The Planning and Environment Court has recently given custodial sentences against landowners found to have breached Court orders about development offences.  This article considers the Court’s powers and the matters that the Court is likely to take into account when deciding whether to impose custodial sentences.  

DEVELOPMENT OFFENCES

The Sustainable Planning Act 2009 (Qld) (SPA) provides the regulatory framework for planning and development in Queensland.  SPA establishes the following key development offences:

  • carrying out development without a development approval;
  • contravening a development approval; and
  • undertaking an unlawful use on land.

An authority who detects an offence under SPA may:

  • give a penalty infringement notice (i.e. a fine);
  • give a show cause notice, which notifies a person that an enforcement notice may be given;
  • give an enforcement notice, which requires a person to refrain from committing an offence and/or specifies how to remedy an offence;
  • commence prosecution proceedings in the Magistrates Court; and/or
  • commence proceedings in the Planning and Environment Court (P&E Court) seeking declaratory or  enforcement orders.

The Courts have historically imposed fines or orders requiring rectification of breaches when dealing with planning and development offences arising under SPA.  Offences under SPA can be very serious and can lead to severe penalties.  Below we discuss two recent cases where the P&E Court has imposed custodial sentences against individuals who have failed to comply with Court orders relating to developments.

CUSTODIAL SENTENCES

In Rockhampton Regional Council v Dubois [2014] QPEC 13 (2014 Proceeding), the Council sought orders that Dubois be punished for contempt of Court for contravening previous orders made by the P&E Court in 1999 (1999 Proceeding).  The land in question was zoned as residential, however, the Dubois family had been using the land for a motor garage business since the 1930s.

In the 1999 Proceeding, it was confirmed that existing use rights permitted the ongoing operation of the business generally.  However, the Court made orders which set rules about which parts of the property could be used for the business.  These rules were imposed to control the use and to protect the amenity of neighbours.

In the 2014 Proceeding, it was alleged that Dubois had failed to comply with the rules set by the Court.  The Council sought orders in respect of Dubois’ contempt of the orders of the Court.

In the 2014 Proceeding, the Court held that:

  • contempt of Court was not a specific offence under SPA but the P&E Court had powers to deal with contempt;
  • it was satisfied, beyond reasonable doubt, that Dubois was guilty of contempt; 
  • the ongoing offending, despite previous convictions, demonstrated that imprisonment was the most appropriate penalty;
  • Dubois be sentenced to three months imprisonment, to be suspended after 1 month served; and
  • Dubois pay Council’s costs on an indemnity basis.

Dubois appealed to the Court of Appeal against the conviction and the sentence.  The appeal was dismissed and Dubois was ordered to pay Council’s costs of the appeal.

In Brisbane City Council v Bowman & Ors [2013] QPEC 62, the Court found that Bowman and associated companies were guilty of contempt of Court for failing to comply with orders made by the P&E Court in 2012 because the Respondents had failed to:

  • submit to Council a properly made development application;
  • cease using the premises for any activity that required a development permit;
  • remove all earthmoving and heavy vehicles, equipment, plant and machinery; and
  • submit a rehabilitation plan for assessment and approval by Council.

The Court sentenced Bowman to four months imprisonment, wholly suspended for an operational period of two years.  The Court also recorded convictions against the Respondents and ordered the Respondents to pay $10,000 towards Council’s professional costs.  Relevantly, Mr Bowman had been convicted of earlier but unrelated development offences.

KEY POINTS

The two cases above demonstrate examples of circumstances where the Courts have been willing to impose severe penalties for non-compliance with Court orders relating to development offences.

While each case must be determined on its own facts, these cases demonstrate that the Court may consider the following matters when determining whether to impose a severe penalty or custodial sentence for non-compliance with Court orders:

  • nature of the primary offence;
  • knowing non-compliance with orders;
  • protracted unlawfulness and non-compliance;
  • offenders attitude and approach to compliance;
  • extent of non-compliance and actions taken by the respondent to achieve compliance;
  • recording of earlier convictions; and
  • costs of the enforcement agency.

Our Planning and Environment team have experience dealing with enforcement actions regarding development and environmental offences.