Brisbane City Council v Battel

[2006] QPEC 54

[2006] QPEC 054

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No BD2766 of 2006

BRISBANE CITY COUNCIL  Applicant

and

MICHELE BATTEL and
EMILIA BATTEL  Respondents

BRISBANE

..DATE 07/04/2006

ORDER

CATCHWORDS:  Council reporting to court - non-compliance by elderly respondents with consent order that they make a development application with a view to regularizing unlawful building work, in default demolish the buildings - appropriate directions considered.

HIS HONOUR:  This is an unusual case in which the Council wishes to report to the Court the respondents' non-compliance with consent orders made by Judge Rackemann on the 26th of August last year.  Those involved a declaration that unlawful development had taken place on the respondents' property at Murarrie. 

The focus to date has been on the existence on the site of a certain number of industrial buildings, apparently erected without appropriate permits or approvals.  This situation has developed over some decades for the earlier period of which the property was out in the bush, as Mr Comino says, so that what was happening there apparently escaped notice.  The buildings are all let out to people pursuing activities in them.

Under the order a development application was to be made for the Council, failing which the buildings, or some of them, were to be demolished.  Nothing has happened at all. 

The respondents, who are elderly, have a sentimental attachment to their property and the use being made of it, which is apparently not shared by the more hard-headed younger members of the family.  Their efforts and Mr Comino's to persuade the respondents around to their view that the rational course is to sell the property have been unavailing so far.  Mr Comino agrees that the best way to bring matters to a head, distressing as that is likely to be for his clients, is to have the matter set down for determination.  There has been no real consideration of what might occur, but perhaps it may be a case of the draconian provisions rule
925ff of the UCPR which apply when orders are not complied with being invoked.

It does not appear that any particular directions ought to be given in advance of the hearing, although Mr O'Brien has indicated that the Council may wish to supplement its affidavits.  Mr Comino says his clients have engaged engineers at considerable expense to look into things, but without advancing things much.  I agree with him that it would be too precipitate to fix a date, although one is available, before the end of this month. 

In the circumstances, the Court will order that the application be assigned to the May pool cases and be listed, if possible, for hearing at the callover on the 24th of April. 

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