Logan City Council v Jones[2016] QPEC 60

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

1. [1]
   This is an application to punish the first and second respondents for contempt. The relevant contempt is constituted by a contravention of orders made by his Honour Judge Everson on the 21st of November 2014 in respect of the use of and buildings situated upon, the respondents’ property at Jimboomba that is an acreage property.

2. [2]
   By proceedings which were commenced in this Court on the 7th of October 2014, the Council sought declarations and orders with respect to an extension of a house (building 1) and a number of other buildings, as well as a shed and a number of shipping containers on the property which were said to be unlawful, and the use of the land as a caravan/relocatable home park and a low impact/service industry. Ultimately, the parties reached agreement in relation to the order which would be made in that proceeding. That led to orders made by consent on the 21st of November 2014. Those orders required the respondents not to carry out or permit to be carried out, any new assessable building work without obtaining the relevant permit and also required them to remove or demolish certain buildings and an extension to building 1, to decommission and remove plumbing and drainage work associated with the buildings to be removed, to obtain relevant development permits in respect of remaining buildings or structures on the land and to cease the unlawful uses.

3. [3]
   The order set timeframes within which those obligations were required to be performed. It was common ground that there were contraventions of that order. Those contraventions resulted in the subject application for contempt, which was filed on the 27th of November 2015. The grounds made allegations to the effect that, although some work had been done pursuant to the earlier orders, the orders remained substantially not complied with.

4. [4]
   On the same day the Council commenced another proceeding, by way of originating application, seeking further orders from the Court to require the respondents to remedy the contraventions. That ultimately led to an order of this Court of the 5th of May 2016 which varied the orders made by the Court on the 21st of November 2014 so as to, in effect, set a new timetable for the property to be brought back into compliance. That order was made by consent and, as is recorded in the draft order, the respondents at that time admitted the facts as asserted against them in the originating application, save that they said that they had removed a further building and removed some plumbing and drainage work in relation to another.

5. [5]
   The contempt proceeding was also before the Court on that day but was adjourned to today so that, in dealing with the contempt constituted by a contravention of the order of the 21st of November 2014, the Court could be appraised of whether the respondents had ultimately brought their property into compliance, albeit on the amended timetable.

6. [6]
   The material before me and the facts which the respondents informed me of from the bar table, without objection from the applicant, demonstrate that the order of the 5th of May 2016 was substantially complied with and that, indeed, as things currently stand there is only one outstanding matter. That relates to an extension to the house, being building 1.

7. [7]
   The other matters of non-compliance with the order of 5 May 2016 related to the removal of three shipping containers. The respondents had sought and obtained approval from the Council to keep two of them, on the basis that they were relocated onto some concrete pads, but they were unable to finance that and so ultimately they had to dispose of those two, plus the third shipping container. It then took some little time to identify people to come and take those containers away, but they are now gone.

8. [8]
   It should be noted that, insofar as the contempt proceeding is concerned, I am dealing with the respondents for their contravention of the earlier order of the Court of November 2014. I am not dealing with them for any development offences per se. That is, I am not dealing with them for having used their land unlawfully, which was the trigger for the orders being made. I am simply dealing with them for having failed to comply with the Court orders.

9. [9]
   Further, whilst I have recorded that there was an element of non-compliance with the Court orders of the 5th of May 2016, I am not dealing with them for any contempt in relation to those orders, no such application for contempt having been made. The relevance of the 5th of May 2016 orders and the extent of compliance with them is that it demonstrates the efforts the respondents have gone to in order to purge their contempt and to bring their property back to a compliant state.

10. [10]
    The power of the Court to deal with persons for contempt stems from section 439 of the Sustainable Planning Act, which provides that a judge of the Court has the same power to punish a person for contempt as the judge has to punish a person for contempt of the District Court. It further provides that section 129 of the District Court of Queensland Act applies in the same way as it applies to the District Court. Section 129 of the District Court of Queensland Act relevantly gives a judge the same power to punish for contempt as a Supreme Court judge would, if the contempt were a contempt of the Supreme Court. The Supreme of Queensland Act provides for the making of rules of Court. Punishment for contempt is dealt with in rule 930 of the Uniform Civil Procedure Rules.

11. [11]
    In the case of an individual the Court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992. The punishment can be made on conditions. The Penalties and Sentences Act provides a wide variety of sentencing options.

12. [12]
    It was submitted on behalf of the Council that the offence here constituted by the contempt is one of some seriousness. It involved a very substantial degree of non-compliance with a Court order that the respondents not only knew about, but had consented to.

13. [13]
    It was said that there was a commercial element to the unlawful conduct because one of the unlawful uses involved the selling of automotive parts and automobiles and another involved obtaining some rent. However, it does not seem to me that the scale of the operations from a commercial perspective was terribly large.

14. [14]
    There was really no good excuse for failing to comply with the orders of the Court from November. In the course of proceedings today the first respondent explained himself by reference to the fact that he did not have the funds to obtain legal advice and had instead been listening to some errant advice from non-lawyers who gave him the misconception that the orders of the Court either were not legally valid or could somehow be challenged or ignored.

15. [15]
    Obviously the Court cannot stand by and allow people to thumb their noses at Court orders and the Court needs to deal with non-compliances in a way which not only deters future non-compliance by the people at hand, but which also serves to provide some general deterrent to others not complying with Court orders. It was submitted, on behalf of the applicant, that a substantial fine would be in order in respect of the respondents, and that is an understandable submission to make.

