Sunshine Coast Regional Council v Kube
[2013] QPEC 11
•8 April 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sunshine Coast Regional Council v Kube & Anor [2013] QPEC 11
PARTIES:
SUNSHINE COAST REGIONAL COUNCIL
(Applicant)and
JOHN VICTOR KUBE and GILLIAN BERYL KUBE
(Respondents)FILE NO/S:
D146/12
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore Planning and Environment Court
DELIVERED ON:
8th April 2013
DELIVERED AT:
Maroochydore Planning and Environment Court
HEARING DATE:
4th and 5th March 2013
JUDGE:
Robertson DCJ
ORDER:
Subject to final submissions upon delivery of judgmentas to the form of orders and costs:
1.Declarations and/or orders in terms of paragraphs (a) and (c) and (d) of the amended application are made.
2.The enforcement orders sought in paragraphs (b) and (e) of the amended application are made, save that:
the removal of dam spoil around the excavated dams should be limited to spoil around the western and southern side of the southernmost excavated dams; and(a)
the requirement to remove the driveway should be stayed, pending the prompt making of, and diligent prosecution of, and determination of a development application seeking a development permit for operational work for the driveway, with the question of the continuation or modification of that requirement then able to be revised following the assessment and decision in respect of that development application.(b)
CATCHWORDS:
PLANNING AND ENVIRONMENT where respondents have carried out earthworks on their property since purchase in 2007; whether earthworks are “assessable development” under the Planning Scheme; whether earthworks require permit; where no permit sought or granted.
ENFORCEMENT PROCEEDINGS where applicant seeks declaration that earthworks constitute “assessable development” for which no permit has been given and therefore respondents have committed development offences; whether there are reasons not to make enforcement orders on discretionary grounds.
Legislation:
Integrated Planning Act1997 (Qld)
Sustainable Planning Act2009 (Qld)
Sustainable Planning Regulation 2009 (Qld)
Cases:
Caloundra City Council v Taper Pty Ltd & another [2003] QPELR 558
Mudie v Gainriver Pty Ltd & others [2010] QCA 382
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
COUNSEL:
Mr A Skoien for applicant
Respondents self represented
SOLICITORS:
Butler McDermott Lawyers for the applicant
In August 2007 the respondents, John and Gillian Kube (“the Kubes”), purchased vacant land at 76 Wharf Road, Bli Bli (“the land”). The land was vacant agricultural land used for growing sugar cane for many years prior to 2007. The land is low lying and sits immediately to the north of Petrie Creek which is a tributary of the Maroochy River. The land is located in South Bli Bli. To the west, the land is bordered by rural land and to the north the land abuts rural residential blocks that sit between it and the Bli Bli- Nambour Connection Road. To the north-east and east the land is surrounded by residential subdivision which occurred progressively over the last 30 years as the population of the Sunshine Coast increased.
The land is irregularly shaped. It is rectangle in shape running north from Petrie Creek and Wharf Road in the South with a square shaped piece excised from the northwest corner leaving a similar shaped portion in the northeast.
The proceedings
From the date if purchase until 2012, the Kubes undertook earthworks on the land that Council says is assessable development for which there was never a permit or permits. As the brief history set out below demonstrates, more or less from the time they acquired the land, the Kubes were in conflict with Council. There is no doubt that on the evidence, the allegedly unlawful earthworks, particularly in the north and north-east of the land, increased dramatically in 2012. On 4 May 2012, Council sent the Kubes a letter in which a demand was made that the earthworks cease. On 14 August 2012 an originating application was filed by Council in this Court effectively seeking declarations that the earthworks constituted assessable development where no permit had been given and accordingly the Kubes had committed development offences. The Council sought both interim and final enforcement orders.
