Crowther v Brisbane City Council (No 2) [2010] QPEC 72 [2011]1 QPELR 37

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v Brisbane City Council (No 2) [2010] QPEC 72 PARTIES: CLAIRE CROWTHER (applicant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 2104 of 2010 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 26 August 2010 DELIVERED AT: Brisbane HEARING DATE: 25 August 2010 JUDGE: Searles DCJ ORDER: The application be struck out for want of jurisdiction. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION FOR INJUNCTION – where applicant seeks an injunction to restrain work under Queensland Heritage Act 1992 Exemption Certificate – whether the court has jurisdiction. COUNSEL: C. Crowther appeared on her own behalf Mr R. Litster SC and Mr J. Lyons for the respondent SOLICITORS: Brisbane City Legal Practice for the respondent [1] The applicant seeks an injunction to restrain the Council from doing any work pursuant to an Exemption Certificate for development (Certificate) granted by the Department of Environment and Resource Management (DERM) under s 74 of the Queensland Heritage Act 1992 (QHA). The Certificate was issued on 21 January 2010.1 [2] The Certificate relates to works proposed to be carried out by the Council in the Yeronga Memorial Park, which park is on the Queensland Heritage Register under QHA. The park contains an avenue of memorial fig trees commemorating soldiers who died in World War 1. They extend from Park Road along Honour Avenue 1 Exhibit 1, Tab 8 page 5 -- 1 of 7 -- 2 through Yeronga Memorial Park to Memorial Gates adjacent to Ipswich Road.2 The Council intends to reinstate the original planting distances and alignments of the trees (works) and, to that end, applied for the Certificate which authorizes those works upon the conditions outlined therein. The description of the work in the Certificate is:- “Removal and replacement of Ficus benjamina trees; additional planting of one Ficus; removal of trees of no heritage significance; temporary removal of wooden marker post; remedial pruning.” [3] The applicant opposes the execution of the works on the broad basis that any work carried out pursuant to the Certificate would adversely affect the environmental values of the Park and would be in breach of various pieces of legislation dealing with the environment. [4] The application, as originally filed, did not identify the relief sought. This was observed by His Honour Judge Robin QC when reviewing the matter on 23 July 2010 (first review). 3 It is now common ground that the applicant seeks to enjoin the Council from undertaking any of the works. [5] The first review was the day following the filing of the application. There, the Council raised the issue of whether or not this Court had jurisdiction to entertain the application. His Honour also expressed serious doubts as to that issue. 4 As a result, His Honour declined to grant an interlocutory injunction sought by the applicant and directed that she provide the Council with an outline of facts, matters and contentions she intended to rely upon to, inter alia, establish the jurisdiction of this court. [6] Subsequently the applicant provided a written outline as directed and a further written outline was tendered at the hearing. The Council also tendered its submissions in response. Issues [7] There are three issues possibly to be determined; firstly, whether this court has jurisdiction; secondly, assuming jurisdiction is found, whether the applicant has standing to bring the application and, finally, if the first two issues are decided in her favour, whether an injunction should lie. [8] Having read the applicant’s outline of argument and the court file prior to the hearing, I indicated to the parties that I shared his Honour Judge Robin’s concerns as to jurisdiction. Accordingly, I invited the parties to address me on that issue to allow me to determine it before proceeding to determine the other issues. I reserved my decision until the following day. Applicant’s argument on jurisdiction [9] The applicant’s written outline of submissions referred to four pieces of legislation; Environmental Protection Act 1994 (EPA), Land Act 1994 (LA), Nature 2 Exhibit 7, Affidavit of applicant , court document 6 pp 22-30 3 2010 QPEC 62; exhibit 1. Tab 8 p 8, 4 Exhibit 1, Tab 8 p 82 -- 2 of 7 -- 3 Conservation Act 1992 (NCA) and QHA, referred to above. In her oral submissions on jurisdiction she relied only upon the EPA and the NCA. She expressly acknowledged that the Sustainable Planning Act 2009 (SPA) and the QHA did not apply. [10] I invited the applicant to direct me to any specific provisions in either the EPA or NCA conferring jurisdiction on this court. She was unable to do so. Environmental Protection Act 1994 [11] The applicant firstly relied upon section 4 EPA, particularly ss 4(2)(a) to (d). That section is under the caption “How object of Act is to be Achieved”. The subsections she relied upon are in these terms:- “4 (1) …; (2) the program is cyclical and involves the following phases; (a) Phase 1 – establishing the state of the environment and defining environmental objectives; (b) Phase 2 – developing effective environmental strategies; (c) Phase 4 – implementing environmental strategies and integrating them into efficient resource management; (d) Phase 4 – ensuring accountability of ` environmental strategies.” [12] She also relied on s 4(6)(b) which provides:- “(6) Phase 3 is achieved by:- (a) … (b) ensuring all reasonable and practical measures are taken to protect environmental values from all sources of environmental harm; and (c) ...; and (d) …” [13] Next the applicant relied upon s 505 in Part 4 dealing with Restraint Orders particularly s 505(1) (c) and (d). Those provisions provide:- “505 Restraint of Contraventions of Act etc (1) Proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by:- (a) the Minister; or (b) the administering authority; or (c) someone whose interests are affected by the subject matter of the proceeding; or (d) someone else with the leave of the court (even though the person does not have a -- 3 of 7 -- 4 proprietary, material, financial or special interest in the subject matter of the