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Singleton v Lockyer Valley Regional Council[2024] QCA 103

Singleton v Lockyer Valley Regional Council[2024] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

Singleton v Lockyer Valley Regional Council [2024] QCA 103

PARTIES:

DARRELL SINGLETON

(second appellant/applicant)

v

LOCKYER VALLEY REGIONAL COUNCIL

(respondent)

STEVEN KENEFICK

(first appellant/not a party to the application)

GREG WILLIAMS

(third appellant/not a party to the application)

FILE NO/S:

Appeal No 42 of 2024

DC No 995 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2023] QDC 249 (McGinness DCJ)

DELIVERED ON:

31 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2024

JUDGES:

Boddice JA and Crow and Crowley JJ

ORDERS:

The application for leave to appeal be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACTS – IN GENERAL – where the applicant owned a number chattels on a property owned by Mr Kenefick – where Mr Kenefick was subject to an enforcement notice issued by Lockyer Valley Regional Council (“the council”) – where Mr Kenefick failed to remedy the breaches contained in the enforcement notice and the council took action by engaging a contractor to dispose of a number of chattels on the property including the chattels of the applicant – where the applicant and Mr Kenefick made claims against the council in the Magistrates Court on the basis that the chattels were wrongfully removed – where at trial in the Magistrates Court both claims were dismissed – where the applicant and Mr Kenefick appeal the Magistrates decision to the District Court – where the District Court dismissed the appeal – where the applicant sought leave to the Court of Appeal to appeal the decision of the District Court – whether the District Court Judge erred in finding that the applicant did not have the opportunity to remove items from the property – whether the applicant has identified such error to be corrected by this Court in the District Court Judge’s factual findings

District Court of Queensland Act 1967 (Qld), s 118

Local Government Act 2009 (Qld), s 138, s 142, sch 4

Sustainable Planning Act 2009 (Qld), s 582, s 590

Uniform Civil Procedure Rules 1999 (Qld), r 766

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, followed

Commissioner of Police v Antoniolli [2021] QCA 237, considered

Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135, followed

Kenefick v Lockyer Valley Regional Council [2023] QDC 249, cited

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, cited

COUNSEL:

The applicant appeared on his own behalf

M J McDermott for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Thomson Geer for the respondent

