Brisbane City Council v Wild [2004] QPEC 75 [2005] QPELR 354

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: BCC v Wild [2004] QPEC 075 PARTIES: BRISBANE CITY COUNCIL Applicant v MICHAEL JOHN WILD First Respondent And LESLEY JOY WILD Second Respondent FILE NO: BD4566 of 2003 DIVISION: PROCEEDING: Application ORIGINATING COURT: Planning & Environment, Brisbane DELIVERED ON: 23 November 2004 DELIVERED AT: Brisbane HEARING DATE: 13, 14 April; 28 October 2004 JUDGE: Skoien SJDC ORDER: Application adjourned CATCHWORDS: Site in Parkland area; unlawful use of warehouse or industry; declaration to cease unlawful use; order to reinstate site. Integrated Planning Act 1997 Local Government Act 1993 Cases cited: Georgianni v The Queen (1988) 156 CLR 473 NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706 (CA); [1991] QPELR 67 (Quirk DCJ) Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167 R v Beck [1990] 1 Qd R 30 R v Jeffrey CA 154 of 1997 Renwick v Bell [2002] 2 Qd R 326 Russell v Pine River SC [1996] QPELR 239 Warringa Shire Council v Sedevcic (1987) 10 NSWLR 335 Woolworths Limited v Caboolture Shire Council [2004] QPEC 026 -- 1 of 25 -- 2 COUNSEL: Mr E Morzone for applicant Mr S Fynes-Clynton for respondents SOLICITORS: Brisbane City Legal Practice for applicant King and Co for respondents [1] This is an application by the Council for: (a) declarations under s 4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the first and/or second respondents have carried out and/or are carrying out an unlawful use of land situated at 42 Depot Road, Deagon (“the Depot site”) for the purposes of Industry and/or Warehouse; and (b) enforcement orders under s 4.3.26 of IPA directing the respondents to stop the continued unlawful use of the Depot site and to return it to a condition as near as practicable to the condition it was in immediately before the development offences occurred. [2] The respondents are husband and wife and the joint owners of the Depot site. The Site [3] The Depot site is a triangular parcel of land on Depot Road, immediately to the west of the Gateway arterial road. Depot Road carries a high volume of traffic as it acts as an important connector road. Future road works are likely to make it even busier. [4] The Depot site was once owned by the Council and used as a parks maintenance depot. It had three sheds on it, apparently in poor repair. It was also once used as a bulk storage facility. It became surplus to the Council’s requirements and so it was sold to private individuals who, on 28 May 2001, sold it to the respondents. The contract was settled on 3 August 2001. [5] In his affidavit filed on 6 April 2004 Mr Wild swears that he did not at that time have a zoning search of the Depot site done because it was too expensive and on the -- 2 of 25 -- 3 information he had (particularly the Draft Site Management Plan of the Environmental Protection Agency, exhibit 18) he believed the zoning to be industrial. [6] Since its acquisition by the respondents the Depot site has not been the subject of any consent, permission or approval issued by the Council. Nor has there been lodged any application for material change of use. City Plan provisions [7] At all material times the operative town planning scheme was City Plan 2000 under which each parcel of land is placed within an Area Classification shown on scheme maps. Under Ch 3 each Area has Desired Environmental Outcomes and level of assessment tables that determine the levels of assessment applicable to proposed development in the Area. [8] Under City Plan the site at all material times has been designated Parkland Area, in which the use of premises for the purposes of Industry or Warehouse is impact assessable. [9] In Ch 3, Part 10 of City Plan “Industry” is defined to mean: “a use of premises that, in the course of any trade or business, involves: • the … storage or transfer of any article, material or thing whether solid, liquid or gaseous and “Warehouse” is defined, relevantly, to mean: “a use of premises for the storage of goods, whether or not in a building …” -- 3 of 25 -- 4 [10] Each of those uses includes the notion of storage. The most appropriate definition of the verb “to store” (from which the noun “storage” comes) in the shorter Oxford English Dictionary is: “to accumulate, hoard … Of a receptacle: to hold, keep, contain …” Thus, “storage” does not necessarily suggest that the activity is done as a business although, of course the definition of “industry” expressly involves that concept. Use of the Depot Site [11] Mr Wild is a guard in Queensland Rail but also has private business interests which he carried on in partnership with Mrs Wild. In his affidavit filed on 6 April 2004 he says that he was introduced, in late June 2001, to a man named Nicol, as a potential tenant of the Depot site. Nicol was interested in using the Depot site as