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Gympie Regional Council v Pye[2016] QPEC 65

Gympie Regional Council v Pye[2016] QPEC 65

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gympie Regional Council v Pye [2016] QPEC 65

PARTIES:

GYMPIE REGIONAL COUNCIL

(applicant)

v

JANELLE LEE PYE

(respondent)

FILE NO/S:

D108 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

16 December 2016

DELIVERED AT:

Planning and Environment Court at Maroochydore

HEARING DATE:

23 November 2016

JUDGE:

Robertson DCJ

ORDER:

  1. I order the respondent, by herself, her servants, or agents to, remove the advertising sign erected on Lot 3 on Crown Plan MPH24229 and situated at 106 Old Maryborough Road, Gympie within (30) days of today’s date.
  2. The respondent to pay the applicant’s investigation costs and costs of and incidental to the proceeding to be assessed on the indemnity basis.

CATCHWORDS:

 

 

Legislation

Local Government Act 2006 s 259

Sustainable Planning Act 2009 ss 473, 578, 580, 601(1)(a), 604, 605 & 606

Cases

Bayside Consulting Pty Ltd v The Caboolture Shire Council [2006] QPELR 397

Briginshaw v Briginshaw (1938) 60 CLR 336

Caloundra v Taper Pty Ltd and Anor [2003] QPELR 558

Collins v Moreton Shire Council (1976) 35 LGRA 174

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LEGRA 411 (QCA)

Glastonbury and Anor v Townsville City Council and Ors [2012] QPELR 216

Mudie v Gainriver Pty Ltd and Ors [2001] QCA 382

Paroz v Paroz & Ors [2012] QSC 157

Southern Downs Regional Council v Kemglade Pty Ltd (2014) QPELR 436

Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

Wilson and Anor v Hervey Bay Shire Council and Anor (1978) 36 LGRA 329

COUNSEL:

N Loos for the applicant

M Batty for the respondent

SOLICITORS:

Thomson Geer for the applicant

Connor O'Meara for the respondent

  1. [1]
    By Originating Application filed 18 August 2016, the applicant (the Council) seeks enforcement orders and costs against the respondent. In particular, the Council seeks “enforcement orders pursuant to s 601(1)(a) of the Sustainable Planning Act 2009 (“SPA”) requiring the respondent by herself, her servants or agents, to remove the Advertising Device erected on land that is in breach of its development approval.” 
  1. [2]
    The respondent’s husband, Ian David Pye (“Mr Pye”) has been the driving force behind her original application for a development permit; negotiations with the Council and these proceedings. She however is the registered proprietor of the land at 106 Maryborough Road Gympie, which is the subject of these proceedings, and was the sole director of the real estate corporation which lodged a Code Assessable Development Application for a Material Change of Use for the purpose of a Home-Based Business referred to in the application lodged with Council on 27 March 2014 as “mobile real estate services.”

Chronology of events

  1. [3]
    There is really no dispute about the factual history relating to the development application.
  1. [4]
    Mr Pye, in his affidavit filed 4 November 2016, confirms that he lodged the development application on 27 March 2014 on behalf of his wife and their company.
  1. [5]
    It is not in issue that he sought assistance from a Council officer prior to this, and it is clear from his affidavit, and from the development application itself, that he understood that because the business involved more than one employee, it was necessary to make a Code Assessable application for a Material Change of Use.
  1. [6]
    In that affidavit, at paragraph 7, he states:

“7. When I made the Development Application, I was aware that Acceptable Outcome A07.4 of the Applicant’s planning scheme provided that:

‘Signage is limited to a single un-illuminated sign bearing the name and nature of the activity, occupation or business and not exceeding 0.3 m².’”

  1. [7]
    In the attachment to the development application under the heading “Description of Proposed Use” he has written:

“As this is our home, we will not be seeking to promote the business address with large signage or advertising which would cause clients to physically contact us at the address.”

  1. [8]
    Under a further subheading, and by reference to Performance Outcome 7, and specifically to A07.4, he wrote:

“Signage would be limited to the stipulated regulation size.”

