Krajniw v Brisbane City Council
[2009] QCA 76
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- Unreported Judgment
- Appeal Determined (QCA)
- Krajniw v Brisbane City Council[2009] QCA 76
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Krajniw v Brisbane City Council[2009] QCA 76
Krajniw v Brisbane City Council[2009] QCA 76
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Court of Appeal | |
PROCEEDING: | Application for Leave Integrated Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 3 April 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 February 2009 |
JUDGES: | McMurdo P, Holmes and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT – where applicant raised numerous grounds of appeal against initial judgment – whether applicant could demonstrate an error on the part of the trial judge – whether applicant raised any errors of law Environment Protection and Biodiversity Conservation Act 1999 (Cth) Coastal Protection and Management Act 1995 (Qld), s 54, s 55, s 56, s 58A, s 70, s 111 Integrated Planning Act 1997 (Qld), s 1.2.3(2), s 3.5.17(2), s 4.1.28, s 4.1.50(2), s 4.1.56(1), 4.1.56(2), s 4.1.59 |
COUNSEL: | Applicant appeared on his own behalf T Trotter, for the first respondent G J Gibson, with M A Williamson, for the second respondent M T Labone, for the third respondent |
SOLICITORS: | Applicant appeared on his own behalf Brisbane City Legal Practice for the first respondent Deacons Lawyers for the second respondent Environmental Protection Agency for the third respondent |
[1] McMURDO P: The application for leave to appeal must be refused with costs. As Chesterman JA explains in his reasons, the applicant, Tony Krajniw, has not demonstrated any error or mistake in law or absence or excess of jurisdiction on the part of the primary court: s 4.1.56(1) Integrated Planning Act 1997 (Qld). He has not met the threshold requirement enlivening this Court's power to grant leave to appeal: s 4.1.56(2).
[2] HOLMES JA: I agree with the reasons of Chesterman JA and with the orders his Honour proposes.
[3] CHESTERMAN JA: The second respondent (“BMD”) sought development approval for a large vacant site at Cannon Hill in Brisbane from the first respondent (“Council”). In October 2007, the Council issued:
● Preliminary approvals for a material change of use to allow the land to be used for residential and commercial purposes and for outdoor sport and recreation (Golf Course);
● A development permit for reconfiguration of the 18 separate parcels of land which comprises the site;
● Preliminary approval for the operational works for the golf course.
[4] The approvals were given pursuant to s 3.5.17(2) of the Integrated Planning Act 1997 (“IPA”) as a “negotiated decision notice”.
[5] The applicant opposed BMD’S proposal for development and submitted his objections to the Council. After it gave its approval he appealed to the Planning and Environment Court pursuant to s 4.1.28 of the IPA. The appeal was heard over five days in June 2008. Section 4.1.50(2) of the IPA required BMD “to establish that the appeal should be dismissed”. BMD discharged that onus and on 6 August 2008 the Court dismissed the applicant’s appeal. Mr Krajniw now applies for leave to appeal to the Court of Appeal against that judgment. Section 4.1.56 of the IPA limits appeals to those brought on the grounds of mistake of law or excess of jurisdiction.
[6] According to his outline of argument:
“The applicant’s interest in the proceedings and in the appeal is to protect the public interest in the conservation of nature and to protect the environment, which is the purpose of the Integrated Planning Act … the points raised by the appeal are not merely academic, but are of considerable public interest. The applicant has no financial interest in the outcome of the appeal.”
[7] The application for leave to appeal and the proposed grounds of appeal are more readily understood, if, before turning to them, one has an appreciation of the proposed development and the reasons for the applicant’s objections to it. The primary judge said:
“… (the applicant) has for many years been devoted to the feeding and care of squirrel gliders in Cannon Hill, for whom his home and its surrounds are something of a sanctuary. His appeal concerns BMD’s proposal to develop a large parcel of vacant land at Cannon Hill, slightly to the south of his residence, for a golf course, a residential subdivision, and associated commercial purposes. The land contains habitat areas for the squirrel gliders and other fauna, and that was his primary concern.
