Nimmo v Land One Solutions Pty Ltd

[2006] QPEC 55

[2006] QPEC 055

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 798 of 2006

GEOFFREY KEITH NIMMO  Applicant

and

LAND ONE SOLUTIONS PTY LTD  Respondent

and

BRISBANE CITY COUNCIL  Second Respondent

BRISBANE

..DATE 07/04/2006

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.21, s 4.1.22, s 4.1.54, s 4.3.3, s 4.3.24, s 4.3.25 - Uniform Civil Procedure Rules r 250 - whether court's "compulsive processes" should be used in a way that might assist proceedings for a penalty or contempt proceeding - applicant alleged construction on neighbouring land did not comply with
development conditions contained in a consent order of the court in proceedings involving other parties - order granted that a surveyor be permitted access to development site to inspect the construction

HIS HONOUR:  Even though arrangements appear to have been made to defer the hearing of Mr Nimmo's underlying application from the 18th and 19th of April to 2nd of May and days following, the present interlocutory application would still require urgent consideration.  That is unfortunate given the importance of the issue raised.

The application is made in a document leave to read and file which was given today. It was foreshadowed by oral notice yesterday. Mr Litster, whose client is the first respondent, is most affected and has taken no point about this - relying on what might be called a constitutional point. What the interlocutory application seeks amounts to relief under rule 250 of the Uniform Civil Procedure Rules to permit a surveyor engaged by the applicant to enter and inspect, for the purposes of providing surveying evidence, the respondent's property at number 36 Dorchester Street, South Brisbane, also known as lot 12 in consequence of a reconfiguration of two larger adjoining lots into three lots of 421 square metres each.

There has been constructed on lot 12, and is nearly complete, a new dwelling which has been described by the applicant's counsel, Mr Skoien, as a Tuscan, although I am not sure that is necessarily correct.  His client is the owner of a house at 38 Dorchester Street known as Coorooman which has acknowledged heritage values.

...

HIS HONOUR:  Mr Nimmo is of the view that the construction which has occurred on lot 12 does not comply with the relevant conditions.  Those are to be found in a conditions package forming a part of an order which does not say it but which I am told was made by consent in appeal number 3818 of 2001 in which the submitter appellant was Katrine Jamieson and the co-respondent developer was Hotchkin Development Group Proprietary Limited.  The court is told that Mr Nimmo's appeal was resolved by an agreement he made with that company, that nothing effective was done to make the agreement binding on its successors.

The present respondent acquired the property from a company known as Farzan Fur Proprietary Limited, becoming the owner in December 2004.  Mr Nimmo had the advantage of legal assistance in the sending of a solicitor's letter dated 13th of January 2006 addressed to the respondent.  The letter appears designed to get the respondent to make an agreement like the one mentioned.  He acted for himself, however, in lodging his application on the 20th of March this year.  Four days later, he made amendments at the suggestion of Judge Griffin.

There are aspects of the application which appear to go beyond this Court's jurisdiction, including a prayer for an order that the respondent provide a registered easement over a one metre strip along the boundary to enable him to maintain his timber and tin dwelling which is located close to the boundary.  Of some significance in the application is a paling fence which may be on the respondent's side of the boundary.  Mr Skoien has told the Court there's also some minor aerial encroachment by Mr Nimmo's buildings.

The application seeks compensation in respect of damage to Mr Nimmo's property described in terms of meeting costs to remedy damage. That includes spatter on the walls of a building and maybe more things. It does not appear whether there is anything in the nature of a loss of support claim in reliance on the common law or s 179 of the Property Law Act even in respect of the paling fence. However, one of the issues concerns Mr Nimmo's contention that the development conditions require that no construction take place within a metre of that paling fence.

The respondent contends that an inappropriate amount of regard has been paid to that fence on the misunderstanding that it possessed some heritage value.  Mr Marquis Kyle's affidavit disputes that contention, asserting that the fence could not be any more than 25 years old.

