FEDERAL COURT OF AUSTRALIA

Krajniw v Brisbane City Council (No 2) [2011] FCA 563

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

BACKGROUND

1    On 29 July 2010 the applicant filed an application seeking injunctive relief under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the “Act”). The respondents were the Brisbane City Council (the “Council”), the Environmental Protection Agency, the Department of Natural Resources, the Department of Infrastructure and Planning, and Civil Mining and Construction Pty Ltd (“CMC”). The application concerned the construction of a bike path within the Minnippi Parklands at Cannon Hill (the “development”) which, the applicant asserted, would cause significant harm to listed threatened species under the Act. He alleged that each of the respondents had contravened the Act in relation to the development. Specifically, he alleged that in breach of the Act, the Council had commissioned the bike path, the Environment Protection Agency and Department of Natural Resources had approved its construction, the Department of Infrastructure and Planning had failed to enforce environmental assessment processes in relation to the development and CMC had commenced construction. The applicant alleged contravention of numerous provisions of the Act and sought:

    an interim injunction pursuant to s 475(5) restraining any further construction;

    an order pursuant to s 475(3) for repair and mitigation of any environmental damage which had already occurred; and

    pecuniary penalties pursuant to s 481 of the Act.

2    At a directions hearing on 11 October 2010, the applicant accepted that the Environment Protection Agency, the Department of Natural Resources and the Department of Infrastructure and Planning were not separate legal entities, and that if such agencies had any interest in the proceedings, the State of Queensland should be a party. The applicant also conceded that his application did not identify conduct on the part of the State that could constitute a contravention of the Act. The Queensland Government had neither commissioned the bike path nor had it been involved in its physical construction. The applicant accepted that to the extent that the development had breached the Act, remedies were available only against the Council and CMC. Accordingly, I made orders that the proceedings against the second, third and fourth respondents be struck out, the State of Queensland be joined as second respondent in their place, and that proceedings against the State of Queensland be dismissed.

3    The application contained other deficiencies. There were references to the wallum froglet which should have been to the wallum sedge frog. Further, pursuant to s 481 a pecuniary penalty may only be sought by the Commonwealth. In that respect the application was misconceived. Notwithstanding the applicant’s reference to numerous sections of the Act, it seemed that his cause of action was, in substance, limited to alleged contraventions of ss 18, 18A and 496C of the Act. In those circumstances, I struck out the application and granted leave to the applicant to file an amended application, limited in its scope to claims for relief under s 475 arising out of alleged contraventions of ss 18, 18A and 496C of the Act. On 25 October 2010, the applicant filed an amended application. The amended application goes well beyond the limits of the leave to amend. In particular the applicant again seeks pecuniary penalties. For the reason previously given, that claim cannot succeed. Thus the applicant should be treated as seeking injunctive relief arising out of alleged breaches, or threatened breaches of ss 18, 18A and 496C.

INJUNCTIVE RELIEF

4    Section 475 of the Act relevantly provides:

Applications for injunctions

(1)    If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:

(a)    the Minister; or

(b)    an interested person (other than an unincorporated organisation); or

(c)    a person acting on behalf of an unincorporated organisation that is an interested person;

may apply to the Federal Court for an injunction.

Prohibitory injunctions

(2)    If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.

Additional orders with prohibitory injunctions

(3)    If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).

(4)    …

Interim injunctions

(5)    Before deciding an application for an injunction under this section, the Court may grant an interim injunction:

(a)    restraining a person from engaging in conduct; or

(b)    requiring a person to do an act.

Meaning of interested person – individuals

(6)    For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:

(a)    the individual's interests have been, are or would be affected by the conduct or proposed conduct; or

(b)    the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before:

(i)    the conduct; or

(ii)    in the case of proposed conduct – making the application for the injunction.

(7)    …

5    For present purposes only, the Council accepts that the applicant is an interested person for the purposes of s 475(1)(b). To obtain injunctive relief the applicant must demonstrate an action or omission, or proposed action or omission which constitutes, or would constitute an “offence or other contravention” of the Act. The applicant purports to rely upon alleged breaches or potential breaches of sections 18, 18A, 48 and 496C. As I have said, his leave to re-plead was limited to claims for relief arising out of alleged contraventions of sections 18, 18A and 496C. Section 48 deals with bilateral agreements between the Commonwealth and a State or Territory. As neither the Commonwealth nor any State or Territory is a party to these proceedings, the relevance of s 48 is unclear. I will return to this matter at a later stage. I turn to the relief claimed pursuant to ss 18, 18A and 496C.

6    Section 18 provides:

Species that are extinct in the wild

(1)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened species included in the extinct in the wild category; or

(b)    is likely to have a significant impact on a listed threatened species included in the extinct in the wild category . …

Critically endangered species

(2)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened species included in the critically endangered category; or

(b)    is likely to have a significant impact on a listed threatened species included in the critically endangered category.

