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Morley v Council of the City of Gold Coast[2023] QPEC 51

Morley v Council of the City of Gold Coast[2023] QPEC 51

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Morley v Council of the City of Gold Coast [2023] QPEC 51

PARTIES:

MARK MORLEY

(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

FILE NO/S:

13/22

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

19 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2023

JUDGE:

Kefford DCJ

ORDER:

I order:

  1. the appeal be allowed in part; and
  2. the Council’s decision to give an enforcement notice dated 6 December 2021 is set aside and replaced with a decision to give an enforcement notice in the terms attached as Annexure 1 with the following amendments:
    1. the insertion of a new paragraph 1A as follows:

“During the period between 2 December 2019 and 6 April 2020, there was placement of fill in the order of 1,300 to 1,700 square metres. The fill changed the ground level to expand the aerial extent of the level platform on the side of the hill on the subject land that is downslope of the existing house. Some of the fill was placed within 20 metres of the boundary of the subject land. The earthworks materially affect the subject land and its use.”

  1. the replacement of the final sentence in paragraph 1 of the requirements with a sentence that states:

“The report must be provided to Council by 20 March 2024.”

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL APPEAL AGAINST ENFORCEMENT NOTICE where the appellant was given an enforcement notice under s 168 of the Planning Act 2016 in relation to earthworks – where the appellant admitted committing a development offence – where the appellant challenged the action required to be taken in the enforcement notice

LEGISLATION:

Planning Act 2016 (Qld), ss 29, 43, 46, 88, 163, 167, 168

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 47

CASES:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied

Serratore & Ors v Noosa Shire Council [2021] QPEC 21; [2022] QPELR 505, approved

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied

COUNSEL:

K Wylie for the Respondent

SOLICITORS:

M Morley, self-represented for the Appellant

MacDonnells Law for the Respondent

TABLE OF CONTENTS

Introduction3

What is the legislative regime that informs the issue of an enforcement notice?4

What are the relevant details of the enforcement notice?6

What are the issues to be determined?10

Was there a proper basis for the issue of the enforcement notice?11

Has a development offence has been committed?14

Has a person carried out “development”?16

Is the “development” carried out “assessable development”?19

Is the “assessable development” carried out authorised by all necessary development permits?20

If the assessable development is authorised by a development permit, had the permit taken effect at the time the development was carried out?21

Was the assessable development carried out under s 29(10)(a) of the Planning Act 2016?21

Was the assessable development carried out under an exemption certificate under s 46 of the Planning Act 2016?21

Was the assessable development carried out under s 88(3) of the Planning Act 2016?”21

Conclusion about whether a development offence has been committed22

Are the requirements of the enforcement notice appropriate?22

Are there discretionary considerations that warrant setting aside the enforcement notice?27

Conclusion27

Introduction

  1. [1]
    The Appellant, Mr Morley, owns lands at 50 Sehmish Court, Bonogin (“the subject land”). He has owned the land since 1 July 1996.
  1. [2]
    On 6 December 2021, Council of the City of Gold Coast (“the Council”) issued Mr Morley with an enforcement notice under s 168 of the Planning Act 2016 (Qld). The underlying basis for the enforcement notice is a stated belief that:
    1. in the period between 2 December 2019 and 6 April 2020, operational works had been undertaken on the land, being the importation of more than 50 cubic metres of fill to create a large, near level, platform on the side of the hill on the subject land, at a location downslope of the existing house; and
    2. the operational work was assessable development under the Gold Coast City Plan 2016 (“City Plan”) in effect between 2 December 2019 and 6 April 2020.
  1. [3]
    The enforcement notice alleges that:
    1. there was no effective development permit authorising that operational work;
    2. the operational work had not been carried out under a superseded planning scheme pursuant to s 29(10)(a) of the Planning Act 2016; and
    3. the operational work had not been carried out under an exemption certificate issued under s 46 of the Planning Act 2016; and
    4. the operational work had not been carried out under s 88(3) of the Planning Act 2016.
  1. [4]
    The enforcement notice was provided without a show cause notice due to the Council’s stated belief that the operational works were a danger to public health, and that those works were causing erosion and sedimentation.
  1. [5]
    This is an appeal against the Council’s decision to issue that enforcement notice.

What is the legislative regime that informs the issue of an enforcement notice?

  1. [6]
    The appeal is a hearing anew.[1] The Council bears the onus in the appeal.[2] Due to the nature of the proceedings, the standard of proof is that referred to in Briginshaw v Briginshaw.[3]
  2. [7]
    The Court has a broad discretion in determining the appeal. It has power to confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[4]
  3. [8]
    The Court’s broad discretion should be exercised judicially[5] and subject to the limitations in the relevant statutes.[6] The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 provides relevant guidance in that respect.
  1. [9]
    Enforcement notices are a creature of statute. They may be issued pursuant to chp 5, pt 3 of the Planning Act 2016. Other than in defined circumstances, where an enforcement authority reasonably believes a person has committed, or is committing, a development offence and is considering giving an enforcement notice for the offence, the enforcement authority must first give the person a show cause notice.[7] An enforcement authority need not give a show cause notice before giving an enforcement notice is if the development offence relates to:
    1. works that the enforcement authority reasonably believes are a danger to persons or a risk to public health;[8] or
    2. development that the enforcement authority reasonably believes is causing erosion and sedimentation.[9]
  2. [10]
    The power to give an enforcement notice, and the details that it must include, are addressed by s 168 of the Planning Act 2016, which states:

168 Enforcement notices

  1. If an enforcement authority reasonably believes a person has committed, or is committing, a development offence, the authority may give an enforcement notice to—
    1. the person; and
  1. if the offence involves premises and the person is not the owner of the premises—the owner of the premises.
  1. An enforcement notice is a notice that requires a person to do either or both of the following—
    1. to refrain from committing a development offence;
    2. to remedy the effect of a development offence in a stated way.

Examples of what an enforcement notice may require

The notice may require a person do any or all of the following on or before a stated time or within a stated period—

  • to stop carrying out development
  • to demolish or remove development
  • to restore, as far as practicable, premises to the condition the premises were in immediately before development was started
  • to do, or not to do, another act to ensure development complies with a development permit
  • if the enforcement authority reasonably believes works are dangerous, to repair or rectify the works, to secure the works, or to fence the works off to protect people
  • to stop a stated use of premises
  • to apply for a development permit
  • to give the enforcement authority a compliance program that shows how compliance with the enforcement notice will be achieved.
  1. The notice must state—
    1. the nature of the alleged offence; and
    2. if the notice requires the person not to do an act—
  1. the period for which the requirement applies; or
  2. that the requirement applies until further notice; and
    1. if the notice requires the person to do an act—
  1. the details of the act; and
  2. the period within which the act must be done; and
    1. that the person has an appeal right against the giving of the notice.
  1. The notice may require demolition or removal of all or part of works if the enforcement authority reasonably believes it is not possible or practical to take steps—
  1. to make the development accepted development; or
  2. to make the works comply with a development approval; or
  3. if the works are dangerous—to remove the danger.
  1. A person must not contravene an enforcement notice. Maximum penalty—4,500 penalty units.

…”

  1. [11]
    Pursuant to s 229 and sch 1, s 1(1) and item 1, table 1, item 6 of the Planning Act 2016, the person given an enforcement notice may lodge an appeal to the Planning and Environment Court against the decision to give the enforcement notice. This is such an appeal. It was commenced on 10 January 2022.

What are the relevant details of the enforcement notice?

  1. [12]
    On or about 6 December 2021, the Council gave Mr Morley an enforcement notice dated 6 December 2021 (“the enforcement notice”). The enforcement notice outlined the facts and circumstances that formed the basis of the Council’s beliefs. The enforcement notice said:

“1.  As a consequence of complaints made to Council, and review of aerial imagery, Council reasonably believes that, during the period between 2 December 2019 and 6 April 2020, more than 50 cubic metres of fill was imported onto the Premises for what appeared to be the purpose of creating a large near level platform on the side of the hill on the Premises, downslope of the existing house (Fill Platform).