  1. [1]
    BODDICE JA:  I agree with Crow J.
  2. [2]
    CROW J:  The applicant, Mr Singleton, seeks the leave of the Court of Appeal to appeal a decision of the District Court. Leave to appeal is not granted lightly but may be granted under s 118(3) of the District Court of Queensland Act 1967 where:
    1. There is a reasonable argument that there is an error to be corrected; and
    2. It is necessary to correct a substantial injustice to the applicant.[1]
  3. [3]
    In order to determine whether there is a reasonable argument that there is an error to be corrected and that it is necessary to correct a substantial injustice to the appellant it is necessary to have reference to the long history of proceedings between Mr Singleton and others and the respondent council.
  4. [4]
    Some time prior to 2014, Mr Singleton deposited numerous chattels in a 40 foot cream shipping container on a property that was owned by Mr Kenefick at [the address] Plainland. Mr Singleton also deposited some other chattels: a Penta motor and a Penta leg outside of the 40-foot shipping container on Mr Kenefick’s land.
  5. [5]
    According to the pleadings in claim M77/20, Mr Singleton’s chattels included three traffic street lights and disco controls, a Mig welder, assorted tools, furniture, a small air compressor, four mag wheels and an aluminium fuel tank. It may be that the owner of the land, Mr Kenefick, was a bailee of Mr Singleton’s chattels, although that is far from clear on the evidence.
  6. [6]
    In his application for leave filed 8 January 2024 and in his outline of argument filed in April 2022 and in his written submissions filed 8 May 2024, Mr Singleton alleges that he had moved onto the property on 21 July 2015 as a tenant, however, Mr Singleton also alleged he was unaware of any enforcement order being undertaken by the Lockyer Valley Regional Council (“the council”).
  7. [7]
    The land was contained in the rural residential zone of the Laidley Shire Council Planning Scheme (“LSCPS”). Mr Kenefick had applied for and was granted development approval to build a house in March 2005. He did not do so and the development approval expired in March 2007. Mr Kenefick did not apply for any other development permits but did store building materials and other items including large quantities of scrap material, used tyres, and vehicles in various states of repair upon the property.
  8. [8]
    Several complaints had been received by the council as to the state of the land.  On 25 March 2015, the council issued Mr Kenefick with a show cause notice advising him that he was committing a developmental offence by contravening s 582 of the Sustainable Planning Act 2009 (“SPA”).
  9. [9]
    The notice required Mr Kenefick to show cause why an enforcement notice requiring him to refrain or remedy the offence should not be issued.  Mr Kenefick entered into correspondence with the council through several emails but did not show cause nor apply for developmental approval.
  10. [10]
    On 2 February 2016, council officers entered the premises under an authority of a warrant to enter and observed a large number of tyres, scrap metals, machinery, vehicles and other scrap materials still stored on the land.  On 26 February 2016, the council issued an enforcement notice requiring Mr Kenefick to cease using the land for the storage of tyres, scrap metals, machinery, vehicles, other scrap materials and other items described in the definition of a junk yard under the LSCPS.  Importantly, the enforcement notice issued under s 590(1) SPA required Mr Kenefick to:
  1. “2.
    Remedy the commission of the Offence against section 578 SPA by:
  1. a.
    Restoring the premises as far as practicable to the condition the land was in immediately before the unlawful development commenced within twenty (20) business days after the day this Enforcement Notice is given to you, including:
  1. i.
    The removal of all tyres, scrap metals, machinery, vehicles, other scrap materials and items described in the definition of a [“junk yard”] as defined in the [LSCPS] that are not associated with the rural residential use of the land.
  1. ii.
    Ceasing to store tyres, scrap metals, machinery, vehicles, other scrap materials and other items described in the definition of a [“junk yard”] as defined in the [LSCPS] that are not associated with the rural residential use of the land.”
  1. [11]
    Council officers inspected the property to check whether Mr Kenefick had complied with the enforcement notice on 2 June 2016.  On 27 June 2016, the council obtained a warrant to enter the land.  Finally, council issued a remedial action notice on 7 September 2016 requiring the works as set out in the above notice to be undertaken.  Mr Kenefick was also advised that a failure to comply with the notice would result in council undertaking the necessary work to remove the property stored on the premises at Mr Kenefick’s expense.  As that further notice was not complied with, council officers and contractors entered the land at [the address] Plainland on 25, 26, 28 October and 1 November 2016 and removed all chattels that were not associated with the rural residential use of the land.
  2. [12]
    Mr Kenefick and another owner of some other chattels, Mr Greg Williams, sued the council for the value of the chattels that they maintained were wrongly removed in the Magistrates Court action M2292/18.  In another Magistrates Court action M77/20 Mr Kenefick and Mr Singleton sued the council for the value of the chattels they allege were wrongfully removed.
  3. [13]
    Both claims proceeded to trial in the Magistrates Court on 23 September, 12 October and 9 November 2021.  Both of the claims were dismissed by the Magistrate on 12 April 2022.  Mr Kenefick and Mr Singleton appealed to the District Court with the appeal being dismissed on 21 December 2023.[2]
  4. [14]
    On 8 January 2024, Mr Singleton filed an application seeking leave to appeal the part of the decision in which it was ordered that:

“The owner of the property at [the address], Plainland Qld, Fail to comply with a enforcement order that was taken out on Steven Kenefick and ex defacto Sharon Engel. The inforcment order was taken out by Council in 2014 and in October 2016 Council entered the property to carry out work that was ordered in the enforcment order.”[3]

  1. [15]
    The notice of appeal and outline of argument then records under “Background”:

“Second Appellant Darrell Singleton had moved onto the property 21st July 2015 as a tenant and was not aware of any enforcment order. The personal property listed in the claim was put in a 40 foot cream shipping container that was on the botton section of the owners property under lock and key. Two other items a penta motor and a penta leg was on the top section of the property under cover. In the trial Magistrates court Ipswich the contractor Bryan Evens explain that he was in prossession of the Penta motor and that it can be picked up at anytime. The other remaining items of Darrell Singletons claim was not forth comimg.”[4]

