Gold Coast City Council v Choice Homes (Qld) Pty Ltd & Michael Ross Certification Pty Ltd
[2005] QPEC 27
•22/04/2005
[2005] QPEC 027
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No BD1445 of 2005
| GOLD COAST CITY COUNCIL | Applicant |
| and | |
| CHOICE HOMES (QLD) PTY LTD and MICHAEL ROSS CERTIFICATION | First Respondent Second Respondent |
and
THE PARTIES NAMED IN SCHEDULE 1
TO THE ORIGINATING APPLICATION Third Respondent
BRISBANE
..DATE 22/04/2005
ORDER
CATCHWORDS: Interim enforcement order made under s 4.3.24 of Integrated Planning Act 1997 to restrain "development work" as defined in the Act which applicant Council apprehended was occurring on two large residential estates in breach of conditions set in approval of material change of use, reconfiguration and operational works - more than 30 owners affected - undertaking described in s 4.3.24(2) considered inadequate in the circumstances - the Court required the undertaking be the "usual undertakings as to damages" described in the Uniform Civil Procedure Rules, r 264.
HIS HONOUR: This is an unusual application by the Council served at the very last minute on the first respondent, who is the only relevant one, seeking an interim enforcement order under section 4.3.24 of the Integrated Planning Act 1997 (IPA).
It ought to be made clear at the outset, since Mr Porter for the first respondent has indicated its understandable concern for its commercial reputation, that the Court's jurisdiction to make an order depends on no more than the Court being satisfied it would be appropriate to make the order. That is a completely different basis for exercising jurisdiction than is found in section 4.3.25, for example, which requires the Court be satisfied that an offence has been committed or will be committed unless restrained.
The Council has not set out to establish anything along those lines this afternoon. Further, Mr Porter's client has had no opportunity to consider how to respond to the application or get evidence ready.
I regard the circumstances as extraordinary. The Council has granted development approvals for a material change of use, reconfiguration of lots and operational works in respect of two residential developments, one known as Bedroff Street, Upper Coomera, the other known as Coomera Vista, Upper Coomera. There are three development approvals in all.
Residential development has proceeded, it seems, on the basis of the first respondent operating as a builder, the second respondent operating as a private certifier so that the Council has no entitlement until a stage which may be well after the event to know what is going on.
The other parties are described in the title of the proceeding (which has been the subject of the Court's order for leave for filing and reading today) as "the parties named in schedule 1 to the originating application". They are the owners of some dozen of the lots in Bedroff Street and scores of the lots in Coomera Vista. They may well be affected by the orders proposed.
The Council has become concerned that the conditions of development approvals issued by it are not being complied with. Typical of those conditions are conditions 5 and 7 in the decision notice in respect of Bedroff Street which is exhibited to Mr Scott's affidavit. Those are:
5. In the design of this development, recognition is to be given to the natural topography. Cutting and filling is to be kept to an absolute minimum and the subdivision layout should complement the existing topography to leave areas of visual impact in their natural state. Where cutting is considered necessary, the maximum depth of cut should not exceed 0.6 metres without further approval from Council.
7. Retaining structures (including Boulder Walls) are to comply with the following requirements:
i. That the proposed retaining structures do not encroach within the proposed dedicated road reserve, or public open space. The structures are to be within the proposed residential property boundaries.
ii. The detailed drawings must indicate the point of discharge for surface and subsoil drainage behind the structure.
iii. The proposed retaining structures footings must be constructed clear of underground services such as sewer pipes, stormwater drainage pipes and water reticulation pipes (minimum two metres clearance).
iv. Retaining structures should generally be located on the 'low side' property and positioned such that the property boundary is set back a minimum distance of 0.6 metres from the top of the rear of the retaining structure. Where property boundaries are located at the bottom of retaining structures, they shall be so located to provide a minimum setback distance of 0.6 metres to the 'toe' of the face of the retaining structure.
v. Retaining structures are not to exceed 1.0 metres in height.
vi. A design certificate signed by a RPEQ must be submitted to Council prior to commencement of construction. This must specify that all design criteria is in accordance with AS4678 - 2002. This is to include an inspection intent certificate.
vii. Retaining structures must be inspected by the RPEQ at the following stages: footing (including excavation and reinforcement), drainage behind the wall (including geofabric, drainage material and perforated pipe) and completion (including point of stormwater discharge).
viii A final certificate certifying the adequate completion of the structure and also certifying each stage of inspection as stated above and signed by a RPEQ must be provided prior to acceptance of the subdivisional works formally 'on maintenance'."
The conditions in relation to Coomera Vista are similar in their general effect but not in the detail. For example, the height of retaining walls permitted is 1.2 metres.
