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Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd[2015] QPEC 15

Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd[2015] QPEC 15

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd & Anor [2015] QPEC 15

PARTIES:

LOCKYER VALLEY REGIONAL COUNCIL

(Applicant)

v

ZACZANE HOLDINGS PTY LTD
(ACN 100 464 631)

(First Respondent)

and

KHALED HAMMOUD

(Second Respondent)

FILE NO/S:

BD4044/14

DIVISION:

Planning and Environment

PROCEEDING:

Application for Temporary Stay

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

16 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2015

JUDGE:

Searles DCJ

ORDER:

  1. Application is dismissed with costs assessed on the standard basis.
  2. Costs order subject to the Respondents filing written submissions within 7 days of this order.

CATCHWORDS:

PROCEDURE – STAY OF PROCEEDINGS – TEMPORARY STAY - Respondents first commenced two separate proceedings against Applicant in the Supreme Court of Queensland – First Supreme Court proceeding is for claims grounded in estoppel and unlawful interference with trade – Second Supreme Court proceeding is claim for judicial review of Applicant’s conduct under local government legislation – Where Applicant later commenced proceedings under planning legislation – Later proceedings seek declarations and enforcement orders for Respondents’ alleged development offences – Respondents seek stay of Applicant’s proceeding pending resolution of Supreme Court proceedings - Whether Applicant’s proceeding raises same or substantially similar issues fundamental to Respondents’ proceedings – Discretionary considerations relevant to temporary stay – Whether balance of justice justifies staying the proceeding.

District Court of Queensland Act 1967 (Qld) s 69(2)(c)

Integrated Planning Act 1997 (Qld) ss 4.1.21, 4.3.1, 4.4.3

Local Law No. 1 (Administration) 2011 (Qld) ss 8, 8.5, 14

Planning and Environment Court Rules 2010 (Qld) r 3

Sustainable Planning Act 2009 (Qld) ss 436(2), 456, 578, 580, 604, 605, 611

Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745

Blair v Curran (1939) 62 CLR 464

Briginshaw v Briginshaw (1938) 60 CLR 336

Henry v Henry (1995) 185 CLR 571

Imagatec P/L v Gosley-Fuller [2012] QDC 15

McMahon v Gould (1982) 7 ACLR 202

Netstar Pty Ltd v Caloundra City Council [2004] QCA 296

Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287

White v ASIC [2013] QCA 357

COUNSEL:

Mr D O'Brien QC for the Applicant

Mr P van Eps of Counsel for the First and Second Respondents

SOLICITORS:

Corrs Chambers Westgarth for the Applicant

Aden Lawyers Pty Ltd for the First and Second Respondents

Contents

Application in pending proceedings 3

Proceedings sought to be stayed 3

Development Application 4563 4

Development Application 5525 4

Issues for Determination in Council’s Enforcement Application – BD4044/14 4

Undertaking Building Work with no Development Permit 5

First Supreme Court Proceeding – Judicial Review Application 11922/12 5

Issues in Dispute in Judicial Review Application 5

Second Supreme Court Action – Civil Claim - 2905/13 7

Principles relevant to stay application 9

Zaczane’s submissions 10

Council’s submissions 12

Consideration 13

Order 16

Application in pending proceedings

  1. [1]
    The First Respondent, Zaczane Holdings Pty Ltd and its sole director Mr Hammoud, the Second Respondent (together, Zaczane) seek a stay of these proceedings pending the conclusion of two Supreme Court matters: proceeding 11922/12 (Judicial Review Application) and 2905/13 (Civil Claim).

Proceedings sought to be stayed

  1. [2]
    The Council’s originating application BD 4044/14 (Enforcement Application) now sought to be stayed was commenced on 16 October 2014. It seeks declarations pursuant to s 4.1.21 of the Integrated Planning Act 1997 (Qld) (IPA) or, in the alternative, s 456 of the Sustainable Planning Act 2009 (Qld) (SPA) that:
  1. (a)
    Zaczane has undertaken development on premises at 7828 Warrego Highway, Helidon (Property) in breach of the conditions of development permits DA4563 and DA5525.
  1. (b)
    Each of the breaches constituted a development offence by Zaczane under s 580 of SPA.
  1. (c)
    Zaczane has carried out assessable developments, being the construction of cabins and relocatable home structures on the Premises without an effective development permit for that development.
  1. (d)
    The construction of each of those cabins and structures constitutes a development offence by Zaczane under s 4.3.1 of IPA or, in the alternative, under s 578 of SPA.
  1. (e)
    Hammoud, in his capacity as an executive officer of Zaczane, failed to ensure that Zaczane complied with the above sections of IPA and SPA (respectively), and that Hammoud’s failure to ensure Zaczane complied as such constituted a development offence by Hammoud against s 4.4.3 of IPA or, in the alternative, against s 611 of SPA.
  1. [3]
    The Council further sought consequential enforcement orders pursuant to ss 604 and 605 of SPA compelling Zaczane, within 40 business days, to remedy the breaches and bring it into compliance with all conditions in DA4563 and DA5525.

