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Sunshine Coast Regional Council v Dwyer[2021] QPEC 53

Sunshine Coast Regional Council v Dwyer[2021] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Dwyer [2021] QPEC 53

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant/respondent)

v

WAYNE GEOFFREY DWYER

(second respondent/applicant)

and

VICKI DWYER

(first respondent/applicant)

FILE NO:

2388/19

PROCEEDING:

Applications in pending proceeding

DELIVERED ON:

15 October 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

1 October 2021, further written submissions on 8 October 2021, 15 October 2021

JUDGE:

Cash QC DCJ

ORDERS:

  1. The respondents’ application filed on 24 September 2021 is dismissed;
  2. I am satisfied, beyond reasonable doubt, that the second respondent is in contempt of the enforcement order made on 10 November 2020;
  3. I will hear from the parties as to penalty and any further orders.

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made in the Planning and Environment Court – where the order required the removal or demolition of rooftop structures – where the order required the rooftop to be restored to an earlier condition – whether and to what extent the respondent has not complied with the enforcement order – whether the respondent had a lawful excuse – whether the respondent is in contempt of the enforcement order

PLANNING AND ENVIRONMENT – PROCEDURE – ORDERS – VARYING AND STAYING – EXTENSION OF TIME TO COMPLY – where an enforcement order was made in the Planning and Environment Court – where there has not been compliance with the whole of the order – where there is a pending development application for the approval of some of the structures the subject of the enforcement order – whether the order should be varied to defer or delay its effect

LEGISLATION:

Building Act 1975 (Qld), s 20, s 21, Schedule 2

Building Regulation 2006 (Qld), r 4, Schedule 1, Schedule 2

District Court of Queensland Act 1967 (Qld), s 129

Planning Act 2016 (Qld), s 43, s 44, s 45, s 60, s 163, s 180, Schedule 2

Planning and Environment Court Act 2016 (Qld), s 36

Planning Regulation 2017 (Qld), r 18, Schedule 7

Sunshine Coast Planning Scheme 2014

Uniform Civil Procedure Rules 1999 (Qld), r 930, r 931

CASES:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106

Dubois v Rockhampton Regional Council [2014] QCA 215; (2014) 203 LGERA 117; [2015] QPELR 77, [72]-[76]

The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor [2020] QPEC 28; [2021] QPELR 337, [33]

COUNSEL:

K Wylie for the applicant

J Dillon for the respondents

SOLICITORS:

McInnes Wilson Lawyers for the applicant

Spire Law for the respondent

The proceeding

  1. [1]
    Wayne Dwyer is a self-described retired builder. He lives in a large house on land at 5 Minyama Island, Minyama.[1] Mr Dwyer’s wife, Vicki Dwyer, is the registered owner of the land. In early 2019 Mr Dwyer built a tennis court on the roof of the house. The tennis court was surrounded by a perimeter fence that could be mechanically raised and lowered, with attached lighting fixtures. Mr Dwyer also built a lift to allow access to the roof from the house, and a partially enclosed structure surrounding the lift on the roof. He did not have permission to build these things. As a result, an enforcement order was made by the Planning and Environment Court (P&E Court) on 10 November 2020. The order required the removal or demolition of the structures by 10 February 2021. The applicant, the Sunshine Coast Regional Council, alleges Mr Dwyer has not complied with the enforcement order and seeks a finding that he is in contempt.
  2. [2]
    Mr Dwyer has recently made his own application to vary the enforcement order. His wife, who was a respondent in the enforcement proceeding and is also subject to the enforcement order, joins him in this application.[2] They say they have satisfied parts of the order and want to extend the time to comply with the balance. The application is made because Mr Dwyer has also applied to the Council for approval of some of the structures that remain on the roof. This development application is yet to be decided by the Council.
  3. [3]
    For the reasons that follow I am satisfied, beyond reasonable doubt, that Mr Dwyer is in contempt of the enforcement order and that the respondents’ application should be dismissed.