The application was amended on 11 September 2012 essentially to provide more particularisation as to the interim orders sought, and to deal with an issue raised by the Kubes that the earthworks constituted exempt development. The application seeks declarations and enforcement orders both under the Integrated Planning Act 1997 (“the IPA”) and the Sustainable Planning Act 2009 (“the SPA”), as the alleged unlawful works were constructed before and after the commencement of the SPA on 17 December 2009. The different statutory regimes do not affect the outcome because under both the IPA and the SPA:
(a) excavating or filling that materially affects premises or their use is “operational work”;
(b) “operational work” is a type of “development”;
(c) development will not be “assessable development” unless:
(i) it is made “assessable development”; and
(ii) it is not development of a type that is prescribed as development that cannot be made “assessable development”;
(d) a local planning instrument such as Maroochy Plan 2000 can identify development as “assessable development”; and
(e) “operational work associated with … management practices for the conduct of an agricultural use” is prescribed as development that cannot be made “assessable development”.
Brief background history
Prior to purchasing the land, the Kubes had arranged to have flood searches done of Council records. The flood searches appear a number of times in the many affidavits of Mr Kube filed on their behalf but it is necessary for me only to refer to his most recent affidavit filed 28 February 2013 in anticipation of the hearing on 4 March 2013. In the body of the affidavit at paragraph 9(a) and (b) Mr Kube quotes selectively from the searches but he does exhibit both complete searches. The searches reveal that the land was flood-prone, and indeed Mr Kube acknowledged in his evidence that the land is the “end of the line” for stormwater flowing mainly from a drainage catchment to the north and east towards Petrie Creek which abuts the southern boundary of the land. The searches contain a number of disclaimers. The searches reveal that the land was “not in a drainage deficient area” and it is this aspect of the search information that the Kubes have concentrated on ever since.
This superficially conflicting description is fully explained in the evidence of Mr Anton Dreyer who at all material times has been the team leader for Council’s water management and drainage services. He explained to the Court, as he did when he wrote to the Ombudsman on 30 November 2010 in response to a complaint from the Kubes, that given that drainage deficient areas are based on installed drainage infrastructure, one would not expect any rural land to be considered as a drainage deficient area.
Within a short time of acquiring the land, the Kubes were complaining about flooding of their land which they blamed on the Council essentially for not properly conditioning upstream developments to mitigate effects of stormwater flow from these developments within the catchment onto and over the land.
Mr Kube was an earthmoving contractor. For that purpose he owned heavy machinery. He says now that the machinery is “retired” on the land and that his income is derived from driving trucks transporting asphalt road base.
It is common ground that Mr Kube commenced to excavate and fill the land from 2007. Initially he created a series of dams along the eastern boundary and he used the spoil in part to create a house pad near Petrie Creek on the southern end of the land, and a driveway into the property from Wharf Road which driveway transects the pre-existing drainage channel which runs roughly north-south down the centre of the land to Petrie Creek. This channel, known as the old cane drain, was created a long time ago and is probably along the path of a historical stream. Indeed, some of the Council’s correspondence refers to it as Little Petrie Creek.
It is common ground that this channel runs along what is the lowest part of the land, sloping very gently from the west but in parts more steeply from the east, until it meets the eastern boundary of the land. In other words, the cane drain is the lowest part of the land along which waters coming from the north and east onto the land would naturally flow.
Mr Kube also created a pad for a large industrial shed in the southern part of the land and contractors erected the shed.
The spoil from the dams was used for various purposes. As well as providing for the building pads, it was also used to raise the levels in and around the dams including the south-east area of the land. There is no dispute that these earthworks involved more than 50 cubic metres of material.
The dispute with Council escalated to a point where the Kubes made a complaint to the Queensland Ombudsman. Councillors and State representatives were also involved. There were many meetings between Council officers and the Kubes onsite, some of which occurred at a time when the earlier earthworks had been completed.
Based on my assessment of the evidence, I am sure that from an early stage, and because Mr Kube had the necessary earthmoving skills, the Kubes resolved to try to flood proof their land and to influence Council to agree with their approach to the flooding problem. In cross-examination Mr Skoien took Mr Kube to an email trail exhibited to Mr Kube’s trial affidavit to which later reference will be made.
The Kubes blame Council for their flooding problems and also allege that Council officers did not advise them if and when permits were required.
The evidence before me does not support such a contention. It is axiomatic that if a landowner plans development, it is incumbent on the landowner to comply with the law. Before undertaking any of the very extensive earthworks on the land, the Kubes could have sought town planning advice. Despite their extensive allegations about Council officers, there is no credible evidence to suggest that the works the subject of these proceedings were ever approved explicitly or implicitly by anyone in Council. Certainly there are no development permits or approvals.
