Cuthbert v Moreton Bay Regional Council [2015] QPEC 36 [2015] QPELR 830

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cuthbert v Moreton Bay Regional Council [2015] QPEC 36 PARTIES: HEATHER LORRAINE CUTHBERT (Appellant) v MORETON BAY REGIONAL COUNCIL (Respondent) FILE NO/S: 2283/15 DIVISION: Planning and Environment PROCEEDING: Application (in Appeal) DELIVERED ON: 31 July 2015 DELIVERED AT: Brisbane HEARING DATE: 29 June 2015 JUDGE: Searles DCJ ORDER: 1. That paragraphs 3 – 4 and 13 – 26 of the Appellant’s Notice of Appeal be struck out pursuant to s 171 of the Uniform Civil Procedure Rules 1999. 2. That the costs of the strike out application be reserved. 3. That pursuant to s 535 of the Environmental Protection Act 1994, and subject to further order of the Court, the operation of the following Requirements of Environmental Protection Order dated 31 March 2015, issued by the Respondent to the Appellant, be stayed pending the final determination of the Appeal:- 1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1, 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.46. 4. That costs of the stay application be reserved. CATCHWORDS: PROCEDURE – PLEADINGS – STRIKE OUT APPLICATION – Impugned paragraphs in Notice of Appeal pertain to historical matters in previous but related proceedings – Whether impugned paragraphs are irrelevant to the issues in dispute – Whether impugned paragraphs should be struck out. -- 1 of 30 -- 2 PROCEDURE – STAY OF PROCEEDINGS – Where, in the substantive appeal, Appellant seeks orders varying or setting aside Environmental Protection Order issued by Council – EPO pertains to Appellant’s boat maintaining and repairing facility - Where Council’s position is that Appellant has failed to comply with requirements of an Environmental Authority permitting carrying out of facility – Whether refusal to grant a stay would impact on the ultimate effectiveness of any orders made in the appeal - Whether grant of stay will threaten the integrity of appeal decision - Whether any threat of irreparable prejudice to the Appellant if proceeding not stayed. COUNSEL: A Skoien of Counsel for the Appellant S Ure of Counsel for the Respondent SOLICITORS: Butler McDermott for the Appellant Thomson Geer for the Respondent [1] This judgment relates to two applications in the substantive appeal. The first, made on 9 June 2015 by the Appellant pursuant to s 535 of the Environmental Protection Act 1994 (EPA), seeks an order that the decision of Council to issue an Environmental Protection Order (EPO) on 31 March 2015 be stayed pending the final determination of the Appeal (Stay Application). The second, made by Council on 16 June 2015 and subsequently amended on 18 June 2015, seeks the strike out of parts of the Appellant’s Notice of Appeal pursuant to s 171 of the Uniform Civil Procedure Rules 1999 (UCPR) on the ground that they are unnecessary because of irrelevancy to the determination of the issues in dispute in the Appeal (Strike Out Application). [2] In the Appeal, the Appellant seeks orders that the EPO be set aside or varied. Mr Skoien, counsel for the Appellant, informed the Court that the Appeal has been set down for hearing in the August sittings. Land the subject of the EPO -- 2 of 30 -- 3 [3] The EPO relates to the conduct by the Appellant of a boat maintenance and repair facility (Facility) at 48 Bishop Parade, Toorbul on land described as Lot 1 on AP2986 and Lot 20 on RP72941. The subject business has been conducted on both lots since 1962. On Lot 1 there is a Slipway to facilitate the removal of boats from Elimbah Creek and a facility for their repair and maintenance. [4] Since the introduction of the EPA, the Facility has been identified as an environmentally relevant activity (ERA). The Appellant took over the operation of the Facility in April 2002. Environmental Authority number 250000301 (EA) was issued by the then Caboolture Shire Council to the Appellant (her surname then Loader) on 9 April 2002 pursuant to the EPA. Copies of the EA and EPO are in Schedule A. [5] In December 2008, Council issued the Appellant with Enforcement Notice (2008 Notice) under the EPA in the belief that the Appellant had committed an offence by unlawfully carrying on the above activities on Lot 1. The Appellant appealed Council’s decision to this Court1 and to the Court of Appeal, which found Council’s position as to the unlawfulness of use of Lot 1 to be erroneous. Council’s Strike-Out Application [6] Council seeks the strike out of paragraphs 3 and 4 and 13 to 26 inclusive of the Notice of Appeal on the ground that those paragraphs include a series of allegations that are unnecessary (because they are irrelevant) to the determination of the issues in dispute between the parties.2 Issues in dispute in Appeal 1 Loader v Morton Bay Regional Council [2012] QPEC unreported, Planning and Environment Court of Queensland, Griffin DCJ, No 237 of 2009, 20 December 2012 2 Amended application impending proceeding – Court document number 7. -- 3 of 30 -- 4 [7] The Appeal issues were identified by order of 18 June 2015 as: (a) whether the Appellant has failed to comply with the general environmental duty in the conduct of the subject ERA; (b) whether the Appellant has failed to comply with the conditions of the subject EA in the conduct of the ERA; (c) whether the Requirements of the EPO are needed to secure the Appellant’s compliance with the general environmental duty in the conduct of the ERA; (d) whether the Requirements of the EPO are needed to secure the appellant’s compliance with conditions of the EA for the conduct of the ERA; and (e) whether the exercise of the discretion under s 358 of the EPA should result in the issue of EPO. Council’s argument re: Strike Out Application [8] The basis of Council’s assertion that the impugned paragraphs of the Notice of Appeal should be struck out is that the EPO was issued by Council pursuant to an inspection by its officers on 13 May 2014. In other words, it is the information obtained on that date which founds the EPO Council issued some ten and a half months later on 31 March 2015.3 [9] The impugned paragraphs are these:- “3. The Boat Maintenance and Repair Facility: (a) has been conducted at the subject land since 1962; (b) has been conducted at the subject land on both Lot 1 and Lot 20; (c) has involved the use of a slipway (the "Slipway") on Lot 1 for: (i) removing boats from Elimbah Creek (the "Creek"); and 3 EPO paragraph A2 – Annexure A. -- 4 of 30 -- 5 (ii) activities to repair and maintain boats (the "Slipway Activities"). 