  1. [9]
    At the time of the making of the development application, a qualified town planner Kasia Fuller, was then Acting Manager Development and Compliance, and as such she held a delegation from the Chief Executive Officer pursuant to s 259 of the Local Government Act 2006 to determine certain development applications as the delegate of the Council, rather than the development application being determined at a meeting of the full Council.
  1. [10]
    The lawfulness of her delegation, which is document “A” to Exhibit KMF-01 to her affidavit sworn 7 October 2016 is not in question.
  1. [11]
    As she states in that affidavit, following receipt of the development application, she allocated its assessment to Curtis McMillan, also a qualified town planner, in the employ of the Council. He was to assess the application and to make a recommendation to her to determine the application.
  1. [12]
    He undertook this task and provided a Development Assessment Note to her on 29 April 2014. This note is in evidence in a number of places, e.g. at 26-30 of Ms Fuller’s October affidavit, and 19-23 of Mr McMillan’s affidavit filed 11 October 2016.
  1. [13]
    I accept without question that in undertaking his task, Mr McMillan assessed the application against “the relevant provisions of the Planning Scheme.” It is true, as Mr Batty established in cross-examination, that the note does not attach a set of draft conditions, but this surely must be commonplace in routine and simple Code Assessments such as this. I accept Mr McMillan’s evidence that in undertaking his assessment, he considered Section 3 (Home Based Business) of the Residential Living Zone Code, and in particular PO7 which provides:

“The activity, occupation or business is subordinate to the dwelling house on the site”;

And AO7.4:

“Signage is limited to a single unilluminated sign bearing the name and nature of the activity, occupation or business and not exceeding 0.3m².”

  1. [14]
    Against that Acceptable Outcome, Mr McMillan wrote the word “condition”, clearly indicating, as he states, that he recommended that a condition should be attached to the approval that reflected that acceptable outcome. On that basis the proposal complied with PO7.
  1. [15]
    Ms Fuller received Mr McMillan’s recommendation note on 29 April 2014. Mr McMillan says that he did prepare a draft decision notice, but no draft appears on the file. There is nothing sinister in this, as Ms Fuller states that Mr McMillan prepared the proposed decision notice approving the application, subject to conditions, in the form of a letter addressed to the respondent.
  1. [16]
    The decision notice dated 29 March 2014 (sic) appears at 31-35 of Ms Fuller’s October affidavit. Condition 2 is in these terms:

“2. Any signage is limited to a single, unilluminated sign bearing the name and nature of the activity, occupation or business and not exceeding 0.3m.3”

  1. [17]
    As Ms Fuller notes, clearly on the first page of the decision notice there are two typographical errors. Firstly, the decision notice should have been dated 29 April 2014, the date of the decision, and the reference to “27 March 2014” is also incorrect as that was the date of the application and not the date of the decision. The decision notice is signed by Ms Fuller as “authorised delegate, Acting Manager Development and Compliance.”
  1. [18]
    Mr Pye (on behalf of his wife) did not commence the use until October 2014, however he says it was not until April 2015 that the business decided to “proceed to erect the signage approved by the Development Approval.”
  1. [19]
    Ms Fuller was absent from work on maternity leave from 19 December 2014 until early January 2016.
  1. [20]
    Tania Stenholm is a qualified town planner and she has been employed as Manager Development and Compliance with the Council since 2008. She was on extended leave from the Council from 22 August 2013 until 9 June 2014, so she was not involved in the original assessment.
  1. [21]
    As I have noted Mr Pye says that a decision was made to erect the sign in April 2015. In his affidavit sworn 2 November 2016 he states:

“12.  The concept of a dice-shaped sign with dimensions of approximately 650 mm x 650 mm x 650 mm (total surface area of 2.5m²) appealed to me.

  1. I spoke with Brett Hussey of Plan B Drafting and Design about the dimensions included in the Development Approval.  Brett’s view was that given the condition provided for a cubic measurement, a sign with more than one face was a possibility.
  1. I never doubted that condition 2 was the Council’s intended outcome.  I took the condition at face-value and assumed the Applicant has decided to approve a condition different from the terms of AO7.4, given that it was only an acceptable outcome.

….

