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Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 3)[2021] QPEC 66

Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 3)[2021] QPEC 66

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 3) [2021] QPEC 66

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)

ANTHONY JOHN MERRY

(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)

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)

JAVAL PTY LTD AS TTE

(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-eight respondent)

ROSSPROP INVESTMENTS PTY LTD

(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)

SHAY MICHAEL HART

(thirty-third respondent)

DENISE KAY RUHLE

(thirty-fourth respondent)

DAVID NEVILLE RICHARD HANLIN, DULCIE LOUISE HANLIN & 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 WILLIAM 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:

D9/2019

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Courtat Maroochydore

DELIVERED ON:

3 December 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

1 March 2021, 2 March 2021, 3 March 2021

JUDGE:

Cash QC DCJ

ORDER:

The application is allowed.

Orders as appear in paragraph [101] of these reasons.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where a declaration was made regarding lawful use under the development approval – where the applicant seeks orders about the declaration pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld) – where the orders are to restrain the use of the development in accordance with the declaration – where the applicant submits the orders are necessary to prevent occupation contrary to the development approval – whether the discretion to make the orders sought should be exercised

LEGISLATION:

Body Corporate and Community Management Act 1997 (Qld), ch 2 pt 6, s 52, s 59, s 60
Planning and Environment Court Act 2016 (Qld), s 11
Planning Act 2016 (Qld), ch 5 pt 2, ch 5 pt 5, s 161, s 180, s 265

CASES:

13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120
Aqua Blue Noosa Pty Ltd v Noosa Shore Council [2004] QPEC 74; [2005] QPELR 318
Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35
Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53
Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632
Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Others [2019] QPEC 52; (2020) QPELR 480
Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 2) [2021] QPEC 23
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wort v Whitsunday Shire Council [2001] QCA 344; (2001) 116 LGERA 179
Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 335, 342-3

COUNSEL:

C L Hughes QC with H Stephanos for the applicant
A N S Skoien for the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents
No appearance for the balance of the respondents

SOLICITORS:

Sunshine Coast Council Legal Services for the applicant
P&E Law for the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents

Introduction

  1. [1]
    This decision is concerned with an application by the Sunshine Coast Regional Council for orders that would restrain the use of some lots in a development at Pelican Waters on the Sunshine Coast. The development is a resort, a major component of which is a multi-storey building containing accommodation units across several floors. The units are divided between 102 ‘hotel/motel’ suites on the second, third and fourth floors (the ‘motel suites’) and 62 multiple dwelling units (the ‘dwelling units’) on floors five to twelve. The applicant, at the time constituted as the Caloundra City Council, gave approval for the development in 2003. The approval was subject to conditions. These included conditions concerning the permitted use of the various accommodation units. The construction of the resort was completed in 2006. In recent times a dispute has arisen concerning the use of the motel suites. In essence, the applicant says some motel suites have been, and are being, used as long-term residences, contrary to the use permitted by the development approval.
  2. [2]
    In early 2019 the applicant commenced this proceeding by originating application. The applicant sought a declaration about the meaning of the development approval and, contingent upon that, consequential orders to restrain the use of the motel suites. The meaning of the approval was decided as a separate question.[1] In Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Others [2019] QPEC 52; (2020) QPELR 480, I declared the approval limited the use of the motel suites on levels two, three and four of the building to ‘use for the temporary accommodation of travellers’.[2] An application for leave to appeal against this decision was dismissed by the Court of Appeal.[3]
  3. [3]
    A further application was made by the applicant in early February 2021, a few weeks before the present hearing. That application was concerned with two issues. The first was an application for orders substituting or removing respondents to reflect changes in ownership of some of the motel units. The second issue was an application for final orders in relation to 31 respondents who had not participated in the proceeding or filed any material. This required consideration of the power of the Planning and Environment Court to make such orders and, if so, whether they should be made. I concluded the Court had the power to make such orders, but that it was not appropriate to do so, at least at that time.[4] I will return to this decision later in these reasons.
  4. [4]
    It remains to consider what, if any, further orders might be made ‘about’ the declaration, pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld). The effect of the orders sought by the applicant would be to restrain the occupation of the motel suites such that no unit can be occupied by a person for a period exceeding three months in any given period of 12 months. Seven of the 46 respondents appeared to oppose these orders. They are the second, sixth, eleventh, twelfth, fifteenth, eighteenth and forty-third respondents.[5] For convenience I will refer to them simply as ‘the respondents’. While some of the remaining respondents have indicated to the applicant that they oppose the orders, those respondents did not participate in the present hearing.
  5. [5]
    For the reasons that follow, I am of the opinion that orders of the kind sought by the applicant should be made.

Does this court have the power to make the orders?

  1. [6]
    It is necessary first to consider the power of the Planning and Environment Court to make orders as sought by the applicant. This was a matter put in dispute by the respondents at the hearing in February 2021. I decided against the respondents at that time. The respondents did not seek to reargue the issue in March 2021 but maintained opposition to the orders on the same bases that were advanced in February.[6] The first basis was a procedural point to the effect that the orders sought by the applicant required amendment to the originating application. I did not, and do not, accept this is the case.[7] The second objection concerned whether the Court had power to make orders of the kind sought by the applicant. I remain of the view I expressed when deciding the application in February 2021. For ease of reference, I will repeat what I said at the time.[8]
  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 matter done, to be done or that should have been done for this Act or the Planning Act; or
    2. the interpretation of this Act or the Planning Act; or
    3. 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’.[9] 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.
  2. [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.[10] 

  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.
  1. [7]
    Section 11(4) of the PECA is in permissive terms. The court is conferred with a discretion to either make, or decline to make, an order about a declaration. It is necessary to consider the criteria that may be relevant to the exercise of the discretion. As I have observed, the power given by section 11(4) is not explicitly constrained by the words of the section. However, the considerations relevant to the exercise of the discretion will be guided by the circumstances of the case and nature of the orders that are sought. This application is concerned with the enforcement of a limitation upon the use of the motel suites that was imposed by the approval. It is, in a broad sense, analogous to proceedings for an enforcement order pursuant to Chapter 5, Part 5 of the Planning Act 2016 (Qld).
  2. [8]
    There are differences in the statutory provisions. The power to make an enforcement order pursuant to section 180 of the Planning Act is contingent upon the court being satisfied a ‘development offence’[11] has been committed, or will be unless the order is made.[12] The content of any enforcement order is also informed by subsections 180 (5) and (6), the latter of which provides:

An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act.

  1. [9]
    A considerable body of jurisprudence exists in relation to enforcement orders (either under section 180 of the Planning Act, antecedent legislation in Queensland or legislation in other States). Having regard to the nature of the present application, which seeks to enforce the limitations imposed by the development approval, consideration of decisions concerning enforcement orders are instructive. It is also consistent with the approach taken by the parties, who referred to several such decisions. One decision to which the applicant referred was the familiar case of Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic). The respondents cited several cases that either expressly, or by extension, endorsed Sedevcic.[13] Consistent with the approach of the parties, it is appropriate to be guided by the principles that emerge from Sedevcic and other cases when exercising the discretion under section 11(4) of PECA.
  2. [10]
    In Sedevcic, Kirby P set out some ‘guidelines’ for the exercise of the discretion to make enforcement orders.[14] Relevantly, these include the following:
  1. (a)
    The discretion to be exercised is wide. It is wide enough to allow for a ‘softening’ of the application of planning provisions to meet the justice of a particular case;
  2. (b)
    Its exercise is not limited to a particular class of cases or ‘special’ cases;
  3. (c)
    The enforcement of planning provisions is not concerned with the enforcement of a private right but, rather, with a public duty. If not done, equal justice may not be secured, and a particular individual may obtain a private advantage that others cannot enjoy;
  4. (d)
    If unlawful exceptions or exemptions become commonplace, or are condoned by the court, the equal and orderly enforcement of planning provisions could be undermined;
  5. (e)
    A court may be less likely to deny relief in the nature of injunction when the applicant can be seen as a proper guardian of public rights, such as a local government entity;
  6. (f)
    The nature of any non-compliance with planning provisions will be relevant. Inadvertent or technical non-compliance will be viewed differently to deliberate disregard of the planning law;
  7. (g)
    The conduct of the party seeking to enforce the planning provisions may be relevant. Delay in seeking enforcement or tolerance of the non-compliance by a local authority may tend against the making of orders;
  8. (h)
    The cost and inconvenience of remedying any non-compliance is a matter to be weighed against the nature of the breach when assessing the desirability of enforcing planning provisions.
  1. [11]
    In Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53 (at 58-59) the Court of Appeal (Davies, Thomas JJA, White J) referred to the guidelines identified in Sedevcic as ‘useful checklists of points that will often need consideration’.[15] The Court also stated

The Court’s function in determining what is to be done in such cases is to perform a balancing exercise with a view to matters of both private and public interest.

…

Among potentially relevant matters is the aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed.

  1. [12]
    This statement of the Court mentions potential developers. But planning provisions may apply not just to developers, but to owners and occupiers of premises as well. The last sentence set out above should not be read narrowly and can be understood as emphasising the general desirability of ensuring compliance with planning provisions.
  2. [13]
    Before considering how these principles might be applied in the present case it is necessary first to summarise the relevant evidence presented by the parties.

Evidence on behalf of the applicant

  1. [14]
    The applicant relied upon the evidence and affidavits of five witnesses. I will deal with each in turn.

