Council of the City of Gold Coast v Gold Coast Leisure Services Pty Ltd & Anor
[2024] QPEC 10
•21 March 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Council of the City of Gold Coast v Gold Coast Leisure Services Pty Ltd & Anor [2024] QPEC 10
PARTIES:
COUNCIL OF THE CITY OF GOLD COAST
(Applicant)v
GOLD COAST LEISURE SERVICES PTY LTD ACN 050 493 073
(First Respondent)AND
SCOTT JONATHAN MENZIES
(Second Respondent)FILE NO/S:
688 of 2023
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
21 March 2024
DELIVERED AT:
Brisbane
HEARING DATE:
12 to 15 February 2024 and further evidence and submissions received on 1 March 2024
JUDGE:
Kefford DCJ
ORDER:
I order that:
1. if the Council persists in its application for costs, it is to file and serve any material that it seeks to rely on and written submissions not exceeding 10 pages in length with respect to its application for costs, by no later than 4 pm on 4 April 2024; and
2. The matter be listed for further hearing at 10 am on 10 April 2024 for the purpose of:
(a) hearing any application for costs that the Council persists with; and otherwise,
(b) hearing from the parties about any consequential relief or other matters arising.
CATCHWORDS:
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about the lawfulness of a land use – where the respondents say there is no utility to the declarations – whether declarations should be made
PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the applicant seeks declaratory relief about the lawfulness of land uses – where the applicant seeks declaration that development offences have been committed – where the applicant also seeks enforcement orders on the same basis – where the reasons must address the substance of the allegations and the lawfulness of use – where the applicant asserts the declarations have utility for the purpose of educating the public – whether granting declaratory relief is of utility – whether the declarations should be made in the exercise of discretion
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 respondent is unlawful using premises – whether there are existing lawful use rights – whether the applicant has demonstrated the commission of the alleged development offence
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders against the second respondent to remedy the commission of development offences – where the applicant alleges that the second respondent has committed an offence under s 227 of the Planning Act 2016 – whether the allegation of commission of that offence is sufficient to alert the second respondent of the commission of a development offence as a party – whether the applicant has demonstrated that the second respondent has committed a development offence
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:
Administrative Boundaries Terminology Act 1985 (Qld) s 4
Criminal Code (Qld) s 7
Integrated Planning Act 1997 (Qld) ss 1.2.1, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5, 1.4.1, 1.4.6, 2.1.1, 2.1.2, 3.1.2, 3.1.4, 4.3.1, 4.3.5, 4.3.6, 5.7.1, 5.7.2, 5.7.3, 5.7.4, 5.7.5, 5.7.6, 5.7.7, 5.7.8, 5.7.9, 5.7.10, 5.7.11, 5.7.12, 5.7.13, 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.23, sch 10
Local Government Act 1936 (Qld) ss 30, 31, 32, 33
Local Government Act 1993 (Qld) ss 16, 2, 23, 24, 25, 753, 757, 760, 935, sch 2
Local Government Act 2009 (Qld) ss 8, 9, 99
Local Government (Areas) Regulation 1995 (Qld) s 2, sch
Local Government (Areas) Regulation 2008 (Qld) s 3, sch 1
Local Government (Operations) Regulation 2010 (Qld) ss 7, 26, sch 1, sch 6
Local Government (Planning and Environment) Act 1990 (Qld) ss 2.1, 2.2, 2.10, 3.1, 3.3
Local Government Regulation 2012 (Qld) ss 6, 62, sch 8
Penalties and Sentences Act 1992 (Qld) s 181B
Penalties and Sentences Regulation 2015 (Qld) s 3
Planning Act 2016 (Qld) ss 3, 4, 6, 43, 44, 161, 163, 165, 167, 180, 181, 227, 260, 264, 265, 284, 290, sch 2
Planning and Environment Court Act 2016 (Qld) ss 10, 11, 55, 61
Planning and Environment Court Rules 2018 (Qld) r 9
Planning Regulation 2017 (Qld) ss 70, 71, sch 22, sch 23
Statutory Instruments Act 1992 (Qld) ss 4, 7, 14, 19, 37, sch 1, sch 2
Survey and Mapping Infrastructure Act 2003 (Qld) ss 3, 5, 57, 140, sch
Sustainable Planning Act 2009 (Qld) ss 3, 6, 7, 8, 9, 10, 79, 80, 81, 82, 231, 235, 236, 237, 238, 239, 342, 578, 582, 681, 682, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 778, sch 3
CASES:
AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied
Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395, approved
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, approved
Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, approved
Baxter v Preston & Ors [2022] QCA 146, applied
Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613, approved
Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, approved
Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, applied
Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, approved
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, approved
Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, applied
Collector of Custons v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, applied
Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297, applied
Cook v Woollongong City Council (1980) 41 LGRA 154, applied
Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, applied
Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, applied
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied
Gatton Shire Council v Toby Lane Pty Ltd [1997] QPELR 285, approved
Gerhardt v Brisbane City Council [2017] QPEC 49; [2017] QPELR 1067, approved
Gorrie v Mackay City Council [2002] QPEC 74; [2003] QPELR 328, approved
Ipswich City Council v Vaughan (1986) 61 LGRA 34, applied
Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, approved
KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2004] QPEC 31; [2005] QPELR 28, approved
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, cited
Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied
Maroochy Shire Council v Barnes [2001] QPEC 31; [2001] QPELR 475, approved
Maroochy Shire Council v Barnes [2001] QCA 273, applied
Marshall v Averay [2006] QDC 356; [2007] QPELR 137, approved
McNaught & Keating & Ors v Kingaroy Shire Council & Anor [1996] QPELR 215, approved
Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, applied
Norman v The Council of the Shire of Gosford & Anor [1975] HCA 15; (1975) 132 CLR 83, applied
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, applied
R v Ernst [2020] QCA 150, considered
Rosenblum & Anor v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35, applied
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, applied
Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, applied
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied
Shire of Perth v O’Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529, applied
St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, applied
Sunshine Coast Regional Council v Flanigan [2009] QPEC 68; [2010] QPELR 97, approved
Sydney City Council v Ke-Su Investments Pty Ltd & Ors (No. 2) (1983) 51 LGRA 186, applied
Sztal v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, applied
Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, applied
The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, applied
Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750; (2021) 66 VR 56, approved
Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 3; [2017] QPELR 264, approved
Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
COUNSEL:
G Gibson KC and K Wylie for the Applicant
S Holt KC and D Purcell for the First and Second RespondentsSOLICITORS:
McInnes Wilson Lawyers for the Applicant
MacDonnells Law for the First and Second Respondents
TABLE OF CONTENTS
Overview
What is the relief sought by the Council?
What is the nature of the proceeding?
What are the relevant legal principles for declaratory proceedings?
Are there fundamental difficulties with the Council’s Originating Application?
Is the type of declaratory relief sought appropriate?
Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies?
Is there a difficulty with the first form of relief sought with respect to Mr Menzies?
Is there a difficulty with the second form of relief sought with respect to Mr Menzies?
Do the particulars matter or can the Council now advance a different case?
Is there a material defect with the Council’s pleaded case against Mr Menzies in relation to the second form of relief?
Is there a difficulty with the third form of relief sought with respect to Mr Menzies?
Should the Council be permitted to advance a differently particularised case?
Does the case that the Council now seeks to pursue against Mr Menzies warrant the grant of relief?
What is the relevant legislative context for enforcement proceedings?
What are the offences in issue?
What is the alleged offence under s 163 of the Planning Act 2016?
What is the alleged offence under s 165 of the Planning Act 2016?
What must the Council demonstrate for the development offences in this proceeding?
What are the key issues to be determined?
Key issue 1: Was a new use of the Premises unlawfully started between August and December 1998?
What is the relevant legislative context under the Integrated Planning Act 1997?
What are the issues in dispute with respect to the first alleged material change of use?
Did use of the Premises commence between August and December 1998?
Does the evidence adduced by the Council establish the commencement of the use as alleged?
What additional evidence does the Council rely on to discharge the onus?
Is there a fundamental flaw in the Council’s case with respect to its first alleged material change of use?
What does the evidence establish about the use of the Premises between 1988 and December 1998?
Was the first alleged material change of use made assessable development under the 1994 Planning Scheme?
What is assessable development under the Integrated Planning Act 1997?
What is the jurisdiction of the Council under the Integrated Planning Act 1997?
How was the Council’s local government area defined?
Are the premises located within the Council’s local government area as shown on area maps LGB58 Edition 3 and LGB58 Edition 4?
Did the 1994 Planning Scheme make a material change of use of the Premises assessable?
Was the use of the Premises a lawful use for s 4.3.5 of the Integrated Planning Act 1997?
What are the relevant legal principles with respect to existing lawful use rights?
Was there a lawful use at the time that the 1994 Planning Scheme commenced that persisted in 1998?
Did the Chapter 36 By-law terminate the existing lawful use rights?
Conclusion about whether the use of the Premises was a lawful use for s 4.3.5 of Integrated Planning Act 1997?
Conclusion regarding the Council’s allegations about the first alleged material change of use
Key issue 2: Was there an unlawful material change in the intensity or scale of the use of the premises between January 2010 and November 2011?
What is the relevant legislative context under the Sustainable Planning Act 2009?
What are the issues in dispute with respect to the second alleged material change of use?
Was there a material increase in the intensity or scale of the use of the Premises between January 2010 and November 2011?
Was the second alleged material change of use made assessable development under the 2003 Planning Scheme?
What is assessable development under the Sustainable Planning Act 2009?
What is the jurisdiction of a local government under the Integrated Planning Act 1997 and the Sustainable Planning Act 2009?
How was the Council’s local government area defined?
Are the premises located within the Council’s local government area as shown on area maps LGRB30 Edition 2 and LGB30 Edition 1?
Did the 2003 Planning Scheme make a material change of use of the Premises assessable?
Was the use of the Premises a lawful use for s 582 of the Sustainable Planning Act 2009?
Conclusion regarding the Council’s allegations about the second alleged material change of use
Key issue 3: Was there an unlawful material change in the intensity or scale of the use of the premises between August 2017 and November 2018?
What is the relevant legislative context under the Planning Act 2016?
What are the issues in dispute with respect to the third alleged material change of use?
Was there a material increase in the intensity or scale of the use of the Premises between August 2017 and November 2018?
Was the third alleged material change of use made assessable development under City Plan 2016?
What is assessable development under the Planning Act 2016?
What is the jurisdiction of a local government for the Planning Act 2016?
How was the Council’s local government area defined?
Are the premises located within the Council’s local government area as shown on area maps LGB30 Edition 2?
Did City Plan 2016 make a material change of use of the Premises assessable?
Was the use of the Premises a lawful use for s 165 of the Planning Act 2016?
