Gavin & Anor v Sunshine Coast Regional Council

This case involved a challenge to enforcement orders made by the Planning and Environment Court. Those orders included an order requiring internal modifications to a building to make it less likely it would be used for a prohibited use. The applicants alleged that the orders were beyond power because the building was capable of being used lawfully without modification. The Court of Appeal unanimously concluded that the orders were within the power provided by s 180 of the Planning Act 2016.

Fraser and Morrison JJA and North J

8 October 2021

Background

In 2018 Mr Gavin constructed a building at Birtinya on land owned by his company, JDL Investments Pty Ltd (collectively, “the applicants”). [13]. The building had three levels and 17 bedrooms, each individually locked and with its own ensuite. Each bedroom was individually metered for water and electricity. [14].

Under the Caloundra City Planning Scheme 1996, use of the building as an “accommodation building” was a prohibited use. [41]. The applicants knew this, and obtained approval to construct the building as a permitted “dwelling house”. [19]–[21]. They submitted misleading architectural drawings to the Council, “pretending that the building was to be a normal, if large, domestic dwelling”. [17]. Nonetheless, they “always intended to use the building as an accommodation building and not as a dwelling house”. [21].

Between January 2019 and March 2020 the applicants advertised for rentals and let out rooms in the building to as many as 15 people at a time. [22], [41]. Because use as an accommodation building was prohibited, this conduct constituted development offences contrary to ss 162 and 165 of the Planning Act 2016 (“Planning Act”). [23].

At first instance, the Council was successful in obtaining orders from the Planning and Environment Court that had the effect of preventing any further use of the building contrary to its lawful use. [23]. This included order 5, which required the applicants to undertake certain modifications to the interior of the building, such as by removing many internal locks, doors, and individual metering of water and electricity for the bedrooms (amongst other things). [24]. The applicants sought leave to appeal on a number of grounds; notably, including on the ground that order 5 was beyond power. [28].

The Court of Appeal unanimously dismissed the application for leave to appeal. Substantial reasons were given by Morrison JA, with which Fraser JA and North J agreed. [1], [121]. Additional reasons were given by Fraser JA, with which the other justices also agreed. [118], [120].

Why order 5 (requiring modifications to the building) was not beyond power

The applicant’s contention in relation to order 5 was that it was beyond power because it required physical alterations to the building in circumstances where “the only development offence was concerned with the use of the building and not its construction”. [102]. It was not in dispute that the building was “capable of being used lawfully without alteration”. [106].

The Court of Appeal unanimously concluded that the primary judge had power to make order 5 as an enforcement order pursuant to s 180 of the Planning Act. [11], [117]. That provision relevantly provides that:

“…

(3)   The P&E Court may make an enforcement order if the court considers the development offence—

(a) has been committed; or

(b) will be committed unless the order is made.

…

(5)   An enforcement order … may direct the respondent—

…

(b) not to start an activity that constitutes a development offence; or

(c) to do anything required to stop committing a development offence; or

…

(e) to do anything to comply with this Act.

…

(6)   An enforcement order … may be in terms the P&E Court considers appropriate to secure compliance with this Act.”

Justice Morrison considered that the power to make order 5 derived from ss 180(5)(b), 180(5)(c) and 180(5)(e). His Honour noted that s 180(3)(b) provides that the Court may make an enforcement order if the Court considers the development offence “will be committed unless the order is made”. Once that was understood, modifications to prevent or hinder use of the building as an accommodation building were part of an order “not to start an activity that constitutes a development offence” (namely, unlawful use as an accommodation building), as per s 180(5)(b). [113]. His Honour gave additional reasons why the order was also within ss 180(5)(c) and 180(5)(e). [114]–[115].

Notably, the primary judge had concluded that order 5 was necessary to secure compliance with the Planning Act because the applicants would be likely otherwise to attempt to “put the building to unlawful use or permit that to occur”. [116]. Order 5 was appropriate in the circumstances to secure compliance with the Act by making it “harder for the building to be used as an accommodation building”. [116]–[117].

In separate reasons, Fraser JA particularly emphasised the existence of s 180(5)(e). His Honour concluded that “sections 180(5)(e) and 180(6) unambiguously confer upon the Planning and Environment Court a power to impose terms of an enforcement order which that court considers are apt to secure compliance with the Act by making it more difficult for the respondent to commit a development offence”. [10].

W Isdale