4. The Boat Maintenance and Repair Facility was conducted on the subject land (as a lawful non-conforming use) without any formal regulation or environmental control for more than 30 years, between 1962 and 1996. 13. Between 2002 and 2007: (a) the Respondent inspected the Boat Maintenance and Repair Facility for compliance with the Environmental Authority at regular intervals; (b) the Respondent identified any matters of concern in relation to the conduct of the Boat Maintenance and Repair Facility and compliance with the Environmental Authority; (c) the Appellant properly addressed any matters of concern raised by the Respondent in relation to the conduct of the Boat Maintenance and Repair Facility and compliance with the Environmental Authority; (d) the Respondent certified the Appellant's compliance with the Environmental Authority; and (e) the Respondent inspected and approved measures for dealing with wastewater, particulates, noise, odour, spray drift, stormwater, spraying and waste disposal for the Boat Maintenance and Repair Facility. 14. In September 2007 the Respondent alleged, for the first time, that the Boat Maintenance and Repair Facility was unlawful (the "Respondent's Allegations of Unlawfulness"). 15. The Respondent's Allegations of Unlawfulness depended upon allegations that: (a) the Respondent had erred in April 2002, five and a half years earlier, when it had transferred the Environmental Authority to the Appellant for the conduct of the Boat Maintenance on both Lot 1 and Lot 20; (b) as a consequence of the Respondent's error, the Environmental Authority wrongly purported to authorise the conduct of the Boat Maintenance and Repair Facility on Lot 1; (c) the Environmental Authority does not validly authorise the conduct of the Boat Maintenance and Repair Facility on Lot 1; and (d) the Environmental Authority only authorises the conduct of the Boat Maintenance and Repair Facility on Lot 20. 16. Between September 2007 and September 2013 the Appellant disputed Respondent's Allegations of Unlawfulness (the "Unlawfulness Dispute"). -- 5 of 30 -- 6 17. In October 2008, in furthering the Respondent's Allegations of Unlawfulness, the Respondent issued a show cause notice to the Appellant under the IPA (the "Show Cause Notice"). 18. In December 2008, in furthering the Respondent's Allegations of Unlawfulness, the Respondent issued an enforcement notice to the Appellant under the IPA (the "Enforcement Notice"). 19. Neither the Show Cause Notice nor the Enforcement Notice contained any allegation of environmental harm or potential environmental harm arising from the Boat Maintenance and Repair Facility. 20. The Enforcement Notice required the Appellant to immediately cease conducting the Boat Maintenance and Repair Facility on Lot 1. 21. Compliance with the Enforcement Notice would have resulted in: (a) restrictions on the operation of the Boat Maintenance and Repair Facility; (b) the closure of the Boat Maintenance and Repair Facility; and (c) loss and damage to the Appellant. 22. In January 2009 the Appellant appealed against the Enforcement Notice (the "Enforcement Notice Appeal") under section 4.1.32 of the IPA. 23. The commencement of the Enforcement Notice Appeal operated as a stay of the Enforcement Notice under section 4.1.33 of the IPA. 24. At no time during the Enforcement Notice Appeal did the Respondent apply to set aside the stay of the Enforcement Notice. 25. September 2013 the Court of Appeal finally deciding the Unlawfulness Dispute by: (a) rejecting the Respondent's Allegations of Unlawfulness; (b) finding that the Respondent's Allegations of Unlawfulness were based upon an assumption by the Respondent of a surprisingly negligent approach to public administration by the Respondent; (c) finding that the Environmental Authority authorises the conduct of the Boat Maintenance and Repair Facility on both Lot 1 and Lot 20; and (d) allowing the Enforcement Notice Appeal and setting aside the Enforcement Notice. 26. The Appellant suffered loss and damage as a result of the Respondent's Allegations of Unlawfulness and the Unlawfulness Dispute, in particular: (a) disruption to the Boat Maintenance and Repair Facility; -- 6 of 30 -- 7 (b) loss of profits from the Appellant's Business; (c) costs associated with responses to the Respondent's Allegations of Unlawfulness; (d) costs associated with the Enforcement Notice Appeal; (e) costs associated with the making of an unnecessary development application seeking development approval for the Boat Maintenance and Repair Facility; (f) damage to reputation; and (g) stress and anxiety in having to deal with, and respond to, the Respondent's Allegations of Unlawfulness.” Paragraphs 3 and 4 [10] As to paragraphs 3 and 4, Council says they deal with the historical use of the land since 1962, being a lawful nonconforming use between 1962 and 1996. Given that the lawfulness of the subject use is not in issue Council says they are irrelevant. Paragraphs 13 to 26 [11] Paragraphs 13, Council says, deals with the operation of the facility between 2002 and 2007 and again, is not relevant to the current issues before the Court. The EPO, on its face, shows clearly that it was issued following the 13 May 2014 inspection. Operation of the facility between 2002 and 2007 would not assist the Court in determining compliance or