Baxter v Preston[2022] QCA 146

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons and the orders proposed by Dalton JA.
2. [2]
   DALTON JA:  This litigation concerns a dispute between neighbours who live in a very steep street in Paddington.  The applicant for leave to appeal is the downhill (southern) neighbour to the first respondents.  In 2019 the first respondents proposed to make extensive renovations and redevelopments of their land.  The second respondent was engaged to perform the works.  The applicant unsuccessfully objected to the redevelopment on the basis that it would affect the natural light to his property.  He had no right of appeal in relation to the determination of the objection.  Construction commenced in about November 2020.
3. [3]
   On 21 April 2021 the applicant commenced this proceeding.  At an ex parte hearing he sought and was granted an interim enforcement order to prevent filling, excavation, construction of retaining walls, construction of a swimming pool and associated decks and stairs on the basis that the first respondents had no operational works permit, and no permit for the pool from the Council, only a permit from a private certifier.
4. [4]
   The proceeding came on for final determination before the primary judge on a three day hearing in October 2021.  The applicant was unsuccessful before the primary judge.  She was against him on the merits of the claims he made and, independently, in a proceeding where he sought declaratory relief, identified eight discretionary grounds which she considered militated against the granting of declaratory relief.  She said: “Ultimately, even assuming Mr Baxter were able to establish the factual and legal foundation for each of the declarations and orders he seeks, I am of the view that the discretionary considerations weigh strongly against the grant of the relief.” – [39].
5. [5]
   Section 63(1) of the Planning and Environment Court Act 2016 (Qld) provides that a party to a Planning and Environment Court proceeding may appeal a decision in that proceeding, but only “on the ground of error or mistake in law or jurisdictional error”.  Section 63(2) provides that any such appeal is to be made only with leave of this Court.
6. [6]
   From the comprehensive decision of the primary judge, the applicant seeks leave to appeal to this Court so that he can argue that the primary judge made no fewer than five errors of law material to the exercise of her discretion not to grant relief.
7. [7]
   I would:

   1. (a)
      refuse the application for leave to appeal, and
   2. (b)
      order that the applicant pay the first, second and third respondents’ costs of and incidental to this appeal.
8. [8]
   I now give my reasons for those conclusions, dealing with each of the proposed grounds of appeal, although in a slightly different order to that in which they appear in the proposed notice of appeal.  It is first necessary to say something more about the history of the first respondents’ attempts to begin building. 

History of Attempts to begin Building

9. [9]
   The first respondents’ redevelopment involved moving and extending the existing house, as well as excavation and filling to create a level backyard with a pool and surrounding deck areas.  There was a set of stairs from the decks to the lawn in the backyard.
10. [10]
    Almost as soon as the first respondents’ works began the applicant wrote to the Council alleging that the development was unlawful because the first respondents had no operational works permit for filling and excavation.
11. [11]
    In response, on 11 March 2021 the first respondents made an application for an operational works permit.  It was granted on 13 July 2021.
12. [12]
    After the interim enforcement order was made, the Council granted the operational works permit and also granted an exemption certificate under s 46 of the Planning Act 2016 (Qld) so that the first respondents did not need to obtain a building permit from the Council in relation to the pool.  Nonetheless the applicant persisted.  At least so far as this application is concerned, the applicant’s focus was on the pool, decks and stairs, and the fill, retaining walls, posts, piers and foundations, which will support them.  I will call this work the rear building work.
13. [13]
    Because the first respondents were partially demolishing a house built before 1946, and because they were building a dwelling house in an area subject to the Ithaca District Neighbourhood Plan, the building work to the house itself was assessable development under the City Plan – s 44 Planning Act.  The Council was the assessment manager in this respect and issued a development permit for building work on 6 August 2020 (first Council building permit).  Thirteen plans were approved.
14. [14]
    These 13 plans show that the first respondents’ house will be located on the western (Reading Street) side of their block of land.  The block falls steeply away to the south and east.  The applicant’s block is to the south of the first respondents’.  The plans show stepped retaining walls on the south and east of the block so as to achieve a level backyard to the house.  The primary judge described the conclusions she reached from an examination of these plans as follows:

9. “[53]
   It is apparent from the approved plans that the extension to the dwelling is to be built utilising a slab-on-ground construction method. Given the steeply sloping nature of the backyard, this is to be achieved by constructing several retaining walls in the backyard and placing fill behind those retaining walls to create a level fill platform.

9. [54]
   The proposed retaining walls are not immediately beneath the outer limit of the built form of the dwelling. Rather, they are offset from the edge of the building such that the aerial extent of the level fill platform is greater than the building footprint. There is additional fill between the retaining walls and the fill platform directly beneath the footprint of the dwelling. That area is a level backyard that adjoins the southern and eastern extents of the built form, adjacent the outdoor dining area. It is described on the plans as ‘YARD 12.7m x 8.1m’. The 12.7 metre dimension is the dimension of the backyard from east to west. Towards the eastern extent of the backyard but within the 12.7 metre east-west dimension, the plans show three terraced gardens, with consequent stepping to the height of the southern retaining wall at its eastern end.

9. [55]
   The consequence of that design is that the structural support for the dwelling is provided by the combined effect of the fill directly beneath the footprint, the southern and eastern retaining walls, and the fill that creates the level backyard. Absent the fill in the location of the backyard, there is no means of retaining the fill that is to be placed directly beneath the building platform.