16. [16]
    There are some particular features of this matter which also need to be considered. I have already mentioned the fact that the Court orders were made by consent. Although they were not complied with, it must be said that at least since the 5th of May 2016, the respondents appear to have come to their senses, as it were, and realise the gravity of Court orders and appear to have recognised the need to comply with them and appear to have been proceeding conscientiously to try to purge their contempt, by bringing the property back into a state of compliance.

17. [17]
    The respondents, on the 5th of May did not try to contest the non-compliance. Subject to the qualification which I have already acknowledged, they admitted their contempt and they consented to orders being made setting a timetable for them to bring the property back to compliance. The affidavit material shows that they took conscientious efforts, after that, in order to comply with the order from May of this year. They have explained the non-compliance in relation to the containers. There is, as I have already noted, only one area of non-compliance which remains and that relates to an extension of the house.

18. [18]
    The house, quite lawfully, had a roof which extended beyond the house proper in order to provide a carport. The respondents had, however, at some stage, built bearers and joists above ground level to provide a surface, level with the floor of the house, underneath the roof of the carport and above the ground. They had also extended that out to beyond the area which was roofed. The order of May 2016 required them to demolish that work to the extent that it exceeded 10 square metres. The evidence shows that they did remove that part of the work which extended beyond the end of the roof line, but left in place the bearers and joists situated below the roof of the carport. Their explanation was that they thought that that was compliant, because they thought that that brought the work within the 10 square metres.

19. [19]
    The affidavit material upon which the council relies deposes to that area being in excess of 10 square metres. The respondents, at the hearing today, did not wish to contest that or, indeed, anything else in the affidavit material which the applicant relied upon. They say that, to the extent that they remained in possession of the house, they are prepared to take steps to remove those bearers and joists.

20. [20]
    The fact that the respondents have, since May 2016, repented of their ways and made conscientious endeavours to purge their contempt is, in my view, highly relevant to the exercise of the sentencing discretion.

21. [21]
    It is, of course, also relevant to have regard to the personal circumstances of the respondents. They are people of modest means who find themselves in some financial difficulty. The first respondent is an undischarged bankrupt who is on a disability pension and who suffers from depression, which makes dealing with matters somewhat difficult from his perspective. The second respondent is his carer. They are in financial difficulties. They are in default to the mortgagee with respect to the subject property and are in a position where they are under threat of imminent eviction from that property, in order for the financier to take possession.

22. [22]
    In the circumstances, it seems to me that imposing a substantial fine upon them is not a particularly attractive sentencing option, given that they seem to not have the capacity to make payment. Further, given the attitude which they have taken to the matter, at least since May, and given the concrete steps they have taken to demonstrate that change of attitude and given the contrition which they have expressed today, it seems to me that they are a low risk of contravention in the future either at this property - which they may not be at for very much longer - or more generally. Further, whilst general deterrence is of some significance ordinarily, I do not think that placing a substantial fine upon people of modest means, in financial trouble and the subject of mental health issues, is an appropriate way to pursue general deterrence.

23. [23]
    To their credit, the respondents understand that what they did was wrong and they stand ready to be punished accordingly. Although they frankly said that they have no way of paying a substantial fine, the first respondent volunteered, for example, that they could perhaps undertake some community service. Such an offer simply reinforces what I accept to be the genuineness of their change of heart, their contrition and their readiness to make good for their past failings.

24. [24]
    In the particular circumstances of this case and having regard to the position in which the respondents find themselves, I am minded to deal with the matter differently, that is, to deal with the matter by way of releasing them upon them entering into a recognisance, without sureties, in the amount of $1000 on the condition that they appear, if required, at a future sittings of the court during the period of the recognisance and that they must, in the meantime, keep the peace and be of good behaviour and subject to an additional condition in relation to the outstanding matter of non-compliance, to which I will return to in a moment.

25. [25]
    The effect of such an order is that, although it is set in the amount of $1000, it does not require you to pay any amount of money straight away. The consequence is that if, during the period of the order, you do not comply with the terms of the order, then the court may forfeit the recognisance, that is, require you to pay the money, or you can be arrested and brought before the court to be sentenced for this offence or to make another order as if you had not been given the recognisance to start with. So, in other words, I set a period – which, in your case, will be two years – and during that two year period you will have to keep the peace, be of good behaviour, appear again in the court if you are required to do so and comply with a condition which I will discuss in a moment concerning that outstanding work. And if you do not do that, you may be required to pay the money or you may be brought back to court to be sentenced again, as if you had not been released on recognisance, and that can be subject to any penalty that I decide.

26. [26]
    Insofar as the condition is concerned, what I have in my mind is this: that there be a condition effectively along these lines that if you remain in possession of the property that you complete that last remaining bit of work within a certain amount of time.

27. [27]
    Under the Penalties and Sentence Act I am not supposed to make this kind of order unless I am satisfied that this is not an appropriate case for probation and, in my view, it is not an appropriate case for probation given the circumstances.

28. [28]
    I will, instead of any other sentence, release each of you upon you entering into a recognisance in the amount of $1000 on the condition that you must appear before a court, if called upon to do so, within the period of the order, which is two years. You must, in the meantime, keep the peace and be of good behaviour and if you remain in possession of the property you are to demolish the area of joists and bearers which form the eastern extension of building 1 underneath the roof and you have to do that within two weeks. I will not record convictions.