Bundaberg Regional Council v Berthelsen

[2012] QPEC 54

[2012] QPEC 54

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 1721 of 2012

BUNDABERG REGIONAL COUNCIL	Applicant
and
VANESSA RUTH BERTHELSEN	Respondent

BUNDABERG

..DATE 25/09/2012

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 604

Enforcement orders - breach of conditions of development approval - conditions included requirement for a noise report based on the first year's operation of a go kart track for which the approval allowed a new category of noisier karts - report not forthcoming - respondents contend none is necessary based on lack of complaints - respondent's request to have the condition changed in the current application not entertained (a separate application would be necessary) - unauthorised uses (residential, advertising, also racing and "drifting" of motor vehicles) had occurred - buildings had been erected without permits, some may be non-compliant with codes - discretionary factors did not preclude making orders, however replacement of stairs/ladder to the top of a waterslide which had operated for many years but which Council now contended did not comply with approved plans was made dependant upon a further order - circumstances in which respondent's spouse added as a party at hearing."

HIS HONOUR:  I will give my decision now.  Notwithstanding that Mrs Berthelsen has become indisposed a short time ago, and been taken into the care of ambulance staff, the hearing was effectively completed.  Adjourning, which would mean resumption in Brisbane would be inconvenient and probably lead to regrettable delay.  My view is that there was little if anything more that Mrs Berthelsen could usefully say.

This is an application by the Council for enforcement orders under section 604 of the Sustainable Planning Act 2009. It has taken its time to get to court so that, notwithstanding Mrs Berthelsen's complaints, one way or another she's had sufficient time to prepare, in my view, alternatively to fend off the application by taking steps that would alleviate some of the Council's concerns.

It's a Brisbane proceeding which was transferred to Bundaberg for trial to suit Mrs Berthelsen and her husband's convenience on the basis that one or both had difficulty in travelling to Brisbane.  In the end it was the court and the Council's legal team coming to Bundaberg which probably had its advantages in the ready access available to Council staff.

Originally only Mrs Berthelsen was a respondent, she being the registered proprietor of a site on Burnett Heads Road, Rubyanna where a go-kart track and a water slide entertainment venture has been operating since 1994 and 1996 or thereabouts.  Mr Berthelsen on the court's observations and on the evidence has been as active in the venture as his wife and kept fully apprised of everything that's been occurring. 

Indeed, on occasions it's been he making appearances in the court to represent his wife.  It has emerged that sometime in 2009 he took a lease of the premises from his wife which in the ordinary course would entitle him to exclusive possession of them.  It strikes one as a curious lease.  I was unable to discover in it any covenant requiring him to pay rent.  Its terms do indicate his responsibility for the conduct of the venture so far as concerns attending to town planning and construction-type matters and the like.

Although on the face of things it was unusual to have Mr Berthelsen joined as a second respondent at the hearing yesterday and doubly so in his absence, he being in hospital for an investigation of a heart problem, which I understand is seeing him due to be taken to Brisbane for further investigations today, joining him was appropriate.  He has the ordinary right of every person in whose absence orders are made to approach the court to seek to have such orders set aside or changed.

As things appeared to the court, the course taken, although remarkable procedurally, doesn't involve any real injustice to him.  As will be seen, nothing occurs immediately under the court's orders today, so that he has time to retrieve his situation if necessary. 

Could I just interrupt?  How does racing come into this, Mr Williamson?  I meant to ask about that.  The go-karts race, don't they?  Or are they simply proceeding independently around the track?

MR WILLIAMSON:  Your Honour, it's intended to attach to motor vehicles as distinct from - that is the racing or drifting of motor vehicles as opposed‑‑‑‑‑

HIS HONOUR:  That's right.

MR WILLIAMSON:  Not go-karts.

HIS HONOUR:  But the development approval itself refers to ERA 65 motor racing.

MR WILLIAMSON:  But that doesn't authorise the material change of use for motor racing.  The ERA is a kind of environmentally relevant activity.

HIS HONOUR:  So what's the development approval for?  Just the workshop?  I'm reading recital A.

MR WILLIAMSON:  There are two - the approval - the order grants two approvals.  A material change of use, special use, general business, caretaker’s residence, that's one and a material change of use for an ERA 28 motor vehicle workshop‑‑‑‑‑

HIS HONOUR:  Oh, that's an ERA too, yes, I see.

MR WILLIAMSON:  ‑‑‑‑‑and motor racing.

HIS HONOUR:  All right.

MR WILLIAMSON:  That's - your Honour, environmentally relevant activities were rolled into IPA and the way they were rolled in was to describe them as a material change of use.