The site contains about 125 hectares and is owned by the [Council]. It lies ... west of Bulimba Creek … east across Bulimba Creek is the Minnippi Parklands Recreation Area containing approximately 200ha ... of flood plain, forest and waterways, and recreation trails and picnic areas.
Inspection of the site … showed parts … have … been cleared ... and used for grazing … and … landfill … . Much of it is low-lying, and wet … . it was … degraded and in poor condition…
Brisbane has a number of private golf courses but only two which are tru[ly] ‘public’ … and both are north of the river. For that reason Council has had this land in contemplation for a public course for many years. In 1992 … a … study ... affirmed the suitability of the site for that purpose and a community need for it … . ... BMD submitted a tender … followed by a development application in 2004 which envisaged an 18-hole public golf course, 28 hectares of parkland and conservation area, a residential development of 123 detached housing lots and four areas to contain a total of 42 multi-unit dwellings, and some commercial facilities.
… the golf course would occupy about 82ha … in the eastern part of the land (including the rehabilitated landfill area), and the residential component around 12.5ha or 10%. Near the centre of the site and covering 1.7ha there would be a precinct presently called ‘The Hub’ where it is proposed to locate a clubhouse for the golf course and various recreation, entertainment, golf-related and ‘convenience’ retail facilities and, possibly, some short term accommodation. The precise nature of the various commercial elements … is not presently fixed and it is proposed to determine and control them by way … of ... preliminary approval.
The proposal also incorporates ... network of public pedestrian and cycle pathways linking areas within this site itself, and local streets. Council will retain ownership of the golf course and parkland; and, surrender part of the land along Bulimba Creek ... for reasons associated with the Coastal Protection and Management Act 1995 (‘CPMA’).
...
The long gestation of the development proposal and the strictures of the … process meant that the Council, BMD and the [third respondent] had, even before the appeal began, considered and addressed the issues … in great detail. The original development application was accompanied by a number of reports from experts concerning the various environmental and engineering constraints on the site. The information and request process … was coordinated by the Department of Local Government … . Its initial information request was extensive, requiring BMD to provide detailed responses to enquiries designed to satisfy concerns about the preservation and enhancement of wetlands and waterways, and flora and fauna; dealing with acid sulphate soil and contaminated land, and flood risks; and, protecting … Bulimba Creek … .
...
... It is difficult to imagine a development application which has been more vigorously combed through, or more bound about by conditions touching what can legitimately be placed in the category of ‘environmental’ concerns.”
[8] The applicant appeared in person both in the Planning and Environment Court and this Court. He sought to adjourn the application before the hearing and again when it was called on. He said he was too ill to present his argument. He produced some material to show he suffers a number of ailments. There was no satisfactory evidence that such ailments as he complained of might be ameliorated by treatment, or that he had sought treatment, so that the Court might feel confident that, after an adjournment, the applicant would be in better health. The general practitioner who testified in support of the applicant had been consulted infrequently; in February 2008 and February 2009. It appeared that the applicant had seen a different general practitioner in the intervening period but did not proffer that doctor as a witness in support of his claim to debility. The development cannot proceed while this application is pending; s 4.1.59 of the IPA. Delays have proved costly to BMD and further delays will involve it in substantial additional costs. It would be foolish to assume that the applicant was not aware of these factors.
[9] The applicant informed the Court that he had impaired vision and suffered from vertigo which in combination made it impossible for him to present his case. He said he could not read and lacked balance. The Court refused his application for an adjournment, giving reasons for that course. The hearing then continued during which the applicant presented his case briefly in chief, having initially indicated he could not expand upon his written outline, but at great length in reply after counsel to the respondents had addressed the court. The applicant demonstrated a keen and detailed grasp of his view of the facts. He appeared able to read relevant documents. He did not fall over.
