Cairns Regional Council v Eldav Properties Pty Ltd & Ors [2011] QPEC 153

1-1 [2011] QPEC 153 PLANNING AND ENVIRONMENT COURT JUDGE R JONES No 10 of 2012 CAIRNS REGIONAL COUNCIL Applicant and ELDAV PROPERTIES PTY LTD AND ORS Respondents BRISBANE ..DATE 23/12/2011 ORDER -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This proceeding is concerned with an application for orders pursuant to sections 578, 601 and 603 of the Sustainable Planning Act 2009. The relief sought is set out in the draft orders which I will initial and place on the file. It would be sufficient to indicate that the relief sought is concerned with building works which the respondent considers necessary to render subject the building safe. For the relief to be granted I must be satisfied that there has been a development offence committed by the respondents and that the orders are otherwise appropriate in all of the circumstances. The application is concerned with development works occurring at 302-304 Sheridan Street in North Cairns. Located on the site is a building with a heritage listing. The applicant is the relevant local authority. The first respondent is a registered company and is the owner of the site. The second respondent is a director and shareholder of the first respondent. The applicant is concerned about the structural integrity of the building, and in particular, its awning and façade and loose material lying on or about the site. These concerns are exacerbated by the upcoming, if not already here, cyclone season. At or about 4 August 2011, the applicant became aware of demolition works being carried on the site, including the -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 removal of asbestos and roof sheeting. These works were not authorised as no appropriate permit had been issued by the applicant. On 30 August 2011, the applicant issued a "show cause notice" asserting that development works had taken place without the necessary permit being obtained. In response to the show cause notice it was asserted on behalf of the first respondent that it believed the necessary permits had been obtained and that the works were, in effect, essential to effect emergency works. It seems sufficiently clear to me that despite what the first and second respondents may have thought, they were in fact carrying out unauthorised works. I am satisfied that the first and second respondents acted in breach of section 578 of the Sustainable Planning Act and accordingly that a development breach has occurred. Other relevant considerations which support the granting of the relief sought are, first: 1. There is evidence that the building on the site is in an unsound and unsafe condition, and that the site has loose objects lying or located on it. That the building is unsafe is itself a significant matter, but as I have already indicated it is made all -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 the more significant because of the cyclone season which is of a particular concern in the Far North Queensland. 2. The second matter is that it is tolerably clear that the works identified in the orders are works which, if not entirely then for the most part, would be required to be carried out under the current development approval. That is, the costs of these works will not be wasted. Here I also considered to be of some relevance, that even though there is no evidence as to cost, much of the works proposed appear to be of a relatively modest nature. 3. The third matter is that it is also tolerably clear that in the past, agents of the respondents had represented to the applicant that they would carry out works on the site including works essentially of the same character as the applicant now seeks. These representations appear not to have been lived up to. I refer here in particular to paragraphs 59, 60 and 61 of the affidavit of Ms Reeston filed by leave on the 22nd of December 2011. Other matters need to be mentioned in respect of this application. First, it might be thought that, given that work on the site is proceeding as I speak, and by reference to the material filed works which appear to be clearly directed to achieving the ends the applicant seeks, the orders are not necessary or appropriate. But, even accepting that, given the history associated with this site, and the fact that it is located in Far North Queensland in the current cyclone season, -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 I consider it desirable to make the orders sought to ensure as far as practicable that the works will be completed in a timely fashion. The final matter I wish to mention is that this application is being dealt with on an ex-parte basis. However it is clear that the respondent's lawyers have been made aware of these proceedings. On the 6th of December 2011 the applicant's lawyers wrote to the respondent's lawyers advising of the applicant's intention to obtain a hearing date for the hearing of this application. A copy of the then proposed application was enclosed. The applicant's solicitors did not receive a reply to the letter but on 20 December 2011 when this matter was first mentioned, a Mr Steel, a lawyer representing the respondents rang my chambers and spoke to my Associate, relevantly advising that first, he was not aware of the application