Development Application 4563

  1. [4]
    DA4563 is the Council’s 7 June 2007 approval, subject to conditions, of Zaczane’s Development Application (Material Change of Use Stage 2) (Impact Assessment) for Extension and Modification to Existing Caravan and Relocatable Home Park and Spa to include an additional forty-four Relocatable Home Sites (Stage 2) on the Property. 
  1. [5]
    DA4563 was the subject of Zaczane’s appeal 2885/07 against certain of the conditions imposed by Council and the Office of Urban Management as a concurrence agency. By consent order of 31 March 2010, Zaczane’s appeal was allowed and the Development Application was approved subject to the conditions set out in Annexure A to the order.[1]

Development Application 5525

  1. [6]
    DA5525 was Council’s 25 June 2008 approval of Zaczane’s application for a Development Permit for Material Change of Use (Impact Assessment) for Long Term Accommodation – 40 Sites in Existing Caravan/Relocatable Home Park on the Property. As with DA4563, Zaczane appealed the conditions of Council’s approval in appeal 3083/08. In that appeal, on 31 March 2010 - the date of the final order in DA4563 - final consent orders were made allowing Zaczane’s appeal, subject to conditions. It is significant that the orders in both appeals were made by consent.

Issues for determination in Council’s Enforcement Application - BD4044/14

  1. [7]
    In the application now sought to be stayed, Council alleges the Respondents have breached certain conditions the subject of the above final orders. The conditions Council relies on are summarised in Schedule A. Council further alleges Zaczane committed offences by carrying out assessable developments without an effective development permit. It seeks declarations that each of the condition breaches constitutes a development offence, and enforcement orders[2] requiring Zaczane to bring the use of the Property into compliance within 40 business days.

Undertaking Building Work with no Development Permit

  1. [8]
    Council further alleges that between July 2005 and April 2012, Zaczane constructed approximately 84 cabins and relocatable home structures, including undergoing plumbing and drainage works, which constituted an ‘assessable development’ within IPA and SPA, without any effective development permit having been obtained in relation to those building works other than for sites marked 3, 5 to 11, 101 to 104, 107 to 109 and 111 to 112 on Attachments A and B to the Council’s Originating Application. Undertaking those building works, it is said, constitutes a development offence under s 4.3.1 of IPA or, in the alternative, under s 578 of SPA.

First Supreme Court proceeding – Judicial Review Application – 11922/12

  1. [9]
    The first of the two Supreme Court applications commenced by Zaczane against Council and founding the stay application is 11922/12, and was commenced on 11 December 2012.[3]  The most current pleading in that action is the further amended application for a statutory order of review, filed 11 December 2014.[4]  The relief sought is in these terms:-

“Application is made to review:

  1. (a)
    The decision of the Respondent made pursuant to s. 8(5) of the Local Law No. 1 (Administration) 2011 (Local Law No. 1), which was dated 14 February 2013 (Notice), whereby it determined that the Applicant’s applications for renewal of on approval for a prescribed activity, namely operation of caravan parks (Operating Permit) in respect of the Heldion Mineral Spa Resort situated at 7828 Warrego Highway, Heldion in the state of Queensland (Property) had lapsed (Decision);
  1. (b)
    Alternatively, the failure of the Respondent to make a decision, in circumstances where it had a duty to make a decision under Local Law No. 1, whereby the Respondent, by its Notice, advised the Applicant that its application for an Operating Permit in respect of the Property had lapsed (failure to Make a Decision).”

Issues in dispute in Judicial Review Application

  1. [10]
    As the grounds of this application reveal, Zaczane says it operated the subject property as a caravan park from 2004 to the date of the Judicial Review Application (December 2012) and held operating permits throughout that time. On 28 August 2012, Zaczane applied for renewal of its Operating Permit which, it is said, Council wrongly treated as a new application pursuant to s 8 of the Local Law No. 1.
  1. [11]
    Zaczane says the application for renewal should have been properly treated as a renewal pursuant to s 14 of that law. Specifically, the Council’s decision of 14/02/13 to so treat its application was an improper exercise of the power conferred by Local Law No.1. It further alleges Council failed to take a relevant consideration into account or, alternatively, failed to properly exercise its discretion in deciding whether to grant an approval to operate. That relevant consideration, which it is said that Council failed to take into account, was the information Zaczane provided to Council pursuant to the latter’s request of 30 October 2012, and the fact that the proposed operation and management of the property as a caravan park was, at point of application and remains, adequate to protect public health, safety and amenity and prevent environmental harm.
  1. [12]
    Zaczane further alleges that the failure to make a decision for a renewal was an improper exercise of the Council’s discretionary power under Local Law No. 1, and the Council’s decision or, alternatively, its failure to make a decision was so unreasonable that no reasonable person would have so exercised the power.  Rather, a reasonable person would have treated the application as a renewal, made a decision on the information provided, having a regard to the adequate operation of the park and not discriminated against Zaczane without justification by requesting information documents or material not ordinarily requested by a person applying for an operating permit. Finally, it is alleged a reasonable person would have determined the application weighing the proportionality of granting the operating permit against the legal and commercial consequences to Zaczane of Council’s decision or its failure to make a decision. 
  1. [13]
    In all the circumstances, it is said, the Council’s decision or its failure to make a decision constituted an abuse of power by reason of the misapplication of the powers conferred on the Council by Local Law No. 1, and, by reason of the fact the information requested by the Council was unduly burdensome, unreasonable and irrelevant given the information already provided and the adequate operation of the property by Zaczane.
  1. [14]
    On the back of these submissions, Zaczane seeks orders:
  1. (a)
    That the Council decision is invalid and be set aside, effective from the day it was made.
  1. (b)
    That within 14 days Council make a decision pursuant to s 14 of the Local Law No. 1 to renew Zaczane’s operating permit.
  1. (c)
    That the Council’s new decision involve different Council personnel than those involved in the original decision.
  1. (d)
    That it is allowed to lawfully operate the property as a caravan park pending satisfaction of order (b).

