Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Cairns Regional Council v Liu[2016] QPEC 31

Cairns Regional Council v Liu[2016] QPEC 31

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cairns Regional Council v Liu & Ors  [2016] QPEC 31

PARTIES:

CAIRNS REGIONAL COUNCIL

(applicant)

v

JUBO LIU

(first respondent)

v

BODY CORPORATE FOR THE WINSTON (CAIRNS) COMMUNITY TITLE SCHEME 37263

(second respondent)

v

WENJING MU

(third respondent)

FILE NO/S:

Application 34/16

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED EX TEMPORE ON:

1 June 2016

DELIVERED AT:

Cairns

HEARING DATE:

31 May 2016

JUDGE:

Dean P. Morzone QC

ORDER:

  1. It is declared that the balcony enclosure structure on the first respondent’s property located at Unit 17 and part of the common property of The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street, North Cairns in Queensland, constitutes code assessable development for which a development permit is required.
  1. The first respondent must remove the structure from the property by 1 August 2016 and make good any damage to the common property to return the premises the condition immediately before the erection of the structure.
  1. The first respondent will pay the applicant’s costs of the proceeding on and from 4 May 2016 to be assessed on the standard basis.
  1. In the event that the costs claimed by the applicant cannot be agreed, each party has liberty to apply, upon giving at least seven (7) days’ written notice to the other party, for the assessment and fixation of costs by the court.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of balcony enclosure as assessable development - whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence - whether declaratory and enforcement orders should be made in the exercise of discretion - costs.

COUNSEL:

P. Djohan for the applicant

SOLICITORS:

Corrs Chambers Westgarth for the applicant

  1. [1]
    The applicant council applies for declarations and enforcement orders to requiring the first respondent (the “respondent”) to destroy and remove the shanty-like structure enclosing his first-floor unit balcony.
  1. [2]
    The respondent opposed the application and was self-represented at the hearing. The second respondent body corporate did not participate in the hearing. The third respondent is no longer interested in the property and was granted leave to withdraw from participating in the proceeding.

Background

  1. [3]
    The respondent and his former wife, the third respondent, are the registered owners of the unit 17 in The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street at North Cairns in Queensland. The respondent’s unit is located in the first floor in the three-storey residential complex comprising 30 other separate dwelling units and common property.
  1. [4]
    The third respondent has disavowed any involvement in the structure the subject of this proceeding and has lodged documents to transfer her interest in the unit to the respondent. The applicant council does not seek any orders against the second or third respondents.
  1. [5]
    In 2011 the respondent undertook building work to enclose a 16m2 balcony of the unit without any building permit. The second respondent body corporate resolved to consent the respondent enclosing the balcony but it is unclear whether it was duly informed about the nature or extent of the work.
  1. [6]
    On 22 December 2011 the council inspected the structure. It issued a Show Cause Notice on 7 March 2012, followed by an Enforcement Notice on 2 April 2012.
  1. [7]
    In response to that process the respondent made a belated development application to a private certifier for an “enclosed balcony to enclosed patio”,[1] and a development permit issued on 14 June 2012 for a period of two years.  However, the private certifier later to issued a Show Cause Notice on 22 February 2013, followed by a second enforcement Notice on 10 April 2013.
  1. [8]
    Following the discontinuance of the private certifier’s engagement, and during the period April 2014 to September 2014, the council was unsuccessful in its attempts enforce the demolition and removal of the structure. A third enforcement notice issued by the council on 30 April 2014 was never received by the respondent. A fourth enforcement notice issued on 21 May 2014 was withdrawn, and a Show Cause Notice was issued on 24 September 2014.
  1. [9]
    In response the applicant made a ‘request to change an existing approval template’ to the private certifier.  The document contains various forms of handwriting noting or describing the changes as follows:
  • ‘Re-engage All Construction Approvals to finalise file.
  • Install the fire separation wall external cladding to meet the standard. CSR-902
  • Enclosure of patio to extend habitable area
  • Builder TBA
  1. [10]
    The respondent was asked about those entries during the course of his oral evidence. He admits that he wrote the words “install the fire separation wall external cladding to meet the standard”, but I accept that the other writing is not his. It is not clear how it came to be in the document or indeed who inserted it. Further, it is not clear whether the respondent accepted, for instance, that the structure was an “enclosure of patio to extend habitable area”.
  1. [11]
    During the course of this judgment the respondent was permitted to tender further material which further cast doubt on the genesis of the writing in the so-called “request to change an existing approval template”.
  1. [12]
    Pursuant to that application or request, the private certifier issued a development permit on 2 October 2014 ‘for the construction of an ENCLOSURE OF PATIO TO EXTEND HABITABLE AREA’ for 6 months. The permit had six conditions of approval (noting that the sixth condition repeated the first) as follows:

