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Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 2)[2021] QPEC 23

Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 2)[2021] QPEC 23

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 2) [2021] QPEC 23

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant)

v

D AGOSTINI PROPERTY PTY LTD

(first respondent)

13 INVESTMENT COMPANY PTY LTD

(second respondent)

ROSS WILLIAM MAUDSLEY & MARYA VERONICA MAUDSLEY

(third respondent)

ROSSPROP PTY LTD

(fourth respondent)

ONCE UPON A TIME ENTERPRISES PTY LTD

(fifth respondent)

CEMONE LEITH TIRA

(sixth respondent)

XYCON PTY LTD,  STEVEN DOUGLAS MOODY, HORIZON GROUP INVESTMENTS PTY LTD

(seventh respondent)

LMFC HOLDINGS PTY LTD AS TRUSTEE

(eighth respondent)

MARION JOSEPHINE CRUTTENDEN

(ninth respondent)

VERA BRAZEL & BERNADETTE ANNE MOORE

(tenth respondent)

PRICELESS & UNIQUE ENTERPRISES PTY LTD

(eleventh respondent)

GARRY ANDREW CAMPLIN & KAREN PAMELA CAMPLIN

(twelfth respondent)

JOHN ARTHUR HOZIER & DENISE BETTY HOZIER

(thirteenth respondent)

RL & CG THOMPSON PTY LTD AS TRUSTEE

(fourteenth respondent)

SHUKRY SAHHAR & HELEN SAHHAR

(fifteenth respondent)

KAY ELIZABETH SOMERVILLE

(sixteenth respondent)

ROBERT JOHN BALMER

(seventeenth respondent)

JAMES WILLIAM BROWN

(eighteenth respondent)

DIDIER MARIE LAROSE & MAEVA JOSEE ROSE-MAY LAROSE

(nineteenth respondent)

MICHAEL JAMES HARRIS & YASMEEN LIZA HARRIS

(twentieth respondent)

VIVIENNE ELIZABETH GREEN, PHILIP JOHN GREEN, MICHAEL ESKANDER & OLIVIA ESKANDER AS TRUSTEES

(twenty-first respondent)

GREGORY JOHN BOTT & LINDA JULIE BOTT

(twenty-second respondent)

HOMESHIELD THE HOME IMPROVERS (SOUTHSIDE) PTY LTD

(twenty-third respondent)

KEVIN BRUCE FULFORD

(twenty-fourth respondent)

ADRIAN RICHARD ARTHUR WATERS AS TRUSTEE

(twenty-fifth respondent)

RICHARD ANTHONY GARDNER & FIONA HEATHER HORNERY

(twenty-sixth respondent)

RAOUF NASEIF ISHAG GEORGE

(twenty-seventh respondent)

PETER JOHN JACKSON & LEAH JANE JACKSON AS TRUSTEES

(twenty-eighth respondent)

KELLEY SUE LACY

(twenty-ninth respondent)

ALISON LOUISE BERNER

(thirtieth respondent)

AZTEC DEVELOPMENTS (QLD) PTY LTD AS TRUSTEE

(thirty-first respondent)

WILLIAM ANTHONY WELFORD PEGLER & ELIZABETH JEAN TOWNS

(thirty-second respondent)

STUART REGINALD SIMMONDS & VERITY LOUISE SIMMONDS AS TRUSTEES

(thirty-third respondent)

DENISE KAY RUHLE

(thirty-fourth respondent)

DAVID NEVILLE RICHARD HANLIN, DULCIE LOUISE HANLAN & RICHARD HENRY HANLIN AS TRUSTEES

(thirty-fifth respondent)

ANTHONY JOHN WEST & SANDRA DIANNE WEST

(thirty-sixth respondent)

RCR DEVELOPMENTS PTY LTD

(thirty-seventh respondent)

REX WILLIAMS BARNES & JUDI MARGARET BARNES

(thirty-eighth respondent)

ROBERT RAYMOND SPRIGGS & BRENDA JOY STICKLER

(thirty-ninth respondent)

BRONWYN LOUISE HOWE & PAUL ALEXANDER HOWE

(fortieth respondent)

GRAHAM IAN POWLEY

(forty-first respondent)