HIS HONOUR:  All right.

MR WILLIAMSON:  So they're a type of material change of use.

HIS HONOUR:  Did they apply for authorisation for drifting?

MR WILLIAMSON:  No, no.  It relates‑‑‑‑‑

HIS HONOUR:  All right.  And motor racing covered go-karts.

MR WILLIAMSON:  That's so, yes.

HIS HONOUR:  Yes, all right. 

MR WILLIAMSON:  Yes.

HIS HONOUR:  Now, perhaps I really should have asked you about recital B, it talks about the purposes of racing and or drifting motor vehicles. 

MR WILLIAMSON:  Yes.

HIS HONOUR:  What is racing in B?

MR WILLIAMSON:  Your Honour, it was the racing of - as Ms Berthelsen described it‑‑‑‑‑

HIS HONOUR:  Cars.

MR WILLIAMSON:  ‑‑‑‑‑of - that's sedan vehicles.

HIS HONOUR:  I thought that's right.

MR WILLIAMSON:  Yes, not go-karts.  Which is then consistent with what's intended in terms of paragraph 1(b).  There's no intention‑‑‑‑‑

HIS HONOUR:  That's right.  You're not trying to close down what they were doing before 2008 with go-karts?

MR WILLIAMSON:  No, the go-karts - as long as it's in accordance with the approval, that's fine.

HIS HONOUR:  So, this is intended to stop them using the 2010 approval until they do what its conditions require.

MR WILLIAMSON:  That's correct.

HIS HONOUR:  If they could get by on the basis of established uses prior to that, they can continue with them?  I don't want to make an order that leaves us with nasty question marks about that.

MR WILLIAMSON:  And I understand that.  The purpose‑‑‑‑‑

HIS HONOUR:  See, they applied in 2008 to use two stroke vehicles, for example, and that was going to be new, wasn't it?

MR WILLIAMSON:  Your Honour, can I put it this way.  If there's compliance with the 2010 development approval‑‑‑‑‑

HIS HONOUR:  Yes.

MR WILLIAMSON:  ‑‑‑‑‑granted by the court, there's - we're not trying to stop that.

HIS HONOUR:  I know.  But, let's say there's not.

MR WILLIAMSON:  Right.

HIS HONOUR:  Are you stopping all go-kart activities?

MR WILLIAMSON:  If there's non-compliance with the conditions of the approval, yes, they cease the use.

HIS HONOUR:  They can't even go back to what they were doing in 2007?

MR WILLIAMSON:  No, because they've - because what they have is they have a later approval which they‑‑‑‑‑

HIS HONOUR:  Because they opened a Pandora's box? 

MR WILLIAMSON:  Yes.  There's‑‑‑‑‑

HIS HONOUR: Well, people often come to grief doing that, I know that. (By way of example see McIlwraith v Scenic Rim Regional Council [2010] QPEC 126; [2011] QPELR 157)

MR WILLIAMSON:  Your Honour, the‑‑‑‑‑

HIS HONOUR:  We're all familiar with councils wanting people to make development applications so they can put conditions on activities that may have been going on for a long time.

MR WILLIAMSON: That's so. Your Honour, there's a decision of Avel Pty Ltd v Jerdway Pty Ltd and ors [1998] QPELR 62 which is a decision of Judge Quirk. It's about an old pinball parlour on the Gold Coast. But its authority for the proposition that if - it's quite legitimate to have two mutually inconsistent rights which sit over land.

HIS HONOUR:  That's right. 

MR WILLIAMSON:  But as soon as you act on one that's an election you've made and the balance of the rights fall away.

HIS HONOUR:  Yes, this is probably of academic interest only, but you're saying that by seeking the 2010 approval, and perhaps even more by implementing it, they committed themselves to those conditions.

MR WILLIAMSON:  They're exercising a right which is conditional.

HIS HONOUR:  That's right.  And they can't say any longer, "No, I'm exercising my old rights that I had before my development application."

MR WILLIAMSON:  That's - they certainly haven't made that election, but - just excuse me for one minute.  Thank you.  Your Honour, if the election was made to go back to the earlier approval there are non-compliances you could - that - it’s sort of checkmate‑‑‑‑‑

HIS HONOUR:  Well, I don't know because I haven't seen the conditions of anything earlier.  They're in there somewhere are they?

MR WILLIAMSON:  That's so.  But, it's - it's a bit - to put it nicely, it's checkmate.

HIS HONOUR:  Mmm.

MR WILLIAMSON:  Which ever right they elect to pursue.  But - and Mr Connor reminds me that in terms of the motor racing and drifting that is for the larger vehicles, that's not - that hasn't been authorised by any approval.  What's been authorised relates to go-karts.