Second Supreme Court Action – Civil Claim - 2905/13

  1. [15]
    On 27 March 2013, Zaczane commenced its Civil Claim in the Supreme Court. The current manifestation of its pleading is the third amended statement of claim, filed on 15 October 2014.[5]  In that action, Zaczane seeks the following relief:
  1. (a)
    an injunction restraining the Council from continuing to assert or to impose or purport to rely on conditions purporting to have the effect, that the plaintiff is not entitled to proceed with the Lifestyle Resort Development at [the Property] at least in stages 1 and 2, including Long-term Accommodation Use by residents;
  1. (b)
    equitable compensation or alternatively, damages, or both;
  1. (c)
    interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld);
  1. (d)
    costs; and
  1. (e)
    such further or other orders that the Court may consider appropriate.
  1. [16]
    Essentially, in this action Zaczane relies upon what it says is a long history of the use of the Property as a resort and park since the 1930s. In particular, it describes these as “Existing Uses” of “Long-term Accommodation Use, tourist use and Spa Activity Use”. Subsequent to Zaczane’s acquisition of the Property on 14 August 2004, the Property continued to be used for those uses and was licensed for eighty-four unrestricted accommodation bays for cabins, caravans and relocatable homes.
  1. [17]
    Zaczane says that the property was in a poor state when it acquired it. Its proposal (Lifestyle Resort Development) then was to refurbish the property and redevelop it as an over-50s residential resort to accommodate long-term and permanent residents, and to restore and revitalise the famous and therapeutic Helidon Spa facilities for residents and the public.
  1. [18]
    As a result of particularised conduct and in the absence of certain conduct by the Council in relation to the proposal, Zaczane asserts an estoppel against the Council.[6]  It alleges that the Council knew the nature and extent to which Zaczane was developing and carrying out works on the property and marketing and selling interests in relocatable homes on the property. Zaczane particularised the words and conduct of the Council, said to give rise to an estoppel, in the third Amended Statement of Claim as follows:[7]
  1. (a)
    they were reasonably understood by [Zaczane] that it could commence and continue developing and carrying out works to the Property in furtherance of the Lifestyle Resort Development and that any conditions imposed in development approvals by the [Council] would not prevent the Lifestyle Resort Development from proceeding and would be consistent with and recognise the Existing Uses, and in particular the Long-term Accommodation Use; and
  1. (b)
    a reasonable person would believe that they could be acted upon, which they were by [Zaczane], in –
  1. (i)
    developing and carrying out works to the Property;
  1. (ii)
    having relocatable homes erected on the Property for residents to purchase and reside in permanently;
  1. (iii)
    investing money in marketing and promoting the Property as the Lifestyle Resort Development; and
  1. (iv)
    entering into agreements and transactions for the development and occupation of the Property by permanent residents.
  1. (c)
    [Council] encouraged [Zaczane] to commence and then continue development of the Property in furtherance of the Lifestyle Resort Development in the manner it did on the assumption (known to and intended by the [Council] that, if a development approval was required, would –
  1. (i)
    not prevent in any material way the Lifestyle Resort Development from lawfully proceeding; and
  1. (ii)
    be consistent with and recognise, at least for Stage 1 and Stage 2, the Existing Uses and not purport to prevent those uses, and in particular the Long-term Accommodation Use;
  1. (d)
    further or alternatively, [Council] acquiesced in [Zaczane] taking the steps it did on that assumption;
  1. (e)
    further or alternatively, [Council] represented that any conditions of a development approval would:
  1. (i)
    not operate to prevent in any material way the Lifestyle Resort Development from lawfully proceeding; and
  1. (ii)
    be consistent with and recognise, at least for Stage 1 and Stage 2, the Existing Uses and not purport to prevent those uses, and in particular the Long-term Accommodation Use. (Emphasis added).
  1. [19]
    Against the above alleged conduct of Council, Zaczane says that Council was and is estopped from imposing or relying on the development conditions, insofar as they purport to prevent the Lifestyle Resort Development from proceeding, or are inconsistent with and do not recognise the Existing Uses, or purport to prevent those uses, specifically the Long-term Accommodation Use. Schedule B contains a summary of the chronology of conduct Zaczane relies upon.

Principles relevant to stay application

  1. [20]
    This court’s power to stay proceedings is not controversial. As the Planning and Environment Court Rules 2010 (Qld) do not expressly provide the power to stay, this court derives that power from the principles and rules that would apply in the District Court.[8] As a court of limited jurisdiction, the District Court derives its powers of stay from the District Court of Queensland Act 1967 (Qld) s 69(2)(c).[9]
  1. [21]
    By and large, the parties were not in dispute as to the principles that are relevant to deciding whether a proceeding should be temporarily stayed pending resolution of other proceedings.
  1. [22]
    The starting point is that every plaintiff/applicant has a prima facie entitlement to properly invoke the jurisdiction of a court to have its matter heard and determined as soon as conveniently possible.[10] The party seeking a stay bears the onus of demonstrating, on proper grounds that this ordinary entitlement of the plaintiff/applicant should be interfered with.[11] The question for the court is whether, on balance, the interests of justice are best served by the grant of a stay, having regard to all relevant factors.[12]
  1. [23]
    In Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd,[13] Lockhart J usefully set out the factors that a court should have regard to when considering whether the interests of justice warrant a stay:[14]

Which proceeding commenced first.

