Brisbane City Council v Bowman & Ors [2013] QPEC 62

1 [2013] QPEC 62 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 1703 of 2013 BRISBANE CITY COUNCIL Applicant and JOHN ALEXANDER BOWMAN and OTHERS Respondent BRISBANE 2.37 PM, MONDAY, 16 SEPTEMBER 2013 ORDER CATCHWORDS Contempt of court - non-compliance with parts of enforcement order (made by consent) admitted - court now endorses “plea bargain” and sentence suggested by the parties of its discussions - convictions recorded- sentence of four months imprisonment wholly suspended imposed on the individual respondent - $10,000 to be paid on account of applicant council’s enforcement order substituted Sustainable Planning Act 2009 s604 -- 1 of 5 -- __________________________________________________________________________________ 2 ORDER HIS HONOUR: The court makes certain orders, which it is invited to do by both parties. They would not have been made unless the court was satisfied that they represented an appropriate outcome in the circumstances, which are serious ones. This is a proceeding by the Council seeking to have three respondents – two companies and Mr John Alexander Bowman – punished for contempt of court by 5 disobedience to an enforcement order which Judge Searles made by consent of all the parties on the 10th of December 2012 in originating application 1061/2012. Orders are made consequent upon Mr Todman of counsel telling the court he had instructions of his clients to plead guilty and to agree to the orders proposed by way of punishment – and also variation, appropriate in circumstances that have occurred, 10 of Judge Searles’ orders by replacement of them by new ones. There also is a significant provision in respect of costs. The new enforcement orders today are set out in a draft order, which I have initialled. It’s made under section 604 of the Sustainable Planning Act 2009. Otherwise, the 15 court finds the respondents guilty of contempt of court for failure to comply with paragraphs 8, 9, 12 and 13 of the order of Judge Searles made on 10 December 2012 in originating application 1061/2012. A conviction is recorded against all respondents. Mr Bowman is sentenced to imprisonment for four months, such imprisonment to be wholly suspended for an operational period of two years. The 20 draft order for purposes of section 604 contains a requirement that, within 12 months, the respondents pay $10,000 in respect of the applicant Council’s professional costs. That aspect is contrary to what was foreshadowed this morning before the matter was stood down to enable the parties to have discussions. The new agreement is 25 explained on the basis that Mr Bowman is freed from an obligation to lodge a development application to the Council for purposes of regularising his use of his premises at Bald Hills. Mr Todman tells the court that he had engaged town planners for the purposes of submitting a development application but that he did not proceed with that on discovering the application fees amounted to some $30,000, which he 30 was disinclined to pay, particularly because pessimistic about the prospects of the development application succeeding. It seems that today he has abandoned thoughts of using the property at Bald Hills for the intended purposes at all. He has premises, which he can use, in other local 35 government areas. Among the general explanations advanced by Mr Todman for the non-compliance with the court’s order, which has admittedly occurred, was an erroneous belief that satisfying requirements of the Environmental Protection Authority justified ignoring those of the Council, even of this court’s order. Other difficulties were alluded to such as flooding standing in the way of removal of some 40 equipment. The court can be confident now that with the aid of legal advice, Mr Bowman now understands the situation that he has been in and still is in. He lacks the ability to understand complex written orders without explanation. A good part of today has been devoted to his legal representatives providing that for 45 him. I express the court’s gratitude to them. Matters of this kind can be extraordinarily difficult for laypeople representing themselves. The absence of legal representatives was the cause of much of the difficulty in a similar matter of Brisbane City Council v Windshuttel [2011] QPEC 70, [2011] QPELR 712, which -- 2 of 5 -- __________________________________________________________________________________ 3 ORDER was also dealt with by me on at least two other occasions (see [2010] QPEC 106 and [2011] QPEC 89.) The matter was not finally resolved until a fourth occasion when Mr Windshuttel had the advantage of legal assistance at last. I mention this matter because reference to the reasons for judgment will indicate my 5 familiarity with the decisions that Mr Godfrey relies on as supporting a sentencing range that would justify today’s outcome. I notice one additional matter: a decision of his Honour, Magistrate Herlihy in the matter of Murray Lindsay Donaldson in Sandgate Magistrates Court on the 29th of September 2011. The offender there pleaded guilty, was sentenced to four months imprisonment suspended for an 10 operational period of two years. Cases can be found where imprisonment was actually served including Formalwear Express Franchising Pty Ltd v Roach [2004] QCA 339 and indeed that was the fate of Mr Windshuttel until, with the advantage of legal representation, he achieved release after a period which was, Mr Godfrey suggests, was about two and a half weeks. Today’s outcome represents a plea 15 bargain which does not see the respondents acknowledging all aspects of the Council’s complaint. What is conceded is breach of the following orders: Order 8, that by 1st of February 2013, the respondents submit to council a properly made development application for the material change of use and environmentally relevant activities (industry-green waste transfer/holding station and do everything 20 necessary to advance that development application; Order 9, that by 1st of February 2013, the respondents, their heirs and successors in title, their tenants, their servants and agents cease using the premises for any activity or use that requires a development permit excluding any industrial use or green waste 25 transfer/holding station only; Order 12, that by the 1st of February 2013, the respondents, their heirs and successors in title, their tenants, their servants and agents remove all earthmoving and heavy vehicles, equipment, plant and machinery for the purposes of a warehouse industry 30 as defined in Cityplan not associated with the rural use of the land as defined in Cityplan; Order 13, that by 1 February 2013, the respondents, their heirs and successors in title, their tenants, their servants and agents submit a rehabilitation plan “(the 35 rehabilitation plan) prepared by a duly qualified expert to council for assessment and approval by Council for: (A) the removal of introduced fill back to natural ground level or other satisfactory level based on reports by qualified and relevant experts, and (B) rehabilitation of the premises following the removal of the fill material.” 