otherwise with the general environmental duty and conditions of the EA in 2014 or subsequently. [12] As to paragraphs 14 to 26 these, it is said, deal entirely with the previous 2008 Notice the above mentioned Court of Appeal decision determining the EA applied to both Lots 1 and 20. There is no issue in the present Appeal as to the applicability of the EA or EPO to the Appellant’s entitlement to occupy Lot 1, rendering these paragraphs irrelevant to the current issues in dispute. -- 7 of 30 -- 8 Appellant’s Response [13] The Appellant says that all of the impugned paragraphs are relevant to one or other aspect of the relief sought in the Appeal because they show:- (a) the history of the operation of the facility before and after it became an ERA; (b) Council’s conduct in relation to the historical operation the facility including its inspection and certification of the ERA under the EA; (c) Council’s groundless attempt to shut down the facility by the 2008 enforcement actions; (d) Council’s failure to apply to the Court to set aside the automatic stay of the 2008 Enforcement Notice arising by operation of s 4.1.33 of the Integrated Planning Act 1997; (e) cost and damage to the Appellant arising from Council’s 2008 conduct found to be erroneous by the Court of Appeal. [14] Further, the Appellant says that the historical allegations are relevant to at least the following:- (a) the question to whether the discretion to grant a stay of the EPO should be exercised in favour of the Appellant; (b) the question of whether the facts said to give rise to the discretion to issue the EPO, and justification for the issue of the EPO, actually exist (for instance, whether there is noncompliance with the EA or whether any environmental harm has actually occurred; (c) the question of whether any discretion to issue the EPO should be exercised by granting the EPO and, if so, on what terms; and/or -- 8 of 30 -- 9 (d) the questions of whether costs should be awarded and whether such costs should be accessed on an indemnity basis. UCPR rule 171 [15] Given the Planning and Environment Court Rules 2010 do not provide for the striking out of pleadings, r 3(2) of those rules render r 171 of the UCPR relevant. That rule provides:- “(1) This rule applies of a pleading or part of a pleading:- (a) discloses no reasonable cause of action or defence; or (b) has a tenancy to prejudice or delay the fair trial of the proceedings; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of the process of the Court. (2) The Court, at any stage of the proceedings, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. (3) On the hearing of an application the sub rule (2), the Court is not limited to receiving evidence about the pleading.” [16] There can be no doubt that the power to strike out pleadings wholly or in part should be sparingly exercised and only in clear cases where the grounds have been made out.4 The corollary of that is that where it is clear a pleading should be struck out the Court should strike it out to ensure that the case to be answered by the 4 Royalene Pty Ltd v Registrar of Titles & Anor [2007] QFC 59 at [6]. -- 9 of 30 -- 10 Applicant is clearly articulated. To do otherwise can lead to unnecessary costs being incurred by a party in answering allegations not germane to the issues in dispute.5 Conclusion re: Strike Out [17] In this case, the only ground under UCPR r 171 that Council relies upon is relevancy. Nothing advanced by the Appellant persuades me that any of the historical paragraphs under attack are relevant to the issues to be determined in this Appeal. Many relate to matters which have already been agitated in this Court and the Court of Appeal. To allow them to stand would involve the parties in unnecessary expense including disclosure on issues of historical interest only. The impugned paragraphs should be struck out. The Appellant’s Stay Application [18] The Appellant seeks the stay pursuant to s 535 of the EPA which provides:- “(1) the Court may grant stay of a decision appealed against to secure the effectiveness of the appeal; (2) a stay may be granted on conditions that the Court considers appropriate and has effect for the period stated by the Court; (3) the period of a stay must not extend past the time when the Court decides the appeal; (4) an appeal against a decision does not affect the operation or carrying out of the decision unless the decision is stayed.” Council Concessions [19] At the outset of the hearing, Mr Ure for the Council advised that Council did not oppose a stay being granted in relation to some of the provisions of Part B of the 5 See Barr Rock Pty Ltd v Blast Ice-creams Pty Ltd & Ors [2011] QCA 252 per Philippides J; Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 109 at [9]. -- 10 of 30 -- 11 EPO. Council divided the Requirements of Part B into two broad categories, the first were Requirements involving physical works and/or upgrades to the facility including the slipway and upgrades to equipment used in the business. The second involve procedural and operational Requirements controlling the manner in which the operation is carried out on a day to day basis. As to the first category Council does not oppose the granting of a stay. It accepts that there are financial implications such as the upgrade of the slipway, acoustic treatments and mitigation Requirements and for tools and equipment used on the slipway such that if a stay was not granted the Appeal decision may be rendered nugatory. The specific provisions in Part B are:- “1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1, 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.26.” A useful document prepared by Council’s solicitors is Annexure B, a Schedule titled “Appendix A – Schedule of EPO Requirements to be stayed or remain in force.” This particularises the Council’s position giving reasons as to why it opposes the stay in relation to particular Requirements. I agree that