land on which to recycle building materials. In anticipation of Mr (and Mrs) Wild becoming owners of the Depot site, Mr Wild and Nicol signed a document called an “Agreement to Lease”, which is exhibited to the affidavit. It provided for a 12 month tenancy from 7 July, for Nicol to pay rent and “the outgoings for the last 6 months of the said tenancy to $600”, and was expressed to be “subject to Council approval within 7 days”. [12] Then by written document dated 3 August 2001 Mr and Mrs Wild entered into a Commercial Tenancy Agreement (exhibited to Mr Wild’s affidavit) with Nicol in relation to the Depot site. It was for a term of 12 months commencing on 6 August 2002 at a rent of $400 per week, with an option for a 12 month further term. The permitted use was “industrial” and special conditions referred to Nicol paying “outgoings” calculated at a sum “pcm” which I interpret as being “per cubic metre”. -- 4 of 25 -- 5 In oral evidence Mr Wild said that the only expenses relating to the site which he expected to pay was Council rates. [13] In his affidavit Mr Wild said that he knew when he leased the Depot site to Nicol that he intended to use it for recycling materials, that he required Nicol to obtain any necessary Council approvals but that in any event he understood the Depot site to be zoned for industrial purposes. From the outset of the lease period (early August 2001) he saw that waste building materials were being placed on the Depot site. At about the end of August 2001 (when the Depot site was covered to the depth of 1m) he became aware that Nicol had also leased the land at Ullswater Street, Virginia (“the Ullswater site”) to take advantage of what Nicol told him was a booming and profitable business. However Nicol told him that the business was hampered by lack of proper equipment. [14] In his affidavit Mr Wild swears that from what Nicol told him he formed the opinion that the business, properly financed, managed and operated, would be very profitable and he therefore formulated a proposal whereby, in return for a 10% share in the business, including a 10% share in the profits, he would set up a company in which the two of them would be shareholders, that he would supply the necessary heavy machinery, obtain all necessary permits to run the business and look after the “paperwork aspects of the business”. Once these arrangements were put in place, Nicol’s business would be run by the company. [15] He swears that he incorporated a company called S&M building and Demolition Recycling Pty Ltd (“S&M”) (on 5 October 2001), provided to Nicol a Volvo truck and an excavator and opened a company bank account (on 8 October 2001). He -- 5 of 25 -- 6 says that he also at about that time made enquiries of the Council and was told that the Depot site was zoned Parkland and that no industrial use was permissible. He was shocked to hear that, but felt there was nothing he could do about it. In the context of his affidavit it seems that he received this information sometime in early October 2001. [16] Mr Wild swears that during October 2001 he became increasingly aware that Nicol was incapable of running his side of the business properly and determined not to go ahead with the business proposal. He says he does not recall “ever speaking to Nicol and stating in simple terms that I had decided not to go into business with him”. In order to get the site cleaned up and to receive his rent he continued to give Nicol the use of the excavator and the Volvo truck. However he noticed that more material was arriving on the Depot site, until it was completely covered, to a depth of about 5m. Nicol (who still had the Volvo and the excavator) paid occasional lump sums, sometimes actually being in credit. They let the arrangement drift on. By November 2002 Nicol was in substantial default under the lease agreement. [17] On 28 October 2002 Mr Wild and Nicol executed a deed in which Mr Wild undertook to buy a Mercedes Tipper Truck and dog and a drott and provide an excavator and a Volvo truck to Nicol for use by him “in the conduct of his business”. He also undertook for reward to supply to Nicol “the use of the property”, property being defined in the recitals as the Depot site. The recitals also state that:- “C. Wild and Nicol are shareholders in (S & M); D. Nicol conducts a business on his own account at “(the Depot site)” in the conduct of which he uses the excavator”. -- 6 of 25 -- 7 [18] Mr Wild swears that the deed referred to was entered into as a means by which, he hoped, the Depot site would be cleaned up; to give him the right to control S & M; to receive rent and some reimbursement of his own costs of leasing the machinery; and if necessary the power to seize the machinery in the event of default. [19] Mr Wild swears that despite the injection by him of considerable sums of money to fund Nicol’s cleanup of the site it