Conclusion regarding the Council’s allegations about the third alleged material change of use
Key issue 4: Is the current use of the Premises a lawful use?
Key issue 5: Do the discretionary considerations support, or tell against, the grant of the relief sought?
Should Gold Coast Leisure Services Pty Ltd and Mr Menzies pay the Council’s costs?
Conclusion
Overview
This is a proceeding commenced by the Council of the City of Gold Coast (“the Council”). The Council seeks declaratory relief about the lawfulness of a use under s 11 of the Planning and Environment Court Act 2016 (Qld) and enforcement orders restraining a use under s 180 of the Planning Act 2016 (Qld).
The proceeding relates to the long-term use of marina berths at Marina Mirage and the adjacent Mariner’s Cove marina by aircraft. The marinas are in the Gold Coast Broadwater near Seaworld Drive, Main Beach. They are owned by the State of Queensland.
The area the subject of the proceeding (“the Premises”) comprises:
(a)a marina berth in Marina Mirage that is at the south-western part of Lot 5332 on SP 185259 (“Lot 5332”) and that currently contains a pontoon with markings for a single helipad, a building utilised as a helicopter hangar and an additional building (“the Hangar Pontoon”);
(b)an area to the immediate west of the Hangar Pontoon, which now forms the south-eastern part of Lot 534 on SP 223393 (“Lot 534”) and that currently contains a pontoon with line markings for two helipads (“the Helipads Pontoon”); and
(c)a marina berth in Mariner’s Cove Marina located at the north-western part of Lot 524 on WD 6023 (“Lot 524”), which currently contains a pontoon improved by a two-storey building that serves as a passenger terminal, office and café and that is used for storage and administrative purposes associated with the helicopter use (“the Passenger Terminal Pontoon”); and
(d)the jetties and access ways along Lot 5332’s southern boundary and Lot 524’s northern boundary.
None of the pontoons are fixed structures. They are all vessels that float with the tide.
It is undisputed that aircraft started using part of the Premises in 1988, shortly after Christopher Skase built the Sheraton Mirage Hotel, Marina Mirage and the Hangar Pontoon.
When aircraft commenced landing on and taking off from the Hangar Pontoon, Lot 534 had not yet been created. Nevertheless, that part of the Broadwater was used as part of the approach path for seaplanes and helicopters (and hovercraft). Seaplanes also parked in that part of the Broadwater that became Lot 534.
At this time, Scott Menzies, the Second Respondent, was a helicopter pilot flying in the area. Mr Menzies first earned a living as a pilot by using his father’s helicopter and by flying helicopters owned by SeaWorld. Initially, aerial photography was a key aspect of Mr Menzies work. One of his notable photography assignments was for World Expo ’88.
Additionally, having obtained a turbine endorsement for his pilot’s licence, Mr Menzies conducted charter flights, including airport transfers and joy flights. This allowed him even greater flexibility to earn a living doing what he loves – flying helicopters.
Some of Mr Menzies’s passengers included Christopher Skase and his wife and guests, Councillors of the Council and Queensland Members of Parliament, and guests of the Sheraton Mirage Hotel.
Initially, the flights conducted for Mr Skase were undertaken using a temporary helipad in the car park at Seaworld from which a hovercraft and helicopter service was operated. However, in September 1988, as soon as the Hangar Pontoon was constructed and installed in the berth at Marina Mirage, Mr Skase insisted that Mr Menzies use that helipad for multiple transfer each week between the Hangar Pontoon and each of Coolangatta Airport, Brisbane Airport, and World Expo ’88.
Around this same time, development on the Gold Coast was rampant and provided a demand for aerial photography. For example, between 1988 and 1994, Mr Menzies undertook numerous commercial flights from the Hangar Pontoon to obtain aerial photographs of the Royal Pines Resort and Golf Club and the Hope Island Golf Course and residential community.
Collectively, the charter flight work (including transfers and scenic flights) and the aerial photography work provided Mr Menzies with a consistent opportunity to fly helicopters, much of which he did using the Premises.
Between 1988 and 1994, Mr Menzies was not the only person flying in the Broadwater and using the Hangar Pontoon and the area of the Broadwater to its immediate west for activities associated with aircraft. This was a busy period in the Gold Coast Broadwater. Passenger, tourist and commercial helicopter flights were in high demand due to World Expo ’88 and a boom in tourism that was bringing many visitors from Japan to the Gold Coast. The Hangar Pontoon was being used for commercial helicopter flights by Mr Menzies and many others, including Channel 7, Channel 9, Channel 10, and other commercial helicopter operators and floatplane operators who were conducting joy flights and charter work and providing other services with aircraft.
The Council concedes that between 27 March 1982 and 10 February 1994, the Premises was not included in any zone under the City of Gold Coast Planning Scheme 1982 (“the 1982 Planning Scheme”). It accepts that during that period no land use constraints were imposed on the Premises by the 1982 Planning Scheme, the now repealed Local Government Act 1936 (Qld) and the Local Government (Planning and Environment) Act 1990 (Qld).
The Council accepts that there were existing lawful use rights for the Premises at the time when the City of Gold Coast Planning Scheme 1994 (“the 1994 Planning Scheme”) commenced on 11 February 1994. Nevertheless, it alleges that Gold Coast Leisure Services Pty Ltd is committing development offences under ss 163 and 165 of the Planning Act 2016. It also alleges that Mr Menzies is committing an offence under s 227 of the Planning Act 2016.
The particulars of the Council’s allegations against Gold Coast Leisure Services Pty Ltd are that:
(a)between August and December 1998, Gold Coast Leisure Services Pty Ltd commenced use of part of the Premises for the arrival and departure of helicopters and the conduct of a helicopter operations business;
(b)between January 2010 and November 2011, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by:
(i)the construction of a large hangar building on the Hangar Pontoon and the commencement of use of that building to hangar helicopters;
(ii)the construction of additional helipads on Lot 534 and the commencement of their use for the arrival and departure of helicopters; and
(iii)the operation of four helicopters from the Premises; and
(c)between August 2017 and November 2018, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by:
(i)the construction of a two-storey building on Lot 524 and the commencement of use of the Passenger Terminal Pontoon for the arrival and departure of helicopters and for a café and passenger terminal; and
(ii)the operation of six helicopters from the Premises.[1]
[1]In final oral submissions, the Council abandoned reliance on the allegation that a change in operations was facilitated by the relocation of a one storey building from the berth containing the Passenger Terminal Pontoon to another marina berth in Mariner’s Cove marina to be used for office and storage purposes associated with the helicopter use.
The particulars of the Council’s case against Mr Menzies are that:
(a)since 30 September 1996, Mr Menzies has been the sole director and secretary of Gold Coast Leisure Services Pty Ltd;
(b)Mr Menzies knew, or ought reasonably to have known, that Gold Coast Leisure Services Pty Ltd’s conduct constituted an offence against ss 163 and 165 of the Planning Act 2016;
(c)Mr Menzies was in a position to influence Gold Coast Leisure Services Pty Ltd’s conduct that constituted the offences against ss 163(1) and 165 of the Planning Act 2016; and
(d)Mr Menzies committed commensurate offences against s 227 of the Planning Act 2016.
The Council first alerted Gold Coast Leisure Services Pty Ltd of its concerns about the lawfulness of the use of the Premises in a letter dated 31 October 2019.
On 19 February 2020, Gold Coast Leisure Services Pty Ltd and Mr Menzies notified the Council that they believed that the Council’s investigations were proceeding on an incorrect basis. The letter explained, in detail, the basis for their belief that:
(a)the Premises are not part of the Council’s local government area; and, as such,
(b)the use of the Premises is not regulated by the Council’s successive planning schemes.
On 10 August 2020, the Council gave Gold Coast Leisure Services Pty Ltd a show cause notice under s 167 of the Planning Act 2016. The notice invited Gold Coast Leisure Services Pty Ltd to show cause why action should not be taken with respect to the alleged unlawful use of the Premises.
By letter dated 22 September 2020, Gold Coast Leisure Services Pty Ltd responded to the show cause notice. The letter notified the Council that Gold Coast Leisure Services Pty Ltd believed that the Council’s investigations were proceeding on an incorrect basis in that:
(a)the Premises are not part of the Council’s local government area and, as such, the use of the Premises is not regulated by the Council’s successive planning schemes; and
(b)the use of the Premises commenced from late 1988 and is an existing lawful use protected by ss 260 and 290 of the Planning Act 2016.
The letter included detail about the nature and extent of the asserted existing lawful use, including that it commenced in 1988.
On 20 March 2023, the Council filed its Originating Application commencing this proceeding.
Despite the response to its show cause notice, in the intervening two and a half years before the Council commenced this proceeding alleging the use commenced in 1998, the Council appears to have done little to investigate the nature and extent of the use between 1988 and 1998.
Prior to the commencement of the hearing, the Council filed the affidavits and evidentiary certificates upon which it intended to rely to prove its case. The only evidence that addressed the scale and intensity of the aircraft activity conducted from the Premises is in two affidavits of Susan Olive Donovan. Ms Donovan’s evidence only attests to her impression of an increase in the intensity in around 2018, coincident with the introduction of a new passenger terminal. She does not identify the baseline that informed her impression of an increase. For example, she does not explain whether the quantum of helicopter movements observed by her were greater than that observed by her in the month prior to the introduction of the new passenger terminal, or greater than the activity at any time since 1988.
After receipt of the Council’s evidence, in accordance with an order of this Court, Gold Coast Leisure Services Pty Ltd and Mr Menzies filed a Statement of Facts, Matters and Contentions on 27 July 2023. They subsequently filed the various affidavits on which they rely.
As one would expect, the Statement of Facts, Matters and Contentions responds to the case particularised by the Council in its Originating Application. It appears from the structure and content of the evidence filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies that the affidavits were also prepared in response to the Council allegations in its Originating Application.
The evidence filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies includes extensive detail about the use conducted on the Premises. Leaving aside the further evidence tendered during the hearing and the oral evidence of Mr Menzies, that evidence supports the position consistently maintained by Gold Coast Leisure Services Pty Ltd and Mr Menzies about the commencement of use in 1988 and the absence of an intensification at the times alleged by the Council.
Even though the Council had no evidence to counter that filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies about many issues that are fundamental to its case, such as the commencement of use in 1988, the Council did not apply to amend its Originating Application.
On 18 December 2023, after most of the evidence had been filed and almost two months prior to the commencement of the hearing, the Council filed written submissions. On 5 February 2024, the Council filed submissions in reply to the Respondents’ submissions. The Council also filed closing written submissions. Through its submissions, the Council attempts to advance a materially differently case. It relies on the evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies to allege differently particularised offences.
