Baxter v Preston - [2021] QPEC 69

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Baxter v Preston & Ors [2021] QPEC 69

PARTIES:

STEVEN JOHN BAXTER
(Applicant)

v

ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON
(First Respondents)

and

GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406)
(Second Respondent)

and

BRISBANE CITY COUNCIL
(Third Respondent)

FILE NO/S:

932 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2021 (site inspection), 6, 7, 8 and 12 October 2021, further written submissions received 22 and 25 October 2021 and further evidence received 26 October 2021

JUDGE:

Kefford DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant says the private certifier was not the appropriate assessment manager – whether the local government was the appropriate assessment manager

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says other development permits were required for development other than building work that may affect the form or location of the building work or the use of the building or structure – whether the private certifier had power to give the approval under s 83 of the Building Act 1975 (Qld) – whether the requirement in s 83 of the Building Act 1975 (Qld) is a jurisdictional fact – whether there was a jurisdictional error that affected the decision

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says there was an inconsistency between the building permit and an earlier development approval – whether the private certifier had power to give the approval under s 84 of the Building Act 1975 (Qld)

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about the Council’s decision to give an exemption certificate under s 46 of the Planning Act 2016 – where the applicant challenged the validity of the Council’s decision to give an exemption certificate and the accuracy of the notice of its decision – where the decision was challenged on the basis of jurisdictional error – whether the notice of the decision was inaccurate – whether the Council failed to take into account relevant considerations – whether the Council’s opinion, for the purposes of s 46(3)(b) of the Planning Act 2016 was legally unreasonable

PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the applicant seeks declaratory relief about the lawfulness of future development – where there is no evident intention to carry out the development the subject of the declarations – whether granting declaratory relief would amount to answering a hypothetical question

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to remedy the commission of development offences – where the applicant alleges that the first and second respondents carried out operational works without all necessary development approvals – where the applicant alleges that the first and second respondents carried out building work without all necessary development approvals – where the development alleged to have been carried out was not particularised – whether the applicant should fail because of inadequate particulars – whether the applicant has demonstrated the commission of the alleged development offences

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to restrain the commission of development offences that he alleges will be committed unless restrained – whether the applicant has demonstrated that the first and second respondents will commit the alleged development offences unless restrained

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – ENFORCEMENT PROCEEDING – whether the relief sought should be granted in the exercise of the Court’s discretion

LEGISLATION:

Building Act 1975 (Qld) ss 7, 12, 13, 30, 32, 33, 83, 84, 86, 132, 143, 256, sch 2

Building Regulation 2006 (Qld) s 10

City of Brisbane Act 2010 (Qld) ss 231, 232

Planning Act 2016 (Qld) ss 8, 29, 43, 44, 46, 48, 49, 51, 54, 55, 57, 83, 88, 104, 107, 161, 163, 164, 180, 333 sch 2

Planning and Environment Court Act 2016 (Qld) s 11

Planning and Environment Court Rules 2018 (Qld) r 8, 9

Planning Regulation 2017 (Qld) ss 20, 21, 22, 26, sch 6, sch 8, sch 9, sch 10

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, applied

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, applied

Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119, cited

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, applied

Australia Pacific LNG Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2020] QCA 15, cited

Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, applied

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, applied

Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5; [2009] QPELR 533, cited

Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied

Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613, approved

Birkdale Flowers Pty Ltd v Wilson Four Pty Ltd & Anor [2016] QPEC 4; [2016] QPELR 231, cited

Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, approved

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

Bundaberg Regional Council v Loeskow & Ors [2011] QPEC 95; [2012] QPELR 27, cited

Bundaberg Regional Council v Ross [2011] QPEC 137; [2012] QPELR 322, cited

BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 268 CLR 29, applied

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied

Council of City of the Gold Coast v McKean [2019] QPEC 28; [2019] QPELR 959, cited

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied

Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731, cited

Eschenko v Cummins & Ors [2000] QPELR 386, cited

Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, approved

Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, cited

Francis v Crime and Corruption Commission & Anor [2015] QCA 218, applied

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, applied

Gerhardt v Brisbane City Council [2016] QPEC 48; [2016] QPELR 900, cited

Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, applied

Massie & Ors v Brisbane City Council [2007] QCA 159, applied

Mentink v Registrar of Ships [2014] FCA 1138; (2014) 320 ALR 137, cited

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No. 6) [2015] FCA 825; (2016) 325 ALR 1, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, applied

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, cited

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, cited

Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, applied

Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, cited

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited

MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17, considered

Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, applied

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485, distinguished

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, applied

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, applied

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied

QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186, cited

Re Tooth & Co Ltd [1978] FCA 10; (1978) 31 FLR 314, applied

Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

Serratore & Anor v Noosa Shire Council [2021] QPEC 21, approved

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

Walker v Noosa Shire Council [1983] 2 Qd R 86, applied

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, applied

Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520, cited

Wheldon & Anor v Logan City Council & Anor [2015] QPEC 22; [2015] QPELR 640, cited

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

A N S Skoien and J R Moxon for the Applicant
S J Hedge for the First and Second Respondents
R Yuen for the Third Respondent

SOLICITORS:

Romans & Romans Lawyers for the Applicant
Thynne + Macartney for the First and Second Respondents
Brisbane City Legal Practice for the Third Respondent

TABLE OF CONTENTS

Overview

What approvals have been obtained for the subject land?

What does the Council building permit relate to?

What does the first amenity referral agency response relate to?

What does the first certifier building permit relate to?

What does the siting variation referral agency response relate to?

What does the second certifier building permit relate to?

What does the exemption certificate relate to?

What does the operational works permit relate to?

What does the changed Council building permit relate to?

What does the second amenity referral agency response relate to?

What does the third certifier building permit relate to?

What are the Prestons’ future intentions?

What is Mr Baxter’s case?

What are the relevant legal principles with respect to granting declaratory relief?

What are the relevant legal principles that guide the review of the validity of the building permits and the exemption certificate?

Is the second certifier building permit invalid?

Was the application made to the wrong assessment manager?

Did the construction of the pool, the deck and the rear stairs require assessment against City Plan?
Did the matters in City Plan include matters other than the building assessment provisions?
Did the matters in City Plan include matters other than the matters mentioned in sch 9, pt 3, div 2?
Conclusion regarding whether the development application for the pool, the deck and the rear stairs was made to the wrong assessment manager

Was there a relevant absence of other development approvals?

Is the second certifier building permit inconsistent with the Council building permit?

Are there discretionary considerations that inform whether the declaration should be made?

Conclusion regarding Mr Baxter’s challenge to the validity of the second certifier building permit

Is the exemption certificate invalid?

What is the relevant legislative context?

Is the exemption certificate invalid because of non-compliance with s 46(6) of the Planning Act 2016?

Is the exemption certificate invalid because of the misdescription of the works?

Is the exemption certificate invalid because the decision to issue it is impermissibly piecemeal?

Is the exemption certificate invalid because of a failure to consider relevant matters?

Was the decision one that no reasonable decision-maker could make?

What are the relevant principles?
What was the evidence about the Council’s decision?
Has Mr Baxter established legal unreasonableness?

Conclusion regarding Mr Baxter’s challenge to the validity of the exemption certificate

Is the third certifier building permit invalid?

What are the enforcement orders that are sought?

What is the Court’s jurisdiction and powers with respect to enforcement orders?

Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?

What must Mr Baxter prove?

Is operational work for filling and excavation categorised as assessable development under City Plan?

Is building work for the pool, the deck and the rear stairs categorised as assessable development under City Plan?

Was there authorisation for the development?

What are the particulars of the development offences that are alleged to have been committed?

Are the particulars sufficient?

What is the evidence of the earthworks that have commenced?

Conclusion about whether the operational works permit was necessary

Conclusion about whether a building works permit from the Council was necessary

Conclusion regarding the alleged development offences

Unless restrained, will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016?

Should the declarations about the lawfulness of operational work yet to be carried out be made?

Should the declarations about the lawfulness of building work yet to be carried out be made?

Should the enforcement orders restraining the commission of development offences be made?

Should the Prestons and Graya Construction pay Mr Baxter’s costs?

Conclusion

Attachment A

Overview

This proceeding relates to a dispute between neighbours in Reading Street, Paddington. Reading Street is a very steep street in which every house sits substantially higher than its downhill neighbour because of the grade of the land in the area.
The Applicant, Mr Steven Baxter, is the registered owner of land located at 11 Reading Street. The grade of the land in the area is such that Mr Baxter can see down into the neighbouring property to the south of his land. There is also significant grade from Reading Street to the rear boundary of Mr Baxter’s land, so Mr Baxter can also see down into the backyard and pool area of the property at 30 Wilden Street to the east.[1] This extent of potential overlooking is not confined to Mr Baxter’s southern and eastern neighbours. It is a feature of the locality.[2]
[1]The south-western corner of the property at 30 Wilden Street adjoins the north-eastern corner of Mr Baxter’s land.
[2]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 27-30.
Mr Baxter’s house does not enjoy the advantage of being located at the top of the hill. Rather, Mr Baxter is the downhill neighbour to the residents of the property at 9 and 9A Reading Street (“the subject land”). The subject land is owned by the First Respondents, Mr Anthony Preston and Mrs Kylie Preston (collectively referred to herein as “the Prestons”). The subject land is downhill of the property to the Prestons’ north, which also fronts Reading Street. The grade of Reading Street is so steep that the residents to the north of the Prestons (two houses to the north of Mr Baxter) can look down from their deck into Mr Baxter’s yard.[3]
[3]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 28.
The context of the locality in which Mr Baxter lives, and the subject land is located, is one where built form consistently towers over the respective downhill neighbours, and combined retaining walls and balustrades more than three metres in height are clearly visible from the street.[4]
[4]Exhibit 3.02 p 6.
Although there is potential for the occupants of each house on the eastern side of Reading Street to overlook the adjoining properties to the south and the east, there is a matter of far greater attraction in the area. It is the extensive, effectively uninterrupted, city views that are available to the east, which can be enjoyed together in combination with unfettered south-easterly breezes.[5]
[5]Exhibit 3.02 pp 6-9; Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 31.
The design of Mr Baxter’s house takes advantage of this context. It turns its least-fenestrated side to the subject land and orients itself towards the easterly outlook.[6]
[6]Exhibit 3.02 p 6.
Until recently, the subject land was improved by a pre-1947 dwelling. The backyard was terraced, with the higher land towards the northern boundary.
The Prestons engaged experts to develop a design for the subject land that would reflect their overarching desires for its redevelopment. They wanted to maintain the front façade and the traditional building character of the pre-1947 dwelling; provide equal sized bedrooms for each of their children; maximise their views of the city; maximise the extent of level backyard to allow their children to run around and to address Mrs Preston’s concerns about the risks to her children associated with flooding in the low terraces in the backyard; incorporate a pool; and incorporate a space that their children could socialise with a degree of privacy when they reach their teenage years.[7]
[7]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 79, 80, 84, 85, 87, 95, 96, 104 and 105.
In February 2019, the Prestons began the process of applying for the development approvals they would need to redevelop the subject land. They engaged the Second Respondent, Graya Construction Pty Ltd, to assist them in their endeavour.
Between February 2019 and the end of October 2020, the Prestons sought multiple development approvals over the subject land. Over that period, there were some changes to the proposed design. The amendments were part of an iterative process between the Prestons and their consultants that was informed by communications between the Prestons’ consultants and Brisbane City Council (“the Council”) during the development application process. Ultimately, the Prestons left it to their architect to develop a design that would give effect to their desired design outcomes to the extent that they could be achieved with approval by the Council.[8]
[8]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 85, 88 and 90.
Around August 2020, Mr Baxter learned about the proposal to change the pre-1947 dwelling on the subject land. He engaged a town planner, Mr Catchlove, to prepare an objection to the proposed redevelopment on the basis that the proposed works would significantly reduce the amount of direct and indirect sunlight over his lawn and pool. He also instructed his lawyers to issue a letter to the Council objecting to the development on the ground that, amongst other things, the natural light and ventilation to his property would be significantly affected.[9]
[9]Exhibit 2.04.