[10] It appeared in the course of the argument for the adjournment that the applicant had another motive for a postponement. He wanted, he said, to prepare a longer and more detailed document in which he could demonstrate deliberate omissions or misstatements by the witnesses who provided reports and gave evidence in support of the development. Two points emerge. The first is that the applicant was not candid in professing illness or disability as the ground for adjournment. The second is that the applicant misunderstands, or chooses to ignore, the legal nature of his application.
[11] The application was argued on the basis that the proposed grounds of appeal are self evidently correct thereby demonstrating many serious errors in the judgment of the primary judge which, in the interests of wildlife at the site, and the public interest in animal conservation, justify the grant of leave.
[12] The most convenient means of dealing with the application is to consider the points described by the applicant in his outline of argument with respect to the proposed grounds of appeal. This examination will reveal whether there is any arguable error of law made by the primary judge which might justify a grant of leave to appeal.
[13] The applicant advances 75 separate grounds of appeal. It is not necessary to deal with all them individually. Many fall into the same category and can be dealt with together.
[14] Grounds one to eight are complaints that the primary judge denied the applicant procedural fairness. There are three categories of complaint. One is that the primary judge limited the time allowed for cross examination of the respondent’s witnesses preventing the ventilation of “a large number of pertinent issues … ”. The second is that the judge “appeared to act as a advocate for the respondents”, the third is that he did not give the applicant the assistance due to an unrepresented litigant.
[15] These are serious allegations but a perusal of the transcript shows them to be baseless. Although unrepresented, the applicant was not alone in the Planning and Environment Court. He had the assistance of a Mackenzie friend, one Wilson, who was described as having spent some time in that Court and “some understanding of its procedure”. In addition to that assistance the primary judge, on the first morning on which evidence was taken, said to the applicant:
“ … Now let’s just talk about procedure for a moment … . We discussed this briefly … yesterday. You may understand that, if, for the sake of order and nothing else, we follow some procedures here. The first is that everybody gets a say in a certain order. Mr Gibson’s client has the carriage, the onus, of establishing here that the proposal that his client has advanced, and about which the Council has formed a certain view, ought to be allowed. He’ll go first.
As the respondent, Mr Trotter will go second and then we’ll hear from you and you can present your case. … you can call witnesses and present them in the witness box. You can tender documents to me if you can show that they’re relevant. …
There’ll be plenty of time … allotted ... for you to present your case. Do you understand that?
THE APPLICANT: Yes, your honour.
HIS HONOUR: … Secondly, I imagine that you’ve discussed with Mr Wilson the procedure that’s followed when witnesses are called ... the other parties are going to be calling ... witnesses because you’ve … said you want to cross-examine them.
THE APPLICANT: Yes, your honour.
HIS HONOUR: All right. They’ll be put in the witness box … then you’ll have the opportunity to ask them questions. Do you understand that?
THE APPLICANT: Yes, your honour.
HIS HONOUR: It’s important … for you to understand that your questions have to have a purpose. They have to be relevant to an issue in the case and they have to have some purpose that advances the issues that you propound … the things that you want to argue before me.
There’s no point in just asking questions for the fun of it and I don’t mean anything insulting by that but just asking questions relevant or not. If you wish to advance the view or an opinion that is different from the opinion that the expert apparently holds – and we know what they’ll say because it’s in their written reports – you have to put your case to them. You have to give them the opportunity to answer what you say is the case.
THE APPLICANT: Yes, your honour.
HIS HONOUR: So, if your views or opinions about factual matters contained in their reports are different, then you have to put them to the witness. Do you understand what I mean?
THE APPLICANT: Yes, your honour.
HIS HONOUR:
...
Later on, you’ll get the chance to present your case in full. If you have docs to tender at that stage, you can do that. Remember, too, that when you’re questioning the witnesses, if you have docs that are relevant to your questions, to be fair to the witness, you ought to show them those documents … Is that clear?
THE APPLICANT: Yes. Do I tender documents to you as well when I show [it to] the witness?
YOUR HONOUR: If there [sic] capable of being tendered and they’re relevant to an issue, by all means, and they’ll become exhibits in the case.