there should be a stay in relation to those Requirements conceded by Council. That will secure the effectiveness of any decision on Appeal in favour of the Appellant. That leaves the following EPO Requirements still disputed:  1.2 (sanding operations)  1.5 and 1.6 (antifoul application and spray painting)  1.10 to 1.19 (waste and chemical management and disposal)  1.21 (slipway activities)  1.28 and 1.29 (solid waste management and disposal)  2.2 and 2.3 (hours of operation) -- 11 of 30 -- 12  2.8 (water blasting)  2.19 to 2.23 (chemical management and disposal)  2.27 (use of stool response kit)  2.28 (written records) Principles Governing the Staying of Proceedings [20] The principles governing the granting of a stay recently considered by this Court in Cougar Energy Limited v Debbie Best Chief Executive under the Environmental Protection Act 1994,6 where His Honour Jones JDC said:- “[20] Notwithstanding that these proceedings involve an appeal against what is effectively an administrative decision, it is generally agreed that the general principles associated with the granting of a stay in usual civil litigation are applicable, subject to some variation or adjustment when necessary. By reference to cases such as Cook Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd. R. 453; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; and Attorney for the State of Queensland v Farden [2011] QCA 111, the following principles seem to be established: (1) It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of stay. (2) The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the Court are fully effective. (3) While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not 6 [2011] QPEC 150 at [20]. -- 12 of 30 -- 13 arguable, the Court will generally not descend into a detailed assessment of the prospects of the appeal; (4) Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.” Correspondence surrounding the issue of the Environmental Protection Order 31 March 2015 [21] Before dealing with the arguments of the parties in relation to those remaining Requirements, it is appropriate to set out details of some correspondence between the parties subsequent to the issue of the EPO.7 It starts with a letter from Council to the Appellant dated 31 March enclosing the EPO and a copy of the EA. Subsequently, the Appellant sought review of the decision to issue the EPO and Council, by letter dated 24 April 2015, agreed to a stay of its operation pending determination of that review. But in that letter, Council further advised that it:– “Does not agree to not take action to enforce compliance with the EPO pending the outcome of any legal challenge that your client might choose to bring, including by way of appeal to the Planning & Environment Court.” [22] By letter dated 4 May 2015, Council advised of its decision on review, namely to confirm its original decision to issue the EPO. Reasons were given. In response, by letter dated 5 May 2015 the Appellant’s solicitors advised they had instructions to lodge the present Appeal and again asked Council whether it was prepared to treat the Notice of Appeal as a stay of the EPO until the Appeal was determined. Council responded by email the following day, 6 May 2015, confirming its earlier position 7 See Affidavit of B Rix filed 17 June 2015. -- 13 of 30 -- 14 its letter of 24 April 2015, namely that it would not agree not to take action to enforce the EPO during any Appeal. [23] By letter of 8 May 2015, the Appellant’s solicitors expressed surprised at the Council’s position. Without setting out all the points raised by the Appellant in that letter I mention the following by reference to the paragraphing in that letter:- (a) …; (b) …; (c) the subject use is currently conducted under the conditions of the Environmental Authority; (d) Council has administered the subject use under the provisions of the EP Act for the entire period that our client has been conducting the subject use since 2002; (e) there has been no material change in the subject use at any time over the 53 years that it has been conducted in the past; (f) there has been no previous allegation or even suggestion of any environmental harm from the subject use; (g) …; (h) …; (i) …; (j) the EPO does not allege any actual material environmental harm or serious environmental harm; (k) in terms of actual harm, the EPO only makes some vague allegations of environmental nuisance in respect of noise and air quality; (l) the EPO contains no details of any environmental harm, actual or potential…; -- 14 of 30 -- 15 (m) prior to the issue of the EPO our client was not made aware of the allegations contained in the EPO and was not given any opportunity to respond to those allegations; (n) no explanation is given as to why, if matters were thought to be urgent, Council did not raise mattes with our client before it issued the EPO; and (o) Council, quite properly, agreed to stay its hand during the internal review of the EPO (until 4 May 2015). The letter again sought confirmation that Council would take no step to enforce the EPO pending hearing of the Appellant’s Appeal and, if necessary, any appeals to the Court of Appeal. [24] The Council responded on 11 May 2015, taking issue with the assertion by the Appellant that the subject use was currently conducted under the conditions of the EA, stating that inspections by its officers had revealed that was not the case. It said:- “The Council also notes the findings of fact made by Judge Griffin QC in the Planning & Environment Court regarding the environmental and amenity impacts of your client’s business, informed by expert witness testimony, remain undisturbed by the Court of Appeal’s judgment.” Council maintained its position that no further stay would be agreed to. [25] I pause here to note that the assertion by Council that the Court of Appeal did not interfere with the findings of Griffin DCJ is correct. The Appeal was successful on other