Logan City Council v Poh
[2013] QPEC 3
•01/03/2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Logan City Council v Poh & Anor [2013] QPEC 3
PARTIES:
LOGAN CITY COUNCIL
(Applicant)V
KIM QUAN POH
(First Respondent)And
MARIA ELLEN POH
(Second Respondent)FILE NO/S:
4267 of 2012
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
01/03/2013
DELIVERED AT:
Brisbane
HEARING DATE:
15/01/2013
JUDGE:
Searles DCJ
ORDER:
1. A declaration that the First Respondent and Second Respondent have committed a development offence pursuant to section 578 of the Sustainable Planning Act 2009 (SPA), in that they have undertaken or caused to be undertaken, operational work, namely filling or excavation on Lot 6 on RP 135397 County of Ward, Parish of Mundoolun, Title reference 15200156 and is situated at 2397 - 2407 Waterford Tamborine Road, Tamborine (the Land) without an effective development permit.
2. An enforcement order pursuant to section 604 of the SPA that the First Respondent and Second Respondent, by themselves, their servants or agents:
(a) cease all filling and excavation work on the Land;
(b) be restrained from bringing onto the Land soil and other materials used for the purpose of filling or excavating the Land, without an effective development permit;
(c) remove all fill that was introduced, for which there was no effective development permit;
(d) carry out such remediation and rehabilitation works as are required to restore the Land as close as practicable to the condition it was in immediately prior to the filling or excavation taking place.CATCHWORDS:
Development offence pursuant to s 578 of the SPA – whether development assessable under Scheme – carrying out assessable development without permit – whether development authorised by State Riverine Protection Permit – whether development part of existing lawful use – whether development exempt from assessment pursuant to Schedule 4 of the SPA
Discretion – potential for financial hardship resulting from enforcement order – “honest belief” as to lawfulness of development – s 24 Criminal Code “mistake of fact” – obfuscatory conduct
Enforcement order pursuant to s 604 of the SPA – order to restore Land to original condition
Sustainable Planning Act 2009
Environmental Protection Act 1994
Water Act 2000
Integrated Planning Act 1997
Beaudesert Shire Council Planning Scheme 2007
Temporary Local Planning Instrument 1/11 (Logan Interim Flood Response)
Ostrowski v Palmer (2004) 218 CLR 493
Marshall v Averay [2007] QPLR 137
La Rosa v City of Wanneroo (2006) 154 LGERA 11
Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563.
Daniele v Shire of Swan (1977) 93 LGERA 201
City of Sterling v Clemente [1999] WASC 245
Booth v Bosworth [2007] QPELR 229
COUNSEL:
Applicant: N. Loos
First Respondent: Self-represented
Second Respondent: No appearance
SOLICITORS:
Applicant: Herbert Geer
TABLE OF CONTENTS
Introduction
The Land
Planning Documents
Beaudesert Shire Council Planning Scheme 2007
Temporary Local Planning Instrument 1/11 (Logan Interim Flood Response)
Background to Present Application
2010 Filling
2011 Filling
2012 Filling
Council’s Case
Respondents’ case
Adams email
Affidavit material
Council’s response to Respondents’ contentions
Conclusion
Should an Enforcement Order be made?
Did the Respondents hold an honest belief?
Respondents’ Financial Position
Order of Court
Material received since Hearing
Introduction
The applicant Council seeks the following relief:-
1. A declaration that the First Respondent and Second Respondent have committed a development offence pursuant to section 578 of the Sustainable Planning Act 2009 (SPA), in that they have undertaken, or caused to be undertaken, operational work, namely filling or excavation on Lot 6 on RP 135397 County of Ward, Parish of Mundoolun, Title reference 15200156 and is situated at 2397 - 2407 Waterford Tamborine Road, Tamborine (the Land) without an effective development permit.
2. An enforcement order pursuant to section 604 of the SPA that the First Respondent and Second Respondent, by themselves, their servants or agents:
(a) cease all filling and excavation work on the Land;
(b) be restrained from bringing onto the Land soil and other materials used for the purpose of filling or excavating the Land, without an effective Development Permit;
(c) remove all fill that was introduced, for which there was no effective Development Permit; and
(d) carry out such remediation and rehabilitation works as are required to restore the Land as close as practicable to the condition it was in immediately prior to the filling or excavation taking place.
3. Such further other orders that the Court deems appropriate.
At the hearing, the applicant Council was represented by Mr Loos of counsel. The First Respondent was self-represented. The Second Respondent did not appear, although at the end of the hearing leave was granted to her daughter, Ms Alisa Poh, to make submissions on her behalf.
The application relates to certain fill material allegedly brought onto the Respondent’s land without the Respondents obtaining a Development Permit. It is not disputed that a Permit was never obtained.
The Land
The land in question is owned jointly by the Respondents and is situated approximately four kilometres north of Tamborine on Waterford Tamborine Road between Greensward and Clutha Creek Roads.[1] Until 15 March 2008 the land was within the Beaudesert Shire Council Local Government Area but thereafter, as a result of a boundary change, it was transferred to the Logan City Council local government area.
[1]See aerial photograph, figure 1, Exhibit 7, report Mr N.I Collins.
The land is broadly rectangular in shape containing an area of 4.1 hectares with an approximate road frontage to Waterford Tamborine Road of 100 metres with a depth of approximately 400 metres. Clutha Creek runs in a south-easterly direction through the land.