…
Do you have any questions at this stage, Mr Krajniw?
THE APPLICANT: I hope I got it all right, your Honour. … Thank you very much.”
[16] The primary judge then said:
“ … it’s not something that non-lawyers find easy to grasp and this is a big case. You appreciate, too, that I’m in a slightly unusual position in that I’m the referee or the umpire in this case. Much as I might want at times to give you assistance because you don’t have the benefit of the senior and the very experienced lawyers representing the other parties, I also have to be fair to everybody. It would be wrong if I conducted your case for you. Do you understand that?
THE APPLICANT: Yes, your honour.
HIS HONOUR: Now, that’s not to say that you can’t seek assistance and, if I can give it to you, I will, but there will be occasions when I’m sorry you may be a little hurt by the fact that I reject requests for assistance. That will only occur when, for me to help you, would be unfair to everybody else in the case.
THE APPLICANT: I understand.”
[17] The applicant could not point to any recorded occasion on which he had been limited in the questions he was allowed to put to witnesses. Counsel for the respondents could not recall or find any such episode in the transcript. There was an occasion when the applicant cross examined a town planner. When asked if he wished to cross examine the applicant said:
“ … I think I have covered everything there is this expert has to present. Could I just ask him possibly 2 or 3 questions? … or do I have to present the whole case – and that’ll bore you, sir.
HIS HONOUR: It’s very thoughtful of you, Mr Krajniw. You might approach it from this point of view, have you seen this … expert’s report?
THE APPLICANT: Yes, your honour.
…
HIS HONOUR: If there’s anything in there with which you disagree, or that doesn’t sit comfortably with your own case, perhaps you ought to question Mr Agnew about it and put your case to him, as I explained to you on Tuesday. All right?
THE APPLICANT: Yes, sir.
HIS HONOUR: Now, ... ordinarily, that would be done to one degree or another with each witness. But when, as you’ve correctly understood, we have several experts in much the same area of … expertise ... I think it’s fair to say that your opponents would not take any legal point against you if you didn’t put your entire case in detail to Mr Agnew.”
[18] Counsel for the respondents indicated their assent to the judge’s proposition. The applicant then proceeded to cross-examine the witness, the record of which extends to nine pages of transcript, at the end of which he said to the primary judge:
“… Your honour, could I leave it at that?”
[19] When the other expert witnesses were called the primary judge investigated with the applicant what points he wished to explore in cross-examination with a view to assisting him and to focus his attack. An example may be seen in the questioning of Mr Ormerod who testified as to air quality. His Honour asked the applicant what questions or topics he wished to put to the witness. The applicant replied:
“I haven’t got much, Sir. … People in the area, during my enquiries, were concerned about the dust …. ”
[20] His Honour then asked whether the applicant wished to suggest that there was anything wrong with the management plan proposed by the witness to overcome the dust. The applicant replied that he did wish to put to the witness that his management plan was inadequate. This exchange then occurred:
“… HIS HONOUR: That’s the one point you want to make about dust? I’m just trying to shorten cross-examination.
THE APPLICANT: Yes, Sir, it will only take five minutes…
HIS HONOUR: Five minutes is enough?
THE APPLICANT: On my word.
HIS HONOUR: I’ll give you 10, all right?
THE APPLICANT: ... I got a problem, I have a mouth.
HIS HONOUR: I understand Mr Krajniw. I want to be fair, but I want you to get to the point.”
[21] Equally without merit is the complaint that the primary judge appeared to act as an advocate for the respondents’ counsel and did not maintain the reality or appearance of judicial neutrality. The applicant did not point to any evidence which might support this most serious complaint. He did not complain of bias during the hearing or ask the primary judge to disqualify himself on the grounds of bias, real or apparent. Perusal of the record shows his Honour to have conducted the proceeding with exemplary fairness and rendered the applicant as much assistance as it is possible for a trial judge to give consonant with maintaining the judicial role.