Council finally did act to address the stormwater run-off issue by resolving on 16 March 2011 to compulsorily acquire drainage easements over three properties including the land. The proposed easement over the land would be contained within a 10 to 12.5 metre boundary commencing at the northern boundary and ending at the southern boundary at Petrie Creek. It will follow the path of the old cane drain. It will also include a six metre wide easement from the east generally between the first and second of the dams constructed by the Kubes in the south-eastern part of the land, connecting with the cane drain at a point north of the access road to the main house. The Kubes engaged a lawyer at this stage and objected to the easement being taken.
With the decision to compulsorily acquire the Ombudsman ceased its investigation into the Kubes’ complaint.
In the subsequent 12 months and probably more extensively in 2012, Mr Kube carried out extensive earthworks in the northern and north-eastern parts of the land. There is no dispute about this. It is common ground that there was a form of constructed road or bund along the northern boundaries and along what is described by the experts as the east-west bund at the time of purchase. Mr Kube dug out a pipe which connected the northern section of the land under the road or bund to the cane drain flowing south on the land, and placed it to the west and raised it to avoid silting. He then placed fill and road base to raise both the northern bund and the east-west bund.
It can be inferred that these actions spurred Council into filing its application on 10 August 2012. As became apparent in the many preliminary skirmishes leading up the hearing, Council’s main concern (justifiably, as history has proved) was the impending wet season. It is not necessary for me to review the history of the preliminary hearings which are a matter of record. In most, a transcript was ordered and is on file. The Kubes have been self-represented throughout. This leads to many of the usual difficulties and problems confronting laypeople, particularly dealing with issues of law and fact of some complexity. They are both obviously intelligent people who present as being completely overwhelmed by disputes with Council on many fronts. In their written submissions, they have descended into unsubstantiated allegations of deceit and obstruction of the course of justice directed at Council and its officers. These allegations are without merit. They graphically demonstrate the extent to which their disputes with Council, largely of their own making, have overwhelmed their commonsense and better judgment.
Following the decision to compulsorily acquire and Mr Kube’s extensive works on the east-west and northern bunds, the Kubes commenced proceedings in the Supreme Court against Council for damages for nuisance. As far as I know, those proceedings are still on foot. The Kubes also commenced proceedings against Council by the filing of an originating application on 4 January 2013 which essentially seeks injunctions to restrain Council from what is various described as “loss of life and/or injury to persons”, “damage to property”, et cetera. The factual premise on which the relief sought is based is that Council is responsible for flooding of the land. The Kubes attempted to consolidate those proceedings with the present proceedings, but I resisted that on the basis that I had (and have) real doubts about (a) my jurisdiction, and (b) the utility of the proceeding. Hopefully, with these reasons, these other proceedings may resolve.
In a practical sense, Council at the hearing focussed on the works done to the east‑west and northern bunds in 2011-2012, but also on the driveway from Wharf Road to the house in the south which, as I have noted, intersects the cane drain. Although Council’s position is that in relation to the earthworks done on the eastern boundary (the dams), the house pad and the shed pad, the Kubes undertook assessable development without a permit, it does not seek enforcement orders in relation to that work except in one relatively minor respect.
The planning context
The land is subject to Maroochy Plan 2000 (“the Planning Scheme”). The land was, at the date of purchase by the Kubes, and still is, within a Rural Precinct under the Planning Scheme, and located within a Special Management Area “Flood Prone and Drainage Constraint Areas.”
The land is flood prone and subject to Regulatory Map 1.5..
The Planning Scheme specifies that filling activities involving more than 50 cubic metres of fill constitute operational work that is “assessable development” on Flood Prone land that is a Special Management Area (with the level of assessment being identified as “code assessment”).
The Kubes in their written submissions seem to suggest that they did not know at the time of purchase that the land was subject to these planning controls. If they are relying on ignorance of the law, then that provides them with no comfort. Their state of mind at the date of purchase is irrelevant to the issues that arise in these proceedings.