remained substantially in its overburdened state. So in about Easter 2003 he took possession of all of the equipment. [20] Some minor cleanup of the Depot site was carried out by Mr Wild himself by agreement of the parties between April and October 2004. His oral evidence is that he cannot afford to do more because using his machinery to do that precludes it being used elsewhere to gain an income to cover his leasing costs on the machinery. Admissions by Mr Wild [21] On 11 October 2001 a Council officer named Vogler (in company with a colleague, Mr Barkmeyer who gave written and oral evidence in these proceedings) went to the Ullswater site and spoke to Nicol and Mr Wild, predominantly about what was being done on that site. [22] Much of what was said about the activities carried on at the Ullswater site was actually spoken by Nicol. Some things in the nature of admissions were actually spoken by Mr Wild and insofar as they constituted admissions of fact are receivable against him. Some statements made by Nicol are also receivable against Mr Wild as admissions of fact because they were said in his presence and of him, in circumstances which in my view called for a denial or a disavowal by him if what -- 7 of 25 -- 8 was said was untrue or did not concern him or his activities. Furthermore, what Nicol said was consistent with statements made by Mr Wild himself. See Cross on Evidence, Australian Loose Leaf Service paras [33470] seq. [23] Reference to the transcript of the conversation (exhibited to Mr Barkmeyer’s affidavit filed 23 December 2003) satisfies me that Mr Wild made the following admissions: that he was a partner with Nicol in a business of re-cycling materials; that he had “bought into the business”; that the use of the Ullswater site for dumping had begun about 6 weeks previously but had ended on 6 October; that the two were directors of a company called S & M Demolition Timber Pty Ltd; that the company was operating the re-cycling operation at the Ullswater site; that they (or the company) were trading under the name “Depot 42” for which a “flyer” had been produced and distributed to six customers, after which “this business” had really “taken off”; that the recycling of some of the materials returned money to them; that the business had been operating at the Ullswater site for about six weeks; that there was a “real market for this re-cycling”; that Mr Wild was obtaining an excavator which would have the Ullswater site cleaned up by 3 November 2001; that he was waiting for finance for the excavator to be approved. [24] Nicol then gave to the Council officers the flyer which had been mentioned, which now appears as an exhibit to Mr Barkmeyer’s affidavit of 23 December 2003. It is headed “Opening Today” and gives the date of 6 August 2001. It gives the business name of “The Depot”, at 42 Depot Road, Deagon (that is, the Depot site), which it describes as a “new dumping site”. It contains a map on which is superimposed the legend “We are Here” from which an arrow points to the Depot site. -- 8 of 25 -- 9 [25] S & M was duly registered on 5 October 2001 with Nicol and Mr Wild identified as directors and shareholders and the Depot site as the principal place of business. It does not seem that any trading name was ever registered under the Business Names Act 1962. [26] Mr Barkmeyer said that as at 11 October 2001 there was material to a depth of about 1.5m on the Depot site. On the evidence, it is most likely that the dumping of that material began on or soon after 6 August 2001. [27] The admissions sometimes were of facts which were not strictly accurate. Thus Nicol and Mr Wild appeared to accept that a dumping fee of $10 per m3 is on the flyer (it actually specified $12); Mr Wild said “We are trading under the name ‘Depot 42’” (the flyer actually has “The Depot”); the correct name for S & M is in fact “S & M Building and Demolition Recycling Pty Ltd”. However each of those inaccurate admissions was made in answer to a leading question which contained the inaccuracy and the admissions are clear enough to be safely acted upon. [28] According to a statement made by Mr Wild on 27 October 2003 to a Council officer (see Mr Barkmeyer’s affidavit), Nicol took over possession and control of the Depot site from 3 August 2001, since when he, Wild, was merely the owner of the site. He said that when at the Ullswater site he had tried to “get Mr Nicol off” S & M so that he could “terminate the company”. In Easter 2003 he took back the truck and equipment because Nicol was substantially in arrears of rent, although Nicol would still have access to the depot site to clean it up. -- 9 of 25 -- 10 Enforcement Proceedings [29] Mr Wild was served with a show cause notice under s.4.3.9 of IPA in November 2001 (in relation to the Ullswater site), and on 17 December 2001 the Council served him with a complaint and summons under