(1) Roof stormwater to be taken to kerb and channelling or other legal point of discharge by means as approved on the plans or method determined as satisfactory by the inspecting officer at the time of final inspection.

(2) Balustrade and height below open able windows to comply with D2.16 of the Building Code of Australia.

(3) One set of legibly, current drawings for the development must be available for inspection on the site while work is in progress so as to comply with section 73 of the Building Act 1975.

(4) The fire-rated walling system is to be inspected by a person with a Building Services Authority – Fire Occupation Licence and the relevant form 16 provided at the time of final inspection.

(5) No second-hand materials are permitted for exterior wall cladding.

(6) Roof stormwater to be taken to kerb and channelling or other legal point of discharge by means as approved on the plans or method determined as satisfactory by the inspecting officer at the time of final inspection. (sic)

  1. [13]
    The respondent asserts that he left Australia on 21 October 2014 and was overseas for more than a year. Evidence suggests that he returned at least before 13 November 2015. His assertion is corroborated by the further material which was tendered, as I mentioned earlier, during the course of the judgment and marked exhibit 9.
  1. [14]
    In his absence the private certifier issued a Notice of Non Compliance[2] and the council issued fifth and sixth Enforcement Notices requiring demolition and removal of the structure.  The respondent was aware of the sixth Enforcement Notice on 15 May 2015 as evidenced by his email reply.[3]  The Enforcement Notices again required demolition and removal of the structure and reinstatement of the premises.
  1. [15]
    By a letter dated 17 December 2015, sent by registered post, the council’s solicitors demanded demolition and removal of the structure and reinstatement of the premises. The respondent failed to collect the registered mail, so another letter was sent.
  1. [16]
    Things came to a head when council officers and experts inspected the structure on 24 February 2016 under a warrant issued pursuant to s 130 of the Local Government Act 2009.  The structure has not been demolished or removed, and the premises have not been otherwise reinstated.  Numerous photographs were tendered at the hearing showing the nature and extent of the structure at various times and progressive changes until the date of hearing.  The structure consists of fibrous cement sheeting, and used and damaged Trimdeck steel sheeting fixed with roofing screws to form part of the exterior walls and roof.  The internal walls are lined, the ceiling also lined is sagging, and there are external gaps in the exterior of the structure, including around the window frame.
  1. [17]
    The council relies on the structure’s non-compliance with the building plans, planning law and Building Code. The respondent asserts that the structure was not assessable development, or alternatively, if it is assessable development that he ought be provided an opportunity to regularise structure instead of its forced destruction and removal.

Issues

  1. [18]
    The questions to be determined in this dispute are:
  1. (1)
    Was the work assessable development that required development permits?
  1. (2)
    Are declarations and/or enforcement orders required in the exercise of the court’s discretion?
  1. (3)
    Should the respondent pay the council’s costs of the application?

Was the work was assessable development that required development permits?

  1. [19]
    The council contends that the structure enclosing the balcony is an extension of Unit 17 in the residential class 2 building and therefore is assessable development. The respondent contends that the building is a mere storage area and properly characterised as a class 10a structure and therefore self-assessable development.

Assessable Development

  1. [20]
    Section 578 of the Sustainable Planning Act 2009 (Qld) (“the SPA”) makes it unlawful for a person to carry out assessable development without a development permit:

578 Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development unless there is an effective development permit for the development.

 Maximum penalty—1665 penalty units.