The Council has the onus of demonstrating that the relief it seeks should be granted. In this case, that is a herculean task given the use in questions spans a period during which the use was governed (or potentially governed) by:
(a)five different legislative regimes, namely:
(i)the Local Government Act 1936;
(ii)the Local Government (Planning and Environment) Act 1990;
(iii)the Integrated Planning Act 1997 (Qld);
(iv)the Sustainable Planning Act 2009 (Qld);
(v)the Planning Act 2016; and
(b)four planning schemes, namely:
(i)the 1982 Planning Scheme;
(ii)the 1994 Planning Scheme;
(iii)Gold Coast Planning Scheme 2003 (“the 2003 Planning Scheme”); and
(iv)Gold Coast City Plan 2016 (“City Plan 2016”).
The task is made even more difficult in circumstances where the Council concedes existing lawful use rights associated with the start of the use about a decade earlier than it alleges the use commenced.
Against that background, it must be remembered that the relief sought by the Council is discretionary. Even if the Council establishes all its allegations about unlawful use, the Court must still ask itself whether, in the exercise of the discretion, the declarations and enforcement orders should be made. Here, that question is to be answered in a context where there are compelling discretionary considerations that militate against the grant of the relief. They include the following four considerations.
First, the declaratory relief lacks utility. No consequential orders are sought, and the declarations are not a necessary precursor to the enforcement orders sought. The power to grant an enforcement order under the Planning Act 2016 is not contingent upon declarations being made.
Second, relief in the form of enforcement orders is sought against Mr Menzies who has been named as a respondent to this proceeding even though the Council, by its Originating Application, does not allege Mr Menzies has committed a development offence.
Third, there has been considerable delay by the Council in commencing this proceeding. The Council provides no reasonable explanation for the delay between the issue of the show cause notice on 10 August 2020 and the filing of this proceeding on 20 March 2023. Further, it is reasonable to infer, from correspondence dated 13 April 2005, that the Council has been aware of the use for about two decades. In the correspondence, the Council describes the use by Gold Coast Leisure Services Pty Ltd as “a business activity being in operation on or before 1 March 1995”. The evidence also demonstrates that the Council has previously utilised, and continues to utilise to date, the aircraft services offered by Gold Coast Leisure Services Pty Ltd and Mr Menzies.
Fourth, Gold Coast Leisure Services Pty Ltd has conducted the use of the Premises for over 35 years. Across that time Gold Coast Leisure Services Pty Ltd and Mr Menzies have demonstrated a commitment to operating lawfully. They have done so by acting in accordance with various types of approvals that they have obtained, such as those authorising environmentally relevant activities and approvals for tidal works when constructing the new passenger terminal. In those circumstances, even if the Council could make out the alleged breaches of the law, it is apparent that any such breaches were not the product of a wilful and contumelious disregard of the law.
Ultimately, the Council has failed to discharge its onus in the proceeding in relation to any of the disputed allegations in its Originating Application. The markedly different case advanced by the Council in its submissions does not assist the Council in its quest for relief either. I am not persuaded that the Council should be permitted to advance a different case, nor am I persuaded that such a case has merit in any event. Even if there was merit to the Council’s particularised case, or its more recently manufactured case, there are strong discretionary considerations that militate against the grant of relief it seeks. As such, I am more than comfortably satisfied that the Council’s Originating Application should be dismissed. My reasons follow.
What is the relief sought by the Council?
The prayer for relief in the Originating Application records that the Council seeks the following declarations and orders in respect of parts of Lot 5332 on SP185259, Lot 534 on SP 223393 and Lot 524 on WD 6023:
“1.pursuant to section 11(1) of the Planning and Environment Court Act 2016 (Qld) (P&E Court Act), a declaration that the First Respondent:
(a)is committing a development offence contrary to section 165 of the Planning Act 2016 (Planning Act), by using the Premises for the arrival and departure of helicopters, hangaring, servicing, refuelling and maintaining helicopters, passenger terminal, café and related aviation facilities (Helicopter Use), which is not a lawful use of the Premises;
(b)a development offence contrary to section 163(1) of the Planning Act, in that between August 2017 and November 2018 it carried out assessable development without a development permit in effect, such development comprising a material increase in intensity and scale of the use of the Premises resulting in the Helicopter Use;
2.pursuant to section 11(1) of the P&E Court Act, a declaration that the Second Respondent has committed an offence against section 227 of the Planning Act by not taking all reasonable steps to ensure the First Respondent did not engage in the conduct described in paragraph 1 above;
3.pursuant to section 180 of the Planning Act, an enforcement order requiring the Respondents to cease and not resume using the Premises for ‘Air services’ (including any ancillary uses), as that term is defined in the Applicant’s City Plan 2016, unless and until authorised by a development permit for material change of use;
4.orders pursuant to section 61(1) of the P&E Court Act that the Respondents pay the Applicant’s costs of and incidental to the application, including costs to investigate and gather evidence; and
5.such further declarations and orders the Court deems fit.
The grounds of the Originating Application:
(a)notify Gold Coast Leisure Services Pty Ltd and Mr Menzies of the particulars of the alleged development offences under ss 163 and 165 of the Planning Act 2016 and the offence under s 227 of the Planning Act 2016; and
(b)are critical to ensuring that Gold Coast Leisure Services Pty Ltd and Mr Menzies have reasonable notice about the allegations made against them and inform them of the case that they must gather evidence to meet.
During final submissions, the Council tendered a draft order that records the form of orders now sought. It contains some concessions. Of greatest significance is that the Council no longer seeks to immediately restrain further use of the Premises. Rather, the orders contemplate that use of the Premises can continue while attempts are made to regularise the use through a development application made to the Council
What is the nature of the proceeding?
As would be apparent from the relief sought, set out in paragraph [39] above, the Originating Application incorporates two types of proceeding: a declaratory proceeding and an enforcement proceeding.
It is convenient to dispose of that part of the proceeding that seeks declaratory relief at the outset.
What are the relevant legal principles for declaratory proceedings?
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.
With respect to the form of any declaration that is sought, in Brassgrove KB Pty Ltd v Brisbane City Council,[2] I observed:[3]
“[19] … the party seeking relief should assist the Court by identifying, with precision, the declaration sought. It is necessary to pay close attention to the form of proposed declarations.[4] It is not sufficient to indicate in general terms that a declaration is sought and to avert broadly to aspects of its content. The declaration should reflect the matter in issue in a concise and accurate way to establish conclusively the situation that exists between the parties. The party seeking the declaration needs to persuade the Court that the subject declaration should be made. Relevant to that question is whether the declaration is framed as a conclusive determination based on a concrete and established or agreed situation that quells a controversy and gives rise to a binding decision between the parties.[5] Alternatively, the party seeking the declaration might demonstrate that there is some other utility to the grant of a declaration in the terms sought.”
[2][2019] QPEC 42; [2020] QPELR 119.
[3]Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, 123-4 [19].
[4]Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].
[5]Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, 355-7 [45]-[49].
The relevant legal principles governing the exercise of this type of statutory power are helpfully set out by Bond J in Nerang Subdivision Pty Ltd v Hutson,[6] which analysis I recently adopted in Baxter v Preston & Ors.[7] In essence:
(a)there must be a real controversy for determination before a declaration should be made;
(b)the question must be a real question and not a theoretical question; and
(c)in considering whether a declaration should be granted, regard is had to whether its grant would serve any useful purpose.
[6][2020] QSC 225, [40]-[45].
[7][2021] QPEC 69; [2023] QPELR 244, 269-71 [118]-[127].
The power to grant declaratory relief is wide and its exercise is discretionary.[8]
[8]Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 20-1.
Where the relief sought concerns alleged criminal or regulatory conduct, care should be taken in exercising the discretion.
In Commonwealth v Sterling Nicholas Duty Free Pty Ltd,[9] Menzies J observed:[10]
“… The court has, I think, a wide discretion in determining whether or not to make declarations and would, of course, take into account, in an appropriate case, the principle that, in general, matters of criminal law should be dealt with at trials for alleged offences.”
[9][1972] HCA 19; (1972) 126 CLR 297.
[10]Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297, 311.
In Sankey v Whitlam & Ors,[11] Gibbs ACJ observed:[12]
“… The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities: properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. …”
[11][1978] HCA 43; (1978) 142 CLR 1.
[12]Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 25.
In that same case, Stephen J observed:[13]
“… whether the Court should exercise its discretion to grant declaratory relief in this case gives rise to a more acute problem. In Forster v Jojodex Aust. Pty Ltd,[14] Gibbs J, with whose judgment on this point McTiernan and Stephen JJ and I agreed, referred to Lord Radcliffe’s observation in Ibeneweka v Egbuna[15] that “the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”.”
[13]Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 81.
[14](1972) 127 CLR, at p 438.
[15][1964] 1 WLR, at p 225.
The reason for caution was expressed well by Forbes J in Thorpe v Head, Transport for Victoria & Ors.[16] Forbes J explained that the fundamental reason for caution is that of fairness and justice. The protections afforded to an accused person by criminal procedures are absent in declaratory proceedings.[17]
[16][2021] VSC 750; (2021) 66 VR 56.
[17]Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750; (2021) 66 VR 56, 71 [44].
The absence of relevant protections afforded to an accused person by criminal procedures is evident in this case. In a criminal trial, it is only after the prosecution has adduced all the evidence it intends to in its case and after it closes its case that the person accused of committing offences is asked if he or she intends to give evidence or call witnesses. There is no obligation to do so. The accused is entitled to insist that the prosecution prove the case against him or her if it can. In contrast to that situation, in this case His Honour Judge Rackemann made orders on 10 May and 23 June 2023 that effectively called on Gold Coast Leisure Services Pty Ltd and Mr Menzies to respond to the Council’s case, even though the Council had not closed its case.
Are there fundamental difficulties with the Council’s Originating Application?
In paragraphs 1 and 2 of the prayer for relief in the Originating Application, the Council seeks declarations pursuant to s 11(1) of the Planning and Environment Court Act 2016. The declarations sought are set out in paragraph [39] above.
In the Originating Application, the Council does not identify, with precision, the nature of the Court’s declaratory jurisdiction that it seeks to invoke. However, in the Applicant’s Outline of Submissions,[18] the Council says that the proceeding is sought to be brought under s 11(1)(c) of the Planning and Environment Court Act 2016, which states:
“11General declaratory jurisdiction
(1)Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
…
(c)the lawfulness of land use or development under the Planning Act.”
[18]Court Doc. No. 44.
No consequential relief is sought under s 11(4) of the Planning and Environment Court Act 2016.
Before turning to the substantive issues in dispute, it is convenient to first dispose of two disputed issues that relate to the nature of the allegations and relief sought, namely:
1.Is the type of declaratory relief sought appropriate?
2.Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies?
