In brief

The case of Smith v Cairns Regional Council [2020] QPEC 37 concerned an application to the Queensland Planning and Environment Court for the stay of an original decision pursuant to section 522 of the Environmental Protection Act 1994 (Qld) (EPA). 

The Court exercised its discretion to make an order granting the stay, but stated that it would not have done so if not for the concessions made by the respondent, Cairns Regional Council. In particular, the Court was critical of the applicant's non-compliance with the Court's procedure, the lack of evidence supporting the stay application and the lack of any explanation for the delay in filing the stay application. 

Background

Section 522(1) of the EPA relevantly provides that if an application is made for a review of an original decision mentioned in Schedule 2 Part 2 of the EPA, the applicant can immediately apply for a stay of the original decision. 

Section 522(2) of the EPA relevantly provides that the Court can stay the original decision to secure the effectiveness of the review and any later appeal to the Court. Section 522(3) also provides that the Court can impose conditions it considers appropriate when granting a stay. 

The original decision related to a notice given to the applicant requiring an environmental investigation to be conducted or commissioned, and submit an environmental report in relation to activities associated with a boat repair and maintenance business located at Trinity Inlet in Cairns. The notice stated that the Council was satisfied that the activities were causing, or would likely cause, environmental harm. 

The notice was issued by the Council on 2 April 2020, and it required the applicant to take certain steps by 9 April 2020 in order to prepare for the provision to the Council of an environmental report by 5 June 2020. 

The stay application was heard by the Court on 8 April 2020. In support of the stay application, the applicant asserted that he no longer owned, possessed or controlled the subject land, and that compliance with the notice would put him to not insubstantial cost and expense which he would not be able to recover. 

Conclusion

The Court was critical of the applicant's stay application. In particular, the Court noted the following:

  • The procedural requirements with respect to filing and serving the application and supporting affidavit had not been complied with (at [2]).

  • Contrary to section 522 of the EPA, the applicant applied for a stay of the original decision before he applied to the Council for a review of the original decision (at [5]).

  • There was a lack of evidence relating to the applicant's assertions and the application for review to the Council was itself not in evidence (at [13]).

  • There was no explanation in the evidence about why the applicant delayed bringing the stay application (at [19]). 

Despite the above, the Council did not oppose the Court waiving the procedural non-compliances, and consented to an order for a stay until the earlier of 22 business days after the day the Council gave notice of any decision on the review application, or the applicant commenced an appeal. Having regard to those concessions, the Court granted the stay application. 

The Court also noted that the Council had been given limited time to respond to the application, and that its solicitors had not received instructions from the Council as to whether there was any ongoing risk of environmental harm associated with the stay application. 

Consequently, the Court made an order giving the parties leave to apply to the Court on two business days' notice before the stay expired. In particular, the Court stated that this would ensure the Council could bring the matter urgently before the Court if it formed the view that there was an ongoing risk of environmental harm associated with the stay application. 

Recent amendments

We note that section 522 of the EPA was amended by section 85 of the Environmental Protection and Other Legislation Amendment Act 2020, which commenced on 20 August 2020, and is now section 539A of the EPA. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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