Shane Adamson

  1. [15]
    Mr Adamson is a town planner. Much of the report he prepared was concerned with the preliminary question of the meaning of the development approval. But aspects of Mr Adamson’s evidence shed light on the present dispute. It is helpful to begin with his description of the resort, its facilities, and the arrangements for accommodation as described in the development approval.[16]
  2. [16]
    The resort is in Mahogany Drive at Pelican Waters, adjacent to the Pelican Waters Golf Club. Facilities available at the resort include tennis courts and swimming pools. The major component of the resort is a 12-storey building. The basement level has car parks, a communal laundry, and housekeeping and cleaning facilities. The ground level comprises a reception area, restaurant, bar, conference and function facilities, hair salon, gym and day spa. There is a mezzanine level that contains housekeeping and office facilities. The upper 11 storeys consist of accommodation.
  3. [17]
    On levels two, three and four there are 102 motel suites. Forty-eight of the motel suites are dual-key and consist of a one-bedroom unit and associated studio suite. The one-bedroom units have a floor area ranging from 49m2 to 67m2. They contain either a double bed or two single beds, a small dining table and lounge chair, a separate bathroom and a balcony. The balconies vary in size from about 12m2 to 38m2. Each one-bedroom unit has a kitchenette including two hotplates, a small bar fridge, a small sink and a microwave. There is no dishwasher or oven. The one-bedroom units do not have laundry facilities. The studio suites range between 32m2 to 34m2. They contain one furnished room with either a Queen size bed or two single beds, a small dining table and a balcony. The balconies vary between 9m2 to 16m2. There is a separate bathroom but no kitchenette or laundry.
  4. [18]
    The remaining six motel suites are all one-bedroom suites. They are a little larger, ranging between 60m2 to 70m2. These rooms are similar to the one-bedroom units just described, but contain some laundry facilities as well.
  5. [19]
    Levels five through to 12 contain multiple dwelling units. They are much larger than the suites and range between 107m2 and 214m2 in floor area and contain two, three or four bedrooms. Each dwelling unit contains a full-sized kitchen with two sinks, four hotplates, oven, microwave, dishwasher and full-size fridge. They also have full laundry facilities and storage through the dwelling units. Balconies or outdoor areas vary from quite small (17m2) to expansive (the roof deck areas of some of the top floor dwelling units are 210m2). Each dwelling unit has an intercom system that allows visitors to call and be allowed into the building from a separate secure entrance adjacent to the main lobby entrance. Each has exclusive use of either one or two carparks in a gated area of the basement carpark. They also have use of a lockable storage cage in the carpark.
  6. [20]
    Mr Adamson noted that the development approval cited different rates for calculation of infrastructure charges for the motel suites on the one hand and the dwelling units on the other. The motel suites attracted a lower rate. Mr Adamson explained this was likely because[17]

The demands for a temporary, or short-term, use such as a Motel or Hotel is expected to be less than that of a residential use such as a Multiple Dwelling, because there are usually more persons occupying a Multiple Dwelling for consistent periods of time.

…

It is likely that where the Hotel/Motel suites are being used for permanent or long-term residential occupation, it is likely that the infrastructure demands exceed those anticipated by Council when the Development Approval was granted.

  1. [21]
    Mr Adamson noted the importance of tourism to the local economy and the extent to which it is promoted by the relevant planning scheme. He observed that[18]

the Resort provides significant community benefit to local tourism, which is an outcome supported by both the Planning Scheme in effect at the time of the Development Approval, and by the current planning scheme. This is particularly the case given the Resort is located with the Sunshine Coast Enterprise Corridor and adjoins the Greg Norman designed Pelican Waters Golf Club.

  1. [22]
    On the basis that about 15 of the dual-key motel suites were being used for permanent residential living, rather than short term holiday letting, Mr Adamson was of the opinion that[19]

This is a loss of a substantial amount of dedicated visitor accommodation available within the Resort, which based on my experience as a town planner on the Sunshine Coast over many years, I would expect to be detrimental to the operation of the Resort.

  1. [23]
    In cross-examination Mr Adamson was taken to the approved plans that accompanied the development approval.[20] It was put to Mr Adamson that the plans showed a space in each one-bedroom unit part of the dual-key suites that could be used for a laundry. He did not disagree with the suggestion, though Mr Adamson observed the plans were not very clear.[21] He said that when he inspected some of the rooms, he did not see laundry facilities in the dual-key suites.[22] When asked about car parking arrangements, Mr Adamson agreed that there was not a requirement that each motel suite have its own carpark. He understood this was because it was expected at least some of the users of the suites would be travellers who did not have a private car to park.[23]
  2. [24]
    Mr Adamson was asked about his opinion that permanent occupation of the motel suites ‘is likely to adversely impact the successful operation of the resort’.[24] He said that, as a town planner, the key issue was the reduction in the number of rooms available for temporary use by tourists and travellers.[25] In this regard Mr Adamson said[26]

There’s the … what I’d term to be the ‘community benefit’ aspect of it in terms [of] holding a conference, wedding, what have you, as part of the integrated development of the hotel/motel, relies heavily on the availability of rooms. And also the, you know, not having amenity conflicts that would lessen that experience.

  1. [25]
    Mr Adamson noted there were also a number of amenity issues raised by the permanent occupation of the motel suites, while acknowledging that it was a question of scale and degree as to the significance the impact of these issues.[27]

Damien Frey

  1. [26]
    Mr Frey was employed by the applicant as the head of the section that receives and responds to complaints concerning alleged unlawful use of property. He deposed to a number of matters said to be in response to suggestions the applicant had been dilatory in taking action about the use of the motel suites.[28] Mr Frey deposed that generally, the Council’s consideration of the use of a property begins when a member of the public makes a complaint. In the present case the first complaint was made in early 2017. Following the complaint, the Council investigated and corresponded with many relevant parties. This included representations made by P&E Law on behalf of several owners of motel suites. In the end, the Council filed the present application in early 2019.

Don Thomson

  1. [27]
    Mr Thomson was employed by the applicant as head of the rates department. His affidavits addressed[29] evidence that the Council had rated some of the motel suites as principal places of residence, or otherwise changed rating categories. Mr Thomson deposed that rating categories are determined on what is understood to be the use of the property based upon information provided by the owner. The rates department does not investigate land use rights under planning law. Mr Thompson provided information concerning a motel suite rated as a principal place of residence that is owned by the sixth respondent, Cemone Tira (also known in these proceedings as Cemone Pakau). Mr Thomson deposed that it was treated as a principal place of residence because of an application made by Ms Tira in August 2012. Before that the motel suite was rated in Category 27 (‘High-rise Units – Not Principal Place of Residence’). In the application Ms Tira had declared that the property met the definition of principal place of residence and the motel suite was re-categorised accordingly. It was not until 2019 when Ms Tira gave notice of a change of her name that the applicant reviewed the information it held and decided the motel suite was not a principal place of residence.
  2. [28]
    Other motel suites owned by some respondents were also rated in Category 27 as ‘High-rise Units – Not Principal Place of Residence’. In more recent times the applicant’s ratings categories have been consolidated to include a tourism levy. This is reflected in the Category 27UT, which was introduced in the 2018/2019 financial year. ‘UT’ stands for ‘urban transitory. The motel suite owned by the 18th respondent, James Brown, continued to be assessed according to Category 27 even after this consolidation. Mr Brown claims he took this as indication his suite was not just for ‘transitory’ accommodation.[30] Mr Jones, the 43rd respondent, appears to raise a similar issue which I will discuss further below.[31]

Melissa Evans

  1. [29]
    Ms Evans was the general manager of the company (Pelican Waters Operations Pty Ltd) that manages the resort pursuant to a community management statement. She occupied this role between July 2016 and late 2019.[32] Overall, Ms Evans has been involved in hospitality and tourism for 24 years. As general manager Ms Evans was responsible for the management of the resort, including making sure the building is kept in good order and condition. She was also responsible for the hotel letting pool. The hotel letting pool is the term for the arrangement whereby owners of motel suites allow the management company to look after short-term letting of the suites in return for sharing the income. Soon after commencing as the general manager in July 2016, Ms Evans became aware that some of the motel suites were being used for long-term rental accommodation. On 9 February 2017 she made a complaint to the applicant because she was concerned about the negative impact this use was having on the resort. Ms Evans deposed this manifested in a number of ways.
  2. [30]
    The motel suites do not have specific allocated carparks, and the use of unallocated carparks by long-term residents of the suites causes shortages in the available car parking spaces.[33] The suites do not have the same amount of storage space as the dwelling units. As a result, some long-term residents of the motel suites store plants, portable cooking equipment, refrigerators, bicycles and laundry equipment on the balconies. While the dwelling units have a separate access point away from the main lobby and reception, the motel suites do not. Long-term residents of the motel suites come and go through this area. Ms Evans considers these matters compromise the reputation of the resort as a ‘luxury international resort’.[34] Some occupants of the motel suites carry dirty laundry through the restaurant and bar area on their way to the communal laundry facilities, detracting from the feel of the resort. In cross-examination Ms Evans said:[35]

What we don’t like seeing is people that are letting the, as you call it, studio suite, who have no access to any laundry facilities, who are living permanently onsite, carry their laundry down through our restaurant out to the laundry facilities, in front of guests that are trying to dine in the restaurant.

  1. [31]
    Ms Evans also raised concerns about the unsuitability of the smaller suites for food preparation, citing the lack of integrated facilities and the makeshift solutions implemented by some occupants in the smaller rooms.[36] These rooms do not have extraction fans and at times the smoke detector in a room has been set off with a resulting call out by the Fire Service. The absence of proper kitchen facilities in the smaller rooms also creates a concern about the disposal of food waste. The only basin in the smaller rooms is in the bathroom, which Ms Evans thinks is unsuitable for washing crockery and cutlery. Ms Evans expressed the concern that this may affect plumbing in the long term. Ms Evans deposed to some issues created by the amount of rubbish generated by long-term residents compared to short-term holiday makers.[37]
  2. [32]
    Long-term occupants of the motel suites sometimes expect the staff of the resort to attend to matters that are not their responsibility.[38] Ms Evans considered that the use of some motel suites for long-term accommodation has resulted in the resort being unable to host some conferences because of a lack of short-term accommodation. She thought this has caused reputational damage.[39]
  3. [33]
    In cross-examination Ms Evans explained that she regarded ‘permanent accommodation’ as people living in the suites as opposed to holidaying there. She agreed that when she commenced in 2016, the company entered into a six-month lease with the 11th respondent for a motel suite on the third floor.[40] This was to provide accommodation for Ms Evans and her husband who stayed in the suite before moving into an apartment on the seventh floor later in 2016.[41] She did not intend to stay in the suite long-term,[42] and when Ms Evans became aware of an apartment for lease on the seventh floor  in September 2016[43] she moved there with her husband before Christmas.[44] The lease concerning the suite continued after Ms Evans moved to the seventh floor. This may have been part of a lease back arrangement where rent was paid to the owner of a suite and the company made the suite available for holiday letting.[45]
  4. [34]
    Ms Evans agreed that owners of the motel suites sometimes complained about the costs of letting the suites through the hotel letting pool. She accepted that some owners did not wish to put their suites into the letting pool as they were disappointed with the returns.[46] She did not agree that her real complaint, and one shared by the company, was the absence of suites from the letting pool and the resultant loss of income to the company.[47] Addressing the design of the suites, Ms Evans agreed that the larger room of the dual key suites has provision for a laundry while the smaller room does not.[48] The larger room has a sink, cooktop, convection microwave oven, rangehood and under-bench bar fridge. The smaller room has a bar fridge but no built-in cooking facilities.[49] It was suggested to Ms Evans there were aspects of the use of the motel suites that she ‘just didn’t like.’ She responded by summarising her concerns as follows:[50]

Well, it’s not the matter that I don’t like them, it’s a matter of fact that these are not usual things that happen in a hotel. Okay. That this building was designed as a high class development, which I also outlined in my affidavit, and it has been written in the development papers of the building, and these are things that I have made comments on, based on the facts that I have seen during the nearly four years that I worked on the resort.

