Australia: Landowners in Logan found to be in contempt of court

IN BRIEF

The case of Logan City Council v Jones & Another [2016] QPEC 60 concerned an originating application by Logan City Council in relation to an alleged contempt of Court by landowners. The alleged contempt concerned a contravention of orders made by the Planning and Environment Court on 21 November 2014 in respect of unlawful land uses and buildings found on the landowners' property.

Despite undertaking substantial actions to bring the property into compliance, all parties agreed that the Court's orders had been contravened. The Court noted that non-compliances cannot be overlooked and should be dealt with so as to deter future reoccurrences.

The Court, after acknowledging the landowners' genuine change in attitude and financial difficulties, ordered that they be released into a recognisance, without sureties, for the amount of $1,000 on the condition that for a two-year period they keep the peace, bring the property back into compliance within a fixed period and appear before the Court again if required.

COURT ORDERS REQUIRED THE LANDOWNERS TO CEASE UNLAWFUL BUILDING WORK AND USES ON THEIR PROPERTY AND TO REMOVE OR DEMOLISH VARIOUS BUILDINGS

The Council previously commenced proceedings seeking declarations and orders that the landowners were unlawfully using their property as a relocatable home park and for the purposes of selling automotive parts and automobiles, and had carried out extensions to a house and a number of other buildings, including a shed and shipping containers.

All parties agreed and consented to orders made on 21 November 2014 requiring all building work to cease until the relevant permits were obtained and the performance of remedial work to remove or demolish certain unlawful structures.

COUNCIL COMMENCED AN APPLICATION FOR CONTEMPT IN RESPONSE TO CONTINUED NON-COMPLIANCE WITH THE COURT ORDER

It was common ground that the Court's original order had been contravened. The Council's application for contempt, commenced by way of an originating application, alleged that although certain remedial work had been undertaken, there was substantial non-compliance with the Court's orders.

The landowners admitted the facts contained in the Council's originating application. This admission led to an order of the Court on 5 May 2016, which varied the earlier order of 21 November 2014, to give the landowners a further opportunity to achieve development compliance.

DESPITE UNDERTAKING SUBSTANTIAL REMEDIAL ACTION, THE LANDOWNERS STILL FAILED TO FULLY COMPLY WITH THE REVISED COURT ORDER

All parties recognised that the landowners had undertaken remedial actions to demonstrate substantial compliance with the Court order of 5 May 2016. Those matters still awaiting compliance related to removing extensions to a house and the removal of three shipping containers.

Whilst the landowners had obtained approval from the Council to relocate two of the containers onto concrete foundations, they were unable to finance the works and ultimately had to dispose of all of the containers. The landowners claimed that any subsequent delay in removing the containers stemmed from difficulties in finding a suitable removalist.

In addition, the landowners did not fully comply with a requirement to remove the addition of an unapproved floating floor within the dwelling's carport.

IN SENTENCING THE LANDOWNERS FOR CONTEMPT, THE COURT DETERMINED THAT THE LANDOWNERS HAD NO REAL EXCUSE FOR FAILING TO COMPLY WITH ITS ORDERS BUT RECOGNISED THEIR FINANCIAL CIRCUMSTANCES AND GENUINE CONTRITION

The landowners explained that they were unable to afford legal advice relating to the Court's orders and had therefore acted on the advice of several non-lawyers. Subsequently, it was argued that the landowners had mistakenly formed the view that the Court's orders could be challenged or entirely ignored.

The Court found that the landowners explanation offered no good excuse. The Court relevantly stated, "the Court cannot stand by and allow people to thumb their noses at Court orders and the Court needs to deal with non-compliances in a way which not only deters future non-compliance by the people at hand, but which serves to provide a general deterrent to others..." (at [15]).

The Court did, however, hold that it was appropriate to consider the modest means and ongoing financial difficulties faced by the landowners. One of the landowners was an undischarged bankrupt and disability pensioner. The other landowner was a carer. Together they were in default to the mortgage over the subject property and faced imminent eviction.

The Court held that imposing a substantial fine was an unattractive sentencing option, particularly as the landowners had no capacity to make such a payment. Furthermore, the genuine contrition of the landowners, their efforts to bring the property into compliance and an offer to undertake community service also convinced the Court that there was a low risk of future contraventions.

Ultimately, the Court ordered that the landowners be released into a recognisance, without sureties, in the amount of $1,000 on the condition that they appear before the Court if required within a period of two years. In the meantime, the landowners were to keep the peace, maintain good behaviour and rectify any outstanding matters of non-compliance within a set period of time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ian Wright
 
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