9. [56]
   In the circumstances, I am satisfied that the notation about earthworks on the approved plans does not relate to the excavation and filling that will create the level pad on which the dwelling is to be constructed, nor the excavation and filling that will create the area of level backyard that adjoins the southern and eastern extents of the built form. That development is properly characterised as building work. It is excavating or filling for, or incidental to, the building of the extensions to the dwelling. It is part of the building work approved by the Council building permit.” (footnotes omitted and my underlining).

15. [15]
    The plans just discussed showed three terraced gardens, rather than a pool and decking at the eastern boundary of the backyard.  The first respondents took the view that it was necessary for them to engage a private certifier in relation to the rear building work.  They believed this work was properly to be assessed under the Planning Act and the Planning Regulation 2017 (Qld).  Accordingly, they engaged a private certifier.  On 23 October 2020 the certifier approved demolition works for the site (first certifier building permit).  This was not controversial between the parties.
16. [16]
    On 19 November 2020 the private certifier approved the remaining work the subject of the application before him (second certifier building permit).  That included the rear building work.  The primary judge said this about the plans approved by the private certifier as part of the second certifier building permit:

9. “[80]
   A comparison of the approved plans that form part of the second certifier building permit to those that form part of the Council building permit reveals that there are some differences in the southern and eastern retaining walls and to the area of fill in the backyard that provides lateral support to the fill beneath the slab for the extension to the dwelling. The eastern extent of the backyard that was shown to contain three terraced gardens in the Council building permit is depicted as part of the level backyard in the second certifier building permit. Immediately adjacent the eastern extent of that area, the second certifier building permit plans show the deck, the pool, and the rear stairs. The deck and the pool are depicted as level with the backyard. They are supported in their elevated position by post‑and-pier style blockwork foundations. The deck, the pool, and the rear stairs, and the structures that support them, do not appear in the approved plans that form part of the Council building permit. They are part of the building works with which Mr Baxter takes issue.”

17. [17]
    As noted above, after the applicant commenced this proceeding, the first respondents obtained an exemption certificate under s 46 of the Planning Act in respect of the pool (7 June 2021), and a development permit for operational works in relation to filling and excavation (13 July 2021).
18. [18]
    The exemption certificate described the development to which it related as “swimming pool part above ground pool due to grade of land”.  The primary judge said:

9. “[87]
   The plans depict the pool, the shell of which is elevated above natural ground level. The top edge of the pool is generally level with the proposed elevated backyard. It is supported in its elevated position by post-and-pier blockwork foundations, which foundations penetrate the natural ground level.”

19. [19]
    The operational works permit approved works shown on plans which were described by the primary judge as follows:

9. “[90]
   The approved plans depict areas of cut in yellow and areas of fill in green. The coloured areas cover almost the entire subject land, including areas underneath the footprint of the dwelling and in the location of the proposed elevated backyard.

9. [91]
   The plans show the backyard pad with a finished level of RL 48.04. The backyard pad is flanked to the east by a lower garden, with a finished level of RL 47.09. Along the southern edge of the backyard pad is a garden with a finished level of RL 47.04 and a lower garden with a finished level of RL 46.09.”

20. [20]
    On 1 October 2021 there was a change approved to the Council building permit which had to do with the design of the house (second Council building permit).  There were again 13 approved plans.  This time they showed the pool and pool deck, rather than the three terraced gardens, at the eastern end of the block.  The primary judge recorded:

9. “[99]
   My findings in paragraphs [53] to [56] above regarding the construction method to be adopted, the location of retaining walls, and the extent of filling and excavation that is part of the building work approved by the decision are equally applicable to the changed Council building permit.”

21. [21]
    On 5 October 2021 the private certifier issued a third permit in relation to the dwelling, and rear building work (third certifier building permit).  The plans approved by this certification showed changes approved by the second Council building permit and the operational works permit.  The first respondents’ evidence, which was accepted below, was that they intended to build in accordance with these plans.

Ground 2(a) – Proper Characterisation of the Filling Work

22. [22]
    This proposed ground of appeal is a challenge to the underlined parts of the primary judge’s reasons in the extract at [14] above, and the associated conclusion at [20] above.  It was submitted that there was no evidence before the primary judge that the series of retaining walls and fill in the level backyard provided structural support to the dwelling.  However, there was evidence before the primary judge: the 13 plans which were attached to the first Council building permit, and the 13 plans which were attached to the second Council building permit.  Her Honour examined the plans and her conclusions are drawn from them.  If she made an error in interpreting them, that is a factual error and no appeal lies to this Court from it.
23. [23]
    There is another equally compelling reason why leave should not be given to the applicant to advance proposed ground 2(a) on appeal.  Because the applicant complained to the Council that the excavation and filling works which were to be carried out on the first respondents’ land were unlawful for want of an operational works permit, the first respondents obtained the operational works permit necessary.  The applicant did not challenge the validity of the operational works permit.  Thus, as it was put in the Council’s written submissions, “even if the filling at the rear of the Subject Land could be said to be ‘operational work’ rather than ‘building work’, the Prestons have already obtained the operational works permit which lawfully authorises the filling work.  …  In consequence, this ground is futile and lacks utility.”
24. [24]
    Leave should not be given to advance proposed ground 2(a).

