The Council of the City of Gold Coast v Thi Hoa Dam
[2015] QPEC 51
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- Unreported Judgment
- The Council of the City of Gold Coast v Thi Hoa Dam[2015] QPEC 51
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The Council of the City of Gold Coast v Thi Hoa Dam[2015] QPEC 51
The Council of the City of Gold Coast v Thi Hoa Dam[2015] QPEC 51
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | The Council of the City of Gold Coast v Thi Hoa Dam [2015] QPEC 51 |
PARTIES: | THE COUNCIL OF THE CITY OF GOLD COAST (Applicant) v THI HOA DAM (Respondent) |
FILE NO/S: | BD 1971 of 2015 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 23 October 2015 |
DELIVERED AT: | Cairns |
HEARING DATE: | 11 September 2015 |
JUDGE: | Dean P. Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of rock armouring wall, pool cover and satellite dish as assessable development - whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence inadequate - whether declaratory and enforcement orders should be made in the exercise of discretion - costs. |
COUNSEL: | K. W. Wylie for the Applicant |
SOLICITORS: | MacDonnells Law for the Applicant A. Lee, builder and agent for the Respondent (appearing with leave) |
- [1]Various works and structures undertaken on, or adjacent to, the respondent’s riverside home have been subject of compliance checks by the applicant council since July 2013.
- [2]The council seeks enforcement orders in respect of rock armouring works; a pool cover and a satellite dish. The respondent contends that the orders sought by the council are unnecessary.
Background
- [3]The respondent, Thi Hoa Dam, has owned and occupied her property at 183-185 Monaco Street, Broadbeach Waters, being Lots 74 and 75 on SP258723, since 2 July 2012. The property is adjacent to the Nerang River.
- [4]The property is governed by, and within the Detached Dwelling domain, of the 'Our Living City' 2003 Gold Coast Planning Scheme.
- [5]Since July 2013, the council has investigated various works undertaken and structures erected on or adjacent to the respondent’s property, including a pool fence, a dividing fence, a retaining wall, rock armouring works, a pool cover and a satellite dish.
- [6]Some of the matters investigated by the respondent council have been resolved, namely the pool fencing, dividing fence, and retaining wall requirements. Notwithstanding the resolution of some matters however, parties remain in dispute about the rock armouring works, pool cover and satellite dish. It is not disputed by the respondent that these works are not subject of any approval.
- [7]Section 578 of the Sustainable Planning Act 2009 (Qld) (“SPA”) makes it unlawful for a person to carry out assessable development without a development permit:
“578 Carrying out assessable development without permit
- (1)A person must not carry out assessable development unless there is an effective development permit for the development.
Maximum penalty—1665 penalty units.
- (2)Subsection (1)—
(a) applies subject to subdivision 2; and
(b) does not apply to development carried out under section 342(3).”
- [8]The works subject of the dispute do not constitute development carried out under s 342(3) of SPA, and therefore the exception in subdivision 2 of s 578 of SPA is not triggered in this case.[1]
- [9]The standard of proof to be applied is the civil standard, as modified by the “sliding scale” described in Briginshaw v Briginshaw (1938) 60 CLR 336.[2] This will be considered in the context of the orders sought, to regularise by means of lodgement of development applications.
- [10]The council seeks declarations pursuant to s 456(1)(e) of SPA as to the lawfulness of land use or development; together with enforcement orders pursuant to ss 601 and 604 if the court is satisfied the offence has been committed, or will be committed, unless restrained.
Issues
- [11]It is common ground that the respondent did not hold a development approval for the rock armouring, pool cover and satellite dish. It seems to me that the questions to be determined in this dispute are:
- Did the respondent carry out the works?
- If so, were the works assessable development that required development permits?
- Are declarations and/or enforcement orders required in the exercise of the court’s discretion?
- Should the respondent pay the council’s costs of the application?
Did the respondent carry out the works?
- [12]The respondent’s liability depends upon whether she carried out the works, either by herself or by her agents.
Satellite Dish
- [13]Aerial photographs show that the satellite dish was erected on the roof of the respondent’s house after her purchase, and during her occupation, of the property. Therefore, there is a strong inference and I find that the respondent, by herself or her agent, erected the satellite dish some time between 2 July 2012 and 9 December 2013.
