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- Unreported Judgment
Logan City Council v Whelan QPEC 23
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Logan City Council v Whelan  QPEC 23
LOGAN CITY COUNCIL
WHELAN, THOMAS VINCENT
WHELAN, AMANDA JANE
WHELAN PLANT HIRE QLD PTY LIMITED
19 May 2015 (Delivered ex tempore)
19 May 2015
PLANNING AND ENVIRONMENT – CONTEMPT – where non-compliance with orders – where parties handed up a draft consent order which set the punishment for contempt – punishment for contempt a matter for the court, rather than consent agreement.
NJ Kefford for the applicant
S Keliher for the respondent
Minter Ellison for the applicant
Milne Legal for the first and third respondents
- HIS HONOUR: This is an application to deal with the first and third respondents for contempt. The contempt is said to arise from non-compliance with an enforcement order made by his Honour Judge Jones on the 26th of February 2014. That order was directed to at least three things: the first is a demountable building which was on a certain property, but which did not have approval; the second is a hangar building and some fill, which again was present on the property, but without approval; and the third was an unlawful use of premises for heavy vehicle parking. The orders, in effect, required the respondents to either obtain approvals regularising each of those components, or to cease the unlawful use and remove the offending buildings and fill. The order set out a timetable for achieving that.
- The respondents admit that they did not either cease the use or remove the buildings or fill within the time specified in his Honour’s order and they admit that they are in contempt. The only remaining issue is what punishment they should receive for that contempt.
- When the matter first came before me yesterday, I was handed a draft order, which would have fined the respondents for contempt in nominated amounts. The parties indicated their agreement to punishment by fines in the amounts stated in the draft order. Apparently, their agreement followed some mediation, as a result of which there was also agreement to new enforcement orders, to which I will return a little later in these remarks.
- Upon being given the draft order, I indicated to the parties my preliminary view: that punishment for contempt was a matter for the court and not a matter of consent or agreement between the parties. Further, I expressed the preliminary view that by parity of reasoning with Barbaro v R (2014) 88 ALJR 372, a statement of the appropriate punishment by the applicant is not something which should be taken into account by the court. Rather, the parties ought place before the court the relevant facts, make submissions about the appropriate considerations, draw the court’s attention to any comparable cases which may guide the court, and point to any similarities or differences between those cases and the present, so as to put the court in a position to make its own determination as to the appropriate punishment for contempt. Having indicated that preliminary view, I adjourned the matter to today. The legal representatives for the parties have today accepted that the court should proceed in accordance with the preliminary view that I expressed yesterday.
- In determining the appropriate punishment for contempt, I have been mindful that the respondents have ultimately accepted the fact of the contempt without requiring any hearing or determination. I also accept that some steps towards compliance were made during the timeframe allowed for in Judge Jones. I also accept that since these proceedings have been on foot, further steps have now been taken.
- The affidavit material shows that, following the making of the orders by Judge Jones, the first respondent maintained some contact with the council in relation to attempts to regularise matters. In particular, on the 24th of April 2014 he rang the relevant officer in the council to advise of progress in relation to the buildings, the fill and also the parking of heavy vehicles. In short, he explained that he had taken professional advice in relation to a possible application to regularise the heavy vehicle parking use, but that the cost of such an application, balanced with its prospects of success, dissuaded him from making that application. Instead, he was seeking to find an alternative property to which the vehicles could be moved.
- Insofar as the demountable building is concerned, he advised that he was struggling to find a certifier who would assist. He was unsure, at that stage, about what he could do in relation to the earthworks, as he claimed not to be a position to be able to remove the earthworks, and he was not sure about obtaining an approval for them. He asked about the costs of making an application for approval of the earthworks, and was referred to the appropriate section of the council for advice in that regard.
- Following that contact, there was a further exchange of information between the council and the first respondent in relation to possible alternative properties for the heavy vehicle parking. On the 26th of May, which coincided with the deadline set by the order of his Honour Judge Jones for dealing with the heavy vehicle use, the council’s officer received a telephone call from a town planning consultant who had been engaged by the first respondent. The town planning consultant confirmed that he had advised the first respondent against making an application to authorise the truck heavy vehicle use because of the poor prospects of such an application, but advised that the first respondent had relocated his trucks to another industrial site. He also advised that steps were in place to engage a design engineer and certifier in relation to the demountable building, and that an operational works application in relation to the fill would also be prepared.
- Mr Whelan’s affidavit deposes that after moving the heavy vehicles to the alternative site, they were vandalised in July, as a consequence of which he felt he had no choice but to temporarily bring them back to the site. As soon as he did so, he again rang the relevant officer of the council. That call took place on the 14th of July 2014. He volunteered that the council would probably be receiving a complaint shortly in relation to the trucks and industrial equipment that he was bringing back to the land because of the vandalism.