  1. (2)
    Subsection (1)—
  1. (a)
    applies subject to subdivision 2; and
  2. (b)
    does not apply to development carried out under section 342(3).
  1. [21]
    The works subject of the dispute do not constitute development carried out under s 342(3) of the SPA, and therefore the exception in subdivision 2 of s 578 of the SPA is not triggered in this case.[4]                                                                                                                               
  1. [22]
    Section 232(1) of the SPA provides that a regulation may prescribe that development is: self-assessable development; development requiring compliance assessment; or assessable development.
  1. [23]
    The relevant regulation is s 9 of the Sustainable Planning Regulation 2009 (the “Planning Regulation”) which prescribes that:
  1. (1)
    For section 232(1) of the Act –
  1. (a)
    development stated in schedule 3, part 1, column 2 is assessable development; and
  1. (b)
    development stated in schedule 3, part 2, is self-assessable development.
  1. (2)
    For section 232(3) of the Act, schedule 3, part 1, column 3 identifies the type of assessment for the development stated opposite in column 2.
  1. [24]
    For the purposes of assessing building work under the Building Act 1975, Schedule 3, part 1, item 1 of the Planning Regulation prescribes that assessable development is building work that is not:
  1. (a)
    self-assessable development under part 2, and
  2. (b)
    declared under the Building Act to be exempt development.
  1. [25]
    Schedule 3, part 2, prescribes three forms of building work that are self-assessable development. Items 1 and 3 do not apply to the facts of this matter. For the purposes of assessing building work against the Building Act, Item 2 of schedule 3, part 2 of the Planning Regulation prescribes that self-assessable development is “building work declared under that Act to be self-assessable development”.
  1. [26]
    In turn, s 20 of the Building Act prescribes that all building work is assessable development unless it is exempt development under section 22, or under the SPA, or section 21(2) it is self-assessable development. Section 21(2) of the Building Act relevantly prescribes that:
  1. (2)
    Building work is declared to be self-assessable development for the Planning Act if it –
  1. (a)
    is prescribed under a regulation; and
  1. (b)
    complies with –

(i) generally – any relevant deemed-to-satisfy provision under the BCA or relevant acceptable solution under the QDC for the building work; …

  1. [27]
    Section 4(1) of the Building Regulation 2006, provides that building work identified in schedule 1 of that regulation, and is not exempt development for the SPA, is self-assessable development.

Class 10a Building

  1. [28]
    Volume 1 and Volume 2 of the National Construction Code (the “NCC”) constitutes that the Building Code of Australia (the “Building Code”).
  1. [29]
    Part A3 of Volume 1 of the Building Code prescribes the classification of building and structures. Section 3.1 of Volume 1 of the Building Code provides the classification of a building or part of building is determined by the purpose for which it is designed, constructed or adapted to be used. Section A3.2 sets out the definitions for the classifications of buildings and structures.
  1. [30]
    The respondent asserts that the enclosed area is a storage shed being a Class 10a structure and self-assessable building work pursuant to section 1.3.2 of the NCC, Building Code Volume 2.[5]  I disagree.
  1. [31]
    A Class 10a structure is defined in the Classification Summary of the Buildings and Structures in the Building Code 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; ….

  1. [32]
    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 that precede them.[6]  It is necessary to identify a relevant genus of the specific words to be used to qualify or restrict the general words.
  1. [33]
    In my view, the specific things of private garage, carport, sheddenote simple supported, roofed structures used for non-habitable shelter or storage.  Here, I am not satisfied that the structure is of the same kind.  Even if, there was some merit in the respondent’s argument, it is ultimately futile.
  1. [34]
    Item 13 of Schedule 1 of the Building Regulation relevantly provides for self-assessable development of a building work for a class 10 building or structure as follows:

(1) This section applies to building work for class 10 building or structure (Class 10), unless the building work is –

(a) within Wind Region C (tropical cyclone area) mentioned in AS 1170.2 SAA Wind Loading Code; or ….

(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.