  1. We eventually decided on a design proposed by Plan B Drafting and Design, which was designed to provide good visibility to passing motorists.  The construction of the sign was organized with Nobby’s Mobile Welding.
  1. The sign was erected on or about 24 May 2015.  Exhibit ‘IDP-4’ are true copies of photographs of the sign.
  1. The sign, as erected, has a size of approximately 0.135m².  Exhibit ‘IDP-5’ is a true copy of a front elevation plan of the sign, including its measurements.
  1. The sign was constructed and installed consistent with all conditions imposed by the Development Approval.
  1. The sign cost $4,200 for its design, construction, transport and installation.  This includes the cost of an engaging Plan B Drafting and Design and purchasing the necessary paints and hardware supplies and having all the concrete and steel works constructed.”
  1. [22]
    On 14 July 2015, Mr Wilbraham, a compliance officer with the Council, wrote to the respondent, stating that the sign as erected was contrary to condition 2 of the development permit. In that letter Mr Wilbraham set out condition 2 as recorded in the earlier decision notice i.e. referring to 0.3m3.  The respondent was asked to remove the sign within 7 days.
  1. [23]
    On 8 July 2015, the Manager Building and Plumbing Services with the Council had also written to the respondent, asserting that the construction of the sign had been carried out “without the required development approvals having been obtained.”
  1. [24]
    Mr Pye says that he was “surprised and confused” when he received Mr Wilbraham’s letter.
  1. [25]
    As a result of what he had said about Brett Hussey and Plan B Drafting and Design, Council solicitors tracked down Mr Hussey, and he has provided an affidavit and was cross-examined. His affidavit, sworn 17 November 2016, was filed by leave at the hearing on 23 November 2016. He appeared under subpoena issued by Council’s solicitors. He refers, in particular, to Mr Pye’s affidavit filed 4 November 2016 and paragraphs 13 and 17.
  1. [26]
    His recollections of his dealings with Mr Pye vary from those of Mr Pye’s. He refers to a meeting with Mr Pye in “mid-2015” in relation to the sale of his property, which was not sold and taken off the market in October/November 2015.
  1. [27]
    At paragraphs 8-16 of his affidavit he states:

“8.  On 23 November 2015, Mr Pye telephoned me and advised me that he had put up an advertising sign at his place of business and was having trouble with the Council and his development application relating to the sign.  Mr Pye asked if I could prepare a drawing of the sign.

  1. That telephone conversation on 23 November 2015 was the first time I became aware of the sign.
  1. On 24 November 2015, Mr Pye sent me an email referring to our discussion of the previous day and asking for a construction plan for the sign.  He attached a series of photographs of the sign to that email.  He also specifically requested that I ‘keep the plan date as 2/04/2015’ and that ‘all specifications are calculated as cubic.’  This email was the first time that Mr Pye had referred to and made those two specific requests known to me.  With respect of the date 2/04/2015, I assumed that this was a date prior to the sign being constructed, but I did not discuss the date with Mr Pye as I did not consider it relevant to the work I was required to undertake.
  1. On 24 November 2015, I responded to Mr Pye by return email and advised that as I was experiencing a heavy workload at the time, I would not be able to properly respond to his request until the following week.
  1. On 24 November 2015, Mr Pye responded by email asking that I please do it ‘just as soon as you can.’ 
  1. On 8 December 2015, having properly reviewed the material (including the photographs) that had been provided to me by Mr Pye, I realised that the built form of the sign was outside of my usual line of work as an architectural draftsman and building designer.  I advised Mr Pye by way of email that day that:

 13.1 ‘This sort of drawing really is out of my line’;

 13.2 ‘It req’s Engineering drawings’;

13.3 ‘Forget about the m³ calculations for components, its irrelevant as its not the right material description’; and

13.4 ‘Anything to do with the construction/footings and specs will need Engineers drawings.’

  1. I considered that the above stated matters were standard industry practice for a structure of the kind present on the land, and would usually be undertaken prior to and as part of any Council application for such a structure.
  1. Document ‘B’ to Exhibit E ‘BAH-01’ to this affidavit is a true copy of a chain of emails passing between Mr Pye and myself, relevant to the above sequence of events.
  1. Also, on 8 December 2015 I sent Mr Pye a single A3 front elevation diagram of the sign, with the dimensions present on that diagram having been provided ‘verbally’ to me by Mr Pye.  At no stage did I attend at the land for the purposes of measuring the sign to verify the dimensions provided to me by Mr Pye.  I was not aware that development approval had been issued by the Council for the sign, and I was not advised of this fact by Mr Pye or given a copy of any approval.

 Document ‘C’ to Exhibit ‘BAH-01’ to this affidavit is a true copy of my email to Mr Pye of 8 December 2015 that includes the single A3 front elevation diagram of the sign that I had prepared.”

  1. [28]
    The emails attached to the affidavit confirm Mr Hussey’s description of his contact with Mr Pye.
  1. [29]
    Mr Pye responded to Mr Hussey’s affidavit with another of his own filed by leave at the hearing, and sworn that day. Paragraphs 3-7 comprise a complex explanation as to why he may not have had access to the emails at the time he swore his first affidavit. He does not directly contest the accuracy and the contents or the emails, or that he was the author of the messages sent to him by Mr Hussey.
  1. [30]
    His assertion is that he had a general discussion with Mr Hussey about condition 2 at the same time that he was organizing to list Mr Hussey’s property. It appears to be the case that Mr Hussey is mistaken about listing his property in mid-2015. The records produced by Mr Pye suggest that they first met about this issue in late February 2015.
  1. [31]
    The significance of the timing is that in October/November 2015, Mr Pye was negotiating with the Council about the sign. Indeed, on 12 November 2016, Council made an offer after a meeting with Mr Pye and his wife, the Mayor, Councillor Petersen and Ms Verekar, the then Director of Planning and Development. Although marked “without prejudice”, there is no issue about this, as Mr Pye annexed the same letter to his first affidavit and said this:

