Millmerran Shire Council v. Smith & Anor - [2008] QPEC 73

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Millmerran Shire Council v Smith & Anor [2008] QPEC 73

PARTIES:

MILLMERRAN SHIRE COUNCIL

Applicant

V

CHRISTOPHER LAWRENCE SMITH

First respondent

And

JOCK MCTAVISH

Second respondent

FILE NO/S:

163/2008

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

14 October 2008

DELIVERED AT:

Toowoomba

HEARING DATE:

1 August 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 The first Respondent shall, within 60 days of the date of this Order:

    (a) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising additions to a dwelling house erected on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli: and

    (b) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising construction of a second dwelling house on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli.

2 If the first Respondent applies for the development permits referred to in Order 1 he must:

    (a) not discontinue or withdraw either application except pursuant to further orders of this Court; and

    (b) take all necessary and reasonable steps to enable the applications to be dealt with as quickly as possible.

3 The first Respondent may, in lieu of complying with Order 1, demolish and remove the buildings referred to in that Order within 60 days.

4 If the first Respondent has neither complied with Order 1 nor demolished and removed the buildings referred to in that Order within 60 days:

(a) the first Respondent is in contravention of the previous orders;

   (b) the first Respondent no longer has the election provided in Orders 1 and 3; and

   (c) the first Respondent’s ongoing obligation to remedy the contravention is an obligation to forthwith demolish and remove the buildings referred to in Order 1.

CATCHWORDS:

PLANNING & ENVIRONMENT – BREACH OF LEGISLATION – CONSTRUCTION OF LEGISLATION – REMEDIES FOR BREACH – where first respondent committed development offences – where applicant Council had previously pursued other remedies – delay

Anti-Discrimination Act 1991
Integrated Planning Act 1997, ss 4.3.22, 4.3.1, 4.3.25(2), Schedule 10
Recording of Evidence Act 1962, s 10(2)

Cases considered:

Bone v Mothershaw [2003] 2 Qd R 600

Brisbane City Council v Ferro [1999] QPELR 30

Burns v State of Queensland & Croton [2007] QCA 235

Cameron v Beattie [2001] QCA 392

Galatidis v South Sydney Municipal Council [1981] 6 APAD 152

Longa v Blacktown Municipal Council [1985] 54 LGRA 422

Millmerran Shire Council v Smith [2003] QPEC 068 Millmerran Shire Council v Smith (2004) 133 LGERA 43
NRMCA (Queensland) Ltd v Andrew (1993) 2 Qd R 706
Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167
Smith v Millmerran Shire…

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: [2008] QPEC 73
Decision Date: 14 October 2008

CaseChat Overview and Summary

Millmerran Shire Council brought a claim against the Smiths for breaches of development laws. The Council sought enforcement of orders for the removal of unauthorised buildings and for development permits for additional construction on the property. The Smiths contested the claims, arguing that the Council had unreasonably delayed in pursuing its remedies and that the enforcement action was now unjust. The dispute was heard and determined in the Land and Environment Court of Queensland.

The primary legal issue before the Court was whether the Council's delay in pursuing enforcement of its orders against the Smiths was so unreasonable as to render the enforcement action unjust. The Court was also required to consider whether the Smiths had valid grounds for resisting the enforcement of the orders for development permits and for the removal of the unauthorised buildings. The Court had to balance the need to enforce planning laws with the equitable considerations of delay and the Smiths' rights.

The Court found that the Council's delay in pursuing its remedies was not so unreasonable as to render the enforcement action unjust. The Court determined that the Council had acted diligently in pursuing its enforcement action and that the Smiths had no valid grounds for resisting the enforcement of the orders. The Court concluded that the Smiths were in breach of the planning laws and ordered them to either apply for development permits within 60 days or demolish and remove the unauthorised buildings. If the Smiths failed to comply with these orders, they would be in further contravention of the planning laws and would be required to demolish and remove the buildings forthwith.

The Court ordered that the Smiths must apply for development permits within 60 days or demolish and remove the unauthorised buildings. If they failed to comply, they would be in further contravention of the planning laws and would be required to demolish and remove the buildings forthwith.

Orders

Orders of the court

1 The first Respondent shall, within 60 days of the date of this Order:

(a) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising additions to a dwelling house erected on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli: and

(b) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising construction of a second dwelling house on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli.

2 If the first Respondent applies for the development permits referred to in Order 1 he must:

(a) not discontinue or withdraw either application except pursuant to further orders of this Court; and

(b) take all necessary and reasonable steps to enable the applications to be dealt with as quickly as possible.

3 The first Respondent may, in lieu of complying with Order 1, demolish and remove the buildings referred to in that Order within 60 days.

4 If the first Respondent has neither complied with Order 1 nor demolished and removed the buildings referred to in that Order within 60 days:

(a) the first Respondent is in contravention of the previous orders;

(b) the first Respondent no longer has the election provided in Orders 1 and 3; and

(c) the first Respondent’s ongoing obligation to remedy the contravention is an obligation to forthwith demolish and remove the buildings referred to in Order 1.

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:	Millmerran Shire Council v Smith & Anor [2008] QPEC 73
PARTIES:	MILLMERRAN SHIRE COUNCIL Applicant V CHRISTOPHER LAWRENCE SMITH First respondent And JOCK MCTAVISH Second respondent
FILE NO/S:	163/2008
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	14 October 2008
DELIVERED AT:	Toowoomba
HEARING DATE:	1 August 2008
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 The first Respondent shall, within 60 days of the date of this Order: (a) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising additions to a dwelling house erected on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli: and (b) make a properly made application to the Applicant or to a private certifier for a development permit for building work in respect of building work comprising construction of a second dwelling house on land at Lot 8 Balinga Road Wattle Ridge Millmerran described as Lot 8 on RP 211676 County of Derby Parish of Bulli. 2 If the first Respondent applies for the development permits referred to in Order 1 he must: (a) not discontinue or withdraw either application except pursuant to further orders of this Court; and (b) take all necessary and reasonable steps to enable the applications to be dealt with as quickly as possible. 3 The first Respondent may, in lieu of complying with Order 1, demolish and remove the buildings referred to in that Order within 60 days. 4 If the first Respondent has neither complied with Order 1 nor demolished and removed the buildings referred to in that Order within 60 days: (a) the first Respondent is in contravention of the previous orders; (b) the first Respondent no longer has the election provided in Orders 1 and 3; and (c) the first Respondent’s ongoing obligation to remedy the contravention is an obligation to forthwith demolish and remove the buildings referred to in Order 1.
CATCHWORDS:	PLANNING & ENVIRONMENT – BREACH OF LEGISLATION – CONSTRUCTION OF LEGISLATION – REMEDIES FOR BREACH – where first respondent committed development offences – where applicant Council had previously pursued other remedies – delay Anti-Discrimination Act 1991 Integrated Planning Act 1997, ss 4.3.22, 4.3.1, 4.3.25(2), Schedule 10 Recording of Evidence Act 1962, s 10(2) Cases considered: Bone v Mothershaw [2003] 2 Qd R 600 Brisbane City Council v Ferro [1999] QPELR 30 Burns v State of Queensland & Croton [2007] QCA 235 Cameron v Beattie [2001] QCA 392 Galatidis v South Sydney Municipal Council [1981] 6 APAD 152 Longa v Blacktown Municipal Council [1985] 54 LGRA 422 Millmerran Shire Council v Smith [2003] QPEC 068 Millmerran Shire Council v Smith (2004) 133 LGERA 43 NRMCA (Queensland) Ltd v Andrew (1993) 2 Qd R 706 Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167 Smith v Millmerran Shire…