MC Property Investments Pty Ltd v Sunshine Coast Regional Council
[2011] QPEC 99
•16 June 2011; ex tempore
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2011] QPEC 99 |
PARTIES: | MC PROPERTY INVESTMENTS PTY LTD (Applicant) AND SUNSHINE COAST REGIONAL COUNCIL (Respondent) |
FILE NOS: | 57/2011 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore Planning and Environment Court |
DELIVERED ON: | 16 June 2011; ex tempore |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 16 June 2011 |
JUDGE: | J.M. Robertson DCJ |
ORDER: | (1) In respect of this application compliance with chapter 11 part 8 of the UCPR be waived. (a) on the site; and (3B) Evidence gathered pursuant to order 3A is not to be led or relied upon in the separate proceedings commenced against the respondent by complaint and summons dated the 12 November 2009 or in any other prosecution involving MC Property Investments Pty Ltd or Mario Constantinides. |
CATCHWORDS: | BUILDING & TOWN PLANNING- where respondent is charged with development offences in Magistrates Court and applies to the Planning and Environment Court for orders seeking declarations as to permitted uses on site- where Council cross applies for declarations that certain uses are unlawful and for enforcement orders PRACTICE- where Council seeks respondent’s permission to inspect site and take photographs- where respondent refuses permission- whether r 250 Uniform Civil Procedure Rules 1999 (Qld) is engaged- where respondent does not contend that Council’s application is for an ulterior purpose- where Council consents to order that any evidence gathered not be used in criminal proceedings. Legislation: Cases Considered: |
COUNSEL: | Mr R. Christoforou as legal practitioner for the applicant Mr A. Sinclair for the respondent |
SOLICITORS: | Heiner & Doyle Solicitors for the respondent |
Before me is an application in pending proceedings for orders authorising representatives of the respondent Council to enter upon the premises of the applicant for the purposes of inspection and taking photographs.
The proceedings have a complex history. On the 12 November 2009 an officer of the Council filed a series of complaints and summons against the applicant MC Property Investments Pty Ltd and its sole director Mr Constantinides, alleging breaches of the Integrated Planning Act 1997 (Qld) (described generically as development offences) and breaches of the Building Act 1975 (Qld) in respect of the company's use of a building at Lot 2 on RP 211637 at Brue Highway Forest Glen. Those proceedings have been on foot for some time and were set down for hearing in the Magistrates Court to commence as a five day hearing on the 11 April 2011.
On the 22 March 2011 the applicant company filed an originating application in this Court in which it sought declaratory relief in relation to the uses permitted on Lot 2 on RP 211637.
On the 31 March 2011 the Council filed by way of an originating application an application seeking declarations pursuant to s 456 of the Sustainable Planning Act 2009 (‘the SPA’) that certain uses on the property were not lawful uses, and assessable development, namely material change of use, for which there is no current development permit, and seeking enforcement orders pursuant to s 604 of the SPA effectively to order the respondent to cease carrying out such uses and other consequential orders.
I am informed that on the day of the commencement of the criminal proceedings in the Magistrates Court, the learned Magistrate adjourned the hearing of the criminal proceedings pending the outcome of the proceedings commenced in this Court both by the company and Council.
As a result of orders made the applications will be heard together on the 14 July 2011. As I've noted today the 15 July 2011 is a chamber day so there'll be additional time on that day if the matter proceeds into a second day.
Council has filed a large number of affidavits in support of its application. The company's application is supported by an affidavit filed by Mr Constantinides on the 22 March 2011. The various Council officers who have filed affidavits, who are predominantly development compliance officers employed with the Council, are also potential witnesses in the Magistrates Court criminal proceedings.
Mr Christopher Schomburgk, who is a town planning consultant who practises on the Sunshine Coast, has also provided a statement for the prosecution in the Maroochydore Magistrates Court. In his affidavit filed on the 15 June 2011 he says this at paragraph 2: "I visited the site in mid-2010 and early in 2011, the latter visit in company with Mr Holliday" (Mr Holliday is, as I understand it, a town planning consultant engaged by the company).
Mr Schomburgk goes on to say: "Those visits were to do with P & E Appeal No. 134 of 2009 and I was not at those times engaged for or involved in the current proceedings. I didn’t seek to inspect or assess the interiors of individual tenancies. In these circumstances, I am unable to make the usual declaration (required by UCPR s. 428(3)(b)) that I have made all the enquiries I consider necessary and relevant. I'm informed by Mr Heiner (Council solicitor) that a recent request for me to return to the site has been refused by Mr Constantinides".
The present application comes about in these circumstances: on the 3 June 2011 Mr Heiner wrote to Mr Christoforou who is now the legal representative for MC Property Investments Pty Ltd. The letter said this:
"Council officers wish to return to the site, to update the council's knowledge about the present land uses there.
It is proposed that the visit take place next Wednesday 8 June, Council officers Peter Jephcott and one or two other council officers will go to the site and they may take photographs of the various buildings and tenancies.
An identical request was made to your client when Watson & Quinn were acting for him, and that request was promptly and courteously granted. Legally, the position is still as it was then, namely that the site is a private place which is open to the public".
Mr Christoforou replied by email on the 6 June 2011 advising that effectively because on previous occasions when officers of the Council had inspected the property, they had "…breached the goodwill that was extended to them. Undertakings were given that they would only access the roads, yet, my instructions indicate that officers walked up to various buildings and tried peering through the glass windows and doors. One of the officers, even supported his weight on the door frame whilst placing his head inside to have a look." The request was refused. In effect, Mr Heiner was informed that Council officers were not authorised to enter upon the property and any unauthorised entry would be viewed as trespass. Mr Christoforou said this: "If the Council wishes to inspect the property, then it is suggested that an application be made to a magistrate for a warrant to enter".