[22] There is no substance to any of the matters asserted in grounds one to eight. Each of the categories of complaint is falsified by the record. What is disturbing is that the applicant must have known that to be so. He was treated fairly and courteously by the primary judge who, as I said, gave him the appropriate degree of assistance. The applicant had no case of his own to present. The role he had undertaken was to challenge BMD’s witnesses with a view to demonstrating that the Court should not act upon their opinions. He was not inhibited by any ruling from undertaking that task. It is fanciful to suggest the primary judge was, or appeared to be, biased towards the respondent. A litigant in person may be forgiven for ignorance of legal procedure or misunderstanding the law. There is no excuse for their propagating chicanery.
[23] Ground 9 is that the proceedings below miscarried because: (a) the third respondent (“EPA”) did not make full disclosure of relevant document; (b) a day or two before the hearing BMD served upon him 4,000 pages of documents which he did not have sufficient time to read and understand before the hearing; (c) that the judge ruled a number of photographs which the applicant wished to tender inadmissible; (d) that the expert reports were “tainted” because they were produced as a “team effort of collaboration and collusion”.
[24] The points can be shortly answered. (a) The applicant sought an order from the primary judge that EPA disclose further documents. EPA resisted that application on the basis that the documents were not relevant to any issue in the proceedings. Having heard argument, the primary judge upheld the objection. There has been no application for leave to appeal against the ruling. (b) The 4,000 pages consisted of BMD’s application for development approval and supporting documents, all of which had been previously disclosed to the applicant. (c) The photographs which the applicant wished to tender were put into evidence by him. (d) The collaboration between experts which the applicant categorises as conspiracy and collusion was part of the ordinary processes of the Planning and Environment Court which require experts to confer with a view to reducing areas of disagreement and identifying what issues remain in dispute.
[25] Ground 10 is misconceived. It relates to the purpose for which the Council bought land adjoining the proposed development site. The error asserted by the ground was the primary judge’s failure to understand what that purpose was. The error, if there is one, is one of fact and may not be appealed from.
[26] Ground 11 is an assertion that the primary judge did not realise that the commercial/retail development which will adjoin the golf clubhouse was an “out of centre activity”, discouraged by the relevant City Plan. The point was dealt with by the primary judge in paragraph 29 of the reasons. His Honour found sufficient planning grounds to justify the development, despite it being “out of centre”.
[27] Grounds 12 to 17 can be taken together. Each of them complains that the judge failed to give sufficient attention to the risk that the development will flood in times of heavy rain and that the flood waters will inundate adjoining residential properties. Flooding was an issue considered by appropriate expert evidence and addressed by the judge in his reasons. Any error in the assessment would be of fact and not amenable to appeal.
[28] Grounds 19, 20 and 21 together complain that the primary judge should have found that the development conflicts with a local planning instrument in that the development does not allow for sufficient public access, for recreational purposes, to Bulimba Creek. If there were such an error, it would have been one of fact.
[29] Ground 22 is unintelligible.
[30] Ground 23 is a complaint that the judge failed to consider the conflict between the proposed development and a provision of the “Planning Scheme”. The document referred to, with which the development is said to conflict, is not a planning instrument but the Council tender document on which developers were asked to express their interest in developing the site. The ground is misconceived.
[31] Ground 24 complains that the judge failed to consider whether the access road to the proposed golf course will comply with the City Plan. It raises an issue of fact not litigated at the first instance. Ground 25 is in the same category.
[32] Ground 26 is a complaint that the primary judge erred in not finding that the development conflicted with the planning scheme in that the extent of residential development will exceed 12.5 hectares. In fact the primary judge addressed the question. There is no provision in the relevant planning instruments which confines residential development to such an extent. The document referred to by the applicant is not a planning instrument. It is a decision by a Commonwealth bureaucrat that the “proposed action to develop a 12.5 hectare subdivision” is not a “controlled action” for the purposes of the Environment and Protection Biodiversity Conservation Act 1999 (Cth).
