Phillips v Wareham[2015] QPEC 5

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

1. [1]
   This proceeding was concerned with an application for enforcement orders pursuant to s 601 of the Sustainable Planning Act 2009 (“SPA”).  For the reasons given below the orders of the court are:

1. The application seeking enforcement orders is dismissed;

2. I will hear from the parties as to costs if necessary.

Background

2. [2]
   The applicant owns premises which adjoins land held by the first and second respondents as trustees of the Mapleton Hall Trust. The third respondent had been a trustee but resigned from that position some time in 2011. The Mapleton Hall Trust was created in 1911. The schedule of trusts records that the trustees were to hold the land upon trust, inter alia:^[1]

“To have and to hold the same for the general purpose of a sports ground for the carrying out of all lawful games, sports and exercises, shows of livestock, agricultural, horticultural and industrial displays, and for any other purpose of a similar nature approved by the trustees or a majority thereof from time to time.”

3. [3]
   Consistent with those purposes, the trust land accommodates a cricket ground a football (soccer) field and two tennis courts. It is the latter use that is at the heart of the dispute between the applicant and respondents. Also located on the trust land is the Mapleton Hall building. In addition to the grounds being used for cricket, football and tennis, with the exception of the tennis courts, the grounds have also been used for a range of community activities including, by way of examples, fêtes, fairs and wood chopping competitions. Mapleton Hall has also been used from time to time for numerous social and community purposes including accommodating a bridge club, yoga, concerts, tae kwon do and the occasional wedding. Both the applicant’s land and the trust land lies within the local government boundaries of the fourth respondent.

4. [4]
   The dispute between the applicant and the respondents arises out of what the applicant described as a “dramatic” intensification in the use of the two tennis courts. This dispute has led to a number of extremely unfortunate consequences. It put the applicant in conflict with a number of members of the local community to such an extent that she felt harassed and ostracised. Indeed the situation became so bad, at least for the applicant, that she stated to the effect that she had to leave Mapleton and had no intention of ever returning. For reasons which will become apparent, while this dispute has had extremely unfortunate consequences for the applicant, none of the respondents are to blame.

The pleadings

On 10 December 2014, the applicant filed an Originating Application seeking relief pursuant to s 601 of the SPA.  The relief pleaded was for: 

“Enforcement order to remedy the commission of a development offence for the construction of two tennis courts adjacent to my property and to request an order under 601 SPA to prevent the installation of lights at the tennis courts.  A current application has been resubmitted to Sunshine Coast Regional Council for lights to be installed …”

5. [5]
   On 30 January 2015, a further “application” was filed by the applicant. Among other things, this document set out the following grounds in support of the relief sought:

“1. Under the IPA 1997 the decision notice was given by Council for the building of the fencing of the tennis courts. Permit no. 962344 on 18 September 1998. I therefore refer to the IPA 1997 3.1.5(3) a development permit is to be carried out under the conditions of the permit.

2. Under the IPA 1997 under Development Approval 1.3.5 page 32 it refers to MCU required under (c) a material change of use in the intensity or scale of the use of the premises.

3. The tennis courts have changed from that of being ant nest courts up to 2009 to two commercially operated tennis courts with a tennis coach and now with an application to Council for installing lights.”

6. [6]
   On 11 February 2015, the applicant filed a further document identified as being a “submission”. In that document reference was made to s 578 of the SPA and the following was stated:

“My objective YOUR HONOUR is to resolve this long-term issue and to sell my property at a reasonable price so I can continue with my life.

1. I will use both the IPA 1997 and the SPA 2009 to support my claim should it deemed [sic] necessary.

2. Main consideration is the INTENSIFICATION OF USE with NO MCU.

3. HISTORICAL SITE.

4. COMPLIANCE WITH LOCAL PLANNING SCHEMES AND ENVIRONMENTAL ISSUES.”

7. [7]
   The reference to the applicant wanting to sell her property was clearly an emotional issue for her as on a number of occasions during the hearing of this matter. She referred to the fact that since the use of the tennis court had intensified, she was not able to sell her property and had been told by real estate agents that she would never be able to sell it.

The relevant statutory framework

8. [8]
   Section 601 of the SPA provides:

“(1) A person may bring a proceeding in the court –

1. (a)
   for an order to remedy or restrain the commission of a development offence (an enforcement order); or

2. (b)
   if the person has brought a proceeding under paragraph (a) and the court has not decided the proceeding – for an order under s 603 (an interim enforcement order); or

3. (c)
   to cancel or change an enforcement order or interim enforcement order.