MICHAEL LOUIS WOODBURY BUGLER

(forty-second respondent)

GARY WAYNE JONES & LEE MARGARET JONES

(forty-third respondent)

GARY EDWARD PENROSE

(forty-fourth respondent)

BRIAN JOHN PEGLER & NAOMI LORRAINE PEGLER

(forty-fifth respondent)

BODY CORPORATE FOR PELICAN WATERS RESORT COMMUNITY TITLES SCHEME 34816

(forty sixth respondent)

FILE NO/S:

09/19

DIVISION:

Planning & Environment

PROCEEDING:

Application in pending proceeding

DELIVERED ORALLY ON:

5 February 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

2 February 2021

JUDGE:

Cash QC DCJ

ORDERS:

  1. The applicant is to prepare an amended draft order to be initialled in chambers.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – Where the applicant seeks to substitute respondents in the proceedings – where the applicant seeks final orders restraining only some respondents in the proceedings – where the respondent submits a procedural defect in the application – where the respondent further submits the Court lacks the power to make the orders sought – where the respondent further submits against the making of final orders prior to the further hearing of the proceeding.

LEGISLATION:

Planning and Environment Court Act 2016 (Qld), s 10, s 11(4), s 164, s 165, s 180(6)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 12, s 40, s 44

Planning and Environment Court Rules 2018 (Qld), r 4

Uniform Civil Procedure Rules 1999 (Qld), r 69, r 74, r 117, r 377

CASES:

13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120

Leda Holding Proprietary Limited v Caboolture Shire Council [2007] 1 Qd R 467, 470

Sunshine Coast Regional Council v D’Agostini & Ors [2019] QPEC 52; (2020) QPELR 480

R v Grassby [1989] 168 CLR 1

Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35, [9]-[11]

Warringah Shire Council v Sedevcic [1987] 10 NSW LR 335, 340

Oshlack v Richmond River Council [1998] 193 CLR 72

COUNSEL:

H Stephanos for the applicant

A N Skoien for the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents

No appearance for the balance of respondents

SOLICITORS:

Sunshine Coast Regional Council Legal Services for the applicant

P&E Law for the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents

  1. [1]
    HIS HONOUR: This is an application in pending proceedings. Written submissions were filed on 28 January 2021 by the applicant and on 1 February 2021 by some of the respondents. I heard oral submissions on 2 February 2021. The application is brought by the Sunshine Coast Regional Council, who are also the applicant in the proceedings commenced by originating application. Before turning to the detail of the present application, it is helpful to say something of the original proceedings.
  1. [2]
    In January 2019, the Council filed an originating application seeking declarations and orders. There were 46 respondents to the application as filed. The application was amended, and presently the relevant document is the amended originating application that is court document 26. The proceedings are concerned with land at Pelican Waters, on which there is a resort presently known as the Sebel Resort, Pelican Waters. This resort was constructed in consequence of a development approval conveyed in a decision notice in 2003. I will refer to this as the approval. In the original proceedings, the Council alleges that some units in the resort are being used for permanent residential accommodation, contrary to their permissible use. I will refer to these as the units.
  1. [3]
    Relying upon this allegation, the Council applied in the originating application for a declaration concerning the construction of the approval, a declaration that the relevant units can be occupied by the same person for no longer than three consecutive months, and:

…such consequential orders as may be necessary, pursuant to section 11(4) of the Planning and Environment Court Act to provide that any current use of the units other than for the temporary accommodation of travellers (including tourists or holiday-makers) must cease.

  1. [4]
    The Council also applied to:

Restrain the use of the units for anything other than the temporary accommodation of travellers (including tourists or holiday-makers), unless and until all appropriate town-planning approvals are obtained.

  1. [5]
    In April 2019, a judge of this Court acceded to a request of the respondents that part of the proceedings be decided separately. In this way, the proceedings came before me to decide the following questions:
  1. (a)
    Did the approval limit the use of the units to temporary accommodation only?
  1. (b)
    Did the approval permit the use of the units for permanent and long-term accommodation?
  1. (c)
    What does temporary accommodation mean?