Ground 2(c) – Invalidity of Exemption Certificate

25. [25]
    This proposed ground of appeal is that the exemption certificate is invalid.
26. [26]
    Section 46(1) of the Planning Act states that, “A development approval is not required for assessable development on premises if there is an exemption certificate for the development”.  The applicant argued before the primary judge that the exemption certificate was invalid on nine separate bases.  In this Court he seeks leave to agitate two of them on appeal, namely that:

    1. (a)
       the description of the works in the exemption certificate is incorrect, and
    2. (b)
       the delegate who granted the certificate, “asked himself the wrong question, and failed to consider relevant matters, such that his decision was affected by jurisdictional error”.
27. [27]
    The two points are closely related, as this passage from the primary judge’s reasons shows:

9. “[260]
   Mr Baxter notes that in the exemption certificate under the heading ‘Development to which the exemption certificate relates’, the development is described as ‘swimming pool part above ground due to grade of land’. The notice of the decision to give the exemption certificate published on the Council’s website similarly describes the ‘Proposal’ as ‘swimming pool part above ground’. Mr Baxter submits that the description does not correspond to the pool that is proposed. He says that the evidence of Mr Muller, the architect he retained, is that the pool is entirely above ground. Mr Baxter says that it follows that, on the face of the exemption certificate and the notice, the exemption certificate does not purport to exempt the works undertaken and proposed to be undertaken by the Prestons and Graya Construction Pty Ltd.

9. [261]
   Further, Mr Baxter says that the Council delegate who assessed the application, Mr McAulay, admits that he misinterpreted the plans when considering the request for an exemption certificate. He believed that the pool was partly above ground due to the gradient of the subject land, when that is not, in fact, the case. Mr Baxter says that concession alone means that the decision to issue the exemption certificate was infected by jurisdictional error because the delegate asked himself the wrong question, namely ‘should I issue a certificate in respect of a pool which is partly above ground due to the grade of the land?’ (italics in the original, footnotes omitted).

28. [28]
    The primary judge found that, whatever the Council delegate thought, part of the pool was below ground.  Her reasoning was as follows:

9. “[264]
   In any event, Mr Baxter has not established that the exemption certificate misdescribes the development. The exemption certificate comprises 15 pages. … Careful consideration of the plans reveals that the description is accurate. The building work for the ‘pool’ includes the pool shell, the pool water recirculation system, the components associated with the discharge of swimming pool waste water and the underpinning or other structural support that is necessary for the construction of the pool. Part of the pool, being a part of its post-and-pier blockwork structural foundation, is below the ground.”

29. [29]
    It was argued on behalf of the applicant that her Honour’s factual finding was incorrect because it failed to distinguish between the building works necessary to support the swimming pool (some of which were below ground) and the swimming pool itself, ie, the shell, which was wholly above ground.  I am not convinced that her Honour was in error in making the finding that part of the pool was below ground.  However, if she was, it was a factual error and not one susceptible of appeal to this Court.
30. [30]
    Furthermore, even if there was an error on the part of the Council delegate in describing the pool as partly above the ground, in the circumstances of this case, I consider it to be only a minor error or technical slip in the description where:

    1. (a)
       the top of the pool shell is about level with the finished level of the backyard;
    2. (b)
       while the bottom of the pool shell is above the natural ground level, it is well below the finished ground level of the backyard;
    3. (c)
       piers and foundations surround the pool shell, not earth; 
    4. (d)
       because of the lawn and decking surrounding the pool, the facts at (b) and (c) will not be discernible once construction is finished.
31. [31]
    I cannot think that the relevant legislation could be construed so as to discern a legislative purpose to invalidate an exemption certificate because of such a slip – cf Project Blue Sky Inc v Australian Broadcasting Authority.^[1]  There is nothing in the misdescription point.
32. [32]
    It is difficult to find a clear statement of exactly what the applicant advances as his jurisdictional error point.  It is also difficult to see that this point was raised in its present form before the primary judge.  It seems to be an amalgam of (a) an argument which remained undeveloped below as to relevant considerations;^[2] (b) a recasting of arguments which were advanced below in support of Wednesbury unreasonableness,^[3] and (c) the point recorded by the primary judge at [261], quoted at [27] above.
33. [33]
    The starting point must be s 46(3) of the Planning Act which provides that the Council delegate may give an exemption certificate if:

2. “(a)
   for development for which there is a referral agency – each referral agency has agreed in writing to the exemption certificate being given; and

2. (b)
   any of the following apply –

1. (i)
   the effects of the development would be minor or inconsequential, considering the circumstances under which the development was categorised as assessable development;

…”

34. [34]
    Here the Council delegate gave the exemption certificate in reliance on s 46(3)(b)(i).  The applicant’s submission is that the Council delegate’s evidence established that he gave “no independent consideration to the impacts of the swimming pool at all”.  It was said that the delegate’s evidence was that he did not assess the impacts of the pool separately from the impacts of the decks surrounding it.  The difficulty for the applicant is that the primary judge made findings of fact to the contrary:

9. “[300]
   Mr McAulay [the delegate] considered the visual impact of the pool on neighbouring properties. He believed that the visual impacts of the development were minimal as the pool sits within and is surrounded by the deck. He formed the view that the neighbouring properties would see the deck structure and, whether the pool was part of that structure or not was likely to make little difference to the visual impact. Most of the impact comes from the surrounding structure.

9. [301]
   Mr McAulay explains that reviewing all the information, he determined that it was appropriate to give the exemption certificate because the effects of the pool were minor or inconsequential considering the circumstances in which it was categorised as assessable development.