Planning Documents
Beaudesert Shire Council Planning Scheme 2007
The relevant Planning Scheme is the Beaudesert Shire Council Planning Scheme 2007 (Scheme). Under the Scheme the land is:-
(a) within the Mt Lindesay Corridor Zone;
(b)in part in the Ecological Corridor and the Local Nature Conservation Area under the Nature Conservation Overlay (Conservation Significance);
(c)in the Vegetation Management Area under the Nature Conservation Overlay (Vegetation Management);
(d)in part in the Flood Hazard Area under the Development Constraints Overlay (Flood Hazard Area);
(e)in the Buffer Area under the Development Constraints Overlay (Other Constraints);
(f)in part in the Waterway under the Catchment Management, Waterways and Wetlands Overlay.
The Scheme has four discrete provisions describing filling/excavation work on land to be assessable development. Any one of which provisions, according to the Council, required the Respondents to obtain a Development Permit in accordance with s 238 of the Sustainable Planning Act 2009 (SPA). Those four provisions are:-
(a) Table 3.2.5 in Chapter 3 (Assessment Provisions for Zones and Precincts, Part 2 – Mt Lindesay Corridor Zone) states as follows[2]:-
[2]Exhibit 3, 3-29, tab 1.
Column 1
DevelopmentColumn 2
Assessment CategoryColumn 3
Assessment CriteriaFilling or Excavation that is not associated with a Material Change of Use Exempt, if –
(A) for a dam ancillary to a rural use operating on the land; or
(B) otherwise –
(I) does not comprise more than 1,000m2 in area; and
(II) does not exceed an average depth of 500 millimetres; and
(III) does not exceed a maximum depth of 800 millimetres;
(IV) does not involve earth batters with a slope greater than 1 in 8; and
(V) does not interfere with the natural flow of stormwater; and
(VI) not undertaken in a natural gully or overland flow path or below the adopted flood level; and
(VII) not undertaken in a public utility easement or agreement; and
(VIII) not within 3 metres of an adjoining property; and
(IX) involves fill material which is clean, dry, solid, inert material; and
(X) not within 3 metres of a local government infrastructure item.
Code assessable if not exempt.
If Exempt – none applicable
If Code assessable – Construction and Infrastructure Code (section 5.3.6)
(b) Table 4.3.4 in Chapter 4 (Assessment Provisions for Overlays, Part 3 – Nature Conservation)[3]:-
[3]Ibid, tab 2, page 4-18.
Column 1
Use or Use ClassColumn 2
Assessment CategoryColumn 3
Assessment CriteriaOperational Work being for Filling or Excavation. Exempt, if not assessable.
Code assessable, if involving more than 20m3 and located in –(a) an Ecological Corridor; or
(B) …
(C) a Local Nature Conservation Area; or
(D) …
If Exempt – None applicable.
If Code assessable – Nature Conservation Overlay Code (section 4.3.5).
(c) Table 4.4.4 in Chapter 4 (Assessment Provisions for Overlays, Part 4 – Development Constraints)[4]:-
[4]Ibid, tab 3, page 4-33.
Column 1
Use or Use ClassColumn 2
Assessment CategoryColumn 3
Assessment CriteriaOperational Work being for Filling or Excavation exceeding 10m3. Exempt, if not code assessable.
Code assessable, if –(a) Not located in approved building envelope; and
(b) Located –
(i) in a Flood Hazard Area; or
(ii) …
If Exempt – None applicable.
If Code assessable – Development Constraints Overlay Code (section 4.4.5).
(d) Table 4.7.4 in Chapter 4 (Assessment Provisions for Overlays, Part 7 – Catchment Management, Waterways and Wetlands)[5]:-
[5]Ibid, tab 4, page 4-95.
Column 1
Use or Use ClassColumn 2
Assessment CategoryColumn 3
Assessment CriteriaOperational Work being for Filling or Excavation. Exempt, if located in excess of 120 metres from a Waterway, Wetland or a Tidal Influence Area..
Code assessable, if located within 120 metres of a Waterway, Wetland or a Tidal Influence Area.If Exempt – None applicable.
If Code assessable – Catchment Management, Waterways and Wetlands Overlay Code (section 4.7.5).
Temporary Local Planning Instrument 1/11 (Logan Interim Flood Response)
The other relevant planning instrument is the Temporary Local Planning Instrument No. 1 (Logan Interim Flood Response) 2011 (TLPI) which came into force on 30 March 2012 arising out of the disastrous Queensland floods of 2010/2011.[6] This TLPI applied to the Scheme here under consideration[7] and pursuant to s 104 of SPA has effect for a period not exceeding 12 months from 30 March 2012. It is accordingly only relevant to the alleged filling/excavation conducted by the Respondents in October 2012.
[6]Exhibit 5.
[7]Exhibit 3, TLPI, Part 2, s 5(2)(a).
TLPI Schedule 2[8] sets out the relationship between it and the Planning Schemes it applies to. Some provisions of some Schemes are suspended but none of the four abovementioned Scheme provisions are affected by it.
[8]Exhibit 5, page 33.
The subject land is partly within the flooding and inundation area[9] and, pursuant to s 8(1), Part 3 of the TLPI applies to development in flooding and inundation areas.
[9]TLPI, s 10 (Definitions); page 28 – Flooding and Inundation Area Map.