As I have foreshadowed in paragraph [38] above, the Council has failed to establish a foundation for the relief that it seeks. In those circumstances, it is unnecessary to decide these issues. However, I consider it prudent to deal with them briefly. This is because the issues were pursued with vigour by the Council. Extensive time and resources were dedicated to litigating these issues, including valuable court time. The Council insisted on maintaining the issues, even in the face of my query about whether they were real issues in the proceeding. In addressing these issues, I hope that in future the Council, and others seeking relief for unlawful uses, will reflect carefully on these reasons and consider their obligations under s 10 of the Planning and Environment Court Act 2016.
Is the type of declaratory relief sought appropriate?
Gold Coast Leisure Services Pty Ltd and Mr Menzies contend that the declaratory relief sought by the Council lacks utility in that:
(a)no consequential orders are sought; and
(b)the declarations are unnecessary as the power to grant an enforcement order under the Planning Act 2016 is not contingent upon a declaration being made about the commission, or likely commission, of a development offence.
Further, they say that, in any event, the Court should exercise its discretion and refuse to make the declarations.
It is uncontroversial that the Council does not seek consequential orders and that the declarations it seeks are not an essential pre-condition for the enforcement orders it seeks.
Despite that, the Council pursued the declarations, asserting that they have utility. The Council advances seven reasons to justify the grant of the declaratory relief it seeks.
First, the Council submits that the making of declarations in conjunction with enforcement orders is plainly within the contemplation of s 11(1)(c) of the Planning and Environment Court Act 2016. I reject this submission.
Declaratory relief and enforcement orders are two separate and distinct types of proceeding. The former is the subject of s 11 of the Planning and Environment Court Act 2016. The latter is the subject of s 180 of the Planning Act 2016. The enforcement order provisions have within them the mechanism for determining unlawfulness. As such, a declaration is wholly unnecessary.
The purpose of the two types of proceeding also differs. The purpose of a declaratory proceeding is to quell a legitimate controversy between parties. For example, a declaratory proceeding may be commenced by a person who is being subjected to continual harassment by another person about the legality of their use of land. The purpose of an enforcement proceeding is to obtain enforcement orders that require a person to refrain from committing a development offence or remedy the effect of a development offence in a stated way.
In addition, there is a material difference between a determination of the lawfulness of land use and a declaration by a civil court that an offence has been committed. The latter is, as a matter of orthodox legal principle, an exceptional step for a Court to take.
Second, the Council submits that the declarations have utility even though they are not necessary to obtain an enforcement order. It says that it has long been recognised at the highest level in Australia that it is appropriate to make declarations concerning the contravention of statutory provisions notwithstanding that penalties are also imposed for the contraventions.
In support of this submission, the Council observes that in Rural Press Limited & Ors v Australian Competition and Consumer Commission,[19] the plurality of Gummow, Hayne and Heydon JJ (with whom Gleeson CJ, Callinan and Kirby JJ agreed in the result) observed:[20]
“… there is some utility in the particular circumstances of these appeals in making the declarations to which the parties consent. The degree to which the Commission succeeded has changed from stage to stage of these proceedings, and it is convenient to have set out in the declarations not only the basis for the primary liability and accessorial liability found, but also the basis for the penalties ordered as it must now be understood.”
(underlining as added by the Council)
[19][2003] HCA 75; (2003) 216 CLR 53.
[20]Rural Press Limited & Ors v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 92 [95].
The Council’s submission overstates the effect of the judgment. The underlining added by the Council reflects its misapprehension about the effect of the observations of the plurality. The High Court did not, as submitted by the Council:
(a)recognise, as a matter of principle, that it is appropriate to make declarations concerning the contravention of statutory provisions notwithstanding that penalties are also imposed for the contraventions; or
(b)endorse, as a matter of course, the making of declarations as to contraventions of the Trade Practices Act 1974 (Cth) in circumstances where penalty orders are also made, and injunctions are granted by the trial judge for contravention of the Trade Practices Act 1974.
Although the High Court made declarations in Rural Press Limited & Ors v Australian Competition and Consumer Commission,[21] that was because the declarations had utility in that case. Their utility was in providing clarity about the basis on which the High Court found there was primary liability and accessorial liability and to provide clarity about the basis on which the High Court determined that penalties should be ordered. The reasons for judgment explain that the additional clarity provided by the declarations was of utility because the degree to which the Australian Competition and Consumer Commission had succeeded in the relief it sought varied from stage to stage of the proceedings. That type of consideration does not arise here. This is not an appeal from another Court.
[21][2003] HCA 75; (2003) 216 CLR 53.
This case also differs in that, unlike in Rural Press Limited & Ors v Australian Competition and Consumer Commission,[22] the declarations are opposed. In Rural Press Limited & Ors v Australian Competition and Consumer Commission,[23] the declarations were not opposed. They replaced earlier declarations that were made by consent and that the plurality regarded as “a bad precedent” and “of a kind which the trial judge should not have agreed to make even if urged to do so by the parties”.[24]
[22][2003] HCA 75; (2003) 216 CLR 53.
[23][2003] HCA 75; (2003) 216 CLR 53.
[24]Rural Press Limited & Ors v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [93].
The other authorities to which the Council refers also provide no material assistance. They only serve to demonstrate that other Courts have made declarations in different circumstances under different legislative regimes.
The Council’s third argument is that, in relation to proceedings of a regulatory or public interest nature, declarations serve an important function of informing not only the parties, but also the public, of the type of conduct that has been held by the Court to be a contravention of a statutory provision.
In support of this proposition, the Council refers to the decision of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2),[25] which the Council says contains a comprehensive review of the relevant authorities.
[25][2015] NSWLEC 114.
While the Council cites many paragraphs from Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2),[26] it did not draw my attention to the fact that declarations of the very kind sought by the Council in this case were specifically deprecated in that decision. Relevantly, Biscoe J said:[27]
“[216] “It would be wrong in civil proceedings to make a finding, let alone a declaration, that the respondent is “guilty” of an “offence” against planning or environmental legislation. However, the authorities that I have reviewed demonstrate that there is no vice in such civil proceedings in declaring, subject to the usual discretionary considerations, that the respondent has breached such legislation.”
[26][2015] NSWLEC 114.
[27]Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, [216].
Here, the Council seeks declarations that Gold Coast Leisure Services Pty Ltd has committed offences.
In any event, even if I were to accept that the New South Wales authorities demonstrate that, in certain cases, there may be utility to declarations by reason of them having a deterrent or educative element, this is not a compelling reason to make the declarations in this case. There is no evidence that the alleged offending is symptomatic of a broader issue about which the public requires education. Further, to the extent that education of the public is required, or the conduct requires public denunciation, that can be achieved by the Court making findings in the reasons for judgment, which is a publicly accessible document.
Fourthly, the Council disputes the submissions made by Gold Coast Leisure Services Pty Ltd and Mr Menzies that the courts are ordinarily reticent to grant declaratory relief in respect of alleged criminal or regulatory conduct. The Council notes that such a result was obtained in Sankey v Whitlam & Ors.[28] The Council also asserts that the different procedural protections between criminal and civil proceedings is not a significant consideration militating against the granting of declaratory relief in relation to such issues. The Council contests the relevancy of such considerations at all.
[28][1978] HCA 43; (1978) 142 CLR 1,
I do not accept the Council’s submissions.
The basis on which the Council contests the relevancy of the different procedural protections between criminal and civil proceedings to the exercise of the discretion is unclear. Their submissions provide no assistance in that regard.
In any event, the authorities are replete with references to the reluctance of Courts to make declarations about matters that fall to be determined in a criminal proceeding, including those matters that only touch on considerations that may be live in a criminal case.
When granting relief in Sankey v Whitlam & Ors,[29] Gibbs ACJ said that in cases seeking a declaration on questions of evidence or procedure that might otherwise fall for determination in a criminal proceeding, “the circumstances must be exceptional to warrant the grant of relief”.[30]
[29][1978] HCA 43; (1978) 142 CLR 1,
[30]Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 26.
In Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd,[31] Young JA expressed it this way:[32]
“[135] As a general rule (though there are notable exceptions), courts in their discretion do not make declarations that a person has committed a criminal offence. The cases make it clear that there is jurisdiction to make such a declaration (see eg Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 20). However, time and time again courts have stressed that it is only in exceptional cases that declarations that a person has committed a crime may be made; see eg Crane v Gething [2000] FCA 45; (2000) 97 FCR 9 at 20; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 esp per Kirby J at 658.”
[31][2009] NSWCA 160; (2009) 167 LGERA 395.
[32]Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395, 430 [135].
Fifth, the Council submits that there is obvious utility in making declarations to the effect sought if, for whatever reason, the Court is not prepared to make the enforcement orders sought by the Originating Application yet is otherwise satisfied that the alleged development offences have occurred or that the use of the Premises is unlawful.
In support of the submission, the Council refers to the observation of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) as follows:[33]
“[217] … But where remedies other than a declaration are inapplicable or inadequate to address a serious breach of environmental or planning legislation, it would generally be regrettable, I suggest, if the applicant had to leave court without a remedy save for a costs order in establishing a rather barren victory. This echoes the view taken by the High Court in a different context in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ... at 581 - 582, 597.”
[33]Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, [217].
The Council submits that similar utility would arise in making clear the basis for the making of enforcement orders given two development offences are alleged. It says that declaratory orders would make plain whether one, or both, of the development offences gave rise to the making of any enforcement orders.
These submissions are not compelling. Here, there are remedies that would address a serious breach of planning legislation, were it established. They are enforcement orders made under s 180 of the Planning Act 2016. It will be clear from my reasons for judgment what findings inform any enforcement orders that I make.
Sixthly, the Council submits that it should be clear beyond debate that the declarations are not sought in this case for any symbolic reason.
I do not accept that submission. The grounds on which the enforcement orders are sought against Gold Coast Leisure Services Pty Ltd are the same as those that found declarations. The real purpose of the declarations remains unclear to me.
Finally, the Council submits that the authorities demonstrate that there is no persuasive reason why declarations to the effect sought by the Originating Application should not be made.
This misstates the question to which I must turn my mind. The relief is discretionary. The onus is on the Council to persuade me that the relief should be granted. The Council has not discharged the onus.
Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies?
The prayer for relief in the Originating Application seeks three forms of relief in relation to Mr Menzies. They are:
(a)a declaration under s 11(1) of the Planning and Environment Court Act 2016 that Mr Menzies has committed an offence against s 227 of the Planning Act 2016 by not taking all reasonable steps to ensure that Gold Coast Leisure Services Pty Ltd did not commit offences under ss 163 and 165 of the Planning Act 2016;
(b)an enforcement order under s 180 of the Planning Act 2016 requiring Mr Menzies to cease and not resume using the Premises for “Air services”, including any ancillary uses, as that term is defined in City Plan 2016, unless and until authorised by a development permit for material change of use; and
(c)an order under s 61(1) of the Planning and Environment Court Act 2016 that Mr Menzies pay the Council’s costs of and incidental to the application, including costs to investigate and gather evidence.