grounds. To fully understand the reference to the findings of His Honour -- 15 of 30 -- 16 Griffin JDC referred to, I set out relevant parts of His Honour’s 20 December 2012 judgment:- “[41] I am satisfied that the expert evidence is to similar effect: the use of Lot 1 for the purposes of boat repair and maintenance involving sanding, spray painting, the use of antifoul and the use of power tools for the purposes of these activities would be unacceptable from an environmental and amenity point of view on the slipway unless there were significant and stringent conditions and limitations placed on the operation. I accept this evidence. [42] In relation to air quality for example Mr King, on behalf of the appellant concluded ‘given the outdoor nature of the facility and the understanding that the lease requirements prohibit construction of new structures, there is limited ability to contain air pollutant emissions using physical enclosures’. Although it is possibly to imagine the strictest of requirements to assuage concerns, I accept Mr Galvin’s positions which opined ‘notwithstanding the information although the site could potentially be conditioned, … of the opinion that the conditions would be onerous and impractical both for the appellant in terms of meeting the conditions and the respondent in the generation and management of the conditions.’ As to water quality, both Mr Collins for the appellant and Mr Bristow for the Council agreed ‘that unless the slipway boat maintenance operation can contain its liquid and solid wastes on the land, then it could pose an unreasonable risk to the water quality of Elimbah.’ [43] On the topic of aquatic ecology Dr Thorogood (for the Council) and Mr Richardson (for Ms Loder) agreed:- -- 16 of 30 -- 17 Points of Agreement 10. Unless the slipway can contain its liquid and solid wastes, it is likely to pose an unacceptable risk to the ecosystem health of Elimbah Creek and waters downstream. [44] The combination of factors including noise, air quality, water quality, aquatic ecology and conservation issues and the risk in relation to water quality and conservation issues, in my view, suggests substantial and unacceptable impacts on the environment and on the amenity of the area should the operation continue as it is proposed. [45] Such an outcome appears contrary to the provisions of the Environmental Protection Act the object of which is described as ‘the object of this act is to protect Queensland’s environment while allowing the development that improves the total quality of life both now and in the future in a way that maintains the ecological processes on which life depends (ecologically sustainable development).’ [49] I have however come to the conclusion, taking the appellant’s collective discretionary submissions into account, that I should not exercise my discretion in favour of staying the Enforcement Notice. I give great weight to the Environmental and Amenity issues to which I have earlier referred.” [26] Next, by letter dated 16 June 2015, Council’s solicitors wrote to the Appellant’s solicitors, setting out the above paragraphs from Griffin JDC’s judgment and asked that the Appellant provide material justifying why, in the circumstances, it was -- 17 of 30 -- 18 appropriate for a stay of the EPO to be granted, and advising that, on receipt of a response, Council would advise its attitude to a stay. That letter reminded the Appellant’s solicitors that their client carried the onus to satisfy the Court a stay was appropriate. There is no evidence of the Appellant responding to that letter. Order – Rackemann JDC 18/6/2015 [27] Two days after the last mentioned letter, on 18 June 2015, Rackemann JDC made orders identifying the issues in the Appeal as earlier mentioned, and further ordered:- “10. By 4pm on 3 July 2015 the respondent shall file and serve further particulars of the subject environmental protection order (the EPO), by way of: (a) particulars of the harm or potential harm alleged in paragraph 7 of the EPO, specifying, in relation to each aspect of alleged harm: (i) whether the alleged harm is actual harm; (ii) whether the alleged harm is potential harm; (iii) the relevant environmental value that is allegedly affected or potentially affected; (iv) the alleged adverse effect or potential adverse effect upon the environmental value; (v) the connection between that alleged harm and the ERA conducted by the Appellant; and (vi) the extent of the alleged harm, including whether the alleged harm constitutes environmental nuisance, material environmental harm or serious environmental harm; and (b) particulars of the conditions of the EA with which it is alleged in paragraph 11 of the EPO that there is a need to secure compliance, specifying: (i) each condition of the EA with which it is said there is non-compliance; (ii) in respect of each identified condition, the nature of the alleged non-compliance; and (iii) in respect of each identified condition, the requirement in paragraph 1 of Part B of the EPO which is alleged to be needed to secure compliance with that condition.” -- 18 of 30 -- 19 [28] It can be seen from the above exchange of correspondence that, as at 16 June 2015, the Appellant was aware the Council’s reliance on its officers’ inspection of 13 May 2014 and on the findings of Griffin JDC of 20 December 2012. As to the latter, by inference, the Council had continuing concerns. Given the fact that that Council was yet to deliver the further and better particulars ordered on 18 June 2015 by 3 July 2015, this stay application appears premature. Council’s Arguments as to the Disputed EPO Requirements [29] I shall firstly set out the Council’s position in relation the remaining disputed EPO Requirements. A 1.2 - Sanding Operations Council says the Appellant has deposed to the current use of vacuum sanders to capture the particulates from sanding operations,8 it says Requirement 1.2(i) stipulates a system required which