Scenic Rim Regional Council v Brecevic
[2010] QPEC 3
•5 February 2010
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Scenic Rim Regional Council v Brecevic [2010] QPEC 3 |
PARTIES: | SCENIC RIM REGIONAL COUNCIL |
FILE NO/S: | BD 3425 of 2009 |
DIVISION: | Original jurisdiction |
PROCEEDING: | Interlocutory application in originating application for injunction and enforcement order |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 5 February 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 February 2010 |
JUDGE: | Robin QC DCJ |
ORDER: | 1. Order for access to respondent’s property (as set out in [1] below). |
CATCHWORDS: | Integrated Planning Act 1997 s 4.1.21, s 4.3.22 UNIFORM CIVIL PROCEDURE RULES r 250 – Council seeks declaration development offences have been committed by activities beyond permitted use of surface rock removal – order for site access sought for purpose of gathering evidence – criminal proceedings recently commenced in Magistrates Court in respect of the same alleged offending – whether application an abuse of process – evidence gathered not to be used in criminal proceedings |
COUNSEL: | W Cochrane for the applicant R Frigo for the respondent |
SOLICITORS: | Corrs Chambers Westgarth for the applicant Woods Hatcher for the respondents |
These are reasons for the making at a hearing on 4 February 2010 of orders that:
“1.Pursuant to rule 250 of the Uniform Civil Procedure Rules, the Applicant, its representatives and consultants be granted reasonable access to 4068 Boonah-Rathdowney Road, Rathdowney, more particularly described as Lot 12 on SP113604 (the Land) in order to gather additional evidence for the purposes of these proceedings, upon two days notice in writing to the Respondents.
2.Evidence gathered pursuant to this order is not to be used in the separate proceeding commenced against the respondents by complaint and summons dated 16 December 2009 or in any other prosecution.”
The order (more correctly, paragraph 1 of it) was sought by the Council by interlocutory application filed 29 January 2010 in support of its originating application filed on 27 November 2009 seeking a declaration pursuant to s 4.1.21 of the Integrated Planning Act 1997 and consequential enforcement orders under s 4.3.22. The declaration sought is that the respondents have committed a development offence or development offences by “surface rock removal” otherwise than in accordance with a development permit granted by the court on 5 March 2002 when Judge Wilson made an order (which I was told was by consent) in the respondents’ appeal no. 4028 of 2001 against refusal of a development application that the respondents had lodged on or about 19 January 2001 for a material change of use for “surface rock removal” upon their 228.5 ha site. Mr Cochrane (for the Council) stated in response to my enquiry that the Council’s rejection of the application was based on environmental concerns generally, including visual amenity and erosion concerns, and that the precise area of the site on which the use was to be permitted was delineated, and reduced from that applied for.
There had been trouble between the parties regarding the use previously. In application 805 of 2001 on 23 February 2001 the respondents were restrained from undertaking surface rock removal or extractive industry until further order. The applicant was Beaudesert Shire Council. That order was superseded by undertakings recorded in an order of Judge Quirk of 6 November 2001, varied by his Honour on 3 April 2002 to permit removal of surface rocks in accordance with the development approval constituted by the order of 5 March 2002. Mr Brecevic was fined $1,000 for contempt of court by Judge McLachlan on 16 April 2002 and on 28 November 2003 was fined $15,000 for contempt of court with a conviction recorded and costs against him by Judge Newton, whose order also required a rehabilitation plan to be prepared.
By its underlying application, the Council contends that activity is being undertaken on the land that falls outside the definition of “surface rock removal” as defined in the relevant development permit and, further, outside the defined Surface Rock Removal Area. The Council’s interlocutory application seeks access to the land to gather additional evidence for the purposes of the overarching proceedings and for the interim hearing” set down on 19 February 2010 (access also said to be necessary to determine suitable remediation measures) – access having been sought (and refused by the respondents) in recent correspondence. On 19 February, the court will hear the respondents’ interlocutory application filed 20 January 2010 seeking a permanent stay of the originating application under r 16(g) of the Uniform Civil Procedure Rules as an abuse of process, alternatively a stay pending finalisation of criminal charges which the applicant Council laid against the respondents on 16 December 2009; it is contended that the proceedings are “parallel”, relying on the same evidentiary foundation and that “the remedies available are in substance the same in both”, rendering the Council’s originating application, described as a “civil prosecution”, an “abuse of process”.
I pronounce no view whatever as to what might or ought to happen on 19 February, but it might be observed that the Council (whose officer, rather than it, procured each complaint and summons) has potentially twin, but independent concerns in a scenario such as the present: one is to pursue prosecutions for alleged offences which may result in penalties for proved offending; the other is to ensure that development offences not continue to occur, a related aspect being obtaining remediation in respect of past development offences. It may well be judged proper in particular circumstances for a relevant public authority to proceed on multiple fronts, subject to restrictions that might be imposed in the interests of justice or efficiency.