  1. [16]
    The notice of appeal subject to leave then provides:
  1. “If leave is granted, the appeal will be on the grounds that:
  1. 1.
    That the second Appellant is not named in the inforcment order and isnt the owner of that land stated in the inforcment order.
  1. 2.
    That the items in the second Appllent claim is his own property that was brought onto the owners land and put in a container and locked after the enforcment order was taken out against the property owners and that presonal property would not be recognised as part of the order or seen by council at any time prior to the clean up October 2016.
  1. 3.
    On the hearing of the Appeal the Appellant will seek to adduce fresh evidence to the following effect: That new evidence from the property owner Edward Hampton of [neighbouring address] (Next door neighbour) has provided an Affidavit of where items where taken and who cut the padlock from the second Appllents stored items within the shipping container and sold off. EXHIBIT DWS1.
  1. 4.
    The Appellant seeks a hearing de novo of the proceedings the subject of the Appeal.”[5]

Grounds One and Two

  1. [17]
    As to the first and second proposed grounds of appeal, namely that Mr Singleton was not named in the enforcement order, is not the owner of the land stated in the enforcement order, but is the owner of certain chattels, these arguments have no prospect of success.
  2. [18]
    Firstly, as a matter of law, an applicant may only in exceptional circumstances raise on appeal matters not raised at trial.  An applicant would only be given such opportunity where the interests of justice required it, and such a course could be taken without prejudice to the other party.[6]  In this case prejudice may arise as the council may have brought evidence to challenge the factual basis of these new assertions.
  3. [19]
    Secondly, the complaint that Mr Singleton owned some of the chattels and was not named in the enforcement order misconceives the power of the council to remove property as set out in s 142(2)(b) of the Local Government Act 2009.  Section 142 provides:
  1. “142
    Entry by a local government worker, with reasonable entry notice, under a remedial notice
  1. (1)
    This section applies if—
  1. (a)
    a local government gives a remedial notice to the owner or the occupier of a property (the “responsible person”); and
  1. (b)
    the responsible person fails to take the action required under the remedial notice.
  1. (2)
    After giving a reasonable entry notice to the occupier of the property, a local government worker may—
  1. (a)
    enter the property (other than a home on the property) without the permission of the occupier; and
  1. (b)
    take the action that is required under the remedial notice.
  1. (3)
    However, the local government worker must, as soon as the local government worker enters the property—
  1. (a)
    inform any occupier of the property—
  1. (i)
    of the reason for entering the property; and
  1. (ii)
    that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and
  1. (b)
    produce his or her identity card for the occupier of the property to inspect.
  1. (4)
    The local government may recover the amount that the local government properly and reasonably incurs in taking the action as a debt payable by the person who failed to take the action.
  1. (5)
    Interest is payable on the debt at the same rate that interest is payable on overdue rates levied by the local government.
  1. (6)
    The local government must give the person who failed to take the action notice of the amount of the debt.
  1. (7)
    Subsection (8) applies if the person who failed to take the action is the owner of the property.
  1. (8)
    If the debt is not paid within 30 days after the date of the notice, the local government may recover the debt as if the debt were overdue rates.”
  1. [20]
    Section 142(2)(b) authorise a local government worker[7] to undertake the action that is required under a remedial notice.  As set out above [at 9], the action required under the remedial notice was to remove the chattels being tyres scrap metals, machinery, vehicles or other scrap materials and items described in the definition of the junk yard under the LSCPS that are not associated with the rural residential use of the land.  The intent of the legislation is to have the land put back to the use that was permitted, i.e. a rural residential use, and a local government worker has the lawful statutory authority to remove items as broadly defined to meet that purpose.  Under s 142(2)(b) it matters not who owns the chattels nor whether the owner of any specific chattel is named in the enforcement order, nor whether the chattel owner has notice of the enforcement order.  What is required to be shown is set out in s 142(1), namely the giving of a remedial notice to a responsible person (an owner or occupier of the property).  Property is defined to mean “land, any structure on the land, and a vehicle.”[8]  In this case as notice was served on the property owner Mr Kenefick, and Mr Kenefick did not take the action required under the remedial notice, the statutory power to take the action required under the remedial notice was engaged and the removal of the property was lawful.  Accordingly leave should not be granted on grounds one and two.

