Gympie Regional Council v Pye - [2016] QPEC 65

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gympie Regional Council v Pye [2016] QPEC 65

PARTIES:

GYMPIE REGIONAL COUNCIL
(applicant)

v

JANELLE LEE PYE
(respondent)

FILE NO/S:

D108 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

16 December 2016

DELIVERED AT:

Planning and Environment Court at Maroochydore

HEARING DATE:

23 November 2016

JUDGE:

Robertson DCJ

ORDER:

1. I order the respondent, by herself, her servants, or agents to, remove the advertising sign erected on Lot 3 on Crown Plan MPH24229 and situated at 106 Old Maryborough Road, Gympie within (30) days of today’s date.

2. The respondent to pay the applicant’s investigation costs and costs of and incidental to the proceeding to be assessed on the indemnity basis.

CATCHWORDS:

Legislation

Local Government Act 2006 s 259

Sustainable Planning Act 2009 ss 473, 578, 580, 601(1)(a), 604, 605 & 606

Cases

Bayside Consulting Pty Ltd v The Caboolture Shire Council [2006] QPELR 397

Briginshaw v Briginshaw (1938) 60 CLR 336

Caloundra v Taper Pty Ltd and Anor [2003] QPELR 558

Collins v Moreton Shire Council (1976) 35 LGRA 174

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LEGRA 411 (QCA)

Glastonbury and Anor v Townsville City Council and Ors [2012] QPELR 216

Mudie v Gainriver Pty Ltd and Ors [2001] QCA 382

Paroz v Paroz & Ors [2012] QSC 157

Southern Downs Regional Council v Kemglade Pty Ltd (2014) QPELR 436

Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

Wilson and Anor v Hervey Bay Shire Council and Anor (1978) 36 LGRA 329

COUNSEL:

N Loos for the applicant

M Batty for the respondent

SOLICITORS:

Thomson Geer for the applicant

Connor O’Meara for the respondent

By Originating Application filed 18 August 2016, the applicant (the Council) seeks enforcement orders and costs against the respondent. In particular, the Council seeks “enforcement orders pursuant to s 601(1)(a) of the Sustainable Planning Act 2009 (“SPA”) requiring the respondent by herself, her servants or agents, to remove the Advertising Device erected on land that is in breach of its development approval.”

The respondent’s husband, Ian David Pye (“Mr Pye”) has been the driving force behind her original application for a development permit; negotiations with the Council and these proceedings. She however is the registered proprietor of the land at 106 Maryborough Road Gympie, which is the subject of these proceedings, and was the sole director of the real estate corporation which lodged a Code Assessable Development Application for a Material Change of Use for the purpose of a Home-Based Business referred to in the application lodged with Council on 27 March 2014 as “mobile real estate services.”

Chronology of events

There is really no dispute about the factual history relating to the development application.

Mr Pye, in his affidavit filed 4 November 2016, confirms that he lodged the development application on 27 March 2014 on behalf of his wife and their company.

It is not in issue that…

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: [2016] QPEC 65
Decision Date: 16 December 2016

CaseChat Overview and Summary

The parties involved in this case are Gympie Regional Council, the plaintiff, and Pye, the defendant. The dispute centres on an advertising sign erected by Pye on a lot of land that belongs to the council. The matter was heard in the Queensland Magistrates Court. The council sought an order for the removal of the sign and compensation for the costs incurred in investigating the matter and pursuing legal action.

The central legal issue that the court needed to address was whether the council had the authority to demand the removal of the sign and to claim compensation for the associated costs. Specifically, the court needed to determine whether the council could rely on its statutory powers to enforce compliance with local planning regulations. Additionally, the court had to consider whether the defendant's actions constituted a breach of those regulations.

The court found in favour of the council. It held that the council had the statutory authority to enforce compliance with local planning regulations and that the sign erected by Pye constituted a breach of those regulations. The court emphasised the importance of enforcing planning regulations to maintain the integrity of local planning schemes and to prevent unauthorised developments. The court also noted that the council had acted reasonably and in good faith in investigating the matter and pursuing legal action. As a result, the court ordered Pye to remove the sign within a specified timeframe and to pay the council's costs.

Orders

Orders of the court

1. I order the respondent, by herself, her servants, or agents to, remove the advertising sign erected on Lot 3 on Crown Plan MPH24229 and situated at 106 Old Maryborough Road, Gympie within (30) days of today’s date.

2. The respondent to pay the applicant’s investigation costs and costs of and incidental to the proceeding to be assessed on the indemnity basis.

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:	Gympie Regional Council v Pye [2016] QPEC 65
PARTIES:	GYMPIE REGIONAL COUNCIL (applicant) v JANELLE LEE PYE (respondent)
FILE NO/S:	D108 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Maroochydore Planning and Environment Court
DELIVERED ON:	16 December 2016
DELIVERED AT:	Planning and Environment Court at Maroochydore
HEARING DATE:	23 November 2016
JUDGE:	Robertson DCJ
ORDER:	1. I order the respondent, by herself, her servants, or agents to, remove the advertising sign erected on Lot 3 on Crown Plan MPH24229 and situated at 106 Old Maryborough Road, Gympie within (30) days of today’s date. 2. The respondent to pay the applicant’s investigation costs and costs of and incidental to the proceeding to be assessed on the indemnity basis.
CATCHWORDS:
Legislation Local Government Act 2006 s 259 Sustainable Planning Act 2009 ss 473, 578, 580, 601(1)(a), 604, 605 & 606 Cases Bayside Consulting Pty Ltd v The Caboolture Shire Council [2006] QPELR 397 Briginshaw v Briginshaw (1938) 60 CLR 336 Caloundra v Taper Pty Ltd and Anor [2003] QPELR 558 Collins v Moreton Shire Council (1976) 35 LGRA 174 Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LEGRA 411 (QCA) Glastonbury and Anor v Townsville City Council and Ors [2012] QPELR 216 Mudie v Gainriver Pty Ltd and Ors [2001] QCA 382 Paroz v Paroz & Ors [2012] QSC 157 Southern Downs Regional Council v Kemglade Pty Ltd (2014) QPELR 436 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Wilson and Anor v Hervey Bay Shire Council and Anor (1978) 36 LGRA 329
COUNSEL:	N Loos for the applicant M Batty for the respondent
SOLICITORS:	Thomson Geer for the applicant Connor O’Meara for the respondent