Gavin v Sunshine Coast Regional Council - [2021] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217

PARTIES:

MICHAEL IVAN GAVIN
(first applicant)
JDL INVESTMENTS PTY LTD
ACN 611 912 808
(second applicant)
v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 511 of 2021
Appeal No 2659 of 2021
P & E No 125 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Applications for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Maroochydore – [2020] QPEC 63 (Cash QC DCJ)
Planning and Environment Court at Gympie – [2021] QPEC 2 (Cash QC DCJ)

DELIVERED ON:

8 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2021

JUDGES:

Fraser and Morrison JJA and North J

ORDERS:

1. Applications for leave to appeal refused.

2. The applicants pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the applicants constructed a building which was used contrary to s 162 and s 165 of the Planning Act 2016 (Qld) – where the building was used as an “accommodation building” instead of a “dwelling house” – where the Planning and Environment Court made orders to prevent further unlawful use of the building including orders compelling significant changes to the building – whether the orders were within power of the Planning and Environment Court

Planning Act 2016 (Qld), s 162, s 165, s 180
Planning and Environment Court Act 2016 (Qld), s 63

COUNSEL:

G J Gibson QC, with M McDermott, for the applicants
R J Anderson QC, with G J Barr, for the respondent

SOLICITORS:

Andrew Davis Planning Lawyers for the applicants
Heiner & Doyle for the respondent

FRASER JA: I have had the advantage of reading in draft Morrison JA’s reasons. Given the significance of the proper construction of s 180 of the Planning Act 2016 (Qld) I will explain in my own words why I agree with Morrison JA that the applicants’ challenge to order 5 made by the Planning and Environment Court should be rejected. In all other respects I agree with Morrison JA’s reasons, and I agree with the orders proposed by his Honour.
Order 5 is reproduced in [24] of Morrison JA’s reasons. In summary, that order variously directs the applicants (who were the respondents in the Planning and Environment Court) to remove and not reinstall, to remove and replace, or to permanently discontinue the use of and remove, specified parts of or items installed in a building, which the applicants had caused to be constructed. The circumstances in which the primary judge made the order are set out in detail in Morrison JA’s reasons. I will refer only to so much of that context as is necessary to explain my conclusion that the Planning and Environment Court was empowered to make order 5.
The applicants were found to have committed two development offences, each of which was alleged by the respondent Council and found…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] QCA 217
Decision Date: 8 October 2021

CaseChat Overview and Summary

In Gavin v Sunshine Coast Regional Council, the applicants, Gavin and JDL, contested the orders made by the Planning and Environment Court (P&E Court) against their use of a building in contravention of the Planning Act 2016 (Qld). The P&E Court had issued orders to prevent further unlawful use of the building and to compel significant changes to it, determining that it was being used as an "accommodation building" instead of a "dwelling house" as permitted under the Planning Scheme. The applicants challenged the legality of these orders, particularly those requiring physical alterations to the building, arguing that such alterations were beyond the power of the P&E Court since the offence pertained only to the building's use, not its construction.

The court examined whether the orders were within the P&E Court's power, focusing on the contention that the orders requiring physical changes to the building were excessive. The court noted that the trial judge had accepted that the building could be lawfully used as a dwelling house, albeit with unusual construction. The applicants had proposed limited alterations, indicating an implicit concession that physical changes were permissible. The court also highlighted that the trial judge's decision to impose stringent terms was driven by the applicants' deceitful conduct in constructing and using the building. The judge aimed to make it harder for the building to be used as an accommodation building, separate from the prohibition of its use as such. Despite the building's compliance with the Planning Scheme, the court upheld the necessity of these orders to ensure compliance with the Planning Act.

The court concluded that the orders were within the P&E Court's power, dismissing the appeal. The applicants had not identified any specific use of the building that would qualify as "accepted development" at first instance, and there was no evidence suggesting they intended to use the building for such purposes. Therefore, the court did not have the benefit of the P&E Court's consideration on these specific uses. Additionally, the court found that the failure to propose such uses meant no planning evidence was presented to support their feasibility in the building. The applicants' arguments concerning the scope and legality of the orders were thus deemed unsuccessful.

The court's final orders were to refuse leave to appeal and to direct the applicants to pay the respondent's costs of and incidental to the applications, to be assessed on the standard basis. This decision affirmed the P&E Court's authority to issue enforcement orders that include both prohibitions on unlawful use and requirements for physical alterations to ensure compliance with planning laws.