After hearing arguments, I found it only necessary or appropriate to answer the first question, which I did by declaring that the approval limits the use of the units to use for the temporary accommodation of travellers.[1] Leave to appeal against this decision was refused.[2]

  1. [6]
    While there are 46 respondents in the proceedings, the majority have never taken an active role. Twelve respondents, each represented by the same lawyers, appeared in the hearing before me in 2019. Only seven sought leave to appeal my decision, and only seven appeared at the hearing of the present application. The parties who have not participated, or who are not now participating, have been generally referred to as the non-active parties or non-active respondents.
  1. [7]
    It is in this context that the Council brought the present application. The orders and directions sought by the Council are those set out in court document 81, an application in pending proceedings filed on 13 November 2020, and as further refined in the draft order provided to the Court at the present hearing.[3] It will be necessary to go in some detail to aspects of the relief sought. In summary, the nature of the relief sought is as follows:
  1. (a)
    Orders to substitute respondents to reflect changes in ownership of some units;
  1. (b)
    Orders in the nature of final orders, restraining the use of some units and which would bring to an end proceedings concerning a number of non-active respondents; and
  1. (c)
    Directions concerning the further hearing of the matter.
  1. [8]
    I should note that an order removing as a respondent an entity that no longer has an interest in the land, and directions concerning the further hearing of the matter are not contentious and will be made by me today.
  1. [9]
    Seven respondents, being the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents, appeared to oppose the orders sought. I will refer to them as the objecting respondents. None of the respondents who would be the subject of the orders, each of whom are non-active respondents, appeared at the hearing of this application. Before turning to deal with the application, it remains only to observe that the further hearing of this matter on the question of what, if any, orders might be made concerning the balance of the respondents is listed for hearing on 1 March 2021. As it is possible that my decision in the present application could have an effect upon the balance of the proceedings, I have moved to give a decision in the application as quickly as possible. The result is that these reasons are being delivered orally and are not as comprehensive as more time might permit.

Substitution of parties

  1. [10]
    I will deal first with the order seeking substitution of parties. The first tranche of orders to which objection is taken concerns the substitution of parties as respondents. This part of the application follows from inquiries made by the Council as to changes in the ownership of some of the units.[4] These inquiries revealed that five of the units have changed hands. While there has been a change of ownership in relation to five units, an entity that is already a respondent has acquired ownership of one of those units. As a consequence, there are four people or entities who now own units the subject of these proceedings who were not originally named as respondents. It is in relation to these four that the Council seeks orders that will have the effect of substituting respondents to the original application.
  1. [11]
    It is common ground that the rules governing such an application are those found in the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). This is by reason of rule 4 of the Planning and Environment Court Rules 2018 (Qld) which relevantly provides:

If these rules do not provide for a matter in relation to a P&E Court proceeding and the rules apply in the District Court would provide for the matter in relation to a proceeding in the District Court, the rules applying in the District Court apply for the matter in the P&E Court, with necessary changes.

  1. [12]
    The relevant rule of the UCPR so picked up is rule 69. So far as is presently relevant, this rule provides:
  1. (1)
    The Court may, at any stage of a proceeding, order that –
  1. (a)
    a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding, or
  1. (b)
    any of the following persons being included as a party –
  1. (i)
    a person whose presence before the Court is necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceeding;
  1. (ii)
    a person whose presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
  1. [13]
    The persons who have disposed of their interest in the unit are plainly no longer an appropriate or necessary party. On the material available to me, these persons no longer have the right to use, or permit someone else to use, the units. The orders sought in the originating application seeking to set limits upon, and restrain the use of, the units no longer have any relevance to these persons. The removal of these persons was not really disputed by the objecting respondents. This is consistent with their acquiescence to the removal of the person who disposed of their interest to an existing respondent.
  1. [14]
    The resistance to the orders by the objecting respondents focused upon joining four new respondents to the proceedings. The question for the Court in this regard is that set out above in rule 69(1)(b)(ii). As I have noted, the prayer for relief in the originating application sought a declaration concerning the use of the units permitted by the approval and orders that would restrain the use of the units. The question of the proper construction of the approval has been determined. I note that the use of the units must be in accordance with the approval,[5] and the units cannot be used other than for a lawful use.[6] There remains in dispute questions concerning whether and to what extent there should be orders restraining the use of the units. The rights of the new owners of the units could very well be affected by the answers to those questions. In these circumstances, it is obviously desirable that persons who now own the units be given the opportunity, should they wish to take part in the proceedings, to be heard on these issues. It also serves the interests of justice. As noted by Keane JA in Leda Holding Proprietary Limited v Caboolture Shire Council [2007] 1 Qd R 467 at 470:

The discretion conferred by rule 69 should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice.