…

9. [303]
   With respect to the description of the pool as ‘part above ground’, Mr McAulay explains that he gave that description as that is how he initially interpreted the plans. When cross‑examined on the issue, it is apparent that, regardless of the appropriate descriptor, the focus of Mr McAulay’s assessment was the effect of the development. He judged that by reference to the plans, the relativity of the location of the pool (and its consequent impacts) compared to other aspects of built form proposed on the subject land (such as the deck), and the outcome of the assessment of those other aspects.” (footnotes omitted).

35. [35]
    The applicant now also advances an argument that there is no material showing that the Council delegate gave separate consideration to the blockwork elevating the structure beneath the swimming pool and the decks.  This is another factual point.  It is true that the Council delegate did not consider this as an independent matter, but his evidence was that it was unnecessary to do so because the blockwork was underneath the decks, and the decks were close to the adjoining property, so there were “no additional impacts” from that blockwork.^[4]  I cannot see that there is any argument in relation to this additional point which could properly be advanced on appeal.
36. [36]
    I cannot see that the applicant has any point which could legitimately be advanced to support this proposed ground of appeal.  He is complaining about matters which, if they reveal errors, reveal factual errors on the part of the primary judge.  Significantly that means that the applicant has no argument available on appeal to challenge the validity of the exemption certificate.  This detrimentally affects the applicant’s other proposed grounds, see below.

Ground 2(b) – Rear Building Work to be assessed by Council

37. [37]
    Before the primary judge the applicant contended that the second certifier building permit was invalid; six grounds were relied upon, all unsuccessfully.  The applicant seeks to agitate one of those grounds on appeal: that the primary judge made an error of law in deciding that the rear building work did not require a development approval from the Council under the Planning Act.  The positions of the parties below, and before this Court, were summarised by the primary judge:

9. “[142]
   Mr Baxter contends that, to the extent that the second certifier building permit relates to building work for the construction of the pool, the deck and the rear stairs, the application was required to be made to the Council as assessment manager pursuant to s 21 and sch 8, table 1A, item 1 of the Planning Regulation 2017. The Council submits that the pool is building work for which it is an assessment manager but disagrees with Mr Baxter about the deck and the rear stairs. The Prestons and Graya Construction Pty Ltd submit that none of that building work requires assessment by the Council as assessment manager.”

38. [38]
    Chapter 3 pt 2 of the Planning Act provides the framework for “how a person makes a development application to an assessment manager for a development approval to carry out assessable development” – s 47.  Section 48(1) provides that the assessment manager for a development application is the person prescribed by regulation as the assessment manager for the application.  Section 51(1)(a) provides that a development application must be made in the approved form to the assessment manager.
39. [39]
    Here, it is common ground that some aspects of the development of the lot which related to building the dwelling itself were correctly made to the Council as assessment manager.  However, the first respondents made a development application for the rear building work to a private certifier.  The applicant contends that the assessment manager for the rear  building work was the Council.  He relies upon s 21 and sch 8, table 1A, item 1 of the Planning Regulation.  Section 21 of the Planning Regulation states:

“21 Assessment manager for development applications – Act, s 48

3. (1)
   This section prescribes, for section 48(1) of the Act, the assessment manager for a development application.

…

3. (4)
   For a development application other than an application stated in subsection (2) or (3), schedule 8, column 2 states the assessment manager for the application stated opposite the assessment manager in column 1.”

40. [40]
    Table 1, item 2 and table 1A, item 1 of sch 8 of the Planning Regulation provide as follows:

41. [41]
    There was no controversy as to items (c) and (d) in table 1A above.
42. [42]
    The “local instrument” is in this case the City Plan, and it is provisions of the City Plan itself which determine whether or not assessable development must be assessed under the City Plan.  Section 5.3.1 of the City Plan provides at item 5 that the initial category of development assessment for building work is accepted development, that is development which can be assessed by a private certifier – section 5.7 of the Plan.  Section 5.3.1 of the City Plan says at paragraph 9 that if an overlay applies, reference must be had to section 5.10 of the Plan to determine if the overlay changes the category of development assessment.
43. [43]
    Relevantly here, the first respondents’ land is subject to a traditional building character overlay.  Because of this, s 5.10 of the City Plan and table 5.10.21 have provisions relevant to determining whether or not the rear building work was to be assessed against the City Plan.  Table 5.10.21 provides as follows:

Table 5.10.21 – Traditional building character overlay

44. [44]
    One draws from this table that, “building work involving a … dwelling house … is assessable against the City Plan” if it is to be undertaken in an area subject to a traditional building character overlay.  However, s 5.3.4 and table 5.3.4.1 of the City Plan prescribe development which is not assessable under the City Plan in certain circumstances.

