The contemplation of the possibility of future development approvals in enforcement orders
It is important when resolving criminal or civil enforcement actions to check that proposed Court Orders will not restrain future lawful activity. A recent example of this problem comes from a decision of the ERD Court where the City of Port Adelaide Enfield applied to vary enforcement orders made in civil enforcement proceedings brought against Papalia in 2009. Papalia unlawfully used premises for the display and sale of vehicles, vehicle parts and machinery with associated signage, fencing and landscaping. The Council took action against him and Court orders were made in 2009 that he cease the use, remove the unauthorised development and refrain permanently from displaying vehicles on part of the land.
Papalia did not comply with the 2009 Court Order and the Council applied to the Court in 2013 for sanctions against him for contempt of the 2009 Orders. The Court made further orders in 2013 requiring Papalia to comply with the 2009 Orders. He was also required to enter a good behavior bond which remains in force until 25 August 2015.
As usual, life moves on. The Council Development Plan was amended in 2011 changing the zoning from “residential” to “commercial” and Papalia secured development approval in 2014 to use the land for the display and sale of vehicles (buses and trucks), with ancillary parking, landscaping and offices within the existing dwelling on the land.
Papalia could not lawfully implement, and had not yet implemented, that development approval due to the continued force of orders made against him by the ERD Court in 2013 for contempt of the 2009 Orders.
The Council applied to vary the 2009 Orders so that the now approved development could proceed. The ERD Court considered it had power to vary the 2009 Orders but held that due to the seriousness of the contempt it would not be appropriate to revoke those orders. Instead, it decided to vary the 2009 Orders to enable Papalia to implement the development approval lawfully.
This case is a timely reminder for developers to insist that enforcement orders are forward looking and, where appropriate, contemplate the possibility of future development approvals being obtained. This will avoid the expense and delay of returning to the ERD Court to vary the order post securing any development approval.
Rebecca McAulay February 2015