  1. [35]
    Section 3.2 of the AS1170.2 Part 2: Wind actions identifies regional wind speeds for Australia by reference to Figure 3.1(A). Figure 3.1(A) was amended by Amendment No.1 to AS/NZS 1170:2:2011 Structural design actions Part 2: Wind actions.[7]  Figure 3.1 (A) as amended prescribes Cairns as being part of Region C.   Obviously the respondent’s unit is clothed in that category, being within Cairns. Therefore, under AS1170.2, the building work constituting the structure is not self-assessable, instead it required code assessment under schedule 3, part 1, table 1, item 1 of the Building Regulation. 
  1. [36]
    In any event, the structure would not be otherwise prescribed because it is more than 16m2 and therefore exceeds the 10m2 prescribed and may well exceed the other qualifiers contained in item 13(2) of Schedule 1 of the Building Regulation.  However, this begs the question about what the classification ought be.

Class 2 Building

  1. [37]
    A class 2 building, as contended by the council, is defined in section A3.2 as ‘a building containing two or more sole-occupancy units each being a separate dwelling.’
  1. [38]
    It seems to me that the residential building containing unit 17 and the 30 other separate dwelling units constitutes a class 2 building. The structure was designed as an extension to the habitable area of Unit 17, as is obvious by its physical nature. This is so even though it may have been otherwise described by someone in the development application[8] or endorsed by the building certifier in the development permit.[9]
  1. [39]
    Put simply, the respondent enclosed the area so as to internalise what would otherwise be an external space. By doing so it formed part of the dwelling and was intimately connected with the living areas and apparently used in that way.
  1. [40]
    Therefore, it seems to me that under Schedule 5, item 1 of the Building Regulation, the building work required code assessment against the codes, laws, policies and prescribed matters that may apply for such an assessment, including:
  1. (1)
    the Building Act, chapters 3 (Additional requirements for building applications) and 4 (Assessment of building development applications and carrying out self-assessable building work);
  1. (2)
    any local law or local planning instrument that the division allows to apply to the assessment;
  1. (3)
    the Queensland Development Code; and
  1. (4)
    the Building Code.
  1. [41]
    The performance requirements applicable to class 2 buildings include:
  1. (1)
    Performance Requirement BP1.1[10] (Structural Provisions) and Deemed to Satisfy Provisions B1.0, B1.1 Resistance to actions, B1.2 Determination of individual actions, Specification B1.2 Design of Buildings in Cyclonic Areas, which all incorporate that requirements of AS1170.1 and AS1170.2;
  1. (2)
    Section C – Fire Resistance;
  1. (3)
    Section D – Access and Egress; and
  1. (4)
    Section F – Health and Amenity.

Are declarations and/or enforcement orders required in the exercise of discretion?

  1. [42]
    The relief sought by the council comprises declaratory relief (s 456 of the SPA) and mandatory injunctive relief (ss 601 & 604 of the SPA).
  1. [43]
    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.[11]  This will be considered in the context of the declaration and orders sought to remediate the structure by destruction, removal and reinstatement under the authority of an effective developmental approval.
  1. [44]
    Pursuant to s 456(1)(e) of the SPA, any person may bring a proceeding for declarations about the lawfulness of development. Clearly enough the council as the local authority is charged with the responsibility to ensure compliance with its own building and planning regime, and to do so for the health and safety of its citizens. Section 456(6) and (7) empower the court to hear and decide the proceeding, and to make orders about any declaration made.
  1. [45]
    Section 601 of the SPA permits a person to bring a proceeding for an enforcement order to remedy or restrain 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.

  1. [46]
    The court’s power to make these orders is discretionary.
  1. [47]
    In Warringah Shire Council v Sedevcic,[12] Kirby P, as he then was, considered the exercise of discretion of the NSW equivalent 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.[13]  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.[14] 
  1. [48]
    As to proceedings commenced by local authorities, as here, the President 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.

