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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Smith v Cairns Regional Council  QPEC 37
ROGER JOHN SMITH
CAIRNS REGIONAL COUNCIL
Planning and Environment
Planning and Environment Court, Cairns
8 April 2020 (delivered ex tempore)
8 April 2020
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATION – where an original decision was made – where the applicant filed an application for review of the original decision after filing an application for a stay of the original decision under s 522 of the Environmental Protection Act 1994 – where no objection is made by the respondent to non-compliance with s 522 of the Environmental Protection Act 1994
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATION – where an application has been made for the review of an original decision – where a stay of an original decision is sought under s 522 of the Environmental Protection Act 1994 to secure the effectiveness of the review
Environmental Protection Act 1994 s 522, 532
Planning and Environment Court Act 2016 s 37
Preston Law for the applicant (J Bodenmann)
McInnes Wilson Lawyers for the respondent (T Gallienne)
- This is an originating application, brought at extremely short notice by the applicant, seeking a stay of an original decision, pursuant to section 522(1) of the Environmental Protection Act 1994 (Qld) (‘the Act’).
- The usual procedural requirements with respect to filing and service of the originating application and the affidavit in support have not been complied with. There are other defects in the material.
- Nonetheless, the council, which has taken an extremely reasonable attitude to the application, does not oppose the Court waiving those procedural non-compliances, pursuant to section 37 of the Planning and Environment Court Act 2016 (Qld) (the ‘Planning and Environment Court Act’).
- It is accepted that council has given an original decision within the meaning of schedule 2, part 2 of the Act to the applicant. There is some uncertainty about whether that is an original decision under section 326B(2) or section 326BA(2) of the Act. For the purposes of considering this application, nothing turns on that.
- The applicant did not properly comply with section 522 of the Act in that he filed his application for a stay of the original decision before he had made his application to council for a review of that original decision. Those steps occurred in the reverse order to what is required by section 522 of the Act.
- Nonetheless, council has admitted for the purposes of this hearing that an application for review has now been made by the applicant to it. And it does not object to the Court excusing the non-compliance.
- Under section 522(2) of the Act, the Court may stay the original decision to secure the effectiveness of the review and any later appeal to this Court. A stay may be made on conditions the Court considers appropriate and has effect for the period stated. However, it must not extend beyond the time when the council reviews the decision and any later period the Court allows the applicant to enable the applicant to appeal.
- The original decision was a decision to issue an environmental investigation notice under the Act given by the council to the applicant on 2 April 2020. That document requires the applicant to conduct or commission an environmental investigation about certain events or activities and to submit an environmental report. In particular, the notice requires the applicant to do certain things by 9 April 2020, which is tomorrow.
- The requirements include: to engage a suitably qualified person to conduct an environmental investigation, to give that person a copy of the relevant notice, to give council written notice of the person’s relevant details, and confirm their availability to conduct the investigation and complete the report. There are other requirements, such as by 16 April to commence the environmental investigation. The requirements continue throughout May. They culminate with a requirement by 5 June 2020 to give an environmental report.
- The notice, in its grounds, states that council has devolved responsibility under the Act for environmental nuisance, and for the administration and enforcement of environmental nuisance and depositing prescribed water contaminants in waters, which is also environmental nuisance.
- It further states that council is satisfied on reasonable grounds that events or activities have happened on the land and caused environmental harm, and that activities which are occurring on the land are causing or likely to cause environmental harm.
- The notice relates to the historical and current operations of a boat repair and maintenance business in the form of a shipyard located on Trinity Inlet at Cairns. The activities include abrasive blasting, painting and similar activities.
- The applicant seeks a stay of the original decision to secure the effectiveness of his application for review. He asserts various matters, including that he no longer owns, possesses or controls the land. He says that compliance with those requirements would put him to not insubstantial cost and expense that could not be recovered in the event that his application for review (or any subsequent appeal to the Court) was successful.
- Despite those assertions, there is no evidence before the Court of those matters from the applicant himself. The evidence before the Court is limited to an affidavit which exhibits the relevant original decision and an email from the applicant’s solicitor to the council, purporting to attach the application for review. The application for review is itself not in evidence. The applicant has not deigned to put on any evidence personally. There is not even any evidence from the applicant’s solicitor, who appeared on the application, of any factual matters relevant to those issues.
- Nonetheless, I accept on the face of the requirements of the original decision that the applicant is required to take certain steps by certain dates, including by tomorrow, which would necessarily require him to incur some costs. The quantum of those is unknown.
- In the short time in which the council has had to consider and respond to this application, it has not been able to obtain instructions on whether there is any ongoing risk of environmental harm associated with the stay.
- However, council is prepared to consent to an order for a stay until the earlier of 22 business days after the day the council gives notice of any decision on the review application or the applicant commences any appeal under section 532 of the Act.
- On the documents before me, it appears the matter has had a very lengthy history. There have been, at least from council’s point of view, allegations of non-compliance with various town planning and environmental laws, due to the applicant conducting activities on some or all of the land, notwithstanding that he is not the current owner of some of it.
- There is no explanation whatsoever in the evidence about why the applicant has delayed in bringing the application. However, council does not seek any undertaking as to damages in consenting to a stay, nor does it seek any order for costs in its favour.
- The position taken by council is a compelling factor militating in favour of me making an order in terms of the draft proposed by it. If not for those concessions made by council, I would not have made any order today, given the matters I have already referred to and the paucity of material placed by the applicant before the Court.
- There is no explicit statement in the relevant statutory provision about what factors the Court may or must take into account in exercising its discretion to grant a stay, save that the purpose of granting the stay must be to secure the effectiveness of the review and any later appeal. Given that the application for review is not in evidence, it is impossible for me to express any view about the merits of the application for review at this stage. Council does not seek any additional conditions on the stay.
- It was able to refer me to two single judge decisions, one of this Court and one of the Land Court, in which a stay had been granted. However, they were in quite different factual circumstances.
- Given the position taken by council on the application, I am prepared to exercise my discretion to make an order to grant a stay, pursuant to section 522(2) of the Act, to secure the effectiveness of the applicant’s review and any later appeal to the Court. I will make orders in terms of the draft provided by the council, subject to that document being amended in two respects.
- The first is to incorporate an additional order under section 37 of the Planning and Environment Court Act 2016 (Qld) to the effect that the Court waives the various non-compliances and deals with the matter in a way it considers appropriate. The second is an additional final paragraph that gives leave to either party to apply to the Court on two business days’ notice before the period of the stay expires.
- A leave to apply provision of that kind should be explicitly included to enable council to bring the matter back before the Court at short notice to deal with any issues which may only become apparent in the next weeks, when it comes to consider properly the application for internal review. In particular, if council forms the view that there is some ongoing risk of environmental harm associated with the stay which requires further orders, then that is a matter which would warrant the matter being brought back before the Court urgently.
- I make orders in terms of an amended draft, which incorporates those requirements. The parties are directed to agree upon a draft order that implements these reasons and to provide it by email to my Associate no later than 12 pm tomorrow.
- Published Case Name:
Smith v Cairns Regional Council
- Shortened Case Name:
Smith v Cairns Regional Council
 QPEC 37
08 Apr 2020