In brief

The case of Cuthbert v Moreton Bay Regional Council [2015] QPEC 36 concerned two applications made by the parties in an appeal in the Planning and Environment Court by Ms Cuthbert, the operator of a boat maintenance and repair facility, against an environmental protection order issued over the facility by the Moreton Bay Regional Council. The council applied to the court to strike out certain paragraphs of the notice of appeal. Ms Cuthbert applied to the court seeking a stay of the environmental protection order pending the final determination of the appeal.

The main issue in dispute regarding the application to strike out paragraphs of the notice of appeal was whether those paragraphs were relevant to the determination of the appeal. The main issues in dispute regarding the application to stay the environmental protection order were, if a stay was not granted, whether Ms Cuthbert would be irreparably prejudiced, and whether it would render ineffective the final decision in the appeal.

The court found that the paragraphs of the notice of appeal which related to the history of the matter were not relevant to the determination of the appeal. The court therefore struck out those paragraphs.

The court found that the relevant requirements of the environmental protection order conceded by the council would have financial implications for Ms Cuthbert and that a stay of those requirements would be necessary to secure the effectiveness of the final decision in the appeal. The court did not find that the other requirements of the environmental protection order would prejudice Ms Cuthbert or render ineffective the final decision in the appeal. The court therefore granted a stay in relation to those requirements of the environmental protection order conceded by the council pending the final determination of the appeal.

Court found that disputed paragraphs of the notice of appeal related to the historical conduct of the facility and matters which had already been dealt with by the court in previous proceedings and therefore ordered that they be struck out on the premise of irrelevance

The council submitted that a number of paragraphs of the notice of appeal were not relevant to the determination of the issues in dispute in the appeal.

There were four issues to be determined in the appeal. The first issue was whether Ms Cuthbert had failed to comply with the general environmental duty under the Environmental Protection Act 1994 in the conduct of the boat maintenance and repair facility. The second issue was whether Ms Cuthbert had failed to comply with the conditions of the environmental authority for the facility.

The third issue was whether the requirements of the environmental protection order were necessary to secure Ms Cuthbert's compliance with the general environmental duty and the conditions of the environmental authority, and the final issue was whether the proper exercise of the discretion would warrant the issue of the environmental protection order.

The disputed paragraphs of the notice of appeal dealt with the historical use of the land between 1962 and 1996 (paragraphs 3 and 4), the operation of the facility between 2002 and 2007 (paragraph 13), and an appeal of a previous enforcement notice relating to the facility (paragraphs 14 to 26).

The basis of the council's submission for its strike out application was that the relevant environmental protection order was issued as a result of an inspection by its officers in 2014 and therefore, the historical conduct of the facility or the previous enforcement notice set out in the disputed paragraphs had no relevance to the determination of the issues in the appeal.

Despite Ms Cuthbert arguing the contrary, the court agreed with the council's submission that the matters the subject of the disputed paragraphs were not relevant and by allowing them to stand, it would involve unnecessary expenses to be incurred by the parties. Accordingly, the court ordered that paragraphs 3 to 4 and 13 to 26 of the notice of appeal be struck out.

Council accepted that those parts of the environmental protection order requiring physical works and upgrade would involve financial implications for Ms Cuthbert and on that basis, a stay of those parts of the environmental protection order was granted by the court

Ms Cuthbert sought a stay of the environmental protection order pending the final determination of the appeal.

The council accepted that parts of the environmental protection order requiring physical works and upgrades would involve financial implications for Ms Cuthbert. If a stay was not granted and Ms Cuthbert was required to comply with those requirements of the environmental protection order before the appeal was determined, this may render the ultimate decision ineffective. The council therefore did not oppose a stay of those parts of the environmental protection order. For that reason, the court granted a stay of those parts of the environmental protection order conceded by the council pending the final determination of the appeal.

As to the remaining requirements of the environmental protection order, the council submitted that they mainly involved procedural and operational requirements of the facility for its day to day operation and opposed a stay of those requirements.

In support of the stay application, Ms Cuthbert submitted that there was a lack of evidence before the court in relation to the alleged environmental harm arising from the operation of the facility, the alleged non-compliance with the relevant environmental authority and the relevance of the environmental protection order requirements.

In the court's view, the information available to Ms Cuthbert relating to those issues was sufficient to inform Ms Cuthbert of the council's case and in any event, the further and better particulars to be given by the council would expand or clarify those issues.

Court found that the remaining requirements of the environmental protection order would not threaten the integrity of the appeal decision or irreparably prejudice Ms Cuthbert and therefore decided not to grant a stay of those requirements

Ms Cuthbert also relied on the history of previous proceedings involving the council and the fact that she was not given warning by the council or opportunity to discuss the issues with the council before the environmental protection order was issued in order to support the stay application.

However, the court noted that the council had no obligation to give such warning or allow such opportunity, with which Ms Cuthbert agreed.

The court, by reference to the principles outlined in the decision of Cougar Energy Limited v Debbie Best Chief Executive under the Environmental Protection Act 1994 [2011] QPEC 150, found that compliance with the remaining requirements of the environmental protection order would not threaten the integrity of the appeal decision, and that Ms Cuthbert had not established any threat of irreparable prejudice if a stay of those requirements was not granted. On this basis, the court did not grant a stay of the remaining requirements of the environmental protection order.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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