Whitsunday Shire Council v McCracken

[2009] QPEC 140

[2009] QPEC 140

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P&E Appeal No 2386 of 2007

WHITSUNDAY SHIRE COUNCIL

Applicant

and

MICHELLE ANN MCCRACKEN

and

CHIEF EXECUTIVE UNDER THE COASTAL PROTECTION AND MANAGEMENT ACT 1995

Respondent

Co-Respondent

BRISBANE

..DATE 04/12/2009

ORDER

Integrated Planning Act 1997 s 4.3.26(3)
Order for performance bond to secure compliance with a court order.
 

HIS HONOUR:  The Court makes an order in terms of the initialled draft, which provides:

(1) if there has not been timely compliance, that paragraph 7.1(2) of the order of his Honour Judge Wilson SC dated 27 June 2008, as changed by the order of his Honour Judge Rackemann extending the date for compliance to the 31st of December 2009, the first respondent must, pursuant to section 4.3.26(3) of the Act, provide a bond to secure performance of obligations set out in that paragraph;

(2) the following requirements for the bond:

1.  The first respondent must lodge with the applicant:

(i) an outstanding works bond of $84,600 in respect of the works referred to in paragraph 7.1(2) as amended;

(ii) the bond shall be released upon the first respondent providing to the applicant evidence to the satisfaction of the applicant that the works referred to in paragraph 7.1(2) as amended have been completed.  If the works referred to in that paragraph are not completed by 31st December 2009, the applicant may immediately use the bond to undertake those works;

(iii) the bond shall be in the form of an unconditional, irrevocable guarantee given by a bank in favour of the applicant in a form suitable to the applicant under which the bank promises to pay the applicant upon demand any sum or sums to the maximum aggregate sum specified in the bond.

(3) - and this is a new paragraph 3 - adjourn the hearing of the balance of the Council's application, filed the 23rd of October 2009 to the 18th of January 2010

(4) - liberty to apply.

...

HIS HONOUR: That order resolves only part of the Council's application for provision of performance bonds to secure compliance with Judge Wilson's order. It doesn't resolve a similar application by the second respondent, Chief Executive under the Coastal Protection and Management Act. By orders which the Court is told were made by consent, Judge Wilson required various remediation works to be done according to plans and a timetable incorporated in the order.

Changes were made subsequently by Judge Rackemann to the general effect of times being extended to indulge the first respondent.   The first of those times now expires at the end of this month.  The Council in particular is concerned to have some security provided so that it may complete the relevant works, which concern the stability of a section of roadway.  What the Council is really after is a certificate of a competent geotechnical engineer providing assurance that the completed earthworks have a minimum factor of safety (FOS) of 1.3 against deep-seated failure.

There is affidavit material before the Court costing what would have to be done at $84,600.  That is apart from the second respondent's requirements for security and apart from other claims of the Council for bonds over and above the one contemplated.  Those relate to works to be done by later deadlines.  Without any evidence from the Court from the first respondent, the Court has made the assumption it might be difficult for her to provide all of the performance bonds which the Council would prefer to have provided for in an order today.

I made the judgment it is better to adjourn those parts of the Council's application that needn't be seen as urgent to the date when the EPA application comes on. The warrant for ordering the bond as identified in the order is section 4.3.26 of the Integrated Planning Act 1997 which provides that an enforcement order or interim order may be in terms the Court considers appropriate to secure compliance with the Act.

I am comfortably satisfied that orders may be made for something in the nature of a performance bond. It's of some comfort to note that another Judge of the Court has taken the same view - see paragraph 1 of Judge Kingham's reasons in Gold Coast City Council v Mount Deane Pty Ltd [2008] QPEC 112, where reference is made to her Honour's earlier order requiring provision of an unconditional bank guarantee, the details for which were subsequently varied by other orders.

The other activity of the Court in this application has been to grant leave to the solicitors on the record for the first respondent to withdraw.  She has been represented by her husband in Court today and he has helpfully provided an address for service, and other contact details which the Court has confirmed in the order for leave to withdraw - to provide the other parties with means of contacting the first respondent on which they may rely.

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