  1. [15]
    I also accept the Council’s submission that it is convenient to join the new parties. The Council seeks to resolve questions relating to the use of all of the units. It would be inefficient to determine these proceedings only in relation only to some of the units and to leave for another day the determination of the same questions in relation to other units. It is true, as the objecting respondents note, that by reason of rule 74(6) of the UCPR, the declaration I have already made and other things done in the proceedings, will be binding upon the new respondents if they are joined. But where none of the persons who would become respondents to the proceedings raise this as a basis for objecting to being joined, I do not consider this as a matter that weighs heavily against joining the persons.
  1. [16]
    Each of the proposed new respondents have been apprised of the present application.[7] In my view it was not necessary that the Council effect personal service. Ordinary service was sufficient, as this concerns an application in a proceeding and not an originating application. If I am wrong about that, this in any event would be an appropriate case to permit informal service pursuant to rule 117.
  1. [17]
    It is necessary, finally, to note the apparent position of the proposed new respondents, so far as that can be gleaned from correspondence tendered by the Council. Anthony John Merry wrote to the Council on 20 November 2020 and stated ‘I definitely do not want to be involved in any court proceedings with this matter’.[8] On behalf of Javal Pty Ltd it has been said that it ‘neither consents nor opposes the proposed application’.[9] Mr Rossi on behalf of Rossprop Investments Pty Ltd indicates its support for the entirety of the Council’s application. Finally, Shay Michael Hart has indicated that he wishes to remain inactive in the proceedings and that he neither opposes nor agrees to the Council’s applications. The expression by at least some of the proposed respondents that they do not wish to take part in the proceedings, or even a wish not to be joined, is not determinative. If any of the proposed respondents desired to appear in Court and be heard in relation to the application, they knew of it and could have done so. None of the correspondence raises any proper basis on which the Court should decline to join them as respondents.
  1. [18]
    The balance of orders relating to substitution are necessary to give effect to joining the new respondents and to conform with rule 74 of the UCPR. In the circumstances, I intend to make the orders for substitution and removal of parties as sought by the Council.

Final orders in relation to some non-active parties

  1. [19]
    I turn now to the question of whether final orders ought to be made in respect of some, at least, of the non-active parties. The Council proposed the orders should be made only in relation to respondents who are not actively participating in the proceedings and who have not filed any affidavit material. The Council would also exclude the new respondents, but for one who has written to say he does not oppose the orders. If made, the orders would affect 31 of the 46 respondents.
  1. [20]
    Again, it should be emphasised that not a single one of the respondents who would be directly affected by the orders, all of whom were aware of the application, have appeared to contest the application. It is only the respondents for whom Mr Skoien and P&E Law act who have opposed the orders. They oppose the orders on three bases:
  1. (a)
    First, because there is a procedural defect in the application and the orders cannot be made without first obtaining leave to amend the originating application;
  1. (b)
    Secondly, this Court does not in the circumstances have the power to make the orders; and
  1. (c)
    Finally, the Court is not in any event obliged to make orders and should refrain from doing so, at least until the further hearing of these proceedings on 1 March.
  1. [21]
    The first point is, in my mind, a simple one. It is said that the relief sought by Council in this application differs significantly from that asked for in the originating application. That being the case, it is said, the orders are inappropriate for an application in pending proceedings and should be included in the originating application. This, in turn, would require amendment of the originating application, which cannot occur without leave of the Court, pursuant to rule 377 of the UCPR.
  1. [22]
    I have set out the relevant parts of the originating application at paragraphs [3] and [4] above. It is unnecessary, now, to repeat them. The orders sought in the present application, so far as this topic is concerned, are as follows:[10]
  1. The respondents listed in the table contained at Annexure “A” (Non-Active Parties) must:
  1. a.
    refrain from entering into a lease or other agreement, pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Act) (or, on any repeal of the Act, its superseding legislation) for any of the Motel Suites, being lots 201-218; 301-318; and 401-418 on SP168156 (comprising either of the individual suites within the dual key arrangement) (Motel Suites);
  1. b.
    refrain from entering into any arrangement for letting, or otherwise allowing the use of, any of the Motel Suites for anything other than the temporary accommodation of travellers;
  1. c.
    in the case where there may be a lease or other agreement or arrangement currently in place that purports to permit the use of the Motel Suites for anything other than the temporary accommodation of travellers, cause the tenant or occupant to vacate the Motel Suite –
  1. i.
    upon the expiration of the current term of the lease, agreement or other arrangement; or
  1. ii.
    by 2 August 2021, or such other date that may be determined appropriate by this honourable Court,