- [14]The respondent has since removed the satellite dish.
Pool Cover
- [15]It is undisputed that the respondent was responsible for erecting the pool cover. She engaged a builder to erect the pool cover some time between 2 July 2012 and 24 February 2014.[3]
Rock Armouring
- [16]The rock armouring works comprise the placement of large rocks mainly on council land along the embankment between the rear of the respondent’s property and the Nerang River.
- [17]Aerial photographs show the rock armouring at various time intervals. The aerial photographs are overlayed with indicative property boundaries, which could not be relied upon for complete accuracy. Suffice it to say that the rock armouring appears predominantly on Crown land between the property and the Nerang River,[4] managed by the Gold Coast Waterways Authority.[5]
- [18]The council asserts that the rock armouring was installed at some time between 15 June 2013 and 5 August 2013 (less than two months).[6]
- [19]However, the respondent denies any involvement in work on council land. She only concedes different “work at the back near the rock…we build (sic) the back concrete fence” for which she had a permit.[7] Photographs show the unrelated retaining wall works as at 16 August 2013.[8] The respondent was not required for cross examination.
- [20]It was submitted on behalf of the council that the court ought be satisfied, on the balance of probabilities, that the rock armouring works were undertaken by the respondent (or her agents), in circumstances where:
- The only other two entities that could reasonably have undertaken such works, the respondent[9] and the Gold Coast Waterway Authority,[10] have both indicated that they did not complete, nor have they approved, the rock armouring works;
- The respondent was an owner-occupier of the premises at the time the rock armouring works were undertaken;
- It is inconceivable to accept that another entity or person, apart from a person under the respondent’s control, undertook the rock armouring works without her notice or permission.
- [21]The council relies upon an affidavit of its solicitor, who looked at aerial photography captured at various times before and after the respondent bought and occupied the property. She deposes that: “Based on my review of the aerial photographs, there appears to be a difference in the appearance of the rocks within the waterfrontage of the Land as compared between 15 June 2013 and 5 August 2013.”
- [22]Clearly enough the opinion of council’s solicitor is not expert evidence at all.
- [23]The council also relies upon evidence of its development compliance officer who observed and photographed the rock armouring during inspections on 16 August 2013 and 11 June 2015. I was referred to the file note of the first inspection, which includes a photograph of the rock armouring with the annotation: “The rock armouring appears to have been placed recently”.[11] In her second affidavit, the officer also made a desktop comparison of the aerial photographs and concluded that she was “of the view at that some time between June 2012 and September 2013 the rock armour has increased.”[12]
- [24]For that evidence to be useful it ought comply with the duty of experts in giving opinion evidence to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.[13] In Makita (Australia) Pty Ltd v Sprowles,[14] Heydon JA posed several questions to determine the probative value of expert evidence:
“There is no doubt about [X’s] authority, experience, qualifications and skill... But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that [X’s] report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?”
- [25]Most, if not all, of these questions would be answered in the negative in relation to the council officer’s evidence. I am reluctant to adopt her conclusive views reached in a vacuum, especially in circumstances where proper scientific measurement, inquiry and investigation forming the basis of the conclusions could have been undertaken with relative ease.
- [26]Forensic investigations could have been easily undertaken to support expert opinion about: the nature, scope and logistics of the works; the time required for the works; the likely source of the rocks; the limited site accessibility and likelihood of using the river for the rock transportation and work. I do not have the benefit of any of this.
- [27]Instead, the opinion evidence adduced by the council is no more than mere conclusions drawn on matters upon which the court is equally qualified to draw an opinion, and it is inadmissible.[15]
- [28]I have looked carefully at the aerial photographs captured at various times before and after the respondent bought and occupied the property. Whilst the earlier images are not very clear, it is sufficiently discernable that rock armoury was in place before and after the respondent’s occupation. I am unable to discern any increase of the rock armoury over the period. Later satellite images and recent conventional photographs show that the rock and formation is the same as established on the analogous area of the neighbouring property. On my assessment of the images it seems to me that the nature of the rock armouring subject of this dispute is visually indistinguishable from that which is present on the neighbouring property. They share the same rock product and formation.
