Crowther v State of Queensland [2003] QPEC 17 (2003) QPELR 505

State Reporting Bureau Transcript of Proceedings 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. PLANNING AND ENVIRONMENT COURT [2003] QPEC 017 JUDGE ROBIN QC No 2377 of 2002 CLAIRE CROWTHER Applicant and STATE OF QUEENSLAND Respondent BRISBANE ..DATE 27/02/2003 ORDER -- 1 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 2 1 10 20 30 40 50 60 HIS HONOUR: I published reasons to the parties on the 20th of December last year for my conclusions, which were that the applicant had established the commission of offences arising from the conduct of activities at the Yeronga Institute of TAFE. And that further offences might be committed unless restrained. The reasons were published at the earliest possible date with a view to alerting the respondent to the need it might feel to make plans to assist it to deal with the difficult circumstances that might arise if orders along the lines foreshadowed in the published reasons eventuated. It is not only the respondent's interests which were relevant here, but also those of the numerous students of the Yeronga Institute of TAFE pursuing the relevant courses and TAFE staff as well. I have taken the approach that there is a general public and community interest in ensuring the continuance of useful educational activities which have been carried on at the TAFE. There is affidavit material from Ms Dawson indicating the importance the respondent attaches to those matters too. I have sympathy for the applicant and those who have made common cause with her. The Court has found, broadly -- 2 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 3 1 10 20 30 40 50 60 speaking, that their complaints of odour nuisance over the years against the TAFE have been justified. They will no doubt feel disappointment that the exercise undertaken by the Court of balancing their interests against broader public interests will result in less dreconian orders and less quickly effective orders than they might think themselves entitled to. Ms Crowther's great objective seems to have been to get the offending activities removed from the site in the future. That has been achieved in the short-term. The intention of my publishing reasons early has borne fruit in that temporary alternative locations have been found for those activities. So far as foundry activities are concerned, Ms Dawson's affidavits indicate that those will not be returning to Yeronga. However, in respect of welding, the intention is that they will do so shortly and perhaps within months. Ms Crowther has seized on the availability of the possibility of temporary relocation and says it vindicates her claim that that long-term relocation is possible. I ought to say I accept from Ms Dawson that that is not the case. -- 3 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 4 1 10 20 30 40 50 60 I commented in the published reasons on the curiosity of a situation in which the State of Queensland is the respondent. It cannot effectively be made subject to sanctions or penalties. I did acknowledge that the flesh and blood people through whom the State works at Yeronga TAFE might find themselves facing proceedings if involved in conduct which caused the Court's orders to be breached. Mr Gore QC, who appears today for the respondent, has urged that the State of Queensland not be made the subject of restraining orders in any event, it being contrary to tradition, if not unseemly, that a governmental body ought to be in that situation. The expectation of everyone is that, once the Court has identified what the requirements of the law are, any governmental body will be astute to ensure that infringement doesn't occur. I am sympathetic to that approach. It has led the respondent to propose not negative injunctions, but what amount to mandatory ones, requiring it to carry out defined works, the purpose of which is to alleviate or put an end to the conditions which, on the respondent's understanding at any event, brought about the Court's decision to grant -- 4 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 5 1 10 20 30 40 50 60 relief. An environmental management program (EMP), including, in particular, an odour management program, has been devised through the efforts of Mr Shultz, who was an expert witness for the respondent at the hearing, and his staff, and others such as Mr Old - that is his name? MR GORE: Yes, your Honour. HIS HONOUR: It is unfortunate that none of this material was available until the day before last. That should not be taken as a critical comment, necessarily, because considerable time and energy would have been necessary to produce what now has been produced. The difficulty for Ms Crowther is that she has had no effective opportunity to consider or take advice on what is proposed. She had engaged Dr Best, who gave expert evidence in her case, to prepare an affidavit, including his expert comments on the orders which I have foreshadowed - or perhaps more accurately - drafted for the purpose of inviting submissions in the published reasons. Dr Best's material was not made available to the respondent until today. Matters have advanced considerably since the 20th of December. It appears that the Court has no need to be further concerned with anything to do with foundry -- 5 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 6 1 10 20 30 40 50 60 activities and, in that sense, although this may not be marked by any order of the Court, Ms Crowther has achieved a significant victory. Foundry activities appear to have been regarded by the experts at the hearing as the most concerning ones. There remains the question of what ought to be