… The rubbish that people that were tenants in the building used to leave outside their doors, just because they couldn’t be bothered taking it to the [chute], [or] if they could be bothered taking it to the [chute], just dumping it on the floor in the rubbish room.  Having all their [post] come to reception because there’s no facility for post boxes, because these are temporary rooms for travellers. There’s no intercom available for levels 2 to 4, because they are not supposed to be resided in. There’s also the issue of people storing all their boxes and rubbish and bicycles on balconies, [because] they don’t have any storage units downstairs, like the units from 5 to 12 have, because they’re for people to reside in. The constant need for people to expect service from reception, because they were potentially promoted as resort living for these tenants. Stopping against the providing of details of these tenants by these agents, causing potential fire risks in the buildings.[51] The cooking inside the studio room[s] with no extraction. [As I] mentioned [before] the[m] having no sinks in the[se] rooms for people to wash their dishes in, because they had to then wash all the waste down their bathroom sink. Shall I go on.

  1. [35]
    Ms Evans was not aware that the owner of Lot 314 installed a kitchen in the suite in February 2019.[52] She disagreed with the suggestion that the issues she was concerned about would remain whether the motel suites had permanent or temporary occupants.[53] At the end of Ms Evans’ evidence the following exchange occurred:[54]

MR SKOIEN:  [I]n relation to the steps that haven’t been taken, there are management ways for dealing with various of these issues, as you say, for instance, with notices and education and the like, to ensure that, really, all those using – whoever lets them and for whatever stay, understand quite sensibly the way in which the resort complex ought to operate, I suggest to you?---I suggest that if that was the case and these were reasonable people to [deal] with, that these matters would’ve been resolved some years ago.

Kelly Nicholls

  1. [36]
    In practical terms, Ms Nicholls succeeded Ms Evans as the manager of the resort in late 2019.[55] She left to work for another company in January 2021.[56] Ms Nicholl’s shared the concerns of Ms Evans about the use of the motel suites. She deposed that since this proceeding was started in early 2019 most of the ‘owner/occupiers’ of the motel suites had moved out. She thought perhaps 27 rooms (or 14 dual-key motel suites) still had permanent or long-term occupants. Ms Nicholls observed that even during the height of restrictions as a result of the COVID-19 pandemic in April to June 2020, when there were no tourists and the resort was effectively closed, the unallocated car park was still ‘surprisingly busy’.[57] She deposed that occupants of the motel suites continued to store bulky items on balconies but there has been a reduction in clothes being put out to dry.[58] Other issues continued to be a concern.
  2. [37]
    In cross-examination Ms Nicholls acknowledged that the owners of the motel suites were not obliged to make the suites available to the letting pool. If they chose not to make the suites available this reduced the accommodation that could be used for conferences and the like, no matter what use was being made of the suites.[59] She agreed that it was possible to go to the laundry without traversing the restaurant but said on many occasions occupants of the motel suites go through the restaurant with laundry.[60] Ms Nicholls recognised that the problem might also arise when holiday makers wish to use the communal laundry, but observed ‘most people don’t come on holidays to wash laundry.’[61]

Evidence on behalf of the respondents

  1. [38]
    Seven witnesses testified on behalf of the respondents. Each owned or had an interest in one or more of the motel suites. The respondents also relied upon the affidavit of Gary Dillon, the town planner involved in the original development applicant on behalf of the developer. I will deal with evidence of the motel suite owners first.

Adrian Waters

  1. [39]
    Mr Waters owns motel suites 326/327.[62] He purchased the suites in 2008, understanding they could be used for long-term accommodation. His understanding was based in part upon the Community Management Statement (CMS) that accompanied the contract of sale. Mr Waters interpreted a provision of the CMS, which was to the effect that letting through the hotel pool was not mandatory, as having the corollary that he could let the suites on a long-term basis.[63] After purchasing the suites Mr Waters was unhappy with the management fees charged by the resort and decided to let on a long-term basis. He ceased to do so after receiving a ‘show cause’ notice from the applicant in May 2018. Mr Waters deposed that the suites have become a financial burden and had he understood the true limits on the use of the suites he would not have purchased them.
  2. [40]
    In cross-examination Mr Waters said the CMS was brought to his attention by his solicitor. He said he specifically asked the real estate agent marketing the suites what he could do with them but did not discuss this with his solicitor or peruse the development approval.[64]

Linda Bott

  1. [41]
    Ms Bott and her husband are the owners of unit 318/319, a dual key suite.[65] Together they are the 22nd respondent. Ms Bott stated that at the time they purchased the suite, they understood it could be used for either short or long-term accommodation, and that this was possible through the use of the hotel letting pool, occupation by a buyer, or some other means.[66] Ms Bott stated that this understanding came from the terms of the contract she executed for the property, and representations by the onsite selling agent. The contract and supporting documentation were attached to the affidavit of Ms Bott. In cross examination Ms Bott conceded that because of the intervening time period, she could not recall how the onsite selling agent had communicated to her that the unit could be used for short or long-term accommodation.[67] While Ms Bott was not taken to the letters on behalf of the Caloundra City Council dated 2004 and 2005, she stated her intention in any case had always been to list the suite for short term accommodation through the hotel letting pool.[68]

Janelle Shepherd

  1. [42]
    Ms Shepherd is the director and controlling mind of the second and 11th respondents, each of whom own motel suites at the Pelican Waters Resort. The second respondent owns three motel suites and the 11th respondent owns five.[69] Ms Shepherd was responsible for undertaking the purchases of the properties owned by the two respondents, with the first purchase of a suite taking place in 2010. In preparing for her purchases, Ms Shepherd engaged a conveyancer who advised her that under the sale contract she could reside in the suites herself, rent them on a permanent basis, or list them through the hotel letting pool.[70] In cross examination, Ms Shepherd added that she had instructed the conveyancer during the purchase to undertake all necessary searches to determine the permitted use of the suites, but did not as a part of that process see the development approval.[71] Further to the advice of the conveyancer, she stated her decision was informed by online advertisements from both Ray White and Reed Property Group which held out that a combination of short and long-term tenancy arrangements were possible for each part of the dual key suites.[72] In cross examination Ms Shepherd agreed that she did not see the two letters from Caloundra City Council addressing the development approval until 2020. On that basis the letters could form no part of her purchase decision.[73] Ms Shepherd said that had she been aware that the suites were only approved for short-term accommodation, she would not have proceeded with the purchases.[74] This was because the hotel letting pool did not provide an adequate investment return,[75] and any limitation on the use of the property would reduce the value of the property if it were to be sold.[76] Ms Shepherd gave her opinion of the present market value of the suites, subsequent to the declaration about the meaning of the development approval, in the following terms[77]

I’m well aware of the pricing that they’re being sold for and properties that I am aware that – back when the building [was] built, the top price was sold for $519,000 and at – on realestate.com at the moment a property is for sale for 155,000.

And properties sit there for years without sales. So I realise that is not an option of selling, short of a disastrous giveaway, it is not a business opportunity to sell.

Shukry Sahhar

  1. [43]
    Mr Sahhar owns motel suite 228/229[78] with his wife, Helen Sahhar. They constitute the 15th respondent. Mr Sahhar deposed that he purchased the suite in 2011. It was advertised as a two-bedroom apartment with its own laundry, kitchen and two dedicated parking positions. Mr Sahhar understood the suite was available for long-term accommodation. At the time of the purchase neither his solicitor nor the selling agent said anything contrary to this understanding.[79] Mr Sahhar also deposed that he received and relied upon the CMS for the premises. He thought the CMS ‘looked at what the land use was, and incorporated that into the permittable [sic] use of the property’, and allowed the suite to be rented to tenants on a long-term basis.[80] Mr Sahhar added that because the strata management rules and regulations provided by his solicitors described the hotel letting pool as optional, he assumed there was a corresponding option to rent the suite privately and on a long-term basis. Mr Sahhar deposed that he had been prejudiced by what he said was the applicant’s delay in bringing these proceedings and added that he faced a financial detriment through a loss in the capital value of the suite, reduced rental income, and the increased management fees of the letting pool. In cross-examination the following exchange occurred:

MR HUGHES:  And you know why you’re here?---Correct.

To try and protect your investment?---Correct.

And you know that in the past you have rented the investment on long – a long-term basis which is not a lawful use of the property as this court has declared, correct?---I’ve rented on both short and long-term without having the knowledge that it was, in your terms, not the – the case to do so.

Yes.  So you’ve benefited – you have received rental from long-term tenancies, correct?---Correct.

  1. [44]
    Mr Sahhar accepted in cross examination that at the time of the purchase he had not seen either of two letters authored by Caloundra City Council in 2004 and 2005 regarding the development approval.[81]

James Brown

  1. [45]
    Mr Brown owns motel suite 308/309 and is the 18th respondent. In his affidavit, Mr Brown deposed that when purchasing the suite, he thought it could be used for long-term accommodation. This was what he intended to do with the suite.[82] He relied upon representations made by the selling agent following discussions about his intentions for the suite, as well as advertisements for the suite. Mr Brown received advice from his solicitors regarding the purchase.[83] He stated that his solicitors undertook a variety of searches and provided a copy of both the CMS and Body Corporate Records Inspection Report. After reviewing these documents, Mr Brown stated that he believed they conveyed no restrictions on the long-term accommodation use of the suite. In cross examination he conceded he had only recently seen the two letters from the Caloundra City Council in 2004 and 2005 and accepted that these played no role in his decision to purchase the unit.[84]
  2. [46]
    Mr Brown stated that the detriment suffered by him included a reduction in market value for the suite.[85] When Mr Brown made arrangements for the purchase of the suite he provided an undertaking to his lender that he would not allow the unit to be leased as part of the short-term hotel letting pool.[86] Mr Brown thought he would lose rental income as a result of not being able to offer long-term leases and he would have to end a long-term lease with a tenant, a retiree who has lived in the property for some time.