proceeding).” [14] She said she was such an interested person, which really goes to her standing rather than to jurisdiction. She also made the broad submission that, as there is no prohibition in the EPA to the bringing of her application, this court thereby had jurisdiction. [15] She then referred to sections 51(1)(a),(c) and (f) of Environmental Protection Regulation 2008 (EPR). These provisions deal with matters to be considered for environmental management decisions under EPA. They relevantly provide:- “ 51 Matters to be Considered for Environment Management Decisions (1) The administering authority must, for making an environmental management decision relating to an activity, consider the following matters:- (a) each of the following under any relevant environmental protection policies:- (i) the management hierarchy; (ii) environmental values; (iii) quality objectives; and (iv) the management intent. (aa) …; (b) …; (c) the nature and management of, including the use and availability of technology relating to, the processes being, or to be, used in carrying out the activity; (d) …; (e) …; (f) for each affected person for the activity – the order of occupancy or use between the persons carrying out the activity and the affected person; (g) …; (h) …; (2) In this section;- -- 4 of 7 -- 5 affected person, for an activity, means a person affected, or may be affected, by the release of a contaminant or waste from carrying out the activity.” [16] Essentially what the applicant was saying, as I understood her, was that, as the EPA deals with the protection of the environment, and as this court is the court referred to in the Schedule 4 (Dictionary) of the EPA, it thereby has jurisdiction to deal with this matter because the application seeks to protect the environment. [17] I repeat that she was not in a position to point to any specific EPA provision founding jurisdiction in this court in relation to her application. Nature Conservation Act 1992 [18] Next the applicant relied upon the NCA. She firstly referred to s 6 which is in these terms:- “6 Community participation in administration of Act This Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests, of, landholders and interested groups and persons including Aborigines and Torres Strait Islanders.” She said she was such an interested person which, again, really goes to her standing rather than to jurisdiction. [19] She next referred to NCA section 173A in Division 2 – Proceedings for Declarations and Enforcement Orders. She pointed to the definition of ‘court’ in that section as meaning the Planning and Environment Court. [20] She next referred to section 173B(1)(b)(iii) which relevantly provides:- “173B Court may make declarations (1) A person may bring a proceeding in the court for a declaration about a following matter, other than an excluded matter:- (a) … (b) the construction of:- (i) … (ii) … (iii) a licence, permit or other authority issue given under a regulation.” The applicant argued that the reference in s173B(1)(b)(iii) to a regulation was intended to include the Certificate under the QHA issued to the Council. It followed, on her argument, that this court had jurisdiction to entertain her application. -- 5 of 7 -- 6 Council’s Response Nature Conservation Act 1992 [21] The applicant’s submissions proceeded on the basis that the Yeronga Memorial Park was a conservation park, and hence a protected area for the purposes of NCA. At the hearing the Council submitted, and the applicant accepted, that that was incorrect so it became common ground that the park was not a conservation park within the NCA. Despite this concession, the applicant said that, although her argument was in trouble, she would not “rescind her position”. [22] In other words, she adhered to her argument that the NCA gave jurisdiction to this court without identifying any specific section. The Council submitted that the basic concept of the conservation of nature in section 4 of the NCA applied only to classes of protected areas, including a conservation park. Given that the subject Park was not a conservation park, and hence not a protected area, the NCA did not have any application. Environmental Protection Act 1994 [23] The council rejected the applicant’s argument that the EPA conferred any jurisdiction. Specifically, as to s 505(1) (c) and (d), the council said, in relation to (d), no leave of the court had been sought or granted. That is correct. In relation to (c), it said the applicant was not one whose interests were affected by the issue of the subject Exemption Certificate. It contrasted the applicant’s position with an earlier case in which she was involved5 where the applicant did have a relevant interest in seeking relief from noise nuisances emanating from a property near her residence. In that case this court had jurisdiction. In the present case, however, she had no relevant interest according to the Council. Once again, this speaks more to her standing than to jurisdiction. 6 Decision on Jurisdiction [24] The applicant has had sufficient time to identify any specific provision conferring jurisdiction on this court. At the first review on 23 July 2010, His Honour Judge Robin QC made it quite clear to the applicant that she should give “chapter and verse of the legislation that you rely on to say the court’s got jurisdiction …”.7 [25] Nothing submitted to me by the applicant persuades me that there is any proper basis for this court assuming jurisdiction in this application. By referring to objects, preambles, and miscellaneous sections of legislation, the applicant has not established that there is jurisdiction in this court. I agree with the council’s submissions on this issue. [26] Given my finding, there is no need to deal with the other two issues I have identified. 5 Crowther v State of Queensland (2009) QPELR 216 at 220 paragraph 10 per Wilson SC, DCJ 6 See Australian Conservation Foundation Incorporated v The Commonwealth of Australia and Ors 146 CLR 493, 526 and 530 per Gibbs J; and 547 per Mason J. 7 Exhibit , Tab 9 transcript 23.7.2010 1.12.45 -- 6 of 7 -- 7 Order [27] I order that the applicant’s application be struck out for want of jurisdiction. -- 7 of 7 --