  1. As a consequence of those, and other, complaints, a Council Development Compliance officer inspected the Premises on 14 October 2020 and observed that, consistent with the review of aerial imagery described in the previous paragraph, the Fill Platform had been constructed which comprised operational work (change to ground level – filling, and which exceeded 50 cubic metres of filled area.
  2. On Thursday 17 December 2020 heavy rain caused the Fill Platform to fail to the south, and which removed some of the fill observed on the site on 14 December 2020 so as to be placed within 20 metres of (and across) the southern boundary of the Premises (refer to Figure 1 below).
  3. An inspection of the landslide area on 18 December 2020 confirmed that the southern part of the Fill Platform had failed, and that the balance part of the Fill Platform remained inherently unstable and at real risk of further destabilisation without further notice of warning, and that should further destabilisation occur it may result in injury or death to any person on or near the area, and damage to property placed on or near the area.
  1. An Enforcement notice was issued to you on 23 December 2020 which required you to take various actions in respect of the unlawful operational work.
  2. A search of Council records indicates that on 13 November 2013 a development permit for operational works (change to ground level) was approved at the premises subject to conditions. The development approval included an approved plan Drawing E01 Rev D, “Proposed Work, Lot 403 RP893886, 50 Sehmish Court, Bonogin, 4213” dated 4 October 2013, by Structerre (amended in red) (2013 Approval).
  3. The operational work that has been carried out at the premises in 2020 (described in items 1 to 4 above) was not authorised by the 2013 Approval.
  4. There are no other development applications that have been submitted, or development approvals given, that would otherwise authorise the creation of the Fill Platform.
  5. Council officers subsequently inspected the Premises on 20 July 2021 with the assistance of a specialist geotechnical engineer. During the inspection it was observed that:
    1. earthworks carried out on the Premises were not authorised by the 2013 Approval;
    2. the site and Fill Platform were observed to be poorly drained. There was a large sump at the location of the septic tank and the owner indicated during the site visit that water collected in the sump;
    3. a drainage pipe connected the sump to the outer face of the fill;
    4. water was observed to be seeping out of the fill at the approximate location of the pipe. At other locations, groundwater was observed to be seeping on the contact between the fill and the underlying residual soil;
    5. there was evidence of many washouts and erosion channels across the failed material deposited on the slopes down-hill of the landslides indicating that surface and subsurface drainage across the site is poorly controlled; and
    6. should another landslide occur, it would result in further loss of material from the near level platform and could endanger the existing structures towards the western end of the platform.
  1. During the period of time described in paragraph 1 above, the Premises was located in the Rural zone and Rural landscape and environment precinct in the Gold Coast City Plan (City Plan).
  2. Pursuant to the City Plan in effect during the period of time described in paragraph 1 above, in the Rural zone, Rural landscape and environment precinct, operational work (change to ground level that-
    1. exceeds a volume of 50 cubic metres of fill or excavation

OR

  1. is within 20 metres of a site boundary

is code assessable development, which required a development approval.

  1. Pursuant to section 163 of the Planning Act:
  1. A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty—

  1. if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
  2. otherwise—4,500 penalty units.
  1. However, subsection (1) does not apply to development carried out—
    1. under section 29(10)(a); or
    2. in accordance with an exemption certificate under section 46; or
    3. under section 88(3).
  1. Further, in respect of matters identified in section 163(2) of the Planning Act, Council records confirm that:
    1. the development has not been carried out under an exemption certificate issued pursuant to section 46 of the Planning Act;
    2. the development has not been carried out under a superseded  planning  scheme  pursuant  to section 29(10)(a) of the Planning Act; and
    3. the development has not been carried out under section 88(3) of the Planning Act.
  2. This notice is given to you, pursuant to section 168(1)(b) of the Planning Act, as the owner of the premises upon which Council reasonably believes a person has committed, or is committing, the aforementioned development offence.
  1. Pursuant to section 167(5) of the Planning Act, this enforcement notice is being given without a show cause notice as urgent action is necessary to address a danger to public health and safety, and erosion and sedimentation into neighbouring properties.

What you are required to do:

  1. Engage a Registered Professional Engineer of Queensland (RPEQ) with experience in geotechnical engineering for the purpose of advising on, preparing and providing to Council for approval, a report regarding how the Immediate Remedial Works required by this notice must be carried out and the manner in which the RPEQ will supervise the works. The report must be provided to Council by 5:00pm on Friday 4 February 2022;
  2. Under the supervision of the RPEQ, carry out the following (Immediate Remedial Works) (unless alternative works are recommended by the RPEQ in the report required by paragraph 1 of this notice and Council approves those alternative works to be carried out as an alternative to the works described below):
    1. Morley v Council of the City of Gold Coast [2023] QPEC 51flatten the fill batter in the landslide area to no steeper than 1V:1.5H (34°). This should be done in a safe manner with machinery set back an appropriate distance from the crest of the slope and taking care to contain any loose debris and prevent boulders or similar sized material being released onto the lower slopes and onto the adjoining land to the south;
    2. direct surface water runoff away from the crest of the batter and collect / discharge into natural drainage features away from the fill embankment;
    3. cover the upper part of the batter in plastic sheeting or water shredding geofabric to reduce the potential for water to infiltrate into the fill and to reduce erosion on the face of the slope; and
    4. check the septic tank for any leaks and locate the outlet drain from the septic tank to discharge to a suitable location down-slope of the flattened batter.

The Immediate Remedial Works must be completed by 5:00pm on Friday 18 March 2022.

  1. By 5:00pm on Friday 1 April 2022 provide Council with a copy of a report, produced by the RPEQ, that:
    1. confirms that the Immediate Remedial Works have been completed, and to a satisfactory standard; and
    2. details further procedures (including appropriate design measures) for the permanent stabilisation of the landslide area (Permanent Stabilisation Measures). The Permanent Stabilisation Measures will need to address:
      1. the requirements of the Geotechnical Stability Assessment Guidelines (dated March 2016, produced by the Council of the City of Gold Coast);

ii poor surface drainage that exists on the Premises; and

iii. the drainage of surface water run off.

  1. Until such time that any Permanent Stabilisation Measures described in the RPEQ report have been implemented (and constructed), you must:
    1. maintain the temporary exclusion zone as required by the Enforcement notice dated 23 December 2020 (refer to Figure 1 below);
    2. remove, and do not place or erect structures on the Fill Platform; and
    3. restrict access to the Fill Platform to machinery and appropriately qualified persons engaged to undertake the Immediate Remedial Works and implement the Permanent Stabilisation Measures. Access is to be limited to a zone set back not less than 5 metres from the crest of the flattened batter.”

What are the issues to be determined?

  1. [13]
    Mr Morley accepts that a development offence has occurred but continues to dispute which of the competing enforcement notice requirements should be adopted.
  1. [14]
    Initially, the Council contended that the appeal should be dismissed. In that respect it noted that, by reason of ss 167(5)(a) and 171 of the Planning Act 2016, the appeal did not stay the operation of the enforcement notice. However, during its opening, the Council revised its position. It now contends that it is appropriate that the Court allow the appeal in part and direct the Council to reissue the enforcement notice with adjusted timeframes and other minor amendments. A copy of the enforcement notice for which the Council now contends is Annexure 1 to these reasons.
  1. [15]
    The Council maintains that it acted legitimately in issuing the enforcement notice. It relies on the facts and circumstances set out in the enforcement notice in that regard. It also relies on the evidence now available to support its position.
  1. [16]
    Despite the narrow compass of the issues in dispute, the exercise of the Court’s discretion is relevantly informed by a broader consideration of matters, including some that are undisputed. As such, it is convenient to consider the following issues:
  1. Was there a proper basis for the issue of the enforcement notice?
  2. Has a development offence been committed?
  3. Are the requirements of the enforcement notice appropriate?
  4. Are there discretionary considerations that warrant setting aside the enforcement notice?
  1. [17]
    I address each of these issues below.

Was there a proper basis for the issue of the enforcement notice?