The respondent points to a basement plan forming part of the conditions package which suggests that the retaining wall along the relevant common boundary was envisaged as extending as far as the boundary.  That is an example of Mr Litster's proposition that this is far from an open and shut case as regards assessing whether or not the development conditions have been complied with.

There is another issue in relation to that wall, if I am correct, as to the level of it and whether that is permitted to be above natural ground level.

What Mr Nimmo calls site coverage and the respondent calls "building footprint" (which appears to the expression in the relevant Codes in the planning scheme from time to time) is said by him to exceed the benchmark of 60 percent of site area indicated in acceptable solutions.  He does not contend that the respondent is bound by a very recent reduction of the benchmark to 50 percent.

The parties seem to be very far apart on this particular issue, Mr Nimmo contending that what is being constructed represents 68 percent of the site area, while the respondent says it is 52 percent.  There is an issue here as to whether the Codes supply the benchmark in any event, the respondent contending that the development approval defines what the respondent may do.

Part of what Mr Nimmo seeks is to secure the fence which, as suggested already, features very prominently in the approval package conditions, particularly condition 57.   One of the plans refers to "timber paling fence on retaining wall to NGL".  That plan also sets out parking arrangements which Mr Nimmo contends do not comply with what is required.

As I understood the argument today, there was an issue as to the feasibility of accommodating two visitor vehicles as well as two or three vehicles for tenants.  The approval conditions and plans may be inconsistent here, the latter referring to a "double garage" as opposed to a "triple garage" for the houses proposed on lots 10 and 11.  The conditions in words may indicate that three vehicles were to be accommodated.

The respondent's statement of issues makes it clear that there may be a separate issue in relation to the height of the covered parking; it may comply with an assertedly relevant standard, even if, as Mr Nimmo contends, it falls short of what the plans require.

I have perhaps gone into the background circumstances at undue length to get to the point of observing that at the suggestion of a Judge of the Court, as I understand it, Mr Nimmo has not only engaged a solicitor (being the solicitor who helped him with the letter back in January), but also a surveyor with a view to obtaining accurate evidence of the dimensions of the structure on lot 12 and accurate calculation of the site coverage or building footprint and the like.

It is said, and I accept, that although some work in this regard could be done from outside the site, it is far preferable for it to be done by a person with appropriate qualifications who has the advantage of access.

This is not by any means to be held against the respondent, but by its solicitors it appeared to have agreed last week that the applicant's surveyor and his counsel might inspect the site on a nominated date, along with a representative of the respondent's solicitors.

It was, I think, made clear that these arrangements were subject to Mr Litster's advice, which was being sought.  When it came to the crunch Mr Skoien was admitted, but not the surveyor.  Although the building close to completion (Mr Tabrizi says in his affidavit that the Lot 12 property has been sold with settlement to take place as soon as construction is finished) there is no one in occupation at the moment.  We are dealing with a building site.  One would expect that the allowing of facilities to inspect to someone such as the surveyor would be non-contentious. 

It is likely to be helpful in the circumstances to have the surveyor's findings.  Mr Skoien has offered that the surveyor be a joint expert, perhaps he could even be an expert appointed by the Court.  For the moment his fee is to be paid by Mr Nimmo in any event.

What has caused the respondent to change its mind and resist the interlocutory application to permit the surveyor access? 
It is a proper concern that the Court not lend its "compulsive process in aid of proceedings to expose persons to punishment or consequences in the nature of a penalty", to quote Byrne J, who noted that this being the situation in the courts, "since the Glorious Revolution" - see Exagym Pty Ltd v. The Professional Gymnasium Equipment Company Pty Ltd (No 2) [1994] 2 QdR 129.

It was common ground there that proceedings for contempt of an order of the Supreme Court were intended to be pursued. The case I mentioned followed Exagym Pty Ltd. v The Professional Gymnasium Equipment Company Pty Ltd [1994] 2 QdR 6, in which in the same context Ambrose J had excused a person or persons facing contempt proceedings from answering interrogatories.