  1. [49]
    I have already concluded that the structure is assessable development, for which a development permit was required.
  1. [50]
    The respondent wishes to retain the structure and seeks to regularise the development by making a development application for code assessable development to the council, or alternatively a private certifier as the appropriate assessment manager. He has not called any expert evidence but relies upon the Form 16 Inspection Certificate issued by civil engineer, Mr Colefax. However, the Structure has been modified since Mr Colefax issued his Form 16 certificate, and I am not satisfied that is represents the current state of the structure.
  1. [51]
    The shanty style of the structure is symptomatic of the respondent’s unqualified, crude and sub-standard building methods in construction.
  1. [52]
    In this regard I accept the expert engineering and building evidence of Mr De Roma. He has expertly assessed the structure by photographs and site inspections and has comprehensively distilled the various non-compliances with the expired approved plans, building standard and building code. Mr De Roma’s expert opinion, based on the current state of the structure, is that the extent of the non-conformity with the various legislative requirements, including AS1170, together with likely additional non-conformities that are not visible, is such that the structure poses an unacceptable risk to the public and property. Mr De Roma’s evidence comprised his affidavits, expert report and oral testimony, all of which withstood the rigour of cross-examination.
  1. [53]
    I find that the structure is grossly inadequate for the following reasons:
  1. (1)
    It has not been constructed according to the conditions of the later development permit, and has been constructed with significant departures from the drawings approved under that permit;
  1. (2)
    It does not have a fire sheeting wall installed in accordance with the plans approved by that permit, and, therefore, poses an unacceptable risk to fire containment;
  1. (3)
    It does not have windows fixed according to the appropriate standards, which may lead to the framing dislodging from opening during a wind event;
  1. (4)
    The eaves and gutters are not supported by brackets at either end, and are not more than 1.2m, and have the potential to dislodge during a wind or rain event and become wind borne debris or falling hazards;  and
  1. (5)
    It has roofing, cladded walls and wall posts that do not comply with the Live Loads of the Australian Design Standard AS1170, Part 1 and Wind Loads AS1170, Part 2 and represent an unacceptable level of risk to life and property.
  1. [54]
    In short, the structure is dangerous and grossly non-compliant with regulatory and building standards. Additionally, the structure is erected partly over the common property. This has occurred by virtue of the respondent housing the pre-existing overhanging Mediterranean balustrading, but more so extending the structure over a walkway which constituted common property. I am not satisfied that the respondent obtained the requisite consent of the body corporate to encroach over the common property in this way.
  1. [55]
    The issue of the structural integrity of the structure is a matter of paramount importance to the issue of the protection of public health and safety, particularly for building work within tropical cyclone areas. It seems to me that the structure is intolerably non-compliant and such non-compliance will cannot be practically or properly remedied by some in situ rectification work.
  1. [56]
    The council gave the respondent multiple opportunities and time to regularise the non-complying structure (amongst other things). He has had over four years to effectively reach a stage of compliance in accordance with an effective development permit, but has failed to do so. Some of that period, as I’ve referred to above, straddles the time that the respondent was overseas, however that does not excuse his delay but merely explains part of it as a result of choices personal to him.

In those circumstances I will make the declarations and orders sought with some changes as to the characterisation of the building works and destruction orders.  However, I decline to make the other far-reaching declarations and orders sought by the council.

Costs

  1. [57]
    The council seeks an order that the respondent pay the costs of the proceeding in reliance upon s 457(1), (8) and (9) of the 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. …

  1. [58]
    The rule is one of fairness to compensate a successful party for bringing a meritorious proceeding.[15]  The court’s discretion must be exercised judicially.[16]  The exercise of discretion involves consideration of various factors about the parties and the proceeding including:
  1. (1)
    the nature and complexity of the case;
  1. (2)
    the relative strengths of competing claims;
  1. (3)
    the outcome of the proceeding;
  1. (4)
    the parties’ conduct, misconduct or contravention of any law; and
  1. (5)
    anything else the court considers relevant.
  1. [59]
    This case, as is demonstrated by the legislative background set out above, involved complex matters of law. Factually it was less complex but nevertheless involved an investigation of those facts, particularly the state of the building work against the various and many standards by council officers and its expert. The issues in the proceedings were only reduced by those who sought to disassociate themselves from the respondent, in particular the second and third respondents. The respondent, on the other hand, continued the proceedings as he had done so from the beginning of the history of this matter.
  1. [60]
    The council succeeded in the proceeding. That success was facilitated by photographic evidence and expert evidence. That in itself was not easy and required a warrant to be issued so that the proper officers and the expert could obtain appropriate access to the premises. The respondent’s position was, if not untenable, at least unmeritorious. The merits of the case weighed heavily in the council’s favour, and its prosecution of the case has caused significant cost, delay and inconvenience.
  1. [61]
    Notwithstanding the respondent’s absence from the jurisdiction for a significant period, his conduct and knowledge of the circumstances do not demonstrate a mere lack of understanding, comprehension or confusion of the building standards or the process of obtaining an effective development permit for the structure. Rather, it seems to me, he has consistently demonstrated an arrogant attitude, whilst not entirely flagrant, at least constituted some wilful blindness about how and when to deal with the matter according to law.
  1. [62]
    The council has, as demonstrated by the background set out above, made every effort to enforce compliance with its requirements. Those efforts were thwarted, to a large extent, by the respondent’s absence from the jurisdiction and other circumstances which rendered the various enforcement notices unviable or practically ineffective. It had no alternative, it seems to me, in the circumstances but to issue the proceedings which commenced on 14 March 2016. Those proceedings, commenced by a comprehensive originating application, clearly alerted the respondent to both the remedy sought by the council, but also the grounds upon which that remedy was being prosecuted.
  1. [63]
    The respondent was self-represented in the hearing which contributed to a greater need by this court and the council’s representatives to ensure the integrity of the proceeding. In this case it was made even more challenging by the respondent’s ignorance of procedural matters, overlaid with some communication difficulties. As the High Court said in Neil v Nott (1994) 121 ALR 148 at paragraph [150]:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy.