The enforcement proceeding and order of 10 November 2020

  1. [4]
    As early as January 2019 the applicant was aware of the works being done by Mr Dwyer. Ms Popple, a Building Compliance Officer employed by the applicant, attended the property, and saw what appeared to be the construction of the lift.[3] In the months that followed, the applicant investigated the works and spoke with Mr Dwyer. Some works had been purportedly approved by a private building certifier in February 2019, but it is not in dispute that the works as carried out considerably exceeded what was approved by this certifier. After various inspections of the property and discussions with the respondent, the applicant gave an enforcement notice in May 2019.[4] The respondent and his wife lodged a development application seeking approval for the works. The application was refused by the applicant in September 2019. The respondent and his wife appealed against this refusal to the P&E Court. In the meantime, in July 2019, the applicant commenced this proceeding seeking declarations and enforcement orders (the enforcement proceeding). Interim enforcement orders were made by Judge RS Jones on 22 July 2019.[5] For obvious reasons, the appeal against the refusal of the development application was decided first. On 9 September 2020, Judge Long SC dismissed the appeal and confirmed the decision of the applicant to refuse the development application.[6]
  2. [5]
    The enforcement proceeding continued and was listed for hearing before me in November 2020. Shortly before the commencement of the hearing the parties reached agreement. I made final orders, effectively by consent, on 10 November 2020. In these orders the court declared that the works were assessable development and were carried out without all necessary permits. This constituted a development offence contrary to section 163 of the Planning Act 2016 (Qld) (PA). Pursuant to section 180 of the PA, an enforcement order binding the first and second respondents was made requiring the works be removed or demolished and the rooftop area be put into a state that complied with the building approval given by the certifier on 7 February 2019. This was to be done by 10 February 2021.
  3. [6]
    The enforcement order, so far as is presently relevant, was in the terms set out below.
  1. Pursuant to s. 11(1)(a) of the Planning and Environment Court Act 2016 (Qld) (P&E Court Act), it is declared that in or about the period between January 2019 to July 2019, the First, Second and Third Respondents carried out assessable development, namely building work, on land located at 5 Minyama Island, Minyama, in the State of Queensland, more particularly described as Lot 18 on RP838132 (Premises), by constructing on the rooftop of the dwelling house at the Premises (Rooftop Area) a perimeter fence or parapet, equipment including lighting, a roofed and partially walled structure, a set of stairs to the top of the partially walled structure, a lift to give access to the rooftop, and a separate set of stairs from the second floor of the dwelling to the Rooftop Area (Rooftop Work), without all necessary development permits contrary to s. 163(1) of the Planning Act 2016 (Qld) (Planning Act).
  1. Pursuant to s. 180(3) of the Planning Act, by 10 February 2021, the First and Second Respondents, by themselves, their servants or agents:
  1. (a)
    remove or demolish the Rooftop Work; and
  1. (b)
    restore the Rooftop Area to a state that complies with the building approval given by Mr Neller of Noosa Building Certifiers dated 7 February 2019.
  1. [7]
    Mr Neller’s approval gave permission for building works in accordance with the plans attached to the approval.[7] Compared to what was built, the plans were quite modest. They allowed for a new roof to be constructed over the existing one, but contained no reference to a lift, stairs, lighting, a perimeter fence, or any other structure on the roof. The approval was also subject to conditions. These included a condition that ‘[t]he maximum height of the structure is not to exceed the height limits … In this instance the maximum height shall not exceed 8.5m above natural ground level’. Another condition required the submission of a further application for approval if there was any proposed alteration or modification of the plans or specifications the subject of the building approval.

Evidence in the present applications

  1. [8]
    The applicant relied upon the affidavit of Damien Frey.[8] Mr Frey is an employee of the applicant whose duties include ensuring compliance with planning provisions. He is familiar with the proceeding and had seen the property in September 2020 before the enforcement order was made. On 19 February 2021 (about a week after the respondent was to have complied with the enforcement order) Mr Frey observed the property. He saw that the fence was still present, although parts had been covered, replaced, or wrapped in black mesh material. The partially enclosed structure near the lift (the lift overrun structure) remained, as did the stairs leading to the roof of this structure. The lift and stairs from the second floor to the roof also remained in place.
  2. [9]
    On 2 March 2021 Mr Frey attended the property for a formal inspection. On this occasion he observed things were in much the same state. After accessing the rooftop deck, Mr Frey could also see floodlights affixed to the partially enclosed structure near the lift, but lights had been removed from the fence panels. The modified perimeter fence was in the horizontal position, projecting out from the sides of the rooftop.
  3. [10]
    The respondent filed his own affidavit.[9] He said he has removed the perimeter fence by removing the glass panels and chain mesh, cutting the fence panels and posts down to two metres, covering the cut-down panels with shade cloth and putting the altered structure into the horizontal position so that it extends out from the rooftop (the ‘shade structure’). A section of the perimeter fence has been retained as it forms part of the lift overrun structure. Mr Dwyer said he repurposed the perimeter fence to provide shade and protection from hail damage. He considered the new structure to be accepted development which does not require approval, though he deposed that he expected a company in Caloundra to provide an approval ‘shortly’. Mr Dwyer deposed that he removed lighting fixtures from the perimeter fence posts and that ‘no permanent external lighting remains on the rooftop area’. This seems inconsistent with the photos and observations of Mr Frey who described lights affixed to the lift overrun structure. In July 2021 Mr Dwyer removed the treads and other parts of the stairs to the top of the lift overrun structure and those from the second floor to the rooftop. He has not demolished or removed the lift, or the lift overrun structure. Apart from this, Mr Dwyer believes the rooftop area has ‘generally been restored to a state that complies with the building approval’ given in February 2019.
  4. [11]
    Mr Dwyer set out the steps he has taken to make a development application to approve the lift overrun structure. Approval for this structure is necessary because it exceeds the relevant height limit of 8.5 metres above ground level. In November 2020, about the time the enforcement order was made, he engaged Mr Pinese, a town planner. It emerged in Mr Dwyer’s cross-examination that it was within a week or so of the enforcement order being made that he decided not to remove the lift overrun structure and instead attempt to have it approved.[10]  Mr Pinese inspected the premises and the proposed rooftop structure. On 25 November 2020 Mr Pinese sent an email to Mr Dwyer. In his affidavit, Mr Dwyer described the email in these terms[11]

In this email, Mr Pinese advised that:

  1. he reviewed the planning scheme and proposed rooftop;
  2. a new flood search should be obtained;
  3. the new flood search will confirm whether the 8.5m height limit is based on the applicable flood hazard level; and
  4. once the flood level and building height is confirmed to let him know and he will review further.
  1. [12]
    A copy of the actual email was exhibited to Mr Dwyer’s affidavit.[12] Mr Dwyer’s summary of the email in his affidavit left out a significant part. Mr Pinese wrote

I have reviewed the planning scheme and your proposed rooftop.

Based on my recent experience on an overheight house in Buddina your prospects of approval are very very low should you wish to secure approval of the existing rooftop structure.