  1. [18]
    The enforcement notice records that it was given by “Jason Rodgers, Acting Coordinator Development Compliance”. Mr Rodgers did not give evidence. However, I had the benefit of evidence from others who were involved in the process, namely:
    1. Ms Carmel Atkinson, a development engineer in the Council’s employ who holds a Bachelor of Civil Engineering with advance studies from Griffith University and accreditations as a Registered Professional Engineer Queensland (Structural) and a Chartered Professional Engineer, who was involved in the decision to give the enforcement notice;
    2. the evidence of Mr Shaw, a Registered Professional Engineer Queensland specialising in geotechnical engineering who the Council retained to assist it in formulating the requirements of the enforcement notice and, later, to give evidence in this appeal.
  1. [19]
    In addition, I had the benefit of:
    1. a certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 (Qld), which certified various facts that appear in the Council’s records; and
    2. a certificate of the Chief Executive Officer of the Council provided pursuant to s 55 of the Planning and Environment Court Act 2016 providing extracts from version 7 of Gold Coast City Plan 2016, which was in effect between 2 December 2019 and 6 April 2020.
  1. [20]
    Ms Atkinson gave evidence about the circumstances in which the enforcement notice was given. She explained the investigations that she undertook and provided copies of the reports that she had written following her inspections of the land and her other investigations. Those reports form part of the Council’s records. I infer that the Development Compliance Investigation Report dated 27 November 2020 informed the beliefs formed for the purpose of the enforcement notice.
  1. [21]
    Mr Shaw’s evidence included a report dated 19 October 2021. Mr Shaw did not attest to providing that report to the Council prior to the issue of the enforcement notice. Ms Atkinson also did not give evidence about receipt of the report. Nor is there evidence that Mr Shaw’s report formed part of the Council records. Nevertheless, given the report is addressed to the Council and parts of its contents bear a striking similarity to parts of the enforcement notice, I am prepared to infer that the report informed the beliefs formed for the purpose of the enforcement notice.
  1. [22]
    The evidence relied on by the Council establishes the facts in paragraphs 2 to 13 of the enforcement notice (set out in paragraph [12] above). However, there are discrepancies between the evidence that appears to have been available to Mr Rodgers and the assertion that the offence occurred during the period between 2 December 2019 and 6 April 2020. The discrepancies are unexplained and the submissions on behalf of the Council failed to confront them.
  1. [23]
    In the Development Compliance Investigation Report dated 27 November 2020, Ms Atkinson records observations that she made from Council records and site observations. In those observations, she includes aerial imagery from around April or May 2009 on which she overlays contours from 2009 LiDAR data. She then compares that to aerial imagery from May 2013 on which she overlays contours from 2009 LiDAR data. Ms Atkinson next compares that image to aerial imagery captured in May 2020.
  1. [24]
    Having regard to her analysis of those images, Ms Atkinson opines that the filled pad located south of the house has been extended since May 2013. She records her view that the additional fill comprises:
    1. fill within an area of approximately 150 square metres to the northeast of the works approved by a development permit for operational work given in 2013, which includes approximately 69 square metres of earthworks within a neighbouring property at the eastern re-entrant corner adjacent to the driveway;
    2. fill within an area of approximately 50 square metres adjacent to the southern corner of a boundary of the subject land; and
    3. fill within an area of approximately 150 square metres that extends west towards the boundary and is located a minimum of approximately five metres from the western property boundary.
  1. [25]
    Based on her review of those identified aerial images from 2009, 2013 and 2020 and contours from 2009 LiDAR data, Ms Atkinson opines that approximately 1,400 cubic metres of fill has been placed since 2009.
  1. [26]
    The analysis undertaken by Ms Atkinson prior to the issue of the enforcement notice is insufficient to support a reasonable belief that filling occurred during the period between 2 December 2019 and 6 April 2020. It may have occurred prior to 2 December 2019. There is nothing that indicates that Council considered whether a development permit would have been required had the filling occurred between May 2013 and 1 December 2019.
  1. [27]
    My concerns about the adequacy of the evidence available to Mr Rodgers are further heightened by the certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009. It certifies that the searches of Nearmap for aerial images of the subject land for the period between 2 December 2019 and 6 April 2020 were undertaken on 6 September 2023.
  1. [28]
    These matters inform whether the Council held a reasonable belief that a development offence had been committed pursuant to s 163 of the Planning Act 2016. That section provides:

163 Carrying out assessable development without permit

  1. A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty—

  1. if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
  2. otherwise—4,500 penalty units.
  1. However, subsection (1) does not apply to development carried out—
    1. under section 29(10)(a); or
    2. in accordance with an exemption certificate under section 46; or
    3. under section 88(3).”
  1. [29]
    I agree with the observations of His Honour Judge Williamson KC in Serratore & Ors v Noosa Shire Council[10] that for a reasonable belief to be formed about an offence against s 163 of the Planning Act 2016, the Council, as enforcement authority, was required to ask, and answer, the following questions:
  1. Has a person carried out development”?
  2. Is the “development carried out assessable development”?
  3. Is the assessable development carried out authorised by all necessary development permits?
  4. If the assessable development is authorised by a development permit, had the permit taken effect at the time the development was carried out?
  5. Was the assessable development carried out under s 29(10)(a) of the Planning Act 2016?
  6. Was the assessable development carried out under an exemption certificate under s 46 of the Planning Act 2016?
  7. Was the assessable development carried out under s 88(3) of the Planning Act 2016?”
  1. [30]
    The evidence before the Council at the time the decision was made to give the enforcement notice is sufficient for it to have formed a reasonable belief that:
    1. a person carried out development in the form of operational work on the subject land between May 2013 and May 2020;[11]
    2. although there was some operational work on the subject land that was authorised by a development permit for operational works given on 13 November 2013, there was further operational work that was not authorised by a development permit;
    3. the operational work was not carried out under an exemption certificate under s 46 of the Planning Act 2016;
    4. the operational work was not carried out under s 29(10)(a) of the Planning Act 2016; and
    5. the operational work was not carried out under s 88(3) of the Planning Act 2016.
  1. [31]
    However, the information before the Council does not demonstrate that the Council could have formed a reasonable belief that the development was assessable development. There is no evidence before me about whether operational work involving the importation of fill was assessable development to the extent that it may have been undertaken between May 2013 and 1 December 2019.
  1. [32]
    In those circumstances, I am not satisfied that, at the time that the Council gave the enforcement notice on 6 December 2021, the Council reasonably believed that, during the period between 2 December 2019 and 6 April 2020, more than 50 cubic metres of fill was imported onto the subject land, and that a development offence had been committed under s 163 of the Planning Act 2016. Rather, it seems to me that the period during which the offence is alleged to have occurred was selected only because it reflects the period during which version 7 of City Plan was in effect, not because that is the period during which the evidence (available at that time) indicated was the period during which the work was carried out.
  1. [33]
    Although this supports a conclusion that the appeal should be upheld and the Council’s decision to give the enforcement notice should be set aside, that is not the end of the considerations that are relevant to the determination of this appeal. As I have already mentioned, the appeal is a hearing anew and both Mr Morley and the Council contend for the replacement of the enforcement notice with a new enforcement notice in different terms. As such, it is necessary to consider the additional evidence that is now available to determine whether it is appropriate to grant the relief contended for by the Council or Mr Morley.

Has a development offence has been committed?

  1. [34]
    Section 168 of the Planning Act 2016 provides that an enforcement authority may give an enforcement notice to the owner of premises if it “reasonably believes a person has committed, or is committing, a development offence”. On appeal, the Court is to determine whether such a belief can be held having regard to all the evidence.
  1. [35]
    It is important that care is taken to identify the acts that constitute the alleged development offence. A degree of particularity is called for, which is apparent from four contextual matters.
  1. [36]
    First, the foundation for the power to give an enforcement notice is a reasonable belief that the alleged offence has been committed or will be committed. As such, where the alleged development offence is that under s 163 of the Planning Act 2016, the enforcement authority (or this Court on appeal) must be able to identify the development in question to ascertain whether it is (or will be) assessable and whether all necessary development permits have been obtained with respect to it.
  1. [37]
    Second, the particulars of the development offence inform the legitimacy of the requirements imposed in the enforcement notice. Under s 168 of the Planning Act 2016, the enforcement authority (or this Court on appeal) has power to give an enforcement notice that requires a person to refrain from committing a development offence or to remedy the effect of a development offence. The particulars of the development offence must be sufficient to inform the “effect” of the development offence.
  1. [38]
    Third, under s 168(3)(c) of the Planning Act 2016, where an enforcement notice requires a recipient of an enforcement notice to do an act, the enforcement notice must state the period within which the act must be done. The particulars must be sufficient to ascertain a period that is reasonable. For example, determination of a reasonable timeframe to comply with an order to remove unlawful fill will likely require an appreciation of the volume of unlawful fill.
  1. [39]
    The fourth relevant contextual matter is that the giving of an enforcement notice can have significant consequences for the recipient. Contravention of an enforcement notice is an offence which carries a maximum penalty of 4,500 penalty units.[12] Further, where the enforcement notice is about a matter stated in s 167(5)(a) of the Planning Act 2016,[13] an appeal against an enforcement notice does not stay its operation.[14]
  2. [40]
    Those features of the enforcement notice regime highlight that it is important to precisely identify the development offence that underpins the enforcement notice. The enforcement notice should provide sufficient detail to properly inform any recipient of the essential factual ingredients of the development offence alleged to have been committed.
  1. [41]
    In this case, the relevant act is the carrying out of operational work without all necessary development permits in effect. The particulars of the “development” are set out in paragraph 1 of the enforcement notice, namely that during the period between 2 December 2019 and 6 April 2020, more than 50 cubic metres of fill was imported onto the subject land for what appeared to be the purpose of creating a large near level platform on the side of the hill on the subject land, downslope of the existing house.

Has a person carried out “development”?

  1. [42]
    Under the Planning Act 2016, development is defined to include carrying out operational work, which is in turn defined as:

“work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises”.

  1. [43]
    The evidence of development relied on by the Council at the hearing was more extensive than that which was available at the time that the enforcement notice was issued. It includes:
    1. the evidence of Ms Atkinson and Mr Shaw; and
    2. aerial images of the subject land dated 2 December 2019 and 6 April 2020 obtained by the Council on 6 September 2023, to which I have referred in paragraph [27] above.
  1. [44]
    I have already referred to part of the evidence of Ms Atkinson in paragraphs [23] to [25] above. In addition to that evidence, Ms Atkinson gave evidence that she compared the aerial image of the subject land dated 2 December 2019 to the aerial imaged dated 6 April 2020. She says that the presentation of the fill platform on the southern part of the subject land, to the south of the buildings and structures, in the aerial image dated 6 April 2020 generally reflects what she observed on 14 October 2020.
  1. [45]
    Having regard to the aerial images, and with the benefit of her inspection of the land on 14 October 2020, Ms Atkinson opines that a person carried out earthworks on the subject land between December 2019 and April 2020 which resulted in the establishment of the fill platform on the southern part of the subject land to the south of the buildings and structures. She opines that the construction of that platform would have required the importation of more than 50 cubic metres of fill. She says that the works extend to within 20 metres of the lot boundary, and in some locations the fill extends beyond the lot boundary into the adjoining land to the south. She also opines that the extent of that work was more than the work authorised in a development permit given on 13 November 2013.
  1. [46]
    With respect to the state of the works, Ms Atkinson opines that the earthworks that create the fill platform have not been carried out to any obvious engineering standard. Rather, she considers that they appear to have been prepared by an amateur with no consideration to engineering principles that are important when establishing a fill platform on a highly sloped surface such as that on the subject land. She observes that the southern edge of the fill platform has already collapsed and a large area of slipped material is visible extending south below the remaining fill platforms. These observations are consistent with the photographs provided by Ms Atkinson.
  1. [47]
    The evidence of Mr Shaw includes:
    1. a report dated 19 October 2021, which Mr Shaw prepared following an inspection of the subject land on 20 July 2021;
    2. a report dated 18 September 2023, which Mr Shaw prepared following an inspection of the subject land on 28 July 2023;
  1. a report dated 2 November 2023; and
  2. the oral testimony of Mr Shaw.
  1. [48]
    In his first report, Mr Shaw identifies that several landslides have occurred on the fill platform on the subject land. He says they have left the platform in a precarious state and have resulted in large volumes of fill being transported downhill and onto the adjacent Council reserve land. In his report, Mr Shaw examines the nature and extent of damage suffered on the subject land and the potential consequences if nothing is done on the subject land. He recommends works that he says are the minimum required to stabilise the subject land. In addition, he recommends those that are the minimum required to bring the earthworks into compliance with City Plan.
  1. [49]
    Mr Shaw’s analysis was comprehensive. He documents his detailed observations of the site conditions, including with respect to the fill platform, the landslides and the natural topography.
  1. [50]
    In his first report, Mr Shaw observes that the subject land and the near level fill platform are poorly drained. He says that he observed a large sump at the location of the septic tank and a drainage pipe connected the sump to the outer face of the fill. During his site visit, Mr Shaw observed water seeping out of the fill at the approximate location of the pipe and groundwater seeping on the contact between the fill and the underlying residual soil. He also observed evidence of many wash-outs and erosion channels across the failed material, with sedimentation deposits on the slopes down-hill of the landslides. Having regard to these matters, Mr Shaw opines that surface and subsurface drainage across the subject land is poorly controlled. Mr Shaw explains that poorly controlled surface and subsurface drainage across the subject land, if left unaddressed, adversely affects the stability of any fill placed in the relevant area.
  1. [51]
    On his first site inspection, Mr Shaw also measured slope angles at multiple locations across the subject land using a clinometer. He used a hand-held global positioning system to record the locations of significant site features. He also took multiple photographs of the conditions that he observed.
  1. [52]
    Mr Shaw details the process he followed to analyse the extent to which the filling on the subject land exceeded that shown on the approved Earthworks Layout Plan[15] attached to a development permit for operational work for changes to ground level for the subject land given by the Council in November 2013.
  1. [53]
    In addition, Mr Shaw provides a detailed and cogent explanation of his stability analysis. He details the process he followed to develop:
    1. the fill pad geometry prior to the recent earthworks;
    2. the fill pad geometry prior to the landslide; and
    3. the current failed fill paid geometry.
  1. [54]
    Mr Shaw’s evidence about the geometry of the land prior to the earthworks indicates that the area where the fill was placed had a gradient that warranted a comprehensive geotechnical site investigation prior to the placement of the fill and the application of sound engineering principles to the way the fill was placed.
  1. [55]
    Mr Shaw details the process followed to derive his calculations of geotechnical strength parameters and the stability of the older existing fill, the recent fill and the failed platform. The matters that informed the calculations include Mr Shaw’s observation that the fill had significant silt, sand and gravel content. In his oral evidence, Mr Shaw explained that he also observed the fill to include large boulders and large chucks of concrete and rock. His observations were supported by photographs included in his reports. Mr Shaw explained that fill containing those types of materials are not able to be placed and compacted to a satisfactory degree to ensure a stable platform.
  1. [56]
    Mr Shaw also undertook a risk assessment with respect to the likelihood of risk to property and risk to life. With the benefit of that analysis, Mr Shaw recommends remedial works for immediate action and identifies three options for permanent measures on the subject land. Those that require immediate action bear a striking resemblance to that required in the enforcement notice.
  1. [57]
    In his first report, part of Mr Shaw’s analysis involves consideration of aerial images dated May 2016 and May 2020. In that report, Mr Shaw does not express a view about the volume of fill that had been placed on the land between 2 December 2019 and 6 April 2020.
  1. [58]
    In his second report, Mr Shaw details the variation in the conditions on the subject land since July 2021 and considers the alternative measures proposed by Mr Morley. I will address that evidence further below.
  1. [59]
    In Mr Shaw’s third report, dated 2 November 2023, amongst other things, he estimates the volume of fill brought onto the subject land between December 2019 and April 2020. Mr Shaw explains that as he does not have the benefit of survey data of the fill platform prior to the landslides of December 2020, he is unable to provide an accurate assessment of the volume of fill to the nearest 10 cubic metres. Nevertheless, Mr Shaw was able to provide an estimate of the volume of fill brought onto the subject land between December 2019 and April 2020 with the benefit of the Nearmap images of 2 December 2019 and 6 April 2020, one metre site contours obtains from the Queensland Spatial Catalogue and the site observations he made on 20 July 2021. Mr Shaw provides a detailed explanation about how he uses that information to calculate his estimate. He estimates that the volume of fill brought onto the subject land between December 2019 and April 2020 to be in the order of 1,300 square metres and 1,700 square metres. His evidence in this regard was not challenged.
  1. [60]
    I accept the evidence of Ms Atkinson and Mr Shaw to which I refer above. Mr Shaw provides comprehensive details of his analysis and calculations. His observations are supported by photographic evidence. His explanations of the basis for his opinions are cogent. In addition, the opinions of Ms Atkinson and Mr Shaw accord with my own assessment of the differences between the aerial images taken on 2 December 2019 and 6 April 2020. Those images show that there has been an expansion of the platform on the side of the hill in a location downslope of the existing house. The works extend to within 20 metres of the lot boundary.
  1. [61]
    I am satisfied that the earthworks carried out between 2 December 2019 and 6 April 2020 to change the ground level were works that materially affect the subject land and the use of the subject land. My finding in that respect is informed by:
    1. the evidence of Mr Shaw about the quantum of fill brought onto the subject land;
    2. the aerial photographs and other photographs and observations of Ms Atkinson and Mr Shaw about the subject land, which persuade me that the earthworks to change the ground level created a level platform larger than what previously existed at a location where the slope would have otherwise severely constrained the possible use of that part of the subject land;
    3. the evidence of Mr Shaw about the geometry of the land prior to the earthworks, which indicates that the area where the fill was placed had a gradient that warranted a comprehensive geotechnical site investigation prior to the placement of the fill and the application of sound engineering principles to the manner in which the fill was placed, and Ms Atkinson’s evidence to similar effect;
    4. Mr Shaw’s observation that the fill included large boulders and large chucks of concrete and rock, which are not able to be placed and compacted to a satisfactory degree to ensure a stable platform;
    5. Mr Shaw’s evidence about the difficulties posed to the stability of any fill placed in the relevant area by reason of the poorly controlled surface and subsurface drainage across the subject land; and
    6. the photographs and other evidence that demonstrate that a landslide subsequently occurred in December 2020, resulting in the movement of filled material to the south and onto adjoining land and a reduction in the size of the manufactured level platform.
  1. [62]
    Having regard to the matters identified above, I am satisfied that during the period between 2 December 2019 and 6 April 2020, a person carried out development on the subject land. The relevant development was earthworks on the subject land, changing the ground level to expand the aerial extent of the level platform on the side of the hill at a location downslope of the existing house. The earthworks involved the placement of a volume of fill in the order of 1,300 square metres and 1,700 square metres. Some of that fill was placed within 20 metres of the boundary of the subject land. The earthworks materially affect the subject land and its use.

