Bundaberg Regional Council v Bailey - [2017] QPEC 31

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Bundaberg Regional Council v Bailey [2017] QPEC 31

PARTIES:

BUNDABERG REGIONAL COUNCIL

(applicant)

and

KAREN NOLA BAILEY

(respondent)

FILE NO/S:

2625 of 2016

DIVISION:

Planning & Environment

DELIVERED ON:

15 May 2017 – delivered ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2017

JUDGE:

RS Jones DCJ

COUNSEL:

MA Williamson for the applicant

JM Hewson for the respondent

SOLICITORS:

Connor O’Meara for the applicant

Holding Redlich for the respondent

HIS HONOUR: I am concerned here with an application brought by the Bundaberg Regional Council, in effect, seeking orders requiring me to make a finding that the respondent is in contempt, and thereafter make further orders dealing with how that contempt should be dealt with.

Pursuant to section 439 of the Sustainable Planning Act 2009, a judge of this court has the same power to punish a person for contempt of the court as the judge has to punish that person for contempt of the District Court. Subsection (3) provides:

If a person at any time contravenes an order of the court, the person is also taken to be in contempt of the court.

In this case contempt has been established not only through the evidence that has been placed before me, but also through the admission made by the respondent through her counsel. The respondent was of course present but is represented by Ms Hewson of Counsel. Contempt, having been established, as I indicated, this court has the same powers to punish as the District Court.

Some background is necessary in this context. On 24 May 2012, Judge Durward made a number of orders pursuant to section 604 of the Sustainable Planning Act. Relevantly, the orders provided:

The respondent by herself and her servants or agents remove from the land and do not replace all things in connection with the dismantled building that has been placed on the land, unless the respondent complies with paragraph 3 of the order.

Paragraph 3 then went on to relevantly provide –I say “relevantly provide,” because subparagraph (a) of order 3 is not in issue. So, relevantly, order 3 provided:

Forthwith, commence and complete the building works authorised by the building development approval which is attached hereto and marked A, so that:

(b) by 30 June 2012, including all the works necessary so that a form 16 inspection certificate for the frame stage of the building work is provided to the applicant, and also to provide a statement from a private certifier to the applicant that the roof sheeting has been installed in accordance with the manufacturer’s specifications;

(c) by 14 August 2012, complete all exterior building work in accordance with the requirements of the building development approval and concurrence agency response (for example, painting of the external cladding, install or repair windows, the enclosing of the subfloor with timber battens, etcetera) and provide a statement from a private certifier to the effect that the external works have been completed in accordance with paragraph 3 (c)…

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: [2017] QPEC 31
Decision Date: 15 May 2017 – delivered ex tempore

CaseChat Overview and Summary

The Bundaberg Regional Council sought orders from the Planning and Environment Court of Queensland that the respondent, Karen Nola Bailey, be found in contempt and that further orders be made dealing with the contempt. The respondent had been ordered by the Court in 2012 to complete building works on a property, but had failed to do so. The respondent had experienced personal difficulties in complying with the orders, including health and financial issues, and had not sought to vary the orders. The Court found that the respondent was in contempt of the Court and imposed a sentence that required her to enter into a recognizance of $1000 on the condition that she must appear before a court if called upon to do so within the timeframe of the further orders. The Court ordered that the respondent pay the applicant's costs of the proceeding on a standard basis, but that the costs not be enforced until 1 March 2018. The Court made orders concerning the works to be carried out and when they would be carried out. The Court ordered that unless otherwise authorised by the court, the respondent must complete the works by certain dates.

Orders