In August, October, and November 2020, building permits were given by the Council and a private certifier under the Building Act 1975 (Qld), Mr Gareth Martin of 3 Codes: Building Certification (“the private certifier”). As the development applications for each of the building permits only required code assessment, Mr Baxter had no right of appeal with respect to the grant of those development approvals.
Construction on the subject land commenced around November 2020.[10] By that time, the Prestons had the benefit of what they understood to be, and what I am satisfied were,[11] the necessary development approvals under the Planning Act 2016 (Qld) and the Building Act 1975.
[10]I infer that construction commenced around 11 November 2020 – see Exhibit 2.04 [13] and Exhibit 2.01 [3].
[11]See paragraphs [341] to [403] below.
On 18 November 2020, Mr Catchlove wrote to the Council on Mr Baxter’s behalf alleging that there was unlawful development occurring on the subject land. The unlawful development was said to be filling and excavation that would require an operational works permit.
On 11 March 2021, the Prestons made a development application to the Council seeking a development permit for operational work. The development application records that it was made on the advice of Ms Rattansay, Built Environment Officer with the Compliance and Regulatory Service Branch of the Council.[12]
[12]Exhibit 1.08 p 23.
On 21 April 2021, at an ex parte hearing, Mr Baxter sought the leave of the Court to file the Originating Application that commenced this proceeding. In the Originating Application, Mr Baxter alleges that the Prestons were committing a development offence by commencing development without all necessary development approvals.
The development that is alleged to have commenced unlawfully was:
(a)filling and excavation for which no operational works permit had been obtained; and
(b)building work associated with the construction of a swimming pool and associated support structures at the rear of the dwelling (“the pool”), a deck between the rear of the dwelling and the eastern and southern boundaries (“the deck”) and stairs adjacent the deck (“the rear stairs”). Mr Baxter alleges that this building work required development approval from the Council, not just the private certifier.
The purpose of the proceeding was to obtain enforcement orders restraining the Prestons, and Graya Construction Pty Ltd, from carrying out development unless and until all necessary development approvals were obtained.
His Honour Judge Everson granted Mr Baxter leave to file the Originating Application. His Honour went on to make an ex parte interim enforcement order that same day. The ambit of the order was expansive. It required the Prestons and Graya Construction Pty Ltd to cease those works involving filling, excavation, and the construction of retaining walls, and the construction of the pool, the deck and the rear stairs. The order enjoined them from resuming those works. No undertaking as to damages was given by Mr Baxter to secure this outcome.
After the proceeding was commenced, the Council gave an operational works permit that authorised the filling and excavation the subject of Mr Baxter’s complaint. On 7 June 2021, the Council gave an exemption certificate under s 46 of the Planning Act 2016, obviating the need for the Prestons to obtain a building permit from it in relation to the pool. Mr Baxter responded by amending his proceeding to raise new and further allegations.
As with the earlier allegations of impropriety, the Prestons sought to address the allegations by seeking, and obtaining, further development approvals. They did so even though, in my view, the additional development approvals[13] and the exemption certificate were not required.[14] On each occasion, Mr Baxter responded by further amending his proceeding.
[13]That is, the operational works permit, the changed Council building permit and the third certifier building permit.
[14]See paragraphs [139] to [238] and [341] to [403] below.
By the conclusion of the hearing, Mr Baxter had amended his proceeding several times, including twice during the three-day hearing. In the face of the many approvals obtained by the Prestons, in his Third Further Amended Originating Application Mr Baxter deploys allegations of invalidity, throwing the term around like confetti at a wedding.
Mr Baxter challenges the lawfulness of works that he alleges have been carried out on the subject land. He seeks enforcement orders that would require the Prestons and Graya Construction Pty Ltd to stop the redevelopment of the subject land and to return parts of it to the condition that it was in prior to the redevelopment, unless and until valid development approvals are obtained. Mr Baxter also challenges the validity of the exemption certificate given by the Council and the validity of two of the development approvals given by the private certifier.
Mr Baxter has the onus of demonstrating that the relief he seeks should be granted. This is a herculean task.[15] That is evident from considering the nature of just one of the declarations sought. Mr Baxter seeks a declaration that the exemption certificate is invalid because the Council failed to consider relevant considerations when exercising a discretionary statutory power and the decision was one that no reasonable decision-maker could make. That declaration is sought in circumstances where there are no prescribed mandatory considerations in the legislation.
[15]Francis v Crime and Corruption Commission & Anor [2015] QCA 218, [33].
Mr Baxter’s task is made none the easier by the form of the declarations that he has chosen to seek. Some of the declarations are unattractively expressed. They are more than a page in length, contain multiple allegations that are expressed in cumulative terms, and include statements that are non-sensical.[16]
[16]It is important to pay close attention to the form of declarations proposed: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].
Against that background, it must be remembered that the relief that Mr Baxter seeks is discretionary. Even if Mr Baxter establishes all his allegations about unlawful works and invalid decision-making, the Court must still ask itself whether, in the exercise of the discretion, the declarations and orders should be made. Here, that question is to be answered in a context where there are many discretionary considerations that militate against the grant of the relief. They include the following eight considerations.
First, the documents, on their face, authorise the activities carried out to date on the subject land and the Prestons’ proposed redevelopment of the subject land.
Second, the breaches of the law, assuming they were made out, were not the product of a wilful and contumelious disregard of the law. To the contrary, the Prestons relied on the expertise of others. It was reasonable for them to do so.
Third, the extent of deficiencies now alleged are technical in nature.[17] Even if the allegations were correct, they are such that they are unnoticeable other than to a person well-versed in the legal quagmire that is the regulation of building work under the Planning Act 2016 and the Building Act 1975 and the sub-ordinate legislation and statutory instruments that they bring into play.[18]
[17]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 339.
[18]As to why it is a “legal quagmire”, see paragraphs [139] to [238] below.
Fourth, the Prestons, through their conduct and through the direct testimony of Mrs Preston, have demonstrated a commitment to obtaining all necessary development approvals or exemptions to authorise any development undertaken on the subject land. They have also demonstrated a commitment to acting in accordance with the development approvals so obtained.
Fifth, even if Mr Baxter was correct about the need for an operational works permit and authorisation from the Council with respect to the construction of the pool, by 13 July 2021 the Prestons had the additional authorisations from the Council. Despite that, they were still restrained from progressing the redevelopment of the subject land.
As I have already noted, on 21 April 2021, His Honour Judge Everson made an ex parte interim enforcement order that required the Prestons and Graya Construction Pty Ltd to cease those works involving filling, excavation, and the construction of retaining walls, and the construction of the pool. The order enjoined them from resuming those works. The interim enforcement order was expressed to continue until final determination of this proceeding. As such, it impeded the Prestons’ ability to proceed with development for which they had extant development approvals. No undertaking as to damages was given by Mr Baxter.
The interim enforcement order was only cancelled on 8 October 2021 when I determined an application that was returnable on the final day of the hearing. Even then, the order was only cancelled after Mr Baxter failed in his unmeritorious oral application to adjourn the application, and after he spent considerable time advancing unmeritorious arguments resisting the cancellation.
In those circumstances, the Prestons have been more than appropriately punished for the alleged unlawful conduct. They were restrained from undertaking work from 13 July 2021 to 8 October 2021 even though during that period they had all necessary development permits and the additional authorisations that Mr Baxter alleged were required. The Prestons and Graya Construction Pty Ltd have suffered significant inconvenience, building delays and costs.[19] The cost and inconvenience serves as ample reminder of the importance of complying with planning laws.
[19]Exhibit 3.03, [19], [21]-[25].
Sixth, the application was not brought by the Council as the proper guardian of public rights but by a private individual who feels aggrieved by decisions made by the Council and the private certifier about which he has no right to institute a review on the merits.[20]
[20]Each of the development applications were code assessable and so there is no right of appeal by individuals who are opposed to the development.
Seventh, having regard to the evidence of Mr Powell, which I accept,[21] I am satisfied that there will be no unacceptable impacts occasioned by the development contemplated by the extant development approvals and the exemption certificate. The design of the dwelling and outdoor living areas shown in the approved plans utilises an L-shape configuration that enables its residents to enjoy spectacular easterly views while capturing elevated south-easterly breezes. The adjoining properties to the north and south of the subject land, including Mr Baxter’s, adopt a similar L-shape development form.[22] Mr Baxter’s residence and the residence to the east both turn away from the subject land and instead orient themselves toward the east.
[21]I do not accept the evidence of Mr Muller. It was unpersuasive. His models were inaccurate and, in any event, did not provide a realistic portrayal of the development.
[22]Exhibit 3.02 p 12.
The retaining wall that retains the fill about which Mr Baxter complains will not be of sufficient size to interfere with the breeze to any neighbouring property. The development will produce a negligible increase in shadowing over Mr Baxter’s land. Further, given the landscaping that the Prestons propose, there will be a limited impact on visual amenity for the neighbours. The impact is one that is within reasonable expectations given the context in which the proposed development will sit.
Finally, there is no apparent public interest to be served in requiring the Prestons to make yet further development applications to the Council and the private certifier. To the extent that I am incorrect in my assessment of the matters of statutory construction, the resultant deficiencies relate to matters of form, not substance. Further, even if the correction of the alleged deficiencies resulted in the Prestons being denied the ability to proceed with the pool, this would not be likely to result in a materially different outcome for Mr Baxter. The potential impacts on character, sunlight, and privacy about which Mr Baxter is concerned[23] are a by-product of the location where he lives. A degree of impact, such as that occasioned by the proposed development, is within reasonable expectations. The impacts are not unacceptably exacerbated by the aspects of the proposed development about which Mr Baxter complains.[24]
[23]See Exhibit 2.04, [29]-[34].
[24]See also Exhibit 3.02. I accept the evidence of Mr Powell. His opinions were considered and well-explained.
Ultimately, even assuming Mr Baxter were able to establish the factual and legal foundation for each of the declarations and orders he seeks, I am of the view that the discretionary considerations weigh strongly against the grant of the relief. Mr Baxter’s position is compounded by the lack of merit to his allegations. As such, for the reasons detailed below, I am more than comfortably satisfied that his application should be dismissed.
What approvals have been obtained for the subject land?
There are parts of the building work that the Prestons seek to undertake that were assessable under Brisbane City Plan 2014 (“City Plan”)[25], and for which the Council was the assessment manager. There are also parts of the building work that were assessable against the building assessment provisions under the Building Act 1975. The private certifier was the assessment manager for those aspects of the building work assessable under the Building Act 1975, and the Council was a referral agency for them.
[25]There are three versions of City Plan that are relevant. Version 14 was in effect from 15 February 2019 until 30 May 2020. Version 19 was in effect from 1 May 2020 to 29 October 2020. Version 20 was in effect from 30 October 2020 to 27 May 2021. The parts of City Plan that are relevant to this proceeding are identical in the various versions. See Exhibits 5.01, 5.02 and 5.03.
Under s 48 of the Planning Act 2016, there can be a different assessment manager for different aspects of development. The legislation provides the following example:
“For building work that must be assessed against the building assessment provisions and is assessable development under a local government’s planning scheme, a regulation may prescribe that—
(a)a private certifier is the assessment manager for a development application for the part of the building work that must be assessed against the building assessment provisions; and
(b)the local government is the assessment manager for a development application for the part of the building work that is assessable development under the planning scheme.”
In those circumstances, it is unremarkable that Graya Construction Pty Ltd made applications to the Council for some aspects of the building work and to the private certifier for other aspects.
The resultant approvals and decisions made by the Council and the private certifier in relation to the proposed redevelopment of the subject land are:
(a)a development permit for building work with respect to application reference number A005140139 dated 6 August 2020 that was given by the Council (“the Council building permit”);[26]
(b)an early concurrence agency response under s 57 of the Planning Act 2016 with respect to application reference number A005140139 dated 6 August 2020 that was given by the Council (“the first amenity referral agency response”);[27]
(c)a development permit for building work dated 23 October 2020 that was given by the private certifier (“the first certifier building permit”);[28]
(d)a referral agency response dated 29 October 2020 that was given by the Council in relation to siting variations (“the siting variation referral agency response”);[29]
(e)a “Notice of Decision on Change Application to a Development Approval” dated 19 November 2020 that was given by the private certifier (“the second certifier building permit”);[30]
(f)an exemption certificate under s 46 of the Planning Act 2016 dated 7 June 2021 that was given by the Council (“the exemption certificate”);[31]
(g)a development permit for operational works dated 13 July 2021 that was given by the Council (“the operational works permit”);[32]
(h)a decision of the Council to change the Council building permit under s 83 of the Planning Act 2016 dated 1 October 2021 (“the changed Council building permit”);[33]
(i)an early concurrence agency response under s 57 of the Planning Act 2016 with respect to application reference number A005805245 dated 1 October 2021 that was given by the Council (“the second amenity referral agency response”);[34] and
(j)a development permit for building work dated 5 October 2021 that was given by the private certifier (“the third certifier building permit”).[35]
[26]Exhibit 1.07.
[27]Exhibit 1.07.
[28]Exhibit 1.10.
[29]Exhibit 1.09. The letter communicating the referral agency response was dated 29 October 2020 but the response itself was dated 28 October 2020.
[30]Exhibit 1.10.
[31]Exhibit 1.12.
[32]Exhibit 1.17.
[33]Exhibit 5.04.
[34]Exhibit 5.04.
[35]Exhibit 8.01.
Before considering the allegations made by Mr Baxter, it is convenient to provide further details about the development approvals obtained.
What does the Council building permit relate to?
Pursuant to s 44 of the Planning Act 2016, two aspects of the building work associated with the partial demolition and extensions of the dwelling were categorised as assessable development under City Plan. The Council was the assessment manager for those aspects of the building work.[36] The relevant categorisations and assessment benchmarks in City Plan were as follows:
“Table 5.10.21–Traditional building character overlay
[36]Planning Act 2016 ss 48 and 51; Planning Regulation 2017 (Qld) s 21 and sch 8, table 1A.