s.4.3.20 of IPA alleging a development offence. That action was later withdrawn by the Council. [30] Similar steps against Nicol in relation to the Depot site led to his conviction on 26 March 2003 in the Magistrates Court for a development offence. Consequential orders were made that he cease the conduct and restore the Depot site. He has ceased the conduct but has not restored the site. Findings of Fact [31] Both in his affidavit and in cross-examination Mr Wild sought to explain the statements he made to the Council officers on 11 October 2001. He said that any statements made by him which suggested actual present involvement by him in the business of recycling at the Ullswater site were meant to refer to what would occur in the future when S & M took over the business and a trading name became registered. He said that references to “we” and “us” in connection with the business should be read in that context. He disavowed any connection with the advertising flyer. [32] I find those attempts by Mr Wild to be quite unconvincing and destructive of his credibility. I do not accept his evidence of non-involvement with Nicol in the recycling business. His admissions clearly show him to be Nicol’s business partner -- 10 of 25 -- 11 at the Ullswater site as at 11 October 2001. They also show him to be intending to continue the business into the future. [33] What does not appear is the date on which his business relationship with Nicol began. Obviously it began on some date before 11 October 2001. The admissions clearly imply that, but I am not prepared to infer that it began before the commencement of the operations at the Ullswater site which, on the evidence was about 6 weeks before 11 October, that is, about 30 August 2001. Nothing establishes Mr Wild as having been actively engaged in the business when it was being carried on at the Depot site before the move to the Ullswater site. So I find that Nicol was solely responsible for the placing on the Depot site of overburden to the depth of about a metre during August 2001. [34] However I am prepared to find that Mr Wild, having joined Nicol in a booming and profitable recycling business at the Ullswater site intended to continue in that business. The evidence is that the operations at the Ullswater site were to come to an end at about 3 November 2001 and to assist in that Mr Wild was arranging the purchase (or lease) of an excavator. It was actually leased by Mr Wild on 26 October 2001. Photos show the excavator to be a very large machine and the leasing cost of it to be considerable ($574 per month). [35] If, as I find, Mr Wild wanted the booming and profitable business to continue, and if it could not do so at the Ullswater site after early November 2001, was there another site at which the business could be located? Indeed there was, the Depot site. On his admission they were trading under the name Depot 42. The inference is irresistible that Mr Wild (and Nicol) would revert to that available site, owned by -- 11 of 25 -- 12 Mr and Mrs Wild and leased by Nicol on which to use the large excavator to continue the booming and profitable business. Furthermore, that profitable business would enable Nicol to pay the rent on the Depot site as well as a return to Mr Wild on the lease cost of the excavator. [36] Mr Wild has continually stated in his affidavit and orally, that S & M never took up the business for which it was registered. That may be so but I am satisfied that, irrespective of the medium employed (company, formal or informal partnership) from early November 2001 on, Mr Wild continued for some period his association with Nicol in the business of the dumping and recycling of materials at the Depot site. I regard as significant the passage in his affidavit that when the business reverted to the Depot site he never told Nicol “in simple terms” that he had decided not to go into business with him. He already was in business with him. It defies belief that Mr Wild would not have expressly told Nicol of his intention to bring that relationship to an end. There is no evidence that he personally dumped or recycled any material; rather the evidence is that the physical work was done by Nicol. But I am satisfied that for some period the business relationship continued in the expectation of profit. Mr Wild denied that he ever received any money in the form of part of a profit and I am not disposed to find that he did. He did, however, receive money from Nicol from time to time representing rent of the Depot site and reimbursement for use of the equipment, and in that sense Mr Wild was the financial beneficiary of Nicol’s labours. Had the business not been carried on I think it unlikely that Nicol would have been able to make any payment to Mr Wild at all. -- 12 of 25 -- 13 [37] I do not doubt Mr Wild’s evidence that the matters just drifted on until he felt obliged to