In brief

The case of Moreton Bay Regional Council v Meredith & Others [2020] QPEC 36 concerned an originating application to the Planning and Environment Court seeking that the respondents be committed or otherwise dealt with for contempt of court. 

The alleged contempt related to the respondents' failure to comply with a Court Order dated 5 December 2019 (Court Order) requiring them to restrain from carrying out a material change of use for a "medium impact industry", as defined in the Moreton Bay Regional Council Planning Scheme (Planning Scheme). The Court found that the respondents were wilfully not complying with the Court Order and were therefore in contempt. 

Legislative framework

Section 36(1) of the Planning and Environment Court Act 2016 (Qld) provides that the Planning and Environment Court has the same power to punish a person for contempt as the District Court. 

Section 129(1) of the District Court of Queensland Act 1967 (Qld) provides that a person is in contempt if that person, without lawful excuse, fails to comply with an order of the court (other than an order of the type mentioned in section 129(1)(e), which did not apply in the circumstances of this case).

Background facts

Paragraph 1 of the Court Order stated as follows:

"It is ordered by consent that (1) the first, second, third and fourth respondents by themselves, their servants or agents, are restrained from carrying out a material change of use for a medium impact industry as defined by the Moreton Bay Regional Council Planning Scheme including wood chipping on the subject land save for where authorised by an effective development permit."

The evidence before the Court was that on several occasions, Council officers attended the subject land following the receipt of a complaint to investigate an alleged unlawful use. On each occasion, the relevant Council officer observed that a woodchipper was being used on the subject land, including a conveyor and large piles of fill.

The subject land is located in the rural residential zone. In that zone, activities defined as "medium impact industry" in the Planning Scheme require a development permit. A medium impact industry includes: manufacturing, producing, processing, repairing, altering, recycling, storing, distributing, transferring or treating of products, which results in noticeable impacts on sensitive land uses due to offsite emissions (such as particle, smoke, odour and noise). 

The respondents were of the view that the Court Order permitted them to operate the machinery. In addition to paragraph 1, the Court Order separately provided that the respondents were required to "remove and lawfully dispose of the fill" and "any stockpiles of material". The Court Order also stated that the respondents were to use their own plant and equipment to carry out those works. 

An affidavit was filed by each of the first and third respondents, and by an employee. These affidavits variously stated as follows:

  • "The plant and equipment that is being used on the site is the fastest and quickest way to achieve the desired outcome of the court".
  • "A tub grinder was chosen for use on the site for this process … this does not involve nor is this process wood chipping". 
  • "A tub grinder and woodchipper are two completely different machines. A tub grinder does not chip wood and it is not a woodchipper". 
  • "The plant and equipment being used on the site is considerably quieter than the woodchipper that was previously in use".
  • "…there is no application that could be applied in this situation able to complete the orders of the court which does not have noise impact on surrounding properties". 

The unchallenged evidence of neighbouring property owners was that they saw no material difference in the noise emanating from the woodchipper when compared with the tub grinder. They also said that there were similar nuisance outcomes, including dust or woodchip debris which would drift onto their properties.

A lay witness also relevantly gave evidence that he saw "large trucks leaving the land filled with wood chips" and "large trucks coming to the property filled with wood to replace the wood piles". 

Findings of contempt

The Court found as follows:

  • Despite the evidence of the lay witness, the respondents were not importing more timber onto the subject land for processing. The Court stated that "the timber might have been delivered to the subject land but was then transported to other sites for further processing". 
  • The respondents continued to process larger pieces of timber into materially small pieces of wood on a regular basis, and that this use fell within the definition of "medium impact industry". 
  • The Court rejected oral evidence of the first respondent that alternative methods for removing the timber would have taken considerably longer and would be a significantly greater financial cost. 
  • The respondents decided to use the tub grinder, rather than alternative methods, for commercial advantage and to maximise their returns. 

The Court held that it was satisfied beyond a reasonable doubt that the conduct of the respondents was in breach of the Court Order, and that the respondents had no lawful excuse for failing to comply with the Court Order. 

In so concluding, the Court held that the Court Order was not directed at preventing activities on the subject land involving the use of a woodchipper per se. Paragraph 1 required that the respondents be restrained from carrying out "a material change of use for a medium-impact industry including woodchipping". 

Conclusion

The Court referred to the decision in Bundaberg Regional Council v Bailey [2017] QPEC 31 where it was said that contempt is a serious matter that "goes significantly to the heart of the justice system". 

The Court held that the circumstances of this case justified an order that the respondents pay a fine of $5,000 in total, and the applicant's costs of $20,000.

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 2021.

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