HIS HONOUR:  That's right. 

MR WILLIAMSON:  Yes.

HIS HONOUR:  That's right.  Okay. 

The first respondent acquired the land around 2006.  Desiring to expand the operations, she made a development application thereafter which the Council approved subject to conditions which she found unacceptable and challenged in an appeal to the court.  That was compromised.  Judge Rackemann on the 23rd of March 2010 made an order by consent which varied the Council's conditions, in particular by rendering considerably less onerous a requirement to obtain an expert report as to noise, originally proposed by the Council as a prerequisite of starting the new use.  In the proceeding’s outcome, a year of operation was allowed to take place before the report was called for, but the conditions, of course, required whatever the report said ought to be done by way of noise attenuation to be done.  The Council had the assistance of Mr King in that appeal.  He proposed certain measures that he thought would be reasonable in the short term and might even prove suitable in the long term, by way of construction of earth mounds, perhaps surmounted by acoustic fencing in appropriate perimeter locations.

What he proposed was that the noise impacts from operation of the go-kart track should be measured with the new mounds et cetera in place.  Noise had clearly been an issue as shown by submissions received in the impact assessment process that the Council had gone through.  It may be noted that there's been no contradiction of Mrs Berthelsen's assertion that there have been no noise complaints in recent times.  I'm prepared to accept that's correct.

But, as Mr King says, the absence of complaints doesn't mean there's no problem and the Council is justified in feeling concern for the future residents of the area if it becomes more densely settled.  For the moment it is a cane farming area, with the nearest house about 400 metres away.  Mr King's situation today is that he's still uncertain whether the interim measure proposed and which may or may not have been properly implemented to date will be effective.  In a farming area the expectation may well be of a quite amenity.

Therefore, the report required by the inconvenient condition, inconvenient from the point of view of the respondents, which was a central concern of the appeal, is still appropriate.  Mr King has gone out of his way today to make suggestions as to how his 2010 report may be built upon by an appropriate expert to be engaged by the respondents.  They have simply done nothing at all in respect of that condition.  Mr King suggested the work needed for a report prepared on that basis would be in the range of $2500 to $5000.

There are other conditions which Judge Rackemann's order contemplated, timely compliance with which has not happened.  Those relate to matters such as the sealing of car parking areas and the use of the site to display advertising unconnected with activities upon the site.  There have been other breaches not shown to be persisting such as the apparent selling of go-kart parts at retail. 

Another of the conditions the Council contends has been breached required the development to be undertaken generally in accordance with either:
(a)  Drawing number 002, Proposed Development, dated 20 June 2007; or
(b)  Figure 1, attached. 
What appears on the site is an amalgam of the drawing and the figure, advantage having been taken of prospects offered by both. 

In particular, there are additional buildings, which by no stretch of the imagination have been approved, more than 700 square metres of additional built area, according to one council estimate, in extra buildings.  The respondents may well wish to approach the court to have the conditions changed to accommodate what they have done.  There's nothing necessarily undesirable in the impacts of what they've done.  But they have done things that breach conditions.

It's likely that an approach will be made to the court to change or dispense with the condition in relation to the noise assessment report.  Mrs Berthelsen imagined, it seems, that she could apply in this proceeding by way of some kind of counterclaim for removal of the conditions.  In my view, that isn't possible.  A specific application in that regard commenced by a filed document which the Council has a reasonable time to consider and respond to is called for. 

Another respect in which a breach has been established is the use of a mechanical workshop building as a residence for Mrs Berthelsen and her husband.  The existing approval covers a caretaker's residence as described in the form of order being proposed by Mr Williamson, who represents the council.  That was to be located in another building entirely in a different location on the site.  Whether it's arguable that the use that was made of the building selected can be justified as being the caretaker's residence may be an argument for another day. 

One thing that is clear from Mrs Berthelsen's own mouth or hand is that a good deal of construction on the site has taken place without any building permit whatever to authorise it.  As she put it, some of the older "dodgy" buildings were removed and new better ones erected.  In those circumstances, the respondents may be seen as having brought upon themselves the close scrutiny which they've suffered at the hands of council officers in recent times. 

There seem to have been a couple of factors leading to that.  One was the outcome of Mrs Berthelsen's appeal in 2010.  It's unsurprising that the council might have developed a determination to ensure that the conditions be complied with.  It's interesting to note that even the original approval in pre-Berthelsen days appears to be found in a court order made in 1994. 

