Brisbane City Council v Battel & Anor [2006] QPEC 54

1 [2006] QPEC 054 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC No BD2766 of 2006 BRISBANE CITY COUNCIL Applicant and MICHELE BATTEL and EMILIA BATTEL Respondents BRISBANE ..DATE 07/04/2006 ORDER CATCHWORDS: Council reporting to court - non-compliance by elderly respondents with consent order that they make a development application with a view to regularizing unlawful building work, in default demolish the buildings - appropriate directions considered. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 3 -- 07042006 T02-03/PMD20 M/T CMS40/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an unusual case in which the Council wishes to report to the Court the respondents' non-compliance with consent orders made by Judge Rackemann on the 26th of August last year. Those involved a declaration that unlawful development had taken place on the respondents' property at Murarrie. The focus to date has been on the existence on the site of a certain number of industrial buildings, apparently erected without appropriate permits or approvals. This situation has developed over some decades for the earlier period of which the property was out in the bush, as Mr Comino says, so that what was happening there apparently escaped notice. The buildings are all let out to people pursuing activities in them. Under the order a development application was to be made for the Council, failing which the buildings, or some of them, were to be demolished. Nothing has happened at all. The respondents, who are elderly, have a sentimental attachment to their property and the use being made of it, which is apparently not shared by the more hard-headed younger members of the family. Their efforts and Mr Comino's to persuade the respondents around to their view that the rational course is to sell the property have been unavailing so far. Mr Comino agrees that the best way to bring matters to a head, distressing as that is likely to be for his clients, is to have the matter set down for determination. -- 2 of 3 -- 07042006 T02-03/PMD20 M/T CMS40/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 There has been no real consideration of what might occur, but perhaps it may be a case of the draconian provisions rule 925ff of the UCPR which apply when orders are not complied with being invoked. It does not appear that any particular directions ought to be given in advance of the hearing, although Mr O'Brien has indicated that the Council may wish to supplement its affidavits. Mr Comino says his clients have engaged engineers at considerable expense to look into things, but without advancing things much. I agree with him that it would be too precipitate to fix a date, although one is available, before the end of this month. In the circumstances, the Court will order that the application be assigned to the May pool cases and be listed, if possible, for hearing at the callover on the 24th of April. ----- -- 3 of 3 --