“31. By letter dated 12 November 2015, the Applicant made an offer to remove the sign whereby the Applicant would reimburse us up to $5000 for the cost of the purchase, erection and construction of the existing sign, the dismantling and removal of the existing sign, and the cost of the purchase and erection of a new sign 0.3m² in size.  Exhibit ‘IDP-10’ is a true copy of the letter from the Applicant dated 12 November 2016.

  1. My wife and I rejected the Applicant’s offer, as $5000 would not cover the cost of the design and erection of the sign, its removal and the replacement of a new sign.  I would expect that the costs of preparing and erecting the current sign, removing the current sign and then erecting a new sign would be at least $6000.  We are also concerned that the removal of the sign would adversely impact upon the increased patronage we have experienced since the sign was erected.”
  1. [32]
    He does not annex to his affidavit his reply to that letter, which is at 13-15 of Ms Stenholm’s affidavit dated 16 November 2016. The reply made it clear that the respondent regarded the decision notice as a development permit that was “final and reliable.”
  1. [33]
    At its ordinary meeting on 18 November 2015, Council made the following resolution:

“That with respect to the development approval for the Material Change of Use (Home Based Business) at 106 Old Marlborough Road, Gympie, described as Lot 3 on MPH 24229, Council:

1. Reissues the Decision Notice for the development with an amended condition 2, which states:

Any signage is limited to a single un-illuminated sign bearing the name and nature of the activity, occupation or business and not exceeding 0.3m².

2. Advises the applicant the advertising sign erected on the property does not have a development approval for operational work or building work and is to be removed from the premises within 30 business days.”

  1. [34]
    It is common ground that as a consequence of that resolution, Ms Stenholm issued a decision notice on 19 November 2015 which was in the same terms as the earlier notice (dates excluded), except condition 2 now accorded with A07.4.
  1. [35]
    The respondent did not remove the sign, so a Notice to Show Cause was delivered to her on 29 January 2016. Mr Pye consulted a town planner in Gympie, who responded on his wife’s behalf on 26 February 2016. The effect of that response was to maintain the validity of the earlier decision, and to assert that the 19 November decision was a nullity. 
  1. [36]
    Mr Pye continued to make representations to the Mayor. On 1 March 2016, he emailed the Mayor in similar terms to his expert’s advice, and attached documents including a copy of Mr Hussey’s A3 front elevation referred to in paragraph 18 of his affidavit, but with a number of significant changes which Mr Pye said he made to the document. Inserted on the right hand side of the plan he sent the Mayor are a series of volumetric calculations.
  1. [37]
    As Mr Hussey says in his affidavit, in the course of his 16 years as an architectural draftsman and building designer, he has never had the need to express the dimensions for a plan in volumetric terms.
  1. [38]
    He also swears (at paragraph 23 of his affidavit) that the exhibits to his affidavit are “The only documents on my file from my dealings with Mr Pye,” relating to the sign.
  1. [39]
    I have referred earlier to Mr Pye’s latest affidavit in which he spends some time explaining why he can no longer retrieve his emails. I do not understand Mr Batty to be submitting that Mr Hussey has not disclosed or has forgotten other emails that are relevant to the sign, as opposed to communications involving the dealings with respect to his house.
  1. [40]
    The contemporaneous emails annexed to Mr Hussey’s affidavit speak for themselves. I accept his evidence that the first time he became aware of the sign was on 23 November 2015, at a time when Mr Pye was aware of the 19 November decision notice, and the Council direction to remove the sign within 30 days.
  1. [41]
    It is clear from Mr Pye’s first affidavit that his primary reason for resisting removal of his sign was financial. After the sign was erected on 24 May 2015 the number of sales increased by a factor of 50 per cent.
  1. [42]
    In his first email to Mr Hussey on 24 November 2015, Mr Pye enclosed pictures of the actual sign, and asked Mr Hussey to “keep the plan date as 2 April 2015,” and “all specifications are calculated as cubic”. In his email to Mr Pye on 8 December 2015, Mr Hussey informed him that he will “do a quick architectural”; and “forget about all the metre cubed calculations for components, it’s irrelevant as it’s not the right material description”.
  1. [43]
    I agree with Mr Loos that Mr Hussey is an independent witness with no interest in the outcome of the proceeding. He was subpoenaed to produce his file and to give evidence. He was a convincing witness and I accept his evidence.
  1. [44]
    Mr Pye was not a convincing witness. He was well aware of the requirements of AO7.4 at the time he made the development application on behalf of his wife. I reject his constant refrain that he did not know that condition 2 in the first decision notice contained an obvious typographical error. It is clear in his first affidavit that he attempted to bolster his case by implying that Mr Hussey had supported his view that a sign in cubic measurement was appropriate. It is clear that Mr Pye asked Mr Hussey to back-date the plan to April 2015, to the time when the respondent and he decided to build the sign. In fact, the truth is that after Mr Pye first consulted Mr Hussey in November 2015, Mr Hussey completely rejected any notion of a plan being expressed in volumetric terms. At the very best, when Mr Pye altered the A3 plan sent to him in December 2015, and sent it to the Mayor in March 2016, he was acting disingenuously and attempting to bolster his view of the original condition 2. The evidence of Mr Hussey demonstrates that Mr Pye’s contention that he “never doubted that condition 2 was the Council’s intended outcome,” was nothing more than a charade motivated by profit.
  1. [45]
    On the 23 March 2016 Ms Stenholm caused an Enforcement Notice to be issued to the respondent pursuant to ss 578 and 580 of the SPA. The respondent did not exercise her appeal rights pursuant to s 473 of the SPA.
  1. [46]
    It is not really an issue that the sign as presently constructed is contrary to condition 2 in the 19 November decision notice. Mr Batty does submit there is no evidence of its actual dimensions, but it is clearly much larger than 0.3m2.  Even doing a rough calculation using the measurements on Mr Hussey’s draft plan indicates that the surface area of the sign exceeds 0.3m2. 
  1. [47]
    The threshold legal issue concerns the validity of the November decision notice upon which the Council application to this Court necessarily rests.

