will then be changed so that it reads that the investigation report (which must include a remediation action plan) a draft of which has been reviewed by Dr Yin Foong, must be provided by the respondents to Dr Yin Foong on or before 19th of March 2008 for review and the respondents must complete the investigation report on or before 19 May 2008.
...
HIS HONOUR: The EPA has applied for costs of the proceedings. Costs in the Planning and Environment Court are only available in certain circumstances which are set out in Section 4.1.23, sub-paragraph 2. Even then, they are a matter of discretion, even where the jurisdiction is enlivened.
In this case counsel for the EPA relies on sub-section 2(e) as founding jurisdiction. That provision states "a party has incurred costs because another party has defaulted in the Court's procedure requirements".
While there has been a failure to comply with the orders of the Court as initially made, I do not regard that as a breach of the Court's procedural requirements. In this case what was involved was a failure to comply with a final order of the Court in relation to a previous matter.
In support of his submission, Mr Everson referred me to a case of Gold Coast City Council v. Mount Dene (unreported), where a costs order was made by me. However, that involved
non-compliance with directions that had been made at an interlocutory stage, in the course of a matter. The orders here were of a different kind.
The fact that the orders here provided for liberty to apply, in my view, does not change the characterisation of the orders as being final orders. In my view, non-compliance with the Court's final orders is not a default in a procedural requirement.
Even if the jurisdiction had been enlivened however, I would have had to consider the exercise of discretion. In this case, as I have said, there are aspects of the evidence adduced for Hamcor which was less than satisfactory, but I have accepted the need to vary the orders in relation to orders 11, 30 and 14 and I have accepted that that need has arisen because of the realisation of facts subsequent to the last occasion.
In the circumstances I would not have exercised the discretion to award costs against the applicant, even had the jurisdiction been enlivened.
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