Crowther v State of Queensland [2008] QPEC 76

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v State of Queensland [2008] QPEC 76 PARTIES: CLAIRE CROWTHER Applicant V STATE OF QUEENSLAND Respondent FILE NO/S: 2377 of 2002 DIVISION: Planning and Environment PROCEEDING: Application in a proceeding ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 20 October 2008 DELIVERED AT: Brisbane HEARING DATE: 14 August, 22 September 2008 JUDGE: Alan Wilson SC, DCJ ORDER: Application dismissed CATCHWORDS: PRACTICE AND PROCEDURE – DECLARATORY RELIEF – INJUNCTION – where applicant previously obtained injunction against activities on respondent’s land – where breaches alleged – whether breaches occurred – remedies for breach Crown Proceedings Act 1980, s 10 Environmental Protection Act 1994, ss 505, 507 Integrated Planning Act 1997, s 4.3.27(3) Uniform Civil Procedure Rules, r 668 Cases considered: Crowther v Qld [2003] QCA 260 Crowther v Qld [2003] QPEC 017 [2003] QPELR 505 Crowther v Qld [2005] QPEC 068 Crowther v Qld [2006] QPELR 384 Crowther v Qld [2005] QPELR 520 Crowther v Qld [2007] 1 Qd R 232 State of Qld v Crowther [2007] QPEC 107 -- 1 of 4 -- 2 COUNSEL: Applicant in person E Morzone for respondent SOLICITORS: Applicant self-represented Crown Solicitor for respondent [1] Miss Crowther1 lives near Yeronga TAFE College and has for some years been concerned about emissions from activities within the college, including a foundry. On 27 February 2003 this Court ordered, by way of injunction, that the State ‘ensure that after January 2005, in respect of any processes of welding, cutting, machining or grinding of metal conducted at Yeronga Institute of TAFE, any outlet for odour emissions be located further than 100 metres from Park Road, Yeronga’. [2] There have already been a great many proceedings touching this matter2 . A history of them is set out in State of Queensland v Crowther [2007] QPEC 107. Earlier this year Miss Crowther applied for an order that ‘the applicant, and expert, confirm the effecting of the 100 metre injunction distance prohibiting any outlet of cutting, machining, grinding, welding of metal at Yeronga Tafe Park Road Yeronga, as ordered by the Planning and Environment Court 27th February 2003’. On 16 May 2008 it was ordered that she and others be allowed to go on College land ‘for the purpose of identifying the line referred to in the judgment of 27/2/03’. [3] Later, she filed another document asking that the Court ‘require a Declaration from the Minister of Education or CEO of Education that the order of 27 February 2003, paragraph 3 of the Planning and Environment Court, the injunction of 100 metres has been and will be upheld and that an officer of the State is to report back to the Court under oath that the Respondent is compliant’. [4] At the present hearing she adduced evidence of occasional continuing odours like those which featured in the original proceedings in 2002/3 and led to the injunction, and (from a surveyor) of the absence of a clear line, pegs, or other form of delineation on the TAFE premises marking the 100 metre distance from Park Road. [5] The nub of Miss Crowther’s complaint, and her application, is that because she cannot obtain relief in the nature of penalties for contempt against the State if it breaches the injunction (as the Court of Appeal confirmed in Crowther v State of Queensland [2006] QCA 308), she is entitled to ask the Court for orders which will enhance the prospects of compliance – and that can best be done, as things presently stand, by requiring that the ‘injunction line’ be clearly marked throughout the college premises and grounds. As she said ‘… there is nothing in situ to assist compliance with the two court orders… (and) there is a real risk that facilities will continue to breach the Environmental Protection Act… and breach most significantly the declaration of the originating order and the final order to do with the 100 metre injunctive line3 ’. [6] Support for the possibility of further orders designed to cement proper compliance with the injunction appears in the judgment of Jerrard JA in the Court of Appeal 1 The form of address the applicant prefers. 2 Crowther v Qld [2003] QCA 260; Crowther v Qld [2003] QPELR 505; Crowther v Qld [2005] QPEC 068; Crowther v Qld [2006] QPELR 520; Crowther v Qld [2005] QPELR 520; Crowther v Qld [2007} 1 Qd R 232; State of Qld v Crowther [2007] QPEC 107. 3 Transcript of proceedings 14 August 2008, 21.20-24. -- 2 of 4 -- 3 decision mentioned earlier4 where his Honour said, at para [42], that ‘... it would be consistent with (the Crown Proceedings Act 1980, s 10) that the Planning and Environment Court could declare, if so satisfied, that the respondent had not complied with the injunctive order, specifying the failure, and make appropriate declarations as to what the respondent had to do to comply…’. It is appropriate to treat the present application as an attempt to pursue relief of that kind. [7] Evidence from officers of the College convincingly shows, however, that while an actual demarcation line, marker or other sign or device are not present in all parts of the college reached by the ‘injunction line’, none of the offending activities persist within its parameters. None of these deponents was required for cross-examination and their evidence was unchallenged. Nor did any other evidence, including some internal College communications tendered at the re-opening of the case on 23 September 2008, suggest non-compliance or, indeed, anything from which it might be suspected. [8] That leaves, of course, no explanation for the intermittent odours detected by Miss Crowther or another resident but, again, the weight of evidence is persuasive that it is improbable they are the product of any activity offending the terms of the injunction. That conclusion is, in itself, unsurprising; Miss Crowther’s diligence in pursuing the college through many proceedings over many years would, it might be thought, make any conduct which might even remotely be thought to offend the order foolhardy. [9] In the absence of persuasive evidence of a breach the relief she seeks is, then, unnecessary and of no utility. [10] In any event she also faces, I think, some other hurdles in pursuing the particular remedy now sought. First, the original proceedings have been finalised. The original order was made under s 505 of the Environmental Protection Act 1994 which contains, it is to be noted, no provision equivalent to the court’s power to change enforcement orders under s 4.3.27(3) of the Integrated Planning Act 19975 . The Uniform Civil Procedure Rules do provide, in r 668, a power to change orders but that jurisdiction can only be invoked by the party against whom the order is made. [11] Secondly, while the original order did allow liberty to apply, Miss Crowther’s present applications go beyond what is ordinarily envisaged by an order of that kind and, certainly, the one made here. It was placed in the order primarily to allow the State to return to the court if some difficulty or complexity arose in its efforts to comply (as later occurred). What is being attempted here is a re-litigation of the same issue, accompanied by a request for additional relief. [12] Finally, the original order nowhere required the State to take the physical steps which Miss Crowther now insists should be put in place. The evidence does not, in any event, establish a need for them. No circumstances arise, it follows, of the kind discussed by Jerrard JA in the passage cited earlier. [13] In summary, I am not persuaded the State has not complied with the injunctive order or that an occasion arises requiring further declarations or orders as to what 4 [2007] 1 Qd R 232. 5 Or, s 507 of the Environmental Protection Act. -- 3 of 4 -- 4 the respondent should do to effect compliance. For these reasons, the application is dismissed. -- 4 of 4 --