Is there a difficulty with the first form of relief sought with respect to Mr Menzies?
The Council no longer pursues the first form of relief. There is no such declaration against Mr Menzies in the draft form of orders provided by the Council at the end of the hearing.
Even if the Council were pursuing that relief, I would not be minded to grant it. The declaration framed by the Council is not within the Council’s jurisdiction under s 11(1)(c) of the Planning and Environment Court Act 2016.[34] It is not a declaration about “the lawfulness of land use or development under the Planning Act 2016”. It is a declaration about the lawfulness of the conduct of an identified person, namely Mr Menzies, under executive officer liability provisions.
[34]This is the provision that the Council identifies as the applicable provision in the Applicant’s Outline of Submissions: Court Doc. No. 44 [16].
Is there a difficulty with the second form of relief sought with respect to Mr Menzies?
As is apparent from the grounds of the Originating Application, the particulars of the Council’s case to justify its second form of relief are identified in paragraph [17] above. Those particulars bear repeating here. They are:
(a)since 30 September 1996, Mr Menzies has been the sole director and secretary of Gold Coast Leisure Services Pty Ltd;
(b)Mr Menzies knew, or ought reasonably to have known, that Gold Coast Leisure Services Pty Ltd’s conduct constituted an offence against ss 163 and 165 of the Planning Act 2016;
(c)Mr Menzies was in a position to influence Gold Coast Leisure Services Pty Ltd’s conduct that constituted the offences against ss 163(1) and 165 of the Planning Act 2016; and
(d)Mr Menzies committed commensurate offences against s 227 of the Planning Act 2016.
Mr Menzies position as the sole director and secretary of Gold Coast Leisure Services Pty Ltd since 30 September 1996 is not disputed.
The case against Mr Menzies was clearly set out in paragraph 24 of the Originating Application. The Council does not assert that Mr Menzies committed an offence against ss 163 or 165 of the Planning Act 2016.[35] Rather, the Council asserts that Mr Menzies “knew, or ought reasonably to have known, that the First Respondent’s conduct constituted an offence” against each of ss 163 or 165 of the Planning Act 2016 and that he “was in a position to influence the First Respondent’s conduct that constituted the offences against those provisions”. Those phrases are taken directly from s 227(2) of the Planning Act 2016.
[35]cf. the allegations about Gold Coast Leisure Services Pty Ltd in paragraph 23 of the Originating Application.
Section 227 of the Planning Act 2016 states:
“227 Executive officer must ensure corporation complies with Act
(1)An executive officer of a corporation commits an offence if—
(a) the corporation commits an offence against an executive liability provision; and
(b) the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.
Maximum penalty—the penalty for a contravention of the executive liability provisions by an individual.
(2)When deciding whether things done or omitted to be done by the executive officer constitute reasonable steps for subsection (1)(b), a court must consider—
(a) whether the officer knew, or ought reasonably to have known, of the corporation’s conduct constituting the offence against the executive liability provision; and
(b) whether the officer was in a position to influence the corporation’s conduct in relation to the offence against the executive liability provision; and
(c) any other matter that the court considers relevant.
(3)The executive officer may be proceeded against for, and convicted of, an offence against subsection (1) whether or not the corporation has been proceeded against for, or convicted of, the offence against the executive liability provision.
(4)This section does not affect—
(a) the corporation’s liability for the offence against the executive liability provision; or
(b) the liability, under the Criminal Code, chapter 2, of any person for the offence, whether or not the person is an executive officer of the corporation.
(5)In this section—
executive liability provision means—
(a) section 162; or
(b) section 163; or
(c) section 164; or
(d) section 165; or
(e) section 166(7); or
(f) section 168(5); or
(g) section 172; or
(h) section 176(5); or
(i) section 180(8).”
The matter is put beyond doubt by paragraph 24(c) of the Originating Application where the allegation is squarely put that Mr Menzies committed an offence against s 227 of the Planning Act 2016. No amendment has been sought, or made, to the Originating Application.
The Originating Application does not particularise a case based on the party provisions under s 7 of the Criminal Code, nor does it otherwise allege that Mr Menzies has committed offences under ss 163 and 165 of the Planning Act 2016.
Do the particulars matter or can the Council now advance a different case?
The particulars provided in the grounds for relief in originating processes are important. This is particularly so where, to grant the relief sought, the Court needs to be satisfied that the development offence has been committed or will be committed unless an order is made.
Rule 9 of the Planning and Environment Court Rules 2018 (Qld) requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought. That is how issues in dispute are defined as between the parties. It forms the record of the matters that the Court has been called to decide. It also gives a respondent fair notice of the case that it is to meet, thereby ensuring procedural fairness. That is particularly important where there are allegations about the commission of development offences.
A party is not entitled to simply rely upon any evidence that has been admitted in the trial and to seek any relief that may be available in accordance with the evidence without reference to the originating process. This is not an inquisitorial process.
An applicant should not ordinarily be permitted to raise allegations for the first time in its written submissions. The issues in a proceeding are not defined by written submissions but by the originating process. Again, this is an adversarial and accusatorial process, not an inquisitorial one.
In Baxter v Preston & Ors,[36] I made observations about the sufficiency of particulars. My observations are pertinent to this case given the Council’s attempt to use its submissions to advance a case that is materially different to that which it particularised in the Origination Application. In Baxter v Preston & Ors,[37] case, I observed:[38]
“[361] Rule 9 of the Planning and Environment Court Rules 2018 requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought.
[362]Where the proceeding seeks an enforcement order on the basis that a development offence has been committed, or a declaration that development has been carried out unlawfully, the originating process should identify the acts that constitute the alleged offence. That a degree of particularity is called for is apparent from four matters of context.[39]
[363]First, the foundation for the Court’s power to make an enforcement order is its finding that it is satisfied that the alleged offence has been committed or will be committed. As such, where the alleged development offence is that under s 163 of the Planning Act 2016, the Court must be able to identify the development in question to ascertain whether it is (or will be) assessable and whether all necessary approvals have been obtained with respect to it.
[364]Second, the particulars of the development offence inform the legitimacy of the relief sought. Under s 180 of the Planning Act 2016, the Court has power to make an order that requires a person to refrain from committing a development offence or to remedy the effect of a development offence. The particulars of the development offence must be sufficient to inform the “effect” of the development offence.
[365]Third, under s 180(7) of the Planning Act 2016, the Court must state the period for compliance with the order. The particulars must be sufficient to ascertain a period that is reasonable. For example, to determine a reasonable timeframe to comply with an order to remove unlawful fill will likely require an appreciation of the volume of fill the subject of the allegation.
[366]The fourth relevant contextual matter is that the making of an enforcement order can have significant consequences to the rights of landowners to deal with their land.[40] Unless the Court orders otherwise, an enforcement order, other than an order to apply for a development permit, attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises.[41] The order is to be recorded on the register for the premises by the registrar of titles.[42] Further, contravention of an enforcement order is a criminal offence for which punishment includes imprisonment.[43]
[367]Those features of the enforcement order regime support that the development offence which underpins the orders is to be identified with precision in the originating process. The originating process should provide sufficient detail to properly inform any respondent of the essential factual ingredients of the offence alleged to have been committed.[44]”
[36][2021] QPEC 69; [2023] QPELR 244.
[37][2021] QPEC 69; [2023] QPELR 244.
[38]Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, 324-5 [361]-[367].
[39]Sztal v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14]. See also SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ).
[40]The types of orders that can be made are outlined in s 180(5) of the Planning Act 2016, which is extracted at paragraph [126] above.
[41]Planning Act 2016 s 180(9).
[42]Planning Act 2016 s 180(10).
[43]Planning Act 2016 s 180(8).
[44]Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613.
Those observations were endorsed by Dalton JA (with whom Morrison JJA and Flanagan J agreed) in the Court of Appeal in Baxter v Preston & Ors.[45] Her Honour concurred with my observation that particulars of matters said to constitute an offence must be precise and detailed. Further, having extracted those paragraphs to which I refer above, Dalton JA observed that this discussion is a useful framework for analysis, not just in that case but more generally.[46]
[45][2022] QCA 146.
[46]Baxter v Preston & Ors [2022] QCA 146, [64] and [65].
Here, Gold Coast Leisure Services Pty Ltd and Mr Menzies have been called to respond to, and have responded to, the actual offences alleged, and particularised, in the Originating Application. The Court is not on a general search for evidence of the commission of any development offence. Rather, it is called upon to assess the actual development offence alleged in the way that it is actually alleged to have been committed. The evidence has now closed, and no application has been made to amend the Originating Application. The Council is bound by the case it has put in its Originating Application and that it has never sought to amend.
With those observations in mind, I return to the case with respect to Mr Menzies particularised in the Originating Application.
Is there a material defect with the Council’s pleaded case against Mr Menzies in relation to the second form of relief?
An enforcement order may only be made under s 180 of the Planning Act 2016 in relation to a development offence. An offence under s 227 of the Planning Act 2016 is not a development offence.
Development offences are those offences created in chp 5, pt 2 of the Planning Act 2016.[47] The offence in s 227 of the Planning Act 2016 is created in chp 5, pt 9 of the Planning Act 2016.
[47]Planning Act 2016 s 161.
As such, even if the Council establishes the offence under s 227 of the Planning Act 2016, that is not sufficient to found relief against Mr Menzies.
The Council’s case in this respect is fundamentally flawed.
Is there a difficulty with the third form of relief sought with respect to Mr Menzies?
The third form of relief sought with respect to Mr Menzies is an order for costs under s 61(1) of the Planning and Environment Court Act 2016, which states:
“61 Orders for costs for particular proceedings
(1)If, for an enforcement proceeding, the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person.”
A finding or declaration that Mr Menzies has committed an offence under s 227 of the Planning Act 2016 is insufficient to empower the Court to make a costs order against Mr Menzies under s 61(1) of the Planning and Environment Court Act 2016.
The Council’s case in this respect is fundamentally flawed.
Should the Council be permitted to advance a differently particularised case?
Gold Coast Leisure Services Pty Ltd and Mr Menzies put the Council on notice about the difficulties with its case against Mr Menzies prior to the commencement of the hearing and at least as early as 22 January 2024.[48] The Council elected not to amend its Originating Application, nor did it abandon that part of the proceeding that related to Mr Menzies.
[48]Court Doc. No. 47.
In its written submissions the Council impermissibly tries to expand its case against Mr Menzies. It asserts that Mr Menzies has committed and continues to commit offences under ss 163 and 165 of the Planning Act 2016 as a principal offender under s 7(1)(d) of the Criminal Code (Qld). The Council claims that Mr Menzies “counselled or procured” the commission of offences by Gold Coast Leisure Services Pty Ltd. This is not the case that the Council particularised in the Originating Application.