Table 5.3.4.1

45. [45]
    The primary judge took the view that table 5.10.21 made building work which was confined to the dwelling house itself assessable by the Council against the City Plan where the lot was within a traditional building character overlay – [179].  No-one challenged this, and it seems plainly correct.
46. [46]
    The primary judge found that the rear building work was not caught by table 5.10.21 so as to become assessable against the City Plan – [180].  She thought the table only applied to building work to the dwelling itself.
47. [47]
    I acknowledge that the language in both tables is poor when the tables are considered individually, and that interpretation becomes more difficult when the two tables are considered together.  However, I am not greatly attracted to the interpretation adopted by the learned primary judge.  Firstly, I think it cuts down the operation of the word “involving” in the phrase “building work involving a … dwelling house …” in table 5.10.21.  Secondly, I think that the Council submission below that such an interpretation left the provision at table 5.3.4.1 with no work to do was likely correct.^[5]  The circumstances listed in table 5.3.4.1 describe things which are less likely to detract from traditional character, at least from the street view.  It makes sense that they would be, in effect, exempted from assessment against the City Plan, while the dwelling house itself (pursuant to table 5.10.21), and other building not within the circumstances set out in table 5.3.4.1, would require assessment against the City Plan.
48. [48]
    The primary judge proposed a second, alternative construction: that the rear building work, so far as it consisted of the decks around the pool area and rear stairs, was within table 5.3.4.1 and thus prescribed accepted development, rather than assessable against the City Plan – [188] of the judgment below.  I prefer this construction.  It seems to me the primary judge was right to reject the idea that only external stairs or decking which was attached to a dwelling house itself was within the circumstances described in table 5.3.4.1 – [189]-[190] below.  I can see no reason in the text itself, or otherwise, to read the table that way.  Certainly other items in the table – sheds, for example – are unlikely to be attached to a building.  An outbuilding, by definition, will not be.  A balcony and a verandah would normally be attached to a building, but that does not mean that a deck should be construed the same way.  I conclude, therefore, that the decks and stairs were properly assessed by the private certifier.
49. [49]
    In respect of the foundations and fill beneath the pool and decks, the primary judge took the view that the retaining walls and filling beneath the rear building work had been approved by the Council as assessment manager in granting the building permit – see proposed ground 2(a) above.  As explained above, even if that view was incorrect, the matter was regularised when the operational works permit was issued.  Further, the plans for the decks and the swimming pool clearly showed the foundations, blockwork and piers which formed part of those works; the plans in respect of the decks were approved, and those in respect of the swimming pool were exempted from the need for approval.
50. [50]
    As to the pool itself, there is a question as to whether or not it was “an in-ground swimming pool” and thus within item h of table 5.3.4.1.  Certainly much of the shell of the pool was above the natural level of the ground, although not above the reconstructed ground level.  Nonetheless, the shell of the pool was not surrounded by earth.  There was no argument on this point so I refrain from expressing a final view.
51. [51]
    The primary judge found that even if the pool was not an “in-ground swimming pool” and thus did not fit within the description in table 5.3.4.1, it still did not require assessment against the City Plan because the rear building work did not require assessment against the matters mentioned in sch 9, pt 3, div 2 of the Planning Regulation – [208] of the judgment below and table 1A, item 1(b)(ii) of sch 8 to the Planning Regulation, extracted at [40] above.  The primary judge took the view that the assessment of the swimming pool did not require consideration of anything but impacts on amenity or aesthetics.  The primary judge records that the applicant did not argue this point in any detail before her.  Before this Court the applicant contended that her Honour’s view was wrong, but there was no detail to the argument.
52. [52]
    The Council did ultimately take the position that the primary judge was wrong about this point, so far as it related to the pool.  However, the Council did not argue it before this Court, but instead submitted that it was unnecessary for us to determine the point because, “Any error could not have materially affected her Honour’s ultimate decision because the Exemption Certificate exempted the swimming pool from assessment against the City Plan …”.^[6]  That submission seems to me to be correct.  And, particularly where the matter has not been argued fully by the applicant, or by the Council, I cannot see that this Court need decide the point.
53. [53]
    In summary, I cannot see that there is utility in allowing the applicant to advance proposed ground 2(b) on appeal.  I cannot see that the deck and stairs required assessment by the Council against the City Plan; they were within table 5.3.4.1 and properly assessed by the private certifier.  If the words “in-ground pool” in table 5.3.4.1 did not apply to this pool because it was above the natural ground level before development, and if the primary judge was mistaken about sch 9, pt 3, div 2 of the Planning Regulation, a finding that the swimming pool ought originally to have been approved by the Council as assessment manager would not assist the applicant in obtaining the relief it seeks where that relief is discretionary, and a valid exemption certificate has been granted.  Lastly, so far as this point rests on the retaining walls, filling and foundations which are to support the pool and pool deck, these works were either permitted under the operational works permit and the second and third private certifier permits, or exempted from the need for approval by the exemption certificate.

Ground 2(d) – Private Certifier Permits Invalid

54. [54]
    The primary judge explained the applicant’s case as to this point as follows:

9. “[211]
   Mr Baxter contends that the second certifier building permit could not be issued because of the absence of a development approval for operational works. In this respect, Mr Baxter relies on ss 83(1)(a), (2) and (3) of the Building Act 1975, which state:

‘83 General restrictions on granting building development approval

1. (1)
   The private certifier must not grant the building development approval applied for—

   1. until, under the Planning Act and the Economic Development Act 2012, all necessary development permits and PDA development permits are effective for development, other than building work, that may affect any or all of the following—
      1. (i)
         the form or location of the building work;
      2. (ii)
         the use of the building or other structure;
      3. (iii)
         the assessment of the building development application; and

…’

9. [212]
   At the time that the second certifier building permit was issued, the Council building permit was in effect. The exemption certificate and operational works permit had not yet been given.

9. [213]
   Mr Baxter submits that the filling the subject of the operational works permit was development that may affect the location of the building work the subject of the second certifier building permit or, at least, the use of part of the building work the subject of the second certifier building permit, being the pool and associated structures.