done regarding the welding activities. Ms Crowther, at the end of the day, abandoned her earlier approach of bringing the matter to finality today and asked for an adjournment so that she could obtain advice from Dr Best, who apparently left the country after swearing his affidavit and will not be back until the 24th of March. I am not inclined to allow the matter to drag on. The sooner the parties know where they stand for the future, the better, in my opinion, but, as will be seen, the orders to be made today will, to an extent, leave the door open for Dr Best, should he have anything to contribute. I accept what he has said to the extent of finding that there is concern about emissions from C block where welding occurs even if - which he had not anticipated - E block, the site of the foundry activities, is no longer used for such purposes. Much time has been spent today on examining the relevance of -- 6 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 7 1 10 20 30 40 50 60 what might be called stack emissions from the dozen or more stacks, about 14 metres or so in height, at the Yeronga TAFE. Those, no doubt, for historical reasons to do with what was already constructed and happening on the site, are unfortunately located as close as they can be to Ms Crowther's and her fellow local residents' homes. Mr Gore has argued, for the respondent, that the stacks play no part in the case any more because of a "finding" set out in paragraph 27 of the published reasons. I quote, "While I accept the possibility of stack emissions generating environmental nuisance or environmental harm, the applicant has established neither. The annoying emissions appear to be 'fugitive' ones, meaning ones exiting TAFE buildings by open windows or doors. Mr Schultz himself observed that his testing of stack emissions was being compromised because windows and/or doors were left open so that the air extraction system, even if operating, was not operating as it was designed to do, namely, with doors and windows closed, except to the extent that some inlet for air had to be provided. The system is designed to ensure that all emissions from buildings serviced by stacks exit the relevant building via the stacks." I think Mr Gore is correct that, in those circumstances, for purposes of the Court contemplating restraint orders under section 505 of the Environmental Protection Act 1994, there -- 7 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 8 1 10 20 30 40 50 60 has to be a focus on the offence that has been committed, whether or not prosecuted, or offences that "will be committed unless restrained". Mr Gore urged that the Court should not rely on its "lingering uncertainty" as to stack emissions to make orders about them. Indeed, I took him to argue there was no jurisdiction to do it. I find this a difficult issue. If the proposals the respondent has put up are effective, what would otherwise have been fugitive emissions will be collected and transported to the environment through stacks. The evidence at the hearing left me totally unpersuaded that the stacks are effective to disperse emissions in such a way as to avoid environmental harm or environmental nuisance to the west of Park Road. Investigations simply have not been conducted. I found it persuasive that the terrain, which rises from the TAFE towards the south, might conduce to emissions from the stacks finding their way to Park Road residences. There was no finding or no intended finding that stacks constituted no problem where they were working effectively. There was evidence that on many occasions, to say the least, they have not done so, and this through no fault of the stacks, I should say, but because of the failure of the TAFE staff and students to give the stacks an opportunity to -- 8 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 9 1 10 20 30 40 50 60 operate effectively. The evidence left it unknown whether the stacks would operate effectively. It is to be hoped that they will, but there is no basis on which the Court can be confident they will from the point of view of emissions from the Yeronga TAFE creating environmental nuisance or environmental harm on the other side of Park Road. I think the likelihood is that, if all emissions are dispersed via the stacks, if the breeze is the prevailing north-easterly properties that have been affected in the past will continue to be. I concluded that the Court ought to take some step now that it is seized of the matter to attempt to regulate the situation in future for the protection of the applicant who has successfully brought this proceeding. There will be a long lead time, as I proposed all along. Although Mr Gore had not anticipated having to argue this issue, I make the order on the basis that it is one which the Court may set aside or vary under the UCPR Rule 667 or Rule 668 or under analogous principles of the general law. The orders I have foreshadowed involved restricting foundry and welding activities by the device of restricting emissions to outlets more than 100 metres from Park Road. In the case of the former, after January 2004, in the case -- 9 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 10 1 10 20 30 40 50 60 of the latter, after January 2005. The evidence of Dr Best at the hearing indicated the possibility of collecting emissions and directing them to appropriate outlets and something along those lines might be required. I had contemplated establishing means by which the activities otherwise enjoined might have been permitted to continue, involving the continued cooperation of Dr Best and Mr Schulz. I accept it is undesirable for the Court to abdicate its responsibility in