Endangered species

(3)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened species included in the endangered category; or

(b)    is likely to have a significant impact on a listed threatened species included in the endangered category. …

Vulnerable species

(4)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened species included in the vulnerable category; or

(b)    is likely to have a significant impact on a listed threatened species included in the vulnerable category. …

Critically endangered communities

(5)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or

(b)    is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category. …

(6)    A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened ecological community included in the endangered category; or

(b)    is likely to have a significant impact on a listed threatened ecological community included in the endangered category. …

7    Section 18A provides:

(1)    A person is guilty of an offence if:

(a)    the person takes an action; and

(b)    the action results or will result in a significant impact on:

(i)    a species; or

(ii)    an ecological community; and

(c)    the species is a listed threatened species, or the community is a listed threatened ecological community.

(1A)    Strict liability applies to paragraph (1)(c).

(2)    A person is guilty of an offence if:

(a)    the person takes an action; and

(b)    the action is likely to have a significant impact on:

(i)    a species; or

(ii)    an ecological community; and

(c)    the species is a listed threatened species, or the community is a listed threatened ecological community.

(2A)    Strict liability applies to paragraph (2)(c).

(3)    An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

(4)    Subsections (1) and (2) do not apply to an action if:

(a)    the listed threatened species subject to the significant impact (or likely to be subject to the significant impact) is:

(i)    a species included in the extinct category of the list under section 178; or

(ii)    conservation dependent species; or

(b)    the listed threatened ecological community subject to the significant impact (or likely to be subject to the significant impact) is an ecological community included in the vulnerable category of the list under section 181.

8    Where a person infringes s 18A on the land of another person, s 496C may impose criminal liability upon the latter person. I need not set out that section in these reasons. The various subsections of s 18 deal with conduct affecting different categories of listed threatened species. Section 18A deals with listed threatened species generally, but s 18A(4) excludes species in the extinct category from its operation. In order to obtain injunctive relief the applicant must demonstrate a contravention or threatened contravention of either s 18 or s 18A. In effect, he must demonstrate an action or threatened action that has, will have or is likely to have a significant impact on a relevant listed threatened species.

9    Section 527E provides:

(1)    For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:

(a)    the event or circumstance is a direct consequence of the action; or

(b)    for an event or circumstance that is an indirect consequence of the action—subject to subsection (2), the action is a substantial cause of that event or circumstance. …

10    The term “significant” is not defined in the Act. The authorities suggest that it should be interpreted as meaning “important, notable, or of consequence having regard to its context or intensity”: Booth v Bosworth (2001) 114 FCR 39 at [99]; Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 at [191]-[192]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [109]. In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A. Moreover, those sections are concerned with impact upon a relevant species. An adverse effect upon an individual member of the species, or even a number of individual members may not be sufficient to engage those sections. The applicant must demonstrate a risk of significant adverse impact upon the species as a whole.

11    By way of example, the Department of the Environment, Water, Heritage and the Arts (the  “Department”) has published  Significant Impact Guidelines   (http://www.environment.gov.au/epbc/publications/pubs/nes-guidelines.pdf viewed 24 March 2011), which seek to provide general guidance to the public in this regard. With respect to vulnerable or endangered species, the Department suggests that:

An action is likely to have a significant impact on a critically endangered or endangered species if there is a real chance or possibility that it will:

•    lead to a long-term decrease in the size of a population

•    reduce the area of occupancy of the species

•    fragment an existing population into two or more populations

•    adversely affect habitat critical to the survival of a species

•    disrupt the breeding cycle of a population

•    modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline

•    result in invasive species that are harmful to a critically endangered or endangered species becoming established in the endangered or critically endangered species’ habitat

•    introduce disease that may cause the species to decline, or

•    interfere with the recovery of the species.

MOTION TO DISMISS

12    The Council moves to dismiss the proceedings. In so doing it attacks the adequacy of the applicant’s pleading, but it has also adduced evidence which, absent evidence to the contrary, demonstrates that aspects of the case must fail. In that respect it relies upon s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the “FC Act”).

13    The applicant identifies two species of mammal and six species of frog which, he says, have been, or will be negatively affected by the respondents’ actions: the squirrel glider, the koala, the southern day frog, the giant barred frog, the wallum sedge frog, the wallum froglet, the wallum dependent froglet and the green thighed froglet. The squirrel glider, the koala, the wallum froglet, the wallum dependent froglet and the green thighed froglet are not listed threatened species for the purposes of the Act. Accordingly, any detrimental impact on them as a result of the respondents’ actions is not regulated under the Act. Conduct which may produce such impact cannot be restrained in these proceedings. I should say that the applicant has frankly conceded that his primary purpose is to protect the squirrel glider and the koala. He seeks so to do by exploiting the alleged impact of the development on other species. I do not question the propriety of his so doing.

