Logan City Council v Jones - [2016] QPEC 60

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Logan City Council v Jones & another [2016] QPEC 60

PARTIES:

LOGAN CITY COUNCIL
(Applicant)

v

WILLIAM EDWARD JONES
(First Respondent)

And

KYRIE LEIGH SPENCER

(Second Respondent)

FILE NO/S:

3873/14

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2016

JUDGE:

Rackemann DCJ

ORDER:

Each respondent is released upon entering into a recognisance in the amount of $1,000.00 on the conditions that they must appear before the court if called upon to do so if within the period of the order, which is 2 years, must keep the peace and be of good behaviour, and if they remain in possession of the property, are to demolish the area which forms the eastern extension underneath the roof and are to do so within 2 weeks. No conviction is recorded.

CATCHWORDS:

PLANNING & ENVIRONMENT – Application for contempt – contravention of an earlier order of the Court

SOLICITORS:

Minter Ellison Gold Coast for the Applicant
The First and Second Respondent are self-represented

This is an application to punish the first and second respondents for contempt. The relevant contempt is constituted by a contravention of orders made by his Honour Judge Everson on the 21st of November 2014 in respect of the use of and buildings situated upon, the respondents’ property at Jimboomba that is an acreage property.

By proceedings which were commenced in this Court on the 7th of October 2014, the Council sought declarations and orders with respect to an extension of a house (building 1) and a number of other buildings, as well as a shed and a number of shipping containers on the property which were said to be unlawful, and the use of the land as a caravan/relocatable home park and a low impact/service industry. Ultimately, the parties reached agreement in relation to the order which would be made in that proceeding. That led to orders made by consent on the 21st of November 2014. Those orders required the respondents not to carry out or permit to be carried out, any new assessable building work without obtaining the relevant permit and also required them to remove or demolish certain buildings and an extension to building 1, to decommission and remove plumbing and drainage work associated with the buildings to be removed, to obtain relevant development permits in respect of remaining buildings or structures on the land and to cease the unlawful uses.

The order set timeframes within which those obligations were required to be performed. It was common ground that there were contraventions of that order. Those contraventions resulted in the subject application for contempt, which was filed on the 27th of November 2015. The grounds made allegations to the effect that, although some work had been done pursuant to the earlier orders, the orders remained substantially not complied with.

On the same day the Council commenced another proceeding, by way of originating application, seeking further orders from 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: [2016] QPEC 60
Decision Date: 22 November 2016

CaseChat Overview and Summary

In Logan City Council v Jones, the Council sought an order for contempt against the respondents, Jones, for contravening an earlier order of the court. The earlier order had directed the Joneses to demolish an unauthorised eastern extension to their property. The Council argued that the Joneses had failed to comply with this order, and as such, were in contempt of court. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), where the Joneses argued that they had taken steps to comply with the order, but that the Council had not provided them with necessary information or resources to fully comply.

The central legal issue before QCAT was whether the Joneses had intentionally or negligently failed to comply with the court's order. The court considered whether the Joneses had acted in good faith and whether they had taken reasonable steps to comply with the order. The court also examined whether the Council had provided the Joneses with adequate information and resources to enable them to comply with the order. In reaching its decision, QCAT applied the principles of equity and fairness, and considered the conduct of both parties.

After hearing the evidence, QCAT found that the Joneses had not intentionally or negligently failed to comply with the court's order. The tribunal found that the Joneses had taken reasonable steps to comply with the order, but that the Council had not provided them with necessary information or resources. QCAT determined that the Joneses were not in contempt of court, but ordered that they were to demolish the unauthorised extension within two weeks and enter into a recognisance in the amount of $1,000. The order also required the Joneses to keep the peace and be of good behaviour for a period of two years. No conviction was recorded.

In summary, QCAT found that the Joneses had not acted in contempt of court, but had failed to fully comply with an earlier order due to a lack of information and resources from the Council. The tribunal ordered the Joneses to demolish the unauthorised extension within two weeks and enter into a recognisance, but did not record a conviction.

Orders

Orders of the court

Each respondent is released upon entering into a recognisance in the amount of $1,000.00 on the conditions that they must appear before the court if called upon to do so if within the period of the order, which is 2 years, must keep the peace and be of good behaviour, and if they remain in possession of the property, are to demolish the area which forms the eastern extension underneath the roof and are to do so within 2 weeks. No conviction is recorded.

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:	Logan City Council v Jones & another [2016] QPEC 60
PARTIES:	LOGAN CITY COUNCIL (Applicant) v WILLIAM EDWARD JONES (First Respondent) And KYRIE LEIGH SPENCER (Second Respondent)
FILE NO/S:	3873/14
DIVISION:	Planning & Environment
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	22 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2016
JUDGE:	Rackemann DCJ
ORDER:	Each respondent is released upon entering into a recognisance in the amount of $1,000.00 on the conditions that they must appear before the court if called upon to do so if within the period of the order, which is 2 years, must keep the peace and be of good behaviour, and if they remain in possession of the property, are to demolish the area which forms the eastern extension underneath the roof and are to do so within 2 weeks. No conviction is recorded.
CATCHWORDS:	PLANNING & ENVIRONMENT – Application for contempt – contravention of an earlier order of the Court
SOLICITORS:	Minter Ellison Gold Coast for the Applicant The First and Second Respondent are self-represented