Section 11 in Division 2 Part 3 of the TLPI provides that the assessment category in Table 1 prevails over the assessment category otherwise applicable to the development if the assessment category specified in Column 2 of that table is a higher assessment category than that which is otherwise applicable to the development. Table 1 relevantly provides:-
Column 1
UseColumn 2
Assessment CategoryColumn 3
Assessment CriteriaAll development Exempt if -
(a) the development is above the flood level of the defined flood event but for its access which is low flood hazard; or
(b) within an approved development envelope area;
(c) building work or operational work for a crossover, for an existing building;
…
Code assessable, if not exempt.If code assessable, the applicable codes including –
· For development other than building work -
Flooding and inundation area code.
· For building work -
Flooding and inundation area code comprising the assessment criteria for floor levels of habitable rooms - O3.
Background to Present Application
2010 Filling
A history of the Council’s involvement and engagement with the Respondents is set out in the affidavit evidence of Council officers, Ester Elizabeth Baklis and Emily Kathryn Shafto. They deposed to the following:-
(a) Ms Baklis first became aware that the Respondents may have been carrying out assessable development (operational work) without a Development Permit in September 2010 and on 8 September she inspected the land in company with another officer, Ms Olive. At that meeting, the First Respondent explained to the Council officers that he was placing or depositing fill at three locations on the plain, one of which Ms Baklis recognised to be the floodplain;
(b) The conversations between both Respondents and the Council officers on 8 September were recorded and a transcript made[10]. Ms Baklis made a file note of the discussion. That note[11] identifies the three sites the First Respondent advised he was filling, two of which, in Ms Baklis’ view, were within the floodplain. Ms Baklis estimated the volume of fill at the first site in the top southeast corner of the block to be approximately 1,400m³. As to the second site located between the top pad near the house and the lower filled section, she estimated the fill to be approximately 20m³ and not within the floodplain. As to the third site located on the lower level of a driveway access at the southern boundary of the site and, in her view, located within the floodplain bordering the wetlands on the property, she estimated the fill to be between 1,976m³ and 3,952m³.[12] Ms Olive strongly recommended to the First Respondent that he cease filling activity immediately and remove the “Fill Here” sign from the post at the front of the property;
[10]Exhibit EEB1 to affidavit of EE Baklis dated 11 January 2013.
[11]Ibid.
[12]Ibid.
(c) Upon returning to her office, Ms Baklis searched Council records and ascertained that no Development Permit/s had been issued to carry out operational work in respect of the Respondents’ land and accordingly prepared Enforcement Notices to be served on both Respondents. Those notices together with a covering letter dated 17 September 2010 were personally served by Ms Baklis on the Respondents on that day. Again, a recording was made of the conversation with the First Respondent and a transcript put in evidence;
(d) Under the notices, the Respondents were required to:-
“1. Immediately cease the filling/excavation of the Land.
2.Before the 18 October 2010 lodge a properly made Development Application with the Logan City Council, (properly made means:- providing all necessary and relevant information to the Logan City Council to enable the application to be properly assessed and further the payment of all associated fees and charges) in order to obtain:-
3.A Development Permit to legalise the filling and excavation conducted on the relevant premises; or
4.A Development Permit to legalise the removal of the fill and the restoration and rehabilitation of the Land; and
5.To do all things necessary as required by the Logan City Council to enable the Development Application to be assessed within the minimum time frames.”
That letter recommended that the Respondents seek the services of a Qualified Town Planner or Engineer to assist them in the making of the aforementioned Development Applications.
(e) Four days later, on 21 September 2010, Ms Baklis returned to the Land with two Council employees including the Council’s Development Engineer, Mr Flanagan. Also in attendance was Council officer Ms Mingue He, who was fluent in the Mandarin language and who was there to assist Mr Poh with English in the event that he had any problems understanding English.[13] Again, the conversation was recorded and transcribed. The male Respondent was told he required a Development Permit for the work he had carried out on the Land.
[13]Ibid, Exhibit EEB4.
According to Ms Baklis’ notes[14], the First Respondent insisted that the earthworks related to construction of levy banks and it came under the Water Commission Legislation, not Council legislation. According to the First Respondent, he only needed to get Council Permits if the work was on Council land. By reference to a 1990 license for water extraction[15], the First Respondent said that the Council’s jurisdiction did not cover creek banks.
[14]Ibid.
[15]Ibid.
(f) Subsequently, the First Respondent wrote to the Council by letter of 27 September 2010.[16] That letter, in effect, challenged the Council’s requirement to obtain a Development Permit. In part, that letter said:-
[16]Ibid, Exhibit EEB5.
“There is no native title, council, state, Federal government or telecommunications (Telstra and Optus) land, easements or reserves within the watercourse. That is why we do not have to inform any Government Departments. The licensee must maintain the bed and banks of the watercourse adjacent to the works. Most of the earthworks are associated with the water permit material change of use maintenance and weeds control.”
The Council’s response of 4 October 2010[17] advised the Respondents that the Enforcement Notice was not open to negotiation and required strict compliance by the Respondents. It further said that the documentation provided by the Respondents in their letter of 27 September did not provide any authorisation, implied or otherwise, for the earthworks being conducted on the Land;
[17]Ibid, Exhibit EEB6.
(g) On 27 October Ms Baklis again inspected the Land and observed that the fill which had previously been on the Land appeared to have been levelled and more compacted since her last visit. In that meeting, the male Respondent denied seeing the Enforcement Notice of 17 September 2010 and the letter from the Council of 4 October 2010.[18] When reminded that the Enforcement Notice had been handed to him personally, the First Respondent replied that he didn’t read it;
[18]Ms Baklis’ file note refers to two Enforcement Notices issued on 17 September 2010 and 4 October 2010. The First Enforcement Notice was issued on the earlier date. The latter date is the date of the letter from the Council to the Respondents enclosing an amended Enforcement Notice correcting the name of the Second Respondent.