I think you would be wasting your time and money to try and get the rooftop approved in full.

Your efforts are better spent trying to creatively work with the planning scheme.

  1. [13]
    In the months that followed more correspondence was exchanged. Mr Pinese’s emails consistently noted the need to keep below the height requirement of 8.5 m and suggested ways in which an application to Council for approval might be avoided. On the morning of 2 February 2021, just days before the date for compliance with the enforcement order, Mr Dwyer emailed Mr Pinese to ask, ‘How are you doing with the MCU app?’[13] Within hours Mr Pinese replied[14]

My understanding was that we were going to avoid an application to Council by achieving compliance with the Council codes as per the attached email.

Complying with the height is the only way forward in my opinion.

  1. [14]
    The next day Mr Dwyer asked Mr Pinese to make a ‘concurrence agency review application’ regarding the lift overrun structure. On 8 February 2021 Mr Pinese emailed Mr Dwyer to say he could not lodge the application. Mr Pinese wrote[15]

Hi Wayne – as discussed this morning and as per my prior emails, Adapt Planning can’t lodge the application on your behalf. In my opinion, the council will refuse the application. I just can’t support height above 8.5m that result in access to an activity area on the roof above 8.5m. I just don’t feel right lodging something that will be refused.

  1. [15]
    That same day Mr Dwyer spoke to and emailed Mr Aaron Sweet, another town planner. Mr Dwyer wrote that he was interested in seeking approval for ‘non-conforming’ structures through either a material change of use application or concurrence agency review application. Mr Dwyer included a chronology as part of the email. It is to be noted that Mr Dwyer wrote that in ‘November 2020 we consented to orders saying that we will remove or make application to approve any non-conforming structures’ (emphasis added).[16] This was not what the enforcement order stated. Mr Dwyer’s explanation for this inconsistency was to say that what he wrote reflected his understanding of the order and ‘without re-reading the order, in my mind that’s what the order was’.[17] This does not sit comfortably with the fact that Mr Dwyer attached a copy of the enforcement order to his email to Mr Sweet, writing ‘[t]hese consent orders will be given a stay if we make application for the relevant approvals’.
  2. [16]
    Discussions between Mr Dwyer and Mr Sweet about a development application continued. In the meantime, Mr Dwyer was experiencing difficulties in his efforts to obtain approval for the re-purposed perimeter fence.[18] Mr Neller, who had been involved in certifying the works in 2019, advised in February 2021 that he was unable to assist.[19] Mr Dwyer approached a second certifier. The second certifier asked for further information. He was concerned to ensure any building approval he might give was not contrary to the planning scheme or orders of the P&E Court.[20] On reviewing this information the second certifier emailed Mr Dwyer on 18 February 2021. The second certifier indicated he was unwilling to undertake certification and wrote[21]

Having reviewed the town planners advice, and the requirements of the Dwelling House, the proposed pergolas[22] … will require further applications from council prior to the issue of any building approvals.

  1. [17]
    Within hours of this email, Mr Dwyer forwarded it to Mr Sweet, asking[23]

Aaron, do you happen to know a friendly certifier who can help us here and may be looking for tons of other work certifying our normal builds?

Or do you think a telephone call to Albert my convincing him that he can certify the pergolas?

  1. [18]
    In cross-examination the following exchange occurred[24]

MR WYLIE:  And with respect to then – so what you were saying here is, “Have you got anybody that can help me with this problem, and in return, I’ll give them a lot of other work from my main business”?---You could – you could interpret it as that, yes.

And the word “friendly” – when you’re talking about a word “friendly certifier”, you don’t mean friendly as in happy or smiley, do you?---Why wouldn’t – no, no, no.  No, but why wouldn’t you? But I’m not saying that, no.

What you mean by “friendly” is somebody who’s willing to sail pretty close to the wind or maybe even cross the…?---No.

…rules, to assist you?---No.

Then why don’t you say, “Do you happen to know a competent certifier?”?---Oh, I used a different word. If somebody wanted to certify this and wanted to fly close to the wind, they wouldn’t anyway.

I put it to you that when you used the word “friendly certifier”, you’re inviting a quid pro quo…?---No.

…that somebody – if somebody assists you to certify something that they, otherwise, shouldn’t, you’re going to give them tonnes of other work?---No, I’m not. I’m saying what – what – I’m not going to give them tonnes of work to certify something that’s uncertifiable, because they’d be – they’d have rocks in their head. They’d lose their own licence.

Then what’s the utility of asking for somebody that’s friendly?---Someone who is friendly, somebody that can get the job done quickly. It’s difficult to find somebody.  Difficult to find bricklayers at the moment. So it’s like after a friendly bricklayer who’s looking for work.  Well, it’s the same thing.

