Court not exercising its discretion to extend time for the removal of unlawful fill under consent order

In brief

The case of Brisbane City Council v Bowman & Ors and Bowman & Ors v Brisbane City Council [2015] QPEC 14 concerned applications heard by the Queensland Planning and Environment Court relating to the enforcement order made by the court with respect to unlawful fill on Mr John Alexander Bowman’s land situated in Bald Hills, Brisbane.

In 2013, Mr Bowman, who had a history of carrying out unlawful filling work, consented to an enforcement order requiring him to remove introduced fill material from his land in accordance with the rehabilitation plan within twelve months of approval by the Brisbane City Council of the plan, or such further time as agreed in writing between the parties with reference to the relevant experts.

Mr Bowman sought orders from the court varying the enforcement order to extend the period for the removal of the fill material or seeking a stay of the enforcement order and alternate orders for the removal of the fill material.

The court found that there was no evidence of an extension of time agreed between Mr Bowman and the council as contemplated in the enforcement order. Mr Bowman had not provided an explanation for his non-compliance with the order or established any good reason for the exercise of the court’s discretion to vary or stay the operation of the enforcement order. Accordingly, the court dismissed both applications.

Mr Bowman adopted the options for carrying out the fill removal works proposed by his ecological expert as part of his contention for the variation of the enforcement order

Mr Bowman adduced expert evidence from his ecological, and civil and hydraulic engineering experts in contending for the orders being sought. Mr Bowman's ecological expert, relying on Mr Bowman’s engineering expert’s inputs, concluded that the fill removal would take over 36 years if Mr Bowman was to remove the fill using his existing equipment only.

The ecological expert therefore proposed four options for carrying out the fill removal works, which also relied upon Mr Bowman’s engineering expert’s inputs. One of the options was a partial removal of the fill which included the removal of the gross pollutants relying on Mr Bowman’s engineering expert’s opinion that the existing fill did not cause unacceptable off site impacts in terms of flooding.

All four options provided a range of different removal timeframes and they all exceeded the twelve month period in the enforcement order consented to by Mr Bowman in 2013.

As part of the orders being sought by Mr Bowman, he adopted a combination of the options proposed by his ecological expert which included the partial removal of the fill.

Court found Mr Bowman’s engineering expert’s evidence to be unreliable and unhelpful and preferred the council's expert’s evidence regarding the timeframe for completing the fill removal work

The court found Mr Bowman's engineering expert’s evidence to be unreliable and unhelpful. In particular, the court observed that Mr Bowman’s engineering expert did not critically analyse the work on flood impact in the locality undertaken by another hydraulic engineer in another litigation matter, but rather merely relied on it in arriving at his opinion. As a result, little weight was given by the court to Mr Bowman’s engineering expert’s evidence.

The council adduced evidence from its engineering expert who considered the options and associated timeframes proposed by Mr Bowman’s expert. In the council’s expert’s view, the fill removal could be completed between 8 and 28 weeks if a commercially-efficient moving contractor was engaged, and the timeframes proposed by Mr Bowman's expert were "not cost effective for a normal earth moving contractor".

On balance, the court preferred the evidence of the council’s expert and concluded that the council’s expert’s proposal was sensible, feasible and realistic in all the circumstances.

As there was no explanation for Mr Bowman’s non-compliance with the enforcement order or good reason to deprive the council of the benefit of the agreement between Mr Bowman and the council by varying the enforcement order, the court found no sufficient grounds to warrant the exercise of its discretion to vary or stay the operation of the enforcement order

As a starting point, the court had to decide whether Mr Bowman had established good reason for the court to exercise its discretion to vary the enforcement order.

As a general rule, an applicant who was seeking relief from the consequences of non-compliance with a consent order would be required to explain the reasons for the non-compliance. In this instance, Mr Bowman provided no explanation for the non-compliance.

In the context of the enforcement order being made by consent of the parties, the court was satisfied that the consent order was underpinned by a formal and binding agreement between Mr Bowman and the council. In the court’s view, it would also be necessary for Mr Bowman to establish good reason to deprive the council of the benefit of the agreement by varying the enforcement order.

The court observed that by Mr Bowman reaching agreement with the council and consenting to the enforcement order, it was reasonable for the council to assume that Mr Bowman had the capacity and willingness to remove introduced fill material from his land in accordance with the enforcement order.

As far as the court was concerned, the terms of the enforcement order were clear. If Mr Bowman required an extension of the removal period, it was incumbent on him to seek agreement from the council with the required expert evidence. However, Mr Bowman chose to ignore the orders and did nothing until it was close to the deadline.

Accordingly, the court found that Mr Bowman had not established any good reason to deprive the council of the benefit of the agreement by varying the enforcement order.

In the circumstances, the court was not persuaded that sufficient grounds were established by Mr Bowman which would warrant the court to exercise its discretion to vary or stay the operation of the enforcement order.