Caloundra City Council v Taper Pty Ltd

Caloundra City Council sought relief against Taper Pty Ltd, the developer, and a builder involved in the construction of the Shearwater Resort in Kings Beach. The Council applied for declaratory relief, including an enforcement order requiring partial demolition of the building. The dispute centred on whether the construction complied with the approved plans and if it required development and building permits. The Caloundra City Council argued that the developer and builder had exceeded the permitted height by 0.97 metres, which they contended was a material contravention of the Development Control Plan. The developer and builder contended that the approved plans were ambiguous and that any height exceedance was de minimis.

The court examined whether the approved plans were ambiguous, the standard of proof required for a development offence when declaratory relief was sought, and the matters relevant to the exercise of discretion to make a demolition order. The court found that the approved plans were not ambiguous and that the standard of proof for a development offence was the civil standard of the balance of probabilities. The court also found that the height exceedance of 0.97 metres was material and constituted a contravention of the Development Control Plan. The court found that the developer and builder had acted deliberately and in contumelious disregard for the conditions of the relevant permits.

The court found that the developer and builder had committed a development offence and ordered the partial demolition of the building. The court also ordered that the height levels stipulated in the approved plans under the development permits were Australian Height Datum levels. The court dismissed the Council’s application for other relief.