repossess the machinery in about April 2003 or that since then Nicol has done nothing physical on the Depot site. Indeed they have fallen out. Knowledge of Illegality [38] On one point I accept the evidence of Mr. Wild. I accept that when he bought the Depot site he believed that it was zoned industrial so that a recycling business could lawfully be maintained on it. That view was supported by the appearance of the site as well as the EPA Site Management Plan. [39] However he was later told by a Council officer (in early October 2001) that the Depot site was in the Parkland area and that no industrial use was permissible and he obviously accepted that as the fact. Standard of proof [40] A number of Planning and Environment Court decisions with which I agree (Hawkins and Anor v Permarig Pty Ltd (no. 3) [2001] QPELR 423; Caloundra City Council v McCreath [1998] QPELR 178 at 182; Crowther v State of Queensland [2003] QPELA 346 at 3621) have decided that the standard of proof in respect of proceedings such as these is the Briggenshaw standard of the balance of probabilities but having regard to the consequence of the findings (see Briggenshaw v Briggenshaw (1938) 60 CLR 336). The onus of proof will slide towards the criminal standard, the more serious the consequences of a finding of an offence. -- 13 of 25 -- 14 [41] It was submitted by Mr Fynes-Clinton for the respondents that in fixing an appropriate standard of proof I should be swayed by the fact that most of the acts giving rise to those proceedings were done by another person, Nicol. But I have found it to be the fact that Nicol did those acts (other than some relatively minor activities in August 2001) pursuant to an express agreement with Mr Wild. So I do not accept that submission. I apply the standard of the balance of probabilities but in applying it I recognise the seriousness of the allegation, and the potentially serious financial consequences for the respondents. [42] As I have found, Nicol was solely responsible for the dumping of materials over the entire Depot site to the depth of about 1 metre. Does that mean that the respondents, if liable, are responsible only to the extent of the extra (approximately) 4 metres of overburden? I think not. Mr Wild’s evidence establishes that Nicol was able, for some months, to make spasmodic payments of rent and equipment charges, even to the point of occasionally being in credit. It seems obvious therefore that some substantial removal and resale of on-site materials took place. It would, I believe, be impossible to quantify how much, if any, of the original materials remained afterwards. Was there a Development Offence? [43] On the findings I have made the initial storage by Nicol of the materials on the Depot site, being in the course of the business referred to in the flyer, fell within the definition of industry in City Plan. See para. [9]. But I have found that Mr Wild has not been shown to have done anything active in relation to that. He was merely the owner of the Depot site and leased it to Nicol. He did know that Nicol intended -- 14 of 25 -- 15 to use the site for a recycling business but at that time he believed the site to be zoned industrial, on which the storage of materials, for profit, would be lawful. See Ashfield Municipal Council v Andrews & Ors (1986) 60 LGRA 248. [44] Section 7 of the Code, which is a provision of general application (see Renwick v Bell [2002] 2 Qd R 326) relevantly is: “Principal Offenders 7.(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say – (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence.” [45] It was accepted by both parties that to carry on the use of industry or warehouse on a parkland area would be assessable development requiring impact assessment and to carry out assessable development without a development permit is an offence (IPA s 4.3.1). It was thus common ground that the activity carried out on the Depot site from about August 2001 onward and more relevantly from early November 2001 onward, constituted an offence by the person who actually carried it out (Nicol). The question is whether Mr Wild also committed the offence. The answer to that lies in the application of s 7. [46] Before liability under s 7 can apply it must be shown that, knowing all of the essential facts that made what Nicol intended to do (and did do) an offence Mr Wild -- 15 of 25 -- 16 intentionally did an act or acts to assist Nicol to carry out his purpose or to counsel him to do so. See, e.g. Georgianni v The Queen (1988) 156 CLR 473. The essential facts constituting Nicol’s offence were (so far as the use of “warehouse” is concerned) (a) the storage of materials on the Depot site, (b) the fact that the Depot site was parkland, (c) that such storage was unlawful without the requisite permit from the Council (R v Beck [1990] 1 Qd R 30 at 38: R v Jeffrey CA 154 of 1997) and (d) the fact that no such permit had been obtained from the Council. There is no doubt, on any standard of proof, that each of those facts occurred. [47] On the findings I have made Mr Wild, at least from about early October 2001 onward, knew each of those facts. He then knew that Nicol intended to store (and did later store) materials on the Depot site (Mr Wild had agreed with Nicol that he do so); he knew that the Depot site was Parkland (he had been told so by a Council officer); he knew that such storage was unlawful without the requisite permit from the Council (he had been told so by the Council officer) and he knew that no such permit had been obtained (because he and his wife had never given written consent to the making of an application for a permit, IPA s 3.2.1(3)(a)(ii)). Had he signed, and had his wife signed such a document I am confident he would have said so in his affidavit or oral evidence. So Mr Wild knew that Nicol intended to commit the development offence of using the Depot site as a warehouse, which was an unlawful use in the absence of a permit from the Council to do so. [48] Having that knowledge Mr Wild did things to assist Nicol to commit the development offence. At the outset he actually provided Nicol with the excavator, then later other heavy machinery. It is true that Mr Wild had, as one motive for so doing, facilitating payment by Nicol of rent for the land and for the use of the -- 16 of 25 -- 17 equipment but that cannot be taken to be his sole purpose. To the question “What was Nicol going to use the excavator for?” the answer must be “To store the dumped material and to do so unlawfully”. So Mr Wild knowingly assisted Nicol to commit the development offence and was also guilty of the offence under s.7(1)(b) and/or (c). [49] Indeed, until Nicol’s operations ceased to be carried on as a business for profit his use of the site would also have been that of industry, which was equally unlawful. The date that came about is not possible to find with accuracy and does not matter. The provision of the excavator aided Nicol to use the site for a warehouse; it also aided him to carry on an industry for as long as his activity amounted to trade or business. It is convenient to concentrate on the unlawful warehouse activity as opposed to the unlawful industry because it is possible that non-business storage extended over a longer period than the industry, that is the carrying on by Nicol of a trade or business. [50] Why Mr Wild pressed ahead with his agreement with Nicol has not emerged. Perhaps he thought that in the light of the appearance of and history of the Depot site, and the contents of the EPA plan of management, the Council would turn a blind eye to the unlawful storage. Perhaps he considered it to be merely a technicality. One can guess at the reasons but in the upshot it does not matter. [51] Having aided Nicol to carry out a warehouse use unlawfully, Mr Wild is, just as Nicol is, liable to stop it and to remove the stored material. (IPA s.4.3.26(1)(a) and (d)). -- 17 of 25 -- 18 [52] An order directing Mr Wild to stop the continued unlawful warehouse use of the depot (subject to later considerations which I deal with in paras [68]-[73]), should be made. The question now is whether the second order should be made, that is, to require him to re-instate the Depot site. It is common ground that whether I make such an order is within my discretion which is a wide one. Liability of Mrs Wild [53] So far, for convenience, I have referred only to Mr Wild’s activities in respect of the Ullswater site and the Depot site. I have not referred to any participation by Mrs Wild. She was joined as a respondent very late, actually during the course of the hearing. She did not give evidence, oral or written. Mr and Mrs Wild cohabit. She is a schoolteacher so presumably she is an educated woman. She is in partnership with Mr Wild in his various business concerns and joint owner or hirer of the machinery used in the business. She keeps the necessary books of account from which taxation returns are prepared. Mr Wild said that the two of them discuss their business. [54] There is no evidence that Mrs Wild ever personally did anything in relation to the Depot site or the Ullswater site. There is no evidence that she ever met Nicol or spoke to him about business matters. Mr Wild said that she drove past the Depot site and saw that Nicol was dumping material there. She did not sign the tenancy agreement for the Depot site. [55] In order to have Mrs Wild rendered liable by s.7 of the Code I would have to be satisfied on the balance of probabilities (conscious of the seriousness of the matter) -- 18 of 25 -- 19 of the same facts in relation to her as I have found in relation to Mr Wild (see paras [47] and [48]). Thus I would have to find:- (a) that she knew that Nicol intended to store materials, and