Gary Jones

  1. [47]
    Mr Jones and his wife own two motel suites.[87] Together they are the 43rd respondent. Mr Jones deposed that at the time he purchased the suites he understood long-term accommodation was permitted. In this regard he relied upon the CMS,[88] and advertisements which promoted the use of the suites for permanent accommodation. He deposed that neither the vendor’s agent nor his own solicitor raised a concern that the suites could not be used for permanent accommodation. In cross examination, Mr Jones confirmed that the letters by the Caloundra City Council in 2004 and 2005 were first shown to him during the present proceedings, and that the information contained in them played no part in his decision to purchase the suites.[89]
  2. [48]
    Mr Jones also mentioned the change in the rates category for the motel suites. His suites were assessed in Category 27 until the second half of 2018 after which they were assessed in Category 27UT. Mr Jones consulted the Council’s website to determine that rating category had changed from ‘High-rise Units – Not Principal Place of Residence’ to the new ‘urban transitory’ category. He did not depose that this induced him to form any particular view about the use of the suites.[90]

Garry Camplin

  1. [49]
    Mr Camplin and his wife own a dual key motel suite.[91] They are the 12th respondent. The suite was purchased in 2017 partly as an investment and partly to provide ad hoc accommodation for Mr Camplin when necessary for his employment. Prior to the purchase the Camplins engaged a solicitor to conduct ‘due diligence’ searches. None of the solicitor’s enquiries raised a concern that the suites could not be used for permanent accommodation.[92] In cross-examination Mr Camplin agreed his suites had been in the letting pool since his purchase in 2017.[93] Mr Camplin wished to be an active party in the proceedings as he was concerned inactive parties may be treated differently.[94]

Gary Dillon

  1. [50]
    Mr Dillon is a town planner. While Mr Dillon provided an affidavit, he was not required for cross-examination. Mr Dillon deposed that he was responsible for the original development application on behalf of Pelican Waters Resort Pty Ltd.[95] Mr Dillon was able to locate some records concerning the original application, but some had been lost in the years since. He recalled in 2004 receiving a letter from Caloundra City Council under the hand of Mr Paul Lucy.[96] Mr Lucy was described as the ‘Manager, Growth Management’. Relevantly, the letter set out:

Council is aware that a Development Permit was granted to Pelicans Waters Resort Pty Ltd for a Material Change of Use for a Hotel/Motel (102 suites), Function Rooms, Restaurant and Multiple Dwellings (62 units) and Preliminary approval for Building Works on 17 October 2003.

Council is aware that it is the developer’s intention to strata title the 102 hotel/motel suites into 48 “dual key” and 6 x 1 bedroom self contained hotel/motel strata titles with the intention that these residential titles may be:

  • Occupied either short term by tourists and holiday makers; or
  • Be permanently occupied.

It was always contemplated by Council when it granted this approval that there would be a mix of residential tenancies throughout the complex and for that reason Council has no objection to the 62 multiple dwelling units or 48 strata titles “dual key” or 6 single bedroom hotel/motel suites being separately occupied. Council would not, however, expect the small non-self contained hotel/motel suites (that is, the smaller hotel component of the dual key suites) would be permanently occupied.

  1. [51]
    In 2005 Mr Dillon received another letter from Mr Lucy.[97] This letter is identical but for an additional sentence at the very end:

Council would have no objection to the entire self contained dual key suite being permanently occupied as a single entity.

The applicant’s submissions

  1. [52]
    The applicant addressed the reasons it said favoured the making of the orders. These may be summarised as follows:
  1. (a)
    There has been a determination that the use of the motel suites is limited to the temporary accommodation of travellers;
  2. (b)
    At least some suites have been used in manner contrary to this determination;
  3. (c)
    The orderly enforcement of planning laws is in the public interest and the applicant is the appropriate entity to bring this action in the public interest;
  4. (d)
    The use of suites contrary to their permitted use has a variety of adverse effects which the orders will serve to prevent or minimise;
  5. (e)
    The orders will serve to clarify the rights and obligations of the parties to the proceeding;
  6. (f)
    There are no, or no sufficient, countervailing matters that might lead the court to decline to make the orders.
  1. [53]
    The applicant relied upon the descriptions of negative effects as set out by Ms Evans and Ms Nicholls. These were reduced to issues concerning car parking, those arising from cooking and food preparation in the suites, and matters affecting the capacity of the premises to operate as an integrated four-star resort, consistent with its approval and location within the Sunshine Coast Enterprise Corridor.
  2. [54]
    The applicant submitted that long-term accommodation of the suites created a particular burden upon Council infrastructure. It was said that infrastructure charges were levied based on the approval for temporary accommodation only. The court was asked to conclude that permanent or long-term residential occupation of the suites would place an additional burden on Council that was not paid for through the infrastructure charges.
  3. [55]
    Next, the applicant addressed matters it expected would be relied upon by the respondents in opposing the orders. The applicant submitted that there was no community benefit in allowing the long-term or permanent occupation of the suites. It identified three topics that might be said to tend against making the orders. The first was the question of a change of mind and delay by the Council. The second was the belief by some respondents, in reliance upon the CMS and other representations made by real estate agents and the like, that long-term accommodation was permitted. The third was the financial burden that might result from being unable to use the suites for long-term accommodation. The applicant dealt with each of these topics, and it will be necessary to say more of them later in these reasons.
  4. [56]
    Finally, the applicant submitted that it was appropriate for the court to answer what is meant by the ‘temporary accommodation of travellers’ to quell the dispute between the parties. It was submitted that in the absence of directly applicable definitions in statute or the planning instruments the definitions proposed by the applicant are consistent with ordinary language and responsive to the particular issues surrounding these premises.

The respondents’ submissions

  1. [57]
    As already noted, the respondents maintained, but did not seek to reargue, the submission that the court did not have power to make the orders sought. For the reasons set out above I do not accept that submission. The respondents also submitted[98]

it is not a proper approach to the exercise of the discretion under section 11(4) of the PECA to make orders against every Respondent either on the assumption that all Respondents are acting unlawfully or on the basis of a finding that some Respondents are, or may be, using the Hotel/Motel Suites unlawfully.

  1. [58]
    This argument sought to align the discretionary considerations for the making of orders about a declaration, pursuant to section 11 of PECA, with the statutory requirements of enforcement orders, pursuant to Chapter 5, Part 5 of the Planning Act 2016 (Qld). The latter requires satisfaction that a ‘development offence’[99] has been committed, or will be if the order is not made. Consideration of an application for an enforcement order will necessarily require the identification of the development offence in question. But there is no reason to think the discretion pursuant to section 11 of PECA should be read as being constrained in the same way. No words in the section state or imply such a restraint – the discretion is broadly conferred. There is a requirement that any order be about the declaration, which requires some connection or nexus between the declaration and the order. But that does not involve a limitation or restriction of the kind raised by the respondents. In my view the discretion is broad and the fact that not all the motel suites have been, or are being, used contrary to their permitted does not prevent orders pursuant to section 11 of PECA.
  2. [59]
    As to the merits of the application, the respondents listed many matters said to militate against making the orders. These may be distilled to the following
  1. (a)
    The applicant has conducted itself in a manner that means it should not succeed in the application. This includes representing, as the Caloundra City Council, that long-term accommodation was permitted, and tolerating this use for much of the life of the resort;
  2. (b)
    The respondents acted in good faith and on the advice available when they purchased the suites, and as such should not be disadvantaged by a rigid application of the planning provisions. This is said to be especially so where the orders may have significant adverse financial effects;
  3. (c)
    No real town planning consequences flow from long-term accommodation in the motel suites and the adverse effects described by Ms Evans and Ms Nicholls are likely to arise whether or not the suites are permanently occupied;
  4. (d)
    The terms of the proposed orders remain ambiguous and uncertain.
  1. [60]
    In relation to the definition of ‘temporary accommodation of travellers’ the respondents maintain that it is not possible to discern a satisfactory meaning, so one should not be attempted.

Should there be orders restraining the use of the motel suites?

  1. [61]
    Of the six matters relied upon by the applicant in support of orders (as summarised in paragraph [52] above) the first three matters may be accepted as being established. First, I have already determined that the use of the motel suites is limited by the approval to use for the temporary accommodation of travellers. Secondly, it could not be disputed that some of the suites have been used for long-term accommodation, contrary to this limitation. So much is admitted by some respondents,[100] and confirmed by documents from the Residential Tenancies Authority.[101] As to the third matter, the applicant as the relevant local government authority is an appropriate entity to seek to enforce the planning provisions. What remains to be considered is the extent of any adverse impacts flowing from the use of the motel suites and the significance of any countervailing consideration relied upon by the respondents, to decide whether, in the exercise of the discretion conveyed by section 11 of PECA, orders should be made.

Adverse effects?