I don't think I'm the only person who would raise eyebrows at some of the matters covered in Mr Geaney's very thorough survey of buildings on the site.  He raises questions about almost every structure there.  Some of them, I think, in ordinary circumstances would raise little interest, in particular, at least considered singly, a number of the familiar parkland picnic tables of wooden slat seats fixed either side of the wooden slat table.  These have been painted in bright colours and are surmounted by rooves designed to give a certain amount of shade, in which respect they're rather more generous than some encountered about the place which offer little shade except in the middle of the day.  Mr Geaney considers the structures such as those, and other structures which seem simply to be areas devoid of sides, where people might escape the sun or the rain for a time, without expressing any final view.  His expectation is that the respondents will bring in a building certifier to consider appropriate development applications that may lead to retrospective approvals, or identification of changes necessary to render building compliant.  He expresses concern that many of these structures would not comply with appropriate codes because of excessive spans, inadequate height, and the like.  It's the broader background, I would think, that has brought some of these more modest structures under council's notice. 

Another event which seems to me to have done that was the experiment that the respondents undertook of introducing racing of motor vehicles, and in particular, a particular variant known as "drifting", which Mrs Berthelsen categorised as an activity normally associated with hoons. That involved vehicles of much greater dimensions and power than the go-karts lawfully operating on the site. Serious safety concerns were raised. The authorities in fact closed down events that were happening there. Such “one-off” events may constitute assessable development requiring a development permit to be lawful (see Somerset Regional Council v Bradford [2010] QPEC 109; [2011] QPELR 106 and authorities discussed there. As happened in that matter, it is appropriate here that there be a restraint forbidding any repetition - unless a permit is obtained, given the respondent’s overall history of apparent development offences).

One can understand the Berthelsens’ resentment at feeling themselves somehow singled out.  The complaints of Mrs Berthelsen, in particular, are many and various.  They range from complaining that the council operates its own rival go-kart track, using possibilities that are foreclosed to her, of proximity to sensitive receptors, longer operating hours, and the like, to what seems to be a basic underlying complaint that the council led them, before she completed her purchase of the property, to the belief that all improvements located on it were duly authorised. 

I have grave reservations about that assertion which wasn't in the form of sworn evidence.  I think it unlikely in the extreme that in 2006, without any inspection of the site, any council employee would have given an assurance that everything was all right.  The evidence before the court shows that everything wasn't all right.

Mrs Berthelsen also complains that the Council could have pursued concerns it had, if there was scope for any about unlawful building, in or before 2006 and again in 2007 when they were raised in some communications with her - rather than wait until now to take action.  Consideration of that kind and associated ones, such as whether this court could order any compensation to her, have no part to play in this proceeding.  There is simply no jurisdiction in the court to consider compensation claims of the kind mentioned.  I accept that there could be circumstances in which it might appear that a council was pursuing some improper motive or mounting a technical sort of case lacking “real world” merits in which, as a matter of the court’s discretion, relief may be withheld.  The present is far from being in such a category.

Reviews such as Mr Geaney's have led to questions being raised about the appropriateness of the steps or ladder by which patrons access the water slide.  The court's heard it's some nine metres in the air and it's reached by three flights of structures halfway between steps and a ladder of the kind encountered on smaller seagoing vessels.

The council now presents the view that what ought to have been provided were stairs with much lower risers, much wider treads and much deeper treads.  There was some attention devoted during the hearing to an approved plan for stairs which was approved at the time when the development permit for stage 1 of the water park on the site, being the water slide, eventuated.

There are some drawings there that are consistent with a very steep ladder arrangement, but the particular drawing indicating standards for stairs Mrs Berthelsen says was included in error, being something restricted to stage 2 which never developed.  Mrs Berthelsen asserted that it was or must have been by some error that that superfluous document had somehow become associated with the others.

At one stage Mr Williamson suggested to the court that the whole water slide use may be in doubt in the sense that no final certificate to show appropriate construction of the facility was ever obtained.  The present context is unlike another that I'm aware of where, against the council's assertions that there was no permit for the building of a wall in Pumicestone Passage, the developer asserted there was one and proved to be correct.  It was the case there that the council was unable to find the relevant certificate, and sought interim enforcement orders on the basis there was none.  The orders were set aside.  See Caboolture Shire Council v Swindale 3555/07 and Swindale v Caboolture Shire Council 72/08 4^th February 2008.

The Berthelsens are in no position to assert that there ever was any final certificate.  The Council’s file hypothetically may be incomplete, because of some missing certificate(s), but it does contain notes casting doubt entertained by officers as to some stages of construction of the waterslide.  In one instance, the developer furnished a professional person’s report, which the Council was satisfied with.  I'd be reluctant in a context such as this where the court has a discretion as to what relief it grants to take any step in relation to the water slide which may cut across its broadly successful operation for 15 years or more.  The construction of the water slide must have attracted huge general interest in the area including interest among council officers. 