  1. [19]
    I do not accept Mr Dwyer’s reference to a ‘friendly’ certifier was anything other than an attempt to find one who was compliant and who would certify the building work in exchange for the promise of more work. This reflects poorly on Mr Dwyer and his claim to have made real efforts to comply with the enforcement order.
  2. [20]
    Throughout February and March 2021 there was more correspondence between Mr Dwyer and the second certifier. Ultimately, in late March, the second certifier advised that he could not continue due to concerns about the effect of the enforcement order.[25] Mr Dwyer’s efforts to have the re-purposed perimeter fence certified or approved continued. They had not been finalised when he swore his affidavit in late August 2021.
  3. [21]
    Mr Dwyer deposed that from March to June 2021 Mr Sweet continued to work on submitting a development application for the lift overrun structure. Landscape architects and acoustic experts were engaged and in late June the development application was lodged.
  4. [22]
    Mr Sweet also provided an affidavit.[26] He said he was engaged by Mr Dwyer around February 2021 and worked from then until June preparing a development application. The application was lodged on 28 June 2021. It seeks approval for a lift overrun structure and recreation room on the rooftop with landscaping a planting for screening. In late July the applicant sent an information request to Mr Sweet. Included in the request was a warning that the proposed development was inconsistent with the planning scheme, including by exceeding the height requirement, and was unlikely to be supported. Mr Sweet deposed that he believes the applicant has a position of refusing development applications that do not comply with building height requirements regardless of their town planning merit. He deposed that the town planning merits of the current application are such that it should be approved. These merits appear to be that the proposed development could proceed in a manner that limits its negative effect on amenity to an acceptable degree.[27]
  5. [23]
    In response to the development application made by the respondents’, and the affidavit of Mr Sweet, the applicant filed an affidavit of David Perkins, a town planner.[28] Mr Perkins reviewed the development application, which is still being assessed by the applicant. He observed that the development application seeks the approval of structures that would be about 11 metres above the ground, well above the 8.5 metre height limit. Mr Perkins thinks the proposed development does not comply with the planning scheme, would result in a loss of amenity, have unacceptable visual impacts, and would be inconsistent with community expectation. In relation to the perimeter fencing, Mr Perkins thought the proposal to retain it in a horizontal position significantly increased the dimensions of the roof through an ‘extremely unusual’ extension to the roofline. The addition of black shade-cloth adds to the visual bulk of the building and introduced a highly visible and discordant element to its design.

Difference of opinion between the town planners

  1. [24]
    Neither town planner was called for cross-examination, but each side invited the court to conclude their town planner was to be preferred. In this application I do not have to decide whether the respondents’ development application will be approved. But a preliminary assessment of its prospects is relevant to both applications before me. In this regard there is ample material to support the conclusion that the development application does not enjoy great prospects of success.
  2. [25]
    First, approval for the lift and lift overrun structure has already been refused, albeit in the context of a somewhat different proposed development.[29] It is true that the earlier proposed development included the tennis court, perimeter fence and lighting. But the lift and lift overrun structure are themselves substantial works. A good illustration of the scale and bulk of the lift overrun structure can be found in a photograph that forms part of Mr Sweet’s report for the current development application.[30] Many of the observations about adverse amenity impacts made by Judge Long SC when his Honour dismissed the appeal against the refusal of the first development application could still be applied to the lift and lift overrun structure. The present proposal still does not comply with the planning scheme, and it may be thought there is little to commend it beyond Mr Sweet’s opinion that the impacts of this non-compliance can be lessened to an acceptable level. Whether the proposed landscaping and planting is sufficient to address these concerns is still to be decided, but on the material before me I would seriously doubt the development application will be approved.
  3. [26]
    An additional matter I have considered is the difficulties experienced by Mr Dwyer in finding a town planner prepared to support the application. This is not of great weight but says something about the merits of the application. It may be accepted that views among town planners will differ, and there is no prohibition on securing a ‘second opinion’. But the consistency with which Mr Pinese, and to a lesser extent Mr Sweet, expressed concern about the proposed development exceeding the height limit highlights how this is a significant obstacle in the way of the development.
  4. [27]
    It is with this in mind that I turn first to consider the respondents’ application.