Development

Categories of development and assessment

Assessment benchmarks

Building work

Building work if involving demolition of:

…

b. the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof; …[and]

d. where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

Assessable development–Code assessment

-

Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.

Traditional building character (demolition) overlay code–purpose, overall outcomes and outcomes in sections A and B

Building work involving a dual occupancy, dwelling house, multiple dwelling, retirement facility, rooming accommodation or short-term accommodation where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay

Assessable development–Code assessment

-

Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.

Traditional building character (design) overlay code”

Pursuant to Table 5.9.31.C of City Plan, building work that is assessable development on land in the Ithaca district neighbourhood plan area is assessable against the Ithaca district neighbourhood plan code.
The decision notice for the Council building permit records that the development permit relates to the partial demolition of, and extensions to, a dwelling house in the Traditional building character overlay.

There are 13 plans that form part of the Council building permit. One depicts the floor plan and elevations of the existing dwelling and indicates the extent of the dwelling that is to be demolished. Others show the floor plans for each level of the proposed renovated dwelling, and the roof plan and elevations and sections that depict details of the proposed renovations. There is also a proposed site plan.
The approved plans contain the following notation made in red by the Council:
“Standard Building Regulations
This approval does not include assessment against the siting requirements of the Queensland Development Code. Should the approved development require a siting variation against the Queensland Development Code, an application for a Siting Variation must be submitted for the approval of Brisbane City Council – Development Services.
Note. This development approval does not commit to an approval of any siting variation shown on the approved drawings.”
The siting variation issue was addressed in the siting variation referral agency response referred to in paragraphs [72] to [77] below.
The approved plans also include a notation made in red by the Council that states:
“Earthworks not incidental to Building Work do not form part of this approval. Any cut, fill, or retaining structure exceeding 1.0 vertical metre may require a separate Operational Works application.”
(emphasis added)
The extent of development approved by the Council building permit and notified to be acceptable in the first amenity referral agency response is informed by an appreciation of the definitions of building work and operational work in the Planning Act 2016. They are:
“building work–
(a)means–
(i)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
Example–
building a retaining wall
(ii)works regulated under the building assessment provisions; or
(iii)excavating or filling for, or incidental to, the activities stated in subparagraph (i); or
(iv)excavating or filling that may adversely affect the stability of a building or other structure, whether on the premises on which the building or other structure is situated or on adjacent premises; or
(v)supporting (vertically or laterally) premises for activities stated in subparagraph (i);
…
operational work means 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.”
(emphasis added)
It is apparent from the approved plans that the extension to the dwelling is to be built utilising a slab-on-ground construction method.[37] Given the steeply sloping nature of the backyard, this is to be achieved by constructing several retaining walls in the backyard and placing fill behind those retaining walls to create a level fill platform.
[37]This can be contrasted with construction of the house on piers, for example.
The proposed retaining walls are not immediately beneath the outer limit of the built form of the dwelling. Rather, they are offset from the edge of the building such that the aerial extent of the level fill platform is greater than the building footprint. There is additional fill between the retaining walls and the fill platform directly beneath the footprint of the dwelling. That area is a level backyard that adjoins the southern and eastern extents of the built form, adjacent the outdoor dining area. It is described on the plans as “YARD 12.7m x 8.1m”. The 12.7 metre dimension is the dimension of the backyard from east to west. Towards the eastern extent of the backyard but within the 12.7 metre east-west dimension, the plans show three terraced gardens, with consequent stepping to the height of the southern retaining wall at its eastern end.
The consequence of that design is that the structural support for the dwelling is provided by the combined effect of the fill directly beneath the footprint, the southern and eastern retaining walls, and the fill that creates the level backyard. Absent the fill in the location of the backyard, there is no means of retaining the fill that is to be placed directly beneath the building platform.
In the circumstances, I am satisfied that the notation about earthworks on the approved plans does not relate to the excavation and filling that will create the level pad on which the dwelling is to be constructed, nor the excavation and filling that will create the area of level backyard that adjoins the southern and eastern extents of the built form. That development is properly characterised as building work. It is excavating or filling for, or incidental to, the building of the extensions to the dwelling. It is part of the building work approved by the Council building permit.
The decision notice records that a further development permit is required to carry out the building work the subject of the development permit. This reflects that the Council’s assessment of the building work relates only to those aspects of building work made assessable pursuant to the categorisation in City Plan referred to in paragraph [45] above.[38]
[38]Section 8(5) of the Planning Act 2016 states:
“A local planning instrument must not include a provision about building work, to the extent the building is regulated under the building assessment provisions, unless allowed under the Building Act.”
The Traditional building character (demolition) overlay code regulates the impact of demolition on traditional building character. The Traditional building character (design) overlay code regulates the impact of building work such as extensions on traditional building character. The Ithaca district neighbourhood plan code regulates the impact of building work in a traditional building character overlay area with respect to its impact on hillside character. Each of these aspects of building work are not regulated under the building assessment provisions. As such, they can be regulated under City Plan.
Mr Baxter does not challenge the validity of the Council building permit.
What does the first amenity referral agency response relate to?
In addition to those aspects of the building work that were assessable by the Council under City Plan,[39] there were aspects of the building work for which the private certifier was the assessment manager.[40] The Council was a referral agency for two aspects of the work for which the private certifier was the assessment manager.
[39]These are the aspects referred to in paragraphs [45] to [56] above.
[40]See paragraphs [66] to [67] below for further detail.
The first referral agency jurisdiction of the Council related to the amenity and aesthetic impact of the proposed building work. Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1 of the Planning Regulation 2017 (Qld), City Plan contains a declaration that the following building work requires referral to the Council:
“1.7.4 Declaration for amenity and aesthetic impact referral agency assessment
For the purposes of Schedule 9, Division 2, Table 1 of the Regulation, building work for a building or structure which is a single detached class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class 10 building or structure in a locality identified in Table 1.7.4 that does not comply with the acceptable outcomes in the codes identified in Table 1.7.4, is declared to:
a.have an extremely adverse effect on the amenity or likely amenity of the locality; or
b.be in extreme conflict with the character of the locality.
Table 1.7.4–Declared locality and building form for amenity and aesthetic referral agency assessment

Locality

Codes

Land in the following zones:

a.      Rural zone

b.      Rural residential zone

c.      Environmental management zone

d.     Low density residential zone

e.      Character residential zone and zone precincts

f.      Low-medium density residential zone and zone precincts

g.      Medium density residential zone

h.      Emerging community zone

Dwelling house code

Dwelling house (small lot) code

Land in the Traditional building character overlay

Traditional building character (design) overlay code

Land in a neighbourhood plan area

A relevant neighbourhood plan code to the extent provided”

The subject land is in the Low-medium density residential zone. It is also in the Traditional building character overlay and in the Hillside character precinct of the Ithaca district neighbourhood plan area. The proposed building work did not comply with all the acceptable outcomes in the Dwelling house code, the Dwelling house (small lot) code,[41] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code. As such, that part of the building work that was assessable by the private certifier against the building assessment provisions also required assessment by the Council as a referral agency in relation to its amenity and aesthetic impact.[42]
[41]Assuming it applies. The subject land comprises two lots, each of which is less than 450 square metres and, as such, individually are defined as a “small lot” under City Plan. However, the area of the subject land as a whole is 810 square metres.
[42]Pursuant to s 54 of the Planning Act 2016 and s 22 and sch 9, table 1, item 1 of the Planning Regulation 2017.
The Council’s referral agency assessment with respect to amenity and aesthetics was required to be carried out against the Dwelling house code, the Dwelling house (small lot) code,[43] the Traditional building character (design) overlay code and the Ithaca district neighbourhood plan code.[44]
[43]Assuming is applies. See footnote 41 above.
[44]See s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 1, item 4 of the Planning Regulation 2017, and s 1.6 4.b. and Table 1.6.2, item 1 of City Plan.
The relevant criteria for the Council’s referral agency assessment included performance outcome PO24 and acceptable outcomes AO24.1 and AO24.2 of the Ithaca district neighbourhood plan code. They state:

“Performance outcomes

Acceptable outcomes

If in the Hillside character precinct (Ithaca district neighbourhood plan/NPP-008)

Landscape character, physical setting and topography

PO24

Development, including buildings or other structures, driveways and hard-stand areas, must be designed and sited to minimise cut-and-fill on the site and to soften visual impact.