Is the “development” carried out “assessable development”?

  1. [63]
    It is uncontroversial that planning schemes may categorise development as assessable development.[16]
  2. [64]
    The certificate of the Chief Executive Officer of the Council provided pursuant to s 55 of the Planning and Environment Court Act 2016 and certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 certify that:
  1. between 2 December 2019 and 6 April 2020 version 7 of City Plan was in effect; and
  2. under City Plan, the subject land was:
    1. in the Rural zone, and within the Rural landscape and environment precinct; and
    2. included in the Landslide hazard overlay mapped area (Landslide hazard moderate area).
  1. [65]
    Within City Plan:
    1. s 5.2(1) explains that the tables of assessment identify the category of development – prohibited, accepted, accepted subject to requirements or assessable (requires code or impact assessment);
    2. s 5.8 includes Table 5.8.1, which identifies the categories of development and assessment for operational work that involves a change to ground level; and
    3. Table 5.8.1: Operational work change to ground level, relevantly provides:

Zone

Categories of development and assessment

Assessment benchmarks and required outcomes

Rural (Rural landscape and environment precinct)

Code assessment

Operational work – change to ground level that:

  1. exceeds a volume of 50m3 of fill or excavation;
  1. is within 20 metres of a site boundary

Any overlay code triggered by an overlay map

Applicable zone code

Change to ground level and creation of new waterways code

General development provisions code

Vegetation management code

  1. [66]
    This demonstrates that the development in question was assessable development.

Is the “assessable development” carried out authorised by all necessary development permits?

  1. [67]
    The certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 demonstrates that the only development permit for operational work for changes to ground level for the subject land is one given on 13 November 2013. That approval authorised earthworks involving approximately 173 cubic metres of cut at a location upslope of the house on the subject land and the placement of approximately 173 cubic metres fill at a location downhill of the house. The locations of the cut and fill were identified on the approved Earthworks Layout Plan attached to the development permit. Condition 1 of the development permit required the development to be carried out generally in accordance with that plan.
  1. [68]
    Both Ms Atkinson and Mr Shaw opine that the development in question is not authorised by the development permit given on 13 November 2013. Their opinions in that regard are informed by their site inspections, their reviews of the contents of the development permit and their consideration of aerial images of the area.
  1. [69]
    I accept their opinions. They accord with my own comparison of the extent of works authorised by the development permit (depicted in the approved Earthworks Layout Plan) to the December 2019 and April 2020 aerial images. The comparison reveals that there has been the placement of fill at locations outside those authorised by the development permit.
  1. [70]
    In the circumstances, I am satisfied that the development carried out between December 2019 and April 2020 was not carried out with all necessary development permits in effect for the development.

If the assessable development is authorised by a development permit, had the permit taken effect at the time the development was carried out?

  1. [71]
    For the reasons provided above, I am satisfied that the development in question was not authorised by a development permit.

Was the assessable development carried out under s 29(10)(a) of the Planning Act 2016?

  1. [72]
    The certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 certifies that there have been no superseded planning scheme requests made pursuant to s 29(4) of the Planning Act 2016. This demonstrates that the assessable development was not carried out under s 29(10)(a) of the Planning Act 2016.

Was the assessable development carried out under an exemption certificate under s 46 of the Planning Act 2016?

  1. [73]
    The certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 certifies that no exemption certificates have been given under s 46 of the Planning Act 2016 with respect to the subject land. This demonstrates that the assessable development was not carried out under an exemption certificate under s 46 of the Planning Act 2016.

Was the assessable development carried out under s 88(3) of the Planning Act 2016?”

  1. [74]
    The certificate of the Chief Executive Officer of the Council provided pursuant to s 251 of the Local Government Act 2009 certifies that there has been no security paid under a condition stated in s 65(2)(e) of the Planning Act 2016. This demonstrates that the assessable development was not carried out under s 88(3) of the Planning Act 2016.

Conclusion about whether a development offence has been committed

  1. [75]
    Mr Morley admits that he has committed the development offence alleged in the enforcement notice.
  1. [76]
    For the reasons provided above, I am satisfied that the development that was carried out without all necessary development permits was the placement of fill in the order of 1,300 square metres to 1,700 square metres between 2 December 2019 and 6 April 2020. The fill changed the ground level to expand the aerial extent of the level platform on the side of the hill on the subject land that is downslope of the existing house. Some of the fill was placed within 20 metres of the boundary of the subject land. The earthworks materially affect the subject land and its use.

Are the requirements of the enforcement notice appropriate?

  1. [77]
    In its final submissions, the Council accepted that there is a need to make some adjustment to the requirements in the enforcement notice. It now contends that the Court should set aside the Council’s decision to give the enforcement notice and remit the matter to the Council with a direction that the Council give Mr Morley an enforcement notice that is amended to include:
    1. requirements in the following terms:

“1. Engage a Registered Professional Engineer of Queensland (RPEQ) with experience in geotechnical engineering for the purpose of advising on, preparing and providing to Council for approval, a report (Report) regarding how the Immediate Remedial Works required by this notice must be carried out and the manner in which the RPEQ will supervise the works. The Report must be provided to Council within two calendar months from the date of this Notice;

  1. Upon Council notifying its approval of the Report, or identifying necessary changes to the works described in the Report (Council Notification), under the supervision of the RPEQ, carry out the following (Immediate Remedial Works) (unless alternative works are recommended by the RPEQ in the Report, and Council approves those alternative works to be carried out as an alternative to the works described below):
    1. flatten the fill batter in the landslide area depicted in Figure 2 below to no steeper than 1V:1.5H (34°). This should be done in a safe manner with machinery set back an appropriate distance from the crest of the slope and taking care to contain any loose debris and prevent boulders or similar sized material being released onto the lower slopes and onto the adjoining land to the south;
    2. direct surface water runoff away from the crest of the batter and collect / discharge into natural drainage features away from the fill embankment;
  1. cover the upper part of the batter in plastic sheeting or water shedding geofabric to reduce the potential for water to infiltrate into the fill and to reduce erosion on the face of the slope; and
  2. check the septic tank for any leaks and locate the outlet drain from the septic tank to discharge to a suitable location down-slope of the flattened batter.

The Immediate Remedial Works must be completed within two calendar months from the receipt of Council Notification.

