Sunshine Coast Regional Council v Dwyer - [2021] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Dwyer [2021] QPEC 53

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant/respondent)

v

WAYNE GEOFFREY DWYER

(second respondent/applicant)

and

VICKI DWYER

(first respondent/applicant)

FILE NO:

2388/19

PROCEEDING:

Applications in pending proceeding

DELIVERED ON:

15 October 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

1 October 2021, further written submissions on 8 October 2021, 15 October 2021

JUDGE:

Cash QC DCJ

ORDERS:

1.          The respondents’ application filed on 24 September 2021 is dismissed;

2.          I am satisfied, beyond reasonable doubt, that the second respondent is in contempt of the enforcement order made on 10 November 2020;

3.          I will hear from the parties as to penalty and any further orders.

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made in the Planning and Environment Court – where the order required the removal or demolition of rooftop structures – where the order required the rooftop to be restored to an earlier condition – whether and to what extent the respondent has not complied with the enforcement order – whether the respondent had a lawful excuse – whether the respondent is in contempt of the enforcement order

PLANNING AND ENVIRONMENT – PROCEDURE – ORDERS – VARYING AND STAYING – EXTENSION OF TIME TO COMPLY – where an enforcement order was made in the Planning and Environment Court – where there has not been compliance with the whole of the order – where there is a pending development application for the approval of some of the structures the subject of the enforcement order – whether the order should be varied to defer or delay its effect

LEGISLATION:

Building Act 1975 (Qld), s 20, s 21, Schedule 2
Building Regulation 2006 (Qld), r 4, Schedule 1, Schedule 2
District Court of Queensland Act 1967 (Qld), s 129
Planning Act 2016 (Qld), s 43, s 44, s 45, s 60, s 163, s 180, Schedule 2
Planning and Environment Court Act 2016 (Qld), s 36
Planning Regulation 2017 (Qld), r 18, Schedule 7
Sunshine Coast Planning Scheme 2014
Uniform Civil Procedure Rules 1999 (Qld), r 930, r 931

CASES:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106

Dubois v Rockhampton Regional Council [2014] QCA 215; (2014) 203 LGERA 117; [2015] QPELR 77, [72]-[76]

The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor [2020] QPEC 28; [2021] QPELR 337, [33]

COUNSEL:

K Wylie for the applicant
J Dillon for the respondents

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Spire Law for the respondent

The proceeding

Wayne Dwyer is a self-described retired builder. He lives in a large house on land at 5 Minyama Island, Minyama.[1] Mr Dwyer’s wife, Vicki Dwyer, is the registered owner of the land. In early 2019 Mr Dwyer built a tennis court on the roof of the house. The tennis court was surrounded by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QPEC 53
Decision Date: 15 October 2021

CaseChat Overview and Summary

In Sunshine Coast Regional Council v Dwyer, the respondent, Mr Dwyer, was found to be in contempt of a Planning and Environment Court order that required the removal or demolition of rooftop structures on his property. The order also required the rooftop to be restored to an earlier condition. The dispute arose when Mr Dwyer failed to comply with the enforcement order, leading to the council's application for contempt. The legal issues included whether Mr Dwyer had a lawful excuse for not complying with the order and whether the order should be varied or stayed due to a pending development application. The court had to consider evidence regarding the extent of compliance and the respondent's actions in modifying the structures on the rooftop.

The court examined the evidence, including the original approval for building works, which permitted only a new roof and had strict height limitations. The evidence showed that Mr Dwyer had added structures not included in the original plans, such as a lift, stairs, lighting, and a perimeter fence. The council's witness observed that these structures remained despite the enforcement order. Mr Dwyer argued that he had repurposed the perimeter fence for shade and protection from hail damage, but this did not align with the council's observations. The court found that Mr Dwyer had not fully complied with the order, as he had not removed the lift, stairs, or fully restored the rooftop to the earlier condition. The court also noted inconsistencies in Mr Dwyer's affidavit regarding the presence of lighting on the rooftop.

The court concluded that Mr Dwyer was in contempt of the enforcement order, as he had not demonstrated a lawful excuse for his non-compliance. The court dismissed the respondent's application for a variation or stay of the order and directed that the matter proceed to determine the penalty and any further orders. The court's reasoning was based on the clear non-compliance with the order and the lack of a credible lawful excuse provided by the respondent. The final orders included dismissing the respondent's application, finding the respondent in contempt of the enforcement order, and scheduling a hearing to determine the penalty and any further orders.