Many people must have been aware of the “ladder” arrangement and had no cause to question it as to its safety, or its compliance with approved plans.  There are permits in evidence for operation of the water slide which emanate from the Burnett Shire Council, the predecessor of the current applicant, wearing another hat, in particular its hat as a supervisor of entertainment venues.  It also wore the hat of a health officer in respect of which it granted permits on satisfaction that water quality and such things were managed under suitable systems. 

I feel unable to say to what extent the respondents might have been in genuine confusion attributable to complications of this kind.  They certainly have been slow to realise the implications of the regulation of planning matters which rightly or wrongly come under a separate rubric in our "system". 

Mrs Berthelsen protests a lack of funds to attend to what the council requires which I accept may be burdensome to them.  What the council proposes in respect of the questionable building structures is that a private certifier be engaged by and at the expense of the respondents.  That will provide an independent way of determining whether what is there can be approved or whether some changes are necessary. 

That will involve a cost which the Berthelsens may find difficult to meet.  But one might observe that even if it's several thousands of dollars (for the noise expert, Mr King estimated something between $2,500 and $5,000 extra work to be required), then perhaps the respondents ought not to be running this business.  One would expect that the operators of such a venture had recourse to sufficient funds to attend to needs that may arise for maintenance and the like.  Expense was involved recently in attending to deterioration in parts of the waterslide leading to its certification as an entertainment venue or “ride” until December 2012.

I have been anxiously concerned whether the court ought to exercise the familiar discretion to withhold relief in the circumstances.  I don't think there's a case for that, given that the order the Council seeks allows considerable time to the respondents to get matters in order and also, as one would expect, includes liberty to apply so that if any difficulties should arise they may find a sympathetic ear in the court; that may be very likely if they can present as doing their best and making progress.

Mr Williamson tells the court that, as one would expect, the Council is supportive of the venture, which provides an activity for young people and an attraction for tourists, and is desirous of working with the respondents to see that it can continue.  Obviously it ought to do so only on the basis that the amenity of the general area is protected and that all structures to which the public may have access are reasonably safe.

At the moment, I'm not expressing any view as to whether the stairs mentioned above are required in lieu of or perhaps as well as the "ladder" presently there.  There'll be an order in terms of the initialled draft, which has changes from the one that Mr Williamson handed up.  I'll just go through those, Mr Williamson.

MR WILLIAMSON:  Thank you, your Honour.

HIS HONOUR:  In recital D, I've deleted "identified in the affidavits of Gregory Dean Oxley and Merinda Elizabeth Grayson sworn 1 May 2012".  I think there are some things that are wrong, but I don't want to appear to be saying that everything they've said's a problem ‑‑‑‑‑ represents a development offence.  That's the point.

MR WILLIAMSON:  Yes.

HIS HONOUR:  So I'm intimating "some but perhaps not all".  Page 4, end of B at the top, allowing three months instead of the two that you had.  In each of the next - sorry, in paragraphs 3, 5, and 6, I think it's a bit clearer if I add at the end of 3, "with paragraph 7", so it's clear what non-compliance we're talking about, and in 5, I'm adding, "with paragraph 8", and in 6, I'm adding, "with paragraph 9".

On page 5, end of D - I'm adding four weeks to a lot of these times, Mr Williamson, so that in D, it'll become the 18th of January 2013.  In F, the first date's the 30th of November, and in G, the date becomes 30 November.

MR WILLIAMSON:  What about subparagraph (e), your Honour?  Does that‑‑‑‑‑

HIS HONOUR:  Well, what was condition 27?  I'd looked through the conditions.  Twenty-seven - it's about signage, that's neither nor there.  There’s no reason for extra time.

MR WILLIAMSON:  Okay.

HIS HONOUR:  In 9, 30th of November, the 18th of January again.  I've added at the very end of 10, "And in particular with respect to whether removal from the land of the water slide or parts thereof need occur".  Order as per initialled draft.

MR WILLIAMSON:  Your Honour, could I have paragraph 10 again?  I'm sorry, I just - I think I missed‑‑‑‑‑

HIS HONOUR:  Again, "And in particular with respect to whether removal from the land of the water slide or parts thereof need occur".

MR WILLIAMSON:  Thank you.

HIS HONOUR:  Does that cover everything?

MR WILLIAMSON:  Yes, thank you, your Honour.

THE COURT ADJOURNED AT 3.55 P.M.