Beaudesert Shire Council v Brecevic & Ors [2003] QPEC 52 [2004] QPELR 220

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Beaudesert Shire Councilv Brecevic v Big Boulder Walls Pty Ltd [2003] QPEC 052 PARTIES: BEAUDESERT SHIRE COUNCIL Applicant v DULIANO BRECEVIC AND MAXINE BRECEVIC First Respondents And BIG BOULDER WALLS PTY LTD Second Respondent FILE NO: 805 of 2001 DIVISION: PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 12 September 2003 DELIVERED AT: Brisbane HEARING DATE: 18 August 2003 JUDGE: McLauchlan QC ORDER: Determination of preliminary issue CATCHWORDS: Development offence – contempt - IPA COUNSEL: App: W Cochrane; Res: PJ Callaghan SOLICITORS: App: Corrs Chambers Westgarth; Res: Anderssens [1] There is an application before me that the first respondents be imprisoned or otherwise punished for contempt of court, for failing to comply with various orders of the Court which have been made in response to an originating application, filed on 23 February 2001, seeking orders restraining the respondents, their servants, employees, agents and contractors from (inter alia) removing surface rock from a property described as Lot 12, Survey Plan 113604 Parish of Palen situated on the -- 1 of 10 -- 2 Boonah-Rathdowney Road, Rathdowney, Queensland until further order, and other similar applications filed in that proceeding. [2] There is a further application, an originating application, filed on the same date by the applicant Council against the same respondents and two further respondents, seeking orders or declarations that the respondents have committed a development offence by undertaking surface rock removal on that property otherwise than in accordance with a development permit granted by the court on 5 March 2002. That application is of only marginal interest at present, because the respondents have raised a preliminary issue broadly to the effect that the conduct which is relied on as constituting contempt of the various court orders, also, if proven, would constitute a development offence under IPA, and that in that situation the Court would decline to entertain the application to commit for contempt and would leave the applicant Council instead to take the appropriate proceedings against the respondents for the commission of the development offences. [3] At this point I am asked to determine that question upon the assumption that the evidence will establish conduct on the part of the respondents which amounts both to a development offence under IPA and contempt, in the sense of disobedience to court orders and undertakings. [4] The history of the matter may be stated in the following way: A development application dated 19 January 2001 was lodged by the first respondents with the applicant Council, seeking a development permit for a material change of use of the land situated at 4068 Boonah-Rathdowney Road, Rathdowney for surface rock removal. On 31 January 2001 a -- 2 of 10 -- 3 facsimile letter was sent by the Applicant’s solicitors to the first respondents seeking an undertaking that they cease rock removal alleged to be occurring on the land pending the outcome of the development application. On 23 February 2001 an originating application was filed by the applicant seeking an order pursuant to s 4.3.22 IPA restraining the first respondents and the second respondent from undertaking surface rock removal on the land. On the same date an interlocutory order was made restraining the respondents from undertaking surface rock removal on the land until further order. On 13 July 2001 the Applicant issued a decision notice in the development application advising that the Council had resolved on 10 July 2001 to refuse the development application. It appears that that decision was beyond power because the applicant was obliged to approve the application subject to conditions. On 21 August the first respondents filed an Appeal (No 4028 of 2001) against the applicant’s refusal of the development application. On 18 October 2001 an application within the originating application was filed by the applicant seeking orders pursuant to s 4.1.5 IPA that the respondents be imprisoned or otherwise punished for contempt of court in failing to comply with the order of 23 February 2001. By order dated 6 November 2001 the application was adjourned to a date to be fixed, being a date after the determination of Appeal No 4028 of 2001, that order being made upon various undertakings by the respondents including undertakings :– (b) To grade and level the disturbed area at a particular location on the land and to seed the graded and levelled disturbed area with pasture grass indigenous to the area; and (c) not to remove any surface rocks from the surface of Lot 12 on SP 113604; and -- 3 of 10 -- 4 (d) not to remove any surface rocks from Lot 12 on SP 113604 to a place outside Lot 12 on SP 113604. [5] On 28 February 2002 the applicant filed a further application within the originating application seeking orders that the respondents be imprisoned or otherwise punished for contempt of court for failure to comply with the order of 23 February 2001 and failure to comply with the order of 6 November 2001 (which would be more accurately put as a failure to comply with the undertakings recorded in that order). That application was to be heard by the court on 5 March 2002. On that date Appeal No 4028 of 2001 against the refusal of the development application was determined, the appeal being allowed and a development permit granted for surface rock removal on the property, subject to conditions which were set out in the order. [6] On 3 April 2002 a further order was made by the Court which is inelegantly expressed in that the substantive portion of the document is not expressed as an order, but which appears to have the effect or intended effect of varying the two undertakings earlier given by the respondents with respect to the removal of rocks from the surface of Lot 12 on SP 