  1. [64]
    In these circumstances the respondent’s lack of legal knowledge is undoubtedly a misfortune, as it is for any lay litigant appearing in person, but it should not be seen as a privilege. Indeed, the respondent here is obviously an individual of significantly high intelligence with a capacity to understand the nature, scope and procedures demanded of him in the case. So much is evidenced by the articulate way he approached the material which was filed in the proceeding as well as the management of the case during the hearing.
  1. [65]
    Quite apart from the numerous opportunities offered before the proceeding commenced, further opportunities were offered to the respondent to remediate the works and avoid the matter proceeding to hearing. He submits that he was frustrated in doing so because of the council’s expressed inability to assist him, and instead referring him to the council’s legal representatives. That was the appropriate course to take. If a resolution was capable of being achieved it ought to have proceeded through the legal representatives and, in due course, implemented by the council through its proper officers.
  1. [66]
    The matter was referred to mediation with the court’s alternative dispute resolution registrar. The mediation was unsuccessful.
  1. [67]
    On 4 May 2016 the respondent was provided a further opportunity to resolve the proceeding in response to an open letter of offer from the council. The offer was in the form of a Calderbank offer pursuant to the legendary case of Calderbank v Calderbank (1975) 3 All ER 333.  It was appropriately endorsed, giving notice to the respondent that the council intended to rely upon the offer in the event that a more favourable outcome was achieved, and that in the wake of such an outcome, the council would seek indemnity costs.
  1. [68]
    The terms of the offer are as follows:

OFFER

With the above matters in mind, we are instructed to make this opened offer to resolve this matter in its entirety and avoid the additional cost of proceeding to a hearing.

Council is offering to not pursue any order for costs against you on the basis that, by Wednesday, 18 May 2016, you:-

(1) demolish the unlawful structure erected at the premises;

(2) remove from the premises all parts and material constituting the unlawful structure once demolished;  and

(3) make all necessary structural repairs to the premises to return it to the condition it was in before the erection of the unlawful structure.

If this offer is accepted by you, then council proposes to formalise the agreement by way of court order at the next review on Friday, 13 May 2016.  That order will include:-

(1) declarations as to the unlawfulness of the structure erected on the premises;

(2) orders requiring the demolition by Wednesday, 18 May 2016; and

(3) an order that each party bear its own costs of the proceeding.

To be clear, council is seeking your agreement to remove the unlawful structure, on the basis that council will forego the costs that it has incurred to date and avoid the additional costs of proceeding to hearing (which costs are recoverable from you if council is successful).

This offer is intended to be a Calderbank offer (footnote omitted).  In the event that this offer is rejected and proves more favourable than the outcome before the court, council intends to rely upon this letter in applying for indemnity costs. 