- [29]Further, given the limited site access, the rock was likely to be transported by boat, and the works would have required machinery over more than 2 weeks. Yet, there is no direct evidence of neighbourhood concerns or observations.
- [30]There is no direct or indirect evidence implicating the respondent, and in my view any implication drawn on theunsatisfactory state of the evidence would involve intolerable speculation and guesswork.
- [31]I am left in considerable doubt about the rock armouring works, and I am not satisfied on the balance of probabilities that the respondent carried out, or caused to be carried out, those works.
Were the works assessable development that required development permits?
- [32]The next question is whether the works, considered separately, constituted assessable development for which the respondent should have sought and obtained an effective development permit.
Pool Cover
- [33]The council’s development compliance officer inspected and photographed the pool cover. She generally described the structure as “a plastic curved roof constructed over the existing swimming pool” located on the property.[16]
- [34]The council asserts that, without the proper assessment, the structural adequacy of the pool cover for its intended purpose is unknown, and that, in the absence of certainty about the structural adequacy of the pool cover, it may pose a risk to the safety of surrounding persons and property under high wind[17] and the general safety of guests and future owners. I do not have the benefit of any primary evidence supporting the council’s assertions.
- [35]The respondent’s builder, who constructed the pool cover and appeared on behalf of the applicant at the hearing, conceded that the pool cover was made of polycarbonate and aluminium and had a retractable function. The pool cover is a telescopic solid enclosure made up of a series of retractable modular arched components which roll on tracks on both sides of the pool. The coverage of the fully-extended pool cover is about 9 metres long and 4.5 metres wide.[18] It was further explained during submissions that the segments were 1.2 metres wide and 1.8 metres high at the apex. Pending determination of this matter, the respondent has retracted the pool cover to one end of the swimming pool. The respondent says that the cover is not affixed, and is removable.[19]
- [36]The applicant’s counsel made a general objection to the respondent’s representative’s explanation of the structure as unsworn evidence from the bar table. I upheld the objection on the basis that the remarks would be treated as submissions.
- [37]The council relies upon photographs and observations made by council’s development compliance officer and opinion evidence of its senior building certifier of approximately 27 years’ experience. After having regard to the “relevant provisions of the Building Act 1975, the Building Regulation 2006 and the Building Code of Australia”, council’s development compliance officer concluded that:
“In my view the Pool Cover falls within the definition of a “Class 10a” Building or Structure under BCA”
- [38]After a similar exercise, council’s senior building certifier concluded that:
“In my opinion, the pool cover shown in the photographs at Document 2 to Exhibit DV-01, is a Class 10a structure because it is a non-habitable shade structure.”
- [39]Like the opinion evidence about the rock armouring, this evidence about the pool cover is similarly flawed.
- [40]I am again reluctant to adopt the conclusive view in circumstances where investigations could have been, but were not, undertaken to support expert opinion about the nature and scope of the structure, including the materials used and degree and manner of fixation (if any). At best, the opinion evidence of council’s officers are mere conclusions drawn on matters that the court is equally qualified to draw an opinion, and it is inadmissible.[20]
- [41]At the hearing, counsel for the council submitted that this evidence was conclusive and ought to be accepted by force of s 121 of the Building Act 1975 (Qld), in these terms:
“121 Doubtful BCA classifications
(1) This section applies if there is a doubt as to a building’s BCA classification.
(2) The BCA classification must be either of the following classifications a building certifier considers appropriate—
(a) a class of building mentioned in the BCA, part A3;
(b) a special structure.”
- [42]I reject this submission. The provision only applies where there is doubt about the appropriate building code classification. The context and purpose of the provision is to facilitate certainty in the application of the building code by a building certifier, and when performing the function of building certifier. It is neither conclusive nor binding on the court.
- [43]A Class 10 structure is defined in the Classification Summary of the Buildings and Structures in the Building Code of Australia as:
“Class 10 — a non-habitable building or structure being—
(a) Class 10a — a non-habitable building being a private garage, carport, shed, or the like; or
(b) Class 10b — a structure being a fence, mast, antenna, retaining or free-standing wall, swimming pool, or the like; or
(c) Class 10c — a private bushfire shelter.”
- [44]Section 120 of the Building Act 1975 (Qld) provides that “A building or structure that can not, under the building code, part A3, be given a BCA classification must be classified as a special structure.”