is acknowledged by the Appellant to be in operation. On that issue the Appellant deposed – “vacuum sanders are used, so that the particulates from sanding are captured.” As to the remaining paragraph 1.2 (ii) to (viii), Council says they deal only with procedural/operational matters. It can be seen from the EPO in Annexure A that those Requirements deal with cessation of sanding in certain windy conditions, sanding away from the water’s edge, sanding in a closed ventilated space, the use of drop sheets for the capture of particulate matter, the sweeping/vacuuming of particulate matter from the slipway at least daily, disposal of particulate matter in sealed refuse containers in a regulated waste bin/skip and the washing down of the slipway after the completion of sanding work. B 1.5 and 1.6 - Antifoul Application and Spray Painting 8 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29(q). -- 19 of 30 -- 20 Council says that, as to 1.6(v) requiring the application of antifoul/spray painting to be conducted in a purpose built booth or fully enclosed temporary structure, that is already expressly required by condition B6 of the EA. That provides that no spray painting is permitted in the open and must be carried out within a spray booth approved by the Administrating Authority. Relevantly the Council or its delegate is the Administrating Authority as is evident on the face of the EA. As to the balance of 1.5 and 1.6, again Council says these Requirements are procedural or operational in nature, dealing with the Requirement to use only low emission antifoul (1.5), only sufficient amounts of antifoul or paint necessary to complete the job to be placed in the gun, containers containing paint, antifoul or other chemicals to be kept closed until the product is decanted and, ground sheet or tarpaulin to be used under the work area. C 1.10 to 1.19 - Waste and Chemical Management and Disposal As to these Requirements, Council says they do no more than ensure compliance with existing conditions in Schedule F – WASTE MANAGEMENT of the EA and are otherwise procedural in nature. The EA conditions F(1) to F(6) deal with the following:- F(1) – prohibition on the release, storage, transfer or disposal of waste contrary to the EA; F(2) – waste removal vehicles to be licensed under the EPA; F(3) – all waste to be removed to an approved facility by licensed waste transporter; F(4) – proper records to be kept of all waste leaving the site; F(5) – prohibition on the burning of waste site or elsewhere; and -- 20 of 30 -- 21 F(6) – the subject use to be carried out so as not to generate unsightly accumulation of waste material. I agree with Council that Requirements 1.10 to 1.16 are designed to ensure compliance with Schedule F of the EA. 1.17 to 1.19 of the EPO dealing with the handling of chemicals are operational in nature. D 1.21 – Slipway Activities Requirement 1.21 requires all slipway activities to be undertaken above the intercept drain and collection sump. Council relies on the Appellant’s affidavit9 deposing to the fact that the new winch allows the boat to be hoisted higher in the air to make it safer to clean so that even the largest boat of 50 feet in length sit above the waste drain on the Slipway. In short, as I understand the Council’s position, the Appellant is compliant. E 1.28 and 1.29 – Solid Waste Management and Disposal As with 1.10 to 1.19 dealing with waste and chemical management and disposal, Council says 1.28 and 1.29 dealing with solid waste management and disposal particularly ensures compliance with the existing conditions in Schedule F-Waste Management of the EA dealt with above. F 2.2 and 2.3 – hours of operation Requirements 2.2 and 2.3 provide for boat maintenance and repair operations to be conducted Monday to Friday 7.00am to 6.00pm and Saturday 8.00am to 5.00pm only, except for an emergency. No operations are to take place on Sundays or public 9 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29(g). -- 21 of 30 -- 22 holidays. Council again points to the Appellant’s affidavit10 that the Appellant deposes to the operation of the boat maintenance and repair facility involving activities only between 7.00am and 5.00pm apart from the loading of boats on or off the slipway which is dependent on the tide. Council says these Requirements are procedural in nature and generally accord with the Appellant’s existing practice. But I note the Appellant does not particularise the days of operation relating to the 7.00am to 5.00pm period namely whether those hours are worked on Saturdays, Sundays and public holidays. Nor does she say whether or not the loading of boats according to the tidal conditions takes place on those days. In any event they are operational matters. G 2.8 – Water Blasting EPO 2.8 requires water blasting operations to be conducted only with an electric water blaster generating low noise levels. Council points to the Appellant’s affidavit11 deposing to the purchase, in January 2015, of an electric pressure washer which works from mains electricity and replaces the old petrol driven washer resulting in a reduction of noise. Again, I take this to mean the Appellant is compliant. H 2.19 to 2.23 – Chemical Management and Disposal EPO Requirements 2.19 to 2.23 deal with the following:-  2.19 – storage of paints and chemicals under cover on lot 20.  2.20 – storage of chemicals/dangerous goods to comply with relevant Australian standards and the Work Health and Safety Act 2011.  2.21 – maintenance of an inventory of raw materials/chemicals. 10 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29(y). 