3. (2)
   However, if the offence under sub-section (1)(a) is an offence under s 574, 578 or 580 about the building assessment provisions, the proceeding may be brought only by the assessing authority.

3. (3)
   The person may bring a proceeding under sub-section (1)(a) whether or not any right of the person has been, or may be, infringed by, or because of, the commission of the offence.”

9. [9]
   The applicant alleged that the first, second and third respondents and/or the fourth respondent had committed development offences pursuant to:

1. (i)
   Section 575 – carrying out development without a compliance permit.

2. (ii)
   Section 576 – compliance with compliance permit or compliance certificate.

3. (iii)
   Section 578 – carrying out assessable development without permit.

4. (iv)
   Section 582 – offences about the use of premises.

10. [10]
    Section 604 of the SPA relevantly provides:

“(1) the court may make an enforcement order if the court is satisfied the offence –

 (a) has been committed; or

 (b) will be committed unless restrained …”

11. [11]
    The onus is on the applicant to prove the alleged offences. As to the standard of proof required it was submitted on behalf of the fourth respondent that it was “well accepted” that proof of the commission of a development offence under the SPA was to be assessed by reference to the civil standard and the “sliding scale” contemplated in Briginshaw v Briginshaw^[2]. In support of that proposition, my attention was drawn to the decision of Robertson DCJ in Caloundra City Council v Taper Pty Ltd & Anor.^[3]  In Taper Pty Ltd Robertson DCJ was relevantly concerned with the operation of ss 4.1.21 and 4.1.22 of the Integrated Planning Act 1997 (“IPA”).  Those sections were concerned with the power to grant declaratory relief in certain circumstances including concerting “a matter done, to be done or that should have been done” for the purposes of the IPA and concerning the lawfulness of land use or development.  After considering a number of cases his Honour said:

“In my opinion, given the absence of binding authority on the point, as a matter of principle, relief sought under s 4.1.21 is classically civil in nature.  The section is not penal.  It is common ground that this court’s power to make orders pursuant to s 4.1.22 (if satisfied that a development offence has been committed) does not include power to impose pecuniary or other penalties.  The power to make orders pursuant to s 4.1.21 ….. is discretionary in nature ….. .  In my opinion the appropriate standard of proof of the civil standard subject to the Briginshaw sliding scale, and in my opinion having regard to the very significant consequences of the respondents of the making of the order sought …”

12. [12]
    In this case all of the development offences alleged against the respondents in ss 575, 576, 578 and 582 provide for, in appropriate circumstances, the imposition of penalty units. The imposition of such penalties was not provided for in s 4.1.21 or 4.1.22 of the IPA, but was in Chapter 4, Part 3, Division 1 of that Act.

13. [13]
    The “court” for the purposes of s 601 and 604(1) of the SPA is the Planning and Environment Court of Queensland which has no relevant criminal jurisdiction.  As s 604(2) contemplates, this court is able to make enforcement orders whether or not there has been a “prosecution for the offence under div 4”.  Division 5 of Part 3 of Chapter 7 of the SPA is concerned with, as was the case in Taper Pty Ltd, proceedings which are civil in character.  That is to be contrasted with the prosecution of development offences by the relevant “assessing authority” in the Magistrates Court.  Such proceedings are brought or commenced on complaint^[4] and successful prosecutions in that Court may lead to the imposition of penalty units.  In those circumstances the relevant assessing authority would be required to prove its case to the criminal standard, beyond reasonable doubt.^[5]

14. [14]
    Accordingly, insofar as proceedings concerning development “offences” are dealt with in this court, I agree with the submission made by Ms Kefford concerning the standard of proof required for the applicant to succeed. However, this discussion is largely academic as the applicant failed to establish any of the development offences alleged, even on the balance of probabilities test.

Abandonment of the use

15. [15]
    When this matter was reviewed by Rackemann DCJ on 30 January 2015 it appeared that the applicant also intended to argue that, because the tennis courts had not been used for a period of time, the reestablishment of that use required approval from the fourth respondent as it was no longer a protected lawful use for the purposes of s 1.4.1 of IPA or s 681 and 682 of the SPA. Both Mr Drummond for the first, second and third respondents and Ms Kefford for the fourth respondent came prepared to meet such an argument. Indeed a significant part of Ms Kefford’s written submissions addressed that issue. However, when the matter was argued before me on 12 February 2015, during the course of an exchange between the applicant and myself I was advised that she intended not to pursue that matter due to the lack of probative evidence.

