Douglas Shire Council v McDowall Estates Pty Ltd [2002] QPEC 85

State Reporting Bureau N t-r<3 -y'e- Le*rlQEc o8s Queensland Government Department of ,usti." und Attorn"y{*J"t Transcript of Proceedings Copyright in this trans-cript is ve-sted in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE WHITE P & E Appli-cation No 548 of 2002 DOUGLAS SHIRE COUNCIL and MCDOWALL ESTATES PTY LTD CAIRNS . . DATE 71 /12/2002 JUDGMENT REVISED cOPIES ISSUED State Reporting Bureau Date /s t ol 12ccz3 Applicant Respondent I HISgl,Il: tlll.j.ti"n of information or deta.ils likelylo leadto the identification of persons in some proceedings is a criminat Qnence. This is so narticularly in_relation to the identification of children who are involved in criminal proieeAingJ o?iioieeOingJ tor their protection uniler lhe chitd Protectioiii,fisg, ird domiiri;il61; criminat sexuat offences, but is not timited to those categories- You may wish to seek legal advice befoie giving oitrerJ iiceis to the deiaiis oi inv plison nameo in ttresJ iroceeaings. tlth Floor, The Law Courts, George Street, Brisbane, e. 4000 1 Telephone: (07)3247 4360 Fax: (07) 3247 SS32 -- 1 of 6 -- L1L22002 D.1 TLILVT M/T CNS1 /2002 (white DCJ) HIS HONOUR: The premises, the subject of this application, consist of a dwelling house focated at 42 FronL Street, Mossman. The real- property description is Lot 3 on RP 1065L9, County of Solander, Parish of Victory. The premises are located within the local government area for which the applicant is responsible. The respondent is the owner of the subject premises. Part 4 of the Building Act L915, ds amended, makes provj-sion for the giving of enforcement notices by a local authority. On 1st of August 200L the applicant gave the respondent a notice to show cause why an enforcement notice shoul-d not be qiven pursuant to section 2I of the Act. I am satisfied that the show cause notice complied with the requirements of the Act in afl respects. On the 15th of January 2002 the appllcant gave the respondent an enforcement notice requiring the building to be demolished pursuant to section 22 of the Act. I am satisfied that the enforcement notice complied in all respects with the provisions of the Act. I am also satisfied that the respondent has failed to show cause and has failed to comply with the enforcement notice. Subsection 22 (A) of the Building Act makes an enforcement notice, given pursuant to section 22 of that Act, an enforcement notice given under section 4.3.11 of the Tntegrated Planning Act. As such, the Court has power to do I {* r\ a)t #8 4.n I 2 JUDGMENT &il -- 2 of 6 -- L7722002 D.1 T1ILVT M/T CNS1 /2002 (Whire DC,r) all things necessary to give effect to the enforcement notice. see part 3 di-vision 5 of the rntegrated pr-anning Act. The applicant applies for orders that the dwelling cease to be used for residentlal purposes and that it be demolished. Jeffrey Robert Evans is a building certi_fier employed by the applicant as'manager of building servlces. He inspected the subject dwel-Iing in March 2001 and again on the 22nd, of November 2002. Detairs of his observations are as for_lows: 1 ) 10 20 s0 48 50 o (a) (b) (c) (d) The dwelling is a timber framed and clad building conslsti-ng of seven rooms, erected on timber stumps approxi_mately 700 millimetres hiqh. There was clear vi-sua1 evidence of serious decay due to timber rot and termite infestation in the timber structural frami-ng of the dwe11ing, including waI1 and floor framing and timber cladding. Bare weathered tlmber was exposed over the enti-re dwelling and accordingly there was only a minj_mal amount of pai-nt left on the timber to afford a protective coating. As a consequence, there was clear evidence of degradation from weathering that has resulted in the timber boards splitting, rotting and falling off, or hanging off the dwe1li_ng due to the rusting of fixings. The dwelllng is supported on timber stumps, approximately 200 milrimetres in di-ameter. Numerous stumps/ approximately one-third of the total_, had failed due to decay and termite damage and had o 3 JUDGMENT 60 -- 3 of 6 -- I __-_1 71 122002 (e) (f) (q) (h) (i) (j) (k) D.1 T1,/LVT [4/T CNSl /2002 (Whi-re DCJ) faIIen down, reducing support to the subfloor framing. The remainder of the stumps showed extensive evidence of decay as a result of fungal growth and termite damage to the sapwood. The subfloor framing sagged in several_ places. On the perimeter of the dwelling there was evidence of substantial decay of the subfl_oor framing. The perimeter bearers, which are supported on the stumps, had sagged where fail_ed stumps had been present. This was clearly evident at the window openings which were twisted out of square and did not operate properly. The rear bathroom roof, wall and fl-oor framing had collapsed. The dwel-fing was not connected to the available l-ocal- government sewerage system. It is unlikely that the dwelling wi1l be connected, due to the state of disrepair of the rel_evant pJ_umbing services. The tails of roof rafters, where they meet timber fascia/ were decayed and did not provide sufficient connection to fascia boards to provj_de support. Numerous roof sheeting showed evidence of extensive corrosion. The ceiling of the dwelling house showed evidence of roof leaks. An SES tarpaulin was erected over the roof. It appeared that the tarpaulin had been there for some time. t 1* s0 #8 .-) &r(, 4 JUDGMENT ffi* -- 4 of 6 -- ---..-- 1 is is 77722002 D- 1 Tr/Lvr M/T cNSl /2002 (whire DCJ) (1) The gutters and downpipes of the dwelling showed extensive signs of corrosion and were not securery attached to the dwelling. (m) The mechanical connecti_ons, incruding cyclone rods and tie-down connectors, were severely corroded and, in numerous instances, had entirery rusted through. cyclone rods are steer threaded rods which connect the bearers to the warl frames and continue through to connect 1t to the roof framing. Tie_down connectors are the steel brackets whi-ch connect the timber stumps to the bearers. rf these mechanicar connections fair, the dwe1li-ng wilr- not have resistance to uplift forces i-n a cycronic event. Mr Evans formed the opinion, which r accept, that at the time of his lnspections the dwe1l1ng was in such a dilapidated condition that it presented a real_ ri_sk to the health and safety of its occupants. Further, the state of disrepair and dilapidation was such that it could not be economically repaired to an appropriate standard. Although owned by the corporate respondent, the premises is the dwel-ling of Arbert rhomas McDowal-l- and his wif e. Mr McDowall appeared at the hearing of the apprication. He has not sworn any affidavit, nor has he put forward any evidence to rebut that of Mr Evansr . 1 *s 30 20 ) ,* l,,t 4G 0 s$ s 5 JUDGMENT 88 -- 5 of 6 -- 11722002 D.1 T7/Lvr M/T CNS1 /2002 (whire DCJ) f am satisfied that the building is dangerous to the occupants. r am satisfied that it constitutes a danger to people and property in the neighbourhood in the event of a cyclone. r am satisfied that it cannot be economicalry repaired. Mr McDowal] does not realry dispute these findings. what he wants is time. rn spite of its condition, it is still_ the home of Mr and Mrs McDowall. They are elderly. r understand their rel-uctance to leave. However, it is not as if they have nowhere to go. They have in f act taken a l-ease on a unit j_n Mossman. Mr McDowal] expresses concern at a difficulty in storage of the respondentrs corporate record.s. However, r am satisfied that such records coul-d be stored temporarily in the rented unit. He also wants time to build another residence on the property. The council commenced action in August 2oor by the j-ssue of the show cause notice. Nothing significant has happened since. unfortunately, r am satisfied that Mr McDowafl- wil-l not do anything unless he is compelled. r am satisfied that the orders shoul_d be made. f order that, wi_thin 74 days hereof, the respondent immediately cease to use the dwelling for residential purposes. r order that, within 30 days hereof, the respondent comply with the requirements of the enforcement notice dated 15th of January 2002. 6 t s0 'ts f,ft &{1 Q,I 6 JUDGMENT &* -- 6 of 6 --