The period of offending nominated in each complaint and summons is between 6 March 2009 and 16 December 2009; there is therefore overlap with the period attributed to the alleged commission of development offences.
The pendency of the criminal proceedings in the Magistrates Court raises the same complication in respect of an order for inspection of private land pursuant to UCPR r 250 as was considered in Nimmov Land One Solutions Pty Ltd [2006] QPEC 055. In Nimmo, the respondent relied on the possibility that evidence gathered by a surveyor on an inspection ordered under r 250 might be used in proceedings for a penalty or for contempt and help to incriminate the respondent. In Exagym Pty Ltd v Professional Gymnasium EquipmentCompany Pty Ltd [1994] 2 Qd R 6 Ambrose J rejected an application for further and better answers to “interrogatories delivered by the plaintiff in contempt proceedings taken against the defendants … for breach of an interlocutory injunction”. It was held that interrogatories might be objected to on the ground that answers might tend to incriminate and that in contempt proceedings in particular, a person was not obliged to answer questions that may tend to incriminate him. In the pursuit of the alleged contemnor, a further attempt to obtain evidence was made on an ex parte application to seize documents and other things; an “Anton Piller” order was made which led to the handing over of some material proposed to be used at the hearing of the contempt proceedings, which was imminent. Byrne J set aside the ex parte order, which he noted in Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd(No. 2) [1994] 2 Qd R 129 at 130 “was not in aid of relief sought against the defendants in the litigation, which … is the justification for the Anton Piller injunction … it was not an order issued for a purpose which incidentally involved some chance of revealing evidence tending to disclose an act of disobedience to a Court order. Rather, its … purpose was to facilitate proof of the contempt proceedings.” At 131 his Honour noted that for centuries the courts declined to lend their compulsive processes in aid of proceedings to expose persons to punishment or consequences in the nature of a penalty. In Nimmo, an order was made under r 250 containing special provisions to ensure that the surveyor’s evidence pursuant would not be disseminated or be used outside the specific proceeding in which it was made.
Here, the criminal prosecutions are now actually on foot, although they were not when the originating application in this court was filed. The respondents’ assertion is that the access to their property sought is not for the stated purpose but for an ulterior one of supporting the criminal prosecutions; the conclusion is said to be irresistible where the Council’s current interlocutory application was not made or foreshadowed until the threat emerged of the originating application being stayed. The written submissions assert:
“(f)The Council does not formulate the terms of its access application such as to restrain the use of any evidence gathered only in the civil prosecution.
21.The inference is clear, that when faced with the threat of the civil prosecution being stayed, the Council, realising that the compulsive processes available in the civil prosecution may evaporate, pressed forthwith for access to the land for the ulterior purpose.
22.If this is so, the ulterior purpose is an improper one and hence alien to the objections of r 250 of the UCPR, which has application to civil proceedings not criminal proceedings.”
Mr Cochrane submitted, I think correctly, that, in the absence of any appropriate questioning of its solicitors’ deponent Ms Peate, the court could not find there was an ulterior purpose. I make it clear that I impute none. This is not enough to overcome all concerns about the facilitating of access of the site in this proceeding which, without some restriction, may produce evidence supporting the Magistrate’s Court criminal proceedings. (It was common ground that evidence of a successful outcome of the underlying application for the Council here could not be given in the criminal prosecution.) Faced with Nimmo, Mr Cochrane accepted that there ought to be some restriction if he was otherwise successful.
In Nimmo oblique reference was made, without identifying the provision, to s 1094 of the Local Government Act 1993 which permits an “authorised person” (which would cover the Council here) to obtain a warrant from a magistrate to authorise entry to premises if:
“(iv) …there are reasonable grounds for suspecting –
(a)there is a particular thing or activity (the evidence) that may provide evidence of an offence against a Local Government Act.”
It would be open to the Council to proceed in that way. The significance of the existence of this provision is to indicate that there is no public policy which precludes a judicial officer’s facilitating entry to premises for purposes of gathering evidence to establish commission of an offence. The judicial officer’s discretion is considered to provide appropriate protection and control. It was not (and could not be, in my view) suggested that s 1094 excludes the use of other provisions such as r 250 to achieve a corresponding effect.
For purposes of its originating application, the Council already has evidence, including observations of its officers who were granted access to the site months ago and some photographic evidence, including Google Earth or similar aerial photographs with the “surface rock removal area” boundaries superimposed and tending to show that activity has occurred over a wider area. The area of interest is some sloping ground, well away from the boundaries of the site. I understand that part of the Council’s concern is that rocks which are not “surface rocks” are being retrieved and removed. In my view, the case for the Council’s being assisted in the way it seeks to obtain better and more up to date evidence, is strong.
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