Australia: Suspended sentence and conviction recorded for violation of enforcement order

In brief - Contempt of court for failure to comply with court's enforcement order

Brisbane City Council has successfully applied to the Planning and Environment Court seeking punishment for contempt against an individual and two companies. The court found in Brisbane City Council v John Alexander Bowman and Ors [2013] QPEC 62 that Mr Bowman and the two companies had failed to comply with an enforcement order made by the court in an earlier enforcement proceeding.

Court was satisfied that a development offence had been committed or would be committed unless restrained

On 19 March 2012 the council commenced an enforcement proceeding in the court against Mr Bowman and the two companies seeking declarations and enforcement orders for unlawful use of the premises (warehouse, industry, office and display and sale activities) and for carrying out assessable development (operational works - filling) without an effective development permit for that use and that assessable development.

The court was satisfied a development offence had been committed or would be committed unless restrained.

The court further made various enforcement orders which required Mr Bowman and the two companies to do the following:

  • submit to the council a properly made development application for a material change of use and environmentally relevant activities (industry - green waste transfer/holding station) and do everything necessary to advance that development application by 1 February 2013
  • cease using the premises for any activity or use that would require a development permit, excluding any industrial use or a green waste transfer/holding station only, by 1 February 2013
  • remove all earthmoving and heavy vehicles, equipment, plant and machinery for the purposes of a warehouse industry as defined in the Brisbane City Plan 2000, not associated with the rural use of the premises as defined in the Brisbane City Plan 2000, by 1 February 2013
  • submit to the council a rehabilitation plan prepared by a duly qualified expert for assessment and approval by the council for the removal of introduced fill back to natural ground level or other satisfactory level based on relevant and qualified experts' reports, and the rehabilitation of the premises following the removal of the fill material, by 1 February 2013

Court acknowledged that the orders made by the court were serious but would not otherwise have made them unless it was satisfied that they represented an appropriate outcome

On 15 May 2013, the council filed an originating application in the court seeking the punishment of Mr Bowman and the two companies for contempt following their failure to comply with the earlier enforcement order made by the court.

Subsequently, the parties negotiated a resolution in which Mr Bowman and the two companies effectively pleaded guilty to non-compliance with the earlier enforcement order, which resulted in a conviction being recorded against all of them. Mr Bowman and the two companies agreed to the orders proposed by the council by way of punishment.

The parties also agreed to variations to the earlier enforcement order made by the court. These variations included, amongst others, a significant provision in respect of costs and the release from an obligation to lodge a development application to the council for the purposes of regularising the use of the premises at Bald Hills in Brisbane.

The court, however, observed that "the court ought to insist that its orders be respected and visit consequences that may need to be harsh on those who fail to comply".

Mr Bowman provided to the court explanations for his failure to comply with the earlier enforcement order and submitted steps he had since taken in complying with the order. Further, an assurance was given to the court by Mr Bowman that he was:

...going to do everything he can now to comply with the full orders... You will not be seeing this man back here in another 12 months for contempt of order, unless he has some sort of desire to go to jail but... he's making every attempt he can to now comply with the orders...

Having regard to the parties' resolution, Mr Bowman's conduct and the sentencing range in other cases similar to the prevailing circumstances, the court made orders to the effect that:

  • the court found Mr Bowman and the two companies guilty of contempt of court for failure to comply with the earlier enforcement order made by the court
  • a conviction was recorded against Mr Bowman and the two companies
  • Mr Bowman was sentenced to imprisonment for four months, wholly suspended for an operational period of two years
  • the earlier enforcement order made by the court was varied and replaced with a new set of orders, requiring Mr Bowman and the two companies to cease various unlawful uses immediately and pay the council's professional costs in the sum of $10,000.

The court noted that the orders "would not have been made unless the court was satisfied that they represented an appropriate outcome in the circumstances, which are serious ones."

Ronald Yuen Luke Grayson
Planning and environment
CBP Lawyers

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Luke Grayson
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