  1. [62]
    I am satisfied that the applicant has established that the use of the motel suites contrary to their approved use has negative effects on the resort. Ms Evans and Ms Nicholls both detailed these effects and I accept their evidence. The first issue concerns carparking at the resort. The absence of allocated spaces for the motel suites, and the limited number of unallocated carparks, must reflect the expectation that tourists and travellers are less likely to have private vehicles than long term occupants.[102] The use of the carparks by long term occupants of the suites has produced a shortage of carparks for guests at the resort. This has been an issue for some time,[103] and it detracts from the operation of the resort and the amenity of its guests. Common sense and experience show that long-term occupants are more likely to have cars than tourists or travellers. As long as there is long-term accommodation of the suites there is likely to be issues with car parking.
  2. [63]
    Next, the lack of storage space in the motel suites, which similarly reflects their permitted short-term use, creates difficulties for long-term occupants. Some occupants store items on balconies. There is also the pedestrian traffic associated with long-term occupants entering and exiting through the lobby, sometimes with laundry. This stands in contrast to the separate entrance provided for the permanent occupants of the dwelling units. Together, these matters detract from the ‘feel’ of the resort and impacts upon the amenity of guests and visitors. One of the more significant adverse effects arises from the absence of real kitchen facilities in many of the rooms. The smaller rooms in the motel suites do not have adequate kitchen facilities. When occupants cook in them, it can create problems with odour and the build-up of rubbish. In particular, the smaller rooms only have a basin in the bathroom, an arrangement that is entirely unsuitable for food preparation. It is common sense that long-term occupants are more likely to want to prepare food in the suites than tourists or travellers. The use of makeshift cooking appliances in the smaller rooms of the suites carries the risk of setting off the fire alarms or even the possibility of fire. The fact that a kitchen was apparently installed by the owner of Lot 314 makes no difference to the adverse effects of cooking in those motel suites that lack adequate facilities.
  3. [64]
    Finally, the occupation of suites for long-term accommodation reduces the number of motel suites available for short-term accommodation, whether in the letting pool or otherwise. I accept Ms Evans evidence of being unable to host some conferences because of a lack of available motel suites for short-term accommodation. The reduction adversely affects the ability of the resort to operate as an integrated four-star resort, as it was designed and approved. In turn this has some effect on the local economy, as described by Ms Evans.[104] Support for this conclusion may also be found in the evidence of the town planner, Mr Adamson, who saw this as a ‘key issue’.[105]
  4. [65]
    Cumulatively, the negative effects of the long-term occupation of motel suites have a substantial detrimental effect on the amenity and operation of the resort. The evidence before me establishes a substantial proportion of the rooms were being occupied on a long-term or permanent basis. Ms Nicholl’s deposed that in September 2020 she estimated as many as 27 rooms were being occupied that way.[106] The results of the use of some motel suites for long-term accommodation are not trivial and would be avoided if the suites were used in accordance with the approval.
  5. [66]
    I note that the applicant also argued that the use of some motel suites for long-term accommodation has caused an unplanned for burden on infrastructure. It was submitted that I should conclude the original infrastructure charges were calculated on the assumption the suites would not be used for long-term accommodation, and their use in this way has created a ‘private advantage’ for the respondents at the expense of the applicant and the community.[107] I do not accept the applicant’s submission in this regard. Even if the infrastructure charges were levied on an assumption that was later falsified, I do not think the present respondents have derived any significant private benefit as a result. The evidence of any actual disadvantage to the applicant does not rise above Mr Adamson’s opinion that ‘it is likely the infrastructure demands [of long-term occupancy of the suites] exceed those anticipated by the Council’.[108] As well, the applicant has not demonstrated how any of the present respondents are in a better position because of the initial calculation of infrastructure charges. It may be surmised that if long-term accommodation were a permitted use the applicant would levy higher rates, but even if this were the case that would not seem to be a significant matter. In the result I do not accept the burden on Council infrastructure is a matter that favours the application.
  6. [67]
    I would also note that it was suggested by the respondents that the effects of the long-term occupation of the motel suites would not be much different to the result of serial short-term occupancy. I do not accept this. Experience and common sense indicate that the behaviour and requirements of long-term residents are likely to be different to those of tourists or travellers. Short-term visitors are much less likely to prepare food in their rooms or need to do laundry during a stay. Fewer will have cars, compared to long-term residents. It defies common sense to think that long-term occupation of the motel suites does not significantly impact on the amenity of the resort. Neither do I accept the suggestion made by the respondent to Ms Evans that the issues can be adequately controlled by the management of the resort. As Ms Evans said, if that were possible the matters would have been resolved some time ago.[109]
  7. [68]
    In my view, the applicant has established there is utility in, and a need for, orders of the kind that they seek to restrain the use of the motel suites. In coming to this conclusion, I have been mindful that the proposed orders are in the nature of restraint and do not trespass upon the respondents vested rights in a more intrusive way. That is, the applicant does not seek orders of a kind that ‘should only rarely be appropriate’.[110]

Countervailing considerations

  1. [69]
    The matters relied upon by the respondents as militating against the making of order are summarised at paragraph [59] above. I will deal with each topic in turn.

Disentitling conduct by the applicant?

  1. [70]
    First, the respondents submitted that the applicant has conducted itself in a manner that should disentitle it to the benefit of the orders it seeks. The conduct includes representations made by the Caloundra City Council in the letters sent in 2004 and 2005, acceptance of or acquiescence to the CMS by the applicant, the ‘change’ in the applicant’s rates categories, and delay in pursuing enforcement of the terms of the development approval. It is convenient to deal with the last point first.
  2. [71]
    The respondents expressly concede that the applicant acted in a reasonably timely fashion after being made aware of a concern about the use of motel suites in 2017.[111] There is no complaint of delay from this point. Rather, the submission of the respondents is that the determination, some 16 years after the building was approved, that the use of the motel suites was limited to the temporary accommodation of travellers was the culmination of a ‘chain of events outside of [the respondents’] control’.[112] The length of time taken to raise and determine the approval issue is said to have prejudiced the respondents. As discussed further below, it may be accepted that some respondents have suffered disadvantage because of decisions or assumptions they made about the permitted use of the motel suites. But this delay and disadvantage cannot be attributed to the applicant. The applicant cannot be expected to monitor and enforce every single planning approval for which it is responsible. Their system of responding to complaints when raised is a reasonable one. The evidence establishes that when the applicant became aware of concerns they acted with reasonable promptness.[113] There is no basis for a conclusion that the applicant caused or contributed to a delay in the determination of meaning of the approval in a manner that should deny them the relief that is sought.
  3. [72]
    The representations of the applicant in its earlier guise as the Caloundra City Council are similarly unpersuasive. First, the evidence establishes that none of the respondents were aware of these letters when they purchased motel suites.[114] The representations in the letters could not have had a bearing on any decision made by the respondents in relation to the purchase or use of the suites. Secondly, the fact that an employee of the then Caloundra City Council sent the letters would not itself create an estoppel preventing the applicant from now seeking to enforce the development approval. So much is made clear by the decision of the Court of Appeal in Wort v Whitsunday Shire Council [2001] QCA 344; (2001) 116 LGERA 179. An estoppel might only arise where not holding the applicant to this earlier representation would produce grave injustice to the respondents and greater harm to the public interest when compared to requiring the applicant to stand by what was written in 2004 and 2005.[115] There is insufficient evidence to establish this would follow were the applicant not held to the earlier representation. Thirdly, according to my construction of the development approval, the representation of the council employee in 2004 and 2005 that some of the suites could be permanently occupied was wrong. In this regard it is also to be noted that the letters are of no relevance to the meaning of the development approval.[116] In these circumstances the earlier representations, and the current position of the applicant seeking to enforce the development approval, do not tell significantly against making orders restraining the use of the motel suites.
  4. [73]
    The respondents sought to make something of the position adopted by the applicant in relation to rates for the motel suites. This did not appear to extend beyond the circumstance that, at times, the applicant may have levied rates for some suites as a ‘principal place of residence’.[117] It was submitted this indicated that the applicant was aware of, and tolerated, some of the suites being used for permanent occupation. This conclusion is not consistent with the evidence. Mr Thompson on behalf of the applicant made it clear that the determination of rates categories is decided, at least in the first instance, from information provided by the owner. The allocation of a category is not a way to identify the permitted use of land. By way of example, in the case of the sixth respondent the applicant relied upon her representation that the suite was a principal place of residence until there was reason for it to be examined.[118] I am not able to conclude that the applicant acquired specific knowledge of the permanent occupation of motel suites and, by failing to act earlier, should be taken as tolerating that position.
  5. [74]
    Other rates notices referred to by the respondents[119] show some suites were assessed as being within Category 27 (‘High-rise Units – Not Principal Place of Residence’) or the newer category 27UT (‘High-rise Units – Urban Transitory Accommodation’). As explained by Mr Thompson,[120] the leader of the applicant’s rates’ department, the latter category incorporated what used to be a separate tourism levy and is not an indication of the permitted use of the motel suites. The 18th respondent, Mr Brown, claims that he was influenced by the continuing assessment of his motel suite as Category 27, rather than 27UT, to think it was not limited to use for ‘transitory’ accommodation. This is a disingenuous claim. The new category was only introduced in the 2018/2019 financial year. At all relevant times the motel suite was categorised as ‘High-rise Units – Not Principal Place of Residence’. There is no reasonable basis for thinking the assessment category indicated the applicant knew of or tolerated long-term occupation of the motel suite. Nor is there a reasonable basis for thinking that the rates category said anything about the permitted use of the motel suites, as suggested by Mr Brown.
  6. [75]
    The evidence does not support a conclusion that applicant led the respondents to believe they could use the suites for long-term or permanent accommodation.
  7. [76]
    The final matter to consider is the significance of the CMS. The essential argument of the respondents is that the CMS contained indications that the permitted use of the motel suites included long-term or permanent accommodation and the applicant, by ‘endorsing’ the CMS pursuant to legislation, has acquiesced to these uses. There are at least two difficulties with this argument.
  8. [77]
    First, the CMS itself does not support a conclusion that long-term or permanent occupation of the motel suites was a permitted use. The CMS uses the term ‘Hotel Lots’ to describe what I have called the motel suites. The dwelling units on levels five to 12 are described as ‘Apartment Lots’. ‘Lot 101’ is, in effect, the ground floor of the building where various services may to be found. Part 5 of the CMS deals with the ‘Use of Lots’. Clause 5.1 and 5.2 provide:[121]

5.1 Subject to these by-laws Apartment Lots and Hotel Lots must be used for residential purposes only (which term shall include such use as part of a hotel or other accommodation arrangement).

5.2 Lot 101 may be used for (in whole or in part):

  1. (a)
    for the provision of caretaking, letting and administration services to other lots in the Scheme and any other business associated with conducting an accommodation business,
  2. (b)
    for conducting conferences and functions and for providing entertainment, catering and other services;
  3. (c)
    as a restaurant, bar, wine bar, bottle shop, meeting, function and conference centre
  4. (d)
    as licenced premises, and as an entertainment and function area;
  5. (e)
    as a gym, fitness centre and day spa, and for purposes ancillary to such uses.
  6. (f)
    for retail purposes (including use as a licensed bottle shop, or a bakery) or for professional offices;
  7. (g)
    for the provision of laundry and cleaning services;

and for any other purposes permitted under relevant town planning legislation from time to time.