Whether the termination of one proceeding is likely to have a material effect on the other.

The public interest.

The undesirability of two courts competing to see which of them determines common facts first.

Circumstances relating to witnesses.

Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

How far advanced the proceedings are in each court.

The need for the law to strive against permitting multiplicity of proceedings in relation to similar issues.

  1. [24]
    Usually, a stay will be justified where there is the requisite degree of commonality between the concurrent proceedings. That is, where the two actions involve the same parties, the same subject matter and require the resolution of the same, or substantially similar, factual or legal issue(s). It was in this vein that the High Court in Henry v Henry held:[15]

“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue.”

  1. [25]
    While both parties provided me with numerous authorities dealing with stay applications, I consider there would be little utility in an analysis of each of them. Each case must be assessed on its own merits. The court must exercise its discretion, and the factors relevant to that exercise are to be assessed in light of the reality existing between the parties, and not in the abstract.[16]

Zaczane’s submissions

  1. [26]
    Zaczane submitted it would be inconvenient, impractical, embarrassing and unusual to allow the Enforcement Application to continue alongside the two Supreme Court proceedings. Those latter two proceedings, it argues, involve factual and legal issues that are material to the determination of the Enforcement Application. Council would effectively be able to pursue declarations with a view to facilitating the determination of issues that are very much alive in the Supreme Court proceedings, which authorities such as Flynn v Suncorp-Metway Limited[17] have relied on to justify a stay.
  1. [27]
    Specifically, Zaczane points to issues of Existing Use Rights, Permanent Accommodation, Water Quality and Permits to Operate as already the subject of determination in either the Judicial Review Application or its Civil Claim.
  1. [28]
    In relation to Existing Use Rights, it says both courts will both have to decide whether they existed in relation to the Property. Such rights, Zaczane says, go to the heart of this court’s decision whether it is in breach of development conditions in DA4563; while also being central to the determination of the Civil Claim.
  1. [29]
    Regarding Permanent Accommodation, Zaczane argues says that, common to both the Judicial Review Application and the current proceeding, is Zaczane’s compliance with conditions in DA5525. This court will have to decide whether Zaczane must fulfil the obligations in that DA. Similarly, it argues, this will also arise before the Supreme Court, because Council claims it could not issue a licence without proof of Zaczane’s compliance with the conditions of all building and development approvals over the Property.
  1. [30]
    In relation to the issue of Water Quality, Zaczane makes similar submissions. It says Zaczane’s alleged non-compliance with conditions in DA4563 and DA5525, which relates to the supply of potable water, arises in the Judicial Review Application to the extent it contends that Council:

a) failed to take proper and reasonable consideration that the operation and management of the Property as a caravan park was adequate to protect public health, safety and amenity; and

b) received information demonstrating that potable water is being supplied to the Property and that this is indeed the case.

  1. [31]
    The final issue is in relation to Zaczane’s alleged breach, in the Enforcement Application, of Local Law No. 1 for failing to obtain a permit to carry out assessable development works. It argues that the issue of obtaining an operating permit is the whole point of the Judicial Review Application, and so it can only be resolved upon conclusion of that proceeding. In other words, Zaczane says Council is seeking to enforce conditions in circumstances where the legality of the decision-making process underpinning the permits prescribing those conditions is to be tested.
  1. [32]
    Zaczane further submitted that the application of each of the factors Lockhart J in Sterling set out to its case favour the granting of a stay.

Council’s submissions

  1. [33]
    In response, Council says Zaczane falls well short of discharging the onus of establishing proper grounds to justify a stay of the Enforcement Application. It points primarily to the lack of any significant overlap of factual or legal issues between the proceedings, which each involve different causes of action and relief sought.
  1. [34]
    In particular, it says the only potential point of interaction the Judicial Review Application may have with the Enforcement Application is in relation to the enforcement of Condition O11 of DA5525, which required Zaczane to operate the caravan park on the Property with an operating permit. Council says that, as it has undertaken to abstain from asserting any non-compliance with this condition in the Enforcement Application, there cannot be said to be any crossover in issues between the two proceedings. The Enforcement Application seeks to enforce numerous other conditions in respect of which Zaczane does not seek judicial review.
  1. [35]
    Council says the case is similar in relation to the Civil Claim. It argues that this proceeding turns on whether Council can impose conditions preventing long-term of permanent residency on the Property. Since it has also undertaken to not assert non-compliance with any such conditions in the Enforcement Application, and since the Enforcement Application seeks to impose conditions in relation to many other matters not the subject of the estoppel claim, there is no significant overlap between the two proceedings.
  1. [36]
    Council rejects Zaczane’s submission that the Enforcement Application will facilitate the determination of either of the Supreme Court proceedings. It argues that the Enforcement Application issues are of a quasi-criminal nature, by virtue of the fact that it is alleged Zaczane committed certain development offences, which will require determination according to a higher standard of proof. Whereas the Supreme Court proceedings will each be decided on the balance of probabilities, the Enforcement Application, being of a quasi-criminal nature, will be decided at the high end of the sliding scale the High Court outlined in Briginshaw v Briginshaw.[18] It relies on Lucy v OCC Holdings Pty Ltd & Ors[19], in which this court held that a determination of civil proceedings cannot give rise to an issue estoppel vis-à-vis later criminal proceedings.
  1. [37]
    Further, Council argues that the Second Respondent, Mr Hammoud, is not a party to the Judicial Review Application, and so will not be bound by its determination. An issue estoppel cannot arise against a party who was not a party to the earlier litigation that resolved the issue.[20]
  1. [38]
    Finally, in terms of relative prejudice between the parties, Council says that whereas Zaczane will suffer no prejudice if a stay is not granted, the public will be prejudiced by a delay of the Enforcement Application because it will resolve issues that affect the health and well-being of the residents of the Property.

