Caboolture Shire Council v. Swindale

[2007] QPEC 119

[2007] QPEC 119

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

CABOOLTURE SHIRE COUNCIL	Applicant
and
PAULA JEAN SWINDALE  AND OTHERS	Respondent

BRISBANE

..DATE 07/12/2007

ORDER

Catchwords

Integrated Planning Act 1997, s 4.3.24 - Sch 8, table 4,
item 5 - interim enforcement orders made ex parte - undertaking as to costs/damages required of applicant Council - "tidal work" being carried out to reinforce a retaining wall on the edge of Pumicestone Passage.

HIS HONOUR: This is an ex parte application made on a Friday evening for interim relief under section 4.3.24 of the Integrated Planning Act 1997. It seeks to prevent the carrying out of assessable development over three parcels of land with frontage to Biggs Avenue at Beachmere without some appropriate development permit. The section gives the Court a very wide discretion to make an "interim enforcement order" if "satisfied that it would be appropriate".

The evidence before the Court indicates that work is being done at the "rear" of the properties which adjoins Pumicestone Passage and that significant quantities of rock have been imported to reinforce what may well have been an existing retaining wall, the purpose of which is easily worked out.  It appears that natural events have caused erosion of the three properties (which are adjoining) excavation of which most owners would like to prevent.

However, the Council, having been alerted to the situation by an anonymous complaint, takes the view that assessable development is occurring in the form of operational works of the kind referred to in item 5 of table 4 of schedule 8 of the Act.

I have had occasion to consider such (and similar and related) provisions in the past which has simplified things this evening. See Hayday Pty Ltd v Brisbane City Council [2006] QPELR 261, Wall, Director-General of the EPA v Douglas Shire Council [2007] QPEC 044. Mr Devlin for the applicant Council has referred to the Coastal Protection Management Act whose operation is far more extensive than the uninstructed might think, in particular to section 148.

The Council has issued a "20 business day" notice requiring cessation of the work after that period of time.  That notice has not yet expired.  Mr Wayne Goss, who gave telephone evidence in the course of which he satisfactorily identified recent photographs in 61 corroborating his evidence of seeing work done, told the Court it is the usual practice of the Council to give notice of such dimensions.  It has determined the matter is more urgent in light of work continuing notwithstanding the posting out of letters, whose content was read out by Mr Goss, to the addresses the Council has for the various proprietors on the 28th of last month.  The Council's professed approach is to have things regularized, starting by the opportunity of assessing some appropriate development application(s).

The Swindales, the proprietors of number 85 or lot
A7 as referred to in the draft order supplied, have contacted the Council asserting that they are doing no work but that their neighbours are doing work.  There has been no contact or response from the other owners.  They have had "served" on them today by their being left at the properties enforcement notices of which Exhibit 6 addressed to Mr Firrell is an example.  Those notices required immediate cessation of work, i.e. by 5 p.m. today.

The contractor spoken to by Mr Goss (who apparently will not identify himself) has exhibited some uncertainty as to whether he or it is entitled to carry out work in the circumstances but there is no assurance available to the Council that the work will stop. Hence this urgent application which is or will be supported by the undertaking as to costs/damages referred to in the Act in s 4.3.24(2), which I think ought accompany any relief granted in the circumstances.

The order is short on detail of what is to occur next by way of notifying the respondents of what has happened in the hearing, for example, and service upon them of material.  It does require the filing of an originating application so that the Court can start a file; otherwise it simply requires that the carrying out of assessable development over the relevant parcels cease until further notice.  That is what it says, but it should say until further order.  Liberty to apply is added.

The Court is leaving it to the Council to devise appropriate means of proceeding from here.  It seems that the respondents, other than the Swindales, may be people with some legal knowledge or easy access to it which may well lead to their doing the right thing, now that the Council has demonstrated its seriousness and determination.  Order as per initialled draft.

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