(h) By letter dated 3 November 2010, the First Respondent wrote to the Council[19] advising that operational works legalised by the previous Beaudesert Shire Council meant that trucks were allowed to bring in gravel road base fill and manure and other products relating to the use of the Land;
[19]Ibid, Exhibit EEB8.
(i) By letter dated 8 November 2010[20], the Council advised that a search of town planning consents and approvals back to 1971 transferred from the Beaudesert Shire Council had failed to reveal any record of an approved application lodged by the First Respondent in respect of the Land. It advised the First Respondent that a Development Application for operational work must be lodged and attached a Penalty Infringement Notice for the First Respondent’s failure to comply with the earlier Enforcement Notice;
[20]Ibid, Exhibit EEB9.
(j) On 16 November 2010, Ms Olive and other Council officers again visited the Land. One of those officers, Mr Neylon, the Council’s development compliance officer, told the First Respondent that he required a Development Permit to carry out operational work and encouraged him to lodge a Development Application. Ms Baklis’ file note[21] of that meeting contains this passage:-
[21]Ibid, Exhibit EEB10.
“Mr Poh continued again with the same story that he had repeated to us many times on previous site visits and phone conversations that the earthworks that we saw on our First site visit were just a few trucks of soil for the purpose of farming and to level out the ground and stop any flooding. He continued to repeat the same response that he was allowed to do work associated with the water permit that he had obtained in the past. He again told us that the soil around the house was put there by Main Roads. SDCO Olive reiterated to him as she had done on previous visits, that as the owner of the property, his consent would have been required for any soil to be put on his property, whether it was Main Roads or any other excavation company.”;
(k) On 20 January 2011 the First Respondent came to the Council office and spoke to Ms Baklis and the development compliance officer, Mr Martin. An extract of Ms Baklis’ file note[22] of that meeting reads:-
[22]Ibid, Exhibit EEB13.
“DCO Allan Martin and I again explained to Mr Poh, as I had done the previous day on the phone, that the letter from DERM which he had was to do with a proposal to fill ponds which are located within the bed and banks of Clutha Creek and situated at the rear of his property in the wetlands and not in the areas that the Enforcement Notice for earthworks was referring to.
Mr Poh disagreed with this and remained staunch in his reply that the earthworks were part of the water licences he was applying for and earthworks in his opinion were DERM’s jurisdiction, not the Council’s and subsequently, the infringement already issued to him would not apply.”;
(l) By letter dated 25 January 2011 from the Council to the First Respondent[23], the Council advised that the State Riverine Protection Permit for the ponds located on his property still required a Development Permit for Operational Works, Earthworks, from Logan City Council. It further advised that the Enforcement Notice No. 21378 issued to him on 4 October 2010 stipulated the requirement to lodge a Development Permit for operational works and that the requirement still applied.
[23]Ibid, Exhibit EEB14.
2011 Filling
The chronology of events relating to the filling in 2011 and 2012 is in the affidavit of the Council’s senior development compliance officer, Emily Shafto, dated 11 January 2013. That affidavit reveals the following:-
(a) On 5 October 2011 Ms Shafto and another Council employee, Mr Martin, visited the Land to investigate a complaint that construction waste was being dumped on it. On inspection, construction waste materials were visible on the Land. According to Ms Shafto’s file note[24], the material visible to her on inspection included:
[24]Exhibit EKS1 to affidavit of E K Shafto dated 11 January 2013.
(i) broken concrete/cement;
(ii) bricks (some broken, some whole);
(iii) colourbond;
(iv) orange plastic construction site mesh;
(v) tree roots and branches;
(vi) planks of hardwood;
(vii) piping;
(viii) broken roof tiles;
(ix) metal wire (fencing wire) – partially rusted;
(x) sheet metal; and
(xi) earth and sediment.
(b) Ms Shafto’s file note also records that the First Respondent told Council officers that he had received the broken concrete from a building site nearby but, after further questioning, said it was obtained from a site in Logan Village. During that same conversation, the First Respondent insisted it was not a Council issue but a State Government matter. When asked to produce the documents evidencing approval from the State Government the First Respondent produced correspondence (Riverine Permit Application Information Request) from DERM dated 29 March 2011 but did not produce any document evidencing approval from a Government agency for the fill on the Land;
(c) On 6 October 2011, the day following the inspection, the Council wrote two letters to each of the Respondents[25] enclosing respectively an Enforcement Notice and a Direction Notice pursuant to s 363D of the Environmental Protection Act 1994. The two Enforcement Notices required the Respondents to:-
[25]Ibid, Exhibits EKS5 and EKS6.
“(1) immediately cease the importation and deposit of building, construction and demolition waste, including bitumen, brick, concrete cuttings, waste metal and earth at the subject property; and
(2) remove from the subject site all building, construction and demolition waste including bitumen, brick, concrete cuttings, waste metal and earth obtained from 6-42 Quinzeh Creek Road, Logan Village.”
Those requirements were to be performed on or before 5 p.m. Thursday 20 October 2011;
(d) The two Direction Notices directed the Respondents to:-
“remove from the subject property all building, construction and demolition waste, including bitumen, brick, concrete cuttings and waste metal that has been imported from a construction site at 6-42 Quinzeh Creek Road, Logan Village, by 5 p.m. Thursday 20 October 2011”;
(e) The above two Enforcement Notices and two Direction Notices were personally served by Ms Shafto on the Respondents the following day, 7 October 2011. Her file note of that attendance[26] contains the following:-
[26]Ibid, EKS7.