- [45]It is readily apparent that the pool cover does not fall within Class 10b or Class 10c structures, nor was it pressed that they should be so classified. However, Class 10a classification warrants further consideration.
- [46]It seems to me that the general words “or the like”, when used in relation to Class 10a, are intended to be restricted by the preceding words. The ejusdem generis rule of construction is that if general words follow particular or specific words, those general words may be restricted to things of the same kind (genus) as those which precede them.[21] It is necessary to identify a relevant genus of the specific words to be used to qualify or restrict the general words.
- [47]In my view, the specific things of “private garage, carport, shed” denote simple, supported, roofed structures used for non-habitable shelter or storage. Here, the pool cover is the same kind of structure; it is used to shelter a pool and its water storage. It does not matter whether the structure is fixed to the ground or not.
- [48]I therefore find that the pool cover is a Class 10a structure, constitutes building work within the meaning of SPA,[22] and is assessable development unless exempt or self-assessable by virtue of ss 20 to 22 of the Building Act 1975 (Qld) as prescribed by the Building Regulation 2006 (Qld).
- [49]Item 13(2) of schedule 1 of the regulation relevantly provides for self-assessable development of building work for a class 10 building or structure as follows:
“(2) The building work is prescribed if—
(a) the plan area of the class 10 is no more than 10m2; and
(b) the class 10 has, above its natural ground surface—
(i) a height of no more than 2.4m; and
(ii) if the class 10 is not a rainwater tank—a mean height of no more than 2.1m, worked out by dividing its total elevational area facing the boundary by its horizontal length facing the boundary; and
(c) any side of the class 10 is no longer than 5m.”
- [50]The plan area of the fully extended pool cover is about 40.5 square metres.[23] It is about 1.8 metres high at the apex, about 9 metres long and 4.5 metres wide. Therefore, it would fall outside the parameters prescribed in Item 13 and is not self-assessable development.
- [51]The pool cover does not qualify for any item of exempt development in schedule 2.
- [52]Consequently, I am bound to conclude that the pool cover is assessable development, for which a development permit was required by making a code assessable development application to the council, or alternatively a private certifier (class A). It ought be assessed with appropriate requirements having regard to its unusual nature and lightweight construction, unlike more stringent requirements applicable to typical fixed and permanent structures with foundations.
Satellite dish
- [53]
- [54]Council’s development compliance officer observed and photographed the satellite dish at some distance, and from the ground.
- [55]The respondent’s representative submitted that the dish was removed because it was old technology and unlikely to be reinstated.
- [56]Before its removal, there was ample opportunity for the council to investigate and ascertain the nature of the structure, its fixation, dimensions and whether it was obsolete technology. Notwithstanding this opportunity, apart from the distant photographs, I do not have the benefit of direct evidence of any of these things.
- [57]Doing the best I can, I glean from the historical photographs - a large satellite dish made of wire mesh on a steel or aluminium frame, mounted on the roof of the house immediately adjacent to a much smaller contemporary dish. The presence of the latter lends some force to the submission that the dish was unused old technology.
- [58]The council argues that the satellite dish is a Class 10b structure, that is “a structure being a fence, mast, antenna, retaining or free standing wall, swimming pool or the like”. ‘Structure’ as defined in schedule 2 Building Act includes a wall or fence and anything fixed to or projecting from a building, wall, fence or other structure.
- [59]Clearly enough the satellite dish was a parabolic dish-shaped antennae and is caught by the description of “antenna” being a Class 10b structure. Work on the structure would therefore have been assessable development unless exempt or self-assessable pursuant to ss 20 to 22 of the Building Act 1975 (Qld) as prescribed by the Building Regulation 2006 (Qld).
- [60]Item 2 of schedule 1 of the regulation relevantly provides for self-assessable development as follows:
“Work for particular non-load bearing devices
(1) This section applies to building work for any of the following devices if they are non-load bearing —
(a) an aerial;
(b) an antenna;
(c) a satellite dish with a maximum diameter of 900mm;
(d) ….
(2) The building work is prescribed if the device is no more than -
(a) if the device is attached to a building or structure—3.5m above the building or structure; or
(b) if the device is detached from any building or structure—10m above the device’s natural ground surface.”
