In brief

The case of Bundaberg Regional Council v Muller [2019] QPEC 31 concerned an originating application to the Planning and Environment Court by the Bundaberg Regional Council (Council) seeking orders that a landowner (Landowner) be punished for contempt due to non-compliance with an enforcement order.

The Court found that the Landowner had failed to comply with the Court's enforcement order and was, therefore, in contempt of the Court.

The Court ordered that the Landowner be fined $5,000 and pay the Council's costs of and incidental to the proceeding. 

Background

The Landowner caused a relocatable dwelling to be placed onto land in Bundaberg in accordance with a building development approval. The building development approval subsequently lapsed without various works being completed in order to secure the premises.

In December 2017, the Council commenced proceedings against the Landowner seeking enforcement orders to remedy and restrain the commission of a development offence with respect to carrying out of building works in the absence of an effective development permit. The Court found that the Landowner committed a development offence and made an enforcement order to the effect that the Landowner was required to take steps to facilitate the completion of the building works or remove the relocatable dwelling from the land.

The Landowner was required to:

  • by 30 June 2018, lodge a properly made development application to a building certifier for a building development approval;

  • by 14 August 2018, obtain an effective building development approval;

  • by 21 September 2018, complete all works necessary so that a Form 16 Inspection Certificate could be given by a building certifier; and

  • by 30 October 2018, complete all external works and provide to the Council a statement from a building certifier, and complete all necessary works to enable a Form 21 Final Inspection Certificate to be provided by a building certifier.

The enforcement order included a warning, which stated that if the Landowner failed to obey the enforcement order, the Landowner would be liable to Court proceedings to compel the Landowner to obey the enforcement order and punishment for contempt. 

The Council argued that the Landowner failed to obey the particulars of the enforcement order, and therefore sought orders that the Landowner was liable for contempt. 

Court held that the Landowner contravened the enforcement order

The Council argued that the Landowner did not attempt to comply with the enforcement order. The Council noted that it undertook four site inspections of the land and, as a result, the Council formed a view that no observable building works had been undertaken except for a temporary security fence. 

The Council noted that it wrote to the Landowner urging her to apply to the Court to amend the enforcement order, and advised that if the Landowner did so, it would agree to the amended timeframes to facilitate the completion of the building works.

The Landowner did not dispute the Council's argument regarding her alleged non-compliance. The Landowner, however, argued that her non-compliance was a result of an ongoing proceeding being heard in the Queensland Civil Administrative Tribunal (QCAT) against her contracted builder with respect to the relocated dwelling.

The Council argued that the QCAT proceeding did not amount to a lawful excuse. The Court agreed with the Council and consequently held that the Landowner contravened the enforcement order.

Court found that the Landowner was in contempt of the Court

The Council argued that the Landowner displayed flagrant disregard to the enforcement order and failed to comply with the obligations the Court had imposed.

The Court found that as the Landowner failed to make any attempts to comply with the enforcement order, and ignored the Council's letter regarding an extension, the Landowner deliberately disobeyed the enforcement order. Therefore, the Court held that contempt had been established. 

The Council submitted that the Court ought to exercise its discretion to impose a fine on the Landowner. The Court noted that under section 9 of the Penalties and Sentences Act 1992, a sentence of imprisonment ought be imposed as a last resort. 

The Council argued that there was no evidence to suggest that the Landowner accepted any wrongdoing and no evidence that the Landowner had a reasonable excuse to not comply with the enforcement order, such as extenuating circumstances. The Court identified that in Bundaberg Regional Council v Lammi Anor [2014] QPEC 52 and Bundaberg Regional Council v Bailey [2017] QPEC 31, a more modest punishment was afforded to each respective respondent as there was evidence before the Court that the respondents displayed regret for their conduct, a willingness to take steps to achieve compliance, and evidence of financial and health issues that materially impacted on the ability to comply with an enforcement order. The Court found that in this instance there was no evidence of a willingness to comply with the enforcement order and rather, the Landowner had refused to comply with the enforcement order and had used the continuance of the QCAT proceeding to deflect any wrongdoing. 

The Court noted that there needs to be a penalty which is sufficient to compel compliance and which also reinstates the community's faith in the judicial system. The Court therefore ordered that the Landowner be fined $5,000 for contempt and that the Landowner pay the Council's costs of and incidental to the proceeding fixed at $20,000, to be paid within 2.5 months of the order.

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 2019.

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