16. [16]
    Notwithstanding the applicant’s concession I consider it appropriate to make some observations about the matter. Page 1 of exhibit 1 (the applicant’s bundle of documents) is a photocopy of a photograph taken by the applicant’s son, as best as the applicant could recall, somewhere between late 2007 and early 2008. At first blush that photograph tends to suggest that the two tennis courts in issue were in a very dilapidated state. That is particularly so when contrasted with the tennis courts as they presently are.^[6]  The condition of the tennis courts revealed in the earlier photograph seemed somewhat at odds with the evidence of a number of witnesses relied on by the respondents that asserted to the effect that the tennis courts had been in continuous use for decades.  Notwithstanding my initial concerns about this matter I am satisfied that the use of these courts has never been abandoned.  The evidence seemed to suggest that in the earlier 1900s, when there were clearly less entertainment options in small rural communities than exist today, tennis was a more popular pastime.  Over time popularity of tennis went into significant decline and, perhaps not surprisingly associated with that, the tennis courts became more and more dilapidated.  However, sometime around 2007 the trustees together with the local tennis club decided to take steps to reinvigorate the tennis courts and, to that end, began carrying out a number of fundraising events.  Those funds were then used to carry out the works about which the applicant now complains. 

17. [17]
    In Lemming v City of Port Adelaide [No 2]^[7] King CJ said:

“… essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land.  The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier.  The significance, for example, of the continued presence on the premises of equipment and fittings appropriate to the existing use may depend upon the intentions of the owner or occupier with respect to such equipment and fittings.  If they are allowed to remain on the premises for the purpose of facilitating the resumption of activity pursuant to the use of the premises, their continued presence will be a strong indication of a continuance of the use. 

…

A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use.  It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future.”^[8]

18. [18]
    In Mac Services Group Limited v Belyando Shire Council^[9] Wilson SC DCJ (as he then was) relevantly said:

“(21) Also importantly, the mere physical cessation of a use does not necessarily connote its abandonment (and neither does a failure to use to capacity); and, the fact that a use is recurring but only happens when the actual use is required or necessary does not mean that during intervening periods, including periods of lapse, it has necessarily or automatically been abandoned.”

19. [19]
    In this case I am satisfied that at all relevant times the use of the tennis courts remained ongoing, albeit at varying levels of intensity. Indeed, in this regard Ms McLean stated in her affidavit that during the period of 2005 to 2009 her and her children played social tennis and practice tennis matches amongst themselves. Ms McLean was not cross-examined by the applicant. Her evidence is also broadly consistent with that of other witnesses including that of Mr Brady who was required for cross-examination. Mr Brady was a trustee from 2000 through to 2011. His evidence was to this effect:

The alleged offences

Sections 575 and 576

20. [20]
    Sections 575 and 576 of the SPA are concerned with the carrying out of development without a compliance permit and the contravention of a compliance permit or condition of a compliance certificate respectively.  The applicant has failed to establish that the works complained of required compliance assessment and the issuing of a compliance permit or compliance certificate.  Accordingly, no contravention of any such permit or certificate was capable of being identified.  To put it another way the applicant simply failed to prove the development offences prescribed under ss 575 and 576. 

Sections 578 and 582

21. [21]
    Sections 578 and 582 of the SPA are concerned with the carrying out of assessable development without a permit and uses that are unlawful.

22. [22]
    As mentioned above, the applicant described the works carried out together with the current and likely future use of the tennis courts as a dramatic intensification of use. The works to which the applicant referred were the erection of the new fence which is over three metres in height, the resurfacing of the two courts including wiring which, according to the applicant, had been put in place to accommodate the erection of nightlights. The applicant included those future works in her “bundle” of unlawful works. The final “works” identified by the applicant in this context was the re-orientation of the courts, which I took to be the “90% turn in direction” referred to in her Originating Application.  As to the uses the applicant identified they were the introduction of coaching, the increase in the number of games of tennis being played, particularly on Thursday and Saturday mornings, and the inevitable consequence of night games once the lights are installed. 