The House of Lords had to consider similar issues in Rank Film Distributors Limited v. Video Information Centre [1982] AC 380. At page 130, on the page before the passage last quoted, Byrne J noted that

"The applicant now seeks an order setting aside the chamber Judge's order contending that it should not have been made because its object was to facilitate proof of conduct exposing the applicant and others to punishment or penalty."

That applicant's assertion may be slightly broader than the principle Byrne J recognised.

The impugned order was of the Anton Piller variety.  It had been complied with by one Mr Perin, who had handed over various potentially incriminating documents.  Those were ordered to be restored to him.

In my opinion the contempt issue is not of present concern having regard to Section 4.1.54 of the Integrated Planning Act 1997 (IPA). Subsection (3) provides that if the Court acts under subsections (2)(b) or (c), as Judge Quirk did, "The Court's decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision."

In my opinion this assimilates the Court's decision to the assessment manager's decision and with the consequence that contempt proceedings would not be open; no one could suggest they would be open if the development approval were in the form of a decision of the Council.  I do not think that situation changes, given the provision, if the decision of the Court underlies the development approval.

It is perhaps unfortunate that Mr Nimmo's application at so many points refers to Judge Quirk's order.  This may well give a reader the impression that the usual draconian procedures which may follow a deliberate breach of a court's order are in contemplation.  There is the special complication here that neither Mr Nimmo nor the present respondent was a party to the order.

Another, perhaps unfortunate aspect of the history of the matter is the alluding in Exhibit 1 to the penalty or penalties which might follow non-compliance with conditions of a development approval under Section 4.3.3 of the IPA. The letter referred to "a penalty of up to $124,875 for each offence" which appears to represent the relevant calculation.

Here is an alternative basis for the respondent's concern about potential exposure, not only of it, but of its directors and maybe other persons, to conviction for an offence and penalties to follow. Mr Litster submits that the application is based on Section 4.3.25 which renders the making of an enforcement order dependent on the Court's satisfaction that an offence has been committed or will be committed unless restrained.

Mr Williamson for the Council and, as I understand him, Mr Skoien argued that the application should not be seen in that way at all, but as one under section 4.1.21 which authorises proceedings in the Court for declarations. Section 4.1.22 permits the Court to go further and make orders about declarations made under Section 4.1.21 - which I would think covers a very wide range of potential orders.

The amended originating application has in its preamble a request for "a declaration that the development...is contrary to the development conditions determined by Quick DCJ in a judgment" and then goes on to indicate "following orders or judgment" which are sought, the first of which is an interim enforcement order. This is a reference to Section 4.3.24 by which, as I read it, such an order can be made whenever "the Court is satisfied it would be appropriate to make the order", as opposed to the much stricter basis set out in Rule 4.3.25.

I would think that enforcement orders, interim or otherwise, would not necessarily be appropriate or called for if the Court could resolve a matter in a suitable way by use of section 4.1.22, assuming some declaration had been made. If there were anything along the lines of an injunction or any kind of "enforcement order", any person knowingly breaching that would be potentially liable to contempt proceedings.

Mr Skoien has specifically disavowed any use of the present originating application by his client for that purpose.  I understand it was Judge Griffin who first mentioned the possibility.  While I took Mr Williamson to be indicating the same approach on behalf of his client (which has been made a party at the suggestion of the respondent, if I understand it correctly, to ensure it is appropriately implicated in whatever order might be made in this proceeding), he finally made it clear that the Council's participation is so recent that it has not formulated any view.

While Mr Skoien's client is not seeking the making of any order pursuant to section 4.3.3, it cannot be said what the Council's position might be. Speaking for myself, I would think the prospects of any proceeding for a penalty are against the first respondent would be slight. Whatever the position in other jurisdictions, there is little in the way of any record of serious action successfully being taken against developers in the situation the first respondent allegedly occupies, for example by way of order to demolish. See Caloundra City Council v. Taper Proprietary Limited [2003] QPELR 338. In Patterson v. Redland Shire Council [2003] QPELR 259, it may be that satisfaction of the criminal standard of proof was incorrectly insisted upon: see State of Queensland v. Ward [2004] 1 QdR 429, especially at 443 and following.

