Brisbane City Council v Windshuttel & Ors (No 2) [2011] QPEC 89

1-1 [2011] QPEC 89 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 1635 of 2007 BRISBANE CITY COUNCIL Applicant and LARRY JOHN WINDSHUTTLE Respondent and KERRY RUTH SMETHURST and STEPHEN JOHN CALDOW Respondent Respondent BRISBANE ..DATE 08/06/2011 ..DAY 1 ORDER CATCHWORDS Warrant for committal for contempt of a court order to be signed but lie in the registry for 15 days to permit the respondent to comply more satisfactorily with the order breached -- 1 of 7 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The respondent, Mr Windshuttle, has attended court again today and the court is heartened to see that he has made a gesture towards compliance with what the court expected of him under the order of the 8th of March 2010, which, represented by solicitors, he consented to. The presently relevant requirements of that order were that by 4.00 p.m. on 8th of April 2010 Mr Windshuttle would submit to the council a plan demonstrating how it was proposed to comply with paragraph 6 of the order. That required him to return the relevant site to a condition in accordance with an identified report of Mr Manners. The council applicant was to review the plan submitted and, within 14 days, advise its satisfaction or otherwise. On the 19th of May this year, for the first time since the 8th of March last year, Mr Windshuttle was present in court, now without lawyers. The appropriateness of the order that I had already made that he be imprisoned for three months for contempt of court was considered on that day and I saw no reason to change the way things were. A control over execution of the order for imprisonment existed in that I had not yet signed the warrant form prepared in the Registry. I indicated to Mr Windshuttle that I would withhold doing so until today to give him "the opportunity to come back to the court on proper evidence which is not statements of the kind you've been making today from the Bar Table in the court. It will be proper affidavit evidence that Mr Godfrey can have -- 2 of 7 -- 1-3 ORDER 1 10 20 30 40 50 60 a look at before he has to deal with it in court and that he can ask questions about by requiring that the person who made the affidavit go into the witness box". See page 16 of the transcript for that date. The following page records my saying, "You should take your own legal advice about this and that may well be that there's not a lot of point coming back to the court unless you can establish very good reasons for having done nothing at all to comply with Judge Searles' order, or you come along with a convincing proposal to do something about it very quickly". It was indicated that the court would be available on each of the last two afternoons to entertain an approach from Mr Windshuttle. As things turned out, I was unavailable on those two afternoons but my associate communicated that to Mr Windshuttle and that this afternoon at 2.15 was available when he did attend. He has placed before the court a "Neo Map" said to show the state of the site on the 7th of May 2011 and a copy of a letter addressed to the Council, and Mr Godfrey in particular, which comes from In-Constructions Pty Limited over the name of Nick Detsimas B.E.(Civil), with an attachment. The attachment is a black and white photo with markings indicating, as a "fill area", a section in the southern part of the site adjoining lot 88 to the south, that the letter indicates is what was seen as the relevant area where fill that needs to be removed is located. -- 3 of 7 -- 1-4 ORDER 1 10 20 30 40 50 60 Mr Manners' report gave particular attention to the need to remove fill from a 10 metre wide area abutting lot 88 to permit free runoff of surface waters therefrom. Mr Godfrey relies on Mr Manners' report of 2008 to establish what Mr Manners calls "the rehabilitation area". The court isn't in a position to go into the detail of this but it seems to me that the importance of the rehabilitation area, which is less than whole of site, is to identify the area within which there are parts requiring rehabilitation without there being any necessity that some rehabilitation occur in every single part of it. Mr Manners is adamant that fill has been placed, which ought to be removed, over a far broader area than the marked-up black and white photograph in Exhibit 2 would indicate in particular, for example, to the eastern boundary in the south of the site. Exhibit 2 is a two page letter whose brevity alone is an indication that it's unlikely to be adequate compliance with what was required by paragraph 7 of the Consent Order. It does show some awareness of Mr Manners' list of requirements, for example, in referring to rehabilitation of the excavated area by it being "covered hit and miss with saltwater couch grass". Mr Manners may not necessarily have agreed with the "hit and miss" part. Although duration of the works, at least in respect of removal of fill, is stated in that respect as -- 4 of 7 -- 1-5 ORDER 1 10 20 30 40 50 60 four days, there is nothing to indicate when the work might be done in terms of starting and finishing dates. There's a general statement that Mr Windshuttle had indicated to the writer his readiness, willingness and ability to carry out the remediation works. A meeting on site on the 16th of June 2011 to "initiate the works" was proposed, also to involve "the supervising engineer". That I understand to be a Mr Delasandro, who, Mr Windshuttle tells me, he brought in soon after the last day in Court. He's apparently not available presently to help. The court mentioned the idea of getting the council involved in working out what ought to happen now, something which Mr Windshuttle embraced and, indeed, had apparently thought of already. Specifically, Mr Windshuttle referred to the notion of having his equipment and labour ready to go to comply with instructions from relevant Council personnel as to what to do. Mr Godfrey submitted that the Council, which was disinclined to participate in that way, ought not to have to participate in that way and indeed it would be contrary to the clear intention of the Consent Order which was that the responsibility for devising a suitable plan for bringing to an end the dreadful situation - particularly in respect of drainage - that Mr Windshuttle has brought about to an end. Exhibit 1, the Neo Map, is supplemented by Mr Godfrey's tender -- 5 of 7 -- 1-6 ORDER 1 10 20 30 40 50 60 of Exhibit 3, a "Neo Map" showing the state of affairs in relation to the site as at 15 October 2009, which he said had been provided to him by Mr Windshuttle. Concerningly, that exhibit tends to support the Council's case by showing the unlawful storage on the site of large quantities of sizeable equipment and other items which were there a month ago but not on the 15th of October 2009. Although Mr Godfrey submits that the court ought to require the punishment which it's ordered to be carried into execution straight away, I think that Mr Windshuttle is entitled to some acknowledgement for the steps that he's taken. They are woefully inadequate, although sufficient in the circumstances to induce me to extend the current stay situation a little bit longer. The court's had some difficulty in getting Mr Windshuttle to acknowledge and respect, to the extent of complying with, the court's requirement that he not seek to give evidence by statements from the Bar Table which Mr Godfrey cannot effectively challenge as to quantities and locations of fill on the site, as to nuisances being suffered by neighbours from inundation by malodorous and health-threatening inundation, and the like. What the court will definitely require, if the period for which the warrant is to lie in the Registry is to be extended, is some very clear demonstration of a serious attempt by Mr Windshuttle to do what he ought to have done more than a year -- 6 of 7 -- 1-7 ORDER 1 10 20 30 40 50 60 ago now. So the orders are the ones that I indicated before, adjourning the application to which the Council filed on the 19th of May 2011 in its amended form to a date to be fixed. It's ordered that the warrant, which is to be signed today, lie in the Registry till the 23rd of June 2011. Those orders are made in association with the Council's undertaking to respond within seven days to any proper “plan" as referred to in paragraph seven of the order of 8 March 2010. ----- -- 7 of 7 --