did later store materials, on the Depot site; (b) that she knew that the Depot site was Parkland; (c) that she knew that the storage was unlawful without the requisite permit from the Council; (d) that she knew that no such permit was obtained; (e) that she agreed that she and Mr Wild would provide Nicol with the excavator to use in the storage of materials in the Depot site. [56] I am quite prepared to infer that Mr and Mrs Wild discussed their joint businesses and their finances and that she knew and consented to:- (a) his arrangements with Nicol for Nicol to lease the Depot site; (b) the fact that Nicol stored demolition materials on the Depot site from early August 2001; (c) that Mr Wild and Nicol jointly operated the Ullswater site business; (d) that Mr Wild agreed with Nicol that they would transfer the business to the Depot site in early November 2001; (e) that Mr Wild and she were to provide, and did provide, Nicol with their jointly leased excavator to use at the Depot site to store demolition materials; (f) that it was their joint hope that they would receive money in the form of rent for the land and fees for the provision of the excavator; -- 19 of 25 -- 20 (g) that Nicol, from early November 2001 on, actively stored demolition materials on the Depot site, that some money was received from him and that stored materials remain there. [57] All of those facts were, I am satisfied, what one would expect to be shared knowledge between a married couple in the position of Mr and Mrs Wild. It would be extraordinary if Mrs Wild were not made aware of each of them and did not agree with her husband’s actions. [58] However, two vital aspects of the s.7 essentials remain:- (a) her knowledge that the storage activity was unlawful in the absence of Council permission; (b) her knowledge that such permission was never obtained. [59] It is conceivable that Mr Wild told his wife about the need for Council permission and that without it their enterprise with Nicol would be unlawful. It is conceivable that they agreed to press on without obtaining that permission. But it is also conceivable that while Mr Wild was prepared to act unlawfully, he had no wish to make his wife a party to it and kept that aspect of the matter to himself. On the evidence before me I see no basis on which to prefer the inference unfavourable to Mrs Wild over the inference consistent with her innocence. I therefore decline to make the orders sought against her. Discretion [60] In Warringa Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 Kirby P, with whom other members of the Court of Appeal agreed, set out guidelines for the -- 20 of 25 -- 21 exercise of discretion in cases such as these. These guidelines have been frequently adopted in Queensland (see, for example, NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706; Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167 at 171; Russell v Pine River SC [1996] QPELR 239). [61] Mr Morzone submitted that the following factors weigh in favour of my exercising my discretion to grant the relief sought by the applicant: (a) the relief is sought by the responsible local government which represents the public interest. Considerations of the public interest are paramount (see Sedevcic (supra) at para 4 of the guidelines). Two particular matters of public interest are involved: (i) there has already been quite a serious fire in the stockpiled material and there is concern that it may again catch fire. Such a fire is difficult to put out and the smoke affects the Gateway motorway. Closure of the motorway was contemplated on the previous occasion; (ii) as recently emphasised by this Court in Woolworths Limited v Caboolture Shire Council [2004] QPEC 026, securing obedience to planning laws is important. Unless enforced, a breach in one case may lead to breaches in others and to a general feeling that the law is being ignored. (b) the continued use has no “beneficial effect” (see Sedevcic (supra) at 339F). The use involves unacceptable town planning impacts and Mr Wild cannot establish any overriding public benefit in leaving the use in place; -- 21 of 25 -- 22 (c) Mr Wild acted in disregard of the planning scheme. He well knew that the use was unlawful at an early stage. He may have simply been assuming that the Council would not bother to intervene (see para [50]. [62] Mr Fynes-Clinton however submitted that, should I make findings adverse to Mr Wild, nevertheless in the exercise of my discretion I should decline to order him to reinstate the site. Although his written submissions were generally expressed to relate to the making of the enforcement order generally, the detail clearly relates to the re-instatement order. [63] He submitted that the Council has been guilty of delay. The broad thrust is that the Council should have taken enforcement steps in October 2001 when only about a metre of