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 Council [2005] QDC 372
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woolworths Ltd v Caboolture Shire Council [2004] QPELR 634

COUNSEL:

S P Fynes-Clinton for applicant
First respondent for himself, and as agent for second respondent

SOLICITORS:

Bernays Lawyers
First Respondent self-represented

1. This matter has had a long life within the Queensland legal system[1], although it concerns a domestic residential matter in quite small compass.  The Council asserts Mr Smith has erected two structures on land at Wattle Ridge, Millmerran without its approval, and has made various attempts since 2003 to have him either seek that approval, or remove the structures.  This proceeding is in the same vein.  No relief was sought against the second named respondent Mr McTavish, who did not appear.

   [1]See, eg, Millmerran Shire Council v Smith [2003] QPEC 068, Millmerran Shire Council v Smith (2004) 133 LGERA 43; [2004] QCA 58, and Smith v Millmerran Shire Council [2005] QDC 372.

1. Mr Smith’s resistance to the proceedings in the past, and now, has unusual aspects.  He presently styles himself as the ‘senior minister of Sundowner Christian Ministry a church of love and peace inc’ (sic) and maintains, variously, that in company with like-minded persons he has lawfully established, on his land, a new independent polity (and styled himself ‘Chief Executive Officer of God’s State (Federal State) Independent Sovereign State of Australia’); that he has thereby rendered himself immune to the operation of the laws of Australia or Queensland (or the Council); and, in any event, that the State has abandoned control over what is done on this land.

1. Council’s initial tack was premised on the notion the buildings are temporary and this Court ordered[2], in 2003, that Mr Smith be restrained from occupying them until he had at least applied for a temporary accommodation permit.  The Court of Appeal held[3], however, that they were not temporary.  Then Council pursued him in the Magistrates Court and obtained convictions in 2005 for offences involving failure to comply with notices requiring him to apply for development permits which, if granted, would have regularised the construction work.  His appeal from that decision to the District Court was unsuccessful[4].  When Council attempted a further prosecution for non-compliance in 2007, however, a Magistrate held a limitation period had expired a year after the 2005 convictions and refused further relief.

   [2]Millmerran Shire Council v Smith [2003] QPEC 068.

   [3]Millmerran Shire Council v Smith (2004) 133 LGERA 43.

   [4]Smith v Millmerran Shire Council [2005] QDC 372.

1. At first blush it might be thought Counsel’s continuance of the proceedings in various guises has become something of a vendetta but its pursuit of Mr Smith is, perhaps, unsurprising in light of the prevailing events and circumstances.  The evidence that the structures exist and were built without any attempt to seek what Council claims is mandatory approval is overwhelming.  Mr Smith did not, in either his written or oral submissions in this hearing, deny those things.  I accept the Council’s submission that these matters are, effectively, res judicata: in the Magistrates Court proceedings Mr Smith was convicted of cognate offences and his appeal to the District Court from conviction was dismissed.

1. Nevertheless, through the course of events already outlined, he has to date effectively resisted what Council claims are its legitimate attempts to enforce its bylaws through a variety of courts, and over many years. 

1. In the present proceedings Council has elected to approach the matter via provisions of the Integrated Planning Act 1997 (IPA) and, in particular, s 4.3.22 which provides:

4.3.22 Proceedings for orders

(1)   A person may bring a proceeding in the court –

(a) for an order to remedy or restrain the commission of a development offence (an “enforcement order”); or
(b) if the person has brought a proceeding under paragraph (a) and the court has not decided the proceeding – for an order under section 4.3.24 (an “interim enforcement order”); or
(c) to cancel or change an enforcement order or an interim enforcement order.

(2)    However, if the offence under subsection (1)(a) is an offence under section 4.3.1, 4.3.2 or 4.3.3 about the building assessment provisions, the proceeding may be brought only by the assessing authority.

(3)   The person may bring a proceeding under subsection (1)(a) whether or not any right of the person has been, or may be, infringed by, or because of, the commission of the offence.

1. The provision is enlivened by the commission of a ‘development offence’, a term defined in IPA Schedule 10 to include an offence against s 4.3.1 of that Act, which relevantly provides that a person must not ‘…carry out assessable development unless there is an effective development permit for the development’.  Council, again, relies upon the proceedings before the Magistrates Court and the transcript of them[5] to prove, satisfactorily, that in about 2003 Mr Smith carried out some work on the primary dwelling on the property by way of an extension for a computer room, and by building another, second, dwelling without applying for or obtaining the necessary development permits.  The evidence also establishes that the work was not ‘exempt’ or ‘self-assessable’ (ie, that it could not be undertaken without permission); that enforcement notices were served upon Mr Smith; and, that the buildings remain in situ.

   [5]Tendered under s 10(2) of the Recording of Evidence Act 1962.

1. Two questions occur in light of these circumstances and facts: first, whether the events which have happened in the course of the legal history of this matter (including the considerable period of time involved) make it inappropriate to grant the relief Council seeks; and, secondly, whether the provision it now relies upon to obtain that relief is amenable to that purpose.

1. Mr Smith’s opposition to the proceedings did not address those matters, other than tangentially.  He filed an affidavit and made oral submissions directed to three principal grounds of resistance. First, he contends that because the property upon which the buildings were constructed has freehold title, that title makes it immune from the operation of IPA.  The argument was advanced on appeal to the District Court, and rejected.  It has also been the subject of unequivocal adverse decisions from the Court of Appeal.[6]

   [6]Bone v Mothershaw [2003] 2 Qd R 600; Burns v State of Queensland & Croton [2007] QCA 235.