- It seems that by this stage he was, perhaps, as a matter of frustration, beginning to adopt a more belligerent attitude in relation to the court’s orders. The affidavit material of the relevant council officer deposes that in the telephone conversation, the first respondent said he was going to permanently relocate the trucks back to the land and that the council could not do anything about it. The council officer at the time reminded him of the enforcement order. Evidence of the belligerence he was showing at that stage can also be seen in the record of an interview which happened at the premises in December of that year.
- In the meantime, in November, the first respondent had been through a property settlement with his now former wife, pursuant to which the property in question was transferred to an entity which held it on trust. I accept that that property transaction was not done with the purpose of avoiding the court order, but the first respondent, perhaps again out of frustration, decided to seize upon it in order to try to claim that he was now beyond the requirements of the court order.
- The application for the first and third respondents to be dealt with for contempt was filed in March of this year. Thankfully, the respondents seem then to have obtained appropriate advice, and appear to have reverted to a position which is accepting of the obligations upon them, and have acted accordingly.
- In that regard, the heavy vehicles have now been moved to another site, which is a site with a better zoning, which affords a greater prospect of it being able to be used lawfully. The council accepts that the heavy vehicle use of the site has now stopped.
- Insofar as each of the elements are concerned, the respondents have consented to new enforcement orders, which put in place a new timetable for unlawful activity to cease. That new timetable permits a sufficient time to allow the respondents to regularise things, if they are able. In that regard, whilst they will not be seeking to regularise the heavy vehicle use, they will be seeking to regularise the balance. I was informed that an application for operational works approval, in order to regularise the fill, has now been lodged, and, further, in relation to the buildings, that a private certifier has been engaged and is waiting on the advice of a structural engineer before that can be progressed. The council has confirmed it has received notification of the engagement of a private certifier.
- Accordingly, this seems to be a case where the respondents, having been ordered to do things within a certain timeframe, and having initially intended to perform, found themselves in a situation where they felt they could not perform on time, and, ultimately, got to a point where an element of frustration crept in, leading to inappropriate defiance and, to some degree, an attempt at obfuscation. Whilst that aspect of their behaviour is concerning, it must be seen in light of the subsequent conduct, in accepting the error of their ways, in admitting to their contempt, in agreeing to new enforcement orders, taking steps to cease the unlawful use in relation to heavy vehicle use, and in taking concrete steps towards regularising the balance of the development in accordance with the new orders, to which they have consented.
- In seeking to identify an appropriate sanction for the contempt, counsel for the applicant council helpfully referred me to a number of things. One matter brought to my attention was the level of fines that can be imposed for a failure to comply with an enforcement notice. Relevantly, the fines which could be issued by way of a notice would be 20 penalty units for individuals and 100 penalty units for corporations, which I was informed calculates to $2777 for individuals and $11,385 for corporations.
- All other things being equal, one would expect that the punishment for contempt of a court order might be higher than would apply to a fine administratively issued. However, I have had regard to the matters to which I have already referred in relation to the respondent’s conduct, both leading up to the contempt and, importantly, of more recent times, once proceedings were instituted for them to be punished for contempt.
- I was referred to some other decisions of this court when dealing with contempt matters. In particular, I was referred to the decision of Bundaberg Regional Council v Lammi and Another (2014) QPEC 52, and to Gold Coast City Council v Christophi QPEC 62. The case of Lammi, helpfully, refers to some other cases. The various similarities and differences between this case and those cases was canvassed in the course of submissions, and it is unnecessary for me to repeat all of what was discussed.
- The respondents in Lammi were jointly fined $5000 for contempt. Mr Lammi was described, in the reasons, as having had little understanding of the true nature of the order with which he had subsequently been in contempt. I do not accept that Mr Whelan can be described in the same way, but, on the other hand, Mr Whelan has done more, both before and since, to comply with the order than did the respondents in Lammi. Mr Christophi was fined $5000 for contempt. As the council accepts, Mr Whelan’s conduct, although concerning, was not as cavalier as in the case of Mr Christophi.
- In the circumstances, I have come to the conclusion that it would be appropriate to punish the first respondent by a fine of $2500, and the third respondent by a fine of $12,000, in relation to contempt in this matter. That does happen to coincide with the draft order that was presented to me yesterday. However, as I made it clear, my conclusion has been reached as a result of a review of the facts and circumstances of the case, and the relevant matters to which I was taken, and has not been influenced by the fact that those amounts were what was contended for by the council.
- Accordingly, I make an order as per draft, initialled by me, placed with the papers.
- Published Case Name:
Logan City Council v Whelan
- Shortened Case Name:
Logan City Council v Whelan
 QPEC 23
19 May 2015