Discussion
The Kubes did not challenge the fact that all the relevant earthworks involved 50 cubic metres of fill. This is understandable, given the evidence of Mr Clewett. Mr Clewett was engaged by Council in early 2013 (as one part of a number of detailed interim orders made by me to get the hearing on quickly) to do a detailed survey of the Kubes’ land including a survey of the location and extent of the disputed earthworks. Except in one immaterial respect, Mr Clewett’s evidence is not challenged. In any event, the Kubes (in particular Mr Kube who has always given evidence on their behalf) have never disputed the evidence from various Council officers (Halse, Morris), that the various earthworks (the eastern dams, the driveway and building pads, the east-west and northern bunds) all individually involve more than 50 cubic metres of fill.
Once this fact is accepted, the law requires the Kubes to obtain a permit to carry out such assessable development unless the works are exempt developments.
As noted above, both the IPA and the SPA regimes provide that operational work associated with “management practices for the conduct of an agricultural use…” is, in effect, exempt development. In relation to the earthworks carried out since 17 December 2009, s 232(2) of the SPA takes the reader to Schedule 4 Table 4 Item 9 of the Sustainable Planning Regulation 2009 to produce this result as a matter of law.
The evidence simply does not support the proposition that any of the earthworks were operational works associated with management practices for the conduct of an agricultural use.
At the time the Kubes acquired the land it was being used for cane growing. The evidence suggests that it had been used for that agricultural purpose for a long time. As I have noted, the land is at the very end of the line for stormwater coming from a drainage catchment to the north and east flowing overland into Petrie Creek.
As Mr Skoien notes there is no definition in either the IPA or the SPA of “management practices”. In his written submission he helpfully refers to the Explanatory Memorandum to the Integrated Planning Bill 1997. Therein it was noted that the exemption related to “operational works associated with the long-term cyclical activities of agriculture”. The Explanatory Memorandum further noted:
“The intention of these provisions is to balance the need for regulation of these activities where appropriate, with the necessity to provide certainty to operators that, once lawfully established, the ‘ground rules’ for the activity are not changed by the imposition of additional requirements to obtain approval. This degree of certainty is necessary to promote investment confidence for long-term cyclical activities involving a variety of operational works.”
It is clear that none of the works undertaken by the Kubes is associated with the pre‑existing use of cane growing. Mr Kube says they have plans for a crop of bamboo but the land is too flood prone to take the commercial risk of proceeding. The uncontested evidence is that the existing cane drain in any event will only cater for small nuisance flows, with any flow greater than about half the one in three month rain event spreading out across the land. In other words, prior to the earthworks the land was very prone to flooding and yet had been used for an agricultural pursuit that the Kubes never continued.
The overwhelming evidence is that the earthworks were not associated with management practices for the conduct of an agricultural use. Clearly the construction of the driveway to gain access from Wharf Street, and the creation of the building platform on which the Kubes’ house now sits had nothing to do with agriculture.
At the time of purchase there was, and still is, a small plantation of palm trees in the north-eastern section of the land. At the time of the inspection on 4 March 2013 this plantation was flooded. The Kubes have never relied on the palm plantation in support of their argument that the earthworks were exempt development. There is no evidence that they have any commercial interest in relation to the palms which are now quite large mature trees. Mr Kube said that early on a friend agisted some cattle on the property and he and his wife now have a small herd (approximately a dozen) of their own cattle. He maintains that the earthworks, particularly the east-west and northern bund are related to protecting his cattle.
It is overwhelmingly clear that from an early stage the Kubes have blamed upstream urbanisation for the flooding problems on their land. This is despite knowing the land was flood prone and despite knowing that it was the very end of a large draining catchment to the north and east.