whichever is the sooner.

  1. d.
    notify, by 1 March 2021, any tenant or other occupant of a Motel Suite for which the Respondent is the registered owner (other than where the Respondent is using, or is permitting the use of, the motel suite only for the temporary accommodation of travellers) of the requirement of paragraph 6(c) above;
  1. e.
    Provide, by 1 March 2021, a copy of the Judgment of this Court delivered on 8 November 2019 (8 November Decision) and this Order to any real estate agent or other letting agent that the respondent has engaged or engages to manage any of the Motel Suites (other than where the real estate agent or other letting agent is engaged for the purpose of letting the Motel Suites for only the temporary accommodation of travellers); and
  1. f.
    provide a copy of the 8 November 2019 Decision and this Order to any prospective purchaser of, or other person intending to take an interest in, any of the Motel Suites if at any time the respondent proposes to sell or otherwise dispose of its interest in the Motel Suite.
  1. [23]
    In my mind, it is clear that the orders the subject of this application, while expressed with more specificity, are of a kind with the relief sought in the originating application. This is not a case where there is an attempt to rely upon a vaguely expressed or even formulaic recitation of a prayer for ‘such further orders as the Court may deem necessary’. Here, the originating application sets out the legislative power said to authorise the granting of the relief and also the nature of the relief that was sought. That is, to stop any use of the units that is not use for the temporary accommodation of travellers, and to restrain the use of the units only to that purpose. That there are now proposed orders framed with a greater degree of precision is entirely unsurprising. It is undoubtedly the product of the honing of issues that inevitably occurs in the course of litigation. The orders sought are not inconsistent with the original relief sought, and there is, in my view, no need to amend the originating application.
  1. [24]
    The second submission of the objecting respondents is to the effect that section 11(4) of the Planning and Environment Court Act 2016 (Qld) (‘PECA’) is not engaged, and therefore the Court does not have power to make the orders. Section 11 confers upon the Court a declaratory jurisdiction about particular matters. It also confers a power to make ‘an order about any declaration’ made by the Court. Relevantly, the section provides:

11 General declaratory jurisdiction

  1. (1)
    Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about –
  1. (a)
    a matter done, to be done or that should have been done for this Act or the Planning Act; or
  1. (b)
    the interpretation of this Act or the Planning Act; or
  1. (c)
    the lawfulness of land use or development under the Planning Act;

  1. (4)
    The P&E Court may also make an order about any declaration it makes.
  1. [25]
    It must, of course, be kept in mind that the Planning and Environment Court is a Court of statutory creation. This Court does not have any ‘inherent’ jurisdiction’.[11] If there is a power to make the orders sought, it is to be found in the words of the statute, whether expressly or perhaps by implication. The broad question posed by section 11 is whether the orders are ‘about’ the declaration. It has not, at any point, been suggested that it was not within the power of the Court to make a declaration concerning the construction of the approval. This must be because the declaration was about ‘the lawfulness of land use or development’. While the actual declaration was framed in terms of the effect of the decision notice, it is concerned with limitations upon the use of the land. To put it another way, by defining the decision notice the Court was identifying the lawful use to which the land might be put. I do not accept the submission of the objecting respondents that the declaration was concerned only with the decision notice and not with the lawful use of the land. It might be thought this Court had the power to make a declaration about the construction of the approval only because it is a matter that will ultimately be relevant to the lawfulness of land use. However the declaration was framed, it was ultimately concerned with defining the lawful use of the land.
  1. [26]
    Both the Council and the objecting respondents referred to the decision of Rackemann DCJ in Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35 (‘Scooter’).  In Scooter his Honour noted a relative absence of judicial consideration of section 11(4) and its antecedent provisions. In relation to the meaning of ‘about’, his Honour stated (at [9]):

It may be accepted that the word ‘about’, as used in the provision, is one of wide import. What the provision requires, however, is that the order be about the declaration or one or some of those that the Court makes. That calls for attention to be given to the declarations and to the nexus between them and the orders sought, to see whether the latter is about the former.

