Australia: Planning and Environment Court in Queensland fines campground operators for contempt of court for continued unlawful use of land

In brief

The case of Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66 concerned an originating application in the Planning and Environment Court. The Whitsunday Regional Council (Council) sought punishment against each of the Respondents for contempt of court for failure to comply with the orders of the Planning and Environment Court made on 8 February 2017. The orders relevantly required the Respondents to cease providing temporary accommodation to people in campervans and tents on the subject land.

The Court found that the Respondents were in contempt of court, having failed to cease the operation, and imposed fines and ordered the Respondents to pay a percentage of the Council's costs.

Orders of the Planning and Environment Court

The Planning and Environment Court made a declaration that Branbid Pty Ltd, the First Respondent, use of land located at Miowera Saleyards, Roma Peak Road, Bowen, for temporary accommodation for campervans and tents was a development offence because it was assessable development requiring a development permit and no development permit had been issued.

The Planning and Environment Court ordered that the First Respondent and Mr Brett Fallon, the Second Respondent, cease providing or permitting to provide temporary accommodation to people in campervans, tents, or caravans on the subject land without obtaining an effective development permit for that use.

Contempt of court

Prior to the initial proceeding before the Planning and Environment Court, the First Respondent was issued with a show cause notice and a subsequent enforcement notice to remedy the development offence, however they were ignored. In the proceeding before the Planning and Environment Court, the Second Respondent argued strongly against the relief sought by the Council as he believed it was an arbitrary and unreasonable attack on his and the First Respondent's freedom to use the subject land as they pleased.

In the subsequent proceeding, the Planning and Environment Court found that each of the Respondents were in contempt of court as the evidence clearly showed beyond a reasonable doubt that they had continued the unlawful use of the subject land. Additionally, the Court noted that continuing the unlawful use of the subject land provided a commercial benefit to both Respondents as the customers had paid a $5 fee to stay per night.

Legislative framework

Under section 36 of the Planning and Environment Court Act 2016 (PEC Act) a Planning and Environment Court judge has the same power to punish a person for contempt as a District Court judge, and the District Court of Queensland Act 1967 applies to the Planning and Environment Court in the same way as it applies to the District Court.

Section 129 of the District Court of Queensland Act 1967 states that a person is in contempt of the District Court if the person fails to comply with an order of the court without a lawful excuse. Section 129 also provides that a District Court judge has the same power as a Supreme Court judge to punish as if it were contempt of the Supreme Court.

The Uniform Civil Procedure Rules 1999 (UCPR) apply to contempt of court proceedings. Rule 904 of the UCPR states that a person against whom a non-monetary order is to be enforced must be notified of the terms of the order in an appropriate manner. The Court observed that both Respondents were notified of the terms of the proposed orders by both email and via the post to their nominated addresses.

It is required under rule 926 of the UCPR that the respondent be personally served with the originating application and any affidavit. The Court in this instance noted that personal service did not initially occur but held that personal service was ultimately conducted.

Court identified relevant factors for determining whether to impose a fine

The Council sought the imposition of a fine against the Respondents. The Court identified the following as being the relevant considerations in arriving at the appropriate relief:

  • the characterisation of the conduct constituting the contempt;
  • given that the penalty to be imposed is a fine under the Penalties and Sentences Act 1992, the financial circumstances of the offender and the burden imposed on the offender.

The Court held that the unlawful use of the subject land by the Respondents was for financial gain. The financial gain from the unlawful use however was not particularly lucrative as the Respondents only charged customers $5 per night to stay. The Court also considered the capacity of each Respondent to pay any potential fine. The First Respondent owned the subject land unencumbered and therefore had a notable financial asset. The Second Respondent was the sole director of the First Respondent and received a pension. On that basis, the Court found that the Second Respondent's financial circumstances were not substantial and took this into account when imposing the fine.


The Council also sought an order that the Respondents pay its costs in respect of the contempt proceedings. The Court took into account His Honour Justice McCurdo's statement in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 in which His Honour stated that indemnifying a party by requiring costs to be paid by the contemnor as between solicitor and client is to impose a further sanction or punishment for the contempt and can be onerous.

In respect of the legal requirements for a costs order, the court noted that an order for costs can only be under sections 60 and 61 of the PEC Act. In this case, the proceeding was an originating application for contempt of court which is not provided for under sections 60 and 61 of the PEC Act. The Court was however satisfied that under the UCPR, where the power to punish for contempt is found, rule 932 allows the Court to award costs for punishment for contempt of court.

The Court fined the Respondents and ordered that they pay the Council's costs

The First Respondent was fined $15,000 and the Second Respondent was fined $5,000 for contempt of court. The Planning and Environment Court referred the fine against the Second Respondent to the State Penalties Enforcement Registry for recovery.

The Council also sought an order that the fines be paid into their operating fund under section 246 of the Local Government Act 2009. The Court found however that section 246 did not apply in this case as it only applies to proceedings brought by a local government for an offence against a Local Government Act.

In determining the order for costs, the Court took into account over-representation of the Council and the duplication of material brought before the Court. The Court held that the Respondents were to pay only 60% (30% each) of the Council's costs on an indemnity basis.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Wright
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions