Crowther v Brisbane City Council [2010] QPEC 62

1-1 [2010] QPEC 62 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 2104 of 2010 CLAIRE CROWTHER Applicant and BRISBANE CITY COUNCIL Respondent BRISBANE ..DATE 23/07/2010 ORDER CATCHWORDS Uncertainty regarding court's jurisdiction to entertain application for unspecified relief where applicant apprehends that destruction is threatened of heritage-listed trees - directions made for identification of issues -- 1 of 4 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The court has made an order in terms of an initialled draft. It records an undertaking by the council to provide the applicant, Ms Crowther, today with a copy of a section 74 certificate, as it is called, which, for Heritage Act purposes, authorises work to be done to the extent of removal of trees which the applicant contends are a war memorial in Yeronga Park. The application filed only yesterday fails to identify the relief sought. It, in the grounds, however, appears to complain that the council proposes to do destructive work on the war memorial trees without appropriate authority and the relief sought, presumably, is injunctive relief to restrain the council from doing that work, or at least a declaration as to its unlawfulness. In either case, Mr Litster S.C. for the council, indicates that his client's view, and his own, is that the application does not fall within the jurisdiction of the court. That is indeed the first issue that ought to be resolved in the circumstances. Mr Litster indicates the council is confident of overcoming the contention that Ms Crowther appears to be making that any authority the council may have under heritage legislation to do work in respect of trees carries no weight for the purposes of other legislation to do with trust arrangements under which Yeronga Park might be operated, the Land Act in particular. -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 If an interlocutory injunction is being sought today, I indicate that I am not prepared to make any such order, given the serious doubts I have about the court's jurisdiction. It may be that sometime in the future Ms Crowther is able to demonstrate that jurisdiction exists but that has not occurred for the moment. No undertaking is offered by the council to refrain from doing work - which leaves Ms Crowther to remedies that may be available to her in the Supreme Court or perhaps in the court of public opinion if she is concerned to preserve trees in the short term. The court makes an order today at the council's request which requires Ms Crowther to indicate the facts, matters and contentions she relies on and, in particular, every legislative provision which she relies on to show, firstly, that the court has jurisdiction and, secondly, that under the laws of the State there is a case for relief being granted against the council on the basis that the court would have jurisdiction. The council suggested that six days be allowed for Ms Crowther to comply with that step. She requested an additional week, which has been allowed. There will be a review on the next day if there is to be an argument about the court's jurisdiction and the like. Directions can be given as to when that argument occur. It is not suggested that the court would have time on 6 August. -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 Order as per initialled draft. ----- -- 4 of 4 --