I do not accept the Council’s submission that it is entitled to now pursue a materially different case against Mr Menzies. In any event, the case against Mr Menzies can be disposed of in short measure.
Does the case that the Council now seeks to pursue against Mr Menzies warrant the grant of relief?
In the exercise of my discretion, I am not prepared to countenance making a finding that Mr Menzies has committed an offence against ss 163 or 165 of the Planning Act 2016 in circumstances where:
(a)the first time the Council suggested the commission of such an offence was in its written submissions;
(b)the Originating Application contains no allegation that Mr Menzies has committed an offence against ss 163 or 165 of the Planning Act 2016;
(c)the Council has not sought to amend the Originating Application, despite being notified of its defects;
(d)the evidence has closed;
(e)the Council’s allegation was first made after Mr Menzies elected to file evidence about a different allegation; and
(f)the Council now appears to be using the evidence adduced by Mr Menzies in response to the Council’s pleaded case to reframe a case that has, as its central feature, an allegation of criminal offending that has never previously been made.
Collectively these circumstances provide a compelling discretionary basis to refuse the relief sought against Mr Menzies.
Further, and in any event, the Council has not demonstrated that Mr Menzies is a principal offender for the offences under ss 163 and 165 of the Planning Act 2016. For reasons that I will come to, they have not established the commission of the offences at all. There is also no evidence of a “counselling” or a “procuring” of the relevant offence with the required state of mind for that mode of criminal liability.
As the Supreme and District Court Benchbook explains, “procuring” in s 7(1)(d) of the Criminal Code involves “more than mere encouragement; it entails successful persuasion”. As a mode of accessorial liability, s 7(1)(d) of the Criminal Code also requires proof of a positive desire to see the offence committed. Plainly, “counselling” involves convincing or persuading. There is no evidence of Mr Menzies counselling or persuading Gold Coast Leisure Services Pty Ltd to do anything. I am not prepared to infer such conduct, as urged by the Council, from the evidence that he is the sole director and secretary of Gold Coast Leisure Services Pty Ltd. The Council’s reliance on s 7(1)(d) of the Criminal Code is flawed and no offence can be proved against Mr Menzies on that basis.
The Council has not discharged its onus with respect to Mr Menzies. It has not persuaded me that any enforcement orders or declarations should be made against Mr Menzies. No costs order should be made against him either.
What is the relevant legislative context for enforcement proceedings?
Section 180(1) of the Planning Act 2016 confers a right to start proceedings in this Court for an enforcement order. “Enforcement order” is an order that requires a person to do either or both of the following:
(a)refrain from committing a development offence; and
(b)remedy the effect of a development offence in a stated way.[49]
[49]Planning Act 2016 s 180(2).
The Court’s power to make an enforcement order is enlivened if the Court considers a development offence has been committed; or will be committed unless the order is made.[50]
[50]Planning Act 2016 s 180(3).
In deciding whether to make an enforcement order, the Court has a broad discretion.
An enforcement order may, amongst other things, direct a person:
(a)to stop an activity that constitutes a development offence; or
(b)to do anything required to stop committing a development offence; or
(c)to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or
(d)to do anything to comply with the Planning Act 2016.[51]
[51]Planning Act 2016 s 180(5).
An enforcement order may be in terms that the Court considers appropriate to secure compliance with the Planning Act 2016.[52]
[52]Planning Act 2016 s 180(6).
The Court may make an enforcement order regardless of whether the development offence has been prosecuted.[53]
[53]Planning Act 2016 s 181.
The Council carries the onus of proving the commission of the offences alleged. The Council also carries the onus of proving the matters necessary to make good the enforcement orders it seeks and of persuading the Court that the orders should be made.[54]
[54]Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, 353 [22].
The making of an enforcement order has material consequences. A person who contravenes an enforcement order commits an offence punishable by up to 4,500 penalty units, or five times that for a corporation,[55] or two years imprisonment.[56] An enforcement order also attaches to the premises and is required to be registered on title within 10 business days of the order being made.[57] It can only be removed upon notice given to the Registrar of Titles that the enforcement order has been complied with.[58] For these reasons, the onus of proof is to be discharged according to the Briginshaw[59] standard informed by the gravity of the issues involved.[60]
[55]Penalties and Sentences Act 1992 (Qld) s 181B. Presently, a penalty unit is $154.80: Penalties and Sentences Regulation 2015 (Qld) s 3. As such, the maximum penalty is $696,600 for an individual and $3,483,000 for a corporation.
[56]Planning Act 2016 s 180(8).
[57]Planning Act 2016 ss 180(9) and (10).
[58]Planning Act 2016 ss 180(11) and (12).
[59]Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336.
[60]Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336; Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, 561-2 [14].
What are the offences in issue?
The case advanced by the Council in its Originating Application is that three offences have been committed. The Council did not plead a case that offences will be committed unless the order is made.
The Council alleges that Gold Coast Leisure Services Pty Ltd has committed offences under ss 163 and 165 of the Planning Act 2016. Each of these is a development offence under the Planning Act 2016.[61]
[61]Planning Act 2016 s 161.
The Council also alleges that Mr Menzies has committed an offence under s 227 of the Planning Act 2016. This is not a development offence under the Planning Act 2016.[62] As such, a finding of the commission of that offence cannot found an enforcement order.
What is the alleged offence under s 163 of the Planning Act 2016?
[62]Planning Act 2016 s 161.
The Council alleges that Gold Coast Leisure Services Pty Ltd has committed a development offence under s 163 of the Planning Act 2016, which states:
“163 Carrying out assessable development without permit
(1)A person must not carry out assessable development, unless all necessary development permits are in effect for the development.
Maximum penalty—
(a) if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or
(b) otherwise—4,500 penalty units.
(2)However, subsection (1) does not apply to development carried out—
(a) under section 29(10)(a); or
(b) in accordance with an exemption certificate under section 46; or
(c) under section 88(3).”
For this development offence, the Council must prove that:
(a)Gold Coast Leisure Services Pty Ltd carried out development;
(b)the development was assessable development;
(c)there was no development permit authorising the development; and
(d)the development was not carried out:
(i)under s 29(10)(a) of the Planning Act 2016; or
(ii)in accordance with an exemption certificate under s 46 of the Planning Act 2016; or
(iii)under s 88(3) of the Planning Act 2016.
The real issues in dispute between the parties about the alleged commission of an offence under s 163 of the Planning Act 2016 relate to:
(a)the development that is said to have been carried out; and
(b)whether the development was assessable development.
Ms Donovan says that she and her husband have owned a unit in Main Beach since 1989 and that she has been a resident of the area for a long time. She claims that she recalls that in around 2018 there were construction works at the Premises to construct a new building that includes a rooftop helipad. According to Ms Donovan, after that building was constructed, the number and frequency of helicopter flights from the Premises increased dramatically.
Ms Donovan says that during parts of December 2022 and January 2023 she spent days watching Helitours’ daily flights. She says that the most Helitours flights that she saw in one day during that period was about 35 flights on 31 December 2022. She says that she observed four Helitours helicopters flying on that day.
Ms Donovan says that the frequency of the flights that she observed on 31 December 2022 was about half of what she recalls was the daily frequency of flights in 2018, 2019 and early 2020. She says that during those years, flights occurred seven days a week and between 10 am and 4 pm, with four or five helicopters operating concurrently. She estimates that there were several hundred, and likely more than 500, flights per week during that time. Ms Donovan says that, as a conservative estimate, she observed a five-fold increase in the number of daily flights from Helitours from 2017 until the beginning of Covid-19 pandemic in March 2020.
According to the Council, this evidence from Ms Donovan is supported by Mr Menzies acceptance that there was a marked increase in flight movements at the same time but estimated the increase to be in the order of 50 to 100 per cent.
The Council submits that this evidence from Ms Donovan and Mr Menzies would, by itself and in conjunction with the introduction of the new passenger terminal, found a conclusion that there was a material increase in both the scale and the intensity of the use of the Premises.
Ms Donovan’s evidence does not advance the Council’s case to any meaningful degree. It simply confirms a matter that is not in dispute, namely that there was a Chinese tourism boom on the Gold Coast from around 2017 through to the beginning of the Covid-19 pandemic. As Mr Menzies explains, this was one of several periods that collectively represent the booms and busts (or ebbs and flows) of business over the last 30 plus years.
To the extent that Ms Donovan seeks to establish a connection between the increase in helicopter flights and the installation of the floating two-storey terminal in late 2017 or early 2018, I am not persuaded to accept her evidence. Her evidence is not admissible as opinion evidence. It amounts to no more than speculation by her given, unlike Mr Menzies, she is not privy to information that might enable her to draw an informed inference about the basis for the increase.
I am not otherwise persuaded to accept the evidence of Ms Donovan on which the Council relies. I have serious reservations about Ms Donovan’s credibility and reliability as a witness. There are many matters that cause me concern. They include the following five reasons.
First, Ms Donovan says that in 2018 there were construction works at the Premises to construct a new building that includes a rooftop helipad. This is contradicted by the evidence of Mr Menzies and photographic evidence that demonstrates that part of the new passenger terminal was constructed on a site next to Seaworld, lifted on a pontoon and pushed by a boat down the Broadwater, while the balance of the structure, including the pontoon, was constructed in a grassed area next to Mariner’s Cove.
Second, I have serious reservations about Ms Donovan’s opportunity to observe matters that she claims to have witnessed, such as the racial profile and identity of individuals visiting the Premises.
Third, it was evident from Ms Donovan’s oral testimony that she has a clear animus towards Mr Menzies’ business, yet in her affidavits she portrayed herself as objective observer. She has repeatedly expressed views about the legality, from a town planning perspective, of the use of the Premises by Gold Coast Leisure Services Pty Ltd.
Fourth, to the extent that Ms Donovan attests to noise impacts, I am not persuaded that the impacts of which she speaks are based on personal experience given the extent to which she expressed difficulty hearing while giving her evidence. She persistently indicated that she had difficulty hearing the questions asked of her, even at times where the volume of the speaker was deliberately elevated to assist her and when there were no distracting noises within the courtroom to which the difficulty might otherwise be attributed.
Fifth, and in any event, Ms Donovan’s survey evidence is entirely unscientific. She ultimately gave evidence of a single day of observations among ten. She chose only to report the busiest of those days and provided no data at all on the other days. Ultimately, her evidence about her observations of flights on New Years’ Eve takes matters in issue in this case essentially nowhere.