“Mr Poh then walked down the hill towards the fill material, inviting officers to follow. He reiterated again and again that it was not a Council matter; it is a State Government issue for which he has approval under the ‘Water Commission’. I stated that the Council has made inquiries with his contact at DERM and confirmed that he does not have approval to conduct operational works in a waterway. I stated that the latest issue of bringing in the construction waste materials within the flood plain is a Council issue under the Planning Scheme. Mr Poh disputed this for several minutes. I then explained the Enforcement Notice requirements – that he had to remove the material by 20 October 2011 and the Council would conduct further inspections to confirm whether this takes place. He did not respond in any coherent manner to this.”
(f) On 10 October 2011 the First Respondent telephoned Ms Shafto advising that he would have the construction waste removed from the Land and would bring no more fill onto the Land until the issue with the Council was resolved.
(g) On 12 October 2011 Ms Shafto again inspected the Land. The stockpiles of fill present on her 5 October 2011 inspection appeared to her to have been crushed/compressed and covered with earth in an attempt to ensure that the construction waste materials were not visible;
(h) On 21 October 2011 Ms Shafto again inspected the Land to determine whether the Enforcement Notices and Direction Notices had been complied with. On that occasion the First Respondent disputed the Council’s jurisdiction to regulate the importation of fill onto the Land. The First Respondent cut short the inspection by the Council officers by requesting that they leave his land[27];
(i) By two letters each dated 2 December 2011 the Council wrote to the First Respondent notifying him that his failure to comply with the Direction Notice and Enforcement Notice respectively constituted an offence inviting the First Respondent to take immediate action to attend to the outstanding issue.
[27]Ibid, EKS10.
2012 Filling
The following is the relevant sequence of events in relation to the 2012 filling:-
(a) On 21 September 2012 the First Respondent telephoned Ms Shafto to advise that he had obtained a Riverine Protection Permit from the State and that no further approvals were required from the Council to place fill on the Land. He was again warned that to bring additional fill onto the Land may constitute a development offence. Ms Shafto suggested he obtain legal advice[28];
[28]Ibid, EKS12.
(b) By letter dated 24 September 2012 the First Respondent wrote to the Council enclosing a copy of the Riverine Protection Permit. That was a letter from the Department of Environment and Resource Management dated 13 February 2012 advising the First Respondent of the grant of a Riverine Protection Permit with conditions. Relevantly, that letter contained the following:-
“Finding on material questions of fact
The following findings of fact:-
· The proposed works are to be located within the bed and banks of Clutha Creek wholly within the land described as Lot 6 on RP 135397.
· The proposed works are necessary to allow the applicant to construct a safe and reliable machinery crossing on his property, which is traversed by Clutha Creek.
· The application was properly made by the applicant.
Reasons for the decision
The decision was made for the following reasons:-
· Works will be contained within the bed and banks of Clutha Creek, on freehold land.
· The proposed works’ activities will not cause any lasting or ongoing water quality issues, or unduly alter the physical integrity of the creek at the stated location.
· Once the works are completed, there should be no ongoing impact from the works, taking into account the provisions of section 269 of the Water Act 2000.”
The Permit authorised excavation totalling 70m³ in volume and the placement of fill totalling 158m³.[29]
(c) On 2 October 2012 Ms Shafto became aware that a complaint had been made to the Council that several truckloads of fill had been dumped on the subject land. Two days later on 4 October 2012 Mr Paul Neylon, the Council development compliance officer, witnessed a truck with a trailer depositing fill on the land.[30]
[29]Exhibit A-3 to affidavit of I Adams filed 11 December 2012.
[30]Affidavit of PW Neylon filed 11 January 2013.
I have endeavoured in the above chronologies to set out what I see to be the salient events leading to this application. The volume of material mitigates against including all details of conversations between the Respondents and the Council officers.
Council’s Case
The Council called evidence from Mr Neil Collins, the principal hydraulic engineer – expert services of BMT WBM who provided a report[31]. Mr Collins’ areas of expertise include hydraulics, hydrology and water resources, and his experience is extensive.
[31]Exhibit 7.
For the preparation of his report he inspected the subject land on 10 December 2010 and carried out assessments of the filling on the site and its impact on flooding having a regard to the Council’s planning instruments. Mr Collins analysed the Council 2009 Aerial Laser Survey which was conducted prior to any filling on the land. He used this analysis and the December 2012 Council Site Survey to determine the amount of filling on the site between 2009 and 2012. His summary of this analysis showed that the area of the site covered by the December 2012 Survey contained the following fill:-
· Total fill below the ARI 100 year flood level (RL 32.94) 2,686m³
· Total fill outside the Watercourse of Clutha Creek but below the ARI 100 year flood level 2,382m³
· Total fill above the ARI 100 year flood level 104m³
· Total fill within the Watercourse and Below the ARI 100 year flood level 304m³ (excluding the extensive filling that has occurred across the Watercourse beyond the extent of the December 2012 Survey that exceeds 158m³.
Mr Collins concluded that the above filling below the ARI 100 year flood level represented a significant loss of floodplain storage but that the filling on the Site was unlikely to have a significant adverse impact of flooding beyond the Site because of the wide floodplain adjacent to the Site which is over 300 metres in width. However, he said the current best industry practice, and the relevant Council’s planning instrument, recognised the cumulative potential to adversely impact on flooding elsewhere in the floodplain which is why a balancing of cut and fill to maintain floodplain storage was important. Figure 2 of his report shows the current estimated ARI 100 year flood inundation line in the vicinity of the Site covering the majority of the Site. It also shows the approximate extent of the Watercourse that existed prior to the filling. Figure 3 of his report shows the Site typography in 2009, prior to the alleged filling works taking place, with the flood inundation extent for the ARI 100 year flood line overlayed.
