The case of Kenefick & Ors v Lockyer Valley Regional Council [2023] QDC 249 concerned an appeal to the District Court of Queensland (District Court) against the decision of the Magistrates Court of Queensland (Magistrates Court) to refuse two claims for compensation made by the Appellants in respect of the removal of property by the Lockyer Valley Regional Council (Council) from the First Appellant's premises in Plainland (Premises).

The District Court considered the following five grounds of appeal raised by the Appellants (at [49]):

"Ground 1: The Magistrate erred in not allowing evidence from Mr Robert Eric Lee.

Ground 2: The Magistrate did not conduct the trial by law and should have allowed new evidence to be heard.

Ground 3: The Magistrate erred in fact in relation to an alleged 20-metre exclusion zone around the residence on the property.

Ground 4: The Magistrate erred by not addressing all the claimed items in the statement of claim in M292/18 and M77/20.

Ground 5: The Magistrate erred in failing to address documents contained in the first appellant's List of Documents."

The District Court did not find that any of the grounds were made out and dismissed the appeal (at [144]).

The First Appellant was the owner of the Premises, located in the rural residential zone under the Laidley Shire Council Planning Scheme 2003 (Planning Scheme), upon which he stored a variety of items belonging to him, the Second Appellant, and the Third Appellant (see [1] and [12]).

In March 2005, the First Appellant applied for, and was granted, a development approval to build a house on the Premises. After the development approval expired in March 2007, the First Appellant did not apply for a new development permit but continued to build and store building materials, scrap metals, used tyres, deteriorating vehicles, and other scrap materials on the Premises (at [12]).

The proceedings in the Magistrates Court ensued from the following events:

• 25 March 2015: The Council issued the First Appellant with a show cause notice (Show Cause Notice) which stated that the Council believed that the First Appellant was committing a development offence, being a contravention of section 582 of the now repealed Sustainable Planning Act 2009 (Qld) (SPA), by using the Premises for an unlawful use specifically for use as a "junk yard" as defined in schedule 1 of the Planning Scheme (see [7] and [13]).
  
  The Show Cause Notice asked the First Appellant to show cause why an enforcement notice should not be issued. The First Appellant did not show cause or apply for a new development approval (at [14]).

• 2 February 2016: The Council's officers entered and inspected the Premises and found a "large number of tyres, scrap metals, machinery, vehicles and other scrap materials" (at [15]).

• 26 February 2016: The Council issued the First Appellant with an enforcement notice under section 590(1) of the SPA (Enforcement Notice). The Enforcement Notice stated that the Council believed that the First Appellant was committing a development offence by contravening section 578(1) of the SPA "…by carrying out assessable development without an effective development permit for the development…" in respect of the Premises, and by contravening section 582 of the SPA by using the Premises for an unlawful use (at [16]).
  
  The Enforcement Notice stated that the First Appellant's response to the Show Cause Notice failed to address "the issue of carrying out assessable development namely the use of the 'land' as a 'junk yard' (the storage of tyres, scrap metals, machinery, vehicles, and other scrap materials on the land)" (at [17]).
  
  The Enforcement Notice required the First Appellant to refrain from committing the offence and to remedy the commission of the offence (at [18]).

•  2 June 2016: The Council issued a notice of entry to check compliance with the Enforcement Notice (at [19]).

•  7 September 2016: The Council issued the First Appellant with a remedial action notice which advised that the failure to comply with the remedial action notice would entail removal of the property stored on the Premises by the Council, at the First Appellant's expense (at [20]).

• 25, 26, and 28 October and 1 November 2016: The Council undertook works on the Premises to cease the allegedly unlawful use of the Premises as a "junk yard" (at [21]) by removing property that was then either disposed of, sold as scrap metal, or made available for collection (at [1]).

The Appellants made two claims, M292/18 and M77/20 (Claims), in respect of the Council's removal of property from the Premises, in which they detailed numerous items alleged to have been removed unlawfully by the Council (at [3]), and claimed that they were entitled to compensation (at [2]).

The Council contended that the removal of the property was undertaken lawfully pursuant to an enforcement action taken under the Local Government Act 2009 (Qld) (at [4]).

At the original hearing in the Magistrates Court, the Council accepted that the property was removed from the Premises but argued in its defence that the First Appellant was using the Premises for an unlawful use as a "junk yard" without the necessary development approvals, constituting offences under sections 578 and 582 of the SPA (at [7]).

On 12 April 2022, the Magistrates Court dismissed the Claims. The Appellants appealed the decision of the Magistrates Court pursuant to section 45 of the Magistrates Court Act 1921 (Qld).