AO24.1

Development incorporates:

a.      foundation systems that minimise disturbance to the landscape, such as post-and-pier type foundations;

b.      slab-on-ground foundations only on those parts of a site with gradients less than 1 in 8 and where cut and fill is minimal;

c.      benching, cut and fill, or construction of retaining walls of a minor nature only (i.e. fill does not exceed 1m and/or the combined height of any retaining wall and fence does not exceed 2m) and is designed so it is not noticeable after construction has been completed;

d.     driveways and hardstand areas only on those parts of a site with gradients less than 1 in 4.

AO24.2

Development provides retaining walls that are set back from any boundary and are stepped, terraced and landscaped.”

On 6 August 2020, the Council gave the first amenity referral agency response. It was an early referral agency response.[45] The first amenity referral agency response states:
“This is an early referral agency response for amenity and aesthetic impact of particular building work (Schedule 9, Part 3, Division 2, Table 1 of the Planning Regulation 2017). This advice is to be provided to the Building Certifier issuing the development permit for carrying out building work.
This advice has been triggered due to non-compliance with acceptable outcome/s of codes identified in Table 1.7.4 of the Brisbane City Plan 2014.
It has been determined that the proposed building will not:
(i)have an extremely adverse effect on the amenity or likely amenity of the locality; or
(ii)be in extreme conflict with the character of the locality.
[45]In accordance with s 57 of the Planning Act 2016, the amenity referral agency response was provided before the development application was made to the private certifier under the Building Act 1975.
where the proposed building work complies with the requirements set out in the decision notice for Council development approved (sic) A005140139 (this includes the approved drawings, conditions and accepted development subject to compliance with identified requirements).
Advisory Notes
This response does not constitute an approval to start building work. A development permit to begin construction of the proposed building work must be obtained from an appropriately licensed Building Certifier.
No further referral agency response (amenity and aesthetics) is required for the building work development permit.
Any variation to the proposal will require a new request for a referral agency response and the applicable fees to be submitted for assessment by Council.”
Mr Baxter does not challenge the validity of the first amenity referral agency response.
What does the first certifier building permit relate to?
As I have already mentioned, City Plan was not the only statutory instrument under which the proposed building work was categorised as assessable development. It was also assessable development pursuant to s 44 of the Planning Act 2016 and s 20 and sch 9, pt 1, s 1 of the Planning Regulation 2017. The private certifier was the assessment manager for this part of the building work.[46] The relevant assessment benchmarks were the building assessment provisions.[47]
[46]See s 48 of the Planning Act 2016 and s 21 and sch 8, table 1, item 2 of the Planning Regulation 2017.
[47]See s 26 and sch 9, pt 2, table 1 of the Planning Regulation 2017.
The building assessment provisions are the laws and other documents specified in s 30 of the Building Act 1975, namely:
“(a)chapter 3 and this chapter[48];
(b)the fire safety standard;
(c)the fire safety standard (RCB);
(d)any provisions of a regulation made under this Act relating to building assessment work[49] or accepted building work;
(e)any relevant local law, local planning instrument[50] or resolution made under section 32 or any relevant provision under section 33;
(f)the BCA;[51]
(g)subject to section 33, the QDC.[52]”
[48]Building Act 1975 ch 4.
[49]Section 7 of the Building Act 1975 states:
“Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.”
[50]A planning scheme is a local planning instrument: Building Act 1975 sch 2; Planning Act 2016 s 8(3).
[51]The “BCA” is defined in s 12 of the Building Act 1975 as the Building Code of Australia. It is the document called “National Construction Code” volume 1 and volume 2 (including the Queensland Appendixes) published by the entity known as the Australian Building Codes Board.
[52]The “QDC” is defined in s 13 of the Building Act 1975 as the parts, or aspects of the parts, of the document called “Queensland Development Code” that are prescribed by regulation.
On or about 25 August 2020, the Council received notice under s 143 of the Building Act 1975 that the private certifier had been engaged under the Building Act 1975 with respect to building work proposed on the subject land.[53] The proposed building work was described as:
[53]Pursuant to s 86 of the Building Act 1975, the Council received copies of the development application made to the private certifier and copies of the approval documents.

“Class

Building Work Description

1a

Alterations

to existing Dwelling – raise, relocate, build under, internal alterations and extension

10b

New Construction

of Swimming Pool

10b

New Construction

of Swimming Pool Fence

10b

New Construction

of Retaining Walls

10b

New Construction

of Fences”

On 23 October 2020, the private certifier gave the first certifier building permit. The conditions of the first certifier building permit include:
“Local Authority Planning Scheme Approvals
1Building work to comply with the Local Authority Town Planning Approval, Ref. A005140139 dated 06 August 2020.
Application Specific
1APPROVAL LIMITATIONS – This building development approval is limited to the proposed complete demolition of the existing carport and proposed partial demolition of the existing dwelling only. No other building work is to occur.”
As is apparent from these conditions, the partial demolition of the existing dwelling was the only component of the application made to the private certifier that was approved in the first certifier building permit.
Mr Baxter does not challenge the validity of the first certifier building permit.
What does the siting variation referral agency response relate to?
Pursuant to s 54 of the Planning Act 2016, s 22 and sch 9, pt 3, div 2, table 3 of the Planning Regulation 2017, and s 1.6 4.b. and Table 1.6.2, items 2 and 3 of City Plan, that part of the building work that was assessable by the private certifier against the building assessment provisions also required assessment by the Council as a referral agency in relation to its design and siting.
On 17 September 2020, the Council received a request for a referral agency response in relation to a siting variation proposed for the building work on the subject land. The application for the siting variation sought approval for:
(a)a southern boundary setback to the dwelling of 2 metres, rather than the 2.5 metres stipulated in the Queensland Development Code;
(b)a rear boundary setback to the deck and roof of 1.25 metres, rather than the 2 metres stipulated in the Queensland Development Code;
(c)a rear boundary setback to the rear stairs of 0.159 metres, rather than the 1.5 metres stipulated in the Queensland Development Code;
(d)no northern side boundary setback to the roof structure over the deck (i.e. built to boundary), rather than the 2 metres stipulated in the Queensland Development Code;
(e)a northern boundary setback to the dwelling extension of 1.081 and 1.45 metres, rather than the 1.5 and 2 metres respectively stipulated in the Queensland Development Code;
(f)a southern boundary blockwork wall height of 3.18 metres, rather than the 2 metres stipulated in the Queensland Development Code; and
(g)a northern boundary retaining wall and fence height of 5.4 metres, rather than the 2 metres stipulated in the Queensland Development Code.
In response to an information request, Graya Construction Pty Ltd amended the application. The variation sought was for a southern boundary blockwork wall height of 2.25 metres, rather than the 2 metres stipulated in the Queensland Development Code. The wall had a maximum length of 3.55 metres.
The matters that the Council’s referral agency assessment with respect to design and siting was required to be carried out against included, relevantly:[54]
(a)performance outcomes PO2, PO3 and PO6 and acceptable outcomes AO2, AO3 and AO6 of the Dwelling house code;
(b)performance outcomes PO2, PO3, PO4, PO5, PO6, PO7, PO8, PO9, PO12, PO14 and acceptable outcomes AO2, AO3, AO4, AO5, AO6, AO7, AO8, AO9.1, AO9.2, AO12.1, AO14.1, AO14.2, AO14.3 of the Dwelling house (small lot) code;[55]
(c)performance outcome PO1 and acceptable outcome AO1 of the Ithaca district neighbourhood plan code; and
(d)performance outcomes PO1 and PO2 and acceptable outcomes AO1.2 and AO2.1 of the Traditional building character (design) overlay code.
[54]See s 55 of the Planning Act 2016 and s 22 and sch 9, pt 3, div 2, table 3, item 4 of the Planning Regulation 2017, ss 32 and 33 of the Building Act 1975, s 10 of the Building Regulation 2006 (Qld), and s 1.6 4.b. and Table 1.6.2, items 2 and 3 of City Plan.
[55]Assuming is applies. See footnote 41 above.