Consideration

  1. [39]
    I am not satisfied, based on a consideration of the factors set out in Sterling that Zaczane has demonstrated the interests of justice would be best served by staying the Enforcement Application.
  1. [40]
    The issues the Judicial Review Application raises are quite disparate from those which the Enforcement Application raises. In the former proceeding, the Supreme Court must decide whether Council’s decision (or failure to make a decision) in relation to the grant of an operating permit over the Property was made in accordance with administrative law principles. I have already set out Zaczane’s specific grounds for review. It is sufficient to note that this involves an inquiry into Council’s decision-making process. While aspects of this inquiry concern whether and how Council should have considered Zaczane’s compliance with relevant development conditions relating to permanent residency and water quality, that is a fundamentally different inquiry to asking whether Zaczane has, as a matter of fact, complied with those conditions. Again, I note the Zaczane consented to the conditions it now seeks to attack.
  1. [41]
    I accept, as Zaczane submitted, that as between both proceedings there is a duplication of the issue relating to Zaczane’s alleged breach of Condition O11 of DA5525. In that regard, Zaczane is alleged to have failed to apply for and obtain, and do all things reasonably necessary to enable it to obtain, an operating permit under the Local Law No.1, to lawfully operate the caravan park for the 2012-2013 period. In the same vein, the basis of Zaczane bringing the JR Application was its failure to renew its permit for the operation of caravan parks on the Premises, over the same period.
  1. [42]
    However, as Council has undertaken to remove that part of the Enforcement Application which asserts non-compliance with this condition,[21] the result is that the two proceedings do not overlap. In these proceedings, Council asserts contraventions of various other conditions which do not form the basis of the Judicial Review Application. These include, among many others, stormwater management; bushfire management; building issues; sealing of access roads; provision of vehicle parking and vehicle washing areas; erosion and sediment control and plumbing. The Judicial Review Application does not challenge Council’s decision, or decision-making process in respect of the granting of these conditions. The questions for determination in each proceeding are quite distinct.
  1. [43]
    The same conclusion applies as between the Enforcement Application and the Civil Claim. The basis of the Civil Claim, which asserts an estoppel and an unlawful interference with trade, is Zaczane’s alleged entitlement to operate the Premises for long-term and permanent residency purposes. Of the thirty-nine alleged contraventions of conditions by Zaczane in the Enforcement Application, only two (Condition 5 of DA 4563 and Condition N7 of DA 5525) relate to Zaczane’s use of the Premises for permanent residency. And, as with the Judicial Review Application, Council has undertaken to remove from the Enforcement Application asserted contraventions of these conditions.[22]
  1. [44]
    The issue of Zaczane’s alleged existing use rights does not change this conclusion. The source and effect of those rights were not satisfactorily articulated by Zaczane, as shown in the following exchange I had with its Counsel:[23]

HIS HONOUR:   In what respect do you say that the Council, by imposing the conditions, has imposed something not in harmony, or disharmonious with the existing uses? 

MR VAN EPS:   Well, the Council is saying, "You're in breach of all of these conditions" in total, and what my client will be saying is, "Well, no, I'm not in breach of those conditions" ‑ or it may be ‑ without making any concessions here, he will be saying that some of those conditions need to be interpreted and considered a certain way in light of the existing use rights.  Now, the existing use rights obviously being an issue very much in dispute as to not only their existence, but to what extent, your Honour, they affect the conditions of 4563 and the way that those conditions must be followed.

HIS HONOUR:   But 4563 ‑ the conditions of 4563 were the subject of an appeal in this court, as I understand it.  They were approved 31st of March 2010.

MR VAN EPS:   I understand that's the case and it would be our position that even despite that, that doesn't affect the way that those conditions, even after appeal, must sit in harmony with his existing use rights.

HIS HONOUR:   But was that issue agitated in the appeal in 2010? 

MR VAN EPS:   I couldn't say authoritatively, your Honour.

HIS HONOUR:   You see, I just find it curious that you've been to court in relation to 4563, you've challenged the conditions, the conditions have been amended by order of the court of 31 March 2010, which then sets the parameters of the conditions.  Whether or not you've raised the issues you are now seeking to raise in the Supreme Court, I don't know, and you obviously don't know either.  But that would have been the time ‑ if this issue was to be agitated, that's the time to have been agitating these things.  It just seems ‑ I just can't ‑ I'm just not persuaded that this is a case for a stay given that you've had the opportunity, and conditions have been set by the court, they've allegedly, by the Council, been ignored and you say, "Well, that's all right.  We don't have to ‑ to the extent that they don't comply with our ‑ these original 1920s forward uses, that order is of no consequence."  I mean, that's the effect of what you're saying.

MR VAN EPS:   No, no, I'm not saying that at all, your Honour.  It comes down to the extent to which my client must comply with those conditions.  Now ‑ ‑ ‑ 

HIS HONOUR:   Well, the conditions are ‑ they're not ‑ conditions aren't ‑ they're not optional once they're ‑ ‑ ‑ 

MR VAN EPS:   No, no.