11 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29(p). -- 22 of 30 -- 23  2.22 – maintenance of a registered/documented spill response and clean-up procedure on site.  2.23 – staff to be appropriately trained as to storage and disposal of chemical and chemical containers. Council says that these are procedural Requirements. I agree. I 2.27 – Use of Spill Response Kit EPO 2.27 requires all staff to be trained in the use of the spill response kit. The Council says the 13 May 2014 site inspection by its officers indicated there was such a spill response kit on site. No mention is made of training. J 2.28 – Written Records EPO 2.28 mandates the keeping of written records detailing slipway maintenance, water level in the holding tanks prior to using the sand blaster, details of inspections required under clause 1.27 and staff training. The Council says this is procedural in nature. I agree. [30] As to the above disputed EPO Requirements, Council argues that the refusal to grant a stay would not impact on the ultimate effectiveness of any orders which might be made in the Appeal, their observance does not have any significant financial implication and the Requirements are matters which the Appellant is either already observing or is obliged to do under the conditions of the existing EA. Appellant’s Response [31] The Appellant points to the following considerations which it says should move the Court to exercise its discretion in favour of granting a stay:- -- 23 of 30 -- 24 31.1 Onus of Proof in Appeal Council bears the onus in the Appeal to establish that the issue of the EPO was a legitimate exercise of its discretion under the Environmental Protection Act 1994. The Appellant relies on Oakley v The Chief Executive Administering the Coastal Protection & Management Act 199512, where His Honour Rackemann JDC heard an Appeal challenging the Chief Executive’s decision to issue a Coastal Protection Notice under s 59 of the Coastal Protection & Management Act 1995 (CPMA). The nature of the appeal was by way of rehearing under s 163(2) of CPMA, but the Act was silent as to which party bore the onus of proof. In the result, His Honour found that the Appeal, by way of rehearing, was to proceed by way of a hearing de novo. Section 163(2) of CPMA is in identical terms to s 536(2) of the EPA:- “An appeal is by way of rehearing, unaffected by the (decision makers) decision.” Although it is not necessary for me to determine the issue on this application, I proceed on the basis that Council will carry the onus in the appeal. 31.2 History of Facility The Appellant relies on the historical nature of the facility which has been conducted on the subject land for half a century. Consistent with my decision on the strike out application, I do not regard this as a relevant discretionary criterion. In answer to a question during the hearing as to whether the Appellant was alleging bad faith on the part of the Council, the Appellant’s counsel, Mr Skoein, replied13 that: “[T]hat will ultimately be the submission in respect of the Council’s behaviour in this regard, yes, that it has been persecuting this longstanding 12 [2014] QPEC 58. 13 T1-22.42-46. -- 24 of 30 -- 25 interest at the behest of a particular member of the public who is the former owner of the very property that we’re talking about and who lives next door. That’s exactly going to be the submission.” I note, however, that such a basis is not a ground of appeal. 31.3 No evidence of Actual Environmental Harm Next, the Appellant says there is no evidence before the Court of any actual environmental harm arising from the lengthy operation of the subject facilities. The particulars of actual environmental harm resulting from the operation of the Facility would not be known until Council provided its further and better particulars by 3 July 2015. Council clearly asserts actual harm in the Ground A6 of the EPO and provides particulars which may be expanded when further particulars are given. Again, this supports the observation that this application for a stay may be premature. However, whether or not any actual environmental harm has been caused, it is clear from s 319(1) of the EPA that the Appellant’s general environmental duty involves a prohibition on activities that not only actually cause but also are likely to cause environmental harm in the circumstances of that provision. Also, apart from Ground A6 above, there is the evidence of reliance by Council on the findings of Griffin JDC. Those findings, based on experts evidence as at date of his judgment on 20 December 2012, demonstrate that his Honour was satisfied that the combination of factors including noise, air quality, water quality, aquatic ecology and conservation issues and the risk in relation to water quality and conservation issues suggested substantial and unacceptable impacts on the environment and on the amenity of the area should the Appellant’s operation continue as proposed. The correspondence I have outlined demonstrates Council’s continuing concerns as to those matters raised subsequent to its 13 May 2014 inspection and the Appellant’s failure to respond to -- 25 of 30 -- 26 Council’s letter of 16 June 2015 seeking to be fully informed of the Appellant’s position to enable it determine whether or not it would agree to a stay. 31.4 No Evidence of Potential Environmental Harm arising from the Facility I have already addressed this in the preceding paragraph. 31.5 No Evidence of Noncompliance by the Appellant with the Environmental Authority For the reasons I have outlined in relation to the findings of Griffin JDC, there is clearly evidence the Council will rely upon to establish non-compliance with the EA. That is yet to be particularised because the Council had until 3 July to do so. 31.6 No evidence that any of the EPO Requirements are necessary to avoid environmental harm or to ensure compliance with the Appellant’s general environmental duty or the EA The above addresses this point. To the extent that the Appellant is unable to identify the Council’s case to this point, it will be particularised when the further particulars are provided. 