  1. [78]
    While Clause 5.1 uses the term ‘residential’, it is clear this is in contrast to the uses for Lot 101 set out in Clause 5.2. The word ‘residential’ in this context cannot be taken to imply, as some of the respondents claim, that long-term or permanent occupation was permitted. It says nothing of the length of any residence, only that the ‘hotel lots’ cannot be used for purposes such as those reserved for Lot 101. That is, the CMS does not, and could not reasonably be thought to, convey the meaning the respondents suggest.
  2. [79]
    Secondly, and even if the CMS conveyed this meaning, the endorsement of it by the applicant does not amount to approval of this use. Chapter 2, Part 6 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) provides for community management statements. A CMS is binding on the body corporate, a member of the body corporate, and any person who is a registered proprietor or occupier of a lot or common property.[122] But a CMS is of no effect unless it is recorded.[123] It may be recorded only if the relevant planning body (in this case the applicant) has endorsed on the statement a certificate, called the ‘community management statement notation’.[124] All that is required of the planning body is to state it has noted the CMS and the planning body is required to so endorse the ‘community management statement notation’ on the CMS.[125] It is clear that where the BCCMA uses the word ‘endorse’ it is used in the sense of writing or subscribing something on a document, not in the sense of adopting or approving of the contents of the document. In no way could these provisions be read as indicating, when the applicant fulfilled its statutory obligation to endorse the ‘community management statement notation’ on the CMS, it was taken to have approved all the terms of the CMS.
  3. [80]
    In these circumstances, even if some of the respondents misunderstood and relied upon the CMS, that misunderstanding was not brought about by the applicant.
  4. [81]
    I am satisfied that the applicant has not conducted itself in a manner that should disqualify it from obtaining the orders it seeks.

The respondents acted in good faith and should not be penalised by a rigid application of the development approval

  1. [82]
    Most of the respondents point to information provided by other persons, including real estate agents and others involved in the sale and marketing of the motel suites. They say this information included statements that the motel suites could be used for long-term or permanent accommodation. The argument continues that in these circumstances it would be unjust to enforce the limitations of the development approval, especially where to do so would result in some financial detriment. It is first to be observed that the information relied upon by the respondents did not come from the applicant. But the fact that the information did not come from the applicant does not make it irrelevant. If the respondents, having made appropriate enquiries, were misled and if they would suffer adverse consequences because of the orders, this is a matter to be considered when deciding if orders should be made.
  2. [83]
    The sum of the evidence about various respondents being misled appears to be as follows:
  1. The motel suites were advertised for sale using terms that suggested they were available for permanent occupation;[126]
  2. Some documents relating to the purchase of motel suites used the terms ‘residence’ or ‘residential’, apparently causing some respondents to interpret this as long-term or permanent occupation;[127]
  3. Some respondents received advice from solicitors or conveyancers that the motel suits could be permanently rented,[128] or at least were not told they could not be permanently occupied;[129]
  4. Some respondents read the CMS as indicating long-term or permanent occupation of the motels suites was a permitted ‘residential’ use.
  1. [84]
    I have already set out why this last point does not represent a reasonable reading of the CMS. Otherwise, with some qualifications, it may be accepted that there were indications or representations to the effect that long-term or permanent occupancy was permitted. One qualification is to the claim by Mr Sahhar (the 15th respondent) that because the strata management rules made participation in the hotel letting pool optional, he was permitted to let his suites on a long-term basis. The illogic of this claim is manifest. Just because Mr Sahhar did not have to make his suites available to the hotel letting pool could not give rise to a belief that his use of the suites was otherwise unrestricted. The obvious conclusion from the hotel letting pool being optional is that it was open to Mr Sahhar to make his own arrangements for the letting of his suites, in accordance with whatever restrictions or limitations were imposed by the development approval, CMS or otherwise.
  2. [85]
    Having accepted that there is some basis for the respondents’ assertions that they believed long-term occupation was permitted, it is necessary to note other relevant circumstances. With the exception of Ms Shepherd (the controlling mind of the second and 11th respondents), none of the respondents specifically asked about the permitted use of the motel suites. Each made assumptions or reached conclusions based upon limited inquiry. None of the respondents, including Ms Shepherd, took steps to obtain the development approval and check what it revealed as to limitations on land use rights. It was open to any prospective purchaser to obtain a copy of the decision notice giving approval for the development.[130] It is to be expected that those providing legal advice to prospective purchasers would have been aware of this. In fact, one respondent (Mr Brown, the 18th respondent) exhibited correspondence suggesting he was asked by his solicitor if he wished them to carry out town planning searches in addition to the standard searches.[131] Any such inquiry would have revealed the terms of the development approval. In Ms Shepherd’s case her inquiry was to ask a conveyancer if she could live in the motel suites or let them on a permanent basis. While at one point she appeared to contend in her evidence that she also received some legal advice,[132] this suggestion was inconsistent with her affidavit evidence and otherwise Ms Shepherd was clear that the advice about the use of the suites came from the conveyancer.[133]
  3. [86]
    Had any of the respondents enquired about the development approval they would have been alerted to the issue at the heart of this dispute: the permitted use of the motel suites. As discussed in Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Ors [2019] QPEC 52; (2020) QPELR 480, the approval was subject to the condition that[134]

the use of the premises for the purpose of a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwellings shall at all times accord with the criteria set out within the Hotel, Motel, Function Rooms, Restaurant and Multiple Dwellings definitions in Section 9.2 of the Planning Scheme.

  1. [87]
    While the respondents have contested the meaning of the approval, the Court of Appeal in refusing leave to appeal against my declaration stated (emphasis added)[135]

Condition 5 did not use the formulation “Hotel/Motel (102 suites)”. It referred to use of the premises “for the purpose of a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling”, requiring each of those uses to accord with the use definitions in Section 9.2 of the Planning Scheme. The requirement is, in our view, unambiguous. If part of the premises was to be used as a Motel, then it had to be on the basis that it was reserved for temporary accommodation for travellers.

  1. [88]
    This plain meaning should have been apparent to anyone who had occasion to peruse the development approval. There are other matters as well that should have alerted the respondents to exercise caution before assuming long-term accommodation was a permitted use. The suites themselves are on the lower floors of a resort where business was conducted under the name of an international hotel chain. They are of a smaller size and largely lacking the types of facilities that could be expected for long-term accommodation. They are described as ‘Hotel Lots’ in the CMS, which the respondents apparently read closely. As well, some of the contracts of sale are expressed as being subject to ‘forward holiday bookings’ and the like. In short, there was ample to alert the respondents and the means existed for further inquiry to be made. In my view none of the respondents could be said to have conducted adequate inquiries before assuming they could use the motel suites for long-term occupation.
  2. [89]
    Each respondent complains of a degree of financial disadvantage in the event of the enforcement of the conditions of the development approval. This is expressed either in terms of a reduction in rental income compared to long-term occupation or a diminution of the value of the suites, or both. It may be that some respondents will not achieve a return on their investments in accordance with their expectations if the orders are made. But it is also the case that those respondents who have enjoyed higher rental returns from long-term occupancy have done so contrary to the permitted use of the suites. While this may have been inadvertent, it remains the case that these respondents have enjoyed a ‘private advantage’ that others cannot enjoy.[136] It is unfortunate that some respondents may be financially disadvantaged because of assumptions they made about the permitted use of the suites, but this is not a matter that should result in the ‘unlawful’ use of the suites being permitted. Indeed, it has not been suggested by the respondents that this Court ‘can, or should now, authorise some other use [of the suites] that is not … within the authorised use, as determined by this Court’.[137]
  3. [90]
    Beyond the loss of expected financial returns dealt with above, I accept that enforcement of the development approval will particularly affect the sixth respondent, Ms Tira, her mother and also the tenant in the 18th respondent’s motel suite. The sixth respondent and her mother used to live in the motel suite, but since the beginning of this proceeding moved to a unit at a different resort. The 18th respondent has let his motel suite to a tenant for several years. The tenant is a retired man who has no wish to move.[138] The effect of the declaration that has already been made would prevent these people lawfully occupying the motel suites other than on a temporary basis. That is, they will no longer be able to live there permanently. This is an unfortunate consequence, but it is the result of the limitations of the development approval. It is not a sufficient reason to avoid the effect of the approval, though, as the applicant concedes, it is appropriate to modify the orders to ease its consequences.
  4. [91]
    In my view, there are no matters of genuine public interest raised by these considerations, or matters that individually or cumulatively should result in refusal of the application.

Allowing long-term accommodation to continue will not produce significant effects

  1. [92]
    There was no real attempt by the respondents to develop this contention. For the reasons given at paragraphs [64] and [67] above I do not accept that long-term occupation of the motel suites will not produce significant, negative effects, including town planning consequences as described by Ms Evans and Mr Adamson.

Are the proposed orders ambiguous or uncertain?

  1. [93]
    I do not accept the respondents’ submission that the proposed orders are ‘vague and uncertain’ and inject a ‘level of complexity that is ambiguous, inconsistent and [serves] no purpose’.[139] The proposed orders would, if made, clearly set out the respective rights and obligations of the parties. The orders would include a definition of what is meant by ‘temporary accommodation of travellers’ and, in my view, would assist the parties to better understand the permitted use of the motel suites. This raises for consideration the disputed issue of whether there should be a definition of the term.

What is meant by ‘temporary accommodation of travellers’?

  1. [94]
    At the time I declared the use of the motel suites was limited to ‘the temporary accommodation of travellers’ I considered it impossible, on the material then before the Court, to define the term.[140] In February 2021 I declined to fix a definition drawn largely from the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) as had been proposed by the applicant. In doing so I stated[141]

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.