  1. [27]
    Scooter itself was concerned with a declaration about the lawfulness of development, rather than the lawfulness of land use. In that case the applicant attempted to rely upon section 11(4) to obtain orders that would have required the rehabilitation of marine vegetation. Rackemann DCJ concluded that such orders were not ‘about’ a declaration that there had been unlawful development. As his Honour observed (at [10]):

Whether rehabilitation is undertaken or not will have no bearing upon that question. Rehabilitation works will not render lawful that which is declared to be unlawful.

  1. [28]
    His Honour went on to say (at [11]):

By seeking the rehabilitation orders, the applicant is asking the Court not so much to declare a state of things and make orders about it but to impose upon the respondent substantial new obligations, which do not otherwise flow from the making of the declarations or from the unlawfulness to which they relate.

  1. [29]
    Unlike Scooter, where the declaration was concerned with the lawfulness of development, in this case the declaration concerns the lawfulness of the use of the land. While it will be necessary to consider specific aspects of the orders sought, in general, they are designed to enforce the lawful use of the land and to prevent an unlawful use in accordance with the declaration as to what the approval permitted. They are, in this sense, about the declaration. Contrary to a submission of the objecting respondents, it is not necessary that there be a finding or a declaration that there has been an unlawful use of the units before orders seeking to restrain its use could be ‘about’ the declaration. Apart from the need for the orders to be about a declaration, the words of section 11(4) are not limited or constrained. It is true, as a general proposition:

[T]hat it is inappropriate to read a provision conferring jurisdiction or granting powers to a Court by making conditions or imposing limitations which are not found in the words used.[12]

  1. [30]
    In my view, it must be that the power to make orders about a declaration, pursuant to section 11(4), includes a power to make an order restraining the use of land. I note that in Scooter, Rackemann DCJ did not doubt that the power conferred by section 11(4) extended to requiring a person to do something and, by extension, to refrain from doing something with respect to their land. I am satisfied that the Court has the power to make orders of the general kind sought by the Council.

