Moreton Bay Regional Council v. Reedy & Anor (No 2)
[2009] QPEC 71
•9 July 2009
[2009] QPEC 71
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No 3522 of 2008
MORETON BAY REGIONAL COUNCIL Applicant
and
KEVIN REEDY Respondent
and
JAN REEDY Respondent
BRISBANE
...DATE 09/07/2009
ORDER
CATCHWORDS: Integrated Planning Act 1997 s 4.3.25, s4.3.26(1)(c) - enforcement order calculated to achieve remediation of site where unauthorized placing and spreading of fill of uncertain composition had occurred - consideration of basis for court requiring access to site being given to Council officers
HIS HONOUR: The Court has made an order under s 4.3.25 of the Integrated Planning Act 1997 in terms of the initialled draft which provides as follows:
"IT IS ORDERED THAT
The Order of the Court dated 25 June 2009 be vacated.
The First Respondent and Second Respondents ("the Respondents"), their servants or agents be restrained from carrying out assessable development, namely filling or excavation as defined in the Applicant's planning scheme on land formally described as Lot 1 on SP 158732 ("the land"), without an effective development permit authorising such development.
On or before 30 July 2009 the Respondents shall provide
to the Applicant, a remediation plan which.
3.1 includes a report prepared by a licensed soil
testing engineer which identifies the nature and
characteristics of the fill material placed on the
land;
3.2 Identifies and explains the procedure proposed by
the Respondents for removing all of the fill
material placed on the land;
3.3 Identifies how the fill material to be removed by
the Respondents will be disposed of.
The Applicant shall review the Respondent's remediation
plan and respond in writing by 13 August 2009.
The matter will be reviewed by the Court on 20 August
2009.
The Respondents shall remove the fill material from the
land which is identified in accordance with paragraphs
3.1. 3.2 and 3.3 or as agreed by the parties.
The operation of paragraph 6 shall be suspended until
4:00pm on 20 August 2009.
The Respondents, their servants or agents permit, upon
the giving of twenty four (24) hours notice, authorised
officers of the Applicant to enter the land for the
purpose of ensuring compliance with paragraph 3 of the
Order and providing the Court with relevant
information."
There are some changes from the order which Mr Williamson, for the applicant Council, proposed before lunch. This has been done in an attempt to accommodate the circumstances of the respondents who, contrary to the Council's expectations, required earlier dates for actions by them than the Council was proposing. The respondents are in difficult circumstances, facing a forced sale of the property if they are unable to negotiate one themselves. Mrs Reedy has made it clear to the Court that she's in no position to offer any guarantees about what the situation might be on the 20th of August 2009 because it's not known what the mortgagee bank might do. I don't regard the order as a consent order in any event.
The respondents concede that they have placed and spread fill on their land in excess of the quantities specified in volume 1 of the Caboolture Shire Plan, part 4, division 15, in which table 413 makes it clear that where the running total of fill exceeds 50 cubic metres code assessable development is occurring for which an application has to be made for a permit. That hasn't occurred.
The Council is disinclined to accept, and I don't think the Court ought to accept the general evidence given orally by Mrs Reedy, that there is nothing of concern in the fill which has been placed on the site.
To an extent the respondents blame others for their predicament, of being currently pursued by the Council for enforcement orders, consequent upon the development offence which it's clear occurred late in 2007, they say that a permission given to a swimming pool constructor to place fill on the site was exceeded so far as quantity is concerned.
Mrs Reedy said the fill, at that stage, was anticipated to be clean soil which was to be used for garden purposes. It's clear that other materials have got onto the site, including floor tiles and the like which the respondents removed from other premises in the course of their business and apparently were constrained to store on their land when space otherwise wasn't available.
There's some suggestion that materials of that kind were supposed to be removed by Mr Shakoff, when he, at the site, did work by way of placing rubbish such as broken tiles, lino and demolition material in bins and also placed possibly 100 cubic metres of soil which Mr Shakoff levelled. He says the only thing that was buried was a small amount of concrete rubble which the fill covered.
The Council has obtained an affidavit from a neighbour who deposes to other waste materials being there, and he says buried, including old carpet. In the circumstances the Council's concern to have an orderly and supervised remediation program is a proper one which the Court shares.
Some time was taken in looking into the Court's concern about authorising entry to the respondent's private premises, as per paragraph 8 of the order.
Mr Williamson placed before me an order in similar terms, in similar circumstances, in Moreton Bay Regional Council v Troy Donohoo 266 of 2009, 28th of May 2009. That was an order of Judge Griffin S.C.
Mr Williamson has collected provisions in the Local Government Act which aren't directly relevant but contain an interesting example of statutory recognition of the appropriateness, in circumstances analogous to the present, of entry being made available to private land to Council personnel for appropriate purposes. In the Local Government Act 1993, section 1096 is relevant, as the limitations in section 1097 are instructive.
In section 1062 and following are other provisions in respect of rights of entry. In particular, for the purpose of achieving compliance with orders there's provision for application to a Magistrate for an order under section 1063. Other occasions for entry are identified in section 1066, performing work for owner or occupier.
What Mr Williamson relies on principally to justify the jurisdiction, which he says the Court clearly has, is the generous approach to grants of power which High Court authority indicates ought to be taken. He referred to authorities collected in Metrostar Pty Ltd v Gold Coast City Council [2006] 154 LGERA 245 at paragraph 22 and following.
The power which this Court has is relevantly acknowledged in section 4.3.26(1)(e) of the Integrated Planning Act 1997 which lists among the things which an enforcement order or interim enforcement order may include a direction to the respondent "to do anything about a development or use to comply with this Act". As Mr Williamson notes, that's extraordinarily wide.
It was my notion to add to paragraph 8 of the order the words, "and providing the Court with relevant information".
That, to my mind, provides both an explanation and a justification for the Court's taking what I think is the strong course of authorising entry, even by council officers, to private land. If that's for the purpose of supervision of an enforcement order made by the court, I don't think there could be any good ground for challenging the arrangement.
Order as per initialled draft.
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