For the reasons provided above, even if I were to assume that the Council had demonstrated that between August 2017 and November 2018, Gold Coast Leisure Services Pty Ltd:
(a)constructed the two-storey passenger terminal in Lot 524 and used it for the arrival and departure of helicopters, the establishment of a café and a passenger terminal; and
(b)operated six helicopters from the Premises,
the Council has not demonstrated to the requisite standard that there was a change in operations facilitated by those changes, let alone a material one.
The Council has not satisfied me to the requisite standard that there was an increase in the scale or intensity of the use of the Premises between August 2017 and November 2018. Having regard to all aspects of the use of the Premises, the Council has not persuaded me that the increase in the extent of the built form equates to, or otherwise demonstrates, an increase in the scale or intensity of the use.
In paragraphs [212] to [245] above I set out my findings about the nature and extent of the use up to 1994. With respect to the use between 1994 and November 2018, I have had the benefit of the evidence of Mr Menzies, the evidence of other witnesses adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, and a myriad of photographs and aerial photographs. Having regard to all that evidence, and the reasonable inferences that can be drawn from a consideration of all that evidence, I am comfortably satisfied that between 1994 and November 2018, there was no change to the use of the Premises, let alone a material one.
Was the third alleged material change of use made assessable development under City Plan 2016?
The Council alleges that, for the purposes of the Planning Act 2016, the third alleged material change of use is assessable development under City Plan 2016.
Considering my findings above, it is unnecessary for me to determine that allegation to dispose of the Council’s case that Gold Coast Leisure Services Pty Ltd carried out assessable development without an effective development permit and, as such, breached s 163 of the Planning Act 2016. That said, whether a material change of use of the Premises was assessable under City Plan 2016 has potential relevance to the broader question of lawfulness of the use. As such, I deal with it below.
This allegation calls for consideration of the following questions for the period between August 2017 and November 2018:
1.What is assessable development under the Planning Act 2016?
2.What is the jurisdiction of a local government for the Planning Act 2016?
3.How was the Council’s local government area defined?
4.Are the premises located within the Council’s local government area as shown on area map LGB30 Edition 2?
5.Did City Plan 2016 make a material change of use of the Premises assessable?
What is assessable development under the Planning Act 2016?
The Council contends that the third alleged material change of use of the Premises between August 2017 and November 2018 constitutes “assessable development” for the purposes of the Planning Act 2016.
A categorising instrument may categorise development.[209]
[209]Planning Act 2016 s 44.
A categorising instrument is a regulation or local categorising instrument that:
(a)categorises development as prohibited, assessable or accepted development;
(b)specifies the categories of assessment required for different types of assessable development; and
(c)sets out the matters, known as assessment benchmarks, that an assessment manager must assess assessable development against,
or that does any of those things.[210]
[210]Planning Act 2016 s 43.
Relevantly, a local categorising instrument includes a planning scheme.[211] The Council does not allege that any other categorising instrument, other than City Plan 2016, categorises the use as assessable development in this case.
[211]Planning Act 2016 s 43(3).
A planning scheme is a planning instrument that sets out integrated State, regional and local planning and development assessment policies for all or part of a local government area.[212] A planning instrument includes a planning scheme made by a local government which sets out policies for planning or development assessment.[213]
[212]Planning Act 2016 sch 2 definition and s 4. See also Integrated Planning Act 1997 s 2.1.1, 2.1.2 and sch 10; Sustainable Planning Act 2009 ss 79, 82 and sch 3.
[213]Planning Act 2016 s 8 and sch 2 definition.
City Plan 2016 came into effect on 2 February 2016. Pursuant to s 286 of the Planning Act 2016, City Plan 2016 continued to have effect after the repeal of the Sustainable Planning Act 2009 and is taken to be a planning scheme for the Council’s local government area made under the Planning Act 2016.
As such, it is necessary to consider the jurisdiction of a local government for the Planning Act 2016.
What is the jurisdiction of a local government for the Planning Act 2016?
As I have already mentioned, all powers of local government derive from the State. The legislative mechanism by which the State conferred powers on local governments at the relevant time was the Sustainable Planning Act 2009 (with respect to the preparation of City Plan 2016), the Planning Act 2016, and the Local Government Act 2009.
The Planning Act 2016 does not define “local government” or “local government area”. The Acts Interpretation Act 1954 defines:
(a)“local government” to mean a local government under the Local Government Act 2009; and
(b)“local government area” to mean a local government area under the Local Government Act 2009.
It follows that the planning scheme made by a local government under the Local Government Act 2009 can categorise development as assessable development only for its local government area under the Local Government Act 2009.
Under the Local Government Act 2009, a local government’s local government area is that part of the State described by regulation to be a local government area.[214] As such, the power to define the boundaries of a local government area resides with the Governor in Council.
[214]Local Government Act 1993 s 16.
The concept of a planning scheme under the Planning Act 2016 is expressly tethered to “local government areas”.[215] Under the Planning Act 2016, the jurisdictional reach of a local government’s power is geographically confined by reference to its local government area except in very limited circumstances not applicable here.[216] As such, if the Premises does not fall within the Council’s local government area, then there is nothing for the Council to regulate under City Plan 2016.
[215]Planning Act 2016 s 4.
[216]Local Government Act 2009 ss 8 and 9.
How was the Council’s local government area defined?
A central issue in this case is whether the Premises are within the Council’s local government area between August 2017 and November 2018.
At the relevant time, the Local Government Act 2009 defined the concept of a “local government area” and provided that the boundaries of a local government area may be described by regulation.[217] As such, the power to define the boundaries of a local government area resides with the Governor in Council.
[217]Local Government Act 2009 s 8.
Subject to two exceptions, a local government may only exercise its powers within its local government area.[218] There is no suggestion that either of those exceptions are relevant in this proceeding.
[218]Local Government Act 2009 s 9.
At the relevant time,[219] the boundaries of local government areas were defined in the Local Government Regulation 2012 (Qld).[220] Section 6 of the Local Government Regulation 2012 relevantly provides:
(a)the boundaries of each local government area, and any divisions of the area, are shown on its area map mentioned in sch 1, column 3;
(b)to remove any doubt, it is declared that any part of a watercourse, including the land below the high-water mark of the watercourse, that is within the boundary of a local government area is part of the local government area; and
(c)a watercourse includes a canal, lake or river.
[219]The Local Government Regulation 2012 commenced on 14 December 2012.
[220]Section 16 of the Local Government Act 1993 (as passed) provided that a regulation may declare a part of the State to be a local government area. The Local Government Regulation 1994 (Qld) did not prescribe the local government area. However, pursuant to ss 753 and 757 of the Local Government Act 1993 (as passed), on the commencement day (being 26 March 1994), an area under the repealed Local Government Act 1936 as in force immediately before it was repealed (on 26 March 1994) became a local government area with the same name and class. See then the Local Government (Local Government Areas) Regulation 1995 (Qld) made under s 760 of the Local Government Act 1993 (as passed), which regulation commenced on 24 March 1995. It was amended on 20 September 1996. The amendments renamed the regulation as the Local Government (Areas) Regulation 1995 (Qld). On 1 September 2005, the Local Government (Areas) Regulation 2005 (Qld) commenced, repealing the Local Government (Areas) Regulation 1995. On 15 March 2008, the Local Government (Areas) Regulation 2008 (Qld) commenced repealing the Local Government (Areas) Regulation 2005.
Between 27 January 2012 and 27 March 2020, the Council’s local government area was defined by reference to area map “LGB30 Edition 2”.[221] This was the map that defined the Council’s local government area in the relevant period.
Are the premises located within the Council’s local government area as shown on area maps LGB30 Edition 2?
[221]Local Government (Operations) Regulation 2010 (Qld) Reprint No. 2C. This reprint incorporates the amendments made by Local Government (Operations) Amendment Regulation (No. 1) 2012 Subordinate Legislation 2012 No. 9, which commenced on 27 January 2012. Map LBG 30 edition 2 replaced LGB 30 edition 1 on that date. The Local Government (Operations) Regulation 2010 was repealed on 14 December 2012 and replaced by Local Government Regulation 2012 (Qld).
Area map LGB30 Edition 2 includes a red line that encloses a particular area. It is uncontroversial that the Premises are located within the red line on the map.
Area map LGB30 Edition 2 contains a notation that states:
“THE LOCAL GOVERNMENT AREA COMPRISES THE MAINLAND AND ALL ISLANDS ABOVE THE RESPECTIVE SEASHORES WITHIN THE ENCOMPASSED AREA”
(emphasis added)
In addition, at various locations on area map LGB30 Edition 2, proximate to the red line, the maps contain notations in red such as “by the river” and “by the E bdy of Lot”. There is a red arrow between the red font and various points of the red line.
Relevantly, area map LGB30 Edition 2 identifies that it is:
“[p]roduced to delineate the boundaries of the Local Government Area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act”.
The Council’s primary contention is that the Premises is within its local government area because there is reference in the 2016 Planning Scheme to the Broadwater.[222] It also submits that the location of the Premises within the red line is sufficient to establish that fact.[223]
[222]Applicant’s Outline of Submissions dated 18 December 2023 pp 28-9 [67] – [68].
[223]Applicant’s Response to the Respondent’s Written Submissions dated 5 February 2024.
I do not accept the Council’s submission for four reasons.
First, I do not accept the legitimacy of the Council’s approach. It misses the point. The Council cannot create its own jurisdiction. It can only operate within the powers given to it by the State. Although each of the Sustainable Planning Act 2009 and the Planning Act 2016 permitted a local government to adopt a planning scheme to regulate development, they only permitted this to occur in relation to the local government’s local government area. As such, it is necessary to consider how the Council’s local government area is defined. This requires consideration of the Local Government Act 2009, the Local Government (Operations) Regulation 2010, the Local Government Regulation 2012 and the relevant area map, not City Plan 2016.
Second, as is indicated on area map LGB30 Edition 2, the area map was produced to delineate the boundaries of the local government area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act 2003. That legislation provides important context that assists in construing the map. My observations in paragraphs [472] to [476] above apply with equal force here.
Like s 7 of the Local Government (Operations) Regulation 2010, s 6 of the Local Government Regulation 2012 states:
“(1)The boundaries of each local government area, and any divisions of the area, are shown on its area map mentioned in schedule 1, column 3.
(2)To remove any doubt, it is declared that any part of a watercourse, including the land below the high-water mark of the watercourse, that is within the boundary of a local government area is part of the local government area.
(3)A watercourse includes a canal, lake or river.”
Some of the methods employed in the production of area map LGB30 Edition 2 are described in paragraphs [612] to [614] above.
To construe area map LGB30 Edition 2 with reference to both the delineation of the local area boundary and the notation is entirely consistent with the Local Government Act 2009, the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012. The notation provides relevant information for defining the boundary of the Council’s local government area.