Should the court refrain from making orders

  1. [31]
    I turn, then, to whether the Court should refrain from making orders. The third basis put forward by the objecting respondents, in opposing the orders, was that it is inappropriate to make such orders, at least before the further hearing of the matter on 1 March. At that time the Court has set aside three days to hear evidence and submissions by the objecting respondents and the Council. This evidence is expected to be primarily directed toward whether there should be orders made concerning the objecting respondents. As is already clear, the orders the Court is asked to make in this application would concern only respondents who are not taking an active role in the proceedings. By that, I mean they have not appeared or filed any material and have not taken any steps at all that might result in participation at the hearing in March. Whatever view they might privately express about the appropriateness of orders in correspondence with the Council, they have not come to the Court to make arguments.
  1. [32]
    It is correct, as the objecting respondents note, that when a Court is asked to make a discretionary order in the nature of injunctive relief it is not enough that there is merely an absence of opposition. That is the case even if it were to be considered that the Council was seeking to enforce public rights. On the other hand, ‘a Court may be less likely to deny equitable relief’ in an application brought by a Council as the proper guardian of rights.[13]
  1. [33]
    The objecting respondents say a decision on the orders should await the further hearing in March. There was reference in Mr Skoien’s submissions to the existence of evidence that could disentitle the Council to orders of the kind sought in respect of all of the respondents. I was not taken to this evidence, and so I cannot assess for myself its potential impact in the proceedings. Mr Skoien also pointed to what he said was the risk of orders being made relating to the use of particular units that are inconsistent with each other. That is, it would be undesirable for the owner of one unit to be restricted in its use in a way that another owner is not. Whether or not such might be the result after the further hearing is not, to my mind, the point. If, in the end, there are orders that are different, that will be because different evidence or considerations have led the Court to exercise its discretion in a particular fashion. Orders are not inconsistent merely because they are different. To give a, perhaps, unlikely example, one respondent may be able to prove the Council expressly acquiesced to the use of a unit as permanent accommodation and therefore should be disentitled to the relief it seeks. On the other hand, a respondent may have purchased a unit knowing full well of the limitation upon its use and has, nevertheless, stated an intention to lease it on a long-term basis. If the result were that one respondent was restrained and the other was not, this would not be an inconsistent result on those differing facts. The point the objecting respondents seek to make might be made good if, after taking into account largely the same considerations, different orders resulted. There is little or even no chance of such an occurrence in these proceedings. That is, essentially, because most respondents have chosen not to put on evidence that might be relevant to the discretion the Court is asked to exercise.
  1. [34]
    If it were possible to make appropriate orders, there is no reason they should not be made now. The starting point is that I have already determined that the use of the units is limited to use for the ‘temporary accommodation of travellers’. Any use that is not for the temporary accommodation of travellers would not be a lawful use. It is in the interests of Council to enforce the right of the public to see that land is used only in accordance with its lawful use. Making orders of the kind sought by the Council will resolve the controversy between it and the group of respondents to whom the orders will be addressed in a manner the declaration on its own cannot. If appropriate orders could be made now, that would answer questions that may arise as to what is and is not a permitted use of the units. Such orders would make clear the rights and obligations of the owners of the units. This is so whether or not a particular respondent has used, is using or will use the unit other than for a lawful use. As well, making orders would go some way to answer concerns about the impacts upon amenity that are relied upon by the Council to support the orders.[14] It would also avoid the expenditure of resources by the Council and the Court by bringing to an end proceedings concerning respondents who have, to date, indicated no interest in participating. Making orders now would be consistent with section 10 of the Planning and Environment Court Act 2016 (Qld).

Should orders be made in the terms sought by the Council

  1. [35]
    However, there remains in my mind questions over the appropriateness of the terms of the orders the Council asks the Court to make. The first proposed order in the nature of a restraint is that found in paragraph 6(a) of the relevant draft order. If made, this order would require the relevant respondents to:

refrain from entering into a lease or other agreement pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (or, on any repeal of the Act, its superseding legislation)