Discussion

  1. [48]
    The relevant statutory provisions are ss 580, 601, 604, 605 and 606 of the SPA. Section 580(1) of the SPA provides:
  1. (1)
    A person must not contravene a development approval, including any condition in the approval.

Section 601 of the SPA permits at subsection (1)(a), a person to bring a proceeding in the court “for an order to remedy or restrain the commission of a development offence”.  Section 605 of the SPA states that the court may make an enforcement order if the court is satisfied that the offence has been committed. 

  1. [49]
    It is not an issue that Council bears the onus of proving that the respondent has committed a development offence, and that due to the quasi criminal nature of the proceedings the standard of proof is that referred to in Briginshaw v Briginshaw (1938) 60 CLR 336.  It is appropriate that the scale be set at the higher end of the Briginshaw scale.  It is also not in contention that once an entity in the position of a Council has made a decision to approve, and communicated that approval to the applicant, there is no power in Council to revoke that approval or to interfere with or encumber its exercise of discretion by the addition of further conditions:  see for example Wilson and Anor v Hervey Bay Shire Council and Anor (1978) 36 LGRA 329 at [332]-[334].  It is also not in issue that in construing a town planning permit, it is to be construed on its terms without reference to what the Council may have intended or what the applicant understood.  Usually it is not permissible to take into account extrinsic evidence in construing a town planning permit.  A number of these authorities are referred to in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LEGRA 411 (QCA). 
  1. [50]
    Those authorities, to do with construction of a planning permit, are generally concerned with ambiguity in a Council’s decision, and not about correcting errors in the notification of decisions.
  1. [51]
    Council’s position in this case is that what occurred here is a clear error, indeed an obvious typographical error, not in the decision made by Ms Fuller on behalf of Council, but in the subsequent notification of that decision.
  1. [52]
    I agree with Mr Loos that the situation in Bayside Consulting Pty Ltd v The Caboolture Shire Council [2006] QPELR 397 is analogous to the factual situation here. 
  1. [53]
    In Bayside, Council had decided at ordinary meeting to approve an application for subdivision subject to conditions.  A Council officer, who had prepared a planning report for Council prior to the meeting, sent the decision notice to Bayside but, due to an oversight, one condition added by Council in its meeting, was not included.  Council officers realised the error, and soon after the Council sent Bayside a letter entitled “Amended Decision Notice – Development Permit,” which included the omitted condition.   
  1. [54]
    While confirming the principle that Council cannot amend a decision notice once notified, Skoien SDCJ held, by reference to Collins v Moreton Shire Council (1976) 35 LGRA 174, that in sending the second notice to Bayfield, Council was not amending its decision notice, rather it was accurately notifying its decision. 
  1. [55]
    Collins v Moreton Shire Council was a decision of the Queensland Full Court.  In that case, conditions as amended by Council in debate at meeting, were not accurately recorded in the minute book, as a result of which when Council notified a number of objectors of its decision to grant a permit, it set out the conditions that were incorrectly recorded in the minute book.  When the error was realised, a further letter was sent to the objectors saying that the application had been further considered, and setting out the conditions as agreed by Council in its first meeting. 
  1. [56]
    The primary judge accepted the evidence of the Shire Clerk that in the second letter it was wrong to say that the application had been further considered, as a final decision had been made in the earlier meeting, and the first letter did not accurately notify the actual decision of the Council because of the error in the minute book.
  1. [57]
    That appeal was decided on other grounds not relevant here, however I respectfully agree with Skoien SDCJ that the effect of Lucas J’s reasons on behalf of the court in that case is that the second letter was a valid notification of conditions, and not an attempt to change Council’s original decision.
  1. [58]
    Mr Batty sought to distinguish Bayside by submitting that what occurred there was quite different to the present situation as, “A complete set of development approval conditions were not attached to the Council’s decision in the matter”.  As can be seen from the analysis above (see [5] of Bayside at 398), what was omitted “by an oversight” was only condition. 
  1. [59]
    In my opinion this is the clearest case in which Council, through its lawful delegate Ms Fuller, made a decision which included condition 2 in terms to accord with AO7.4, and that what occurred was a simply typographical error in the notification of the decision notice incorrectly dated 29 March 2014; but sent on or about 29 April 2014.
  1. [60]
    It follows that the decision notice sent on 19 November 2015 was a valid notification of Council’s actual decision, and did not constitute an amendment of its earlier decision.
  1. [61]
    Mr Batty however had another string to his bow, although this string is not as strong and is not supported by any authority. As he correctly notes, on 18 November 2015, Ms Fuller was on leave, and that it was the Council which made the decision on that day. He argues therefore that as she was not physically present at the time of the Council meeting on 18 November 2015, Council could not issue lawfully a valid decision notice. He submits that it must be a “condition precedent” to Council being satisfied that there was indeed an error in the notification in 2014 as opposed to an error on the part of the decision maker, for Ms Fuller to be physically present at the time of the November meeting. There is no substance in this point. In making her decision in April 2014, Ms Fuller was acting as the Council by delegation, the lawfulness of which is not challenged. It would lead to absurd results if Mr Batty’s proposition is correct. Both “decisions” were of Council. The correct decision was notified to the respondent on 19 November 2015.
  1. [62]
    It follows therefore that the sign erected by the respondent is greater than 0.3m2 and that she has therefore contravened condition 2 of the Development Permit which contravention continues.  I am satisfied to the relevant standard that she has therefore committed a development offence pursuant to s 580(1) of the SPA.  Whether or not the enforcement orders sought by Council in paragraph 1 of its originating application are to be made is in the discretion of the Court. 