overburden covered the Depot site. It is said that the Council stood by and allowed Nicol to continue to worsen the problem. But against that are my findings that Nicol’s activity on the Depot site, until the overburden reached its current depth, was pursuant to express agreement between Nicol and Mr Wild, Mr Wild being well aware of the illegality. Mr Wild made the agreement in order to receive money. This submission does nothing to persuade me against making the order sought. [64] Mr Fynes-Clynton points to the hardship which would be visited on Mr Wild, his wife and their children. Obviously it would be very expensive to remove the stored material, the estimates ranging from $130,000 (based on Mr Wild’s bare costs if he did it himself) to $600,000 if done commercially by others. The uncontradicted evidence is that Mr Wild can not afford even the $130,000. He has heavy financial -- 22 of 25 -- 23 commitments elsewhere. It was submitted that his choice would be either contempt of court or bankruptcy. [65] Then it is submitted that the Council, having obtained the appropriate orders against Nicol, can itself clean up the Depot site and, under s.1066 of the Local Government Act 1993 (“LGA”), recover the cost from Nicol. That is hardly fair to the Council. The clean-up cost is very high; Nicol, it appears, would be unlikely to be able to repay it. Moreover, if the suggested course were followed it may be debateable whether the Council could recover the cost from Mr Wild in the absence of an order of the type sought by the Council. And it must be remembered that Mr Wild is not rendered liable by a technicality. I have found he well knew what the legal position was. [66] Then it is submitted that the Council should be denied its remedy because of the attitude of Mr Carkeet, the Council planner with whom Mr Wild had a number of discussions and who told him that the land could be developed only consistently with Parkland and according to Mr Wild, summarily dismissed any alternative suggestion. [67] It is true that Mr Carkeet, in evidence, favoured consistency with Parkland development. But I am confident Mr Wild knew that Mr Carkeet was but one Council officer and did not speak for the Council. Negotiations with the Council did not get past the pre-lodgement meeting stage. No application for material change of use was ever made. Such an application could have been made as early as late 2001. Indeed, it does not appear from the evidence whether Mr Wild ever took professional advice from a planner on the possibility of making a formal -- 23 of 25 -- 24 application. A planner would have known that the assessment of the application would have been by a Council team, with rights of appeal in the event of an unfavourable decision. Indeed, the history of the site as evidenced by the material tendered would suggest to me that a consultant planner could well have mounted a persuasive case for a material change of use. [68] All in all the facts do not leave me with any marked sympathy for Mr Wild and only the heavy cost of reinstatement (para [64]) gives me pause. [69] The Depot site must be reinstated. However, the plain fact is that as things stand at the moment, Mr Wild cannot afford to reinstate the site. For the Council to do it would be a heavy burden on the rate-payer and ultimately would probably bankrupt Mr Wild. In such circumstances one looks for a possible practical solution. [70] In evidence, Mr Wild seemed to have some confidence that if, even temporarily, he could use the site as a transfer station on a commercial basis, he could reinstate it. If that were done successfully, then the Council would have achieved its intention in bringing this application and the respondents would have a site capable of being put to some lawful (and one hopes profitable) use. [71] While the evidence before me was quite insufficient to reach conclusion whether use of the site as a transfer station would be a proper planning result, I note that IPA, s.3.5.31 allows development under a sunset clause. So, if I were to be satisfied by credible evidence that the respondents were in a position to operate (or to obtain an operator for) a successful transfer station which would, within a reasonable time, reinstate the site, then I would consider adjourning the application for a -- 24 of 25 -- 25 reinstatement order pending the obtaining of Council permission to carry out that use, on a sunset condition. [72] I propose, therefore, to hear submissions (and evidence if necessary) to decide whether the respondents can advance a genuine plan for the transfer station or some other use which would clean up the site. Failure to satisfy me would, of course, have the consequence of my making against Mr Wild the reinstatement orders sought. To enable the respondents to consider their position, I adjourn the further hearing of this application. -- 25 of 25 --