that way and had expressly stated that there would be a fallback provision for the Court to become involved. What I contemplated was an investigation of whether environmental harm or nuisance could be avoided west of Park Road by such means. Having regard to what I have said about Rules 667 and 668, I no longer think there is any utility in defining the means by which the Court's order limiting the location of sources of emissions should be reviewed. The order will be in terms of the draft initialled by me. -- 10 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 11 1 10 20 30 40 50 60 The one handed up by Mr Gore now contains some significant additions as to which, of course, I will hear the parties if they want to be heard. I have thought it appropriate to add to the declaration of past offences in paragraph 1 the words, "and that further offences might be committed unless appropriate steps are taken." I have thought fit to add to paragraph 2, after the identification of steps to be taken at the Yeronga TAFE pursuant to the EMP, according to a timetable, the words : "And to advise the applicant in writing within seven days of each of the above dates what of the work required has been carried out and some convenient time or times when she may inspect it if so advised." There is a new paragraph 3 proposed by me, in the form of an order that things be done rather than not be done, in these words: "Order that the respondent ensure that after January 2005, in respect of any processes of welding, cutting, machining or grinding of metal conducted at the Yeronga Institute of TAFE, any outlet for odour emissions be located further than 100 metres from Park Road, Yeronga." The liberty to apply mentioned in Mr Gore's draft becomes paragraph 4. I appreciate that that paragraph 3 is contentious and expect -- 11 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 12 1 10 20 30 40 50 60 that the Court may be asked to revisit it. Ms Crowther has indicated that 100 metres is inadequate. The respondent may be able to show that it is excessive. Bearing in mind anything that could be required after the proposed works are implemented, the respondent may also, depending on the circumstances, reasonably require extra time or some refinement of this order which, unlike the others, of course, was not suggested by it. I appreciate that it may be thought there is some kind of inconsistency between paragraph 3 and the Court's identifying work to be done to keep welding activities where they have been conducted in the past, but my appreciation of the evidence is that that can be achieved by a ventilation system incorporating ducting to an appropriately located outlet. The draft order says nothing about Ms Crowther's claims for compensation, which she has, I think somewhat faintly, submitted can be ordered paid to her under section 502 of the Act. That section comes within Part 3 Legal Proceedings and, in my opinion, operates only in proceedings as for prosecution of an offence on indictment or summarily and where that prosecution is successful. In my opinion, while from one point of view the expenditure -- 12 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 13 1 10 20 30 40 50 60 of money in Court filing fees, in preliminary expenses such as obtaining useful information under Freedom of Information legislation and the like can be regarded as "expenses in preventing or minimising...loss or damage" through the involvement of the Court, what the section has in mind is expenditure on physical works by way of sealing up windows, for example, rather than expenditure of the kind that Ms Crowther has made. As well as recovering her outlays, she makes a modest claim for her loss of amenity, etcetera. I can see no basis in the legislation for allowing that. Mr Gore in his submissions identifies Ms Crowther's claim, disregarding the one for impairment of amenity, as one for costs, which I think it properly is. Like so many litigants in this Court, she faces section 4.1.23 of the Integrated Planning Act 1997 which establishes a strong prima facie principle that in this Court costs are not awarded. The defined circumstances in which costs may be awarded, relevantly, would be restricted to unfair or delaying, or costs producing conduct by the respondent. There has been nothing of that kind that has come to my notice. I am willing to repeat here the tribute that I previously paid to the respondent for its eschewing technical points, which it might -- 13 of 14 -- 27022003 D.10 Turn 1 ck (Robin DCJ) ORDER 14 1 10 20 30 40 50 60 have done to make things harder to Ms Crowther; that approach served to make it easier for her to effectively present the case that she wanted to pursue. The whole circumstances of individuals pursuing the State, and especially in a context like the present where the State has various emanations, including the Yeronga TAFE and the Environmental Protection Authority, which played no part in the proceedings, are obvious. One can understand Ms Crowther and others like her feeling unhappiness that the organisation that might ordinarily police these matters, from her point of view, seems to be under the same umbrella as the organisation she complains about. These considerations have been ventilated again today when there was discussion as to what means, in which the applicant might have confidence, might be available to monitor the respondent's performance of the obligations it effectively undertakes by proffering the draft order it does. There is no answer to that. While there is no reason for the Court to harbour misgivings, it can understand why the applicant might. Order as per initialled draft. ----- -- 14 of 14 --