Ground Three

  1. [21]
    As to the proposed third ground, Mr Singleton seeks to rely on fresh evidence, being a recent affidavit of Edward Hampton.  In the appeal heard by the District Court, the first appellant to that appeal, Mr Kenefick had sought to have four affidavits admitted in that appeal, the third of which attached a seven paragraph affidavit of Mr Edward Hampton sworn 22 December 2022.  In this appeal, Mr Singleton seeks leave to have new evidence admitted from Edward Hampton, the owner of the adjacent property, [neighbouring address] Plainland, in another affidavit of Mr Hampton sworn 11 November 2023.  In his 11 November 2023 affidavit, Mr Hampton sets out his observations of chattels which were taken from Mr Kenefick’s property in 2016.  Mr Hampton swears he attended Mr Kenefick’s property on the second day that the council contractor Brian Evens was removing items and Mr Kenefick purchased from Mr Evens, Mr Singletons’ air compressor for $50 and roofing iron and U-shaped capping for $400.
  2. [22]
    Rule 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) provides:
  1. “766
    General powers
  1. (1)
    The Court of Appeal—
  1. […]
  1. (c)
    may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and…”
  1. [23]
    Rule 766(2) provides:
  1. “(2)
    For subrule (1)(c), further evidence may be given without special leave, unless the appeal is from a final judgment, and in any case as to matters that have happened after the date of the decision appealed against.”
  1. [24]
    As the appeal is from a final judgment and the fresh evidence sought to be adduced does not relate to matters that have happened after the date of judgment, r 766(1)(c) is engaged and Mr Singleton is required to show special grounds in order to have the further evidence received.
  2. [25]
    In Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 137, Thomas J (with whom Shepherdson and Williams JJ agreed) said:

“It is of primary importance to note that the power of the Court of Appeal to receive further evidence upon questions of fact is discretionary. This is so whether or not it is a case that additionally requires “special leave” or “special grounds”… The usual considerations that apply to the admission on appeal of evidence of events occurring before trial are summarised in Fredericks v May (1973) 47 ALJR 362, 368 and Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. The reception is discretionary, but the usual requirements are now well identified.”

  1. [26]
    In Clarke v Japan Machines, Thomas J, with whom Campbell CJ and Andrews SPJ agreed, said at 408:

“The classic statement of what amounts to “special grounds” for reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v. Danby [1982] 3 All E.R. 129 at 137–138. Three conditions must be fulfilled. ‘First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’”

  1. [27]
    Assuming in Mr Singleton’s favour, the second and third factors, it is plain that Mr Singleton had made no attempt to show that the evidence he seeks to adduce from Mr Hampton could not have been obtained with reasonable diligence for use at the trial.  Mr Singleton’s application to adduce further evidence therefore has no prospect of success.

Ground Four

  1. [28]
    Similarly, the proposed ground four which simply seeks “a hearing de novo” has no prospect of success.  Indeed it is not even a ground of appeal.
  2. [29]
    In addition to the introductory paragraph and the background paragraph as set out above, the applicant’s outline of argument states the following six points:
  1. “1.
    Page 3 Paragragh 3 The proceedings
  1. Darrell Singletons Claim item small air compressor (second appellant)
  1. 2.
    Page 23 Paragragh [119] (a) The Magistrates references to the items claimed. Owners were given the opportunitie to collect this property.
  1. ARGUMENT
  1. 3.
    The property that Judge [McGinness] refers to Page 23 Paragragh [119] (a) are the claim items of Page 24 Paragragh [126]Volvo Penta motor [127]Disco lights.
  1. 4.
    The other claim item small air compressor. Page 3 Paragragh 3 is not part of the opportunitie to collect and as it wasnt in Mr Evans evidences at trial as ever mention as seen on the property nor any tools.
  1. WITNESS
  1. 5.
    The neighbour of [neighbouring address] Plainland at the time of the clean up Mr Edward Hampton has provide an affidavit (Filed with appeal appication) that he had brought items from Mr Evans from [the address] Plainland and one item the small air compressor as being the second appellants.
  1. 6.
    Mr Hampton had confirm that other claimed items (THE TOOLS) where also seen by the witness and was offered by Mr Evans for sale.”[9]
  1. [30]
    It is difficult to discern what Mr Singleton seeks to argue.  He presumably seeks to argue that the judgment is factually incorrect because he did not have the opportunity to collect some of his items.  If that is so, that is a matter of fact which was not raised before Judge McGinness, nor acting Magistrate Turra.  The evidence to support the argument in paragraphs 3 and 4 appears to be based on paragraphs 5 and 6 which, in turn, are based on Mr Hampton’s affidavit sworn 11 November 2023.  As discussed above at [19] to [25], Mr Hampton’s new affidavit cannot be admitted into evidence on appeal.  Mr Singleton’s written submission filed 8 May 2024 contains 10 paragraphs which raise the same matters as his outline of argument and notice of appeal.
  2. [31]
    Accordingly, there is no reasonable argument that there is an error to be corrected and it is inappropriate to grant leave to appeal in respect of the points raised in the outline of argument and written submissions.
  3. [32]
    I would order that the application for leave be dismissed with costs.
  4. [33]
    CROWLEY J:  I agree with Crow J.