[33] Grounds 27 to 33 (taking the numbering sequentially; there is a discrepancy in the numbers ascribed to the grounds in the applicant’s outline. Ground 18 appears here) have a common theme and can be considered together. The theme is that the development will have a disastrous impact upon the habitat, and therefore survival, of the squirrel glider population which lives in the forested area in the north west of the site. The grounds allege that the primary judge failed to take that impact into account, or give it sufficient weight, and failed to regard the terms of the IPA which make conservation of fauna habitat a factor to be considered in processing development applications. The short answer to all these grounds is that the primary judge gave careful consideration to the impact the development will have on the squirrel glider population and its habitat. His Honour concluded, on the evidence adduced, that the development will provide extensive revegetation which will, in fact, enhance the prospects of survival for the glider colony. If his Honour erred in that conclusion, which is not obvious on the record, the error was one of fact and is not amenable to appeal.
[34] Grounds 34, 35 and 36 turn on a complaint that the primary judge did not consider whether the development complied with, or conflicted with, the terms of the Nature Conservation Act 1992 (Qld). The point was not raised in the Planning and Environment Court. It is, no doubt, for that reason that the primary judge did not consider the Act. There was in any event no evidence that the land was subject to the Act. The grounds are unsuitable for a grant of leave to appeal.
[35] Grounds 37 to 43 again raise complaints that in various respects the development will impact on the habitats of squirrel gliders. The complaints all turn on questions of fact considered by the primary judge. They do not give rise to any questions of law and cannot be considered as potential grounds of appeal.
[36] Grounds 44 and 45 raise the question of the development’s compliance with the Vegetation Management Act 1999 (Qld). The point is whether the clearing of the land for construction of a golf course would threaten three species of predatory birds and two of froglets. The questions raised are ones of fact which the trial judge addressed in his reasons.
[37] Grounds 46 to 47 complained about the effects of the development on that part of the site which is low lying and inundates in time of flood. The grounds allege that the development would have deleterious effect on nearby wetlands and creeks. These points raise questions of fact which were dealt with by the primary judge.
[38] Grounds 48 to 57 take as a starting point the Coastal Protection and Management Act 1995 (Qld) (“CPMA”) and allege in various forms that the primary judge did not consider its provisions and measure the proposed development against them.
[39] The primary judge said on this aspect of the case:
“ … the subject land is [a Coastal Management District] and a significant part of it is to be surrendered to the state … . The evidence of Dr Thorogood … showed the surrendered part was an appropriate buffer to protect the ecology of Bulimba Creek – and … the proposal will result in better protection for that water body and, indeed, enhancement of riparian vegetation.
…
… Section 104 of the CPMA requires the EPA to consider the potential impact of a proposed development on coastal management and … coastal wetlands. Mr Ryan, the EPA’s principal botanist gave unchallenged evidence that in his opinion this proposal will not result in the loss of any significant coastal wetlands. Mr Miller, an EPA senior project officer, said that the proposed development preserves intact, and does not threaten, the sustainability of the majority of the tidal wetlands … allowed for substantial riparian rehabilitation … protected natural wetlands of high value; and, off-set any loss of natural wetland with replacement wetland providing ... more varied habitat for wetland flora and fauna … .
…
…Mr Miller and Mr Humphreys showed the proposal would not affect water quality in Bulimba Creek but, rather, effect an improvement in the quality of water on, and leaving, the site; and, would be unlikely to create stagnant water bodies if the development is implemented in accordance with design and management specifications”.
[40] The passage shows that the grounds of appeal, again, take issue with findings of fact.
[41] The applicant referred to s 54, s 55, s 56, s 58A and s 70 of the CPMA. The first four of those sections are found in Part 3, Division 1, and contain procedures and set out considerations which must be followed when the Minister comes to make a declaration that specific areas of land should be coastal management districts. Such a declaration has been made with the respect to the part of the site that borders Bulimba Creek. The sections have nothing to say about developments which might take place adjacent to, or in, a coastal management district. Section 70 allows an area to be declared an erosion prone area. It is not clear that any part of the proposal site was subject to such a declaration. The section says nothing about development on or near such areas. These sections are not relevant to the application.