Discretionary matters

  1. [63]
    It is worth recalling the guidelines for the exercise of discretion in cases such as this, promulgated by Kirby P (as His Honour then was), in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at [339]-[341].  These guidelines have found favour in this court e.g. Caloundra v Taper Pty Ltd and Anor [2003] QPELR 558 at [581]-[582], and the Court of Appeal:  Mudie v Gainriver Pty Ltd and Ors [2001] QCA 382. 
  1. [64]
    In his submission, Mr Batty refers to Glastonbury and Anor v Townsville City Council and Ors [2012] QPELR 216 in which Durward SCDCJ collected together a number of these principles.  At paragraph 33 of his written submissions, Mr Batty summarises what Judge Durward said at page 233-234 but, not surprisingly, has extracted from the principles those that he regards as applicable in his client’s case.  In addition to those principles referred to by Mr Batty, I would add the following:
  1. The orders sought are not enforcement of a private right; rather it is enforcement of a public duty imposed by statute whereby Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment; 
  1. Unless the legislative purpose of upholding the integrated and coordinated nature of planning the law is upheld, equal justice may not be secured.  Private advantage may be won by a particular individual which others cannot enjoy; 
  1. Where the application (for enforcement orders) is made by Council, a court may be less likely to deny equitable relief than it would in litigation between private citizens.  This is because a Council is seen as the proper guardian of public rights, and its interest is protective and beneficial, not private or pecuniary.  Courts should however be alert to evidence of “insensitive, unthinking administration” by Council and/or its officers; 
  1. Where the relief is sought against a “static” development (i.e. the erection of a building) which, once having occurred can only be remedied at great cost of inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law.  This observation is simply a reflection of the judicial perception in balancing, on one hand, the public interest and equal compliance with the law and, on the other, the degree of irremediality occasioned by the breach and the expense or inconvenience which would follow the law’s enforcement. 
  1. [65]
    In my opinion this is the clearest case in which Council should have the orders it seeks in paragraph 1 of its Application.
  1. [66]
    As Mr Loos submits, the evidence establishes that once Council realised its error (i.e. after the non-complying sign was erected in May 2015), Council moved quickly and it took responsibility. On 12 November 2015 Council offered the respondent a solution, whereby the sign would be removed and the Council would pay her expenses up to $5,000 for the money she had spent on the sign, its removal and the purchase and erection of a compliant sign. As I have noted, Mr Pye rejected that offer. He did not make any counter offer in terms of the quantum of his wife’s expenses. He certainly did not mention $6,000 as he does in paragraph 32 of his November affidavit.
  1. [67]
    Also relevant is my conclusion that the respondent always understood that the reference to cubic metres was an error. Her actions since, as demonstrated by Mr Pye’s evidence, have been to cynically take advantage of an obvious error for financial gain, a gain that is continuing.
  1. [68]
    The evidence about other allegedly non-complying signs in the area of Mr Pye’s house is of little weight, as he does not in any way attempt to establish the actual surface area of the signs. Ms Fuller’s affidavit sworn on 16 November 2016 and Ms Stenholm’s affidavit sworn the same day, both of which were filed by leave at the hearing, greatly undermine the weight which I place on Mr Pye’s evidence about other allegedly non-compliant signs. In my view, this issue is of no or very little relevance in relation to the exercise of discretion, because of the state of the evidence.
  1. [69]
    Mr Batty relies on the evidence from his client that removal of the sign now would result in financial loss. Mr Pye seemed to be suggesting – rather dramatically when one has regard to the number of sales attracted by the business without a sign – that an order for removal of the sign would ruin the business. 
  1. [70]
    This argument falls away in light of my conclusions about Mr Pye’s state of mind at all material times.
  1. [71]
    Mr Batty sensibly does not pursue any argument to the effect that Council has unreasonably relayed. His argument that the respondent has been denied appeal rights does not have any weight in light of my conclusions that at all times she knew that the original permit contained an error, and the permit validly notified in November 2015 was exactly what she had applied for.
  1. [72]
    At 61(d) of his submission he writes:

“Mrs Pye has agreed to the sign being removed and replaced with a sign not opposed by the Council on the basis that their costs are met by the Council.  However such an offer has been declined.”

  1. [73]
    This submission refers to an offer made only on 18 November 2016, and after, I infer, the respondent’s solicitors had been served with Mr Hussey’s affidavit.