The District Court refused to grant leave to the Appellants to lead new evidence, specifically four affidavits alleged to contain evidence obtained after the original hearing, on the basis that it was not evidence that met the following criteria (at [87]):

"(a)    could not have been obtained with reasonable diligence for the original hearing;

(b)    is such that, if given, it would probably have an important influence on the result of the case; and

(c)    is apparently credible."

Before considering the specific grounds of appeal, the District Court held that "[t]here was no error in the Magistrate's findings that the [Council] was legally entitled to remove the appellants' property pursuant to the [Local Government Act 2009 (Qld)], the appellants consequently suffered no loss or harm, and the claim should be dismissed" (at [75]).

The Appellants argued that the Magistrate erred in not allowing evidence from Mr Lee, who worked as a sub-contractor on the Premises for the duration of the Council clean-up (see [79] and [97]).

The Council opposed this argument on the basis that the Appellants failed to comply with a pre-trial order requiring the parties to provide any summaries of evidence upon which they intended to rely at the trial on or before 9 August 2021 (April 2021 Order) (at [99]). The Appellants did not provide Mr Lee's summary of evidence which, the Council asserted, failed to put it on notice that Mr Lee would be called as a witness and denied it the opportunity to undertake any investigations in relation to what Mr Lee might say at trial (see [99] and [100]).

The Council submitted that the Magistrate had the discretion to refuse the admission of Mr Lee's evidence because the Appellants' failure to produce a summary of evidence would constitute a breach of the April 2021 Order (at [103]).

The District Court accepted the Council's submissions, and stated that there was nothing in the First Appellant's submissions to suggest that he was unaware of, or did not understand, the April 2021 Order (see [104] and [105]). The District Court found that the Council "…would have been unfairly taken by surprise if Mr Lee had been allowed to give evidence" and noted that "[i]t is an important aspect of procedural fairness that the parties in a proceeding are notified of the case against them" (at [107]).

The Appellants submitted that the Magistrate did not allow new evidence to be heard, which the District Court deemed to refer to one or two groups of witnesses mentioned by the First Appellant at trial who were unable to appear for various reasons (see [110] to [111]).

The District Court observed that these witnesses were never identified by the Appellants at the original trial and, accordingly, that there was no basis for arguing that the Magistrate did not allow for new evidence to be heard (at [111]).

The Appellants submitted that the Magistrate erred when considering evidence about an alleged 20 metre "exclusion zone" around the residence on the Premises, in particular by not finding that property should not have been removed from within that "exclusion zone" (at [112]).

The Council's witness gave evidence to the effect that the perimeter of the "exclusion zone" was informally denoted to represent that part of the Premises, and the property thereon, which could reasonably be associated with a rural residential use (at [113]). The Council's witness maintained that the Council was legally entitled to enter into the "exclusion zone" and remove property thereon, but refrained from doing so out of fairness (at [114]).

The District Court observed that the First Appellant had misconstrued the reference to the "exclusion zone" in the Council's evidence to mean a legally-imposed 20 metre exclusion zone which the Council's workers could not enter (at [115]). The District Court recognised that the "exclusion zone" did not resemble "…a legal requirement or precondition for undertaking the work", but merely a proposed procedure for the Council workers to observe (at [115]).

The Appellants submitted that the Magistrate erred by not addressing all the claimed items in the Claims (at [116]).

The Council submitted that the Magistrate's decision included "…a very broad sort of catchall of the property dealt with by [the Council] which is sufficiently wide to address any of the matters that may not have been mentioned expressly", and that it was unnecessary for the Magistrate to particularise each item listed in the Claims (at [118]).

The District Court observed that the onus lay on the Appellants to prove that each item in the Claims was present on the Premises and removed by the Council (at [133]). The District Court found that the Appellants had not demonstrated that the Magistrate was unfounded in finding that the Appellants had failed to prove the following (at [136]):

"(a)    that some of the property listed in the claims was on the premises at the relevant time, and that therefore all property listed in the claims was removed by the [Council].

(b)    the value of any of the property removed…"

The Appellants submitted that the Magistrate failed to consider the Appellants' List of Documents which was filed as part of the pre-trial discovery process and alleged to contain evidence pertaining to the value of the items removed from the Premises. The First Appellant claimed that he was unaware that the List of Documents would not form part of the evidence at trial and that it would have to be introduced as evidence during the trial (at [138]).

The Council submitted that the List of Documents did not constitute evidence and that "[t]he Magistrate was not required to read and interpret discovery documents that were not drawn to his attention during trial" (at [139]).

The District Court agreed that the List of Documents did not constitute evidence in the trial and that it was not incumbent upon the Magistrate to read through the discovery documents (at [140]). The District Court also observed that the Magistrate, on several occasions, gave the Appellants the opportunity to introduce evidence to demonstrate the value of the items (at [140]).

The District Court did not find that any of the grounds were made out and dismissed the appeal (at [144]).