Orders

Orders of the court

1. The respondents’ application filed on 24 September 2021 is dismissed;

2. I am satisfied, beyond reasonable doubt, that the second respondent is in contempt of the enforcement order made on 10 November 2020;

3. I will hear from the parties as to penalty and any further orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Neller’s approval gave permission for building works in accordance with the plans attached to the approval.[7] Compared to what was built, the plans were quite modest. They allowed for a new roof to be constructed over the existing one, but contained no reference to a lift, stairs, lighting, a perimeter fence, or any other structure on the roof. The approval was also subject to conditions. These included a condition that ‘[t]he maximum height of the structure is not to exceed the height limits … In this instance the maximum height shall not exceed 8.5m above natural ground level’. Another condition required the submission of a further application for approval if there was any proposed alteration or modification of the plans or specifications the subject of the building approval.[7]A copy of the approval and plans may be found in the Certificate pursuant to section 251 of the Local Government Act 2009 (Qld), Court Document 11, at attachment 15 to the Certificate (pp 168-175).Evidence in the present applications The applicant relied upon the affidavit of Damien Frey.[8] Mr Frey is an employee of the applicant whose duties include ensuring compliance with planning provisions. He is familiar with the proceeding and had seen the property in September 2020 before the enforcement order was made. On 19 February 2021 (about a week after the respondent was to have complied with the enforcement order) Mr Frey observed the property. He saw that the fence was still present, although parts had been covered, replaced, or wrapped in black mesh material. The partially enclosed structure near the lift (the lift overrun structure) remained, as did the stairs leading to the roof of this structure. The lift and stairs from the second floor to the roof also remained in place.[8]Affidavit of Damien Hunter Frey, 7 May 2021, Court Document 45. On 2 March 2021 Mr Frey attended the property for a formal inspection. On this occasion he observed things were in much the same state. After accessing the rooftop deck, Mr Frey could also see floodlights affixed to the partially enclosed structure near the lift, but lights had been removed from the fence panels. The modified perimeter fence was in the horizontal position, projecting out from the sides of the rooftop. The respondent filed his own affidavit.[9] He said he has removed the perimeter fence by removing the glass panels and chain mesh, cutting the fence panels and posts down to two metres, covering the cut-down panels with shade cloth and putting the altered structure into the horizontal position so that it extends out from the rooftop (the ‘shade structure’). A section of the perimeter fence has been retained as it forms part of the lift overrun structure. Mr Dwyer said he repurposed the perimeter fence to provide shade and protection from hail damage. He considered the new structure to be accepted development which does not require approval, though he deposed that he expected a company in Caloundra to provide an approval ‘shortly’. Mr Dwyer deposed that he removed lighting fixtures from the perimeter fence posts and that ‘no permanent external lighting remains on the rooftop area’. This seems inconsistent with the photos and observations of Mr Frey who described lights affixed to the lift overrun structure. In July 2021 Mr Dwyer removed the treads and other parts of the stairs to the top of the lift overrun structure and those from the second floor to the rooftop. He has not demolished or removed the lift, or the lift overrun structure. Apart from this, Mr Dwyer believes the rooftop area has ‘generally been restored to a state that complies with the building approval’ given in February 2019.[9]Affidavit of Wayne Geoffrey Dwyer, 27 August 2021, Court Document 49.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sunshine Coast Regional Council v Dwyer [2021] QPEC 53
PARTIES:	SUNSHINE COAST REGIONAL COUNCIL (applicant/respondent)
v
WAYNE GEOFFREY DWYER (second respondent/applicant)
and
VICKI DWYER (first respondent/applicant)
FILE NO:	2388/19
PROCEEDING:	Applications in pending proceeding
DELIVERED ON:	15 October 2021
DELIVERED AT:	Maroochydore
HEARING DATE:	1 October 2021, further written submissions on 8 October 2021, 15 October 2021
JUDGE:	Cash QC DCJ
ORDERS:	1. The respondents’ application filed on 24 September 2021 is dismissed; 2. I am satisfied, beyond reasonable doubt, that the second respondent is in contempt of the enforcement order made on 10 November 2020; 3. I will hear from the parties as to penalty and any further orders.
CATCHWORDS:	COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made in the Planning and Environment Court – where the order required the removal or demolition of rooftop structures – where the order required the rooftop to be restored to an earlier condition – whether and to what extent the respondent has not complied with the enforcement order – whether the respondent had a lawful excuse – whether the respondent is in contempt of the enforcement order PLANNING AND ENVIRONMENT – PROCEDURE – ORDERS – VARYING AND STAYING – EXTENSION OF TIME TO COMPLY – where an enforcement order was made in the Planning and Environment Court – where there has not been compliance with the whole of the order – where there is a pending development application for the approval of some of the structures the subject of the enforcement order – whether the order should be varied to defer or delay its effect
LEGISLATION:	Building Act 1975 (Qld), s 20, s 21, Schedule 2 Building Regulation 2006 (Qld), r 4, Schedule 1, Schedule 2 District Court of Queensland Act 1967 (Qld), s 129 Planning Act 2016 (Qld), s 43, s 44, s 45, s 60, s 163, s 180, Schedule 2 Planning and Environment Court Act 2016 (Qld), s 36 Planning Regulation 2017 (Qld), r 18, Schedule 7 Sunshine Coast Planning Scheme 2014 Uniform Civil Procedure Rules 1999 (Qld), r 930, r 931
CASES:	Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 Dubois v Rockhampton Regional Council [2014] QCA 215; (2014) 203 LGERA 117; [2015] QPELR 77, [72]-[76] The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor [2020] QPEC 28; [2021] QPELR 337, [33]
COUNSEL:	K Wylie for the applicant J Dillon for the respondents
SOLICITORS:	McInnes Wilson Lawyers for the applicant Spire Law for the respondent