FEDERAL COURT OF AUSTRALIA

Krajniw v Newman [2014] FCA 1454

THE COURT ORDERS THAT:

1.    The applicant’s application for interlocutory relief contained in the originating application filed 5 November 2014 is dismissed.

2.    The applicant pay the ninth to sixteenth respondents’ (inclusive) costs of and incidental to the application referred to in order 1.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

1    In early November 2014, Mr Krajniw commenced proceedings against 17 respondents alleging that they had variously engaged in a range of conduct which was said to be in breach of certain provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). Apart from the seventeenth respondent, Brisbane Tree Services, which has not been served with the proceedings, the other 16 respondents broadly fall into two groups: various persons connected with the State of Queensland and various persons connected with the Brisbane City Council. Those 16 respondents have now filed an address for service.

2    In his statement of claim, Mr Krajniw listed numerous “threatened ecological communities” and “threatened species” which he claimed had been adversely affected by the respondents’ alleged breaches of the EPBC Act. In particular, he alleged that some, or all, of the respondents had poisoned and cleared plants and trees in an area of land which adjoins the caravan park in which he lives. The land in question is owned by the Brisbane City Council and is located in a conservation zone under the Brisbane City Plan 2014. It is referred to in the affidavits filed in support of this application as 1833 Creek Road.

3    As well as seeking permanent injunctive relief to prohibit any future conduct allegedly undertaken in breach of the EPBC Act, Mr Krajniw’s originating application included an application for interlocutory injunctive relief pending the trial of this proceeding.

4    At the directions hearing held on Thursday, 11 December 2014, Mr Krajniw indicated that he only wished to proceed with that application in relation to the ninth to sixteenth respondents (inclusive). They are the Brisbane City Council, the Lord Mayor of Brisbane, the Chief Executive Officer of the Council, and various officers employed by it. Mr Krajniw agreed, and accordingly was directed, to file any affidavit material he sought to rely upon in support of that application by the close of business on Monday, 15 December 2014. He duly filed an affidavit in compliance with that direction, but he did not serve the affidavit on the respondents until sometime on Wednesday, 17 December 2014. Nonetheless, the respondents indicated this morning that they were ready to respond to the application today.

5    Mr Krajniw has relied upon s 475 of the EPBC Act to make this application. The operation of that provision and the operative provisions of the EPBC Act were considered by Dowsett J in Krajniw v Brisbane City Council (No 2) [2011] FCA 563 at [4]–[11]. It is unnecessary for me to repeat that consideration here.

6    Under s 475 of the EPBC Act, “an interested person” may apply to this Court for an injunction, including an interim or interlocutory injunction, to prevent a person engaging in conduct that constitutes an offence, or other contravention of the EPBC Act.

7    For the purposes of this application, the Brisbane City Council accepts that Mr Krajniw is an interested person as defined in s 475(6) of the EPBC Act.

8    In his affidavit in support of this application, Mr Krajniw states, among other things, that:

On Monday, 1 December 2014, at approximately 9.30 am. I noticed a white utility driving past my Caravan site, in the 1833 Creek Road Conservation Area.

…

It became apparent to me that Brisbane City Council, its employees, agents or servants had sprayed more vegetation and ground cover with weed killers or herbicides, within the 1833 Creek Road Squirrel Glider Conservation Area.

…

The area of land bounded by the 1833 Creek Road property has been described as a Critical Core Squirrel Gliders Habitat, and depicted on the BCC City mapping as a high Value Conservation Area.

…

There are no Glider den trees remaining in the Conservation Area in that all the stags, trees with hollows, were cut down by Brisbane Tree Services on 30 October 2013.

…

On Thursday 4 December 2014, at approx 6 pm while feeding Magpies and Scrub Turkeys, which I have done in a daily ritual for the past 24 years, I noticed some ground vegetation had been cut down.

…

Thousands of such plants have already been destroyed by cutting the plants 10 centimetres above ground level, and then swabbing the stumps with herbicides. BCC, its employees, agents or servants are also using some type of mechanical jacket to extract the stumps.