On the 7 June 2011 Mr Heiner wrote to Mr Christoforou in these terms: "Please be advised that the council's planning consultant Chris Schomburgk will be visiting the site tomorrow 8 June and he may knock on the doors of tenants whose tenancies are open to the public".
On the 7 June 2011 Mr Heiner responded to Mr Christoforou's email drawing his attention to s 132 of the Local Government Act 2009 (Qld). He called on Mr Christoforou's client to acknowledge that the proposed entry by Mr Jephcott was authorised by s 132 and to confirm that they will not object to nor impede the visit.
Mr Christoforou responded by email on the 7 June 2011. He referred to s 132; he expressed his opinion that neither Mr Jephcott or any other Council officer or agent is authorised to enter the premises absent a Court order. He said: "I confirm my earlier advice that no council officer nor any external agent of the council is welcome on the site without judicial authority". On the same day by email he made a similar response in relation to Mr Schomburgk.
On the 7 June Mr Christoforou emailed Mr Heiner saying inter alia: "Given that your client is adamant that it wishes to enter upon the site to inspect current uses, I advise that I will be filing an application in the Planning and Environment Court tomorrow, seeking relief with respect to your requests/directives relating to entry by your client on the site. It seems to me that the matter can best be dealt with by an application pending in the permitted uses proceedings. I will try and have the matter listed as a matter of urgency".
Indeed, Mr Christoforou did file that application on the 8 June 2011 supported by an affidavit of Mr Constantinides which exhibited a number of documents; however, it is acknowledged that that application and supporting affidavit, which was returnable on the 24th day of June 2011 at 9.30 a.m., was not served on Council until it was handed to Mr Heiner in Court this morning. I agree with Mr Sinclair that given the attitude expressed in that correspondence by Mr Christoforou on behalf of Mr Constantinides and the company, that the Council had little choice but to make the application it did on the 14 June 2011, and that is the application that has been argued today.
Mr Christoforou acknowledged, somewhat reluctantly, that r 250 of the Uniform Civil Procedure Rules 1999 (Qld) is clearly engaged in the circumstances of this case, to the extent that clearly the property described as Lot 2 on RP 211637 Parish Mooloolaba at 7172 Bruce Highway, Forest Glen is the property the subject of proceeding number 57 of 2011. I should also note, for completeness sake, that all of Mr Heiner's correspondence indicated that it related to the proceedings in this Court, that is proceeding number 57 of 2011.
Essentially, Mr Christoforou argued by reference to Mr Schomburgk’s affidavit filed on the 15 June 2011 that his purpose in going there was to, as it were, express opinions as to the lawfulness or otherwise of uses being carried on by the site which Mr Christoforou argued are questions of law for the Court to determine. As I indicated to him, until I am able to read a report or hear evidence from Mr Schomburgk, it's difficult for me to express any view as to whether he may have, in any expression of opinion, transgressed into expressing opinions of law, which he can't do. This is no reason, however, to deny the Council relief. Clearly the present uses being carried on the site as a matter of fact are important considerations both in relation to Council's cross-application and in relation to the original application filed by the company, and that is clearly the purposes for which Council now seeks access to the property.
At the commencement of the proceedings this morning I raised with Mr Christoforou and Mr Sinclair his Honour Judge Robin QC's decision in Scenic Rim Regional Council v Brecevic [2010] QPEC 003, in which his Honour was dealing with proceedings in which there were criminal proceedings in the Magistrates Court as well as proceedings in the Planning and Environment Court for declarations and consequent enforcement orders. A distinction in this case is, it is the applicant company, the holder of the development permit, who commenced the proceedings in this Court and not the Council. However, his Honour's erudite and helpful analysis of the authorities, which are to the effect that the Courts have always declined to lend their compulsive processes in aid of proceedings to expose persons to punishment or consequences in the nature of a penalty, are clearly apposite in this case.
Unlike this case, the respondent in Scenic Rim actively argued that the Council's application for orders for inspection of private land, pursuant to r 250, constituted an abuse of process and were for an ulterior purpose. In that case his Honour made an order that the applicant be granted reasonable access but imposed a condition that:
"Evidence gathered pursuant to this order is not to be used in the separate proceedings commenced against the respondents by complaint and summons dated 16 December 2009 or in any other prosecution".
Mr Christoforou acknowledges that he never raised that issue in his correspondence with Mr Heiner. Mr Sinclair, on the other hand, had considered the matter, had read the case, had given advice to Council and Council had given him instructions to agree to the imposition of a similar condition, slightly modified as a result of the discussion that we have had and which I will impose today.
In those circumstances it is ordered that:
(1) In respect of this application compliance with chapter 11 part 8 of the UCPR be waived.
(2) The applicant's application in pending proceeding filed 8 June 2011 be dismissed.
(3A) Pursuant to r 250 of the UCPR, the applicant (Sunshine Coast Regional Council), its representatives and consultants be authorised to enter onto 7172 Bruce Highway, Forest Glen (more particularly described as Lot 2 on RP 211637) during business hours, to inspect, observe and take photographs of anything:(a) on the site; and
(b) in any part of any building on the site that is open to the public, and to which the respective tenants permit entry.
(3B) Evidence gathered pursuant to order 3A is not to be led or relied upon in the separate proceedings commenced against the respondent by complaint and summons dated the 12 November 2009 or in any other prosecution involving MC Property Investments Pty Ltd or Mario Constantinides.
(4) That by 4 p.m. on the 1 July 2011, the parties file and serve outlines of their arguments.
(5) That by 4 p.m. on the 8 July 2011, the parties file and serve responses, if any, to the other parties outlines of argument.
(6) That the applicant MC Property Investments Pty Ltd pay the Council's costs of an incidental to Council's application to be assessed on the standard basis.
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