  1. [69]
    Preceding the terms of offer, the solicitors for the council set out the nature of the remedy sought in the proceeding, as well as estimates of the costs of the proceeding before the offer and likely to be incurred after the offer. The estimate does not include investigation costs, which for the most part would necessarily be associated with costs of preparation of the various witnesses’ evidence, particularly the expert evidence. By the time of the communication of the offer of 4 May 2016, the substantial component of the council’s evidence had been gathered, collated and filed.
  1. [70]
    By the 30th of May 2016, as deposed to by Mr Lillywhite, a partner of the firm representing the council, deposed that the total professional fees invoiced to the council in the conduct of the matter was $81,792.38, and he provided particulars of that amount in terms of solicitors’ fees before and after the proceeding commenced, counsel’s fees, expert fees and additional disbursements. He also estimated that the total future costs for professional fees to and including the hearing of the proceeding would be approximately $30,000, including solicitors’ fees, counsel’s fees, expert fees and disbursements.
  1. [71]
    The respondent rejected the offer by making a counteroffer along the same lines as his contentions in this case, namely, that he would attend to the issues particularly identified in the form 61 issued during the course of the history of the matter, whilst the structure remained in situ and subject to appropriate approvals. That offer was rejected by the council.
  1. [72]
    It seems to me that the offer made by the council is also relevant to the exercise of the discretion in relation to costs. The terms of the offer were, although expressed in more general terms, reflective of the remedy sought in the originating application, as amended. The mode proposed to formalise the agreement constituted by an acceptance of the offer was in form of a court order, including declarations and orders in terms of mandatory injunctions.
  1. [73]
    To proceed in that way, the council would have nevertheless been subject to the burden of proving the case to enable the court to properly consider all of the relevant material and exercise its discretion. At best, the proceeding may have been truncated because the parties were at one, and a full hearing involving the respondent as a contradictor was unnecessary.
  1. [74]
    Having regard to all that I have said, it seems to me that this is an appropriate case to make a costs order in favour of the council against the respondent. However, I’m not persuaded that that order or those costs ought be assessed to include the costs of investigation or all of the costs of the proceeding, much less indemnity costs.

Orders

  1. [75]
    I make the following orders:
  1. (1)
    It is declared that the balcony enclosure structure on the first respondent’s property located at Unit 17 and part of the common property of The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street, North Cairns in Queensland, constitutes code assessable development for which a development permit is required.
  1. (2)
    The first respondent must remove the structure from the property by 1 August 2016 and make good any damage to the common property to return the premises to the condition existing immediately before the erection of the structure.
  1. (3)
    The first respondent will pay the applicant’s costs of the proceeding on and from 4 May 2016 to be assessed on the standard basis.
  1. (4)
    In the event that the costs claimed by the applicant cannot be agreed, each party has liberty to apply, upon giving at least seven (7) days’ written notice to the other party, for the assessment and fixation of costs by the court.

Judge Dean P. Morzone QC

Footnotes

[1]Affidavit of Tabulo – Exhibit Attachment 13, p 54, CEO’s Certificate

[2]Affidavit of Tabulo – Exhibit Attachment 28, p 117, CEO’s Certificate

[3]Exhibit 5

[4]Sections 584-7.

[5]The National Construction Code is an initiative of the Council of Australian Governments developed to incorporate all on-site construction requirements into a single code. It is produced and maintained by the Australian Building Codes Board on behalf of the Australian, State and Territory governments. See page 8 of Volume 1 of the NCC.

[6]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.

[7]    Exhibit 2 - AS1170.1 and AS1170.2

[8]Affidavit of Tabulo – Exhibit Attachment 28, p 100, CEO’s Certificate

[9]Affidavit of Tabulo – Exhibit Attachment 28, p 91, CEO’s Certificate

[10]Exhibit 3 - Extracts of the Building Code, Vol 1 at p 70

[11]Booth v Yardley [2007] QPELR 229 at [17]; Philips v Wareham & Ors [2015] QPELR 413 at [11]-[14].

[12]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].

[13]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.

[14]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340.

[15]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.

[16]Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811.

Close

Editorial Notes

  • Published Case Name:

    Cairns Regional Council v Liu & Ors

  • Shortened Case Name:

    Cairns Regional Council v Liu

  • MNC:

    [2016] QPEC 31

  • Court:

    QPEC

  • Judge(s):

    Morzone J

  • Date:

    01 Jun 2016

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.