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Gold Coast City Council v Bush QPEC 29
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Gold Coast City Council v Bush & anor  QPEC 29
GOLD COAST CITY COUNCIL
IRENE MARINA BUSH
4382 of 2016
Planning and Environment
24 April 2017 (ex tempore)
24 April 2017
Enforcement orders made
PLANNING AND ENVIRONMENT – ENFORCEMENT – whether construction of structures assessable development – parties – discretion to make orders
K W Wylie for the Applicant
The second respondent appeared on his own behalf and on behalf of the First Respondent
McCullough Robertson Lawyers for the Applicant
- HIS HONOUR: This is an application for enforcement orders against the first and second respondents, in respect of a property at 33 Anthony Drive, Miami on the Gold Coast. The first respondent is the owner of the land. The second respondent is her son who lives with her and is her carer. By way of this proceeding, the council seeks orders requiring the removal – or regularisation of certain structures, which it says were constructed without the necessary development permits and which are dangerous. The structures are a carport structure attached to the dwelling and facing Yvonne Court, and a timber supporting structure for photovoltaic solar panels constructed on the roof.
- The proceeding is brought pursuant to s 604 of the Sustainable Planning Act 2009. In order to make an enforcement order, the court must be satisfied, relevantly, that an offence has been committed. The offence, which is alleged, is constituted by carrying out an assessable building without a permit. In order to establish, to the requisite standard, that an offence has been committed, the time when the work occurred must be established and that, as of that time, it was an offence.
- The council has established, through aerial photograph, that the structure which supports the photovoltaic cells was constructed in November 2011, whilst the carport structure was constructed between the 26th of June 2008 and the 30th of April 2009. Consequently, the structure supporting the photovoltaic cells was constructed during the life of the Sustainable Planning Act 2009. Whereas the construction of the carport dates back to the Integrated Planning Act. By virtue of s 832 of the Sustainable Planning Act, however, the proceeding may be started under the Sustainable Planning Act, given that immediately before its commencement, as a proceeding could have been commenced under the Integrated Planning Act.
- The relevant provisions in relation to the requirement to have obtained a permit for the construction of these structures are traversed in the report of Mr Moran and accredited building certifier, with the Building Services Authority and Director of Phillip Chung Associates Pty Ltd. Mr Moran has 26 years’ experience in building, surveying and inspecting.
- The construction of the structure to support the photovoltaic cells involves building work, as did the construction of the carport. The building work for a structure to support the photovoltaic cells was development. Building work is assessable under the Building Act 1975 unless it is self-assessable under Part 2 of Schedule 3 of the Sustainable Planning Regulation 2009 or declared under the Building Act to be exempt. The development of the structure was not self-assessable under Part 2 of Schedule 3. Insofar as exemptions under the Building Act are concerned, section 20 of the Building Act provided that all building work is assessable unless it is exempt under section 22 of the Building Act, or self-assessable under the Planning Act or under s 21(2) of the Building Act.
- The Building Act prescribes exemptions in Schedule 2 of the Building Regulation 2006 and none of those apply to the structure which supports the photovoltaic structure. Insofar as s 21(2) of the Building Act is concerned, that section prescribes self-assessable development by reference to Schedule 1 of the Building Regulation 2006 and none of those items are engaged.
- Insofar as the classification of the structure supporting the photovoltaic cells, the report of Mr Moran expresses the opinion that the structure is a Class 10b structure, or alternatively, is a special structure and it is unnecessary to determine which, as both are assessable. I agree with his view.
- Insofar as the carport structure is concerned, Mr Moran rightly expresses the opinion that that is Class 10a structure. Its construction involved both building work and development as those terms were described in the Integrated Planning Act. The corresponding provisions under the Integrated Planning Act, again required reference to the Building Act, which in turn referred to the Building Regulation and relevantly to the self-assessable building work for a Class 10 structure, being that which does not exceed certain parameters described in the Regulation. The subject carport does so and, accordingly, was assessable.
- Section 22 of the Building Act also declares building work prescribed under regulations as exempt. Schedule 2 of the Regulation prescribes the exempt building work, and none of the relevant provisions apply to the carport structure.
- Accordingly, both structures required an approval, and there was no approval in force for either of them. The development offence was committed by undertaking the works without an approval.
- It is necessary to identify whether the respondents committed the offence. There is no real dispute about that in relation to the photovoltaic cell, the structure. Mr Bush, who appeared on his own behalf and his mother’s behalf today, readily accepts that his mother was the owner of the house at the time and that he was involved with his mother in arranging for that work to take place. In fact, he was the one who arranged the contractors. Although he points out that the work was actually done by contractors and although there was government money apparently available which paid for it, nevertheless his mother and he are responsible for the actions of their agents who did the actual construction. It is evident that both the respondents were relevantly responsible for the offence. Neither Mr Bush or Mrs Bush put on any affidavit material which disclaimed responsibility for that structure being erected on the roof of the house.
