Doug Cuthbert and Heather Loader operate a boat building and repair business, Toorbul Marine, on a property adjacent to Elimbah Creek in Toorbul. This business had been operated for decades on this site before Doug and Heather purchased the business in 2002. The previous owners had applied for, and received, environmental approval under the Environmental Protection Act 1994 (Qld) to conduct that business. On acquiring the business, Doug and Heather applied to have that environmental approval transferred. That application for transfer of the environmental approval was granted. Five years later in 2007, Council claimed the environmental approval had been granted in error back in 2002 and applied to have it withdrawn. In 2008, Council issued Doug and Heather with an Enforcement Notice which effectively meant that Doug and Heather could no longer conduct their business on that site. So began what Heather describes as… “eight years of hell”.
MBI covered Toorbul Marine’s story in an article in September 2013. That can be found at https://mybribieisland.com.au/2013/11/mbi-examines-the-case-of-toorbul-marine-and-asks-why-has-this-happened/
Back in 2013, MBI thought that the story had a happy ending for Doug and Heather. After endless delays, Doug and Heather managed to have their day in the Supreme Court. Yes, the Supreme Court !! That is correct. MBRC officials were unrelenting in their pursuit of Toorbul Marine, and Doug and Heather had to go all the way to the Supreme Court to obtain some justice. In a 3-0 decision in favour of Doug and Heather, the Supreme Court dismissed the case brought by MBRC and awarded costs against MBRC. In his dismissal of MBRC’s case, Justice Fraser is quite scathing in his criticism of MBRC. His decision can be accessed by clicking here.
Doug and Heather estimate that their costs in defending themselves against the actions of MBRC were in excess of $1 million. In addition they have suffered significant loss of earnings, and they have had their good names and reputations shredded as a result of Council’s actions. They comment that in launching this action against Toorbul Marine, MBRC had them under surveillance by staff and contractors night and day for months and months. MBRC placed all sorts of legal roadblocks in the way of Toorbul Marine as they attempted to obtain justice. MBRC’s costs (ie the cost to ratepayers) are estimated by those with knowledge of such matters to be well in excess of $3 million.
After the 2013 decision of the Supreme Court against MBRC and the awarding of costs in favour of Toorbul Marine, Doug and Heather thought they could quietly go back to operating their business and relax and enjoy some peace and quiet. But no. On March 31, 2015 MBRC deemed that the Supreme Court had no power in this matter and that Toorbul Marine had the POTENTIAL to POLLUTE the environment. Accordingly MBRC has issued Toorbul Marine with a new Enviromental Protection Order. Click here to view MBRC’s Order. This Order has made the business unworkable. So Doug and Heather are back in court to try and have the Order set aside. They estimate that this will cost them another $100,000 and it will cost MBRC (and hence ratepayers) that much or more to prosecute the case.
MBI asks…… Why is this action being taken by MBRC ? What does the “Potential to Pollute” mean? Why is this a cause for action by MBRC ? All MBI readers probably own a car. Cars have the potential to be driven in excess of the speed limit. Cars have the potential to be involved in accidents and cause damage to people and property. But legal action is only taken against car owners when they have actually done something wrong. The MBRC Order does not say that Toorbul Marine has done nothing wrong. It just says that the potential is there. So what !! Car owners have the potential to speed and do something wrong, but they are not issued with cease-and-desist orders.
So why is MBRC taking this action against a small business like Toorbul Marine ? MBRC’s actions prompt some serious questions:
- Is it the goal of MBRC to close Toorbul Marine down? Why?
- Why has MBRC decided to ignore the verdict of the Supreme Court?
- Why has MBRC taken legal action against a small business like Toorbul Marine and saddled ratepayers with a bill that is now in excess of $3 million?
- MBRC has turned a blind eye to polluters in the past. In at least one celebrated case Council even assisted a developer to discharge wastes into Pumicestone Passage that were at least 1000 times in excess of guidelines for at least one polluting element. When challenged, Council merely commented they had no way of assessing whether pollution was occurring. Besides, it was someone else’s problem. So why was actual pollution in someone else’s jurisdiction then, but the potential to pollute is now in Council’s jurisdiction in the case of Toorbul Marine?
- Are other boat repair facilities being treated the same way as Toorbul Marine? MBI did approach MBRC seeking an assurance that other boat repair facilities in MBRC were being treated the same way as Toorbul Marine, but MBRC has not responded.
After their “eight years of hell”, Heather asks why anyone would want to run a small business in MBRC if this is the way they will be treated. As one MBI reader commented, big businesses are safe from Council action if they have big legal teams that are prepared to sue at the drop of a hat if they don’t get their way. Its only small businesses that are not safe.
What do readers think? Are Doug and Heather being unfairly targeted? Is this an appropriate expenditure of $3 million by Council? Do MBI readers have similar stories to share? Readers’ comments are always welcome.
Editor, MyBribieIsland