The respondents’ application

  1. [28]
    The basis of the respondents’ application to delay or defer the enforcement order may be summarised as follows:
  1. (a)
    Mr Dwyer has taken some steps to comply with the order;
  2. (b)
    To the extent he has not complied he is seeking approval for the works that remain;
  3. (c)
    There is a real prospect approval will be given; and
  4. (d)
    He should be given the chance to secure this approval rather than be put to the expense of removing the remaining works.
  1. [29]
    As far as (a) is concerned, it is true Mr Dwyer has taken some steps to comply with the order. He has altered the perimeter fence, removed most of the lighting and disabled the stairs. There is a dispute as to whether his work on the perimeter fence amounts to compliance with the enforcement order. The respondents say that by changing the perimeter fence into what they call a shade structure, it has been removed or demolished. They also say that the resulting shade structure is lawful development that does not require assessment or approval. On that basis the respondents submit the changes they have made amounts to practical compliance with the part of the enforcement order dealing with the perimeter fence. The applicant challenges both propositions.
  2. [30]
    The first proposition may be dealt with briefly. The enforcement order required two things; the rooftop work, of which the perimeter fence was a part, was to be ‘removed or demolished’ and the rooftop area restored to a state that complied with the building approval of February 2019. The respondents have not done this. Mr Dwyer removed the glass panels and chain mesh from the fence, shortened the fence to two metres, covered what remained in black shade cloth and put the hinge mechanism into a horizontal position. But the perimeter fence remains largely intact, albeit in a different position on the roof.[31] On any sensible approach to the meaning of the words ‘remove’ and ‘demolish’, the changes have not achieved either. The respondents face the further difficulty that the changes do not restore the roof to a state that complies with the building approval. The extent of the approval is described in the plans approved by Mr Neller.[32] It was no part of the plans to install a shade structure of the kind presently attached to the roof. Indeed, the plans show that the roof parapet that existed before the unlawful development was carried out was to be remain. The shade structure does not comply with the building approval.[33]
  3. [31]
    The requirement to comply with the building approval was in addition to the requirement to remove or demolish the perimeter fence. Even if it were possible to argue that the perimeter fence was no longer the perimeter fence, the rooftop is not in a condition that complied with the building approval. In my view the retention of the perimeter fence in its current form does not amount to compliance with the enforcement order. This is relevant to the respondents’ application and on the question of whether, and to what extent, Mr Dwyer is in contempt.
  4. [32]
    The respondents advanced a second argument in support of a finding that they had complied with this part of the enforcement order. The argument rested upon a contention that the shade structure presently in place does not require assessment and approval because it is ‘accepted development’. The respondents submit the shade structure is ‘as of right’ development and they have turned unlawful development (the perimeter fence) into lawful development (the shade structure). As a result, the respondents say they should be, in effect, excused from compliance because the purpose of the order has been achieved. If the respondents’ contention is not correct and the shade structure does require assessment and approval – which has not been obtained – the result of the respondents’ changes has been a continuation of unlawful development. This would be a matter that tells against the respondents’ application.
  5. [33]
    To determine whether the shade structure constitutes accepted development, it is necessary to consider the legislation. ‘Development’ relevantly means to carry out ‘building work’.[34] ‘Building work’ means ‘building, repairing, altering, underpinning …, moving or demolishing a building or other structure’.[35] There is no dispute that the changes to the perimeter fence amount to building work and are therefore development for the purposes of the PA. Pursuant to section 44 of the PA, there are three categories of development: prohibited development (for which a development application may not be made); assessable development (for which a development approval is required); and accepted development (for which a development approval is not required). An application for the approval of assessable development must be assessed and decided in accordance with sections 45 and 60 of the PA.
  6. [34]
    Section 43 of the PA permits a regulation or planning scheme to prescribe whether development is prohibited, assessable, or accepted. So far as this application is concerned, the relevant planning scheme is the Sunshine Coast Planning Scheme 2014 (‘SCPS’). The land on which this building is situated is in an area subject to the Height of Buildings and Structures Overlay Map. Development on the site is subject to impact assessment[36] if it is over ‘the maximum height specified for the site on the applicable Height of Buildings and Structures Overlay Map’,[37] in this case 8.5 metres above ground level. The respondents submit that this overlay is not relevant because the shade structure in its horizontal position does not exceed 8.5 metres. The applicant submits that the ability to put the structure into an upright position, exceeding the hight limit, is not to be ignored. That is, because the structure in the vertical position exceeds the height limit this triggers assessment against the applicable benchmarks. In my opinion, the applicant is correct. To adopt the respondents’ position would be to ignore the reality that the structure has been designed and built to be mechanically raised and lowered. Parts of it were in the upright position as recently as 19 February 2021, and Mr Dwyer admitted it can still be operated this way.[38] It would be artificial to consider a structure capable of being raised above 8.5 metres from ground level as if it could not be. It should be considered as it has been designed, built, and may be used. Support for this conclusion is to be found in the relevant assessment benchmarks, contained in the Height of buildings and structures overlay code.
  7. [35]
    The purpose of the code ‘is to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form’. The overall outcomes through which this purpose is to be achieved emphasise the importance of the ‘reasonable expectations’ of the community and the avoidance of loss of amenity, having regard to matters such as building character and identity, and building massing and scale compared to surrounding buildings.[39] PO1 provides that the height of a building or structure is not to exceed the allowable limit.[40] These provisions indicate the importance of development remaining within this limit and support the conclusion that the structure should be considered practically, and for how it can be used, as opposed to looking only to how the structure is positioned at the moment.
  8. [36]
    In addition, in my opinion the shade structure is assessable development pursuant to regulation. To explain why, it is again necessary to consider the overlapping provisions of the relevant legislation. The Planning Regulation 2017 (Qld) provides that ‘building work under the Building Act is assessable development’ unless it is listed as accepted development in Schedule 7 to the Planning Regulation.[41] In turn, Schedule 7, Part 1, in conjunction with regulation 18, provides that ‘[b]uilding work declared under the Building Act to be accepted development’ is accepted development for the purposes of the PA. To determine what is declared to be acceptable development under the Building Act 1975 (Qld) recourse must be had to that Act. Section 20 of the Building Act provides that:

[a]ll building work is assessable development, unless the building work is accepted development under section 21(2) or a regulation made under the Planning Act.[42]