- The situation with respect to the carport is a little different in that, despite putting on no affidavit material, Mr Bush asserted from the bar table that it was his mother’s predecessor in title who was responsible for causing the carport structure to be erected. The material from the council showed that his mother was relevantly recorded in the records of the council as being the owner at the relevant time. On the hearing of this matter, an affidavit by Mrs Bush, which was sworn in Supreme Court proceedings, was tendered. I will mark it as exhibit 1.
- Despite Mr Bush’s protestations from the bar table that his mother was not in possession of the property until a later time, it appears from that affidavit, that his mother relocated to the subject property during October and November of 2007. Not only that, but the affidavit goes on to say that the predecessor in title had left the property well before the 2nd of July 2008. Given that the construction of the carport started sometime after the 26th of June 2008, it would appear most unlikely that the predecessor in title was in possession of the property at the time the carport was constructed. Rather, it seems likely that Mrs Bush was, as the person who had purchased the property and the person who was then in possession to the exclusion of the predecessor, the one who facilitated the construction of the carport, at least by allowing and probably also causing that construction to take place and so was, at the very least, a party to that offence, but more probably was the one who had indeed caused it to be constructed.
- Insofar as Mr Bush’s involvement otherwise is concerned, I have already noted that he resides at the property with his mother, is his mother’s carer and readily accepts that he was involved with the arranging for the contractors for the structure to support the photovoltaic cells. He has put on no affidavit material to suggest he was not otherwise a party to each of the development offence. Further, as was pointed out in the applicant’s submissions, Mr Bush appears to have been acting on behalf of his mother not only in these proceedings but with respect to these unlawful structures for many years. So much appears from what he has said in open Court, including on the 15th of February 2017. I also note that, in his oral submissions today, Mr Bush said words to the effect that he did not want to make a big point about who was responsible for the building of the structures because, they being on the property of he and his mother, he claims that he is willing to do what is required to achieve compliance.
- I am satisfied that the Court has, in the circumstances, jurisdiction to make enforcement orders. Those orders are, of course, discretionary. Mr Bush says, from the bar table today, that he and his mother are happy to do what is required to achieve compliance and complains that some attempt to prepare a necessary application was delayed by some difficulty in getting a copy of the building plans for the house from the council. It appears that an earlier request for that may not have been responded to positively because it was not accompanied by the appropriate fee. Nevertheless, Mr Bush accepts that he has now had the plans for some time and has not got around to making any application. Further, I note that affidavit material from the council suggests that such a document was not necessary in order to make an application, had Mr Bush or his mother wished to do so in the past.
- I acknowledge that the structures have been in place for a relatively long period of time, but it is important to recognise that they, nevertheless, pose a significant risk. The affidavit of Mr Moran establishes, insofar as the structure which supports the photovoltaic cells is concerned, that it has been built with timber fence palings that are not stress-graded and will have an inadequate structural performance. Further, there is a lack of bracing or tie downs. All this could result in partial or complete structural failure of the supporting structure for the solar panels, because of the live loads imposed. The lack of adequate tie down may also result in part or all of the structure separating from the roof in high-wind conditions, potentially causing a danger both within and outside of the allotment. Further, the existing house frame was not designed to support the supporting structure. Damage to the existing house frame could result in the event of failure of the supporting structure for the solar panels.
- Insofar as the carport is concerned, Mr Moran was unable to confirm if fixing of the steel roof elements to the brick columns is suitable, whether the brick columns are suitably reinforced or have suitable footing, whether the size, profile and structural grading of the steel is appropriate and whether the welding provides sufficient tie down. He was, however, able to detect some areas where there was a lack of tie down, and in his view, the consequences of that insufficient tie down may include partial or total separation of all or part of the structure from the connections to the ground in high-wind conditions, resulting in damage to the dwelling and a risk of injury to persons and to property other than the subject house. In his view, the carport structure would require alterations to achieve compliance before the permit could issue for that structure.
- The fact that the structures are not only unlawful, as having been built without appropriate approvals, but represent an ongoing safety risk, notwithstanding that that risk has not been realised for some time, favours the exercise of discretion to make appropriate orders.
- It was pointed out on behalf of the council that if an application were made for approval of the structure supporting the photovoltaic cells, that may run into difficulties in terms of getting approval not simply because of structural issues, but also because of amenity issues. That would be a matter, however, to be considered at the time of any application.
- Compliance with enforcement orders would, of course, bear some cost to the respondents, but I do not think that that is unjust. Mr Bush acknowledged that the structures were at least unfinished as he put it. He did not object to having to address the issues that have been raised in order to try to achieve compliance.
- Insofar as the photovoltaic cell structure is concerned, it appears to be the least likely to be able to gain some sort of approval, but even if it is unable to be brought up to scratch, what is unlawful is the supporting structure. The photovoltaic cells could presumably be recovered and reused in some way.
- In the circumstances, it seems to me to be appropriate in the exercise of discretion to make enforcement orders. I will now consider the terms of those orders.
- Published Case Name:
Gold Coast City Council v Irene Marina Bush and Ian Bush
- Shortened Case Name:
Gold Coast City Council v Bush
 QPEC 29
24 Apr 2017