9. [214]
   In support of his submission, Mr Baxter says that it is apparent that the Prestons intended to be able to walk from the decks at either end of the pool onto the lawn created by the fill contemplated by the operational works permit. He relies on the acceptance of this proposition by Mr Buckley, the town planner retained by the Prestons and Graya Construction Pty Ltd. Mr Baxter says that it follows that the second certifier building permit should not have been granted by the private certifier. He says that pursuant to s 83(3) of the Building Act 1975, the development application that resulted in the second certifier building permit is taken not to have been received.”

55. [55]
    Although the written submissions for the applicant contended that it challenged all the private certifier permits on this basis, it was not explained how the ground could apply to the third private certifier permit which was issued after the exemption certificate, the operational works permit, and the second Council building permit.  As the evidence at the trial was that the first respondents intended to build in accordance with the third private certifier permit, there is no basis to allow the applicant to advance this proposed ground on appeal.

Ground 2(e) – Failure to provide Particulars of Unlawful Works

56. [56]
    The primary judge described this last issue in these terms:

9. “[333]
   As I have already mentioned above, Mr Baxter alleges that the Prestons and Graya Construction Pty Ltd have committed development offences and will commit development offences unless restrained. He seeks enforcement orders that require the Prestons and Graya Construction Pty Ltd to:

1. (a)
   remedy the effect of the development offences committed under s 163 of the Planning Act 2016; and

2. (b)
   refrain from committing development offences under ss 163 and 164 of the Planning Act 2016.

…

9. [335]
   Mr Baxter’s application for this relief raises the following questions for consideration:

1. 1.Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?

1. 2.Will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016 unless restrained?”

9. [336]
   Before considering those questions, it is helpful to briefly consider the Court’s jurisdiction with respect to enforcement orders.

…

9. [337]
   Section 180(1) of the Planning Act 2016 confers a right to start proceedings in this Court for an enforcement order. ‘Enforcement order’ is defined in s 180(2), which states:

1. ‘(2)
   An enforcement order is an order that requires a person to do either or both of the following –

1. (a)
   refrain from committing a development offence;

2. (b)
   remedy the effect of a development offence in a stated way.’

9. [338]
   The Court’s power to make an enforcement order is enlivened if the Court considers a development offence has been committed; or will be committed unless the order is made. Each of ss 163 and 164 of the Planning Act 2016 is a development offence under the Act.

9. [339]
   In deciding whether to make an enforcement order, the Court has a broad discretion. Pursuant to s 180(5) of the Planning Act 2016, an enforcement order may direct a person:

2. ‘(a)
   to stop an activity that constitutes a development offence; or

2. (b)
   not to start an activity that constitutes a development offence; or

3. (c)
   to do anything required to stop committing a development offence; or

4. (d)
   to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or

5. (e)
   to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

• to repair, demolish or remove a building
• to rehabilitate or restore vegetation cleared from land’

…

9. [341]
   Pursuant to s 180 of the Planning Act 2016, Mr Baxter seeks an enforcement order requiring the Prestons and Graya Construction Pty Ltd to remedy the effect of development offences that he alleges they committed under s 163 of the Planning Act 2016.

9. [342]
   Relevantly, Mr Baxter says that following the grant of the second certifier building permit, the Prestons and Graya Construction Pty Ltd commenced redevelopment of the subject land. Mr Baxter alleges that the activities on the subject land involved:

1. (a)
   the commencement of alterations to the dwelling;

2. (b)
   the commencement of filling at the rear of the subject land, which Mr Baxter refers to as ‘the Commenced Operational Works’; and

3. (c)
   the commencement of the building work for the pool, which Mr Baxter refers to as ‘the Swimming Pool Works’.

9. [343]
   In paragraph 1 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter defines ‘the Swimming Pool Works’ as building work under the Planning Act 2016 in the rear of the subject land involving the construction of an above-ground swimming pool, with associated decks, rear stairs and structural and retaining structures. I refer to these components of the building works as the pool, the deck, and the rear stairs.

9. [344]
   Ultimately, Mr Baxter alleges that the offences committed by the Prestons and Graya Construction Pty Ltd are carrying out operational work without a development permit and carrying out building work, for the pool, the deck, and the rear stairs, without a development permit.” (footnotes omitted).

57. [57]
    By s 163 of the Planning Act, carrying out assessable development without all necessary development permits is an offence.  The applicant asked the primary judge to find that offences had been committed in the past, and to enjoin the first respondents from committing them in the future.

Future Works

58. [58]
    As to future works, the primary judge found that there was, “no real and immediate controversy as to the lawfulness of future conduct with respect to earthworks on the subject land.  It is unlikely that the Prestons and Graya Construction Pty Ltd will carry out development” in the unlawful way assumed by the declarations sought – [418] of the judgment below.  For those reasons her Honour declined to make declarations as to future filling works on the site – [420] of the judgment below.
59. [59]
    Further, the primary judge concluded that having regard to her findings about the validity of the second and third certifier building permits and the exemption certificate, there was “no real and immediate controversy as to the lawfulness of future building work on the subject land” – [425].  For the same reasons she concluded that the applicant had “not established that a development offence will be committed unless the enforcement orders he seeks are made” – [430].
60. [60]
    No doubt influential in the primary judge coming to the above conclusions were some of the matters she listed as discretionary considerations which militated against the grant of relief to the applicant.  Those included:

“…

9. [28]
   Second, the breaches of the law, assuming they were made out, were not the product of a wilful and contumelious disregard of the law. To the contrary, the Prestons relied on the expertise of others. It was reasonable for them to do so.

