Brisbane City Council v Wang

[2008] QPEC 89

[2008] QPEC 89

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3258 of 2004

BRISBANE CITY COUNCIL	Applicant
and
VICTOR CHANG WANG	Respondent

BRISBANE

..DATE 10/09/2008

ORDER

Catchwords

Local Government Act 1993 s 1066 - Court confirms Council's entitlement to enter premises to demolish unlawful improvements, following failure of respondent to comply with order in that regard.

HIS HONOUR:  The Court has made an order in terms of the initialled draft.  These terms I won't read in full now but I'd like reproduced in the order.  It is ordered that:

1. Within 180 days from the date of this order, the applicant be permitted to enter onto the land located at 3 Cluden Street, Holland Park West, more particularly described as Lot 66 on RP 100702 ("the said premises"), to demolish the unlawful structure thereon being the two storey concrete block building comprising a garage, a second floor and a roof deck ("the unlawful structure") the subject of the order of this Court made 19 February 2008, the demolition and all incidental activities referred to in paragraphs two and three hereof being referred to as "the said works".

1. Prior to demolishing the unlawful structure, that the applicant be at liberty by its servants, agents and contractors:

(a)During daylight hours, and on such occasions as it may require, to enter onto the said premises and to inspect, both internally and externally, the unlawful structure using such force as may reasonably be necessary to gain entry to the unlawful structure;

(b)Enter onto the said premises and to disconnect any utilities to the unlawful structure while maintaining the connection of utilities to the house on the said premises;

(c)to remove any items of personal possession in the unlawful structure and to place such items under cover on the said premises.

1. During the course of such demolition, the applicant by its servants, agent and contractors shall be at liberty:

(a)To enter onto the said premises for the purposes of demolishing the unlawful structure;

(b)To bring onto the said premises and to use such equipment, labour and materials as it may consider necessary or desirable for the purposes of demolishing the unlawful structure;

(c)To remove from the said premises, all items of building material as comprised the unlawful structure;

(d)To dispose of such material, either -

(i)By sale by auction at which all title to such material shall be transferred to any bona fide purchaser for value and the net proceeds of such sale (after all costs associated with such sale) shall be applied towards the cost of the works, or

(ii)At such refuse disposal facility as it may determine;

(e)To take such action as it may consider necessary or desirable for the purposes of securing the unlawful structure, the plant and equipment involved in the demolition process and the persons carrying out the demolition.

1. An order declaring that the work of and incidental to the demolition of the unlawful structure is work required to be performed under a local government Act in terms of section 1066 of the Local Government Act 1936;

1. The applicant take no action under this order until the expiration of seven days from service of a copy of it on the respondent by posting the same prepaid to him at the address set out above and by leaving a copy thereof at that address and with an adult person found there if any such adult person answers when such service is being effected.

1. Liberty to apply.

It's the culmination of a number of appearances by the Council in the Court.  The conclusion seems inescapable that the respondent, who has constructed an unlawful two storey structure close to his front boundary, is avoiding service of process which the Council ought to serve on him. 

The stage is reached where he has had ample time to comply with the requirements of Court orders that he demolish the improvements which, whatever aesthetic or cultural appeal they might have to him, are an unwelcome blighting of the amenity of neighbours and indeed the street generally at an overwhelming scale.

The respondent, having done nothing about removing the improvements himself or bringing a development application, a favourable outcome of which would possibly result in an approval, means the time is reached, unless the Council and the Court are to admit defeat, where the Council should be authorised to enter the premises and do the work.

Section 1066 of the Local Government Act 1993 authorises the Council to enter the premises and perform the work in circumstances which now exist, pursuant to subsection (2)(d). The point of today's application by the Council appears to be to have the Court endorse the Council's view that section 1066 is applicable. It seems to me useful for that to be attended to at this stage rather than later on, should Mr Wang raise complaints in the future. The Council may then find useful the protection of the Court's order.

Service of the application filed on the 2nd of September was effected only recently but in compliance with the requirement of the Planning and Environment Court Rules of two business days being allowed. 

As much as the Court might like to award costs to the Council in these circumstances and on the indemnity basis, as Judge Wilson did in Gold Coast City Council v. Metro Star Pty Ltd [2005] QPELR 17. The jurisdiction is not shown to exist here. His Honour was able to make an order against the company as it had itself been an applicant in an underlying proceeding commenced by the Council. In this case, Mr Wang has "kept house", so to speak, and not been a moving party in Court. So the Council's application for costs has to be rejected.

Pressure of time today has limited the extent of reasons that can be delivered.  It may be that at some time in the future I have the opportunity to prepare and publish more detailed reasons but that won't necessarily happen. 

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