  1. [74]
    The offer is also conditional upon each party paying their own costs.
  1. [75]
    The offer (absent the reference to costs) is strikingly similar to the written offer made to the respondent by Council in November 2015 before these proceedings had been commenced. 
  1. [76]
    Rather than favour the refusal of Council’s order, the respondent’s last minute attempt to achieve exactly what Council attempted to achieve 12 months earlier, favours the Council’s position.
  1. [77]
    Mr Batty submits there is no evidence, particularly from expert witnesses, that the development offence is having an unacceptable impact on the community at large. There is evidence of one objection from an unidentified member of the public. The submission however overlooks the principles to do with unequal justice and the enjoyment of private advantage not enjoyed by others, and also overlooks the general need for planning law to be enforced in an integrated and coordinated way. It also overlooks the important fact that the respondent still has the benefit of a permit including a condition relating to a sign. I agree however that this is not a serious breach of the planning law. However I am quite satisfied that it is deliberate, and has continued in the face of firstly an attempt by Council to resolve the matter on reasonable terms, and then in the face of the enforcement proceedings.
  1. [78]
    His argument directed at the undermining of confidence in the IDAS system falls away in light of my conclusions about his client’s state of mind. As I have noted the respondent’s breach has been deliberate and cynical.
  1. [79]
    It follows that Council is entitled to its orders. As indicated at the hearing, before making final orders, particularly in relation to costs, I will allow each party to consider these reasons and I invite submissions from both parties as to the orders to be made including costs.
  1. [80]
    I have received and/or heard submissions from the parties on the question of costs. Council applies for indemnity costs. The respondent submits that there be no order as to costs. S.457(9) applies to proceedings of this nature, and provides that costs are in the discretion of the court, but follow the event, unless the court orders otherwise. This position is different from other proceedings governed by sections 457(1), (2) and (3): Southern Downs Regional Council v Kemglade Pty Ltd (2014) QPELR 436 at [8] to [10].  The applicant must show some “special or unusual features” or “special circumstances” “to set it aside from the normal case”: see Paroz v Paroz & Ors [2012] QSC 157 per Peter Lyons J at [4] to [5].  Here the applicant relies on the features referred to in these reasons at [36]; [40], [41]; [44], [66] and [67].  It submits that in particular, my conclusions at [67], sets this case apart from the norm.  In light of my factual findings, the respondent never had any prospect of successfully defending the enforcement proceedings by endeavouring to distinguish Bayside.  I agree with Mr. Loos that had it not been for the concocted position of the respondent, these proceedings would have been unnecessary.  The consequent delay has been to the financial benefit of the respondent.
  1. [81]
    It is not correct as Mr. Batty submits, or seems to submit, that the proceedings had their genesis in a mistake made by Council. Council recognised its mistake and attempted to reasonably compromise the matter well before these proceedings were commenced. Since I provided the draft reasons to the parties on 6 December 2016, the respondent has indicated that she is prepared to give an undertaking to the Court to remove the sign on or before the 23 December 2016. The undertaking is dated 15 December 2016.
  1. [82]
    In my opinion, although relevant to the discretion, this fact is marginally relevant only. Throughout the proceedings including the hearing, the respondent maintained an entirely untenable position, primarily, I have found, for financial gain. An undertaking given so late, in the circumstances, has little bearing on the exercise of the costs discretion.
  1. [83]
    Mr. Batty refers also to [77] of the reasons. I think his argument ignores the reality, and that is his client chose to strenuously defend the proceedings, and to maintain an entirely untenable position even when faced with the evidence of Mr. Hussey. His client’s late offer to settle (after he had notice of Mr. Hussey’s evidence) is relevant but, as I have noted, by then significant costs had been incurred, and the offer did not include an offer to pay Council’s costs.
  1. [84]
    Mr. Batty’s submission that the removal of the sign will be a significant impediment on the on-going operation of the business, I think ignores the reality that by her delay, the respondent has enjoyed significant profit from a sign which was non-compliant. As I note in [69] above, Mr. Pye’s own evidence suggests that the business was doing quite well even without the sign. Mrs. Pye still has the benefit of condition 2, if she chooses to erect a compliant sign.
  1. [85]
    I am satisfied that this is a clear case in which indemnity costs should be ordered in favour of Council to include its investigation costs.
Close