  1. [36]
    The Council proposes that, by reason of the provisions and definitions in that Act, which for convenience I will call the ‘RTRA’, practical effect will be given to my declaration. The objecting respondents submit this represents an attempt to precisely define what is temporary, despite my having declined to do so in the decision of November 2019.
  1. [37]
    The RTRA defines a ‘residential tenancy agreement’ in section 12. It is not defined by reference to any time period. The RTRA would apply to a residential tenancy agreement even when the premises are part of a hotel or motel.[15] The RTRA does not apply to a ‘rooming accommodation agreement’ where accommodation is provided to ‘holiday-makers or travellers’.[16] The Council’s reasoning is that the proposed order in 6(a) would prohibit a unit owner agreeing to any kind of arrangement other than a ‘rooming accommodation agreement’ for ‘accommodation provided to holiday-makers or travellers’. Even assuming that to be correct, the definitions of rooming accommodation and rooming accommodation agreement in sections 12 and 13 say nothing about the length of time granted to the resident to occupy the accommodation, either by a defined period or by the use of words like temporary. It is not clear to me that the order proposed is appropriate to give effect to the declaration that the units are for ‘the temporary accommodation of travellers’. 
  1. [38]
    As I explained in my reasons of November 2019, it was inappropriate, at least at that time, to fix a precise period of time after which accommodation ceased to be temporary. I declined the Council’s invitation to state that a stay of more than three months was not temporary. That was, in part, because there was no definition of the word in the relevant planning documents, and partly because temporary is a word without a single, fixed meaning. Context is important. It is, perhaps, easier to tell when something is not temporary than to say when it is. It may be that, after hearing evidence about the use of the units, it is possible to set a time-limit after which there could be no doubt the accommodation has ceased to be temporary. It may be that a form of order can be found that is ‘about’ the declaration, so as to be within the Court’s power and also otherwise appropriate, having regard to all relevant considerations, to give effect to the declaration. Such would, I think, undoubtedly be easier if the Court were acting pursuant to section 180(6) of the Planning Act 2016 (Qld) to make an enforcement order on terms considered appropriate to secure compliance with that Act. But that is not the nature of this application.
  1. [39]
    There is also a difficulty caused by the reference in the proposed order to possible future versions of the legislation. It is not conducive to defining the rights and obligations of the parties to leave it at the whim of some future parliament. Buildings have a long life. There is no basis for an assumption that the definitions in the legislation will not change significantly over time. Even if the order was otherwise appropriate, I would not be inclined to include this reference. The relevant definitions would be, and would remain, those in the current version of the Act.
  1. [40]
    I prefer not to make a final decision concerning this proposed order. It was argued in a comparatively limited way at the hearing of this application last Tuesday. I expect the Council intends to seek a similar order in respect of the balance of the respondents at the hearing in March. If that is the case, I would not prevent the parties from making further submissions concerning this proposed order or a different proposed order that seeks to define what is not temporary in the context of the evidence. It may be that, after hearing evidence about the use of the units, it is possible to set a time-limit after which there could be no doubt the accommodation has ceased to be temporary. To use another extreme example, a lease granting a five-year right of occupancy to a tenant who maintains no other residence could scarcely be considered temporary accommodation for travellers. If, in the end, the Court is persuaded that it is appropriate to make an order in terms similar to 6(a), or some other order, in relation to the objecting parties, who are represented and who can make submissions, there would seem to be no reason such an order should not apply to all respondents.
  1. [41]
    The proposed orders in 6(b),(c) and (d) largely adopt the words of the declaration. The Council submits that these orders would serve to restrain the use of units in a manner consistent with the declaration and would require the relevant respondents, within a reasonable time, to bring to an end any letting arrangements that are inconsistent with temporary accommodation for travellers. The present difficulty is that each depends upon the phrase ‘temporary accommodation for travellers’. Without order 6(a) or some equivalent, the orders go no further than the declaration. They would, in my view, have no real utility in that circumstance. If it becomes possible and appropriate to define temporary accommodation for travellers, the position may change. But it is not appropriate to make these orders, at least at this time.
  1. [42]
    Proposed orders 6(e) and (f) are intended to cause my decision and declaration of November 2019 to be brought to the attention of any potential purchaser of a relevant unit. This is appropriate. Order 6(e), however, should be amended to remove reference to a ‘real estate agent or letting agent engaged for the purpose of letting for the temporary accommodation of travellers’, that is, the part in brackets. With reference to the draft order provided by the Council, the orders that I consider appropriate to make today are those numbered 1, 2, 3, 4, 5, 6(e) (without the reference to real estate or letting agents in parentheses in that draft order), 6(f), 7, 8, 9, 10 and 11. The draft order will require amendment for this purpose. I note, as well, the schedule to the draft order requires amendment to remove a respondent. Once the Council has provided a revised draft order, I will initial it in chambers, and those will be the orders I make today.

Footnotes

[1]Sunshine Coast Regional Council v D’Agostini & Ors [2019] QPEC 52.

[2]13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120.

[3]  Exhibited to the affidavit of Mitchell Scott Birks, filed 1 February 2021 (court document 88).

[4]  Affidavit of Mitchell Scott Birks, filed 15 October 2020, court document 78.

[5]Planning Act 2016 (Qld), s 164.

[6]Planning Act, s 165.

[7]  Affidavit of Mitchell Scott Birks at [15] – [16].

[8]  Court document 84.

[9]  Ibid.

[10]  As identified in the draft order provided at the hearing and exhibited to the affidavit of Mitchell Scott Birks, filed 1 February 2021 (court document 88).

[11]  See generally R v Grassby [1989] 168 CLR 1.

[12]Oshlack v Richmond River Council [1998] 193 CLR 72, at [21].

[13]Warringah Shire Council v Sedevcic [1987] 10 NSW LR 335, 340.

[14]  Court documents 30 and 73.

[15]  RTRA, section 40.

[16]  RTRA, section 44.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 2)

  • Shortened Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 2)

  • MNC:

    [2021] QPEC 23

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    05 Feb 2021

Appeal Status

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