The Kubes’ proposition is that Council did not properly condition these upstream subdivisional approvals to provide for drainage of water from such lands that had a “no worsening” effect on downstream properties including the land. I regret to say that the Kubes’ unjustified belief in this regard has overwhelmed their responses to Council and to the proceeding. Their belief is contrary to the known facts. The water experts (Morris for the Council and Tite for the Kubes) opined that at worst, upstream developments may have contributed an increase of 10 per cent in flows over the land, but there is no evidence as to which of these developments may or may not have contributed to such flows. Mr Tite identified 40 developments in the upstream catchment area and Mr Morris thought there were 50. It is common ground that 25 of these developments were approved prior to the introduction of the Queensland Urban Drainage Manual (the QUDM) in 1992 which first introduced the “no worsening” objective in drainage management of upstream properties, but only in relation to water quantity. It was not until the commencement of the Planning Scheme that water quality was included in the “no worsening” objective. Mr Tite’s modelling cannot say which of these developments contributed to the 10 per cent increase. In any event he agreed that the proposition that absent this possible 10 per cent increase the land was still flood prone. A previous owner of the land who had developed a number of the upstream subdivisions had given his consent for stormwater from these developments to flow across the land. The Kubes have purported to withdraw this consent. The legal effect of that is not relevant to these proceedings.
It follows that the Kubes’ explanation for undertaking the earthworks i.e. as a response to Council’s failure to properly condition upstream developments which has caused flooding on the land cannot be accepted.
The Kubes accepted (at least insofar as the 2011-2012 earthworks are concerned) that their actions were an attempt to flood proof the land or part of the land. I referred earlier to an email annexed as part of an email chain to Mr Kube’s trial affidavit filed on 28 February 2013. That email is part of Exhibit J-28. In the email a Council officer, Mr David Baker, refers under the heading “5. Ombudsman/Bigger Picture” to being told by the Kubes of their need (at that time i.e. in early January 2011) to “raise the prominence of their problem and unfortunately (or otherwise) to impact upon neighbours at the same time”. In cross-examination by Mr Skoien Mr Kube accepted that he probably did say that to Mr Baker, who was an environmental health officer who he regarded as an honourable man.
I am satisfied that the actual purpose of the earthworks were as follows:
(a) In relation to the driveway and building pads (which in turn was constructed from the spoils taken from the eastern dam system constructed by Mr Kube), these were to provide access from Wharf Road to the house and shed;
(b) In relation to the east-west and northern bunds, these were constructed in an attempt to flood proof the land and further in an attempt to force Council’s hand to take the Kubes’ preferred course of constructing a drainage system down the eastern boundary of the land and Council to take an easement for that purpose.
It follows that none of the earthworks are exempt development as being associated with the conduct of an agricultural use. The fairly minor agricultural pursuits undertaken by the Kubes since acquisition of the land have nothing to do with their actions to deal with a drainage issue on their terms.
It follows that in respect of all of the relevant earthworks covered by the application from 2007 to 2009, namely the house building platform, the driveway from Wharf Street to the house, the excavated dam system down the eastern boundary, the use of the spoil for the building platform and to raise levels around the dams; and the earthworks thereafter (and more particularly in 2012), the adding of fill to existing access tracks to raise the levels around the north-eastern portion of the land and the raising of the existing access tracks east-west across the centre of the land and the associated work on drainage lines (removing and replacing pipe and creation of a spillway) were:
(a) undertaken by the Kubes;
(b) involved an excess of 50 cubic metres of fill;
(c) constituted assessable developments; and
(d) for which there was no permit or permits.
Council is entitled therefore to the declaration it seeks in terms of paragraphs (a) and (c) of the amended application. I should also note that insofar as the Kubes submit that the onus on Council requires proof beyond reasonable doubt that is incorrect. The standard is a civil standard, bearing in mind the serious consequences to the Kubes of such a finding: Caloundra City Council v Taper Pty Ltd & another [2003] Q.P.E.L.R 558 at 561-562.
Enforcement orders
It is accepted by Council that the making of the declarations merely enlivens the discretion to make the order sought in paragraphs (b), (d) and (e) of its amended application. The leading authority bearing upon the exercise of the discretion is Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, applied frequently in this Court and the Court of Appeal: Mudie v Gainriver Pty Ltd & others [2010] QCA 382. The discretion is a broad one, involving the balancing of matters of both public and private interest.
A relevant matter referred to by the Kubes in their submission is the length of time over which their dispute with Council over drainage has proceeded.
As I have noted, there is a vast amount of material in the affidavits of Mr Kube, evidencing many dealings with Council officers, none of whom were called or required to give evidence. Some of that material e.g. the email trail involving Mr Baker has in fact been used to demonstrate the real reasons for the Kubes’ actions. I agree with Mr Skoien that all this material does not really assist the Kubes when their actions over the whole period are considered.