40 The new order allows four weeks from today for compliance with the obligation under, the former order 13, with a variation. On the court’s inquiry, Mr Todman indicated that there ought not to be any concerns that we may be back after a month. The relevant task is well underway and in the hands of a qualified town planner whose expertise, Mr Godfrey indicates, the Council acknowledges. 45 The court ought to insist that its orders be respected and visit consequences that may need to be harsh on those who fail to comply. This is not Mr Bowman’s first difficulty in matters such as the present, which is not to suggest that he’s ever been -- 3 of 5 -- __________________________________________________________________________________ 4 ORDER charged with contempt of court before. Mr Godfrey referred to Bowman v Brown [2004] QDC 006.Let us hope that Mr Bowan now understands the importance of complying with Court orders and that Mr Todman’s right assuring the court we won’t see his client back here in the next year or so. 5 MR TODMAN: Your Honour he’s going to do everything he can now to comply with the full orders, and I thank my friend and his office for negotiating and resolving this matter. The new orders before the court will see the resolution of the matter over a 12-month timeframe, in dealing with the rehabilitative issues. Payment of the court costs was a civic concession in terms of my friend, and I thank my friend 10 for that. Now, with the new order in place, there’s a new plan and direction, and my client has closely instructed my instructing solicitors to make sure all these things happen and to report back to him. So these things will be done. You will not be seeing this man 15 back here in another 12 months for contempt of order, unless he has some sort of desire to go to jail but, in my submission, your Honour, he’s making every attempt he can to now comply with the orders. Now, in my respectful submission, your Honour – that we submit that a suspended sentence is well within range, and we ask your Honour to make that particular order, as long as the order’s proposed. Is there 20 any other matter I can take your Honour to? HIS HONOUR: No that’s fine, thank you. MR TODMAN: Thank you, your Honour. 25 … 30 MR GODFREY: Yes, I believe so, thank you, your Honour. HIS HONOUR: Thanks. I’ll say to conclude, I’m pleased to have you here, smoothing matters out as you have. I’ll just sign this order before I leave the courtroom. 35 MR GODFREY: And I think on behalf of both parties, your Honour, I’d just like to apologise, if there was an inconvenience caused. Obviously, the matter was listed for three days, however I think, in the circumstances, it’s a beneficial outcome, and obviously saves the court’s resources. 40 HIS HONOUR: Yes. MR TODMAN: I endorse that as well. Very complex, your Honour, and negotiations are always touch and go, so thankfully we have it resolved today. 45 HIS HONOUR: Yes, that’s right. Thanks, everyone. -- 4 of 5 -- __________________________________________________________________________________ 5 ORDER ADJOURNED [2.58 pm] RESUMED [3.00 pm] 5 HIS HONOUR: All right. I think it’s appropriate to read into the record the parts of the council’s grounds in its present originating application, 1703 of 2013, which give particulars of the contravention of the individual orders of Judge Searles, in respect of which contravention is acknowledged. The relevant parts of paragraph 5 of the 10 originating application are: “b) In respect of paragraph 8 of the orders, by 1 February 2013, failing to submit to council a properly made development application for a material change of use and environmentally relevant activities (industry/green waste transfer/holding station) 15 and do all things necessary to advance that development application. “c) In respect to paragraph 9 of the orders, from 1 February 2013, failing to cease or failing to have their tenants, servants and agents cease using the premises for any activity that requires a development permit in the premises were being used for the 20 purpose of a warehouse, as defined in Brisbane City Plan 2000, for the storage of:  vehicles, machinery and equipment  mounds of soil  mounds of chipped vegetation 25  mounds of construction and demolition waste  mounds of unprocessed concrete  mounds of crushed concrete “f) In respect to paragraph 12 of the orders of 1 February 2013, failing to remove or 30 have their tenants, servants and agents remove all earthmoving and heavy vehicles, equipment, plant and machinery for the purposes of warehouse and industry, as defined in the Brisbane City Plan 2000, not associated with the rural use of the land, in that a blue “Chieftain 1700 power screen” numbered P0079 and a blue “Terex Pegson XP4002” concrete crusher were being stored on the premises, which were not 35 associated with the rural use of the land. “g) In respect to paragraph 13 of the orders, by 1 February 2013, failing to submit or have their tenants, servants and agents submit the rehabilitation plan prepared by a duly qualified expert to council, for assessment and approval by council, for the 40 removal of introduced backfill to match with ground level, or other satisfactory level, based on reports by qualified and relevant experts, and rehabilitation of the premises, following the removal of the filled material.” That’s it. 45 ______________________ -- 5 of 5 --