1. The second is that the land comprises an independent sovereign state, which also attracts immunity.  That question was decided against Mr Smith by this court in the first proceedings in 2003, and the Court of Appeal found it no apparent error in that aspect of the primary decision.  It was also raised in the first prosecution in the Magistrates’ Court and, again, decided against the respondent.  Finally, it has been comprehensively rejected by the Court of Appeal in other, unrelated proceedings[7].

   [7]Cameron v Beattie [2001] QCA 392.

1. The third argument relies upon s 106 of the Australian Constitution and a claimed immunity from regulatory laws and in particular IPA by virtue of the respondent’s religious beliefs or practices.  It, again, was rejected at first instance in this court (without demur from the Court of Appeal on that issue) and by the magistrate in the first prosecution.

1. During his oral submissions Mr Smith did raise further arguments – that the relief sought by Council involved discrimination on the basis of religion and offended the Queensland Anti-Discrimination Act 1991 and similar Commonwealth legislation. There is, however, simply no evidence that these proceedings either now, or in the past, have involved conduct referrable to some matter involving religion, or that Council is treating Mr Smith any differently from anybody else by reason of his religious beliefs. Mr Smith also referred to the Bible, and a number of other pieces of legislation[8] and judgments.  None – intending no disrespect – have any discernable relevance or give rise to a sustainable basis for resisting Council’s application.

   [8]The Queensland Constitution,  Sale of Goods Act [1896], C’wealth Trade Practices Act (1974), The Australian Constitution,  Local Government Act (1993), Land Act [1994],  Property Law Act [1974], Justices Act [1886]; and, The Bill of Rights (1689) and Magna Carta.

1. There is no time limit for enforcement proceedings in this court.  Some cases show that delay by governmental bodies in seeking remedies under their statutory powers and responsibilities can be taken into account as a discretionary factor against the grant of relief but, relevantly, this is a case which involves a statutory planning regime which both regulates and benefits the public generally, and issues of non-compliance with it.  It was submitted on Council’s behalf, and I accept, that a somewhat different approach is adopted in those circumstances, given that the effect of refusal would permit the continuance of conduct which constitutes an offence against the planning regime[9].  As Kirby P (as his Honour then was) said in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341:

Where the application for enforcement of the Act is made by the Attorney General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens … This is because the Attorney General or the Council are seen as the proper guardians of public rights.  Their interest is deemed to be protective and beneficial, not private or pecuniary… (emphasis added) [10]

[9]Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167, at 170-173; and, Woolworths Ltd v Caboolture Shire Council [2004] QPELR 634, at 637-638 (and the cases cited there).

[10]Cited by the Queensland Court of Appeal (Macrossan CJ, Pincus and Davies JJA) in NRMCA (Queensland) Ltd v Andrew (1993) 2 Qd R 706 at 712.

1. It cannot, in any event, be said that Council has actually stood by for lengthy periods in a way which would fairly permit Mr Smith to raise an argument based on the notion of injustice because of delay.  It is plain that a good part of the time the matter has taken to reach this court is the product of his failed appeal to the District Court and Council’s ultimately futile second prosecution.  Overall, the history reveals continuing efforts by Council to secure compliance with its laws since 2003.

1. The approach might be a little different if, for example, there was evidence from a builder or engineer showing that despite the lack of a permit from Council the structures did, in fact, comply with relevant building codes.  Something of that kind occurred in Galatidis v South Sydney Municipal Council [1981] 6 APAD 152 where Council had clearly taken a long time to bring action and the court ultimately determined, in its discretion, that there was little point in making further orders which would achieve little or nothing in the public interest[11].  That is not the case here.

   [11]See, to similar effect, Longa v Blacktown Municipal Council [1985] 54 LGRA 422, and Brisbane City Council v Ferro [1999] QPELR 30.

1. The fact that previous proceedings have been taken, in the nature of a prosecution, is no bar to this application: IPA, s 4.3.25(2). Although Chapter 4, Part 4 Division 5 (ss 4.3.22 – 4.3.28) of IPA is directed to injunctive remedies including speedy relief if and when that is necessary, it contains procedures which are an integral part of the processes by which those charged with the business of ensuring orderly development may obtain relief from the court when laws and regulations touching relevant matters are said to be infringed. The terms of s 4.3.25(2), read with the other parts of Division 5 and, in particular, s 4.3.22(1)(a) indicate, I think, that the other attempts Council has made to pursue Mr Smith do not prevent it reverting, now, to this form of remedy. That is to say, Council has not exhausted its remedies and this application is not a step too far.

1. I am satisfied, then, that the offending structures involve ‘development offences ‘in the relevant sense and Council has established a right to enforcement orders.  It seeks relief in terms which compel Mr Smith to apply for the necessary development permits or remove the offending structures; and, if he does neither, he is deemed to have contravened those orders.  The time for the initial steps to be taken is, Council says, appropriately limited to only 30 days but, although I am satisfied delay does not assist the respondent in the face of these proceedings, the long period which has passed since the structures appeared suggests 60 days would be, on balance, fairer in the sense he and his family, congregation or cohabitants may need to do something else about accommodation arrangements if they decide to demolish.

1. The order will be, then, in the general terms of the amended Originating Application filed by leave on 1 August 2008, but with 30 days changed to 60.