Brisbane City Council v Bowman - [2013] QPEC 62

[2013] QPEC 62

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1703 of 2013
BRISBANE CITY COUNCIL Applicant
and
JOHN ALEXANDER BOWMAN and OTHERS Respondent
BRISBANE
2.37 PM, MONDAY, 16 SEPTEMBER 2013
ORDER
CATCHWORDS
Contempt of court - non-compliance with parts of enforcement order (made by consent) admitted - court now endorses “plea bargain” and sentence suggested by the parties of its discussions - convictions recorded- sentence of four months imprisonment wholly suspended imposed on the individual respondent - $10,000 to be paid on account of applicant council’s enforcement order substituted
Sustainable Planning Act 2009 s604

HIS HONOUR: The court makes certain orders, which it is invited to do by both parties. They would not have been made unless the court was satisfied that they represented an appropriate outcome in the circumstances, which are serious ones. This is a proceeding by the Council seeking to have three respondents – two companies and Mr John Alexander Bowman – punished for contempt of court by disobedience to an enforcement order which Judge Searles made by consent of all the parties on the 10^th of December 2012 in originating application 1061/2012. Orders are made consequent upon Mr Todman of counsel telling the court he had instructions of his clients to plead guilty and to agree to the orders proposed by way of punishment – and also variation, appropriate in circumstances that have occurred, of Judge Searles’ orders by replacement of them by new ones. There also is a significant provision in respect of costs.

The new enforcement orders today are set out in a draft order, which I have initialled. It’s made under section 604 of the Sustainable Planning Act 2009. Otherwise, the court finds the respondents guilty of contempt of court for failure to comply with paragraphs 8, 9, 12 and 13 of the order of Judge Searles made on 10 December 2012 in originating application 1061/2012. A conviction is recorded against all respondents. Mr Bowman is sentenced to imprisonment for four months, such imprisonment to be wholly suspended for an operational period of two years. The draft order for purposes of section 604 contains a requirement that, within 12 months, the respondents pay $10,000 in respect of the applicant Council’s professional costs.

That aspect is contrary to what was foreshadowed this morning before the matter was stood down to enable the parties to have discussions. The new agreement is explained on the basis that Mr Bowman is freed from an obligation to lodge a development application to the Council for purposes of regularising his use of his premises at Bald Hills. Mr Todman tells the court that he had engaged town planners for the purposes of submitting a development application but that he did not proceed with that on discovering the application fees amounted to some $30,000, which he was disinclined to pay, particularly because pessimistic about the prospects of the development application succeeding.

It seems that today he has abandoned thoughts of using the property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QPEC 62
Decision Date: 16 SEPTEMBER 2013

CaseChat Overview and Summary

The Brisbane City Council took legal action against John Alexander Bowman and two companies for contempt of court, alleging they failed to comply with an enforcement order. The matter was heard in the Planning and Environment Court of Queensland, presided over by Judge Robin QCP & E. The respondents admitted to non-compliance with certain parts of the enforcement order and agreed to a plea bargain suggested by the parties. The court found the respondents guilty of contempt of court and sentenced John Alexander Bowman to four months imprisonment, wholly suspended for two years, and ordered the payment of $10,000 to cover the Council's professional costs.

The legal issues in this case involved determining whether the respondents breached the enforcement order and, if so, what the appropriate punishment should be. The respondents admitted to not complying with several parts of the order, including failing to submit a development application, cease using the premises for specific activities, remove heavy vehicles and equipment, and submit a rehabilitation plan. The court had to consider the appropriate punishment for the respondents' non-compliance with the order, taking into account the plea bargain agreed upon by the parties.

In reaching its decision, the court considered the seriousness of the respondents' non-compliance with the enforcement order and the circumstances that led to the breach. The court acknowledged that the respondents had some genuine difficulties in complying with the order, such as the high cost of submitting a development application and the impact of flooding on the removal of equipment. However, the court emphasised the importance of respecting court orders and the need to impose consequences for non-compliance. The court also noted that this was not the first time John Alexander Bowman had faced difficulties in complying with court orders. Ultimately, the court endorsed the plea bargain and the suggested punishment, taking into account the circumstances and the parties' agreement.

In summary, the court found the respondents guilty of contempt of court for failing to comply with the enforcement order and sentenced John Alexander Bowman to four months imprisonment, wholly suspended for two years, and ordered the payment of $10,000 to cover the Council's professional costs. The new enforcement orders, which were agreed upon by the parties, replace the original orders and provide a resolution to the matter over a 12-month timeframe.

Orders