Ipswich City Council v Riverside Industrial Development Pty Ltd

[2008] QPEC 93

[2008] QPEC 93  

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2981 of 2008

IPSWICH CITY COUNCIL

Applicant

and

RIVERSIDE INDUSTRIAL DEVELOPMENT
PTY LTD

and

EMMETT HANRAHAN

Respondent

Respondent

BRISBANE

..DATE 24/10/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.1.4,
s 3.5.21(3), s 4.3.9, s 4.3.24 - interim enforcement order to cease filling on land which was occurring without the requisite development permit - the operational work done exceed that authorized by a development approval years before, which had lapsed in any event.

HIS HONOUR:  This is an urgent application by Ipswich City

Council for an interim enforcement order under section 4.3.24

of the Integrated Planning Act 1997 (IPA).  It's made within

an originating application filed this morning which seeks not

only that relief (which is in terms of an enforcement order

requiring the immediate cessation of assessable operational

work by way of replacement of fill on defined premises except

in accordance with an effective development permit).

The originating application also seeks, among other relief, an

enforcement order requiring the respondents to return the

premises to the condition they were in before the operational

work was carried out.

The relevant property is some 70,000 square metres, and it's

located partly in the regional business and industry

zone, partly within the regional business and industry buffer

zone.

Mr Williamson has taken me to those parts of the planning

scheme relating to earthworks in the respective zones where

not associated with a material change of use.  There's no

material change of use involved here.

There are exemptions for earthworks which are the same for
both zones where those are of small scale.  For example

schedule 8 identifies, among the criteria for exempt

earthworks, that they don't comprise more than a thousand

square metres in area; don't exceed an average depth of 500

millimetres, or a maximum depth of 800 millimetres.

There are other requirements such as not being within three

metres of an adjoining property, and not involving earth

batters with a slope greater than one in eight.

On the evidence before the Court something like half of the

property has had fill placed on it, and in places, to a depth

of five metres, is that right?  Is that what you said?

MR WILLIAMSON:  In excess of five metres, your Honour.

HIS HONOUR:  Yes.  And in places in excess of five metres.

Some Council manholes associated with its infrastructure have

been covered.  Given that the exemption is unavailable, the

Council's earthworks code applies.  That would give the

Council an opportunity to impose appropriate conditions.

The evidence before the Court contains a sample permit

indicating the types of conditions that might be required.

Unsurprisingly, the relevant schedule 1 dictionary in the

Ipswich Planning Scheme defines earthworks in a way to make it

clear that what has, on the evidence, been happening is

covered.  Earthworks means:  "The addition, removal or

movement of any solid material on to, or from land, or any

other work which will substantially alter the existing ground

level."

The basis for the Court's making an enforcement order, or

interim enforcement order, is the commission of a development

offence.  The one relied on by the Council arises under

section 4.3.1 (Carrying out assessable development without

permit).  Assessable development includes earthworks of the

kind and scale indicated in the evidence.

There's been no appearance by the respondents today although

they were called at about 2.45 p.m. outside the Court.  I was

informed from the Bar table that the instructing solicitor

Mr Quirk's secretary, Amanda Cordwell, succeeded in contacting

the second respondent, a director of the first respondent,

which is the registered proprietor of the land, by telephone

this morning, and obtained from him a fax number for the

purpose of serving the originating application upon him.

Mr Quirk's own affidavit indicates that the application in the

hour or so before this hearing was "served" by that means.

I'm unsure that what was done would count as service, but as

things stand, the Court can regard it as giving very belated

notice to the respondents of what they face in Court this

afternoon.

The return date on the application is indicated as being today

after 2 p.m.  Beyond that the respondents may have been placed

on notice by a show cause notice. 

...

HIS HONOUR:  Mr Twiddle's affidavit exhibits a show cause

notice under section 4.3.9 of the IPA directed to

Mr Hanrahan, and issued on the 13th of October 2008 inviting

him to show cause why an enforcement notice should not

issue requiring cessation of importation of fill and

restoration of the subject property, or the seeking and

obtaining of an appropriate development permit.  A similar

notice was directed to the company.

Mr Twiddle's affidavit, the subject of leave to read and file,

in paragraph 15, simply exhibits that material as true copies

of notices issued to the respondents.  There are no

particulars given of the way in which they might have been

given to the respondents or brought to their attention, still

less of any reaction by the respondents.

The Council has very properly placed before the Court

information relating to an approval which it gave on the

9th of October 2000 to a company called M & K Properties Pty

Ltd, care of a Mr Tony Kass of West Heidelberg, Victoria.  I

understand that the applicant Council in Caboolture Shire

Council v Swindell [2007] QPEC 119 may have been embarrassed

by the subsequent unearthing of an old approval. 
The 2000 approved authorised filling and associated compaction

of areas shown on a plan, that developers indicated intent being to raise the land level to above the Q20 line with a view to developing a suitable building platform, and storage, and parking areas.

The associated plan indicates that, at the most, something

like a fifth or sixth of the property was to be affected -

nothing like the area where filling has been going on, and

indeed continues to go on, as photographs taken yesterday

establish.  That approval lapsed under section 3.5.21 of

IPA; two years after it took effect, see subsection (3).

One may speculate that the present respondents had some belief

that the old approval, assuming they knew of it, was of some

value to them, and may also speculate that they had a genuine

belief that they were entitled to import fill to the site.  If

that's the case, they're sadly mistaken.  We're all taken to

know the law, which, in modern times, is that what one may do

with one's own land is extensively controlled by planning

laws.

I don't think the Court ought to withhold making an interim

enforcement order on the basis of some sympathy for the

respondents based on the assumption that they've been

proceeding in good faith, even if in ignorance of the law.  It

doesn't appear to be a situation in which being required to

cease their activities is likely to result in substantial

prejudice to them or anyone else.

It ought to be made clear that the Council is proceeding today

on the basis of principle.  It is not, for the moment, in a

position to contend that the substantial filling activity

which has gone on bodes to have adverse consequences

for neighbours or for the general community, which is not to

say that further investigations may not unearth considerations

of that kind to render it appropriate for the Court to make

enforcement orders.

It's simply a case of development which includes carrying out

operational work (see section 1.3.2 of the IPA) which is

assessable development within the schedule 10 definition

occurring without the development permit which is requisite

under section 3.1.4. There will be an order in terms of the

initialled draft.

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