  1. [95]
    Having now heard substantial evidence about the use of the motel suites, the negative effects of long-term use, and the position of the respondents, I am now in a position to determine what is ‘temporary’ for the purpose of the development approval. It is appropriate that I do so now. It will assist the parties to understand their rights and obligations and would be consistent with the principles for exercising jurisdiction found in section 10 of PECA.
  2. [96]
    The respondents did not make submissions as to the meaning of the term. That is understandable in the context of their opposition to any orders or attempt at definition. The applicant proposed that ‘temporary’ be defined as[142]
    1. (a)
      the term ‘temporary is a period not exceeding three (3) consecutive months in any given period of twelve (12) months; and
    2. (b)
      the expression ‘traveller’ means person who are transient occupants of the Motel Suites not using, or intent upon using, the Motel Suites as their principal place of residence.
  3. [97]
    While these proposed definitions are not drawn from the approval or from planning instruments in force at the time of the decision notice, they are not entirely unanchored. The words temporary and traveller are to be approached according to their ordinary meaning. It is a question of fact to determine the meaning of these words in the development approval.[143] By common usage, temporary is to be contrasted with permanent. While in a very broad sense temporary could mean anything that is not permanent, the better view is that the word temporary, in the context of the development approval, implies a more significant temporal limitation. The term is found in the approval in relation to a limitation on the use of the part of the premises to be used as a motel. Common usage suggests a motel is a place providing only short-term accommodation for persons who usually reside in a different location. It would not generally be expected that a motel would provide long-term or permanent accommodation.
  4. [98]
    The premises were approved as an integrated resort, with motel suites, restaurant, function rooms and multiple dwellings.[144] The nature of this approval, especially the contrasting provision for motel suites and multiple dwellings, also suggests that accommodation within the motel suites would be short-term. ‘Short-term’ may be synonymous with temporary, but it is no more precise. It is necessary to set some time limit to give meaning and clarity to the development approval. Legislation and planning instruments enacted since the development approval refer to ‘short term accommodation’ and define this as accommodation for tourists or travellers of less than three consecutive months.[145] This definition is of course not binding, but it is helpful to have regard to current definitions to settle the permitted use of the motel suites today.
  5. [99]
    I accept that ‘temporary’ should be defined as proposed by the applicant. To do so gives clarity, is consistent with common usage and current legislative definition, accommodates particular uses by some of the respondents,[146] and properly recognises the effect of the development approval.
  6. [100]
    A definition of the term traveller is perhaps of less significance. But given that the term qualifies the permitted use to some extent it is appropriate to define it as well. Seen in the context of the approval the term plainly means someone who is passing through and who is not ordinarily resident at the place. Because of this I accept that I should adopt the definition proposed by the applicant, which places suitable emphasis on this distinction by excluding persons who would use the motel suites as a principal place of residence.

Orders

  1. [101]
    For these reasons I will allow the application and make orders in the terms set out below. I have removed proposed order 1(a)(i) from the draft as it was framed by the applicant. I have done so because it was in my view unnecessary given the definition of ‘temporary’ discussed above. Otherwise, I have changed some of the dates in the draft to reflect the time that has elapsed since I reserved my decision and to give effect to the intent of the order.
  1. The respondents must, unless and until all appropriate town planning approvals are obtained (and relevant conditions satisfied):
    1. (a)
      refrain from entering into any arrangements for letting, or otherwise allowing the use of, any of lots 201-218, 301-318 and 401-418 on SP168156 (including either or both individual suites within any dual-key arrangement) (Motel Suites) for anything other than the temporary accommodation of travellers;
    2. (b)
      in particular the respondents must refrain from entering into, or permitting or facilitating entry into, a lease, licence or other arrangement for the occupation of any Motel Suite for other than the temporary accommodation of travellers;
    3. (c)
      in the event there is currently in place a lease, licence or other agreement that purports to permit the use of the Motel Suites for anything other than the temporary accommodation of travellers, the respondent, cause the tenant or occupant to vacate the Motel Suite:
      1. upon the expiration of the current term of the lease, licence or agreement; or
      2. by 3 July 2022

whichever is the sooner;

  1. (d)
    by 3 February 2022, notify 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 permitting the use of, the Motel Suite only for the temporary accommodation of travellers) of the requirements in paragraphs 1(a), (b) and (c) above;
  2. (e)
    by 3 February 2022, provide a copy of the reasons for judgment of this Court delivered on 8 November 2019 and the reasons for judgment delivered by the Court of Appeal on 5 June 2020 (the Relevant Decisions), and this order, to any agent that the respondent has engaged or engages to manage any of the Motel Suites; and
  3. (f)
    provide a copy of the Relevant Decisions and this order to any prospective purchaser or purchaser of, or any other person intending to take an interest in, any of the Motel Suites if at any time the respondent or its assignees at law proposes to sell or otherwise transfer, or does sell or otherwise transfer, its interest in the motel suite.
  1. The suspension of the restraint in paragraphs 1(a) and (b) that is provided for in paragraph 1(c) is only available to a respondent if he, she, they or it notifies the Sunshine Coast Regional Council in writing of the existence of any current lease, licence or other agreement (and provides a copy of same) by 3 February 2022, otherwise the restraint has effect as and from 3 December 2021.
  2. The respondents, unless and until all appropriate town planning approvals are obtained (and relevant conditions satisfied), must refrain from occupying or permitting others to occupy any Motel Suite other than on a temporary basis as a traveller.
  3. The obligations in paragraphs 1(e) and (f) of this order do not apply to the non-active parties who provided notice of such matters pursuant to paragraphs 6(a) and (b) of my order of 10 February 2021.
  4. For the purposes of this order and the Development Approval given on 17 October 2003:
    1. (a)
      the term ‘temporary’ mean a period not exceeding three (3) consecutive months in any given period of twelve (12) months; and
    2. (b)
      the term ‘traveller’ means persons who are transient occupants of the Motel Suites not using, or intending to use, the Motel Suites as a principal place of residence.

Footnotes

[1]Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Ors [2019] QPEC 19.

[2]Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Ors [2019] QPEC 52; (2020) QPELR 480.

[3]13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120.

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

[5]The twenty-second and twenty-fifth respondent have been represented by P&E Law, but each filed a notice that they were acting in person (Court Documents 59 and 75). These two respondents did not appear at the hearings in February or March 2021.

[6]T.1-5.9-35; written submissions of the respondents at paragraphs [21] and [22].

[7]Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 2) [2021] QPEC 23, [21]-[23].

[8]Ibid, [24]-[30].

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

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

[11]Planning Act 2016 (Qld) Chapter 5, Part 2.

[12]Planning Act 2016 (Qld) section 180(3).

[13]Di Demenico v Hervey Bay City Council [2000] QPEC 21; [2000] QPELR 297; Hanrahan & Anor v Bundaberg Regional Council [2003] QPELR 137; Bundaberg Regional Council v Ross & Anor [2011] QPEC 137; [2011] QPELR 137.

[14]Sedevcic (1987) 10 NSWLR 335, 339-341.

[15]The Court also cited with approval Tynan v Meharg (1998) 101 LGERA 255, 259-260.

[16]Paragraphs [3]-[5], [45]-[55] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (Court Document 29).

[17]Paragraphs [33]-[34] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (Court Document 29).

[18]Paragraph [79] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (Court Document 29).

[19]Paragraph [68] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (Court Document 29).

[20]The approval and its attachments were annexed to the certificate of the Chief Executive of the Sunshine Coast Regional Council, issued pursuant to section 251 of the Local Government Act 2009 (Qld). The certificate is court document 31 and copies can be found in exhibit 3.

[21]T.1-56.24-26.

[22]T.1-56.15-17.

[23]T.1-69.18-35.

[24]Paragraph [71] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (Court Document 29).

[25]T.1-71.3-26.

[26]T.1-75.9-12.

[27]T.1-72.10.

[28]Court document 74.

[29]Court documents 72 and 98.

[30]Paragraph [30] of the affidavit of James William Brown, 11 September 2020, Court Document 76.

[31]Paragraph [34]-[36].

[32]Paragraph [1] of affidavit of Melissa Gayle Evans, 3 June 2019, Court Document 30; T.2-3.9.

[33]Evans affidavit, paragraphs [31]-[34].

[34]Evans affidavit, paragraphs [39]-[42].

[35]T.2-17.44-47.

[36]Evans affidavit, paragraphs [50]-[52].

[37]Evans affidavit, paragraphs [43]-[47].

[38]Evans affidavit, paragraphs [55]-[56].

[39]Evans affidavit, paragraphs [63]-[64].

[40]T.2-6.5-11; T.2-7.15; T.2-9.

[41]T.2-12.1-4. This dwelling unit on the seventh floor had, in effect, the same owner as motel suite 307: Janelle Sheppard, the director of the second and 11th respondents.

[42]T.2-13.9-15.

[43]T.2-10.17-20.

[44]T.2-12.1.

[45]T.2-11.23-27.

[46]T.2-16.12-15.

[47]T.2-14.1-10. This answer somewhat contradicted Ms Evans’ assertion in her affidavit, put in a different way, that the unavailability of suites in the letting pool had an economic impact on the operations of the resort: see paragraph [32] above and [64] of Ms Evans’ affidavit.

[48]T.2-17.16-19.

[49]T.2-18.30-T.2-19.20.

[50]T.2-21.19-42. I have listened to the audio recording of this passage of evidence and corrected errors in the transcript.

[51]I understood this to be a reference to real estate agents not providing the resort with the details of who, or how many people, were residing in motel suites.

[52]T.2-23.1-14.

[53]T.2-31.38-40.

[54]T.2-32.26-32.

[55]Affidavit of Kelly Jane Nicholls, 1 October 2020, Court Document 73.

[56]T.2-35.17-21.

[57]Nicholls affidavit, paragraphs [18]-[20]. In cross-examination Ms Nicholls said, ‘when travel in Queensland ceased due to COVID, we had no guests staying in-house, but the unallocated parking that is utilised by levels 2, 3 and 4 was 50 per cent full.’ (T.2-41.8-10.)

[58]Nicholls affidavit, paragraphs [26]-[27].

[59]T.2.36.12-34.

[60]T.2-50.40-45.

[61]T.2-51.25.

[62]Lot 315 on SP168156.

[63]Affidavit of Adrian Waters, 3 August 2020, Court Document 60, paragraphs [1]-[8].

[64]T.1-82.14-20.

[65]Lot 311 on SP168156.

[66]Affidavit of Linda Julie Bott, 6 August 2020, Court Document 62, paragraph [1].

[67]T.2-96.5-8.

[68]T.2-95.10-14.

[69]Affidavit of Janelle Joy Shepherd, 20 August 2020, Court Document 66, paragraphs [1]-[6]. The suites are Lots 202, 203, 218, 212, 301, 303, 304 and 305 on SP168156.

[70]Shepherd affidavit, paragraph [27].

[71]T.3-3.44-T.3-4.11.

[72]Shepherd affidavit, paragraphs [30]-[31] and exhibits ‘JJS-17’ and ‘JJS-18’.

[73]T.3-4.30-35.

[74]Shepherd affidavit, paragraph [25].

[75]T.2-104.17-27.

[76]T.3-5.13-23.

[77]T.3-7.4-11.

[78]Lot 216 on SP168156.

[79]Affidavit of Shukry Sahhar, 31 August 2020, Court Document 71, paragraph [16].

[80]T.2-61.17-20.

