Cairns Regional Council v Liu - [2016] QPEC 31

PLANNING & ENVIRONMENT
COURT OF QUEENSLAND

CITATION:

Cairns Regional Council v Liu & Ors [2016] QPEC 31

PARTIES:

CAIRNS REGIONAL COUNCIL

(applicant)

v

JUBO LIU

(first respondent)

v

BODY CORPORATE FOR THE WINSTON (CAIRNS) COMMUNITY TITLE SCHEME 37263

(second respondent)

v

WENJING MU

(third respondent)

FILE NO/S:

Application 34/16

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED EX TEMPORE ON:

1 June 2016

DELIVERED AT:

Cairns

HEARING DATE:

31 May 2016

JUDGE:

Dean P. Morzone QC

ORDER:

1.     It is declared that the balcony enclosure structure on the first respondent’s property located at Unit 17 and part of the common property of The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street, North Cairns in Queensland, constitutes code assessable development for which a development permit is required.

2.     The first respondent must remove the structure from the property by 1 August 2016 and make good any damage to the common property to return the premises the condition immediately before the erection of the structure.

3.     The first respondent will pay the applicant’s costs of the proceeding on and from 4 May 2016 to be assessed on the standard basis.

4.     In the event that the costs claimed by the applicant cannot be agreed, each party has liberty to apply, upon giving at least seven (7) days’ written notice to the other party, for the assessment and fixation of costs by the court.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of balcony enclosure as assessable development - whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence - whether declaratory and enforcement orders should be made in the exercise of discretion - costs.

COUNSEL:

P. Djohan for the applicant

SOLICITORS:

Corrs Chambers Westgarth for the applicant

The applicant council applies for declarations and enforcement orders to requiring the first respondent (the “respondent”) to destroy and remove the shanty-like structure enclosing his first-floor unit balcony.

The respondent opposed the application and was self-represented at the hearing. The second respondent body corporate did not participate in the hearing. The third respondent is no longer interested in the property and was granted leave to withdraw from participating in the proceeding.

Background

The respondent and his former wife, the third respondent, are the registered owners of the unit 17 in The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street at North Cairns in Queensland. The respondent’s unit is located in the first floor in the three-storey residential complex comprising 30 other separate dwelling units and common property.

The third respondent has disavowed any involvement in the structure the subject of this proceeding and has lodged documents to transfer her interest in the unit to the respondent. The applicant council does not seek any orders against the second or third respondents.

In 2011 the respondent undertook building work to enclose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cairns Regional Council v Liu

Details

AGLC: Cairns Regional Council v Liu [2016] QPEC 31
Case: [2016] QPEC 31
Decision Date: 1 June 2016

CaseChat Overview and Summary

In the case of Cairns Regional Council v Liu, the respondent, Mr Liu, was involved in a dispute with the Cairns Regional Council concerning the erection of a balcony enclosure on his property. The Council sought declaratory and consequential relief under the Sustainable Planning Act 2009 (Qld), claiming that the balcony enclosure constituted assessable development requiring a development permit. The Council argued that Mr Liu had carried out this development without the necessary permit and sought an order for the removal of the structure. The primary legal issue the court had to resolve was whether the balcony enclosure constituted assessable development as defined by the Act and whether Mr Liu had carried out this development without an effective development permit. The court also had to consider the exercise of discretion in granting declaratory and enforcement orders.

The court found that the balcony enclosure was indeed assessable development under the Act, as it altered the use of the property by enclosing previously open space. The court relied on expert opinion evidence to support this conclusion. As for the lack of a permit, the court determined that the respondent had indeed carried out the development without an effective permit. Given these findings, the court exercised its discretion to grant the requested declaratory and enforcement orders. It declared that the balcony enclosure constituted assessable development and ordered its removal by a specified date. Additionally, the court mandated that Mr Liu restore any damage caused to the common property. The respondent was also ordered to pay the applicant's costs of the proceedings, with provisions for cost assessment if the parties could not agree on the amount.

Orders

Orders of the court

1. It is declared that the balcony enclosure structure on the first respondent’s property located at Unit 17 and part of the common property of The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street, North Cairns in Queensland, constitutes code assessable development for which a development permit is required.

2. The first respondent must remove the structure from the property by 1 August 2016 and make good any damage to the common property to return the premises the condition immediately before the erection of the structure.

3. The first respondent will pay the applicant’s costs of the proceeding on and from 4 May 2016 to be assessed on the standard basis.

4. In the event that the costs claimed by the applicant cannot be agreed, each party has liberty to apply, upon giving at least seven (7) days’ written notice to the other party, for the assessment and fixation of costs by the court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Cairns Regional Council v Liu & Ors [2016] QPEC 31
PARTIES:	CAIRNS REGIONAL COUNCIL (applicant) v JUBO LIU (first respondent) v BODY CORPORATE FOR THE WINSTON (CAIRNS) COMMUNITY TITLE SCHEME 37263 (second respondent) v WENJING MU (third respondent)
FILE NO/S:	Application 34/16
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Cairns
DELIVERED EX TEMPORE ON:	1 June 2016
DELIVERED AT:	Cairns
HEARING DATE:	31 May 2016
JUDGE:	Dean P. Morzone QC
ORDER:	1. It is declared that the balcony enclosure structure on the first respondent’s property located at Unit 17 and part of the common property of The Winston (Cairns) Community Title Scheme 37263, situated at 261-265 Sheridan Street, North Cairns in Queensland, constitutes code assessable development for which a development permit is required. 2. The first respondent must remove the structure from the property by 1 August 2016 and make good any damage to the common property to return the premises the condition immediately before the erection of the structure. 3. The first respondent will pay the applicant’s costs of the proceeding on and from 4 May 2016 to be assessed on the standard basis. 4. In the event that the costs claimed by the applicant cannot be agreed, each party has liberty to apply, upon giving at least seven (7) days’ written notice to the other party, for the assessment and fixation of costs by the court.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of balcony enclosure as assessable development - whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence - whether declaratory and enforcement orders should be made in the exercise of discretion - costs.
COUNSEL:	P. Djohan for the applicant
SOLICITORS:	Corrs Chambers Westgarth for the applicant