Council of the Shire of Albert v Piitulainen & Ors [1993] QPEC 75

: ~ot' j' f :71 State Reporting Bureau~«.' ~ ~-------------------------------------- TRANSCRIPT OF PROCEEDING P?':, 9~?:::-:;:~=,r:::~~D t '- ....... L....,. --. - ..• ,,, .,.J •• ,1-..J .... :J !Date t'6 I 5 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONM.ENT COURT JUDGE O'SULLIVAN No 23 of 1993 COUNCIL OF THE SHIRE ALBERT and TAPIO JUHANI PIITULAINEN LYNETTE PIITULANIEN and TAPIO JOHANNES PIITULAINEN BRISBANE .. DATE 20/08/93 .. ORDER Applicant Respondents 1 •. ~ 1•1_-4.th•F•l•oo•,,•Th-e•L•aw-C•o•urt•s•,•Ge-on-eS•tr•e•et•,•B•n•'sb•a•ne•.•0•.•40•00-Ti•e•lm•h•o•n.e•.•.,•0•11•2•2•14•3•60-F•n•r-~i•m•il•~~-a•,>•,•,,•5•5•3•2-- -- 1 of 4 -- 20/08/93 mar (O'Sullivan DCJ} - 1 HER HONOUR: In this matter the Albert Shire Council is seeking orders against Mr Piitulainen senior and junior. It has been made clear by Mr ure that his instructions are not to proceed in respect of Mrs Piitulainen. 10 The first order that is sought is a declaration that the land used for the purposes of panel beating vehicles, spray painting vehicles and effecting mechanical repairs to vehicles is unlawful. That has within it two components. The first is that I am satisfied on the material that has been tendered by 20 the respondent that the land is indeed used for that purpose. Affidavits were filed by each of the three respondents which although they do not do so expressly, impliedly deny that that is not so. 30 I am satisfied from the material which is a combination of the affidavit of the respondent's technical planning officer and his conversation with each of the two male respondents and an affidavit of the neighbour, Mr Breeders, together with the annexures to his affidavit and, in particular, the two sets of diary entries - I am satisfied from that affidavit that the land is, in fact, used for the purpose of panel beating vehicles and spray painting vehicles and effecting mechanical repairs to vehicles. I am not satisfied that the explanations given in the affidavit material rebut this finding and, 40 50 indeed, if anything, as Mr Ure pointed out, there is a passage in the affidavit of Mr Piitulainen junior which, in fact, supports the assertion by the Council, namely that the land is being used for the purpose of that contended. ORDER 2 60 -- 2 of 4 -- 20/08/93 mar (O'Sullivan DCJJ - 1 There seems to be an underlying problem here and that is it is clear that the Piitulainens and Mr Breeders do not get on, to say the very least, and that is reflected in affidavit material. Those matters are entirely irrelevant to this Court. This is a Planning and Environment Court. It is not a 10 general District Court or a Magistrates Court or any other tribunal such as a Community Justice System whereby disputes between neighbours may be resolved. This is a Planning and Environment Court and the only thing I am interested in is whether land is used unlawfully, that unlawfulness being determined by the town planning scheme for Albert. Having made the finding that the land is used in the way alleged by the respondent, I then consulted the town planning scheme for Albert and I am satisfied that as a matter of law, given the residential zoning of this land, that the use is unlawful. It follows then as a matter of town planning law that that unlawful use must cease. Indeed, this seems to have been recognised in some of the conversations between each of the Piitulainens and Mr Evans from time to time. Whether some of the work is justified or not and whether perhaps a consent might be obtained are matters that have not been properly canvassed before me. The use under the town planning scheme 20 30 40 50 is unlawful and cannot continue. This has been pointed out to the respondents on a number of occasions both orally and in writing. On occasions they have said that they will cease. They have clearly not done so and it is my impression from the material, without hearing from them, that they show either a ORDER 3 60 -- 3 of 4 -- 20/08/93 mar (O'Sullivan DCJJ - total disregard for the law or they are extremely arrogant. r wish to make it plain in making the order in paragraph 2 of the application, which is that each of the two male respondents be restrained from using or allowing to be used the said land for the purposes of panel beating vehicles, spray painting vehicles and effecting mechanical repairs to vehicles, that non-compliance to that order carries very serious consequences. 10 20 I am satisfied that the two male respondents have committed an offence in terms of section 223(1) of the Local Government Planning and Environment Act in that they have contravened or failed to comply with the provision of a planning scheme. I am further satisfied that unless restrained by order of this Court they will continue to do so and I consider it is appropriate to restrain them. Therefore, in accordance with subsection 5 of section 24, I make the restraining orders sought by the respondent. 30 40 The orders then will be, firstly, in accordance with paragraph 1 of the originating application as amended by the deletion of the words "Lynette Joy Piitulainen", paragraph 2 of the originating application with the same omission, but the words added "thereafter as and from 12 noon on Monday 50 23 August 1993 11 • Paragraph 3 of the originating application is not pursued. 60 ORDER 4 -- 4 of 4 --