…

9. [30]
   Fourth, the Prestons, through their conduct and through the direct testimony of Mrs Preston, have demonstrated a commitment to obtaining all necessary development approvals or exemptions to authorise any development undertaken on the subject land. They have also demonstrated a commitment to acting in accordance with the development approvals so obtained.” (footnotes omitted).

61. [61]
    There was no issue as to enjoining future works before this Court.  That is, the applicant accepted that the primary judge was correct in refusing to make declarations enjoining the first respondents as to future works on the site.

Past Works

62. [62]
    Before the primary judge the applicant contended that the first and second respondents had committed development offences under s 163 of the Planning Act by carrying out work which was not approved.  Building works were carried out on the subject land for a very short period of time before the applicant complained and brought works to a halt.  As to these works, the primary judge recorded there was, “no dispute that at the time earthworks were carried out on the subject land, the Prestons did not have the benefit of the operational works permit or the exemption certificate” – [353].
63. [63]
    As to this, the primary judge recorded, “The real issue in dispute between the parties relates to the identification of the ‘development’ that is said to have been carried out without the necessary development approvals” – [348].  The issue between the parties is described by the primary judge as follows:

9. “[359]
   The Prestons and Graya Construction Pty Ltd submit that the particulars of the work ‘carried out’ are not sufficient for the Court to identify the works complained of and whether the undertaking of such works constitute development offences. They say that Mr Baxter must identify items which he says are unlawful, for example by identifying which retaining wall, structure, or area of fill is the subject of the allegation.

9. [360]
   In the absence of sufficient particulars, the Prestons and Graya Construction Pty Ltd submit that the Court should refuse to make any enforcement order under s 180 of the Planning Act 2016.”

64. [64]
    Her Honour went on to say that particulars of work said to constitute an offence must be precise and detailed, a proposition with which I readily concur.  Her Honour examined this proposition in some detail against the requirements of the Planning Act:

9. “[361]
   Rule 9 of the Planning and Environment Court Rules 2018 requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought.

9. [362]
   Where the proceeding seeks an enforcement order on the basis that a development offence has been committed, or a declaration that development has been carried out unlawfully, the originating process should identify the acts that constitute the alleged offence. That a degree of particularity is called for is apparent from four matters of context.

9. [363]
   First, the foundation for the Court’s power to make an enforcement order is its finding that it is satisfied that the alleged offence has been committed or will be committed. As such, where the alleged development offence is that under s 163 of the Planning Act 2016, the Court must be able to identify the development in question to ascertain whether it is (or will be) assessable and whether all necessary approvals have been obtained with respect to it.

9. [364]
   Second, the particulars of the development offence inform the legitimacy of the relief sought. Under s 180 of the Planning Act 2016, the Court has power to make an order that requires a person to refrain from committing a development offence or to remedy the effect of a development offence. The particulars of the development offence must be sufficient to inform the ‘effect’ of the development offence.

9. [365]
   Third, under s 180(7) of the Planning Act 2016, the Court must state the period for compliance with the order. The particulars must be sufficient to ascertain a period that is reasonable. For example, to determine a reasonable timeframe to comply with an order to remove unlawful fill will likely require an appreciation of the volume of fill the subject of the allegation.

9. [366]
   The fourth relevant contextual matter is that the making of an enforcement order can have significant consequences to the rights of landowners to deal with their land. Unless the Court orders otherwise, an enforcement order, other than an order to apply for a development permit, attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises. The order is to be recorded on the register for the premises by the registrar of titles. Further, contravention of an enforcement order is a criminal offence for which punishment includes imprisonment.

9. [367]
   Those features of the enforcement order regime support that the development offence which underpins the orders is to be identified with precision in the originating process. The originating process should provide sufficient detail to properly inform any respondent of the essential factual ingredients of the offence alleged to have been committed.” (footnotes omitted).

65. [65]
    I think this discussion is a useful framework for analysis, not just in this case but more generally.
66. [66]
    The applicant below alleged that offences had been committed because operational works and the rear building work had been carried out without all necessary development permits.  However, the applicant’s third further amended originating application did not identify the operational works that were said to have been carried out in the past, as opposed to those which it alleged would be carried out in the future.  Further, the document drew no distinction between the various component parts of the rear building work which it was alleged had been carried out.
67. [67]
    The applicant submitted in this Court that the works which were carried out by the first and second respondents were well known to them, therefore particulars were not needed.  Such a proposition is unarguable in any case, but particularly in a case where there is an allegation of an offence.  Further, the applicant said that there could not have been a problem with the particulars as the first and second respondents were able to prepare their evidence in the proceeding and participate in the hearing.  Again, this submission is simply wrong.
68. [68]
    The Council submitted that whether or not sufficient particulars had been provided was a matter of fact.  In truth, I think it is a mixed question of fact and law.
69. [69]
    Her Honour found that there were not sufficient particulars provided with respect to the applicant’s case:

9. “[371]
   With respect to the allegation regarding the building work for the pool, the deck and the rear stairs, the Third Further Amended Originating Application does not draw any distinction between each of these aspects of building work. The same description and particulars are used for all aspects.