Mr Collins also considered whether the Queensland Government Licence and Permits relied upon by the Respondents[32] had any bearing on the requirements under the relevant planning instruments.
[32]Affidavit of First Respondent dated 16 November 2012.
Based on his investigation, Mr Collins concluded:-
1. “An amount of 2686m³ of fill has been imported to the site and placed within the floodplain of Clutha Creek between 2009 and 16 November 2012 over the area covered by the December 2012 survey;
2. An amount of 2383m³ of fill has been placed beyond the Watercourse extent, as defined by the Water Act 2000, and below the ARI 100 year flood level 2009 and 16 November 2012 over the area covered by the December 2012 survey;
3. An amount exceeding 158m³ of fill has been placed within the Watercourse and an amount of 104m³ of fill has been placed on the Site, south of the existing house, above the ARI 100 year flood extent;
4. Additional cut and fill works at a low level have been carried out within the Watercourse of Clutha Creek over and above the fill as estimated above;
5. A Riverine Protection Permit exists for the Site, and this allowed low level filling and excavation, with 70m³ excavation and 158m³ filling, to provide a bed level machinery crossing of Clutha Creek, to allow Mr Poh to access the western portion of the Site. This Permit only allows works within the Watercourse of Clutha Creek. The data indicates, and I have observed at the site, that most of the fill has been placed beyond the Watercourse and is not covered by the Permit. In any case, fill volumes are more than ten times greater than those detailed in the Permit;
6. Filling works of the volume carried out on the Site below the ARI 100 year flood inundation extent required a development approval from the Council under the Planning Scheme and the TLPI;
7. Under both the TLPI and the Planning Scheme, in my assessment, the filling that has occurred would be unlikely to be approved, because of the cumulative potential to adversely impact on flooding elsewhere in the floodplain, and because compensatory earthworks to ensure that the flood storage is maintained have not been carried out;
8. The existing fill on the Site is not well compacted, and represents a significant risk to Clutha Creek because of the erosion potential with export of fill during significant rainfall and flood events into the creek. There is also the possibility of contaminant leachate from the fill to Clutha Creek;
9. There is potential for adverse environmental consequences due to the works undertaken, because of flooding impacts (as detailed in point 7 above) and water quality (as detailed in point 8 above).”
Further, in oral evidence, Mr Collins said:-
(a) Of the 2,686m³ imported to the site and below the ARI 100 year flood level (RL 32.94)[33], 1,607.5m³ was imported to the site;[34]
[33]Exhibit 7, para 4.
[34]Logan City Council v Poh & Anor [2012] Queensland Planning and Environment Court, 4267/12, Searles DCJ, 15 January 2013, 1.9 para 35.
(b) The balance of that fill of 1,078.5m³ was moved from the higher part of the site to within the floodplain and within Clutha Creek;[35]
[35]Ibid, 1.9, para 42.
(c) His estimate of the volume of imported fill represented 80 truck movements, each with a capacity of 20m³.[36]
(d) None of the evidence of Mr Collins was challenged as to calculations, methodology or otherwise.
[36]Ibid 1.9, para 55.
Referring back to the four tables in the Planning Scheme earlier set out, namely Table 3.2.5 (Chapter 3) and Tables 4.3.4, 4.4.4 and 4.7.4 (Chapter 4), the Council argues:-
(a) As to Table 3.2.5 in Chapter 3, no exemption from code assessment is available to the Respondents in Column 2 because, relevantly, all the criteria in sub-paragraph (B) is to be read conjunctively to the intent that all must be satisfied to attract an exemption. I agree with that interpretation as to how that sub-paragraph is to be read. The Council says that the evidence, namely Mr Collins’ report, particularly Figure 5, demonstrates that that criteria cannot be satisfied and is accordingly code assessable;
(b) As to Table 4.3.4, again, no exemption is afforded to the Respondent because the filling/excavation was in excess of 20m³ and thereby code assessable;
(c) As to Table 4.4.4, no exemption is available because the filling/excavation was not located in an approved building envelope and exceeded 10m³ thereby making it code assessable. The basis of the assertion that the filling/excavation was not located in an approved building envelope is the evidence of Ms Shafto that there are no extant approvals for the land;
(d) As to Table 4.7.4, the filling/excavation was code assessable given that it was within the 120 metres of Clutha Creek, a waterway, as evidenced by Figure 2 in Mr Collins’ report. Clutha Creek falls within the definition of waterway in the Planning Scheme[37] which defines a waterway as:-
“Waterway means a tidal or non-tidal channel or water body, whether natural, artificially improved, or artificial in which water flows permanently or intermittently, including a watercourse, canal estuary, gully or natural drainage line…”.
[37]Exhibit 3, tab 5, page 1-68.
Returning now to whether the filling/excavation was exempt development under Table 1 in Part 3 Division 2 of the TLPI, the Council says that the 2012 filling/excavation, which is the only part attracting the operation of the TLPI, is not located above the flood level of the defined flood event, or within an approved development envelope area or for an existing building for a crossover within Column 2 of that table. Accordingly, it is assessable development.