Orders

Orders of the court

1. Applications for leave to appeal refused.

2. The applicants pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Leaving aside the contentions concerned with the carve out for “accepted development”, I consider the orders to have been within power.Conclusion – Orders 1-4 For the reasons expressed above each of orders 1-4 are affected by the way in which the proceedings below were conducted and the fact that the relief underlying the contentions is relief that can and should be sought at first instance in the P&E Court and not inappropriately for the first time before this Court. For those reasons I would refuse leave to appeal in respect of orders 1-4.Consideration – Order 5 The essential contention in relation to order 5 is that it was beyond power to make orders requiring physical alterations to the building, as well as discontinuing the use of kitchens and laundry facilities on the first and second floors, when the only development offence was concerned with the use of the building and not its construction. Given that the learned trial judge accepted that the building could be lawfully used as a dwelling house, albeit that its construction was unusual for such a purpose, an order to carry out physical alterations was not within any of the provisions in s 180(2), (3), (5) and (6). I pause to note the competing positions that were put to the learned trial judge on this issue. The Council contended for an order compelling physical alterations to a greater degree than was eventually ordered.[41] Mr Gavin and JDL proposed an order requiring limited physical alterations, namely decommissioning the water sub-meters in all ensuited rooms in the premises, and removing the keyed internal locks from the stairwell doors.[42][41]AB 131 para 4.[42]AB 135 para 5. Thus it can be seen that, contrary to the position now taken, Mr Gavin and JDL effectively conceded that it was within power to make enforcement orders that required physical changes to the premises. I have referred above to the findings by the learned trial judge in relation to Mr Gavin, and his Honour’s assessment of whether Mr Gavin (and through him, JDL) could be trusted to comply with the PA. Mr Gavin’s deceitful approach towards the construction of the building and what he intended to use it for were the predominant reasons why the learned trial judge reached the conclusion that strong terms were necessary to ensure compliance with the PA, and Mr Gavin’s conduct in finally accepting that what he had done was wrong was “not such as to permit me to conclude he will, absent some strong incentive, comply with the PA in the future”.[43] His Honour concluded that it was necessary in order to secure compliance with the PA that terms be imposed “that would make it harder for the building to be used as an accommodation building”. That was a separate issue from the orders prohibiting use other than as a dwelling house, advertising or renting parts of the building.[44][43]Reasons below at [43].[44]Reasons below at [43]. His Honour was well aware, when considering orders that would require work done to a substantial part of the building, that the building itself was constructed and approved in compliance with the Planning Scheme, and capable of being used lawfully without alteration. As his Honour noted, it was the use of the building, rather than the building itself that gave rise to the present proceedings.[45][45]Reasons below at [44].

Ratio Decidendi

Legal Principle Established

Further, it was contended that to the extent that orders 1 and 4 prohibited a use for any purpose other than a dwelling house, it went beyond what the Planning Scheme could do by itself. Because of the Planning Regulation, Schedule 6, the Planning Scheme could not provide that the uses in Item 2(1) and Item 6 should be “assessable development”, which would require a development approval.Consideration In my respectful view, there are a number of difficulties which confront the grant of leave to appeal in respect of the grounds concerning orders 1 and 4. First, while it is true to say that it was contended at first instance that the orders should permit a use of the building that was “accepted development”, no use was identified as being one to which the building might sensibly be put, and which would fall into the category of accepted development. So much was plain to the learned primary judge, who said:[22]“I should also mention that in written and oral submissions the respondents proposed that the orders should permit a use of the building that is ‘accepted development’. This term describes a type of development for which a development approval is not required. Some forms of it are categorised by regulation and others might by default be accepted development. The respondents did not suggest any use to which the building might sensibly be put which would fall into the category of accepted development. In these circumstances [it is] unnecessary to include such a qualification in the orders to be made. If some issue arises in the future there can be an application to change the enforcement order.”[22]Reasons below at [48]; internal citations omitted. It is thus the case that the particular uses now identified (under Items 2(1) and Item 6 of Schedule 6 to the Planning Regulation, and any permitted uses under Council’s Development Control Plan 1 – Kawana Waters (DCP1)) were not advanced for the consideration of the learned primary judge. This Court therefore does not have the benefit of the P&E Court’s consideration of, and rulings upon, the contention now sought to be advanced. Secondly, there was no evidence at first instance to suggest that Mr Gavin was ever interested in using the building for either of the uses identified in Schedule 6 of the Planning Regulation. One is use of a class 1 or class 2 building “if the use is providing support services and temporary accommodation for persons escaping domestic violence”. The other is use as a “community residence” but only where no more than seven support workers attend the residence in a 24-hour period, at least two carparks are provided on the premises for use by residents and visitors, at least one of those carparks is suitable for people with disabilities, and at least one carpark is provided for use by support workers. Thirdly, the failure to identify any use such as those referred to in Schedule 6 of the Planning Regulation has the necessary consequence that no planning evidence was called to identify whether that use was actually available to be achieved in the particular building. For example, under Item 2(1) questions could well arise as to the “support services” that would need to be provided for persons escaping domestic violence. Under Item 6 questions may well arise as to the provision of carparks and frequency of support worker attendance. In particular, given that a “community residence” means the use of premises for residential accommodation for children under a program pursuant to the Youth Justice Act, or persons who require assistance and support with daily living needs, together with a support worker, questions may well arise as to the sufficiency of the current building for that purpose.

CITATION:	Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217
PARTIES:	MICHAEL IVAN GAVIN (first applicant) JDL INVESTMENTS PTY LTD ACN 611 912 808 (second applicant) v SUNSHINE COAST REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 511 of 2021 Appeal No 2659 of 2021 P & E No 125 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Applications for Leave Planning and Environment Court Act
ORIGINATING COURT:	Planning and Environment Court at Maroochydore – [2020] QPEC 63 (Cash QC DCJ) Planning and Environment Court at Gympie – [2021] QPEC 2 (Cash QC DCJ)
DELIVERED ON:	8 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2021
JUDGES:	Fraser and Morrison JJA and North J
ORDERS:	1. Applications for leave to appeal refused. 2. The applicants pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the applicants constructed a building which was used contrary to s 162 and s 165 of the Planning Act 2016 (Qld) – where the building was used as an “accommodation building” instead of a “dwelling house” – where the Planning and Environment Court made orders to prevent further unlawful use of the building including orders compelling significant changes to the building – whether the orders were within power of the Planning and Environment Court Planning Act 2016 (Qld), s 162, s 165, s 180 Planning and Environment Court Act 2016 (Qld), s 63
COUNSEL:	G J Gibson QC, with M McDermott, for the applicants R J Anderson QC, with G J Barr, for the respondent
SOLICITORS:	Andrew Davis Planning Lawyers for the applicants Heiner & Doyle for the respondent