- [61]The satellite dish was attached to the house structure and did not exceed 3.5 metres above the house. By scaling off the roof tiles I can conclude that it exceeded 900mm. Therefore, the satellite dish was not self-assessable development as prescribed by Item 2 of Schedule 1.
- [62]Item 1 of schedule 2 of the building regulation relevantly provides for exempt development as follows:
“Work for particular class 10b structures or special structures
Building work for a class 10b structure or special structure is prescribed if—
(a) the structure is not—
(i) a fence; or
(ii) a retaining wall; or
(iii) a freestanding wall; or
(iv) a swimming pool; and
(b) the structure is no higher than 3m above its natural ground surface
Examples —
playground and sporting equipment, garden furniture, temporary market stalls, minor plant and equipment covers that are no more than 3m above their natural ground surface.”
- [63]The satellite dish was not one of the excepted structures in paragraph (a). The issue is whether it was no higher than 3 metres above its natural ground surface as prescribed in paragraph (b).
- [64]As indicated by the examples given, the provision is more apt for structures installed on the ground and not those attached to any building or structure. In either event, in my view the reference to “its natural ground surface” is not a reference to the actual ground surface. Instead the use of the word “its” requires consideration of the base surface of the structure designed to sit on the natural ground. Using this construction, the relevant height dimension is the measurement from the dish’s base to its tallest element. I assess this measurement as being no higher than 2 metres.
- [65]Having satisfied the prescription of exempt development in Item 1 of Schedule 2, I conclude that the satellite dish was not assessable development.
- [66]Further, I should also consider the removal of the satellite dish. In this regard, s 10(1) defines building work as, relevantly:
“building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure”.
- [67]I opine that, for the reasons already mentioned, the removal of the satellite dish was exempt development, and insofar as it might have affected minor structural components of the house, it was exempt development pursuant to item 8 of schedule 2 of the Building Regulation 2006 (Qld).
- [68]It must then follow that work on the satellite dish was not assessable development, for which a development permit was required. Even if I found the dish to be assessable development, I accept that it has been removed and is unlikely to be reinstated and in those circumstances I would have declined an enforcement order on the grounds of it being unnecessary.
Rock armouring works
- [69]If the armouring work was carried out as alleged by the council (which I reject), then those works would have been assessable development because:
- That part of the Nerang River was a watercourse within the ebb and flow of the tide at spring tides, and therefore “tidal water” within the meaning of the Coastal Protection and Management Act 1995 (Qld);[26]
- The armouring works were designed to be exposed to tidal water because of shoreline fluctuations and are “tidal works” within the meaning of the Act;
- Such works were operational work and development within the meaning of ss 10(1) and 7(c) of SPA; and
- The work was not excluded work in Item 5 within part 1 of schedule 3 of the Sustainable Planning Regulation.
- [70]I have found that the council has not discharged its onus and I am not satisfied that the respondent completed the work, nor the scope of such work nor when it was completed. In those circumstances, further consideration of whether the work was assessable development would be speculative and redundant.
Are declarations and/or enforcement orders required in the exercise of discretion?
- [71]The relief sought by the council comprises declaratory relief (s 456 of SPA) and mandatory injunctive relief (ss 601 & 604 of SPA).
- [72]Pursuant to s 456(1)(e) of SPA, any person may bring a proceeding for declarations about the lawfulness of development. Section 456(6) & (7) empowers the court to hear and decide the proceeding, and may also make orders about any declaration made.
- [73]Section 601 of SPA permits a person to bring a proceeding for an enforcement order to remedy or refrain the commission of a development offence. Section 604 empowers the court to make the order as follows:
“604 Making enforcement order
(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.
(2) If the court is satisfied the offence has been committed, the court may make an enforcement order whether or not there has been a prosecution for the offence under division 4.”
- [74]The court’s power to make these orders is discretionary.