23. [23]
    At the commencement of proceedings the applicant also identified three points as being central to her case. The historical nature of the “site”; non-compliance with the “local planning schemes”; and the intensification of use. The applicant described the latter point as her “prime consideration”.

24. [24]
    As to the first of these matters I understood the applicant to be saying to the effect that given the history associated with her house, which was once a masonic hall, and its proximity to the historical Mapleton Hall and the traditional ant bed tennis courts her premises ought be treated sympathetically and, in particular, in a way that maintained the original serene rural township character and amenity.

25. [25]
    The second and third matters, while discrete are nonetheless still related matters. As I understood the applicant’s case in respect of these matters it was asserted that, in contravention of s 578 of the SPA, the first, second and third respondents had carried out assessable development without the necessary work permits.  Second, the intensification of the use amounted to a material change of use for the purposes of the IPA and/or the SPA and accordingly the use of the tennis courts was an unlawful use which was now prohibited pursuant to s 582 of the SPA.  In this regard I was referred to s 1.3.5 of the IPA by the applicant who then said:^[11]

“I say there should have been a material change of use because under one three five of the Integrated Planning Act it says making a material change of use in the intensity of the use of the premises and I understand that in order to do building works – work of this magnitude it would require an MCU or development application and I have yet to see any evidence of an MCU.”

26. [26]
    The difficulty for the applicant is that, putting to one side for the moment the installation of nightlights, none of the other matters identified by her either on their own or in combination constitute a material change of use of premises for the purposes of the IPA or the SPA.  Pursuant to s 1.3.5 of the IPA a material change of use of premises was defined to mean:

Relevant to these proceedings, the term “material change of use” has an identical meaning in s 10 of the SPA. 

27. [27]
    In this case, for the reasons stated, there has not been the start of a new use of the premises nor the re-establishment of a use that had been abandoned. Further, none of the matters raised by the applicant could reasonably be described as a material change in the intensity or the scale of the use of the premises.

28. [28]
    The tennis courts as they now are bear little physical resemblance to that which existed at the time the applicant purchased her land. Also, it seems tolerably clear to me that the use of those courts has increased no doubt, at least in part, as a consequence of the works recently carried out. In that sense I accept the applicant’s evidence to the effect that there has been an intensification in the use of the courts. However, that any intensification exists is not enough. It must amount to a material change in the use of the premises. As was observed by Dodds DCJ in Maroochy Shire Council v Barnes^[12] in determining whether or not there has been a material change requires a comparison of the nature and extent of the use before and after the change.  The historical use has always involved the playing of social and competitive tennis, the fact that more of that form of tennis is now being played but on the same number of courts and some coaching is also now occurring could not, in my view, be described as a material change of use.  Further, as identified by Ms Kefford,^[13] when the changes to the use of the tennis courts are viewed in light of the totality of the use of the premises, including as it does cricket and soccer and other such recreational uses, it could not be reasonably said that there has been a material change of use of premises.

29. [29]
    On the material before me it seems that the approval of the fourth respondent was only necessary in respect of two matters. The erection of the fence around the permitter of the courts and the introduction of nightlights. That latter use clearly contemplates a material change in the intensity of the use and perhaps even the start of a new use (being night tennis) thereby requiring approval. In this regard the Mapleton Hall Trust in its own right or in conjunction with the Tennis Club has made an application for a material change of use and that application is currently being considered by the fourth respondent. There is no basis for interfering with that process at this time.

30. [30]
    As I have already stated a permit was not required for any works other than the fencing. No approval or permission from the fourth respondent was required for either the resurfacing of the courts nor their re-orientation. Insofar as those works are concerned, if indeed they could be properly described as “building works” for the purposes of ss 7 and 10 of the SPA, or, if relevant at the time, ss 1.3.2 and 1.3.5 of the IPA, then they were exempt building works.^[14]  The fencing surrounding the tennis courts was not however exempt building work because it exceeds three metres in height.  Permission for that work was granted by the fourth respondent pursuant to a Decision Notice on 5 March 2009.^[15]  There was no serious challenge to the legality of that process.

31. [31]
    As was the case concerning ss 575 and 576 of the SPA, I have not been taken to any material which supports the applicant’s contention that the works carried out by the first, second and third respondents constitute development offences for the purposes of ss 578 and 582 of the SPA.  Accordingly the application must fail and the orders of the court are:

1. The application seeking enforcement orders is dismissed.

2. I will hear from the parties as to costs if necessary.