In brief

The case of Sunshine Coast Regional Council v Dwyer [2021] QPEC 53 (Enforcement Proceedings) concerned an application to the Planning and Environment Court of Queensland (Court) by the Sunshine Coast Regional Council (Council) in respect of the alleged non-compliance by the respondents with an enforcement order made by the Court on 10 November 2020 for removal or demolition works (Enforcement Order).

In the Enforcement Proceedings the Court also considered an application by the respondents seeking to extend the time for compliance with the Enforcement Order (Extension Application).

The Court was satisfied beyond reasonable doubt that the second respondent was without a lawful excuse in contempt of the Enforcement Order, and did not grant the Extension Application.

The Court later heard from the parties as to the appropriate orders to be made in respect of the contempt and held in the case of Sunshine Coast Regional Council v Dwyer (No. 2) [2022] QPEC 1 that the second respondent be fined $5,000 and pay the Council's costs on a standard basis.

Factual matrix

The second respondent built on the roof of his home located at Minyama a tennis court, a mechanical perimeter fence, lighting fixtures, stairs, a lift, and a partially enclosed structure on the roof enclosing the lift overrun (Building Works).

The Building Works "considerably exceeded" an approval that had been given by a private building certifier which approved the construction of a new roof not exceeding a height of 8.5 metres above natural ground level (at [4]).

After having received an enforcement notice from the Council in respect of the Building Works, the respondents lodged a development application seeking an approval for the Building Works, which the Council refused. The Court confirmed the Council's decision to refuse the development application in the case of Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45.

Prior to the commencement of the Enforcement Proceedings, the Court made the following orders that were consented to by the parties:

  • A declaration under section 11(1)(a) (General declaratory jurisdiction) of the Planning and Environment Court Act 2016 (Qld) (PEC Act) that the Building Works were assessable development that were carried out without all necessary permits, which was a development offence contrary to section 163 of the Planning Act 2016 (Qld) (Planning Act).

  • The Enforcement Order under section 180 (Enforcement orders) of the Planning Act, which required by 10 February 2021 the Building Works to be removed or demolished and the rooftop to be put into a state that complied with the building approval given by the building certifier.

Since the Enforcement Order, the respondents had changed the material comprising, and the height of, the perimeter fence, removed some lighting, and removed parts of the stairs but retained the lift and the lift overrun structure. The respondents had lodged with the Council a development application for an approval of the lift and lift overrun structure, a recreation room, and landscaping and planting for screening (Lift Development Application).

Court refused the Extension Application 

The Court considered each of the following grounds submitted in support of the Extension Application and relevantly held as follows:

  • Steps had been taken to comply with the Enforcement Order – Although some steps had been taken to comply with the order, the respondents had neither removed nor demolished the Building Works, had not restored the roof to a state that complied with the building approval, and the changed fence was not accepted development as alleged by the respondents (see [29] to [38]).

  • An approval may be granted in respect of the remaining non-compliance with the Enforcement Order – The Court held that the Lift Development Application did not have great prospects of success for reasons including that the lift and lift overrun structure had already been refused by both the Council and the Court and the significant difficulties the second respondent had in finding a town planning expert to support the Lift Development Application (see [20] to [26] and [39]).

  • The respondents ought to be given the opportunity to get an approval rather than being put to the cost of removing the remaining Building Works – The Lift Development Application did not have great prospects of success, and the costs associated with complying with an enforcement order was not a sufficient reason to defer or delay the time for that compliance (see [40]).

Legal requirements for contempt

The Court has the power under section 36 (Contempt) of the PEC Act to punish a person for contempt in the same way that a District Court judge may punish a person for contempt under section 129 (Contempt) of the District Court of Queensland Act 1967 (Qld) (DC Act).

To find contempt, the Court was relevantly required under section 129(1)(a) of the DC Act to be satisfied beyond reasonable doubt that the second respondent had failed to comply with the Enforcement Order, and that he did so without a lawful excuse.

The power of a District Court judge, and accordingly a judge of the Court, to punish for contempt is the same as a Supreme Court Judge (see section 129(2) of the DC Act and rule 930 (Punishment) and rule 931 (Imprisonment) of the Uniform Civil Procedure Rules 1999 (Qld)).

Second respondent was in contempt of the Enforcement Order 

In respect of the first limb for contempt, the Court relevantly held, and the second respondent agreed, that the second respondent did not comply with the Enforcement Order (see [50] and [51]).

In respect of the second limb for contempt, the Court relevantly held that the second respondent did not have a lawful excuse for the failure to comply with the Enforcement Order in circumstances where the Lift Development Application had virtually no prospects of success and it was open to the second respondent to apply to the Court to vary the Enforcement Order before the date for compliance (see [52] to [56]).

Conclusion

The Court dismissed the Extension Application and held that the second respondent was, without a lawful excuse, in contempt of the Enforcement Order. Accordingly, the second respondent was fined $5,000, provided a new deadline to comply with the Enforcement Order, and ordered to pay on the standard basis the Council's costs in respect of the Enforcement Proceedings.

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 2022.

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