- [75]In Warringah Shire Council v Sedevcic,[27] Kirby P, as he then was, considered the exercise of discretion of the NSW analogue of s 604, and confirmed that relevant factors included whether the breach was purely technical in nature, and any delay, on behalf of the council, in proceeding with the action.[28] His Honour also emphasised the need to consider the clear legislative intent of planning law to promote integrated and co-ordinated development. He held that if unlawful exceptions and exemptions became condoned by the Court’s exercise of discretion not to enforce the law, the equal and orderly enforcement of planning law would be undermined, with a concomitant sense of inequity felt by those who complied with the requirements of the law, or failed to secure similar favourable exercises of discretion.[29]
- [76]As to proceedings commenced by local authorities, Kirby P said at 340:
“Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens. This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary.”
- [77]Here the council have failed on all except the pool cover.
- [78]I have concluded that the pool cover is assessable development, for which a development permit was required.
- [79]If the respondent wished to retain the structure she ought to have regularised the development by making a development application for code assessable development to the council, or alternatively a private certifier (class A) as the appropriate assessment manager.
- [80]The council gave the respondent multiple opportunities and time to regularise the noncomplying pool cover (amongst other things):
- (a)On 26 February 2014, the respondent was placed on notice of the unlawful nature of the Pool Cover;[30]
- (b)
- (c)On 2 May 2014, an enforcement notice was issued requiring removal or regularisation of the pool cover;[32]
- (d)On 2 June 2014, the respondent, through her agent, wrote to Council and advised that the pool cover had been removed, and included photographs showing the pool cover removed;[33]
- (e)Council undertook an inspection of the property on 30 June 2014, and noted that the Pool Cover had returned;[34]
- (f)On 4 February 2015 council solicitors warned the respondent to regularise alleged unlawful developments (including the pool cover) or legal proceedings would commence.[35]
- [81]While the respondent removed the pool cover at some time during the month of June 2014,[36] it was reinstated weeks later.[37] Apart from that inconsistent conduct, the council’s efforts were generally unheeded, until very recently. In her affidavit filed 2 September 2015 the respondent explains that:
“6. … So I decide to ask for help from the Private Certifier. I did remove the pool cover aside and working with Mr Tony Kennedy. His phone number is :0412007383.
Please give some time. He will send all paperwork to you
Here is the picture of the pool cover was remove, and the contract with Mr Tony”.
- [82]In communication with the council’s solicitors on 1 September 2015, and again on 8 September 2015, Mr Kennedy indicated that the respondent’s builder (who represented the respondent at the hearing) had telephoned him in mid-August indicating that the pool cover may need to be certified but he is yet to be engaged to do so.[38] This is consistent with an intention to retain the pool cover and regularise the contravening development.
- [83]I do not accept that the development offence was “flagrant” as submitted by the council. In my view the respondent was consistent with limited comprehension, confusion and uncertainty about how and when to deal with the matter.
- [84]I accept the submissions of the respondent’s agent assuring the court of her intention to remove or regularise any offending building work within a reasonable time.
- [85]In those circumstances, this is an appropriate case to make declarations about the lawfulness of the pool cover development and consequential orders about that declaration. That is all that is warranted in the circumstances of this case. I decline to make enforcement orders in mandatory terms sought by the council.
Costs
- [86]The council seeks an order that the respondent pay the costs of the proceeding in reliance upon s 457(1), (8) and (9) of SPA, which provide:
“457 Costs
(1) Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.
…
(8) Subsections (9) to (15) apply to a proceeding despite subsection (1).
(9) Costs of a proceeding mentioned in section 601, including an application in a proceeding mentioned in that section, are in the discretion of the court but follow the event, unless the court orders otherwise. …”
- [87]
- Nature and complexity of the case;
- Relative strengths of competing claims;
- Outcome;
- Parties’ conduct, misconduct or contravention of any law;
- Anything else the court considers relevant.
- [88]The case was relatively complex and involved matters of fact and law. The issues were significantly reduced by the time of the hearing.
- [89]The relative strengths of the parties’ cases are reflected in the outcome. The council’s case has substantially failed in relation to the armouring work and satellite dish. The expert evidence supporting the council’s case mainly comprised of unsupported conclusions drawn on matters that the court was equally qualified to draw an opinion, in circumstances where proper expert inquiry and forensic investigation forming the basis of the conclusions could have been undertaken with relative ease. Had such evidence been mustered, then it would have not only better informed the court, it would have better informed the respondent to facilitate an early, cost effective and efficient conclusion to the proceeding.