In the early years, Council officers did appear to proceed very cautiously even when faced with what is now alleged and proved to be unlawful activity. It is wrong to assess inaction as tacit consent, particularly given the duty on the land owner to apply for necessary permits if contemplating assessable developments. None of this affects the lawfulness of the Kubes’ conduct. The evidence is also of little weight as none of the officers were called and no request was made to have them called. Mr Skoien is also correct when he observes that the so-called expressions of opinion in emails and other communications at various times by Council officers in response to complaints from the Kubes are flavoured by what they were told by the Kubes at the time.
The delay is however relevant to the exercise of discretion, particularly in relation to the earlier earthworks, reflected more than adequately in my view in the concessions made by Council at the hearing and in Mr Skoien’s final submission in relation to the approach that I should take to the driveway and the eastern dams.
My earlier conclusions as to the reasons behind the Kubes taking the actions they did are particularly relevant to the exercise of the discretion, having regard to notions of enforcement of public duty in the public interest in orderly development and equal justice referred to in Sedevcic. Clearly my firm findings on this issue undermine the credibility of some of the other reasons advanced by the Kubes to explain and justify their actions.
These include their arguments that the works (or some of them) were necessary to prevent adverse health and safety consequences to the Kubes and other persons present on their land and/or stock such as the present cattle herd.
The expert evidence about water quality effects of upstream flows was inconclusive. As noted earlier the no worsening requirement for water quality did not appear in nay regulatory or guideline for until the Planning Scheme commenced in 2000.
More importantly in relation to discretionary issues, the experts agree that as a result of the works, particularly the east-west bund and associated works neighbouring properties are now more flood prone. Mr Tite thought that parts of the land were less flood prone as a result of the unlawful works but other parts e.g. the northern section where the palm plantation is located are more flood prone, in the sense that the ponding after even quite minor rain events such as a one-in-three event takes longer to run away. Mr Tite also agreed with Mr Morris that the raising of the east-west bund not only affects adversely neighbouring properties, but also upstream properties including the Bli Bli Nambour Connection Road. I also accept Mr Morris’ evidence that the relocation of the pipe in the east west bund area has the affect of slowing the flow of waters leading to more extensive ponding on neighbouring properties after rainfall events.
It would follow that the Kubes have by their unlawful actions, obtained some minor benefit to the detriment of others. Overall however the actions of the Kubes have, on the evidence not only worsened flooding on neighbouring properties and upstream properties, but also on the land. This all comes back to their intention to take these actions in an attempt to force Council’s hand and to accept their solution.
Clearly it is a much more preferable approach to drainage solutions on this extremely flood prone land to take advantage of the existing cane drain along the lower section of the land. Although in light of Council’s initiation of compulsory acquisition of a corridor along the old cane drain, this issue is irrelevant to these proceedings, I prefer Mr Morris’ evidence to that to Mr Tite as to the adequacy of Mr Tite’s proposed drain along the eastern boundary. The earthworks (in particular those on the east-west bund in the north) have exacerbated the potential for additional mosquito breeding risks on the land and surrounding land.
It follows that there is and was no justification for undertaking the unlawful works, and the Council is entitled to the enforcement orders it seeks. On the evidence, the restoration of the land to its state prior to works subject to the exceptions accepted by Council, will not involve unfair expense or inconvenience. The earthworks (excluding the building pads) are not of a kind that could be described as “static development” in the Sedevcic sense.
The orders will be as follows:
1. Declarations in terms of paragraphs (a) and (c) of the amended application are made.
2. The enforcement orders sought in paragraphs (b), (d) and (e) of the amended application are made, save that:
(a) the removal of dam spoil around the excavated dams should be limited to spoil around the western and southern side of the southernmost excavated dams; and
(b) the requirement to remove the driveway should be stayed, pending the prompt making of, and diligent prosecution of, and determination of a development application seeking a development permit for operational work for the driveway, with the question of the continuation or modification of that requirement then able to be revised following the assessment and decision in respect of that development application.
I will hear the parties in relation to the final form of the orders and costs.
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