…

Exhibit “A” depicts photos of the vegetation destroyed on the 4 December 2014, 14 December 2014, and over the past 15 months. I contend that the Critical Core Squirrel Glider Habitat, a Declared Conservation Area, has been wilfully destroyed so as to accommodate predation on the remaining Gliders, and to eliminate the threat to the proposed development of 186 residential, Shopping Centre and Golf Course, in the adjacent Public Minnippi Parklands.

(Errors in original).

9    In response to this affidavit material, the Brisbane City Council relied upon an affidavit by Mr Craig Hardie. Mr Hardie is a Technical Officer, Conservation Reserves (Conservation Ranger) employed by the Brisbane City Council. In his affidavit, Mr Hardie stated, among other things, that:

There is a fire access track bearing between 5 and 15 metres wide along the northern boundary of the subject [land], which is maintained by the Council to ensure safe access for fire containment purposes. The fire access track also provides protection to adjoining premises from ground fires.

Being a conservation area, the Council does not routinely clear vegetation from the subject site. The Council facilitate revegetation works in the area, which requires removal of weed species and replanting with endemic native species. The Council undertakes routine management of the fire access track in the way of mowing the area several times a year…The Council’s records show that the area was last mown on 11 December 2014.

I know from my role within the Council that the Council will only clear a endemic native tree from a conservation area where the tree is causing a hazard to person or property. Before clearing a tree, the Council will obtain advice from an arborist regarding the safety and health of the tree, and whether the tree can be safely retained for habitat value. The Council will only remove the tree as a last option where it cannot be retained without causing a hazard.

The Council also facilitates the activities of volunteer bush care groups (known as Habitat Brisbane community groups) in conservation areas, who may carry out activities such as weed control and revegetation. Details of the activities of the Habitat Brisbane group are provided to a Council facilitator after they have been conducted.

…

I have made enquiries and I have been unable to locate any record of any mowing or clearing by the Council on either 4 or 14 December 2014 as alleged by Mr Krajniw in his Affidavit, however as noted above bush care groups carry out activities on the subject site from time to time. Council records indicate that volunteers from a Habitat Brisbane community group may have been on or near the site on or about 4 December 2014.

I have studied the photos exhibited to Mr Krajniw’s Affidavit and in my opinion they all depict species which are exotic weed species.

…

Between now and 5 February 2015 [which I interpolate is the next directions hearing date for the proceedings], the Council is not planning any weed control or removal of other vegetation from the subject site. The Council will need to continue to mow the firebreak on a regular basis to ensure its integrity as a fire access track and to ensure it provides adequate protection to adjoining premises from ground fires. It is particularly important that the Council continues to mow the fire access track over the upcoming summer period, as there is an increased risk of bushfire over the summer months.

10    The principles relating to the grant of an interlocutory injunction such as this have been stated many times. For convenience, I refer generally to my summary of those principles in Donoghue v Commissioner of Taxation [2013] FCA 84 at [15]–[18]. In broad terms, an applicant has to demonstrate that: (1) a sufficient prima facie case has been made out for the final relief claimed by him or her; and (2) the balance of convenience favours the granting of the interlocutory injunction. However, these two criteria do not involve distinct inquiries, but instead must be considered together.

11    In my view, Mr Krajniw has not adduced evidence in support of this application that establishes that there is a sufficient prima facie case for the final relief that he has claimed. Furthermore, I do not consider that the balance of convenience favours the grant of the interlocutory injunction he has sought.

12    In the first place, there is no evidence before the Court that any fauna or species that are protected by the EPBC Act are present on the land in question. Nor is there any evidence before the Court that any officer or employee of the Brisbane City Council has undertaken any conduct which could be said to have affected any flora or species that are protected by the EPBC Act such as to constitute a breach of that Act. To the contrary, the evidence of Mr Hardie demonstrates that the flora depicted in the photographs that are annexed to Mr Krajniw’s affidavit are exotic weeds. Finally, I am satisfied on Mr Hardie’s affidavit that any activities undertaken or planned to be undertaken by the Brisbane City Council on the subject land have been, and will be, undertaken for the protection of the public.

13    For these reasons, I refuse Mr Krajniw’s application for an interlocutory injunction.

Associate:

Dated:    12 March 2015