- [90]The council had limited success in respect of the pool cover. However, that success was mainly facilitated by photographic evidence, the respondent’s own affidavit, and concessionary submissions made during the hearing by the respondent’s agent and builder. Even so, the success of the respondent on the other issues far outweighs the limited success of the council in terms of merit, cost, delay and inconvenience.
- [91]The council provided many opportunities to the respondent to regularise the work, most of which was regular or made regular before the hearing. Although the respondent has belatedly taken steps to regularise the pool cover work, her conduct was not “flagrant”, but more likely borne out of limited comprehension, confusion and uncertainty.
- [92]In my view, this is an appropriate case where each party ought bear their own costs of the proceeding.
Orders
- [93]For these reasons, I make the following orders:
- It is declared that the pool cover on the respondent’s property located at 183-185 Monaco Street, Broadbeach Waters, described as Lots 74 - 75 SP258723, constitutes code assessable development for which a development permit is required.
- The respondent must remove the pool cover from the property by 30 January 2016 unless she regularises that development by obtaining a development permit by 30 June 2016 by a properly made code assessable development application to the council, or alternatively a private certifier (class A) as the assessment manager.
- Each party will bear its own costs of the proceeding.
Footnotes
[1]Sections 584-7.
[2]Booth v Yardley [2007] QPELR 229 at [17]; Philips v Wareham & Ors [2015] QPELR 413 at [11]-[14].
[3]Dias First Affidavit, para [44].
[4]Land Act 1994 (Q), s 9(1)(a); Survey and Mapping Infrastructure Act 2003 (Q.), s 70(1)(a)(i); Local Government Certificate, Attachment 3.
[5]Gold Coast Waterways Authority Act 2012 (Q.) ss 7(1)(a) and 10.
[6]Second Affidavit Sibenaler para [15] to [19], and DJS-02 at pp 52-53.
[7]Affidavit Dam – para [3].
[8]First Affidavit Dias - para [15], and COGD-01 at p 23.
[9]Affidavit Sterry - paras [6]-[9].
[10]Second Affidavit Sibenaler - para [13], and DJS-02 at p 50.
[11]First Affidavit Dias - Photograph 9 at p 23 Exhibit doc 6.
[12]Second Affidavit Dias para [13].
[13]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59].
[14]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [87].
[15]Burger King Corp v Registrar of Trade Marks (1973) 128 CLR 417 per Gibbs J at 422.
[16]First Affidavit Dias - para [44], second affidavit Dias – para [16].
[17]Second Affidavit Dias - para [23].
[18]Swimming Pool approval contained within CEO Statement at Attachment 7.
[19]Dam “Pool Cover” Affidavit, para [3].
[20]Burger King Corp v Registrar of Trade Marks (1973) 128 CLR 417 at 422 per Gibbs J.
[21]R v Regos (1947) 74 CLR 613 at 623 per Latham CJ; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 639 per Starke J.
[22]Sustainable Planning Act 2009 (Q.) s 7(a).
[23]Swimming Pool approval contained within CEO Statement at Attachment 7.
[24]First affidavit Dias – para [58].
[25]Second affidavit Dias - para [4].
[26]Bryant Second Affidavit, para [8], MJB-02 at p 12; Local Government Certificate, Attachment 3.
[27]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. Applied recently in Sunshine Coast Regional Council v Recora Pty Ltd [2012] QPELR 419 at [13].
[28]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.
[29]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340.
[30]First Affidavit Dias - Exhibit Doc 31.
[31]First Affidavit Dias - Exhibit Doc 32.
[32]First Affidavit Dias - Exhibit Doc 34.
[33]First Affidavit Dias - Exhibit Doc 35.
[34]First Affidavit Dias - Exhibit Doc 36.
[35]First Affidavit Dias - Exhibit Doc 38.
[36]First Affidavit Dias - COGD-01, Document 35.
[37]First Affidavit Dias - COGD-01, Document 36.
[38]Third Affidavit Bryant - paras [7] - [11].
[39]Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] (citations removed) and Brennan CJ agreed). See also, Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 34, McMeekin J. Section 457(9) was considered by Jones DCJ in Southern Downs Regional Council v Kemglade Pty Ltd [2014] QPELR 436.
[40]Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811.