Moreton Bay Regional Council v. Reedy & Anor (No 1)

[2009] QPEC 69

[2009] QPEC 69

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3522 of 2008

MORETON BAY REGIONAL COUNCIL	Applicant
and
KEVIN REEDY & ANOR	Respondent

BRISBANE

..DATE 25/06/2009

ORDER
CATCHWORDS: Integrated Planning Act 1997 s4.3.24 - interim enforcement order to prevent further unlawful filling (the respondents not appearing, although served) - underlying application for enforcement order in similar terms, also for removal of fill already placed was imminent - applicant Council apprehensive that respondents might sell the site before the imminent hearing.

HIS HONOUR: This is an application by the Council for an interim enforcement order under Section 4.3.24 of the Integrated Planning Act 1997.

The order sought, which seeks the same relief as is sought in paragraph 1 of the Council's originating application filed on the 16th December 2008, restrains the respondents from carrying out assessable development by way of filling on their property at 725-727 Old Gympie Road, Narangba.

In the originating application as well as an enforcement order to that effect under Section 4.3.25 there is also sought an enforcement order under that section requiring the removal of fill already placed on the land.

The fill was placed at the end of calendar 2007, attracting the notice of a neighbour whose concerns may be a matter of speculation.  Under the Planning Scheme, given that there's no relevant material change of use ever applied for on the site, filling if the fill exceeds 50 cubic metres uncompacted is assessable development.

An appropriately experienced Council officer estimates that initially the fill brought on to the site was of the order of 100 square metres.  There may have been more subsequently, but that's beside the point.  The fill has been spread.  That too is beside the point presumably, although it may lead to the need to specify in what way future removal ought to occur.

The Council has been attempting to have matters sorted out with the respondents, issuing at least one enforcement notice, an order to show cause and the like.  There's been no response by way of removal of fill or the making of any development application to the Council to regularise what has been done.

The respondents have proved somewhat elusive in the proceeding, although they've taken some steps by way of participation - in mediation before the Registrar, for example, at least the first stage of a mediation.  The second stage appears to have been aborted, for reasons which appear to be the respondents' responsibility.

The Council has managed to get the hearing of the originating application set down for the 9th July.

In the last week, the property has been listed for sale, which causes concern in the Council, not that it will be impossible to pursue its defence of the principles in the Planning Scheme, but on the basis that there's a change in ownership of the property, in which event it will likely be necessary for the Council to begin all over again against the new owner.

The advantage of obtaining an interim enforcement order is that Council's records can be noted accordingly so that any potential purchaser would be alerted to the existence of an issue in respect of the site.  It may also be that word of the making of the order can be broadcast by various means such as to and/or through the appointed real estate agent - which may have a useful effect. 

The Council, I think, is anxious not to appear to be going to sleep in respect of the matter at this strategic time.  Its position in respect of proceedings in the future can only be strengthened if it has been active.  The risks to its position are potentially bothersome.  For example, the respondents may manage to get a purchaser (if they can find one) into possession of the property before the 9th July and on a basis whereby that purchaser refuses access to it for purposes of removing fill which, as Mr Williamson observes, is something that shouldn't occur in any old fashion but in some suitable way in all the circumstances.

The ultimate question for the court, which at the end of the day is as in favour of the applicant Council, is a close one.  I suppose there are analogies with the Mareva injunction type of situation in which fear of what might happen is of some significance.  It's one of those situations in which the making of the interim order sought can do no harm.  What it prevents is activity which would clearly be unlawful, indeed a development offence.

The Planning Scheme is so framed that issues of filling are approached on a cumulative basis.  So far as this property is concerned, on the evidence before the court, the filling already exceeds the relevant limit, and by a large margin.

There has been some contact with the respondents in the last day or so, involving the Council's solicitor, Mr Quirk.  He was told by Mr Reedy that the latter acknowledges receiving the application and the filed supporting material, and didn't oppose the making of interim relief.

That might have been countermanded, although perhaps not clearly so, by communication by Mrs Reedy, who took the initiative to telephone Mr Quirk earlier this morning to indicate that she wanted an adjournment so that legal representation could be arranged.  She presumed in an email referred to in the telephone conversation, which I suppose provides some warranty of authenticity, much to be desired when "fake emails" are a feature in the news, in respect of her email which purports to appoint Mr Quirk her agent for the purposes of seeking an adjournment.  He has replied by email to indicate that the case is that he's not in a position to accept instructions from her, confirming that the Council opposes the adjournment.

To Mr Williamson's apparent consternation, I speculated about the possibility of the court requiring an undertaking regarding Section 4.3.24 subsection (2). I haven't seriously contemplated that possibility. It seems to me, in the present circumstances, that there could be any damage in which the Council could conceivably in justice be required to pay for for from the making of this interim order. In the usual case where relief under the section is granted, the court should advert to the possibility of an undertaking being appropriate.

The hearing on 9 July is likely to be before me.  I have made no findings of fact other than on an interim basis, being content to rely on the affidavit evidence available at this stage, and Mr Williamson's summary of it, also his summary of the effect of the Planning Scheme, which I have not considered in any detail.

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