  1. [37]
    Section 21(2) states that building work is declared to be accepted development for the PA if it is prescribed by regulation. The relevant regulation (at the time the shade structure was built) was the Building Regulation 2006 (Qld),[43] and regulation 4 refers to Schedules 1 and 2 to the Building Regulation 2006. Schedule 2 is irrelevant.[44] Schedule 1 lists building work that is declared to be accepted development if other relevant provisions are also complied with.[45] The respondents point to items 7 and 8 of Schedule 1 and submit that the applicant has not shown these items do not apply. The two items both refer to ‘repairs, maintenance or alteration’ to an existing building or structure. Here the respondents’ argument rests upon acceptance that the building work that has been carried out in relation to the perimeter fence is an ‘alteration’ for the purposes of these items. I do not accept that is so. The word ‘alteration’ in these items must be seen in its context. The items refer to ‘repairs, maintenance or alteration’. Read sensibly the items must be understood as being concerned with comparatively modest works. The changes to the perimeter fence fall outside the terms of items 7 and 8. As well, item 7 excludes building work that affects a structural component of the building, and item 8 excludes work that affects more than a minor structural component. Mr Dwyer’s own affidavit set outs drawings of the shade structure that he provided to engineers in an attempt to have the structures certified.[46] These drawings show how the structure attaches to the building, including using ‘rafter support extenders’. One email from an engineer referred to the structure pivoting from truss supports and requiring an assessment of the strength of the truss support.[47] Finally, a form issued on 2 August 2021 referred to a structural inspection of the structure.[48] The only rational inference to be drawn from this is that the shade structure affects more than a minor structural component (as that term is defined). Items 7 and 8 would have no operation for this reason as well.
  2. [38]
    Despite the inventive submissions on behalf of the respondents, I am satisfied that the re-purposed perimeter fence/shade structure is not accepted development and requires assessment and approval. The respondents have not obtained that approval. The works remain ‘unlawful’ and there is no basis upon which the respondents should be relieved from compliance with the part of the enforcement order dealing with the perimeter fence.
  3. [39]
    In relation to (b) and (c), I have already addressed what seems to me to be the limited prospect of obtaining approval for the lift overrun structure. In the circumstances the orders sought by the respondents would lack utility and serve only to delay.
  4. [40]
    The last matter, (d), similarly depends upon the development application having a real chance of success. It may be that the costs of complying with the enforcement order will be substantial,[49] but that is not a sufficient reason to defer or delay an order the respondents agreed should be made. Another matter is raised by the applicant: the suggestion the development application is a ‘sham’ and its only purpose is to delay compliance with the enforcement order. Given what I have already set out, it would be surprising if Mr Dwyer genuinely believed the development application will succeed. But allowing hope to triumph over experience[50] is hardly an uncommon phenomenon. Mr Dwyer could be pessimistic about the outcome while still hoping the development application will succeed. He may be a person with resources sufficient to permit him to ‘roll the dice’ and see what results. However, I need not determine Mr Dwyer’s motivations as my other conclusions are sufficient to deal with the respondents’ application.
  5. [41]
    The respondents’ application must be dismissed.
  6. [42]
    Before turning to whether, and if so to what extent, Mr Dwyer is in contempt, it is necessary to say something of the power of the court to deal with contempt.

Power of the Planning and Environment Court to deal with contempt

  1. [43]
    The power of the P&E Court to deal with contempt is found in several sources. First, section 36 of the Planning and Environment Court Act 2016 (Qld) provides:

36 Contempt

  1. (1)
    A P&E Court judge has the same power to punish a person for contempt as a District Court judge.
  1. (2)
    The District Court of Queensland Act 1967, section 129 applies to the P&E Court in the same way as it applies to the District Court.
  1. [44]
    In turn, section 129 of the District Court of Queensland Act 1967 (Qld) provides:

129 Contempt

  1. (1)
    A person is in contempt of the District Court if the person—
  1. (a)
    without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or an undertaking given to the court; or
  1. (b)
    wilfully insults a judge or juror, or a registrar, bailiff, or other court officer during the person’s sitting or attendance in court, or in going to or returning from the court; or
  1. (c)
    wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court; or
  1. (d)
    unlawfully obstructs or assaults someone in attendance in court; or
  1. (e)
    without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or
  1. (f)
    commits any other contempt of the court.
  1. (2)
    A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.

  1. [45]
    Here the alleged contempt is that identified in section 129(1) of the District Court of Queensland Act 1967 (Qld). Before the court could find Mr Dwyer to be in contempt the court must be satisfied, beyond reasonable doubt, that he has failed to comply with an order of the court and done so without lawful excuse. Mr Dwyer does not bear an onus and it is not for him to prove he had a lawful excuse. The meaning of the phrase ‘without lawful excuse’ is not fixed. It will be adapted to fit the circumstances of a particular case, having regard to the nature of the acts or defaults said to constitute the contempt.[51]
  2. [46]
    The power of a Supreme Court judge to punish for contempt of court is part of the inherent power of a court of superior jurisdiction to ‘uphold and protect the effective administration of justice’.[52] In addition, the Supreme Court of Queensland Act 1991 (Qld) permits the making of rules concerning contempt of court.[53] This power is given effect in the Uniform Civil Procedure Rules 1999 (Qld):

930 Punishment

  1. (1)
    This rule applies if the court decides that the respondent has committed a contempt.
  1. (2)
    If the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992.
  1. (3)
    If the respondent is a corporation, the court may punish the respondent by seizing corporation property or a fine or both.
  1. (4)
    The court may make an order for punishment on conditions, including, for example, a suspension of punishment during good behaviour, with or without the respondent giving security satisfactory to the court for good behaviour.

931 Imprisonment 

  1. (1)
    An order for imprisonment of the respondent may specify the prison in which the respondent is to be imprisoned. 
  1. (2)
    If a respondent is imprisoned for a term, the court may order the respondent’s discharge from prison before the end of the term.
  1. [47]
    Rule 930(2) is permissive. It allows, but does not require, a sentence that conforms to the terms of the Penalties and Sentences Act 1992 (Qld) (PSA).[54] A court dealing with a contemnor is otherwise able to fashion orders to meet the circumstances involved and to ‘coerce compliance with an order of the court’.[55]
  2. [48]
    It has been said by the High Court that[56]

These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v. Crown Office (1970) 2 QB 114, at p 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

Is the second respondent in contempt?

  1. [49]
    To a substantial extent my findings concerning the allegation of contempt are connected to the reasons for dismissing the respondents’ application. As such I can be more concise in dealing with this issue. I have noted a finding of contempt requires proof of two elements, each of which must be established beyond reasonable doubt. I will discuss each in turn.