  1. Within three calendar months from the receipt of Council Notification, provide Council with a copy of a report, produced by the RPEQ, that:
    1. confirms that the Immediate Remedial Works have been completed, and to a satisfactory standard; and
    2. details further procedures (including appropriate design measures) for the permanent stabilisation of the landslide area (Permanent Stabilisation Measures). The Permanent Stabilisation Measures will need to address:
      1. the requirements of the Geotechnical Stability Assessment Guidelines (dated March 2016, produced by the Council of the City of Gold Coast);
      2. poor surface drainage that exists on the Premises; and
      3. the drainage of surface water run off.
  2. Until such time that any Permanent Stabilisation Measures described in the RPEQ report have been implemented (and constructed), you must:
    1. maintain the temporary exclusion zone as required by the Enforcement notice dated 23 December 2020 (refer to Figure 1 below);
    2. remove, and do not place or erect structures on the Fill Platform; and
    3. restrict access to the Fill Platform to machinery and appropriately qualified persons engaged to undertake the Immediate Remedial Works and implement the Permanent Stabilisation Measures. Access is to be limited to a zone set back not less than 5 metres from the crest of the flattened batter.
  1. Dates for compliance with requirements of this notice may be extended by agreement with the Council.”
    1. a figure 2, being a figure that reflects Exhibit 15.
  1. [78]
    Mr Morley contends that the enforcement notice should be amended to remove the requirements in paragraphs 1, 2 and 3 and replace them with requirements to:
    1. cut down existing dead trees at the southern end of the landslide area to act as bolsters and catch sediment;
    2. move felled trees currently located around the existing buildings and structures on the subject land to the southern edge of the existing platform to the north of the landslide area, and pack clay soil on either side of the trees to direct rainwater away from the landslide area;
    3. check the septic tank on the subject land for leaks (and repair any leaks), and locate the outlet drain from the septic tank to discharge to a suitable location down-slope of the landslide area; and
    4. carry out the works identified above within three months of the date of the final order of this appeal.
  1. [79]
    Mr Morley argues that these requirements are reasonable and appropriate alternatives to those contained in the enforcement notice.
  1. [80]
    As I have already mentioned, the requirements in the enforcement notice reflect the recommendations made by Mr Shaw in his first report. His recommendations were supported by his comprehensive investigations of the geotechnical conditions and cogent reasoning. They address the effect of the unlawful development.
  1. [81]
    The amendments proposed by the Council are supported by the oral evidence of Mr Shaw. During his oral testimony, Mr Shaw provided an indication of that part of the subject land that he considers would require works of the type referred to in paragraph 2.a. of the requirements of the enforcement notice. He did so by drawing a bubble around the works on a diagram, which was marked as Exhibit 15. The area in question is along the crest of the batter, on the southern extent of the fill platform. The area extends between five and eight metres south of the crest. Mr Shaw also gave an indication of how those works would be undertaken, and the likely time that they would take.
  1. [82]
    Mr Morley did not challenge Mr Shaw about these matters.
  1. [83]
    In support of his position, Mr Morley relies on the significant growth of vegetation that has occurred since the landslide in December 2020. He also relies on two letters that were apparently authored by Mr James Taylor, a Registered Professional Engineer of Queensland employed by Earthsolve.
  1. [84]
    The first letter is undated but refers to a site visit undertaken on 8 August 2022. That letter references a request for advice about remediation measures that reflect that Mr Morley is extremely budget conscious. The letter recommends that the filling level zone be cut back by five metres so that the batter slope is about 30 degrees. It notes that the Council requires a safety factor against sliding of 1.5”.  The recommendation assumes that the existing filling was rolled into place and compacted.
  1. [85]
    In a letter dated 6 June 2023, Mr Tayor says that he visited the subject land on 2 June 2023 and observed that the landslide appears visually unchanged since his visit on 12 August 2022. He says that the subject land appears significantly overgrown with grasses and natural shrubs, which he opines would increase the stability of the landslide. He further opines that the landslide appears to have reached equilibrium for the while”. Mr Taylor acknowledges that a significant rain event may generate further movement.  That said, having regard to the limited financial means of Mr Morley, Mr Taylor opines that the situation could be left in its current state.
  1. [86]
    Mr Morley did not call Mr Taylor as a witness. As such, his views were not able to be tested by cross-examination. That said, Mr Taylor’s opinions and Mr Morley’s proposed works were the subject of consideration and comment by Mr Shaw.
  1. [87]
    In his second report, Mr Shaw addresses the alternative works proposed by Mr Morley.
  1. [88]
    Mr Shaw’s second report was prepared following a further site inspection of the subject land on 28 July 2023. He says that, on that occasion, he noticed that there had been significant growth of grass and small shrubs across the landslide area. He says that the vegetation growth obscures the underlying natural landform, making comparison to the situation in July 2021 difficult. Nevertheless, Mr Shaw makes a few pertinent observations about the site conditions. His observations are consistent with photographs of the subject land.
  1. [89]
    Mr Shaw says that the rear scarp of the main failure has a near vertical drop of between about 1.1 and 1.3 metres before the land slopes steeply to the south. In Mr Shaw’s view, the rear scarp of the main landslide appears to be in a similar location to that observed in 2021. There appears to have been little or no migration of the crest of the scarp to the north (towards the house).
  1. [90]
    Since July 2021, a stockpile of soil, which is currently covered in dense grass, has been placed at the crest of the landslide. In Mr Shaw’s view, that stockpile is currently surcharging the unstable scarp of the landslide and increases the potential for instability.
  1. [91]
    According to Mr Shaw, the slope downhill of the scarp is strewn with large, jagged chunks of concrete and rocks from the collapsed fill embankment with many wash- outs and erosion channels across the landslide area. He also says that boulders and chunks of concrete are still precariously balanced on the main landslide scarp near the banana plant end of the scarp. On 28 July 2023, the boulders and concrete were heavily obscured by vegetation, but it appeared to Mr Shaw that they may have moved a little down-slope since July 2021.
  1. [92]
    Mr Shaw says that there has been further movement of the western landslide or erosion. This has resulted in the caravan falling down the slope.
  1. [93]
    Mr Shaw was unable to assess whether the erosion was greater than that observed in July 2021 because of the vegetation cover.
  1. [94]
    On 28 July 2023, Mr Shaw observed seepage on the lower slopes of the landslide area at a similar location to that observed in July 2021.
  1. [95]
    Having regard to those more recent observations, and the detailed analysis in his first report, Mr Shaw opines that the measures proposed by Mr Morley will do little to improve the stability of the existing fill platform.
  1. [96]
    Mr Shaw accepts that there is some merit in the proposal to cut down the existing dead trees located in the area down-slope of the landslide scarp (south of the existing fill platform) and lay them across the slope. This would intercept surface run-off and reduce the potential for eroded soil to be transported further down-slope onto the Council’s land. However, in Mr Shaw’s view, this would not address the main issue, which relates to the instability of the fill platform.
  1. [97]
    Mr Shaw opines that the placement and clay packing of other felled trees along the crest of the existing landslide scarp will surcharge the slope, contributing to further instability. In addition, if not properly implemented, it has the potential to result in ponding of water on the fill platform, increasing the subsequent infiltration of water into the fill. This also will contribute to further instability.
  1. [98]
    Mr Shaw considers that Mr Morley’s proposal with respect to the septic tank accords with the requirements in the enforcement notice and is acceptable.
  1. [99]
    In his third report, Mr Shaw addresses the letters from Mr James Taylor upon which Mr Morley relies.
  1. [100]
    Mr Shaw accepts that some revegetation of the area has occurred. This reduces, but does not eliminate, the potential for erosion. Mr Shaw does not accept that there is not an ongoing risk of landslide on the basis that the land has “reached its equilibrium”.
  1. [101]
    Mr Shaw explains that erosion is a process by which materials are worn away and transported by natural forces such as wind and water. Landslide, on the other hand, is the movement of a mass of rock, debris or earth down a slope.
  1. [102]
    Mr Shaw notes that if Mr Taylor’s statement that the land has “reached its equilibrium is intending to refer to the slope and the potential for landslide, it implies that the disturbing forces and resisting forces within the landslide mass are in balance for the prevailing site conditions and, as such, the factor of safety is 1. Mr Shaw explains that such slopes are generally referred to as being at limiting equilibrium”. In Mr Shaw’s opinion, this is not an acceptable condition.
  1. [103]
    On Mr Shaw’s assessment, the factor of safety against instability of the current platform is just above 1.0. If excess water pressure develops within the fill, that estimated factor of safety will be reduced to less than 1.0 and a further failure (in the form of a landslip) will occur. Mr Shaw does not regard that situation to be acceptable. He explains that it is generally accepted by the geotechnical industry that for filled slopes (as compared to natural slopes), the factor of safety against instability should be at least 1.5 for normal conditions and 1.3 for extreme conditions. The current fill slopes do not meet those minimum requirements.
  1. [104]
    I accept the evidence of Mr Shaw. His observations are supported by photographs, and his opinions are supported by detailed and cogent explanations. Mr Shaw’s opinions are also consistent with the photographic evidence of changes that have occurred between July 2021 and July 2023. The most notable change is a further landslip that has caused the caravan that was at the crest of the slope on the western side to fall down the failed slope.
  1. [105]
    I do not accept the opinions expressed by Mr Taylor. They are not supported by detailed analysis.[17] They are also inconsistent with the photographic evidence of changes that have occurred between July 2021 and July 2023.
  1. [106]
    For those reasons, I am satisfied that the requirements now proposed by the Council are appropriate.