HIS HONOUR:   Once they're imposed by a court or ‑ so you don't ‑ it's not a selective process by reference to what you might say are longstanding existing use rights, because you've had the opportunity at that hearing to agitate this issue.  That's what's going through my mind.  And I might be completely wrong, but I ‑ it just seems to me to be incongruous to come along when the Council seeks to enforce ‑ and I'm not looking at the merits ‑ seeks to enforce conditions imposed by this court after, presumably, a hearing and argument by saying, "Oh, well, look, we did want to raise some other stuff that goes back to the existing uses which we" ‑ well, I'm assuming weren't raised in the March 2010 judgment hearing, because it wouldn't be agitated again, presumably.  So you don't know whether that was agitated in 2010.  You weren't acting. 

MR VAN EPS:   I wasn't acting.  My, albeit limited, understanding ‑ and your Honour can take this for what it's worth ‑ is that the existing use rights were raised.

In any event, I accept Council’s submission that this issue is one that would be more appropriately dealt with first in this court than in the Supreme Court. It is a matter which plainly concerns ‘the lawfulness of land use or development’,[24] and is therefore either within this court’s exclusive jurisdiction,[25] or ought, as a matter of discretion, to be left exclusively to this court to determine.[26]

  1. [45]
    In short, Zaczane has failed to demonstrate on balance, that the interests of justice are best served by the grant of a stay. It is true that its Supreme Court proceedings commenced first, and are somewhat more advanced than the Enforcement Application. However, it has failed to demonstrate there are fundamental issues that are the same or substantially similar as between each Supreme Court proceeding and the Enforcement Application. I also accept Council’s submission that the resolution of the latter proceeding will not facilitate the determination of either of the two former proceedings. I add, however, that it is not to the point, as Council contended, that each proceeding involves separate causes of action or seeks different forms of relief.[27]
  1. [46]
    I am further unpersuaded by Zaczane’s submissions regarding the undesirability of substantial duplication and waste of resources. The short answer to this submission is that there will not be, or should not be, any such duplication or waste. The issues raised in each proceeding are quite discrete. Of course, given the same parties are involved in each proceeding, there will be some duplication in this regard, but only to the extent that would ordinarily be expected.

Order

  1. [47]
    The application is dismissed with costs, to be assessed on the standard basis but subject to the Respondents filing written submissions within 7 days of this order.

Schedule A

DA4563

 

Condition No.

Alleged Breach

  1.  

Condition 1

Failure to develop premises in accordance with the Approved Plan resulting in the following key differences between the actual development and the Approved Plan:

  • Layout of caravan/relocatable home sites;
  • Lack of open space;
  • Lack of car washing bays;
  • Lack of visitor parking area; and
  • Layout of internal roads.
  1.  

Condition 2

Failure to submit a STORM WATER Management Plan to Council prior to undertaking operational works. 

  1.  

Condition 4

Failure to submit a Bushfire Management Plan to Council prior to undertaking operational works

  1.  

Condition 11

Failure to liaise with Council in relation to the bitumen sealing of the access road and failing to seal that road with bitumen

  1.  

Condition 15

Failure to provide any dedicated car parking spaces at the Premises

  1.  

Condition 16

Failure to provide any dedicated car washing bays at the Premises

  1.  

Condition 29

Failure to submit to Council, or obtain approval of, stormwater drainage plans prior to works commencing onsite which failure continues

  1.  

Condition 31

  1. Failure to provide with its application for development permit for operational works, the material required to be provided by Condition 31(a);
  2. Failure to construct the erosion and sediment control devices required by Condition 31(a) before commencing construction works;
  3. Failure to control erosion at the source point as required by Condition 31(a) and to undertake inspections and, where necessary modifications, as required by Condition 21(c);
  4. Failing to submit accompanying long term erosion and sediment control design drawings as required by Condition 31(d); and
  5. Failing to liaise with Council on the design of erosion and sediment control devices as required by Condition 31(d).
  1.  

Condition 33

Failure, before undertaking construction works or clearing the site, to lodge with Council, for review, an operational works application including plans, drawings and calculations certified by a registered professional engineer of Queensland.

  1.  

Condition 34

Failure to submit to Council a Certificate of Design certified by an RPEQ

  1.  

Condition 35

Failure to provide to Council an RPEQ certificate on completion of operational works

13

Condition 36

Failure to provide to Council “as constructed” drawings of completed infrastructure works.

  1.  

Condition 41

Given that the Premises do not receive town water:

  1. Failure to provide each site at the premises with a 22,500 litre water tank;
  2. Part filling those tanks that had been provided with bore water
  1.  

Condition 46

Failure to apply for and obtain a compliance permit and necessary approvals for plumbing and drainage works before commencing those works.

  1.  

Condition 47

Failing to provide full water reduction fixtures for all buildings.

  1.  

Condition 56

Failure to provide a potable water supply for each accommodation building and shared facility.

  1.  

Condition 60

Failure to store waste undercover.

  1.  

Condition 61

Disposal of waste on-site.

  1.  

Condition 62

Disposing of non-recyclable waste by on-site burial.

  1.  

Condition 75

Buildings constructed under DA4563 do not comply with Building Code of Australia requirements.

  1.  