Has the second respondent failed to comply with the enforcement order?

  1. [50]
    Mr Dwyer admits he has not complied with the entire enforcement order. There was a dispute about the extent of the non-compliance. The applicant submitted that, apart from rendering the stairs unusable in July 2021, Mr Dwyer has done practically nothing to comply with the order. In contrast, Mr Dwyer said he ‘removed or demolished’ the perimeter fence by altering it in a way that means it is no longer the perimeter fence. He admitted he has not removed or demolished the lift or lift overrun structure.
  2. [51]
    For the reasons I have already discussed, Mr Dwyer has not removed or demolished the perimeter fence. It is also the case that Mr Dwyer has not restored the roof to a state that complied with the building approval of February 2019. I am satisfied that the only real compliance with the enforcement order was the removal of the stairs, and even that was done several months after the date for compliance had passed.

Was there a lawful excuse for failing to comply?

  1. [52]
    As I have already detailed, the work carried out by the respondents in relation to the perimeter fence has not resulted in practical compliance with that part of the enforcement order. There could be no lawful excuse for Mr Dwyer failing to comply with this part of the order. If he wanted to be allowed to make the structure regular, rather than demolish or remove it as the order required, he should have made an application to the P&E Court to vary the enforcement order at a much earlier time.
  2. [53]
    Mr Dwyer accepted that he was inexcusably dilatory in removing the stairs. It is also conceded that as I have refused the respondents’ application to delay or defer the order, he has no lawful excuse and stands to be dealt with for contempt for this non-compliance.[57]
  3. [54]
    This leaves only Mr Dwyer’s failure to remove or demolish the lift and lift overrun structure. While Mr Dwyer accepted he has not complied with this part of the enforcement order, he submitted the applicant has not proved he did so without lawful excuse. As I have observed, the meaning of the phrase ‘without lawful excuse’ is not fixed and will vary according to the circumstances of a particular case. When asked, Mr Dwyer’s counsel had difficulty succinctly articulating what was the lawful excuse.[58] I do not mention this to be critical of counsel, or to suggest it was Mr Dwyer’s responsibility to establish he had a lawful excuse. But the difficulty in articulating what might be a lawful excuse itself suggests one may not exist. As I understood the submissions on behalf of Mr Dwyer, it was said he had a lawful excuse for not removing or demolishing the lift and lift overrun room for much the same reasons that were advanced in support of the respondents’ application to vary the enforcement order. They are, first, that he is attempting to obtain approval for the structure; secondly, the development application has reasonable prospects of success; and thirdly, the substantial cost of removing the structures would be wasted if Mr Dwyer is given permission for them to be reinstalled. In the result, it was submitted, the circumstances were not such that warranted Mr Dwyer being the subject of a criminal sanction.
  4. [55]
    As I have stated, I do not think the development application has much chance of success. It was also an application that was made in late June, several months after the deadline for compliance with the enforcement order. In this regard the following matters should be noted. Mr Dwyer agreed to orders to remove or demolish the lift and lift overrun structure. He did not ask the Court in November 2020 for an order allowing him the opportunity to seek approval for the structures. In the circumstances it can be inferred that he did not ask for such an order as he knew it was unlikely the applicant, or the P&E Court, would agree it should be made. Notwithstanding this, within days of the enforcement order being made Mr Dwyer decided that he would not remove or demolish the lift and lift overrun structure and would instead seek their approval (again). Even then, Mr Dwyer did not make an application to the P&E Court to vary the enforcement order so he could pursue approval. The applicant filed its application for a finding of contempt on 17 May 2021. Still Mr Dwyer made no application to vary the enforcement order. Only at the eleventh hour, the week before the application for a finding of contempt was to be heard, did he file the application to vary the enforcement order.[59] The result of these matters is that now, nearly 11 months after the enforcement order was made, the part of the order concerning the lift and lift overrun structure remains in force, and unfulfilled.
  5. [56]
    In my view, Mr Dwyer has conducted himself in a manner that could not possibly provide a lawful excuse for his non-compliance. Mr Dwyer knew that the enforcement order meant he was to remove the offending structures.[60] It is not for him to choose what parts of the enforcement order he would obey. It is not for him to think he would get the structures approved in the end, and could therefore ignore the enforcement order. It was always open to Mr Dwyer to apply, at an early stage, for variation of the enforcement order. Had he done so the merits of his position could have been tested and determined at an appropriate time. His decision to, in effect, ignore the enforcement order while pursuing other aims cannot be a lawful excuse. In the circumstances, I am left with no doubt that Mr Dwyer failed to comply with the enforcement order and that he had no lawful excuse for this failure.

Conclusion – the respondent in contempt

  1. [57]
    For these reasons I am satisfied beyond reasonable doubt that the respondent has, without lawful excuse, failed to comply with an order of the court and is in contempt of the P&E Court. The nature of the contempt is set out above. It will be necessary to hear from the parties about what penalty should be imposed and concerning any further orders to be made. For now, the orders will be:
  1. The respondents’ application filed on 24 September 2021 is dismissed;
  2. I am satisfied, beyond reasonable doubt, that the second respondent is in contempt of the enforcement order made on 10 November 2020;
  3. I will hear from the parties as to penalty and any further orders.

Footnotes

[1]Properly described as Lot 18 on RP838132.