By letter dated 29 October 2020, the Council notified the private certifier of its decision to approve the siting variation and gave the certifier a copy of its siting variation referral agency response. The letter records that the Council assessed the application against the relevant mandatory part of the Queensland Development Code and found it to be compliant with the Queensland Development Code design and siting standard.
Mr Baxter does not challenge the validity of the siting variation referral agency response.
What does the second certifier building permit relate to?
In a document titled “Notice of Decision on Change Application to a Development Approval” and dated 19 November 2020, the private certifier gave the second certifier building permit. It was expressed as an approval to a request to change the first certifier building permit. The changes are described as “Inclusion of all remaining building work”.
The second certifier building permit is subject to conditions. They include:
“Local Authority Planning Scheme Approvals
1 Building work to comply with the Local Authority Town Planning Approval, Ref. A005140139 dated 06 August 2020.
Application Specific
…
2 AMENDMENT – All building work the subject of the building development application is now approved and included in this building development approval.”
A comparison of the approved plans that form part of the second certifier building permit to those that form part of the Council building permit reveals that there are some differences in the southern and eastern retaining walls and to the area of fill in the backyard that provides lateral support to the fill beneath the slab for the extension to the dwelling. The eastern extent of the backyard that was shown to contain three terraced gardens in the Council building permit is depicted as part of the level backyard in the second certifier building permit. Immediately adjacent the eastern extent of that area, the second certifier building permit plans show the deck, the pool, and the rear stairs. The deck and the pool are depicted as level with the backyard. They are supported in their elevated position by post-and-pier style blockwork foundations. The deck, the pool, and the rear stairs, and the structures that support them, do not appear in the approved plans that form part of the Council building permit. They are part of the building works with which Mr Baxter takes issue.
As a referral agency, the Council assessed the siting and design of those aspects of the building work shown on the approved plans that form part of the second certifier building permit. They included the pool, the deck, the rear stairs, and all associated supporting structures. The result of the Council’s assessment of that building work is the siting variation referral agency response referred to in paragraphs [72] to [77] above, which Mr Baxter does not challenge.
Mr Baxter challenges the validity of the second certifier building permit.
What does the exemption certificate relate to?
Section 46(1) of the Planning Act 2016 provides that a development approval is not required for assessable development on premises if there is an exemption certificate for the development.
On 7 June 2021, the Council gave the Prestons an exemption certificate under s 46 of the Planning Act 2016 in respect of the pool proposed on the subject land. The exemption certificate comprises 15 pages.
On the first page, the exemption certificate describes the development to which it relates as “Swimming pool part above ground pool due to grade of land”. Under a heading “When development must be started or completed”, the exemption certificate states that “Development stated in this exemption certificate must be completed by 7 June 2023”.
The balance of the exemption certificate comprises 14 plans that are annotated with a red stamp stating:
“APPROVED PLAN ONLY REFERS TO:
Exemption Certificate
(Planning Act 2016 s 46)
Dated: 7 June 2021”
The plans depict the pool, the shell of which is elevated above natural ground level. The top edge of the pool is generally level with the proposed elevated backyard. It is supported in its elevated position by post-and-pier blockwork foundations, which foundations penetrate the natural ground level.
Mr Baxter challenges the validity of the exemption certificate.
What does the operational works permit relate to?
On 13 July 2021, the Council gave a development permit for operational works in relation to filling and excavation on the subject land. Condition 3 of the operational works permit requires all earthworks to be carried out in accordance with the approved earthworks plans.
The approved plans depict areas of cut in yellow and areas of fill in green. The coloured areas cover almost the entire subject land, including areas underneath the footprint of the dwelling and in the location of the proposed elevated backyard.
The plans show the backyard pad with a finished level of RL 48.04. The backyard pad is flanked to the east by a lower garden, with a finished level of RL 47.09. Along the southern edge of the backyard pad is a garden with a finished level of RL 47.04 and a lower garden with a finished level of RL 46.09.
Mr Baxter does not challenge the validity of the operational works permit.
What does the changed Council building permit relate to?
On 1 October 2021, the Council approved a change to the Council building permit under s 83 of the Planning Act 2016. The changes approved by the Council related to the building design, such as alterations to the roof profile and pitch of the extension. The changed Council building permit was subject to conditions with respect to the proposed extension and conditions with respect to the partial demolition.
Condition 2 (for the extension) and condition 21 (for the partial demolition) require the approved development to be carried out generally in accordance with the approved drawings and documents. Condition 3 (for the extension) and condition 22 (for the partial demolition) require all building work associated with the development approval to be carried out generally in accordance with the approved drawings and documents. This includes the construction of retaining walls and filling and excavation that is for, or incidental to, the building work for the extension to the dwelling. Conditions 7 and 9 (for the extension) contain requirements with respect to those matters.
Condition 11 (for the extension) and condition 27 (for the partial demolition) state:
“Further Development Permit required
This Development Approval to carry out building work made assessable under the planning scheme for Brisbane does not include an assessment of building work against the requirements of the Building Act and does not permit building work to occur unless, prior to the commencement of any building work, a Development Permit(s) to carry out assessable building work under the Building Act has been issued.”
As with the Council building permit, this condition reflects that the changed Council building permit relates only to those aspects of building work made assessable pursuant to the categorisation in City Plan referred to in paragraph [45] above.
There are 13 approved plans that form part of the changed Council building permit. The approved plans depict works approved under the operational works permit and building work that is the subject of the exemption certificate. A notation made in red on the approved plans states:
“The swimming pool, pool deck and earthworks/retaining walls where not incidental to the Building Work do not form part of this approval. Refer to Operational Work approval (ref: A005685671) and Exemption Certificate (ref: A005728128) for more information.”
The approved plans also include a notation in red in similar terms to the notation referred to in paragraph [51] above.
My findings in paragraphs [53] to [56] above regarding the construction method to be adopted, the location of retaining walls, and the extent of filling and excavation that is part of the building work approved by the decision are equally applicable to the changed Council building permit.
Mr Baxter does not challenge the validity of the changed Council building permit.
What does the second amenity referral agency response relate to?
On 1 October 2021, the Council gave the second amenity referral agency response. It was issued with the changed Council building permit. The response was an early concurrence agency response under s 57 of the Planning Act 2016. It relates to the Council’s amenity and aesthetic impact referral agency jurisdiction.
The second amenity referral agency response states:
“This is an early referral agency response for amenity and aesthetic impact of particular building work (Schedule 9, Part 3, Division 2, Table 1 of the Planning Regulation 2017). This advice is to be provided to the Building Certifier issuing the development permit for carrying out building work.
This advice has been triggered due to non-compliance with acceptable outcome/s of codes identified in Table 1.7.4 of the Brisbane City Plan 2014.
It has been determined that the proposed building will not:
(i)have an extremely adverse effect on the amenity or likely amenity of the locality; or
(ii)be in extreme conflict with the character of the locality.
where the proposed building work complies with the requirements set out in the decision notice for Council development approved (sic) A005805245 (this includes the approved drawings, conditions and accepted development subject to compliance with identified requirements).
Advisory Notes
This response does not constitute an approval to start building work. A development permit to begin construction of the proposed building work must be obtained from an appropriately licensed Building Certifier.
No further referral agency response for amenity and aesthetics is required under the Brisbane City Plan 2014 for the building work development permit.
Any variation to the proposal will require a new request for a referral agency response and the applicable fees to be submitted for assessment by Council.”
Mr Baxter does not challenge the validity of the second amenity referral agency response.
What does the third certifier building permit relate to?
On 5 October 2021, the private certifier gave the third certifier building permit. It relates to those aspects of the building work that were categorised as assessable development pursuant to s 44 of the Planning Act 2016 and s 20 and sch 9, pt 1, s 1 of the Planning Regulation 2017 for which the private certifier was the assessment manager.
The third certifier building permit describes the approved building work as:

Building class

Building Work Description

1a

Alterations to existing Dwelling – raise, relocate, build under, internal alterations and extension

10b

New Construction of Swimming Pool

10b

New Construction of Swimming Pool Fence

10b

New Construction of Retaining Walls

10b

New Construction of Fences

The approved plans that form part of the third certifier building permit depict development that is generally in accordance with the development depicted in the operational works permit and the changed Council building permit.
Mr Baxter challenges the validity of the third certifier building permit.
What are the Prestons’ future intentions?
Mrs Preston gave evidence that, now the interim enforcement order has been cancelled, she intends to instruct her builder to carry out development in accordance with the most recent development approvals that have been obtained over the subject land.[56] They are the operational works permit, the changed Council building permit, and the third certifier building permit.
[56]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 78.

In general terms, the development approvals now in place approve development that comprises:
(a)demolition of part of the pre-1947 dwelling;
(b)construction of an extension to the dwelling using a slab-on-ground construction method;
(c)the excavation and filling beneath the dwelling to create the level pad on which the slab for the dwelling is to be constructed (“the filling beneath the dwelling slab”);
(d)filling to the south and east of the dwelling footprint to create, in part, a level backyard adjacent the ground floor of the dwelling at a height greater than the natural ground level (“the filling for the backyard”);
(e)construction of walls along the western half of the southern boundary of the subject land, which walls form part of the structure of the dwelling;
(f)construction of retaining walls proximate the southern and eastern boundaries of the subject land, which walls (together with the filling for the backyard) provide lateral support for the filling beneath the dwelling slab (“the retaining walls”);
(g)construction of the deck. The deck is shown at the same level as the ground floor of the dwelling. It is to be constructed using a post-and-pier foundation. It is located immediately adjacent to the eastern extent of the dwelling. It extends along the northern, eastern and southern sides of the pool;
(h)construction of the pool. The pool is shown at the same level as the ground floor of the dwelling. It is to be constructed using a post-and-pier foundation; and
(i)construction of the rear stairs. The rear stairs provide access from the deck down to the natural ground level adjacent the eastern and southern boundaries.
I accept Mrs Preston’s evidence about her future intentions for the subject land. Mrs Preston impressed me as a credible witness. She listened carefully to the questions and provided responsive answers about things that were within her knowledge.

Having regard to the details of the various development approvals and the exemption certificate referred to above, I am satisfied that the redevelopment of the subject land that the Prestons intend to carry out is lawful.
What is Mr Baxter’s case?
The prayer for relief in the Third Further Amended Originating Application spans 13 pages. There are many declarations and orders that Mr Baxter seeks. They are set out in Attachment A to these reasons for judgment.[57]
[57]For ease of reference, all colours, underlining and strike-out denoting the amendments made from earlier iterations of the originating process have been removed.
As I have already mentioned above, Mr Baxter does not dispute the validity of the Council building permit, the first amenity referral agency response, the first certifier building permit, the siting variation referral agency response, the operational works permit, the changed Council building permit or the second amenity referral agency response.
Mr Baxter alleges that the second certifier building permit, the exemption certificate and the third certifier building permit are invalid. He seeks declarations to that effect pursuant to s 11 of the Planning and Environment Court Act 2016 (Qld), and consequential orders setting aside the second certifier building permit, the exemption certificate and the third certifier building permit.
Mr Baxter also alleges that the Prestons and Graya Construction Pty Ltd have committed development offences, and that they will commit development offences unless restrained. He seeks enforcement orders that require the Prestons and Graya Construction Pty Ltd to:
(a)remedy the effect of the development offences committed under s 163 of the Planning Act 2016; and
(b)refrain from committing development offences under ss 163 and 164 of the Planning Act 2016.
The allegations made by Mr Baxter in support of the relief he seeks raise the following questions for consideration:
1.   Is the second certifier building permit invalid?
2.   Is the exemption certificate invalid?
3.   Is the third certifier building permit invalid?
4. Have the Prestons and Graya Construction Pty Ltd committed development offences under s 163 of the Planning Act 2016?
5. Will the Prestons and Graya Construction Pty Ltd commit development offences under ss 163 and 164 of the Planning Act 2016 unless restrained?
Before turning to consider each of these questions, it is convenient to consider the relevant legal principles about declaratory relief and declaratory challenges.
What are the relevant legal principles with respect to granting declaratory relief?
Under s 11 of the Planning and Environment Court Act 2016, the Court has express statutory power to hear an application that seeks declaratory orders without any other consequential relief.
The relevant legal principles governing the exercise of that type of statutory power are helpfully set out by Bond J in Nerang Subdivision Pty Ltd v Hutson.[58] I gratefully adopt His Honour’s analysis, the tenor of which is set out in paragraphs [120] to [125] below.
[58][2020] QSC 225, [40]-[45].
In Ainsworth & Anor v Criminal Justice Commission,[59] in considering the exercise of an inherent power to make declarations, Mason CJ, Dawson, Toohey and Gaudron JJ, observed that:[60]
“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.”
[59][1992] HCA 10; (1992) 175 CLR 564.
[60]Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2 (citations omitted, emphasis added).
There is no reason to think that those principles do not also govern the exercise of a statutory power to grant declaratory relief.[61]
[61]Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [41] (Bond J).
The High Court subsequently re-examined the considerations which mark out the boundaries of judicial power in Bass & Anor v Permanent Trustee Company Limited & Ors.[62]In a joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[63]
[62][1999] HCA 9; (1999) 198 CLR 334.
[63]Bass & Anor v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 355-7 (citations omitted, emphasis added).
“[45] The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy.
…
[47]Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:
“a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”
By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.
[48]It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:
“If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