Respondents’ case
As I have said, the First Respondent was self-represented and the Second Respondent did not appear. The Respondents filed affidavits of the First Respondent, Mr Ian Adams, town planner, and Mr Fred Hundy, senior project officer, Department of Natural Resources and Mines. In addition, in response to a request for a written opening of their case Mr Adams sent my Associate an email advising that for costs reasons the Respondents were not going to provide a written opening but on their behalf Mr Adams made certain submissions in the email.
The points raised in the Adams email and the Respondents’ affidavit material are these:-
Adams email
(a) That the First Respondent honestly believed that the filling undertaken by him on the land was covered by the Riparian Protection Permit dated 13 February 2012[38];
[38]Exhibit EKS13 to E K Shafto dated 11 January 2013.
(b) That the Respondents would suffer potential financial hardship if the orders sought by the Council were made;
Affidavit material
(c) That the filling/excavation was lawful because it was associated with an existing lawful use, namely agriculture[39];
[39]Affidavit of I Adams filed 11 December 2012, paras 6 to 12.
(d) That the filling/excavation, insofar as it was carried out in the watercourse to the creek, was beyond the jurisdiction of the Council to regulate[40];
[40]Ibid paras 5, 13 to 20.
(e) That the filling/excavation was protected by Schedule 4 of the Sustainable Planning Regulation 2009 being exempt from being made assessable by a Planning Scheme[41].
[41]Ibid, para 11.
Council’s response to Respondents’ contentions
(a)First Respondent’s belief that the Riverine Protection Permit dated 13 February 2002 authorised the filling/excavation .
As to the alleged honest belief held by the First Respondent that the excavation work was authorised by the Riverine Protection Permit of 13 February 2012, the Council says, even if the First Respondent was so mistaken, any defence of mistake of fact under s 24 of the Criminal Code is only available for a mistake of fact[42]. Any such mistaken belief by the First Respondent was a mistake as to the law and not as to a fact. I agree with that submission. The honest belief argument is also relevant to the exercise of discretion for the issue of any declaration and I shall consider it further in that context if circumstances require it.
[42]Ostrowski v Palmer (2004) 218 CLR 493.
(b)That the filling was done as part of an existing lawful use being carried out by the Respondents on the site .
Mr Adams says[43] that the Respondents had been undertaking agricultural practices on the land prior to the gazettal of the current Beaudesert Planning Scheme in March 2007 and is thereby afforded the lawful use rights to be able to continue such use of the land by virtue of the operation of ss 681 and 682 of SPA. In response the Council says that the Respondents bear the onus of establishing any asserted existing lawful use and referred to Marshall v Averay[44] where McGill SC DCJ in considering the question of which party bore the onus of proof regarding a continuing pre-existing use in a prosecution under the repealed Integrated Planning Act 1997, said:-
[43]Affidavit of I Adams filed 11 December 2012, para 9.
[44][2007] QPLR 137.
“[46]In the present case, approaching the matter as one of statutory interpretation, there is an absence of any reference in s 4.3.5 [of the IPA] or even for that matter in an adjoining section, which suggests that the absence of a continuing pre-existing use is part of the complete factual situation which gives rise to the offence under the section. A further important consideration in my opinion is that the general trend of authority in this area on this point has been to place the onus on the defendant to establish the lawfulness of use on the basis of a continuing pre-existing use; to the decisions distinguished in Macarone may be added Daniele v Shire of Swan (1977) 93 LGERA 201 and City of Sterling v Clemente [1999] WASC 245. Finally there is the consideration that, although the owner of the land would not necessarily know of his own knowledge the use of the land back to the relevant date because he may not have been in occupation of the land for the whole of that period, he would certainly know of the use to which the land was put during the period of his own occupation, and would presumably know who was in occupation before him, so that the relevant facts may be more readily within the defendant’s knowledge than the Prosecutor’s knowledge.
[47]In my opinion, because of the change in the drafting of the relevant provision, the decision in Macarone is not applicable under the Act, in the case of an offence under s 4.3.5 and the defendant has the onus of showing, relevantly, that the use being carried on was a continuing pre-existing use and therefore lawful.”[45]
[45]See also La Rosa v City of Wanneroo (2006) 154 LGERA 11; Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563.
The Council submits that the Respondents failed to prove the existence of any lawful use. That is correct.
(c)That the filling/excavation, in so far as it was carried out in the watercourse, was beyond the jurisdiction of the Council to regulate.
The Council points to the fact that, on the evidence of Mr Collins,[46] of the total fill of 2,686m³ brought onto the land, only 304m³ was within the watercourse of Clutha Creek but the Council says even that 304m³ is within the jurisdiction of the Council by virtue of Schedule 6 of SPA “Assessment Manager for Development Applications” which relevantly provides:-
[46]Exhibit 7, para 4.
Table 1 Column 1
Application typeColumn 2
Assessment managerLocal government planning schemes and local government tidal areas 1 If the application is for –
(a) development completely in a single local government area and –
(i) any aspect of the development is assessable against the planning scheme, a temporary local planning instrument, master plan or preliminary approval to which section 242 of the Act applies; or
(ii) …
Local government
Table 3 Column 1
Application typeColumn 2
Assessment managerTaking or interfering with water 3 If tables 1 and 2 do not apply and the application is for –
(a) operational work for the taking or interfering with water under the Water Act 2000; and
(b) no other assessable development.
