Bundaberg Regional Council v Muller - [2019] QPEC 31

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bundaberg Regional Council v Muller [2019] QPEC 31

PARTIES:

BUNDABERG REGIONAL COUNCIL
(applicant)

v

DEBBIE LORRAINE MULLER AS TRUSTEE UNDER INSTRUMENT 71566903
(respondent)

FILE NO/S:

4525 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

18 June 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2019

JUDGE:

Kefford DCJ

ORDER:

1. The Respondent is fined $5 000 and the fine is to be paid by 30 August 2019.

2. The Respondent by herself, her servants or agents remove from land described as Lot 65 on RP22109 and situated at 22 Kolan Street, Bundaberg (“the Land”), and do not replace, all things in connection with the building that has been placed on the Land, by 30 August 2019.

3. The Respondent pay the Applicant’s costs of and incidental to the proceeding, fixed at $20 000, to be paid by 30 August 2019.

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made by his Honour Judge Rackemann in the Planning & Environment Court on 16 March 2018 – where the order was made by consent – where the enforcement order was not complied with – whether the respondent is in contempt of the enforcement order

LEGISLATION:

District Court of Queensland Act 1967, s 129

Penalties and Sentences Act 1992, s 9

Planning and Environment Court Act 2016, s 36

Uniform Civil Procedure Rules 1999, r 930, r 932

CASES:

Bundaberg Regional Council v Bailey [2017] QPEC 31; [2017] QPELR 782, considered

Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52, [2015] QPLR 111, considered

Dubois v Rockhampton Regional Council [2014] QCA 215, cited

Logan City Council v Whelan [2015] QPEC 23; [2015] QPELR 659, considered

Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66; [2018] QPELR 224, considered

SOLICITORS:

Connor O’Meara for the appellants

The respondent represented herself

Introduction

Ms Muller owns land at 22 Kolan Street, Bundaberg. In 2014, pursuant to a building approval, she caused a relocated house to be placed on her land. The building approval subsequently lapsed because Ms Muller neglected to undertake various works to complete and secure the house.

For almost three years, the Bundaberg Regional Council (“the Council”) has been endeavouring to variously encourage, demand, require and eventually coerce Ms Muller to either remove the house or obtain a new building development approval and undertake the works necessary to complete and secure the house.

The Court has made enforcement orders requiring steps be taken to rectify the unlawful building works. Ms Muller accepts that she has not complied with the enforcement orders.

The Council seeks to have Ms Muller punished for contempt.

The enforcement order

On 20 December 2017, the Council commenced proceedings for enforcement orders with respect to an incomplete building relocated from other land (“the…

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: [2019] QPEC 31
Decision Date: 18 June 2019 (ex tempore)

CaseChat Overview and Summary

Bundaberg Regional Council sought a declaration of contempt against Muller, following her failure to comply with an enforcement order made by his Honour Judge Rackemann in the Planning & Environment Court on 16 March 2018. The order, made by consent, required Muller to remove a building from land at 22 Kolan Street, Bundaberg. The Council argued that Muller's non-compliance with the order constituted contempt. Muller, on the other hand, argued that she was unable to comply with the order due to financial constraints and that she had taken steps to resolve the issue.

The primary legal issue for the court was whether Muller's non-compliance with the enforcement order constituted contempt. The court considered whether Muller had the means to comply with the order, and if she had deliberately or contumaciously failed to do so. The court also examined whether Muller had taken any steps to remedy the situation. The court found that Muller had the means to comply with the order but had failed to do so. The court held that Muller's failure to comply with the order was deliberate and contumacious, and that she had not taken any steps to remedy the situation.

The court found Muller in contempt of the enforcement order and ordered her to pay a fine of $5000, remove the building from the land by 30 August 2019, and pay the Council's costs of $20000, also by 30 August 2019. The court held that Muller's failure to comply with the order was deliberate and contumacious, and that she had not taken any steps to remedy the situation. The court found that Muller was in contempt of the enforcement order and made the orders as stated above.

Orders

Orders of the court

1. The Respondent is fined $5 000 and the fine is to be paid by 30 August 2019.

2. The Respondent by herself, her servants or agents remove from land described as Lot 65 on RP22109 and situated at 22 Kolan Street, Bundaberg (“the Land”), and do not replace, all things in connection with the building that has been placed on the Land, by 30 August 2019.

3. The Respondent pay the Applicant’s costs of and incidental to the proceeding, fixed at $20 000, to be paid by 30 August 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bundaberg Regional Council v Muller [2019] QPEC 31
PARTIES:	BUNDABERG REGIONAL COUNCIL (applicant) v DEBBIE LORRAINE MULLER AS TRUSTEE UNDER INSTRUMENT 71566903 (respondent)
FILE NO/S:	4525 of 2018
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	18 June 2019 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2019
JUDGE:	Kefford DCJ
ORDER:	1. The Respondent is fined $5 000 and the fine is to be paid by 30 August 2019. 2. The Respondent by herself, her servants or agents remove from land described as Lot 65 on RP22109 and situated at 22 Kolan Street, Bundaberg (“the Land”), and do not replace, all things in connection with the building that has been placed on the Land, by 30 August 2019. 3. The Respondent pay the Applicant’s costs of and incidental to the proceeding, fixed at $20 000, to be paid by 30 August 2019.
CATCHWORDS:	COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made by his Honour Judge Rackemann in the Planning & Environment Court on 16 March 2018 – where the order was made by consent – where the enforcement order was not complied with – whether the respondent is in contempt of the enforcement order
LEGISLATION:	District Court of Queensland Act 1967, s 129 Penalties and Sentences Act 1992, s 9 Planning and Environment Court Act 2016, s 36 Uniform Civil Procedure Rules 1999, r 930, r 932
CASES:	Bundaberg Regional Council v Bailey [2017] QPEC 31; [2017] QPELR 782, considered Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52, [2015] QPLR 111, considered Dubois v Rockhampton Regional Council [2014] QCA 215, cited Logan City Council v Whelan [2015] QPEC 23; [2015] QPELR 659, considered Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66; [2018] QPELR 224, considered
SOLICITORS:	Connor O’Meara for the appellants The respondent represented herself