31.7 The EPO Requirements imposed New Conditions on the Operations of the Facility and imposed restrictions on its operation including overall hours of operation The Appellant firstly says the EPO Requirements impose new conditions restricting the operations of the facility, namely (a) 2.2 and 2.3 – restrictions on present operating hours The Appellant says that EPO Requirements 2.2 and 2.3 impose restrictions on the overall hours of operation. I agree with this. EA - -- 26 of 30 -- 27 Schedule E – Noise does not stipulate any hours of operation but rather proscribes noise levels in the event a complaint of unreasonable intrusive noise is made to Council provided the complaint is not frivolous or vexatious. The only mention of any complaint received by Council is in the Council’s letter to the Appellant’s solicitors of 11 May 201514 in which it also advised that – “the Council has continued to receive a number of complaints regarding your client’s operations.” The complaints were not particularised. However the Appellant deposes to a Council inspection in May 2014 by Mr Craig Manley the author of the EPO who advised15 that the inspection was in response to a complaint that the operation of the facility had resulted in the poisoning of mangroves and that there had been pressure washing of the slipway and of boats in Elimbah Creek. I was initially inclined to the view that any complaints received by Council did not relate to noise levels. But, as against that, EPO Ground A7a clearly relies on noise as an issue. The provisions of the further particulars by Council may clarify this issue. I am presently unable to determine the nature and extent of the noise issue. Although, as I have set out, the Appellant deposes to the acquisition in January 2015 of electric pressure washer which has reduced noise levels16, no details of those noise levels are given by reference to the noise levels in Schedule E of the EA. 14 Affidavit of B Rix filed 16 June 2015, Exhibit EGR 1, p 53. 15 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 33. 16 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29(p). -- 27 of 30 -- 28 (b) Of the other Requirements raised by the Appellant as a restriction on operations, the only others not conceded by the Council are Requirements 1.5 and 1.6 (antifoul application and spray painting) and 2.8 (water blasting). (c) 1.5 and 1.6 – antifoul application and spray painting I consider these are operational Requirements to facilitate compliance with EA Schedule B – AIR. The appellant deposes17 to the erection of a tarpaulin around three sides of any boat being worked on, two which are 600gm vinyl tarps 3.1m and 4m high respectively, it is said. Those heavy vinyl tarps, in use since 2012, replaced the previously used light tarps which had been accepted by Council. According to the Appellant, the fourth side left open during work on the boat is determined by the direction of the wind, the intention being for the tarpaulins on the other three sides to collect any spray drift of antifoul or paint spray. It is not clear to me whether the asserted acceptance by Council of this procedure is said by the Appellant to be approval of an enclosed spray booth within EA – B6. (d) Requirement 2.8 – water blasting Given the Council’s reliance on unacceptable noise levels in the EPO and the lack of evidence as to the noise levels of the Appellant’s electric pressure washer I am not satisfied that any stay should lie in relation to this requirement. Conclusion re: Stay Application 17 Affidavit of H L Cuthbert filed 25 June 2015, paragraph 29 (l). -- 28 of 30 -- 29 [32] Having regard to the principles governing the exercise of the Court’s discretion in the stay applications and the matters relied on by the Appellant, I am not persuaded that a stay should be granted other than in relation to those Requirements conceded by Council. Compliance with the remaining disputed Requirements of the EPO will not, either individually or collectively, threaten the integrity of any Appeal decision. Nor has the Appellant established any threat of irreparable prejudice if the stay of these disputed requirements is not granted. [33] I have not dealt seriatim with every matter raised by the Appellant, but it should not be thought that I have not considered all arguments. The reality is that the Appellant’s case revolves very much around pointing to the history of the previous litigation with the Council and complaining of the fact that she was given no warning by Council or given the opportunity to discuss issues with Council prior to the issue of the EPO. I can well understand her frustration with this, but as Mr Skoien correctly agreed,18 there was no obligation on the Council to do so. The Appellant deposes19 that, as far as she is concerned, she is conducting the facility in accordance with the terms of the EA by taking appropriate measures to avoid environmental harm and without any environmental harm being caused. The difficulty is that general assertions of such a nature do not address, with any particularity, the matters known by the Appellant to be relied upon by Council as I have endeavoured to outline above. I say that notwithstanding that Council’s particulars were, at the time of the application, yet to be delivered. [34] I make the following orders:- Strike out application 18 T1-20.43-46 – T1-21.1-5. 19 Affidavit 26 June 2015 at para [39]. -- 29 of 30 -- 30 (a) That paragraphs 3 – 4 and 13 – 26 of the Appellant’s Notice of Appeal be struck out pursuant to s 171 of the Uniform Civil Procedure Rules 1999. (b) That the costs of the application be reserved. Stay application (c) That pursuant to s 535 of the Environmental Protection Act 1994, and subject to further order of the Court, the operation of the following Requirements of Environmental Protection Order dated 31 March 2015 issued by the Respondent to the Appellant be stayed pending the final determination of the within Appeal:- 1.1, 1.3 and 1.4, 1.7 to 1.9, 1.20, 1.22 to 1.27, 1.30, 2.1 , 2.4 and 2.5, 2.7, 2.9 to 2.18 and 2.24 to 2.46. (d) That costs of the Application be reserved. -- 30 of 30 --