113604. The undertakings were varied to read: “(c) otherwise than in accordance with the development approval issued by this Honourable Court on 5 March 2002, not to remove any surface rocks from the surface of Lot 12 on SP 113604” and “(d) otherwise than in accordance with the development approval issued by this Honourable Court on 5 March 2002, not to remove any surface rocks from Lot 12 on SP 113604 to a place outside Lot 12 on SP 113604”. [7] On 16 April 2002 the application to have the respondents dealt with for contempt filed on 28 February 2002 came before the Court and resulted in the male first respondent being fined a sum of $1,000, with no conviction recorded. Essentially the respondent conceded that he had acted in breach of the undertakings given on -- 4 of 10 -- 5 6 November 2001, by conduct which had occurred on 15 and 16 February 2002, i.e. prior to the date of the development permit. [8] It seems clear enough that those undertakings were given to regulate the situation until the appeal against the refusal of the development application had been decided. That is indicated by the order adjourning the application to a date after the determination of the appeal. At the hearing of the application on 16 April 2002 an application was quite properly made to discharge the undertakings which, perplexingly in so far as they related to surface rock removal from the property, were continued in existence by the order of 3 April 2002, but modified to take into account the effect of the development permit which had then recently been granted. There was some reason to continue the undertaking with regard to grading, levelling and seeding of disturbed areas upon the land, but the undertakings with respect to surface rock removal as varied simply duplicated the position which resulted from the combined effect of the provisions of IPA with respect to development permits, and the terms of the development permit itself. That is to say, conduct which after 5 March 2002 would constitute a development offence under IPA would also constitute a breach of the undertakings whilst those undertakings were continued in force. [9] The application to discharge the undertakings was resisted on the basis that it was necessary to continue the other undertaking or undertakings mentioned. No application was made to discharge simply the undertakings with respect to surface rock removal. Had such an application been made it is my view that it would have been granted in the circumstances, since the need for the undertakings had -- 5 of 10 -- 6 disappeared, with the grant of the development permit, and no breach of the permit conditions was asserted. [10] The current application within Application No 805 of 2001 is a further application for punishment of the respondents for contempt. The grounds stated in support of the application are:- “1. The first respondents are the owners of the land. 2. The first respondents are directors of the second respondent. 3. The land is included in the Rural zone of the applicant’s Transitional Planning Scheme. 4. The respondents, their servants, employees or contractors have been undertaking surface rock removal on the land. 5. On 23 February 2001 the applicant filed Application No 805 of 2001 (“the Application”) with this Court seeking a restraining order against the first respondents and second respondent from undertaking, or allowing to be undertaken, surface rock removal on the land. 6. On 18 October 2001 the Applicant filed an application within the Application seeking an order that the first respondents and second respondent were in contempt of the order of this Court made on 23 February 2001. 7. On 6 November 2001 this Court made an order further restraining the first respondents and the second respondent from undertaking surface rock removal on the land and adjourning the hearing of the Application until the appeal had been determined. 8. On 1 March 2002 the Applicant filed a further application within the Application seeking orders that the first respondents and second respondent were in contempt of the orders of this Court made on 23 February 2001 and 6 November 2001. 9. On 3 April 2002, this Court varied the order made on 6 November 2001 to allow the first respondents and second respondent to undertake surface rock removal on the land in accordance with the conditions of the development permit. -- 6 of 10 -- 7 10. On 16 April 2002 this Court fined the first respondent $1,000 for being in contempt of the orders of this Court made on 23 February 2001 and 6 November 2002. 11. Compliance inspections conducted by officers of the Applicant, in accordance with the conditions of the development permit, on 6 August 2002, 14 April 2003, 6 May 2003 and 30 May 2003 have revealed that surface rock removal is being undertaken on the land not in accordance with the conditions of the development permit and therefore in contempt of the orders of this Court made on 23 February 2001 and 6 November 2001.” [11] It will be observed that the conduct now complained of is conduct which occurred subsequent to the granting of the development permit on 5 March 2002. It is not conduct in respect of which the respondents’ undertakings are required to be invoked in order to visit the conduct with appropriate punishment. [12] In terms of the traditional dichotomy, the contempt alleged against the respondents is a civil contempt rather than a criminal contempt. Modern authority holds that the distinction between the two is illusory, and that both kinds of contempt are essentially criminal in nature: Witham v Holloway (1995) 183 CLR 525. Nevertheless the present situation is one in which adequate powers to impose punishment and restraint in respect of the respondents’ conduct exist apart from proceedings for contempt, and those proceedings rely upon undertakings which ought to have ceased upon the granting of the development permit on 5 March 2002, which thereafter was intended