Condition 76

Failure to obtain approval for all buildings constructed under DA4563.

  1.  

Condition 89

Failure to carry out landscaping and fencing in accordance with DA4563 Approved Plan.

  1.  

Condition 90

Failure to submit a plan of landscaping for approval prior to undertaking operation works under DA4563.

  1.  

Condition 91

Failure to provide sealed refuse storage areas in accordance with the DA4563 Approved Plan.

  1.  

Condition 1

Failure to develop the premises generally in accordance with the DA5525 Approved Plan.  Evidenced by the following key differences:

  • Layout of caravan/relocatable home site;
  • lack of open space;
  • lack of car washing bay;
  • lack of visitor parking areas; and
  • layout of internal roads.
  1.  

Condition F1

Failure to pay road contributions to Council.

  1.  

Condition F2

Failure to pay contributions towards the acquisition of public garden and recreation space.

  1.  

Condition F5

Failure to pay the contributions required by conditions at F1 and F2 before commencing the use.

  1.  

Condition 152

Failure to provide a Bushfire Management Plan for approval.

  1.  

Condition K1

Failure to provide a potable water supply in accordance with the Australian Drinking Water Guidelines 2004.

  1.  

Condition K14

Failure to comply with this condition by:

  1. storing waste by on-site burial rather than in waste containers; and
  2. failing to securely cover waste containers.
  1.  

Condition M9

Failure to obtain Council approval for any works associated with vehicle access, car parking, storm water drainage or road reserve works prior to commencing the use

  1.  

Condition N7

Using sites other than the 40 approved sites for permanent residency.

  1.  

Condition N24

Failure within three months of the date of approval or at all:

  1. to obtain billing approval for all but 18 sites shown on the DA 5525 Approved Plan;
  2. to resolve all plumbing permit compliance issues; and
  3. to liaise with Council to ensure the above occurs.
  1.  

Condition N32

Failure to apply for an amended final certificate for all relocatable homes under DA5525 within three months of approval or at all.

37

Condition O11

Failure to:

  1. operate the Caravan/Relocatable Home Park component of the approved use in accordance with either the Code 4 Caravan/Relocatable Home Parks as outlined in the Gatton Shire Planning Scheme or conditions of a local law permit;
  2. apply for and obtain and do all things reasonably necessary to enable it to obtain an operating permit under the Council’s local laws for any year subsequent to the granting of DA5525.
  1.  

Condition P1

Failure, prior to the commencement of the use or at all, to submit operational works documentation in the form of detailed plans, drawings and calculations and prior to undertaking construction work or clearing on the premises or otherwise commencing the use.

  1.  

Condition P4

Failure prior to the commencement of the use or at all to obtain RPEQ certification for operational works.

  1.  

Condition U3

Failure prior to the commencement of the use or at all to provide either:

  1. a roof and allotment drainage system;
  2. a Storm Management Plan demonstrating compliance with this condition.

Schedule B

Date

Event

14 August 2004

Acquisition of property by Zaczane

6 July 2005

Meeting with Mr Hammoud (Zaczane) Bauer (investor in plaintiff’s project) with Mr Wilson (plaintiff’s town planner) and Mr Moriaty (planning officer of the Gatton Shire Council) proposed Lifestyle Resort Development explained to Mr Moriaty who indicated that the proposed development should be straightforward because of the existing license of 84 sites and the Existing Use.

9 July 2005 (approximately)

Mr Moriaty telephoned Mr Wilson and said a development application needed to be lodged to achieve a mobile/relocatable home part.

13 July 2005

A further meeting with Mr Hammoud and Mr Wilson with Mr Jones Gatton Shire Council Mayor and Mr Moriaty.  The plaintiff represented it was explained details of proposed development.  Mr Jones advised it would be raised at the Council meeting later that month.  Mr Moriaty repeated his earlier advice that the development would be straight forward because of the existing 84 sites being used for accommodation (which would cover the initial stages of development) no material change of use application required as to construction of further homes above the existing 84 and perhaps up to 200 Mr Moriaty said there would need to be an upgrade of the existing license or a material change of use application but that bridge could be crossed when the plaintiff came to it.

Subsequent to Council meeting 13 July 2005 on date unspecified but before 18 July 2005

Zaczane commenced preliminary refurbishment works to improve existing facilities in particular refurbishing the coffee shop, spa building and management office, landscaping the front of the property and around amenity buildings, concreting around the coffee shop and drive way and installing a pool and bridge over the pond connecting the major lakes. 

18 July 2005

Town planner Mr Wilson advised Council in writing that:

a) the Existing Uses were historical and continued uses of the Property;

b) the Plaintiff was refurbishing the Property in order to “… substantially improve the existing facilities and create an attractive resort style environment for residents and tourists incorporating a Health and Pain Management Retreat”;

c) refurbishment works at the Property had commenced to improve the facilities supporting the Existing Uses; and

d) ‘in principle’ support for the project (referring to the Lifestyle Resort Development) was requested from the Defendant to enable preliminary works to continue.

On or about 18 July 2005

Mr Moriaty advised Mr Wilson that Ms Ryan the Gatton Shire Council Planning and Environment manager required lodgement of a development application for the Lifestyle Resort Development.

20 July 2005

Mr Hammoud, Mr Wilson and Mr Bauer attend Gatton Shire Council Meeting and gave a detailed presentation of the proposed Lifestyle Resort Development seeking the Council’s in principle support.  The Council meeting resolved to give in principle support for the development of the Heldion Spa Caravan Park.  Mr Jones said renovation work could continue with Mr Moriaty saying that any development approval eventually needed would have to be obtained.