[2]She is the first respondent in the proceedings commenced by the originating application for declaration and an enforcement order. Mr Dwyer is the second respondent. A company with which Mr Dwyer has been associated as Director and Secretary was the third respondent, but that party is no longer relevant.

[3]Affidavit of Carol Popple, 16 July 2019, Court Document 3, paragraph 5.

[4]An earlier enforcement notice had been given but was later withdrawn.

[5]Sunshine Coast Regional Council v Dwyer & Others [2019] QPEC 36.

[6]Dwyer v Dwyer v Sunshine Coast Regional Council [2020] QPEC 45.

[7]A copy of the approval and plans may be found in the Certificate pursuant to section 251 of the Local Government Act 2009 (Qld), Court Document 11, at attachment 15 to the Certificate (pp 168-175).

[8]Affidavit of Damien Hunter Frey, 7 May 2021, Court Document 45.

[9]Affidavit of Wayne Geoffrey Dwyer, 27 August 2021, Court Document 49.

[10]T.1-38.44-T.1-39.24.

[11]Affidavit of Wayne Geoffrey Dwyer, 27 August 2021, Court Document 49, paragraph 65.

[12]WGD-6, p 64 of the exhibits.

[13]WGD-13, p 73 of the exhibits.

[14]WGD-14, p 74 of the exhibits.

[15]WGD-17, p 77 of the exhibits.

[16]WGD-18, p 78 of the exhibits.

[17]T.1-47.14-36.

[18]A submission that such approval was unnecessary is dealt with later in these reasons.

[19]WGD-81, p 196 of the exhibits.

[20]WGD-86, pp 203-204 of the exhibits.

[21]WGD-88, p 206 of the exhibits.

[22]The term used by Mr Dwyer for the re-purposed perimeter fence shade structure.

[23]WGD-21, p 82 of the exhibits.

[24]T.1-56.10-39.

[25]WGD-104, p 239 of the exhibits.

[26]Affidavit of Aaron Mark Sweet, 27 August 2021, Court Document 50.

[27]Planning report of Mr Sweet, AMS-7 to his affidavit, at pp 64-65 of the exhibits.

[28]Filed by leave on 1 October 2021. The applicant did not rely upon paragraph 12 of the affidavit.

[29]Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45.

[30]AMS-7, p 67 of the exhibits.

[31]I note that in evidence Mr Dwyer admitted the mechanism can still be operated and the structure put into an upright position – see T.1-51.9-24 and photograph 35 (taken on 19 February 2021) exhibited to the affidavit of Mr Frey (Court Document 45).

[32]Certificate pursuant to section 251 of the Local Government Act 2009 (Qld), Court Document 11, at attachment 15 to the Certificate (pp 168-175).

[33]It is to be remembered that the building approved was conditioned such that any ‘proposed alteration or modification of any drawing or specifications’ needed a further application for approval. No such application was made.

[34]PA, Schedule 2. It has the same definition in Schedule 2 to the Building Act 2017 (Qld).

[35]Ibid.

[36]PA, section 45(5).

[37]SCPS, table 5.10.1.

[38]See note 30 above.

[39]SCPS, section 8.2.8.2.

[40]SCPS, table 8.2.8.3.1.

[41]Planning Regulation 2017 (Qld), regulation 20(1).

[42]‘Assessable development’ has the same meaning in the Building Act as it does in the PA – Schedule 2 to the Building Act.

[43]Which was replaced by the Building Regulation 2021 (Qld) in September 2021.

[44]Schedule 2 deals with tents, class 10 structures (a non-habitable building or structure) ‘on land used for agricultural, horticultural or pastoral purposes’, class 10b structures (a fence, mast, antenna, retaining or free-standing wall, swimming pool or the like), ‘special structures’ (a building or structure that cannot be classified under the National Construction Code), and a ‘sun hood’ if the hood’s area is less than 2m2.

[45]Building Act 1975 (Qld), section 21(5).

[46]Affidavit of Wayne Geoffrey Dwyer, 27 August 2021, Court Document 49, WGD-108, p 250 of the exhibits.

[47]WGD-110, p 256 of the exhibits.

[48]WGD-122, p 274-275.

[49]See paragraph 42 of Mr Dwyer’s affidavit. I note Mr Dwyer did not depose to the cost of building the unlawful structure in the first place and seems to have spent very little to date on actual compliance with the enforcement order – see WGD-5 at p 63 of the exhibits to his affidavit.

[50]To paraphrase Dr Johnson (James Boswell, The Life of Samuel Johnson (1791), vol.2).

[51]The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor [2020] QPEC 28; [2021] QPELR 337, [33] (citing Wilson v McDonald [2009] WASCA 39).

[52]Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (AMIEU).

[53]Section 85 and Schedule 1.

[54]Dubois v Rockhampton Regional Council [2014] QCA 215; (2014) 203 LGERA 117; [2015] QPELR 77, [72]-[76] (Dubois).

[55]Dubois, [71], AMIEU, 114 [27].

[56]AMIEU, 115 [28].

[57]Respondents’ written submissions, 1 October 2021, paragraph 35.

[58]T.1-87.40-T.1-88.40.

[59]The application was foreshadowed by Mr Dwyer’s solicitor on 15 September 2020 (see affidavit of Maddison Gabrielle Kew, filed by leave on 1 October 20201, Court Document 54) and filed on 24 September 2021.

[60]T.1-46.28-45.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v Dwyer

  • Shortened Case Name:

    Sunshine Coast Regional Council v Dwyer

  • MNC:

    [2021] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    15 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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