Editorial Notes

  • Published Case Name:

    Gympie Regional Council v Pye

  • Shortened Case Name:

    Gympie Regional Council v Pye

  • MNC:

    [2016] QPEC 65

  • Court:

    QPEC

  • Judge(s):

    Robertson DCJ

  • Date:

    16 Dec 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bayside Consulting Pty Ltd v The Caboolture Shire Council [2006] QPELR 397
2 citations
Jump To
Cite 1 - [2006] QPELR 397
Cite 2 - [2006] QPELR 397
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Caloundra City Council v Taper Pty Ltd & Anor (2003) QPELR 558
2 citations
Jump To
Cite 1 - (2003) QPELR 558
Cite 2 - (2003) QPELR 558
Collins v Moreton Shire Council (1976) 35 LGRA 174
2 citations
Jump To
Cite 1 - (1976) 35 LGRA 174
Cite 2 - (1976) 35 LGRA 174
Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LEGRA 411
2 citations
Jump To
Cite 1 - (2016) 212 LEGRA 411
Cite 2 - (2016) 212 LEGRA 411
Glastonbury & Anor v Townsville City Council & Ors [2012] QPELR 216
2 citations
Jump To
Cite 1 - [2012] QPELR 216
Cite 2 - [2012] QPELR 216
Mudie v Gainriver P/L[2002] 2 Qd R 53; [2001] QCA 382
2 citations
Jump To
Cite 1 - [2001] QCA 382
Cite 2 - [2001] QCA 382
Southern Downs Regional Council v Kemglade Pty Ltd (2014) QPELR 436
2 citations
Jump To
Cite 1 - (2014) QPELR 436
Cite 2 - (2014) QPELR 436
Suncoast Pastoral Company Pty Ltd v Coburg AG (No 2) Pty Ltd [2012] QSC 157
2 citations
Jump To
Cite 1 - [2012] QSC 157
Cite 2 - [2012] QSC 157
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
2 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335
Wilson v Hervey Bay Shire Council (1978) 36 LGRA 329
2 citations
Jump To
Cite 1 - (1978) 36 LGRA 329
Cite 2 - (1978) 36 LGRA 329

Cases Citing

Case NameFull CitationFrequency
Gold Coast City Council v Adrian's Metal Management Pty Ltd [2018] QPEC 452 citations
Lalis v Bundaberg Regional Council [2018] QPEC 262 citations
Moreton Bay Regional Council v Giffin [2022] QPEC 203 citations
1

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