Chief executive administering the Water Act 2000
Firstly, it says, under Table 1 the Council is the appropriate Assessment Manager because it is assessable against the relevant Scheme and the TLPI as earlier outlined. As to the above Table 3, which provides for the Chief Executive administering the Water Act 2000 to be the Assessment Manager where appropriate, the Council points to the opening words of the provision which predicated upon Table 1 not applying when in fact, as outlined above, it does. Hence, on the Council’s argument, the Council was the Assessment Manager and the Respondents were obliged to submit a Development Application given that the relevant work was assessable. I accept the Council’s argument on that issue.
(d)That the filling/excavation was protected by Schedule 4 of the Sustainable Planning Regulation 2009 because it was development that was exempt from being made assessable by a Planning Scheme.
Schedule 4 of the Sustainable Planning Regulation 2009 (SPR) – “Development that cannot be declared to be development of a particular type – Act, section 232(2). Item 9 of Table 4 in Schedule 4 relevantly provides:-
Table 4 – Operational work For agriculture 9 Operational work associated with –
(a) management practices for the conduct of an agricultural use, other than –
(i) the clearing of native vegetation; or
(ii) operations of any kind and all things constructed or installed for taking or interfering with water (other than using a water truck to pump water) if the operations are for taking or interfering with water under the Water Act 2000 …
The Council submits that any reliance upon Schedule 4 relating to the alleged agricultural use of the land by the Respondents must fail because of their failure to produce any evidence to establish that use. I agree with that submission.
Conclusion
I accept the Council’s arguments in relation to the necessity for the Respondents to obtain a Development Permit before carrying out the filling/excavation. Given that no such permit was obtained, I conclude that a development offence has occurred within s 578 of SPA. The question now is whether an Enforcement Order should be made under s 604 of SPA. That is a discretionary matter.
Should an Enforcement Order be made?
The Respondents submit that an Order should not be made because the First Respondent at all times held the honest belief that, in effect, he was acting lawfully. Further, it is said in the email from Mr Adams at the beginning of the hearing, and by the daughter of the Respondents, that any such Order would impose financial hardship on the Respondents.
Did the Respondents hold an honest belief?
I have no hesitation in rejecting the submission that either of the Respondents held an honest belief that the filling of the land was authorised by law. I have earlier set out the chronology of events, by reference to the evidence. A close reading of all the documents, particularly the transcripts of the recorded conversations between the Respondents and Council officers upon the numerous inspections, founds the irresistible inference that the First Respondent engaged in dissembling and obfuscatory conduct, designed more to confuse, avoid and delay rather than to inform, enlighten, or cooperate with the Council. The Council is to be commended for the tolerant manner in which it conducted contact with the Respondents giving them every opportunity to comply with the law. Each such opportunity was ignored. I make these findings conscious of the fact that the Second Respondent’s Second language is English. I detected nothing in the transcripts of conversations between him and the Council officers or during the hearing that would suggest to me the Second Respondent had difficulty in understanding and speaking the English language sufficient to address this matter.
Respondents’ Financial Position
As to the submission that any Order would impact financially upon the Respondents’ financial position, no evidence of their financial position has been put before the Court. In any event, the personal circumstances of the Respondents is not a matter which a Court would commonly take into account. In Booth v Yardley[47] Wilson SC DCJ, as he then was, when considering the discretionary factors for the granting of an injunction to stop the operation of electric grids from killing flying foxes, said:-
[47][2007] QPELR 229 at 234-235.
“[28] ….as Branson J said in Booth v Bosworth:
[115]In weighing the factors which support an exercise of a Court’s discretion in favour of the grant of an injunction under subs 475(2) of the Act against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.
[29]Where the evidence advanced about this aspect of the discretion is, as here, cursory it cannot carry a great deal of weight and the balancing exercise which is part of the statutory discretion. Even if that evidence was stronger it would be unlikely, as the passage set out above shows, to be determinative. Although the flying fox is at little present risk of extinction it is a protected species under the legislation which has, here, been flouted. While it is impossible not to feel a measure of sympathy for the Yardley’s it cannot be said that the prospect of economic loss is a matter which tells significantly in their favour.” (Emphasis added)
Even if one was to take the financial aspect into account that would not outweigh what I see to be the important discretionary factor of the community interest of ensuring compliance with the law. In this case, the Respondents have blatantly breached the law in the face of numerous opportunities to correct that conduct.
Order of Court
It follows that I am satisfied that the Council has made out its case for a Declaration and Enforcement Order. I make the following Order:-
1. A declaration that the First Respondent and Second Respondent have committed a development offence pursuant to section 578 of the Sustainable Planning Act 2009 (SPA), in that they have undertaken or caused to be undertaken, operational work, namely filling or excavation on Lot 6 on RP 135397 County of Ward, Parish of Mundoolun, Title reference 15200156 and is situated at 2397 - 2407 Waterford Tamborine Road, Tamborine (the Land) without an effective development permit.
2. An enforcement order pursuant to section 604 of the SPA that the First Respondent and Second Respondent, by themselves, their servants or agents:
(a) cease all filling and excavation work on the Land;
(b) be restrained from bringing onto the Land soil and other materials used for the purpose of filling or excavating the Land, without an effective development permit;
(c) remove all fill that was introduced, for which there was no effective development permit;
(d) carry out such remediation and rehabilitation works as are required to restore the Land as close as practicable to the condition it was in immediately prior to the filling or excavation taking place.
Material received since Hearing
For completeness, I record that after final submissions, I received an email from the Second Respondent attaching photographs which she said were not available at trial asking that they be entered as evidence. I have not taken them into account. I also received a letter from a Mr. Grant Kerwin purporting to lodge a final submission in the matter. He had no standing. I have not taken his letter into account.
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