Third, the Council’s approach is contrary to orthodox principles of statutory construction. My observations in paragraph [477] above are equally apposite for area map LGB30 Edition 2, save that:
(a)the authorising laws for area map LGB30 Edition 2 are the Local Government Act 2009, the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012;
(b)the authorising laws do not contain a definition of seashore, other than in s 26 of the Local Government (Operations) Regulation 2010 and s 62 of the Local Government Regulation 2012, which, for the purpose of those sections, define “seashore” as:
“(a)the foreshore; or
(b)State land that—
(i) is above high-water mark at ordinary spring tides; and
(ii) is ordinarily covered by sand or shingle; and
(iii) is not subject to a licence, permit or other authority granted by the State under an Act.”
(c)“foreshore” is defined in the dictionary in sch 6 of the Local Government (Operations) Regulation 2010 and the dictionary in sch 8 of the Local Government Regulation 2012 to mean “land between the high-water mark and low-water mark during ordinary spring tides”;
(d)“high-water mark” is defined in s 99 of the Local Government Act 2009 to mean “the ordinary high-water mark at spring tides”;
(e)the definition of seashore in the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012 accords with the ordinary meaning of the word; and
(f)for part of the period in issue for the third alleged material change of use, the State, by regulation, chose to define the local government area by reference to area map LGB30 Edition 2. The State adopted a combination of the methods permitted under s 57 of the Survey and Mapping Infrastructure Act 2003 to define the Council’s local government area. They included the use of annotations describing natural features, including the notation limiting the local government area to “the mainland and all islands about the respective seashores”.
The terms “seashore”, “foreshore” and “high-water mark” are necessarily referential to areas of tidal influence; as opposed to areas that may not be such as lakes, and parts of canals and rivers. It is uncontroversial that the Premises are below the high-water mark.
Having regard to those matters, the Council has not satisfied me, to the requisite standard, that there is a sound basis to re-write area map LGB30 Edition 2 by deleting the text. To do so would not be to correct a grammatical or drafting error. It would fundamentally alter the meaning of the maps and, in doing so, confer additional jurisdiction on the Council.
As such, the Council has not persuaded me, to the requisite standard, that the local government area includes land that is not “above the seashore”.
Fourth, the Council has not persuaded me that the Premises is within the Council’s local government area by operation of ss 7(2) and (3) of the Local Government (Operations) Regulation 2010 and ss 6(2) and (3) of the Local Government Regulation 2012.
Further, and in any event, whether the Broadwater, and the Premises, is part of a watercourse is a question of fact. My observations in paragraphs [482] to [484] above are equally apposite here.
For the reasons provided above, the Council has not persuaded me, to the requisite standard, that:
(a)the Premises was in the local government area of the Council for the period within which the Council alleges the third material change of use was carried out; and
(b)City Plan 2016 applied to the Premises at the times that the local government area was defined by area map LGB30 Edition 2.
Did City Plan 2016 make a material change of use of the Premises assessable?
As I have already found, the Council has not discharged its onus to demonstrate that the Premises was, at all relevant times, in the Council’s local government area for City Plan 2016. As such, it is unnecessary for me to address whether the third alleged material change of use was made assessable development under City Plan 2016.
Was the use of the Premises a lawful use for s 165 of the Planning Act 2016?
The Council alleges that the use of the Premises was not a lawful use for s 165 of the Planning Act 2016. Fundamental to the Council’s case are its allegations that:
(a)between August and December 1998, Gold Coast Leisure Services Pty Ltd started assessable development, being the first alleged material change of use, without a development permit;
(b)between January 2010 and November 2011, Gold Coast Leisure Services Pty Ltd carried out assessable development, being the second alleged material change of use, without an effective development permit; and
(c)between August 2017 and November 2018, Gold Coast Leisure Services Pty Ltd carried out assessable development, being the third alleged material change of use, without an effective development permit.
For reasons provided above, the Council has not discharged its onus with respect to any of those allegations.
Further, and in any event, the evidence adduced by Gold Coast Leisure Services Pty Ltd comfortably persuades me that, at all relevant times, the use of the Premises was a lawful use. In that respect, I rely on my findings above and the following reasons.
There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between November 2011 and 1 February 2016.
On 2 February 2016, City Plan 2016 took effect.
Having regard to my findings above, I am satisfied that immediately before City Plan 2016 took effect:
(a)the relevant planning unit was the whole of the Premises; and
(b)there was an existing lawful use of the whole of the Premises for Aircraft Services,[224] which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to 1 February 2016.
[224]The lounge facilities in the new passenger terminal includes a café. It is unclear whether there was a café in its predecessor. That is of no consequence as the café is not a separate use. It is part of the Aircraft Services use.
As such, when City Plan 2016 took effect, the lawful use of the Premises was afforded protection under s 682 of the Sustainable Planning Act 1997.
There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between 2 February 2016 and 3 July 2017.
On 3 July 2017, the Sustainable Planning Act 2009 was repealed and replaced by the Planning Act 2016.
From 3 July 2017, the protection that had previously been afforded under ss 681 and 682 was continued by operation of s 290 of the Planning Act 2016 (which I have extracted at paragraph [168] above).
Having regard to my findings above, I am satisfied that, immediately before the Planning Act 2016 commenced:
(a)the relevant planning unit was the whole of the Premises; and
(b)there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to 2 July 2017.
That existing lawful use continued to be protected with respect to each change to City Plan 2016 made after 3 July 2017 by operation of s 260 of the Planning Act 2016.
I am also satisfied that there was no change to the intensity or scale of the use, as distinct to the built form or infrastructure utilised as part of the use, between August 2017 and November 2018. Nothing in the evidence causes me to doubt that the existing lawful use has continued, without abandonment, until now.
As such, I am comfortably satisfied that the use of the Premises was a lawful use for s 165 of the Planning Act 2016.
Conclusion regarding the Council’s allegations about the third alleged material change of use
Overall in relation to the third key issue, the Council has not satisfied me, to the requisite standard, that Gold Coast Leisure Services Pty Ltd:
(a)carried out assessable development without an effective development permit and, as such, breached s 163 of the Planning Act 2016; or
(b)used the Premises in circumstances where the use was not a lawful use and, as such, breached s 165 of the Planning Act 2016.[225]
[225]In forming my conclusions on this issue, I am mindful that the onus was on Gold Coast Leisure Services Pty Ltd and Mr Menzies to establish existing lawful use rights.
Key issue 4: Is the current use of the Premises a lawful use?
The Council’s case with respect to unlawful use of the Premises is particularised in the grounds at paragraph 23 of the Originating Application, which state:
“23.In the circumstances of:
(a)the First Helicopter MCU, and the failure to obtain a development approval for that development;
(b)the Second Helicopter MCU, and the failure to obtain a development approval for that development;and
(c)the Third Helicopter MCU, and the failure to obtain a development approval for that development;
(d)the Helicopter Use continuing on the Premises;
or any of those circumstances, the First Respondent has:
(e)committed a development offence under section 165 of the Planning Act; and
(f)will continue to commit that development offence unless enforcement orders are made.”
Having regard to my findings above, I am satisfied at all relevant times from January 1994 to now:
(a)the relevant planning unit was the whole of the Premises;
(b)there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to now; and
(c)the use of the Premises has never been abandoned, nor has there been a material change to the use.
I am comfortably persuaded that the use of the Premises is a lawful use.
Key issue 5: Do the discretionary considerations support, or tell against, the grant of the relief sought?
In light of my findings above, it is not necessary to dwell on discretionary considerations. It is sufficient to make the following observations.
First, I accept that the relevant principles are those outlined in the written outlines and submissions provided by the Council and Gold Coast Leisure Services Pty Ltd and Mr Menzies.
Second, the discretionary considerations in paragraphs [34] to [37] above tell against the grant of relief.
Third, the evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies persuade me of their good character and (corporate) citizenship. They have with strong ties to the community and, over the years, have regularly provided public and community services, without regulatory or safety incident. To the benefit of the community, these include police services, search and rescue, flood and fire emergency work, the rescue of sick and injured animals and the promotion of tourism on the Gold Coast.
Fourth, even though the use of the Premises has persisted for over three decades, no complaint was made about it until March 2019. The organized campaign of complaints, encouraged by Ms Donovan, appears to have spurred the Council to action. Even then, the Council did little to properly investigate the relevant issues. Its conduct was also dilatory. I am not persuaded that the explanation provided by the Council for the decades long delay in investigating this matter is adequate in this case given its level of awareness about the use. There is also no adequate explanation for the delay between the Council’s decision to give a show cause notice in 2020 and its commencement of this proceeding in 2023.
Fifth, although the Council catastrophises about a lack of regulation of the operation:
(a)there is no evidence of any problem with the operation; and
(b)it is wrong to suggest that the activities on the Premises are unregulated as:
(i)the fuel component is subject to the requirements of an environmental authority.
(ii)Gold Coast Leisure Services Pty Ltd must comply with the commands under the Environmental Protection Act 1994 (Qld) not to cause environmental harm or environmental nuisance (including that caused by noise or light pollution);
(iii)the pilots and aircraft are subject to regulation by the Civil Aviation Safety Authority; and
(iv)safety on the Premises is governed by the Work Health and Safety Act 2011 (Qld), which places stringent obligations on Gold Coast Leisure Services Pty Ltd to manage risk for its workers and anyone impacted by the operations of the business.
Sixth, the evidence demonstrates that Gold Coast Leisure Services Pty Ltd and Mr Menzies take care in determining the flight paths to avoid built up residential areas.
In the circumstances, I am comfortably persuaded that this is one of those rare cases where the discretionary factors powerfully compel the conclusion that, even if the Council had demonstrated that the use of the Premises was unlawful, the relief sought should not be granted.
Should Gold Coast Leisure Services Pty Ltd and Mr Menzies pay the Council’s costs?
In paragraph 4 of the prayer for relief in the Originating Application, the Council seeks the following relief:
“4.orders pursuant to section 61(1) of the P&E Court Act that the Respondents pay the Applicant’s costs of and incidental to the application, including costs to investigate and gather evidence.”
The grounds of the Originating Application do not further particularise the Council’s application for costs. The Council did not address its application for costs in its submissions.
It seems reasonable to infer that the Council’s application for costs is founded on an assumption that it will enjoy a level of success. It has not.
Nevertheless, I will hear from the Council about this aspect of its application.
If the Council persists in its application for costs, it is to file and serve any material that it seeks to rely on and written submissions not exceeding 10 pages in length with respect to its application for costs, by no later than 4 pm on 4 April 2024.
Conclusion
The Council has not discharged its onus with respect to the relief it seeks. In the circumstances, its application should be dismissed.
The matter will be listed for further hearing at 10 am on 10 April 2024 for the purpose of:
(a)hearing any application for costs that the Council persists with; and otherwise,
(b)hearing from the parties about any consequential relief or other matters arising.
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