Footnotes

[1] Commissioner of Police v Antoniolli [2021] QCA 237 at [105]–[115] where Bond JA (with whom Flanagan J agreed) listed two alternatives to (b).  Firstly that the proposed appeal raises an important point of law or principle or secondly the proposed appeal raises a question of general or public importance.  These alternatives are not argued in this case.

[2] Kenefick v Lockyer Valley Regional Council [2023] QDC 249.

[3]  Errors kept from original.

[4] Ibid.

[5]  Errors kept from original.

[6] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497-498 per Mason CJ, Wilson, Brennan and Dawson JJ.  In Ross v Leach [2014] QCA 126 at [29], the principle was described as “well established”.

[7]  Defined in s 138(1)(a) to include an employee or agent of the local government.

[8]  Defined in Schedule 4 of the Local Government Act 2009 (Qld).

[9]  Errors kept from original.

Close

Editorial Notes

  • Published Case Name:

    Singleton v Lockyer Valley Regional Council

  • Shortened Case Name:

    Singleton v Lockyer Valley Regional Council

  • MNC:

    [2024] QCA 103

  • Court:

    QCA

  • Judge(s):

    Boddice JA, Crow J, Crowley J

  • Date:

    31 May 2024

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMC2292/18, MC77/20 (No citation)12 Apr 2022Proceedings against Lockyer Valley Regional Council alleging wrongful removal from land of chattels not associated with permitted use of land; claims dismissed.
Primary Judgment[2023] QDC 24921 Dec 2023Appeals dismissed: McGinness DCJ.
Appeal Determined (QCA)[2024] QCA 10331 May 2024Application for leave to appeal dismissed: Crow J (Boddice JA and Crowley J agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Commissioner of Police v Antoniolli [2021] QCA 237
2 citations
Jump To
Cite 1 - [2021] QCA 237
Cite 2 - [2021] QCA 237
Fredericks v May (1973) 47 ALJR 362
1 citation
Jump To
Cite 1 - (1973) 47 ALJR 362
Hawkins v Pender Bros Pty Ltd[1990] 1 Qd R 135; [1989] QSCFC 41
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 135
Cite 2 - [1990] 1 Qd R 135
Kenefick v Lockyer Valley Regional Council [2023] QDC 249
3 citations
Jump To
Cite 1 - [2023] QDC 249
Cite 2 - [2023] QDC 249
Cite 3 - [2023] QDC 249
Langdale v Danby (1982) 3 All. E.R. 129
1 citation
Jump To
Cite 1 - (1982) 3 All. E.R. 129
Ross v Leach [2014] QCA 126
1 citation
Jump To
Cite 1 - [2014] QCA 126
Water Board v Moustakas (1988) 180 CLR 491
2 citations
Jump To
Cite 1 - (1988) 180 CLR 491
Cite 2 - (1988) 180 CLR 491
Water Board v Moustakas [1988] HCA 12
2 citations
Jump To
Cite 1 - [1988] HCA 12
Cite 2 - [1988] HCA 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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