to, and did, regulate entirely the rights and obligations of the respondents with respect to the removal of surface rocks from the land. As I have sought to indicate, the situation in which the terms of the development permit and those of the relevant undertakings as varied operated contemporaneously, was anomalous, and would have ceased to exist upon an appropriate application being made. -- 7 of 10 -- 8 [13] The case for the respondents is that the court should decline to hear the application to have them dealt with for contempt but leave the applicant to take the appropriate steps to establish a development offence on the part of the respondents. The case for the applicant is that short of an abuse of process on its part, the Court is obliged to entertain the application. I consider that the Court has a limited discretion to refuse to hear an application for contempt where there is an alternative remedy available to the applicant and has in addition, a very broad discretion as the imposition of a punishment or penalty. [14] There is authority for the proposition that where behaviour constituting civil contempt also amounts to a criminal offence, the Court has a discretion whether to hear the contempt charge or adjourn it and await the outcome of criminal proceedings (if any): In the Marriage of Sahari (1976) 11 ALR 679 at 693. At p.696 the judgment of the Full Court of the Family Court continued:- “Where the alleged facts constituting the contempt also constitute a crime the court has a careful and considered discretion to exercise. In some cases protection of the applicant will demand urgent action. In others the applicant’s protection can be left to the processes of the criminal law. Where only the affront to the court’s authority is involved and the same facts constitute a crime, the criminal processes should first be allowed to take their course. When they are concluded the court may then turn to the question whether the disobedience of its order merits further punishment in the public interest.” In the present case the proceedings for contempt do not fall for consideration in relation to the general criminal law, but in relation to the specific provisions of IPA with respect to development offences in Chapter 4, Part 3. In general those provisions provide for the issue of an enforcement notice by the assessing authority, preceded in most cases, by a “show cause notice.” Non-compliance with an enforcement notice is an offence for which the offender may be prosecuted in the Magistrates Court. Prosecution for an -- 8 of 10 -- 9 offence was also an alternative way of dealing with the contempt of the respondents which was dealt with on 16 April 2002, because the conduct then dealt with, although a breach of undertaking to the court, was also an offence under s.4.3.1.(1). Both remedies are equally available under the legislation. I think that the applicant may elect which remedy to pursue, but presumably cannot pursue both in the event that the first is unsuccessful (because there may be an issue estoppel, or because the proceedings are both criminal in nature) and that the Court has some discretion to decline to entertain an application for contempt where the conduct complained of also constitutes an offence: In the Marriage of Sahari. However, I would not consider that where there are sufficient reasons for the existence of a court order or an undertaking, to the same effect as an obligation arising under the statute, then the court should, in general, decline to deal with an alleged contempt in favour of leaving the applicant to its other remedy. Sufficient reason would generally exist, where the statutory obligation had been purposefully reinforced by the order or undertaking in question. That was, in effect, the position that existed on 16 April 2002. Whether it is the present position depends upon whether there was a deliberate decision taken by the parties to continue the undertaking relating to rock removal beyond the date of the grant of the development permit, or whether that happened, in a sense, per incuriam. Unless that uncertainty is resolved in the applicant’s favour it is a matter which would heavily influence my approach to sentencing the respondents if a contempt is made out. The punishment which may be ordered by the Court is the subject of r 930 of The Uniform Civil Procedure Rules. It is there provided that if the respondent is an individual the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992, and that if the respondent is a corporation the court may punish the respondent by seizing corporation property, or a fine, or both. -- 9 of 10 -- 10 There is a wide variety of orders that can be made under the Penalties and Sentences Act, ranging from good behaviour bonds to imprisonment. In some cases no specific sanction has been enforced but the contemnor may be ordered to pay the costs of the application: ACCC v Australian Business Reports Pty Ltd (1997) ATPR 44,004. The result may be the imposition of a merely nominal penalty, or none at all, and that is a result that might well follow in a case such as the present. Moreover, where, as here, what is alleged is a “civil contempt” it must be shown that the respondent was aware of the order or undertaking said to have been breached, and intentionally did or omitted to do an act constituting such a breach: ACCC v Australian Business Reports Pty Ltd. That may be an important point in this matter, since it may be that the respondents were not personally aware that the relevant undertakings had survived the grant of the development permit. I have not at this stage considered any of the evidence in support of the Application. Subject to the above observations, I consider that the applicant Council is entitled to proceed with the application to have the respondents dealt with for contempt. The application is adjourned to a date to be fixed so that the parties can consider their positions. -- 10 of 10 --