[81]T.2-63.24-43.

[82]Sahhar affidavit, paragraph [15].

[83]Sahhar affidavit, paragraphs [14]-[15] and [21].

[84]T.2-75.26-75.33.

[85]Affidavit of James Brown, 2 September 2020, Court Document 76, paragraph [34].

[86]Brown affidavit, paragraph [36].

[87]Lots 415 and 416 on SP168156

[88]Affidavit of Gary Wayne Jones, 18 December 2020, Court Document 86, paragraphs [18] and [26]. In particular, Mr Jones relied upon the words ‘residence’ and ‘residential’ as implying long-term accommodation.

[89]T.2-83.24-35.

[90]Jones affidavit, paragraphs [34]-[36].

[91]Lot 213 on SP 168156 (suites 222 and 223).

[92]Affidavit of Garry Andrew Camplin, 17 February 2021, Court Document 95, paragraphs [3]-[6].

[93]T.2-91.10.

[94]T.2-93.5.

[95]Affidavit of Garry Robert Dillon, 14 August 2020, Court Document 64, paragraphs [10]-[11].

[96]Exhibit ‘GRD-5’ to Mr Dillon’s affidavit.

[97]Exhibit ‘GRD-6’ to Mr Dillon’s affidavit.

[98]Respondents’ written submissions at p. 15 [43].

[99]Planning Act 2016 (Qld), s 161.

[100]Paragraph [12] of affidavit of Adrian Waters, affirmed on 3 August 2020 (court document 60); paragraphs [56]-[58] of affidavit of Janelle Shepherd, affirmed on 14 August 2020 (court document 66).

[101]Marked as ‘FG-1’ in the proceeding.

[102]Confirmation of this may be found in the decision of the Council to relax conditions concerning the number of carparks because part of the resort was intended for short-term accommodation: exhibit 3.4, p 3 of CEO’s certificate. See also 13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120, [7].

[103]Issues with carparking was raised at a meeting of the body corporate in 2017: exhibit 6.19, p 228.

[104]See paragraph [32] and footnote 36 of these reasons.

[105]See paragraph [24] of these reasons.

[106]Paragraph [16] of the affidavit of Kelly Jane Nicholls, 1 October 2020 (Court Document 73).

[107]Applicant’s written submissions at pp. 14-15 [52]-[56].

[108]Paragraph [34] of exhibit SA-2 to affidavit of Shane Adamson, affirmed 3 June 2019 (court document 29).

[109]T.2-32.26-32.

[110]Cf. Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217, [12]. This decision concerned enforcement orders made pursuant to section 180 of the Planning Act 2016 (Qld), but the reasoning is apposite in this case where the orders sought share some characteristics of an enforcement order.

[111]Respondents’ written submissions, p. 19 [48].

[112]Respondents’ written submissions, p. 22 [67].

[113]See the evidence of Damien Frey summarised at paragraph [26] above.

[114]They were not discovered until the middle of 2020 – exhibit 9.

[115]Wort at [13].

[116]Aqua Blue Noosa Pty Ltd v Noosa Shore Council [2004] QPEC 74; [2005] QPELR 318; Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632.

[117]Respondents’ written submissions, p. 16 [46] and pp. 30-31.

[118]See paragraph [27] above.

[119]Affidavit of James William Brown, 11 September 2020, exhibit ‘JWB-13’ (Court Document 76); affidavit of Gary Andrew Camplin, 19 February 2021, exhibits ‘GAP-10’ and ‘GAP-11’ (Court Document 95.

[120]See paragraph [28] above.

[121]A copy of the CMS and these provisions may be found as exhibit ‘JJS-19’ to the affidavit of Janelle Joy Shepherd, 14 August 2020 (Court Document 66). Clauses 5.1 and 5.2 are at p. 175 of the exhibits.

[122]BCCMA, section 59.

[123]BCCMA, section 52.

[124]BCCMA, section 60(1).

[125]BCCMA, section 60(2) & (3).

[126]Exhibit ‘JJS-17’ to the affidavit of Janelle Joy Shepherd, 14 August 2020 (Court Document 66); exhibit ‘GWJ-3’ to the affidavit of Gary Wayne Jones, 18 December 202o (Court Document 86).

[127]Paragraphs [22], [47] and [48] of the affidavit of Janelle Joy Shepherd, 14 August 2020 (Court Document 66).

[128]Paragraph [26]-[28] of the affidavit of Janelle Joy Shepherd, 14 August 2020 (Court Document 66).

[129]Paragraph [16] of the affidavit of Shukry Sahhar, 14 September 2020 (Court Document 71); paragraph [21] of the affidavit of James William Brown, 11 September 2020 (Court Document 76).

[130]Planning Act 2016 (Qld), section 265; Planning Regulation 2017 (Qld), section 71 and Schedule 23. Similar provisions existed in the superseded Sustainable Planning Act 2009 (Qld).

[131]See p. 30 of the exhibits to the affidavit of James William Brown, 11 September 2020 (Court Document 76).

[132]T.2-106.5-22.

[133]T.2-104.19-36.

[134]Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Ors [2019] QPEC 52; (2020) QPELR 480, [1].

[135]13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120, [24].

[136]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335.

[137]Respondents’ written submissions, p. 10 [25].

[138]Exhibit ‘JWB-18’ to the affidavit of James William Brown, 11 September 2020 (Court Document 76).

[139]Respondents’ written submissions, p. 18 at point (s).

[140]Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Others [2019] QPEC 52; (2020) QPELR 480, [39].

[141]Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors (No. 2) [2021] QPEC 23, [38].

[142]Exhibit 1, draft order proposed by the applicant.

[143]Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 335, 342-3.

[144]Certificate of the Chief Executive of the Sunshine Coast Regional Council (Court Document 31).

[145]For an example see Planning Regulation 2017 (Qld), Schedule 24.

[146]Such as Mr Camplin who sometimes stays overnight rather than driving home after work or Mr Sahhar who wishes to holiday in the motel suite over the winter.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 3)

  • Shortened Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 3)

  • MNC:

    [2021] QPEC 66

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    03 Dec 2021

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
13 Investment Company Pty Ltd v Sunshine Coast Regional Council [2020] QCA 120
4 citations
Jump To
Cite 1 - [2020] QCA 120
Cite 2 - [2020] QCA 120
Cite 3 - [2020] QCA 120
Cite 4 - [2020] QCA 120
Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2004] QPEC 74
2 citations
Jump To
Cite 1 - [2004] QPEC 74
Cite 2 - [2004] QPEC 74
Aqua Blue Noosa Pty Ltd v Noosa Shire Council (2005) QPELR 318
2 citations
Jump To
Cite 1 - (2005) QPELR 318
Cite 2 - (2005) QPELR 318
Bundaberg Regional Council v Ross [2011] QPEC 137
1 citation
Jump To
Cite 1 - [2011] QPEC 137
Bundaberg Regional Council v Ross & Anor [2011] QPELR 137
1 citation
Jump To
Cite 1 - [2011] QPELR 137
Di Domenico v Hervey Bay City Council [2000] QPEC 21
1 citation
Jump To
Cite 1 - [2000] QPEC 21
Di Domenico v Hervey Bay City Council [2000] QPELR 297
1 citation
Jump To
Cite 1 - [2000] QPELR 297
Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35
4 citations
Jump To
Cite 1 - [2020] QPEC 35
Cite 2 - [2020] QPEC 35
Cite 3 - [2020] QPEC 35
Cite 4 - [2020] QPEC 35
Gavin v Sunshine Coast Regional Council(2021) 9 QR 191; [2021] QCA 217
1 citation
Jump To
Cite 1 - [2021] QCA 217
Grassby v The Queen (1989) 168 CLR 1
1 citation
Jump To
Cite 1 - (1989) 168 CLR 1
Hanrahan & Anor v Bundaberg Regional Council [2003] QPELR 137
1 citation
Jump To
Cite 1 - [2003] QPELR 137
Mudie v Gainriver P/L[2002] 2 Qd R 53; [2001] QCA 382
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 53
Cite 2 - [2002] 2 Qd R 53
Oshlack v Richmond River Council (1998) 193 CLR 72
1 citation
Jump To
Cite 1 - (1998) 193 CLR 72
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
2 citations
Jump To
Cite 1 - (1972) 2 NSWLR 632
Cite 2 - (1972) 2 NSWLR 632
Sunshine Coast Regional Council v D Agostini Property Pty Ltd [2019] QPEC 19
1 citation
Jump To
Cite 1 - [2019] QPEC 19
Sunshine Coast Regional Council v D Agostini Property Pty Ltd [2019] QPEC 52
6 citations
Jump To
Cite 1 - [2019] QPEC 52
Cite 2 - [2019] QPEC 52
Cite 3 - [2019] QPEC 52
Cite 4 - [2019] QPEC 52
Cite 5 - [2019] QPEC 52
Cite 6 - [2019] QPEC 52
Sunshine Coast Regional Council v D Agostini Property Pty Ltd (No. 2) [2021] QPEC 23
5 citations
Jump To
Cite 1 - [2021] QPEC 23
Cite 2 - [2021] QPEC 23
Cite 3 - [2021] QPEC 23
Cite 4 - [2021] QPEC 23
Cite 5 - [2021] QPEC 23
Sunshine Coast Regional Council v D'Agostini & Ors (2020) QPELR 480
6 citations
Jump To
Cite 1 - (2020) QPELR 480
Cite 2 - (2020) QPELR 480
Cite 3 - (2020) QPELR 480
Cite 4 - (2020) QPELR 480
Cite 5 - (2020) QPELR 480
Cite 6 - (2020) QPELR 480
Tynan v Meharg (1998) 101 LGERA 255
1 citation
Jump To
Cite 1 - (1998) 101 LGERA 255
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
4 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335
Cite 3 - (1987) 10 NSW LR 335
Cite 4 - (1987) 10 NSW LR 335
Wort v Whitsunday SC (2001) 116 LGERA 179
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 179
Cite 2 - (2001) 116 LGERA 179
Wort v Whitsunday Shire Council [2001] QCA 344
3 citations
Jump To
Cite 1 - [2001] QCA 344
Cite 2 - [2001] QCA 344
Cite 3 - [2001] QCA 344
Yu Feng Pty Ltd v Maroochy Shire Council[2000] 1 Qd R 306; [1996] QCA 226
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 306
Cite 2 - [2000] 1 Qd R 306

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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