9. [372]
   The potential difficulty to the other parties and the Court occasioned by the lack of precision can be explained by reference to the allegations in relation to the works described by Mr Baxter as the ‘Commenced Operational Works’.

9. [373]
   Paragraph 1(b) of the prayer for relief in the Third Further Amended Originating Application describes that work as follows:

‘operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”)’

9. [374]
   The operational works permit includes an approved earthworks plan that depicts areas of cut in yellow and areas of fill in green. Is the area that is coloured yellow and green the ‘area of operational work’ to which Mr Baxter refers? If so, given the coloured area covers almost all the subject land, what part of it is to be regarded as ‘the rear of the subject land’?

9. [375]
   The need for precision is highlighted by the allegation in paragraph 4A of the Third Further Amended Originating Application that:

‘the Commenced Operational Works are not excavation or filling for, or incidental to, work approved by the Building Approval’.

9. [376]
   Is it Mr Baxter’s case that even the filling beneath the dwelling slab that is required to facilitate a slab-on-ground construction is not filling that is for, or incidental to, the construction of the extension to the dwelling? If not, what part of the fill is accepted to be building work and what part of the fill is alleged to constitute operational work? This is not clear from the Third Further Amended Originating Application.

9. [377]
   In the circumstances, Mr Baxter has not provided sufficient particularity with respect to his allegation of unlawful operational work.

9. [378]
   Mr Baxter’s particulars about the unlawful building work would have also been inadequate if, as the Council submitted, the pool was building work that was categorised as assessable development under City Plan.” (footnotes omitted).

70. [70]
    I can find no fault with the primary judge’s reasoning in this regard.
71. [71]
    In fact, the primary judge’s decision did not rest upon want of particularity alone.  She went on to consider whether or not there was evidence of any operational works having been undertaken at the site.  She noted that she received a “lack of assistance” from the applicant on this issue – [386].  The evidence relied upon by the applicant below was that there is a pile of dirt visible in one of the photographic exhibits at the trial.  At the time the pile of dirt was photographed there were works relating to demolition and building associated with renovating and extending the dwelling house which were approved.  Of this her Honour said:

9. “[389]
   Mr Catchlove said that he considered there was assessable operational work occurring on the subject land as at 21 April 2021, being the date of his first Affidavit and the interlocutory enforcement order, because there was an area of dirt that was purportedly greater than one metre and he assumed it was intended to permanently change the ground level. He assumed that because a greater level of fill was shown on plans attached to the second certifier building permit.

9. [390]
   There are two reasons that this evidence is not sufficient for Mr Baxter to discharge his onus with respect to an allegation that assessable operational work has been carried out without a development permit.

9. [391]
   First, the pile of dirt has not been proved to be ‘filling or excavation’ as that term is defined in City Plan. It is clear from the photographs that the construction works on the subject land remain a work in progress. There will be earthworks, including excavation and filling, that is incidental to the building work and that will occur in the process of performing the building work.

9. [392]
   Mr Baxter has not proved that the pile of dirt visible in the photos is assessable ‘filling’. There is no proof it has changed the ground level of the subject land. There has been no evidence about the ground level of the subject land at the location where the dirt appears to be piled either before or after the dirt was put there. Further, at the time of the photographs, it is simply a pile of dirt that may be moved as the development progresses. There is no proof that it was intended to stay in that location, or that it was even placed in that location in the first instance. There may have been reasons that the dirt was not intended for final use in that location. There is no permanency to the dirt’s location. As such, there is no evidence that it involves the importation of material that will change the ground level of the subject land.”^[7] (footnotes in the original omitted).

72. [72]
    Again, I can find no fault with the reasoning of the primary judge, and indeed this part of her reasoning was not criticised by the applicant. 
73. [73]
    My conclusion is that the applicant did not properly particularise the operational works which he said had occurred in the past and further, that there was no evidence at trial which established that operational works had occurred in the past without approval.
74. [74]
    The primary judge held that irrespective of her view about particulars, the applicant had not proved that the rear building work required Council approval.  In relation to the pool only, there is some doubt as to the view of the primary judge – see [47]-[51] above.  However, I am very comfortable about rejecting the applicant’s argument that the particulars provided as to work on the pool which had been undertaken before the first and second respondents were enjoined in 2021 were inadequate.  I would add, having regard to the photographic evidence in the Record Book, that there is no indication whatsoever that any work had begun on the pool itself, as opposed to other rear building work at the time of the hearing.

Costs

75. [75]
    The primary judge delivered a comprehensive judgment very promptly after hearing this proceeding.  At the conclusion of it she noted that by the third further amended originating application the applicant sought costs in the proceedings in the Planning and Environment Court on the assumption that he was successful.  Given that the applicant was wholly unsuccessful before the primary judge, it is unsurprising that she recorded that she was not persuaded that an order for costs should be made in the applicant’s favour – [434].  By the final paragraph of her judgment, the primary judge invited the parties to raise “any matters arising”.  We were told that there had been an application for costs filed in the Planning and Environment Court but it had not been dealt with pending the decision in this appeal.  That means that this Court has nothing to consider by way of costs orders below.
76. [76]
    In respect of the costs of this appeal it was conceded by the applicant that they should follow the event, and so they should, in my view.  I would order that the applicant pay the costs of the first, second and third respondents of and incidental to this appeal.
77. [77]
    FLANAGAN J:  I agree with Dalton JA.