14    The southern day frog is on the list of threatened species, but in the “extinct” category. Section 18 only applies to species which are “extinct in the wild”, “critically endangered”, “endangered” or “vulnerable”, using the categories in the Act. For obvious reasons, s 18 does not regulate actions which may have significant impact on species which are “extinct”. Section 18A(4) demonstrates that s 18A also does not apply to the southern day frog. The giant barred frog is in the “endangered” category. The wallum sedge frog in the “vulnerable” category. Pursuant to s 475, the Court may grant injunctive relief if it is satisfied that the development has had, will have or is likely to have a significant impact on either of these species. To the extent that the applicant relies on possible adverse impact upon species other than the giant barred frog and the wallum sedge frog, the proceedings must be dismissed. To the extent that he seeks relief other than in reliance upon ss 18, 18A and 496C, his amended application goes beyond his grant of leave. To that extent, too, the proceedings must be dismissed.

15    The Council submits that the amended statement of claim does not allege facts from which it may be inferred that either the giant barred frog or the wallum sedge frog is found in any area affected by the development. The applicant pleads only that “the property is located within the known range of” each of the species and then describes the typical habitat of each. The pleading necessarily implies that any area which fits either description is to be treated as being the habitat of the species in question, even if the species has never been seen there. Clearly, it is not a sufficient basis for inferring a likely significant impact upon a species that the area in question is a suitable habitat for it, in the absence of any evidence that it is, or has been found there.

16    This deficiency in the pleading, by itself, dictates that the application should be dismissed. However there is also uncontradicted evidence that the relevant area is not an appropriate habitat for either of the two species. In his report of 23 March 2011, Dr Glen Ingram, an appropriately qualified expert, states that none of the three species has been located in the relevant area in the past or is located there now. As I have said, the southern day frog is, in any event, extinct. Dr Ingram notes that the giant barred frog is found in deep, slow-moving, freshwater streams and is not known in the lower catchment of the Brisbane River. Bulimba Creek is the only deep water creek flowing through the Minnippi Wetlands. The water is tidal and salty and therefore not suitable for the frog to breed. Dr Ingram says that the wallum sedge frog is found in undisturbed coastal wallum. The water in its breeding sites is usually heavily tannin-stained and acidic. He states that:

I neither saw coastal wallum on the subject site nor did I see tannin stain [sic] waters that I associate with acidic water. As well, I did not see or hear the frog.

17    He states that the closest areas known to contain the frog are the islands of wallum of Moreton Bay.

18    The applicant challenges this expert evidence by submitting a series of photographs and maps depicting the nature of the site. These documents are unaccompanied by any expert commentary or explanation which might justify my drawing inferences which are contrary to Dr Ingram’s evidence. The applicant offers commentary and explanations. However he is not a suitably qualified expert for that purpose. In light of Dr Ingram’s evidence I infer that it is highly unlikely that the relevant species are to be found on the site or have, in the past, been found there. In those circumstances, the applicant’s case must fail.

19    I should add that the applicant also fails to demonstrate a basis for inferring a significant risk of harm to these species, even assuming that they are to be found in the relevant area. There is no evidence as to total population sizes or percentages thereof said to be located on, or in proximity to the site. Indeed, at para 44 of his submissions the applicant states:

No studies have been carried out to determine the presence, the numbers, the extent, and the distribution of the six species of frog and the adverse impacts of clearing and roadworks, on the frogs and their habitat.

20    It follows that pursuant to s 31A of the FC Act, the application should be dismissed.

BILATERAL AGREEMENTS

21    At various stages in these proceedings, the applicant has referred to alleged contraventions of s 48A(2) of the Act, which provides:

A bilateral agreement including a declaration described in section 46 must include an undertaking by the State or Territory to ensure that the environmental impacts that the following actions covered by the declaration have, will have or are likely to have on a thing that is not a matter protected by a provision of Part 3 for which the declaration has effect will be assessed to the greatest extent practicable:

(a)    actions taken in the State or Territory by a constitutional corporation;

(b)    actions taken in the State or Territory by a person for the purposes of trade or commerce between Australia and another country, between 2 States, between a State and a Territory or between 2 Territories;

(c)    actions that are taken in the State or Territory and are actions whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries;

(d)    actions taken in the Territory (if applicable).

22    Broadly speaking, Pt 5 Div 2 of the Act (which includes s 48A) provides for bilateral agreements between the Commonwealth and a State or self-governing Territory. Such agreements are to be for the purposes set out in s 45(2). A bilateral agreement may provide that actions or courses of action approved by a relevant State or Territory will not require approval pursuant to Pt 9 of the Act. Section 48A(2) provides that such an agreement must contain certain provisions. The applicant seems to suggest that s 48(2) places some limitation upon developments other than those imposed by ss 18 and 18A. However the relationship between those sections and Pt 9 does not lead to that outcome. Section 46 permits bilateral agreements to exempt some actions from approval under Pt 9 for the purposes of Div 3 (which contains ss 18 and 18A). This is presumably because the bilateral agreement will prescribe an alternative method of assessment to that prescribed in Pt 9. Section 48A(2) is part of the mechanism for achieving that result. It has no relevance for present purposes.

ORDERS

23    The application be dismissed.

Associate:

Dated:    30 May 2011