and second, he believed everything had been agreed on site between the applicant and the respondent's consultants and that the works were to proceed. This seems consistent with the meeting referred to in paragraph 59 of Ms Reeston's affidavit. When this matter came before me on the 22nd of December, I adjourned the proceeding until attempts were made to serve the respondents and the respondent's solicitors with the affidavit material filed by leave on that day. The service of that material is dealt with in the affidavit of Ms Nilsson filed by leave today. -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 Also today my Associate received an email from Mr Steel which is Exhibit 4. This email was sent, as I said, by Mr Steel the practising manager of Jason A Briggs Lawyers, lawyers for the respondent. The email is dated today's date, 23rd December 2011, and is directed to my Associate. It relevantly says, "I refer to my telephone call on Tuesday. As I advised by telephone Jason A Briggs Lawyers has closed for the year and would re-open on January 10. We trust that no disrespect was intended to the Court. As the practice was closed I was unable to participate by telephone as I was travelling overseas. We note that our client is financially distressed, however CRC had missed the permits and met with the owner's representatives on site on Wednesday 21st and agreed on time lines for the works to be undertaken. I'm advised the works have commenced and the awning is in the process of being lowered two days ahead of schedule. We are not aware of any reason to issue an enforcement notice as the works are all underway and we are advised ahead of schedule." As I indicated, I accept that the works are proceeding but also as I indicated, given the past history of the site and the pending weather season, I still consider it desirable if not necessary to make the orders sought subject to those amendments that I have discussed with Mr Skoien during the course of argument. Accordingly, interim orders will be made in the terms of the draft which I will initial and date, and place on the file and -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 indicate that the draft will be amended, not only in respect of the time and date, but also by inserting a new paragraph 1(a) which will read to the effect that: "Save as is required to comply with the requirements in paragraph 1 herein, the first and second respondents shall not remove any part of the façade." Now, is there anything arising out of that, Mr Skoien? MR SKOIEN: No, your Honour. I was just going to ask for one more amendment to the order and that is that paragraph 7 of the order asks for - provides an order that by today certain things be served. Of course the originating application has already been served. Can I ask your Honour to delete the words, "the originating application and" from paragraph 7? HIS HONOUR: Sorry, so? MR SKOIEN: Delete the words, "the originating application and" so it's just "serve a copy of this order upon the first respondent and the second respondent." HIS HONOUR: All right. Well, what I was going to - Mr Skoien would you be able to----- MR SKOIEN: Re-engross? HIS HONOUR: Yes. MR SKOIEN: Yes. HIS HONOUR: And email that through? MR SKOIEN: Certainly, I'll do that and I was actually going to ask your Honour if I could, so that perhaps if your Honour could then - does your Honour have - sorry. If your Honour could check the order and initial it, and then if perhaps I could ask the indulgence of the Court to make a photocopy and I'll come back and collect it from your Honour's Associate? HIS HONOUR: All right. What I have done is I have changed order 1 to insert - to delete "noon" and put 4 p.m. MR SKOIEN: Yes. HIS HONOUR: And I have deleted 24 and inserted 31. MR SKOIEN: Yes. -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I have inserted a new paragraph 1(a). MR SKOIEN: Yes, your Honour. HIS HONOUR: "Per Skoien", that is what I have written. MR SKOIEN: Thank you. HIS HONOUR: I think you know what that means. MR SKOIEN: I've just taken the words precisely as your Honour read. HIS HONOUR: And then I have amended order 7 in the terms that you discussed. MR SKOIEN: Thank you, your Honour. I don't need to take your Honour's copy then and I can leave that with the Court. I won't ask for it, and if I email it to your Honour's Associate - perhaps two versions - I'll do one that has the track changes and with the other which obviously has the----- HIS HONOUR: I don't think we need one with the track changes unless you----- MR SKOIEN: It's only those changes so your Honour can----- HIS HONOUR: Yes. MR SKOIEN: And then I don't know what your Honour's Associate's movements are but perhaps I could then come back and get that? I'd be hoping to then be able to scan it and email it off to get it served straight away on people who are on the site. HIS HONOUR: All right. Well, if you get the amended draft to me, I will initial it straight away. MR SKOIEN: Thank you, your Honour. I'll do that within the next 10 minutes. HIS HONOUR: All right. Well, thank you Mr Skoien and I hope you have an enjoyable Christmas. MR SKOIEN: Thank you, your Honour, and compliments of the season to you and the Court staff. HIS HONOUR: Thank you. THE COURT ADJOURNED AT 1.30 P.M. -- 8 of 8 --