In Warner v Isaac Regional Council [2015] QDC 186, the District Court has given a timely reminder to local governments that they cannot simply charge whatever amount they wish when taking steps for enforcement.

DO COUNCILS NEED TO PROVE THEIR COSTS ARE REASONABLE?

The Council in this case obtained an enforcement order under the Public Health Act 2005 (Qld) requiring the Appellant to remove structures or things alleged to be hazardous to human health from her property in Moranbah. The Appellant allegedly failed to take the required steps, so three Council staff members and seven cleaning contractors entered the Appellant’s property in compliance with the order.

The Council claimed a total of $48,990.63 from the Appellant for the costs of complying with the enforcement order: $31,000 for cleaners, $7,193 for the erection of a pool fence, $330 for pest control, $154 for lawn mowing, and $9,503.29 for legal costs. The Council alleged that local cleaning agencies in Moranbah refused to assist, so it engaged cleaning contractors from Emerald. 

In the Magistrates Court, the Appellant argued that the steps the Council took were excessive and that the costs claimed by the Council were unreasonable, because:

  • the Council’s decision to engage the Emerald cleaners instead of local cleaners resulted in excessive costs;
  • the Council claimed cleaning costs for a greater number of workers and a longer period of time than the work the Appellant actually observed; and
  • the costs claimed by the Council for the pool fence were unnecessary because the Appellant intended to fill in the pool, and therefore did not need a replacement fence.

The Council argued that it did not need to prove that the costs were reasonable, and that the Appellant could not raise reasonableness or excessiveness as a defence.

The Magistrate agreed with the Council and ordered summary judgment against the Appellant. The Appellant subsequently appealed to the District Court, arguing that she had real prospects of a successful defence and that the matter should go to trial.

THE RIGHT TO CHALLENGE EXCESSIVE COSTS

The District Court ruled that the Appellant was entitled to challenge the Council’s costs on the grounds that the costs were unreasonable and excessive, and set aside the Magistrate’s decision.

The Court held that local governments cannot simply charge any amount they wish when taking enforcement action. It is a fundamental civil right that a person be given the chance to be heard, and local government claims for exorbitant amounts can be challenged as a matter of procedural fairness. In an extreme example, if a Council charged $1 million to remove a single car wreck, an individual would clearly have the right to challenge the amount of the claim on the basis that it is excessive.

Local governments taking steps for enforcement should keep in mind that they cannot spend as much as they like and expect to claim back the costs – the charges must be reasonable.