29 September 2005

Application by Mr Wilson on behalf of Zaczane of application for Development Approval for material change of use of the property for the Lifestyle Resort Development.  $3,360 fee paid and town planning report of Mr Wilson’s firm OWR included in application.

13 October 2005

Acknowledgement notice under IPA issued by Council acknowledging receipt of the Application and listing Office of Urban Management as an advice agency advising a development gave a presentation to the manager of Planning and Environment at the Gatton Shire Council wanted a development application.

Footnotes

[1]  Court Document 12, appeal 2885/07.

[2]  Pursuant to the Sustainable Planning Act 2009 (Qld) ss 604-605.

[3]  Affidavit of A J Bigby sworn 21 January 2015, para 5.

[4]  Ibid and Exhibit AB-1.  The plaintiff is Zaczane Holdings Pty Ltd and the defendant the Council.

[5]  Affidavit of A J Bigby sworn 21 January 2015, Exhibit AB-2. The plaintiff is Zaczane and the defendant the Council.

[6]  Affidavit of A J Bigby sworn 21 January 2015, Exhibit AB-2, pp 33-35.

[7]  Ibid Exhibit AB-2, paras [73]-[74].

[8] Planning and Environment Court Rules 2010 (Qld) r 3.

[9]  If not based on the District Court’s inherent powers: see Imagatec P/L v Gosley-Fuller [2012] QDC 15 at [18] per Dorney QC, DCJ.

[10] McMahon v Gould (1982) 7 ACLR 202 at 206; Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 at 294.

[11] McMahon v Gould (1982) 7 ACLR 202 at 206, affirmed in White v ASIC [2013] QCA 357 at [12], [16].

[12] McMahon v Gould (1982) 7 ACLR 202 at 206.

[13]  (1992) 34 FCR 287.

[14]  Ibid 291.

[15]  (1995) 185 CLR 571 at 591.

[16] Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 at [16] per Bennett J.

[17]  [2009] QSC 175.

[18]  (1938) 60 CLR 336.

[19]  [2008] QPELR 398.

[20]  Citing Blair v Curran (1939) 62 CLR 464 at 531-532

[21]  Exhibit MJM1 to the Affidavit of Matthew James McDermott sworn 9 February 2015, p 2.

[22]  Exhibit MJM1 to the Affidavit of Matthew James McDermott sworn 9 February 2015, p 2.

[23]  T1-4.29-47 – T1-5.1-40.

[24] Sustainable Planning Act 2009 (Qld) s 456(1)(e).

[25] Sustainable Planning Act 2009 (Qld) s 436(2).

[26]  See comments of McMurdo P (with whom Williams JA and Atkinson J agreed) in Netstar Pty Ltd v Caloundra City Council [2004] QCA 296 at [16]-[20] in relation to s 4.1.21(1)(c) of the Integrated Planning Act 1997 (Qld).

[27] Imagatec P/L v Gosley-Fuller [2012] QDC 15 at [26] per Dorney QC, DCJ.

Close

Editorial Notes

  • Published Case Name:

    Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd & Anor

  • Shortened Case Name:

    Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd

  • MNC:

    [2015] QPEC 15

  • Court:

    QPEC

  • Judge(s):

    Searles DCJ

  • Date:

    16 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745
2 citations
Jump To
Cite 1 - [2012] FCA 745
Cite 2 - [2012] FCA 745
Blair v Curran (1939) 62 C.L.R., 464
2 citations
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Cite 2 - (1939) 62 C.L.R., 464
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Flynn v Suncorp-Metway Limited [2009] QSC 175
1 citation
Jump To
Cite 1 - [2009] QSC 175
Henry v Henry (1995) 185 CLR 571
2 citations
Jump To
Cite 1 - (1995) 185 CLR 571
Cite 2 - (1995) 185 CLR 571
Imagatec Pty Ltd v Gosley-Fuller [2012] QDC 15
3 citations
Jump To
Cite 1 - [2012] QDC 15
Cite 2 - [2012] QDC 15
Cite 3 - [2012] QDC 15
Lucy v OCC Holdings Pty Ltd [2008] QPELR 398
1 citation
Jump To
Cite 1 - [2008] QPELR 398
McMahon v Gould (1982) 7 ACLR 202
4 citations
Jump To
Cite 1 - (1982) 7 ACLR 202
Cite 2 - (1982) 7 ACLR 202
Cite 3 - (1982) 7 ACLR 202
Cite 4 - (1982) 7 ACLR 202
Netstar Pty Ltd v Caloundra City Council[2005] 1 Qd R 287; [2004] QCA 296
2 citations
Jump To
Cite 1 - [2004] QCA 296
Cite 2 - [2004] QCA 296
Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287
4 citations
Jump To
Cite 1 - (1992) 34 FCR 287
Cite 2 - (1992) 34 FCR 287
Cite 3 - (1992) 34 FCR 287
Cite 4 - (1992) 34 FCR 287
White v Australian Securities and Investments Commission [2013] QCA 357
2 citations
Jump To
Cite 1 - [2013] QCA 357
Cite 2 - [2013] QCA 357

Cases Citing

Case NameFull CitationFrequency
Lockyer Valley Regional Council v Zaczane Holdings Pty Ltd (No 2) [2015] QPEC 201 citation
1

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