The last authorities that I ought to mention are the High Court decisions of Rich v. Australian Securities and Investments Commission (2004) 209 Australian Law Reports 271 allowing an appeal from the Court of Appeal in New South Wales which had erroneously proceeded on the basis that "the penalty privilege did not apply because the proceedings were 'protective' and not 'punitive' in nature" and Environment Protection Authority v. Caltex Refining Co Ltd 178 CLR 477, which confirms a significant limitation of the privilege against self-incrimination so far as corporations like Caltex Refining Co Ltd and the first respondent are concerned.

I am impressed by Mr Williamson's submission that if the first respondent's argument is acceded to here there are going to be severe problems in the way of enforcement of conditions of development approvals.  In this case the relevant building permit has been issued not by the Council but by a private certifier.  That should in no way impair the confidence that members of the public and neighbours to a development, in particular, should have, that compliance with development approvals will be rigorously insisted upon, especially where there is impact, even in a small degree, on a neighbour.

One would assume that the private certifier here has been astute to ensure that everything approved by him complies, at least arguably, with the development conditions embodied in the Court's order.  No doubt he has unrestricted access to the site. 
Mr Williamson says, and doubtless correctly, that the local government is not in that situation, that its officers could obtain access only by a process involving the obtaining a warrant from the Magistrates Court.  Obtaining such a warrant presumably might have to overcome difficulties of the kind Mr Litster is arguing here today.

The proceedings are not to establish the commission of an offence, although I think it has to be accepted that there is a possibility they may reveal that an offence may have occurred, depending on how they develop.

The concerns about use of the Court's compulsive processes still lurk here. 

There is nothing that can be pointed to corresponding with the protective legislative provisions which typically accompany requirements that individuals give evidence before bodies such as the Crime and Misconduct Commission or the National Crime Authority.  The legislation typically enacts that if the appropriate protection is claimed, answers which are then given under compulsion cannot be used in a prosecution.  One suspects that in practice that is small comfort to unwilling witnesses who, often, are compelled to disclose facts which authorities interested may then seek to establish by other evidence.  They authorities have had the advantage of knowing what they are looking for. 

I am sufficiently concerned about these aspects that, while I propose to accede to the interlocutory application, I think that granting it should be accompanied by an order of the kind made in ex parte Fielder Gillespie Limited [1984] 2 QdR 339. I will leave it to the parties to work out, if they can, how this is best done. I think it is necessary to go further than McPherson J did.

My thought is that the work of the surveyor which, I am told, will take place next Monday, would be available for use in these proceedings but otherwise embargoed.  Orders may have to be made for the sealing up of reports, possibly even transcripts, and of records in whatever form they are held by the surveyor's firm once this proceeding is over.

I agree with Byrne J in what he has written about the way in which the Court's "compulsive processes" ought to be used at the end of the day.  It does not seem to me that they are being used in this way, but I have contemplated protection along the lines discussed in case that is a misjudgement.

Mr Lister's concerns deserve respect, but I assess them as fanciful in the end.  The importance of the information sought to the underlying application, and the nature of it, namely what has been built are matters of significance, too.

...

HIS HONOUR:  Just read them into the record if you want to.

MR SKOIEN:  Yes, your Honour, it is agreed between the parties that the applicant is to serve its material by the 18th of April 2006.  The second respondent - the first respondent is to serve its material by the 26th of April 2006.  The second respondent is to notify its position and serve its material by the 26th of April 2006 and the applicant is to serve any reply material by the 28th of April 2006.

HIS HONOUR:  That is all to facilitate a hearing on 2, 3 and 5

May, 2006, rather than on the days previously allotted.

‑‑‑‑‑