[42] Part 6 of the CPMA is relevant. It requires the Chief Executive to consider the potential impact of development on coastal management districts. One of the powers conferred on the Chief Executive is found in s 111 which allows the State to require the surrender of land as a means of protecting coastal land from the effects of development. In this case, following discussions between BMD and the EPA, an area of land bordering the creek was surrendered, as the primary judge noted. Complaints about the extent of the land surrendered and whether it is sufficient to protect wetlands are questions of fact dealt with by the primary judge.
[43] Ground 58 raises a question of fact concerning a detail about the location of two fairways on the golf course.
[44] Grounds 59 and 60 raise more questions of fact about the effects of flooding, erosion and siltation of surrounding water ways. They were dealt with by the primary judge. They are not potential grounds of appeal.
[45] Grounds 61 and 62 allege a mistake by the primary judge in failing to apply the precautionary principle found in s 1.2.3(2) of the IPA with respect to chemical waste which might be expected to exist in the old dump. The primary judge expressly adverted to the precautionary principle. Any mistake that might be exposed with respect to the application of the principle would be one of fact.
[46] Grounds 63 to 67 undoubtedly raise questions of fact. They assert an error on the part of the primary judge in finding that there was need for a golf course in the area of the development. The argument in support of the grounds points to numerous assertions of fact which are said to indicate either a lack of need for a golf course or public hostility towards one. The applicant appears to have a decidedly adverse opinion about golf courses and those who play on them. Golf, the applicant claims is the “domain of the wealthy, healthy, rich … out of reach to young children, pensioners and blue collar workers”. It is also to be despised because it may not be enjoyed by the physically handicapped. Whatever one may think of golf the applicant’s mordant dislike of it and the development which promotes it does not give rise to questions of law.
[47] Ground 68 is no more helpful to the applicant’s cause. It is a complaint that the primary judge failed to appreciate that domestic pets kept by residents in the development will prey upon native fauna, particularly squirrel gliders, and that the conditions for keeping pets in the residence will be an inadequate safeguard. The questions are ones of fact.
[48] Grounds 69 and 70 again concern possums and complain that noise associated with the maintenance of the golf course will frighten the animals. The point was addressed by the judge and is one of fact.
[49] Ground 71 is of the same type, although it alleges the potential to harm native animals and waterways by the use of chemicals to protect the golf course from insects and weeds. This point is one of fact.
[50] Ground 72 raises a point not litigated in the Planning and Environment Court. It cannot be raised now on an application for leave to appeal.
[51] Ground 73 is indubitably wrong. It claims an error on part of the primary judge which the reasons show his Honour did not make.
[52] Ground 74 is a rhetorical conclusion.
[53] Ground 75 is more serious. It is:
“[the applicant] was disadvantaged in the Primary Court in that an employee of Deacons, a legal representative for BMD … gave legal advice to local community groups, in that if anyone opposes BMD they would be bankrupted.”
[54] This assertion was made for the first time in the application for leave to appeal. No complaint of impropriety or misconduct against the solicitors was made to the primary judge. It is to be observed that no particulars of the very serious allegations have been provided. The solicitors for BMD who still represent it have filed affidavits from all solicitors who were engaged in representing BMD in the proceedings before the Planning and Environment Court. They deny any such activity on their part.
[55] The applicant produced no evidence at all in support of the claim which must be regarded as scandalous. He told the Court the threat was contained in a document which he has not seen. He has not even obtained a copy though he professes to know where they can be found. Mr Krajniw may not be a lawyer but one does not need legal training to understand that one does not make complaints of misconduct, perhaps criminal misconduct, against professional men and women without ascertaining whether there is a basis for the charge. The latitude extended to litigants in person in the presentation of their cases is not a licence for mendacity.
[56] The applicant has not demonstrated any arguable error made by the primary judge. He has not demonstrated any error of law. The application should be dismissed with costs.