Although it is not clear to me how the declaration in paragraph 2 invokes the Court’s jurisdiction under s 11(1)(b) of the Planning and Environment Court Act 2016, it falls within the Court’s jurisdiction under s 11(1)(c). So do the declarations in paragraphs 1A and 6.
As is apparent from paragraph 1A, the “Filling Works” to which each of these declarations relate are defined by reference to figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15.[210] For convenience, I will also refer to them as the “Filling Works”.
[210]This document was also referred to as Exhibit 6.15. See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 23-4 and Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 2-4 about the confusion around the numbering of the exhibit.
Figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15 is a 3D render produced by Mr Muller. It was produced from a 3D computer model that Mr Muller created using the software Revit. The figure illustrates, as two red isometric volumetric zones, the difference between the final built form shown on the plans that form part of the exemption certificate and that which is depicted in the approved plans that form part of the operational works permit.[211]
[211]See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 45-7.
During the opening, considerable time was spent by Mr Baxter’s Counsel, Mr Skoien, explaining the nature of Mr Baxter’s allegations with respect to the Filling Works. Mr Skoien explained that Mr Baxter does not take issue with the lawfulness of any operational work undertaken in accordance with the operational works permit. His concern with respect to operational work involving filling on the subject land is limited to the Filling Works.[212] In response to queries from me, Mr Skoien identified the areas in question by reference to figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15.[213]
[212]See Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 6 October 2021) 40-50.
[213]As the hearing was conducted by way of an e-trial, a copy of the relevant page was displayed on screens in the courtroom. I observed Mrs Preston to be present, and attentive, throughout the hearing.
The effect of the exemption certificate was also the subject of attention during the cross-examination of Mr Muller. The following exchanges occurred between Mr Muller and Ms Hedge, Counsel for the Prestons and Graya Construction Pty Ltd:[214]
“MS HEDGE: One of the sets of drawings that you referred to to produce that model is the exemption certificate drawings?‑‑‑Correct.
All right. You understand that an exemption certificate doesn’t approve anything?‑‑‑I understand it doesn’t approve.
Yeah?‑‑‑It’s the intent.
It exempts things?‑‑‑Yes.
So you have assumed, haven’t you, that it’s the intent of the builder to build in accordance with plans attached to the exemption certificate application. Is that what you’re saying?‑‑‑That’s correct.
All right. So these drawings, then, don’t reflect and these diagrams and your model don’t reflect what’s approved. They reflect what you assumed about someone else’s intention?‑‑‑They – they illustrate the approved operational works and then, yes, what’s led to be believed to be built through the exemption certificate because why else you would lodge an exemption application?”
[214]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 32.
The issue of the model was the subject of exchanges between Ms Hedge and Mr Muller as follows:[215]
[215]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 7 October 2021) 45-7 and 56-7.
“... Can we move then to exhibit 2.15, which is your final affidavit. And if we can turn to para – page 5 of that document. Do you see that page? Do you remember that?‑‑‑I’m familiar with this, yes.
Yes. Now, you prepared these – this model – this is a different model to the one we were just looking at; is that right?‑‑‑Yes, that’s correct.
This model compares only two things, operational works approval, number 1?‑‑‑Correct.
Shown in blue?‑‑‑Yep.
Exemption certificate plan shown in red?‑‑‑That’s correct.
All right. So equally, as before, it doesn’t include the minor change approval given 1 October 2021?‑‑‑That’s correct.
It doesn’t include the building approval giving – given – sorry, issued 5 October 2020?‑‑‑No, that’s correct.
All right. And assumes that what will be built will be in accordance with plans submitted in accordance with the exemption certificate?‑‑‑That’s correct.
All right. Are you aware that the exemption certificate plans were submitted before the operational works approval was given?‑‑‑I was not aware.
Okay. Were you aware that in the scope of the operational works consideration there was an information request?‑‑‑I am aware.
And that the final approval for the operational works was different to the first application?‑‑‑No, I’m aware.
Okay. And are you aware that the exemption certificate application was consistent with the first operational works application?‑‑‑No, I was not.
Okay. So were you aware that the operational works application and the exemption certificate application both went in before either of them were approved? Were you aware of that?‑‑‑No.
Okay. So now that I’ve told you that history, it might not be surprising that there’s some difference between them, because the exemption certificate plans were submitted before the operational works approval was given in an amended form, do you see?
MR SKOIEN:   Well, your Honour, that can only ask for this witness to speculate on what may or may not have been an inconsistency which hasn’t been put to the witness, to start with, about the plans and the reason for them.
MS HEDGE:   I’m happy to move on and withdraw the question.
So let’s look at the minor change. And can I particularly ask you to focus in this – when I’m questioning you now on figure number 6 of this page; okay? Do you see those two red blocks?‑‑‑Correct.
Okay. One’s a long rectangle – rectangular prism and one’s a shorter, squatter rectangular prism; is that fair?‑‑‑Yep, that’s correct.
All right. Just so we know we’re all talking about the same thing. So just keep in mind that diagram. Can I show you exhibit 5.04. I’m sorry, can we just go back – can I just confirm one final thing with that diagram. The red – those two red boxes in figure 6 are the additional fill that you say is on the exemption certificate and not on the operational works approval; is that correct?‑‑‑That’s correct.
Excellent. Okay. Five-point-O-four, page 26. Do you see that area – yep. Just scroll down a little bit further – the bottom of this plan that we’re interested in.
Do you see the area in the red cloud – or the clouded area? Do you see what I mean?‑‑‑The red cloud, yes.
Yep. What we’re looking at is just above that on this plan, aren’t we? Do you see that long rectangular prism called “garden”?‑‑‑Correct.
And then a shorter, squatter – I’m sorry, that’s not a prism, that’s a rectangle, because this is a 2D plan. So there’s a long rectangle called “garden” and a shorter, squatter rec strangle called “lower garden”?‑‑‑Correct.
You see that?‑‑‑Yep.
So do you see on this plan, which is the minor change given 1 October 2021 – do you accept that’s consistent with the operational works approval?‑‑‑There’s no levels there, but it represents the same – has the same shape, but there’s no levels to indicate what heights they are.
I understand. Can I take you to page 31, same bottom of the page. Do you see on there, just above the clouded area, there’s a long rectangle that’s cut through and then that shorter, squatter rectangle where that big tree is where the trunk of the tree is. Do you see that?‑‑‑I do see that. Yes.
All right. Do you accept this plan is ‑ ‑ ‑?‑‑‑That illustrates ‑ ‑ ‑
‑ ‑ ‑ consistent with the operational works approval?‑‑‑That is.
…
MS HEDGE:   Thank you, your Honour. Could I have on the screen, please, Madam Associate, exhibit 2.15, the affidavit of Mr Muller. Is it Muller or Muller? I don’t want to get it wrong?‑‑‑Muller is fine
Muller. Exhibit 2.15, page 5. So just to confirm where we were up to because we sort of cut off at a point not at the end of any topic. Can we just scroll down a little bit, please, Madam Associate. Thank you. Figure 6 there, we were talking about those two red blocks?‑‑‑Correct.
And we then looked at the minor change plans. As I understood it, you agreed that in the minor change plans those two red blocks would not be filled?‑‑‑In – in the plans that were submitted in October?
The minor change. So that was approved by council 1^st of October?‑‑‑Yes.
Do you want me to take you to the plans again?‑‑‑I – I believe that – no, I recall. That’s right, yeah.
Okay. Thank you. And so if the backyard is constructed using the plans that were attached to the minor change approval, do you accept that there will be no fill in those two red blocks in figure 6?‑‑‑Correct.
Right. Now, can we go to – that’s where we got up to, I understood. So now we’re moving forward. Exhibit 3.06, page 184. And so we’re back now to the plans for the building approval that was given 5 October 2021. And do you remember last time I took you here there was an objection and you went out?‑‑‑Yes. Yep.
Okay. So that’s where we’re up to. Just ‑ ‑ ‑?‑‑‑Yep. No, that’s okay.
‑ ‑ ‑ so that when – we’re all oriented. This is the building approval issued 5 October 2021. And do you see in this approval also that there’s the long rectangle, which we were calling it, that now dips down below the level right at the edge of the house and then there’s a further dip down where the tree is? Do you see that?‑‑‑That’s correct.
All right. And so going – and so in this plan there’s no fill where those two red boxes are on figure 6. Do you accept that?‑‑‑That’s true.
Okay. And so just going back to exhibit 2.15. Do you accept then that if the backyard is constructed in accordance with the plans attached to the building approval of 5 October 2021 that there will be no fill in those two red boxes on figure 6?‑‑‑Agree.”
Mrs Preston gave evidence late in the hearing, the day after Mr Muller.[216] She gave evidence that, now the interim enforcement order has been cancelled, she intends to instruct her builder to carry out development in accordance with the most recent development approvals that have been obtained over the subject land.[217] Having regard to the questions put to Mr Muller by Ms Hedge, I infer that Mrs Preston:
(a)gave her evidence with an awareness that the relevant development approvals are the operational works permit, the changed Council building permit, and the third certifier building permit;
(b)appreciates that the exemption certificate does not approve development; and
(c)does not intend to carry out the Filling Works.
[216]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 77-117. Mrs Preston gave evidence on the final day of evidence between 12.14 pm and 3.27 pm.
[217]Transcript of Proceedings, Baxter v Preston & Ors (Planning and Environment Court of Queensland, 932 of 2021, Kefford DCJ, 8 October 2021) 78.
As I have already noted at paragraph [110] above, I accept Mrs Preston’s evidence about her future intentions for the subject land. Mrs Preston impressed me as a credible witness. She listened carefully to the questions and provided responsive answers about things that were within her knowledge.
Having regard to the evidence referred to in paragraphs [414] to [417] above, there is no real and immediate controversy as to the lawfulness of future conduct with respect to earthworks on the subject land. It is unlikely that the Prestons and Graya Construction Pty Ltd will carry out development the subject of the declarations.
Further, there is doubt about whether there is a genuine dispute between the parties. No party is submitting that the operational works permit authorises the Filling Works. Similarly, no party is submitting that the exemption certificate obviates the need for a development permit for the Filling Works or for earthworks the subject of the operational works permit.
Accordingly, in my view, the application for the declarations in paragraphs 1A, 2, 3D and 6 of the prayer for relief of the Third Further Amended Originating Application invites the Court to go beyond its role of finally determining the rights of litigants and into the impermissible role of giving an advisory opinion in relation to hypothetical and abstract circumstances.
The application for the declarations in paragraphs 1A, 2, 3D and 6 of the prayer for relief in the Third Further Amended Originating Application must be dismissed.

Should the declarations about the lawfulness of building work yet to be carried out be made?

In paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks declarations about the lawfulness of building work yet to be carried out. They are expressed in the following terms:
“1B.A declaration, pursuant to section 11(b) and/or 11(c) of the PECA, that the Swimming Pool Works were not generally in accordance with the development approved by the Dwelling House Development Approval,[218] and are not generally in accordance with that approval as changed on 1 October 2021 (“the Change Approval”)[219].
[218]I refer to this as the Council building permit.
[219]I refer to this as the changed Council building permit.
…
3C.A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Swimming Pool Works, as they involve:
(a)building work for the construction of a swimming pool wholly, not partly, above ground;
(b)building work for the construction of a swimming pool wholly elevated metres above ground; and
(c)works other than the building works for the construction of a swimming pool.
…
7.A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the continuation of the Swimming Pool Works constitutes, or will constitute, a development offence:
(a)against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development; and
(b)against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.
Section 163 of the Planning Act 2016 is set out in paragraph [345] above.
Section 164 of the Planning Act 2016 states:
“164 Compliance with development approval
A person must not contravene a development approval.
Maximum penalty—4,500 penalty units.”
Having regard to my findings about the validity of the second certifier building permit,[220] the exemption certificate,[221] and the third certifier building permit,[222] and the matters referred to in paragraphs [414] to [417] above, there is no real and immediate controversy as to the lawfulness of future building work on the subject land.
[220]See paragraphs [139] to [238] above.
[221]See paragraphs [239] to [323] above.
[222]See paragraphs [324] to [332] above.
Further, there is doubt about whether there is a genuine dispute between the parties. No party is submitting that the pool, the deck, and the rear stairs were generally in accordance with the development approved by the Council building permit. There was no need for them to be shown in that development approval as they were not building work that was categorised as assessable development under City Plan. The same is true with respect to the changed Council building permit.
Accordingly, in my view, the application for the declarations in paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application invites the Court to go beyond its role of finally determining the rights of litigants and into the impermissible role of giving an advisory opinion in relation to hypothetical and abstract circumstances.
The application for the declarations in paragraphs 1B, 3C and 7 of the prayer for relief in the Third Further Amended Originating Application must be dismissed.
Should the enforcement orders restraining the commission of development offences be made?
In paragraphs 11, 12 and 13A of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks enforcement orders (or consequential orders) to restrain the Prestons and Graya Construction Pty Ltd from committing development offences. They are in the following terms:
“11.An order, pursuant to section 11(4) of the PECA, or an interim enforcement order or an enforcement order pursuant to section 180(4) or 180(2) of the PA, that, the First Respondents:
(a)within thirty (30) minutes of the service of the order, cease, or cause to be ceased, the (sic) any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
(b)from the time of the making of the order and thereafter until any further order, not resume any development comprising the Filling Works and the Swimming Pool Works unless and until there is:
(i)      a development approval under the PA issued by the Third Respondent approving those works; and
(ii)     a valid development permit authorising the carrying out of those works; and
(iii)     a change to the Dwelling House Development Approval consistent with the Filling Works, Commenced Operational Works and Swimming Pool Works.
(c)from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval
12.An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, the Second Respondent:
(a)within thirty (30) minutes of service of the order, cease, or cause to be ceased, any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
(b)from the time of the making of the order and thereafter until any further order, not resume the works any development comprising the Filling Works, and the Swimming Pool Works unless and until there is:
(i)      a development permit under the PA issued by the Third Respondent authorising the carrying out of those works; and
(ii)     a valid development permit authorising the carrying out of those works; and
(iii)     a change to the dwelling house approval consistent with the carrying out of the Filling Works, Commenced Operational Works and Swimming Pool Works.
(c)from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval
13A.An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, to the extent that the Swimming Pool Works are not approved and authorised by all necessary valid development approvals for such works, and/or all such necessary development approvals are not obtained within a reasonable period of time, as determined by the Court, the First Respondents and the Second Respondent remove the unlawful works on the Subject Premises within a reasonable period of time, as determined by the Court.”

Having regard to my findings about the validity of the second certifier building permit,[223] the exemption certificate,[224] and the third certifier building permit,[225] and the matters referred to in paragraphs [414] to [417] above, Mr Baxter has not established that a development offence will be committed unless the enforcement orders he seeks are made. Accordingly, he has not discharged his onus for the relief he seeks in paragraphs 11, 12 and 13A of the prayer for relief in the Third Further Amended Originating Application. The application for that relief must be dismissed.
[223]See paragraphs [139] to [238] above.
[224]See paragraphs [239] to [323] above.
[225]See paragraphs [324] to [332] above.
Should the Prestons and Graya Construction pay Mr Baxter’s costs?
In paragraph 14 of the prayer for relief in the Third Further Amended Originating Application, Mr Baxter seeks the following relief:
“14.An order, pursuant to section 61 of the PECA or section 60 of the PECA, that the First Respondents and/or the Second Respondent pay the Applicant’s costs of this Originating Application, to be assessed:
(a)on an indemnity basis; or
(b)alternatively, on the standard basis.”
The ground on which the relief is sought is set out in paragraph 24 of the Third Further Amended Originating Application. It assumes that Mr Baxter will be successful with respect to each of his allegations. He was not.
Mr Baxter did not address his application for costs in his written submissions.
Having regard to my findings in relation to the other relief sought, I am not persuaded that an order of costs should be made in Mr Baxter’s favour.
Conclusion
Mr Baxter has not discharged his onus with respect to the relief he seeks. In the circumstances, his application should be dismissed.
I will hear from the parties about any matters arising.
Attachment A
The terms of the declarations and orders sought in the Third Further Amended Originating Application are as follows:
“Declarations
1.A declaration, pursuant to section 11(1)(a), 11(b) and/or 11(c) of the PECA, that development that have (sic) been carried out on the Subject Premises have been and are:
(a)building work for which a development permit under the PA has been issued by the Third Respondent (the “Dwelling House Development Approval”) involving partial demolition to, and extension of, a dwelling house in the Traditional Building Character Overlay (the “Dwelling House Building Works”); and
(b)operational work under the PA in the rear of the Subject Premises involving filling on the Subject Premises (the “Commenced Operational Works”), being the operational work in the area of operational work approved by the Operational Works Approval issued by Council on 16 July 2021 (the “Operational Works Approval”);
(c)building work under the PA in the rear of the Subject Premises involving the construction of an above-ground swimming pool, with associated decks, rear stairs and structural and retaining structures (the “Swimming Pool Works”):
(i)      for which no development approval under the PA had been, or has been, issued by the Third Respondent approving such work;
(ii)     for which there was, and is, no valid effective development permit under the PA authorizing such work and
(iii)     for which there was, and is, no valid exemption certificate under the PA.
Particulars
The Swimming Pool Works are:
(i)      the building work that has been carried out on parts of the Subject Premises:
(A)covered by red areas on Figure 1 on page 5 of Exhibit 2.15, excluding the areas shown as red areas on Figure 6 on page 5 of the Affidavit of Bradley Muller, Exhibit 2.15;
(B)where the proposed swimming pool decks and rear stairs are shown on Floor Plan – Level 1, Sheet A207 Revision S of the development permit (the “Building Approval”) issued by a private certifier under the Building Act 1975 (the “BA”), which is Attachment G in Exhibit 1.10 (with the relevant plan being at page 99 of Exhibit 1.10);
(ii)     those components of building work in those areas that are the commencement of the new construction of the swimming pool, and retaining walls and stairs shown in the Building Approval in those locations;
(iii)     the building work of that type in those areas has been carried out is all of the building work in those areas shown in:
(A)the photographs at pages 8 and 10 of the Affidavit of Steven Baxter, Exhibit 2.3;
(B)the aerial photographs in Exhibit PCC-8 to the Affidavit of Peter Catchlove, Exhibit 2.1;
(C)the photographs at pages 11, 12, 14, 17, 18 and 21 of the Affidavit of Steven Baxter, Exhibit 2.1;
(D)the photographs at pages 7 to 14 and 16 to 21 of the Affidavit of Heath Burton, Exhibit 2.7;
(E)the photographs at pages 14, 18 to 22, 24 to 27, 29 and 32 to 36 of the Affidavit of Chloe Rattansay filed on 19 May 2021 (Court Document No. 19);
1A.A declaration that the Operational Works Approval does not authorise filling of those parts of the Subject Premises shown as red areas in Figure 6 on page 5 of the Affidavit of Mr Muller, Exhibit 2.15 (the “Filling Works”)
1B.A declaration, pursuant to section 11(b) and/or 11(c) of the PECA, that the Swimming Pool Works were not generally in accordance with the development approved by the Dwelling House Development Approval, and are not generally in accordance with that approval as changed on 1 October 2021 (“the Change Approval”).
2.A declaration, pursuant to section 11(1)(b) and 11(c) of the PECA, that the Filling Works:
(a)constitute assessable development under the PA;
(b)require to be assessed against City Plan 2014; and
(c)require a development permit issued by the Third Respondent authorising the Filling Works.

3.A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the Swimming Pool Works:
(a)constitute assessable development under the PA;
(b)are required to be assessed against City Plan 2014; and
(c)require a development permit issued by the Third Respondent authorising the Swimming Pool Works.

3A.A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Building Approval is invalid and of no effect, by virtue of:
(a)the status of the Third Respondent, rather than the private certifier as the assessment manager for any building development application seeking such development approval, pursuant to section 48 of the PA, section 21 of the PR and Item 1 of Table 1A of Schedule 8 of the PR;
(b)the requirement for a development approval issued by the Third Respondent for the building works that are the subject of the Building Approval;
(c)the requirement for a development approval issued by the Third Respondent for the operational works that may affect the form, location and/or use of the building works that are the subject of the Building Approval;
(d)pursuant to section 83(3) of the BA, the building development application resulting in the Building Approval being taken not to have been received by the private certifier;
(e)non-compliance with section 83(1) of the BA;
(f)non-compliance with section 84(1) of the BA, in that the Building Approval is inconsistent with the Dwelling House Development Approval.

3B.A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the exemption certificate issued by the Third Respondent on about 7 June 2021 (the “Purported EC”) is invalid and of no effect, because:
(a)the Purported EC does not contain any proper description of the development to which the exemption relates, contrary to section 46(6)(b) of the PA;
(b)the Purported EC does not set out the reasons for giving the Purported EC, contrary to section 46(6)(c) of the PA
(c)the Purported EC incorrectly describes the development to which the Purported EC relates as a “[s]wimming pool part above ground due to grade of land”;
(d)the purported decision to issue the Purported EC is impermissibly piecemeal, as the development to which the Purported EC relates:
(i)      depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
(ii)     does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
(iii)     is inconsistent with, and would require a change to, the Dwelling House Development Approval;
(e)the purported decision to issue the Purported EC did not consider relevant considerations, namely that the development to which the Purported EC relates:
(i)      depends upon, and/or may involve prejudgment or predetermination of, other assessable development that is not the the (sic) subject of the Purported EC;
(ii)     does not include development that is the subject of the existing development application seeking development approval for the filling of the rear of the Subject Premises; and/or
(iii)     is inconsistent with, and would require a change to, the Dwelling House Development Approval;
(f)in all the circumstances:
(i) no reasonable decision-maker could find that any of the criteria set out in section 46(3)(b) of the PA for the grant of an exemption certificate under the PA were established for the development to which the Purported EC relates;
(ii) no reasonable decision-maker could exercise any discretion under section 46 of the PA to grant the Purported PEC; and
(iii) in any event, there was no power to issue an exemption certificate under the PA for the development to which the Purported EC relates (including, so far as it was directed to these things, the Commenced Operational Works, the Filling Works and/or the Swimming Pool Works), as none of the criteria giving rise to the discretion to issue an exemption certificate under section 46 of the PA apply to that development.

3C.A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Swimming Pool Works, as they involve:
(a)building work for the construction of a swimming pool wholly, not partly, above ground;
(b)building work for the construction of a swimming pool wholly elevated metres above ground; and
(c)works other than the building works for the construction of a swimming pool.

3D.A declaration, pursuant to section 11(a) and/or 11(b) of the PECA, that the Purported EC does not apply to the Commenced Operational Works or the Filling Works, as they are not works for, or incidental to, the construction of a swimming pool at all, and not a swimming pool only partly above ground.
5.A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the commencement of the Swimming Pool Works constituted:
(a)a development offence against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals validly in effect for that development; and
(b)a development offence against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.

6.A declaration, pursuant to section 11(1) of the PECA, that the carrying out of the Filling Works would constitute, or will constitute, a development offence:
(a)against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development; and
(b)against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.

