Baxter v Preston

In the matter of Baxter v Preston, the applicant, Baxter, sought relief in the Queensland Planning and Environment Court, challenging the legality of the respondents' building and operational works permits. Baxter contended that the respondents had carried out development activities without obtaining the necessary operational works permits and that the Council's issuance of an exemption certificate for a swimming pool was invalid. Furthermore, Baxter argued that the private certifier's assessment of the work was not proper, and that the respondents had committed development offences by carrying out assessable development without all necessary development permits. The primary judge, however, found that the applicant's case was not sufficiently particularised, particularly in relation to the alleged unlawful operational work and building work.

The legal issues before the court included whether the respondents' development constituted "building work" or "operational work" under the Planning Act 2016 (Qld), and if the Council's issuance of an exemption certificate for the swimming pool was valid. Additionally, the court considered whether the Council delegate's decision to issue the exemption certificate was affected by jurisdictional error, and if the work was properly assessed by the private certifier. Lastly, the court examined whether the respondents had committed development offences by carrying out assessable development without all necessary development permits.

The court held that the respondents' development constituted "building work" and was permitted by the building permits, and that the Council's exemption certificate for the swimming pool was valid. The court found that the applicant had not provided sufficient particularity with respect to his allegations of unlawful operational work and building work, and that the applicant had not discharged his onus of proving that assessable operational work had been carried out without a development permit. The court further noted that the applicant had not properly particularised the alleged development offences committed by the respondents. As such, the primary judge's decision was upheld.

In conclusion, the court dismissed the applicant's application for leave to appeal and ordered the applicant to pay the respondents' costs of and incidental to the application.