Are there discretionary considerations that warrant setting aside the enforcement notice?

  1. [107]
    As I have already mentioned, the Council accepts that the appeal should be allowed and the Council’s decision to give the enforcement notice should be set aside. It now contends that course is appropriate to ensure that the timeframes are set afresh.
  1. [108]
    I agree that the Council’s decision to give the enforcement notice should be set aside. The reason it is appropriate to do so is not limited to a need to re-set the timeframe for compliance with the requirements.
  1. [109]
    As I have found above, I am not satisfied that the belief about the commission of a development offence was reasonably formed given the evidence available at the time that the enforcement notice was given. As such, this is an additional, and compelling, reason that the Council’s decision to give the enforcement notice should be set aside.
  1. [110]
    That reason is even more compelling given that the appeal did not stay the operation of the enforcement notice, and it is an offence to fail to comply with an enforcement notice.

Conclusion

  1. [111]
    For the reasons provided above, I am satisfied that the appeal should be allowed, and the enforcement notice set aside.
  1. [112]
    That said, the Council has demonstrated that its decision should be replaced with a decision to give an enforcement notice with requirements of the type that it now proposes. Having regard to the matters referred to in paragraphs [35] to [40], I consider it appropriate that the enforcement notice also be further amended to refer to the estimated volume of fill.
  1. [113]
    In those circumstances, I will order that:
    1. the appeal be allowed in part; and
  1. the Council’s decision to give an enforcement notice dated 6 December 2021 is set aside and replaced with a decision to give an enforcement notice in the terms attached as Annexure 1 with the following amendments:
    1. the insertion of a new paragraph 1A as follows:

“During the period between 2 December 2019 and 6 April 2020, there was placement of fill in the order of 1,300 to 1,700 square metres. The fill changed the ground level to expand the aerial extent of the level platform on the side of the hill on the subject land that is downslope of the existing house. Some of the fill was placed within 20 metres of the boundary of the subject land. The earthworks materially affect the subject land and its use.”

  1. the replacement of the final sentence in paragraph 1 of the requirements with a sentence that states:

“The report must be provided to Council by 20 March 2024”.

Morley v Council of the City of Gold Coast [2023] QPEC 51

Annexure 1 Replacement enforcement notice contended for by the Council

Planning Act 2016

Section 168

ENFORCEMENT NOTICE

TO:

Mark Morley

of

50 Sehmish Court

Bonogin QLD 4213

as

owner

of premises described

as

Lot 403 RP893886

situated at

50 Sehmish Court, Bonogin in the State of Queensland (Premises)

Take notice that the enforcement authority, Council of the City of Gold Coast (Council) reasonably believes a person has committed or is committing a development offence against section 163 of the Planning Act 2016 (Planning Act) on the Premises, in that:

  1. As a consequence of complaints made to Council, and review of aerial imagery, Council reasonably believes that, during the period between 2 December 2019 and 6 April 2020, more than 50 cubic metres of fill was imported onto the Premises for what appeared to be the purpose of creating a large near level platform on the side of the hill on the Premises, downslope of the existing house (Fill Platform).
  1. As a consequence of those, and other, complaints, a Council Development Compliance officer inspected the Premises on 14 October 2020 and observed that, consistent with the review of aerial imagery described in the previous paragraph, the Fill Platform had been constructed which comprised operational work (change to ground level - filling), and which exceeded 50 cubic metres of filled area.
  1. On Thursday 17 December 2020 heavy rain caused the Fill Platform to fail to the south, and which removed some of the fill observed on the site on 14 October 2020 so as to be placed within 20 metres of (and across) the southern boundary of the Premises (refer to Figure 1 below).
  1. An inspection of the landslide area on 18 December 2020 confirmed that the southern part of the Fill Platform had failed, and that the balance part of the Fill Platform remained inherently unstable and at real risk of further destabilisation without further notice or warning, and that should further destabilisation occur it may result in injury or death to any person on or near the area, and damage to property placed on or near the area.
  1. An Enforcement notice was issued to you on 23 December 2020 which required you to take various actions in respect of the unlawful operational work.
  1. A search of Council records indicates that on 13 November 2013 a development permit for operational works (change to ground level) was approved at the premises subject to conditions. The development approval included an approved plan Drawing E01 Rev D, “Proposed Work, Lot 403 RP893886, 50 Sehmish Court, Bonogin, 4213” dated 4 October 2013, by Structerre (amended in red) (2013 Approval).

Morley v Council of the City of Gold Coast [2023] QPEC 51

  1. The operational work that has been carried out at the premises in 2020 (described in items 1 to 4 above) was not authorised by the 2013 Approval.
  1. There are no other development applications that have been submitted, or development approvals given, that would otherwise authorise the creation of the Fill Platform.
  1. Council officers subsequently inspected the Premises on 20 July 2021 with the assistance of a specialist geotechnical engineer. During the inspection it was observed that:
  1. earthworks carried out on the Premises were not authorised by the 2013 Approval;
  1. the site and Fill Platform were observed to be poorly drained. There was a large sump at the location of the septic tank and the owner indicated during the site visit that water collected in the sump;
  1. a drainage pipe connected the sump to the outer face of the fill;
  1. water was observed to be seeping out of the fill at the approximate location of the pipe. At other locations, groundwater was observed to be seeping on the contact between the fill and the underlying residual soil;
  1. there was evidence of many washouts and erosion channels across the failed material deposited on the slopes down-hill of the landslides indicating that surface and subsurface drainage across the site is poorly controlled; and
  1. should another landslide occur, it would result in further loss of material from the near level platform and could endanger the existing structures towards the western end of the platform.
  1. During the period of time described in paragraph 1 above, the Premises was located in the Rural zone and Rural landscape and environment precinct in the Gold Coast City Plan (City Plan).
  1. Pursuant to the City Plan in effect during the period of time described in paragraph 1 above, in the Rural zone, Rural landscape and environment precinct, operational work (change to ground level) that—
  1. exceeds a volume of 50 cubic metres of fill or excavation OR
  1. is within 20 metres of a site boundary is code assessable development, which required a development approval.
  1. Pursuant to section 163 of the Planning Act:
  1. A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

Maximum penalty—

  1. if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
  2. otherwise—4,500 penalty units.
  1. However, subsection (1) does not apply to development carried out—
  1. under section 29(10)(a); or
  2. in accordance with an exemption certificate under section 46; or
  3. under section 88(3).
  1. Further, in respect of matters identified in section 163(2) of the Planning Act, Council records confirm that:
  1. the development has not been carried out under an exemption certificate issued pursuant to section 46 of the Planning Act;
  1. the development has not been carried out under a superseded planning scheme pursuant to section 29(10)(a) of the Planning Act; and
  1. the development has not been carried out under section 88(3) of the Planning Act.
  1. This notice is given to you, pursuant to section 168(1)(b) of the Planning Act, as the owner of the premises upon which Council reasonably believes a person has committed, or is committing, the aforementioned development offence.
  1. Pursuant to section 167(5) of the Planning Act, this enforcement notice is being given without a show cause notice as urgent action is necessary to address a danger to public health and safety, and erosion and sedimentation into neighbouring properties.