7.A declaration, pursuant to section 11(1)(b) and/or 11(c) of the PECA, that the continuation of the Swimming Pool Works constitutes, or will constitute, a development offence:
(a)against section 163 of the PA, by way of the carrying out of assessable development to which section 163(1) applies without all necessary development approvals in effect for that development; and
(b)against section 164 of the PA, by way of contravention of the Dwelling House Development Approval.

8.A declaration, pursuant to section 11(1)(c) of the PECA, that the development offence occasioned by the carrying out of the the (sic) Swimming Pool Works:
(a)has been committed by the First Respondents, as owners of the Subject Premises; and/or
(b)has been committed by the Second Respondent, as the entity performing the works.

Orders
10A.An order, pursuant to section 11(4) of the PECA, that the Building Approval be set aside.
10B.An order, pursuant to section 11(4) of the PECA, that the Purported EC be set aside.
10C.An order, pursuant to section 11(4) of the PECA, that the further building development approval (the “Further Building Approval”) issued on 5 October 2021 be set aside.
11.An order, pursuant to section 11(4) of the PECA, or an interim enforcement order or an enforcement order pursuant to section 180(4) or 180(2) of the PA, that, the First Respondents:
(a)within thirty (30) minutes of the service of the order, cease, or cause to be ceased, the (sic) any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
(b)from the time of the making of the order and thereafter until any further order, not resume any development comprising the Filling Works and the Swimming Pool Works unless and until there is:
(i)      a development approval under the PA issued by the Third Respondent approving those works; and
(ii)     a valid development permit authorising the carrying out of those works; and
(iii)     a change to the Dwelling House Development Approval consistent with the Filling Works, Commenced Operational Works and Swimming Pool Works.
(c)from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval

12.An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, the Second Respondent:
(a)within thirty (30) minutes of service of the order, cease, or cause to be ceased, any development by way of the Filling Works, the Commenced Operational Works and the Swimming Pool Works; and
(b)from the time of the making of the order and thereafter until any further order, not resume the works any development comprising the Filling Works, and the Swimming Pool Works unless and until there is:
(i)      a development permit under the PA issued by the Third Respondent authorising the carrying out of those works; and
(ii)     a valid development permit authorising the carrying out of those works; and
(iii)     a change to the dwelling house approval consistent with the carrying out of the Filling Works, Commenced Operational Works and Swimming Pool Works.
(c)from the time of the making of the order and thereafter until any further order, not resume any development for the Commenced Operational Works other than in accordance with the Operational Works Approval

13A.An order, pursuant to section 11(4) of the PECA or an interim enforcement order or an enforcement order pursuant to section 180(4) and/or 180(2) of the PA, that, to the extent that the Swimming Pool Works are not approved and authorised by all necessary valid development approvals for such works, and/or all such necessary development approvals are not obtained within a reasonable period of time, as determined by the Court, the First Respondents and the Second Respondent remove the unlawful works on the Subject Premises within a reasonable period of time, as determined by the Court.
14.An order, pursuant to section 61 of the PECA or section 60 of the PECA, that the First Respondents and/or the Second Respondent pay the Applicant’s costs of this Originating Application, to be assessed:
(a)on an indemnity basis; or
(b)alternatively, on the standard basis.”[226]
[226]For ease of reference, all colours, underlining and strike-out denoting the amendments made from earlier iterations of the originating process have been removed.

CITATION:	Baxter v Preston & Ors [2021] QPEC 69
PARTIES:	STEVEN JOHN BAXTER (Applicant) v ANTHONY STEVEN PRESTON AND KYLIE ANNE PRESTON (First Respondents) and GRAYA CONSTRUCTION PTY LTD (ACN 158 362 406) (Second Respondent) and BRISBANE CITY COUNCIL (Third Respondent)
FILE NO/S:	932 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	9 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2021 (site inspection), 6, 7, 8 and 12 October 2021, further written submissions received 22 and 25 October 2021 and further evidence received 26 October 2021
JUDGE:	Kefford DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant says the private certifier was not the appropriate assessment manager – whether the local government was the appropriate assessment manager PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says other development permits were required for development other than building work that may affect the form or location of the building work or the use of the building or structure – whether the private certifier had power to give the approval under s 83 of the Building Act 1975 (Qld) – whether the requirement in s 83 of the Building Act 1975 (Qld) is a jurisdictional fact – whether there was a jurisdictional error that affected the decision PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a private certifier’s decision to give a building permit – where the applicant challenged the validity of the private certifier’s decision to give a building permit – where the applicant says there was an inconsistency between the building permit and an earlier development approval – whether the private certifier had power to give the approval under s 84 of the Building Act 1975 (Qld) PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about the Council’s decision to give an exemption certificate under s 46 of the Planning Act 2016 – where the applicant challenged the validity of the Council’s decision to give an exemption certificate and the accuracy of the notice of its decision – where the decision was challenged on the basis of jurisdictional error – whether the notice of the decision was inaccurate – whether the Council failed to take into account relevant considerations – whether the Council’s opinion, for the purposes of s 46(3)(b) of the Planning Act 2016 was legally unreasonable PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the applicant seeks declaratory relief about the lawfulness of future development – where there is no evident intention to carry out the development the subject of the declarations – whether granting declaratory relief would amount to answering a hypothetical question PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to remedy the commission of development offences – where the applicant alleges that the first and second respondents carried out operational works without all necessary development approvals – where the applicant alleges that the first and second respondents carried out building work without all necessary development approvals – where the development alleged to have been carried out was not particularised – whether the applicant should fail because of inadequate particulars – whether the applicant has demonstrated the commission of the alleged development offences PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to restrain the commission of development offences that he alleges will be committed unless restrained – whether the applicant has demonstrated that the first and second respondents will commit the alleged development offences unless restrained PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – ENFORCEMENT PROCEEDING – whether the relief sought should be granted in the exercise of the Court’s discretion
LEGISLATION:	Building Act 1975 (Qld) ss 7, 12, 13, 30, 32, 33, 83, 84, 86, 132, 143, 256, sch 2 Building Regulation 2006 (Qld) s 10 City of Brisbane Act 2010 (Qld) ss 231, 232 Planning Act 2016 (Qld) ss 8, 29, 43, 44, 46, 48, 49, 51, 54, 55, 57, 83, 88, 104, 107, 161, 163, 164, 180, 333 sch 2 Planning and Environment Court Act 2016 (Qld) s 11 Planning and Environment Court Rules 2018 (Qld) r 8, 9 Planning Regulation 2017 (Qld) ss 20, 21, 22, 26, sch 6, sch 8, sch 9, sch 10
CASES:	AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, applied Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, applied Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119, cited Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, applied Australia Pacific LNG Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2020] QCA 15, cited Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297, applied Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, applied Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5; [2009] QPELR 533, cited Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613, approved Birkdale Flowers Pty Ltd v Wilson Four Pty Ltd & Anor [2016] QPEC 4; [2016] QPELR 231, cited Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, approved Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied Bundaberg Regional Council v Loeskow & Ors [2011] QPEC 95; [2012] QPELR 27, cited Bundaberg Regional Council v Ross [2011] QPEC 137; [2012] QPELR 322, cited BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 268 CLR 29, applied Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied Council of City of the Gold Coast v McKean [2019] QPEC 28; [2019] QPELR 959, cited Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, applied Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731, cited Eschenko v Cummins & Ors [2000] QPELR 386, cited Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, approved Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, cited Francis v Crime and Corruption Commission & Anor [2015] QCA 218, applied Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, applied Gerhardt v Brisbane City Council [2016] QPEC 48; [2016] QPELR 900, cited Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, applied Massie & Ors v Brisbane City Council [2007] QCA 159, applied Mentink v Registrar of Ships [2014] FCA 1138; (2014) 320 ALR 137, cited Mineralogy Pty Ltd v Sino Iron Pty Ltd (No. 6) [2015] FCA 825; (2016) 325 ALR 1, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, applied Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, cited Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, cited Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30; (2018) 264 CLR 541, applied Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, cited Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17, considered Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, applied Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485, distinguished Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, applied Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, applied Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186, cited Re Tooth & Co Ltd [1978] FCA 10; (1978) 31 FLR 314, applied Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, applied SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied Serratore & Anor v Noosa Shire Council [2021] QPEC 21, approved SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied Walker v Noosa Shire Council [1983] 2 Qd R 86, applied Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, applied Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520, cited Wheldon & Anor v Logan City Council & Anor [2015] QPEC 22; [2015] QPELR 640, cited Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:	A N S Skoien and J R Moxon for the Applicant S J Hedge for the First and Second Respondents R Yuen for the Third Respondent
SOLICITORS:	Romans & Romans Lawyers for the Applicant Thynne + Macartney for the First and Second Respondents Brisbane City Legal Practice for the Third Respondent

Development	Categories of development and assessment	Assessment benchmarks
Building work
Building work if involving demolition of: … b. the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof; …[and] d. where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay	Assessable development–Code assessment
	- Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.	Traditional building character (demolition) overlay code–purpose, overall outcomes and outcomes in sections A and B
Building work involving a dual occupancy, dwelling house, multiple dwelling, retirement facility, rooming accommodation or short-term accommodation where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay	Assessable development–Code assessment
	- Note–If the development is impact assessable in the zone or neighbourhood plan, then the category of assessment is not lowered to code assessment.	Traditional building character (design) overlay code”

Locality	Codes
Land in the following zones: a. Rural zone b. Rural residential zone c. Environmental management zone d. Low density residential zone e. Character residential zone and zone precincts f. Low-medium density residential zone and zone precincts g. Medium density residential zone h. Emerging community zone	Dwelling house code Dwelling house (small lot) code
Land in the Traditional building character overlay	Traditional building character (design) overlay code
Land in a neighbourhood plan area	A relevant neighbourhood plan code to the extent provided”

“Performance outcomes	Acceptable outcomes
If in the Hillside character precinct (Ithaca district neighbourhood plan/NPP-008)
Landscape character, physical setting and topography
PO24 Development, including buildings or other structures, driveways and hard-stand areas, must be designed and sited to minimise cut-and-fill on the site and to soften visual impact.	AO24.1 Development incorporates: a. foundation systems that minimise disturbance to the landscape, such as post-and-pier type foundations; b. slab-on-ground foundations only on those parts of a site with gradients less than 1 in 8 and where cut and fill is minimal; c. benching, cut and fill, or construction of retaining walls of a minor nature only (i.e. fill does not exceed 1m and/or the combined height of any retaining wall and fence does not exceed 2m) and is designed so it is not noticeable after construction has been completed; d. driveways and hardstand areas only on those parts of a site with gradients less than 1 in 4.
	AO24.2 Development provides retaining walls that are set back from any boundary and are stepped, terraced and landscaped.”

“Class	Building Work Description
1a	Alterations	to existing Dwelling – raise, relocate, build under, internal alterations and extension
10b	New Construction	of Swimming Pool
10b	New Construction	of Swimming Pool Fence
10b	New Construction	of Retaining Walls
10b	New Construction	of Fences”

Building class	Building Work Description
1a	Alterations to existing Dwelling – raise, relocate, build under, internal alterations and extension
10b	New Construction of Swimming Pool
10b	New Construction of Swimming Pool Fence
10b	New Construction of Retaining Walls
10b	New Construction of Fences