What you are required to do:

  1. Engage a Registered Professional Engineer of Queensland (RPEQ) with experience in geotechnical engineering for the purpose of advising on, preparing and providing to Council for approval, a report (Report) regarding how the Immediate Remedial Works required by this notice must be carried out and the manner in which the RPEQ will supervise the works. The report must be provided to Council within two calendar months from the date of this Notice;
  1. Upon Council notifying its approval of the Report, or identifying necessary changes to the works described in the Report (Council Notification), under the supervision of the RPEQ, carry out the following (Immediate Remedial Works) (unless alternative works are recommended by the RPEQ in the Report, and Council approves those alternative works to be carried out as an alternative to the works described below):
  1. flatten the fill batter in the landslide area depicted in Figure 2 below to no steeper than 1V:1.5H (34°). This should be done in a safe manner with machinery set back an appropriate distance from the crest of the slope and taking care to contain any loose debris and prevent boulders or similar sized material being released onto the lower slopes and onto the adjoining land to the south;
  1. direct surface water runoff away from the crest of the batter and collect / discharge into natural drainage features away from the fill embankment;
  1. cover the upper part of the batter in plastic sheeting or water shedding geofabric to reduce the potential for water to infiltrate into the fill and to reduce erosion on the face of the slope; and
  1. check the septic tank for any leaks and locate the outlet drain from the septic tank to discharge to a suitable location down-slope of the flattened batter.

The Immediate Remedial Works must be completed within two calendar months from the receipt of Council Notification.

  1. Within three calendar months from the receipt of Council Notification, provide Council with a copy of a report, produced by the RPEQ, that:
  1. confirms that the Immediate Remedial Works have been completed, and to a satisfactory standard; and
  1. details further procedures (including appropriate design measures) for the permanent stabilisation of the landslide area (Permanent Stabilisation Measures). The Permanent Stabilisation Measures will need to address:
  1. the requirements of the Geotechnical Stability Assessment Guidelines (dated March 2016, produced by the Council of the City of Gold Coast);
  1. poor surface drainage that exists on the Premises; and
  1. the drainage of surface water run off.
  1. Until such time that any Permanent Stabilisation Measures described in the RPEQ report have been implemented (and constructed), you must:
  1. maintain the temporary exclusion zone as required by the Enforcement notice dated 23 December 2020 (refer to Figure 1 below);
  1. remove, and do not place or erect structures on the Fill Platform; and
  1. restrict access to the Fill Platform to machinery and appropriately qualified persons engaged to undertake the Immediate Remedial Works and implement the Permanent Stabilisation Measures. Access is to be limited to a zone set back not less than 5 metres from the crest of the flattened batter.
  1. Dates for compliance with requirements of this notice may be extended by agreement between Mr Morley and the Council.

Morley v Council of the City of Gold Coast [2023] QPEC 51

Figure 1 - Temporary Exclusion Zone (Nearmap aerial imagery captured 16 Oct 2020)

Morley v Council of the City of Gold Coast [2023] QPEC 51

Figure 2 - Landslide Area, being the general area marked in black (Nearmap aerial imagery captured 16 Oct 2020)

Penalties

It is a development offence to carry out assessable development unless all necessary development permits are in effect for the development. Upon conviction by a court for the development offence the current maximum penalty is 4,500 penalty units (currently $600,325.00 for an individual or $3,101,625.00 for a corporation) or 17,000 penalty units (currently $2,343,450.00 for an individual or $11,717,250.00 for a corporation) if the assessable development is on a Queensland heritage place or local heritage place. In addition, legal costs can be claimed and a court may make other orders against you.

It is an offence against section 168(5) of the Planning Act to contravene this enforcement notice. Upon conviction by a Court for the offence the current maximum penalty is 4,500 penalty units (currently $600,325.00 for an individual or $3,101,625.00 for a corporation). In addition, legal costs can be claimed and a court may make other orders against you.

Further, in relation to a corporation, section 227 of the Planning Act provides that an executive officer of a corporation commits an offence against an executive liability provision of the Planning Act, and did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence. The current maximum penalty which can be imposed on an executive officer for committing an offence against section 227 of the Planning Act is the penalty for a contravention of the executive liability provision by an individual.

In addition to the above, Council may also issue penalty infringement notices (on-the-spot fines) of up to 20 penalty units (currently $2,757.00) for an individual, or up to 100 penalty units (currently $13,785.00) for a corporation.

Council may take action to commence prosecution or other proceedings for a development offence at any time regardless of this notice if it is considered warranted.

Appeal rights

You have an appeal right against the giving of this notice. An appeal may be made against the decision to give this enforcement notice.

An appeal must be started within 20 business days after this enforcement notice is given to you. An appeal may be made to the Planning and Environment Court and, for certain matters which are identified in section 1(2) of Schedule 1 of the Planning Act, to a development tribunal.

An appeal is started by lodging a notice of appeal with the registrar of the Planning and Environment Court or a development tribunal, as applicable. The notice of appeal must be in the approved form, succinctly state the grounds of the appeal and be accompanied by the required fee.

An appellant to the Planning and Environment Court must give a copy of the notice of appeal, within 10 business days after the appeal is started, to the persons identified in section 230(3) of the Planning Act. A person who is appealing to the Planning and Environment Court must comply with the rules of the court that apply to the appeal.

Chapter 6, Part 1 and Schedule 1 of the Planning Act sets out further information about appeal rights.

Please note that any response to this notice may be used by Council in any legal proceedings against you, whatsoever.

Dated this DAY day of MONTH YEAR.

Jason Rodgers

Acting Coordinator Development Compliance

For the Chief Executive Officer

Council of the City of Gold Coast

(BJ:MH)

Please refer all enquiries regarding this notice to

Contact:Blake Johnston, Development Compliance

Telephone:07 5582 8199

Council reference:CE- COC/2020/1151

Morley v Council of the City of Gold Coast [2023] QPEC 51Complaint Investigations and Information Privacy

Subject to IPP11(1)(a) of the Information Privacy Act 2009, it is Council’s usual practice to disclose information about the progress of an investigation, and its outcome, to the complainant.

Information that may be disclosed

On receipt of a written request from the complainant, Council may provide the following types of information:

  • The actions Council has taken to investigate a complaint matter (e.g. Council officers have visited the property)
  • Any enforcement action which has been or is being taken (e.g. a fine, notice or other correspondence has been issued, resolution of the matter is now subject to legal proceedings)
  • The outcome of the investigation.

If a complaint investigation finds no breach, Council may advise the complainant that based on information held by Council, no further action is required.

Complainants may also apply to view or purchase copies of show cause notices or enforcement notices that have been issued under the Planning Act 2016 or the Building Act 1975.

Information that is not disclosed

The Information Privacy Act 2009 (the Act) requires that Council must not disclose an individual’s personal information to another person or entity unless the disclosure is made within the scope of specific exemptions as set out under IPP11 of the Act.

Morley v Council of the City of Gold Coast [2023] QPEC 51

Footnotes

[1]Planning and Environment Court Act 2016 (Qld) s 43.

[2]Planning and Environment Court Act 2016 s 45(3).

[3][1938] HCA 34; (1938) 60 CLR 336.

[4]Planning and Environment Court Act 2016 s 47

[5]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.

[6]Planning and Environment Court Act 2016 s 47.

[7]Planning Act 2016 s 167.

[8]Planning Act 2016 s 167(5)(a)(ii).

[9]Planning Act 2016 s 167(5)(a)(vii).

[10][2021] QPEC 21; [2022] QPELR 505, 515-6 [62].

[11]See the definition of “development” and “operational work” in sch 2 of the Planning Act 2016.

[12]Planning Act 2016 s 168(5).

[13]For example, where the development offence relates to works that the enforcement authority reasonably believes are a danger to persons or a risk to public health or development that the enforcement authority reasonably believes is causing erosion or sedimentation.

[14]Planning Act 2016 s 171.

[15]Drawing E01 Rev D that is titled “Proposed Work, Lot 403 RP893886, 50 Sehmish Court, Bonogin, 4213.

[16]Planning Act 2016 s 43.

[17]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, 733 [68] and 743-4 [85].

Close

Editorial Notes

  • Published Case Name:

    Morley v Council of the City of Gold Coast

  • Shortened Case Name:

    Morley v Council of the City of Gold Coast

  • MNC:

    [2023] QPEC 51

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    19 Dec 2023

Appeal Status

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

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