Affidavits of Council officers supported by photographic material indicate that retaining walls well in excess of the indicated limits have in the past been constructed, that works which should not have been done close to sewerage lines at least have occurred, and that cutting and filling to an extent considerably in excess of what the conditions allow has been happening. Indeed, it appears that there has been large-scale importation of fill into the estates.
The purpose of that would seem to have been to permit on-ground slabs to be constructed to accommodate houses, the construction of a number of which is well advanced, saving the owners the additional cost and trouble of other kinds of construction. The photographs certainly suggest that the topography of the area has been changed to a greater extent than the conditions set by the Council would permit. As Mr Porter says, the evidence in the case establishes things that have happened already rather than what might happen in the future. On behalf of his client, he has offered understandably belatedly undertakings.
Those in respect of Bedroff Street, as I understand him, can be given because relevant work has already been done. That undertaking was to be in terms of paragraph 3(1) of the proposed draft order. As to the rest of it, he objected to the making of any order in terms of subparagraph (2) on the basis that in restraining "facilitating the use of premises listed in schedule 1" it was uncertain what actions it was intended to apply to.
He declined to offer an undertaking preventing his client from "seeking final inspection or approval of any building or other structure comprising those premises". So far as Coomera Vista is concerned, the undertaking proffered was in terms of carrying out cutting and filling. Mr Litster for the Council responded that while the Council's prime concern is to stop the construction of any more of the rather large retaining walls which have been constructed in recent times as things appear, the orders sought by the Council rely on the rather wide concept of the "development" as defined in the IPA.
I am concerned that the order sought by the Council may restrain the carrying on of activities, especially inside houses under construction, which may not create particular concern, but of course there is a risk here that work of that kind may be wasted if the worst happens and houses have to be demolished. There may well be potential dangers to life or property if the Council's fears turn out to be justified. The Council is anxious that it not bear any responsibility for further work.
The undertakings which the Court was very pleased to see offered by the first respondent are, it seems to me, rather too limited to meet the case and accordingly it seems preferable for the Court to proceed by making orders under the section mentioned. The commonsense approach, it seems to me, is to proceed on the basis that the first respondent may have demonstrated an inadequate understanding of its obligations under the development approvals to which the second respondent, who has apparently already offered some undertaking acceptable to Council, may have contributed.
Mr Porter has confirmed to the Court that they are associated in arrangements whereby purchasers of lots are offered a package which will lead to their obtaining residences in the estates to occupy.
Mr Porter asserts that the Council's evidence that there remain parts of the estates where things are yet to be done which can sensibly be made the subject of restraining orders is rather thin. Perhaps this is something the Council might attend to over the next seven days following which the application will come on again.
I thought it sensible to change the Council's suggested orders in two ways. First is by requiring that the Council give the usual undertaking as to damages defined in the UCPR rather than that which was proffered which is the one contemplated in section 4.3.24, subsection (2). That undertaking, if the provision is read literally, may be called on only "if the proceeding is unsuccessful". This seems to me to be a proceeding which may well be successful in some aspect or aspects but not wholly successful. I do not suggest for a moment that the Council has attempted to escape any potential responsibilities that it ought in justice bear. But the Court's view is that if the undertaking is to give it and those who might potentially be affected by it sufficient comfort it ought to be in terms of the UCPR, rule 264.
Following upon that, I thought it sensible, indeed perhaps essential, to permit the parties to avoid the trouble and cost of having to return to the Court under the liberty to apply which will be given to seek and/or get authority to carry out activities that may not really be of concern. The Court's order therefore will change the draft so that it specifically does not apply to any activity to which the applicant may indicate it has no objection. That may prove to allow the first respondent to engage in useful activity in the estates; it is the case that there are numerous allotments in the estates which are not affected by the Court's orders at all. It is only those on premises listed in schedule 1 to the originating application which are affected.
...
HIS HONOUR: The reference should be to schedule 1 to the
order. Order as follows:
Upon the applicant's giving the usual undertaking as to damages defined in the Uniform Civil Procedure Rules it is ordered that:
The Applicant is excused from complying with rule 26(1) of the Planning & Environment Court Rules 1999.
The Applicant is excused from complying with rule 904(1) of the Uniform Civil Procedure Rules 1999.
Except in respect of activity to which the Applicant may indicate it has no objection, the First Respondent, Choice Homes (Qld) Pty Ltd, by its directors, servants, agents or contractors immediately cease, and until further Order desist from:
(1)undertaking, or permitting to be undertaken, any activity comprising "development" as defined by IPA with respect to the premises listed in Schedule 1;
(2)seeking final inspection or approval of any building or other structure comprising those premises;
until 5 p.m. on 29 April 2005 or other order.
The Council's Application intending proceedings be adjourned until 10 a.m. on 29 April 2005.
The First Respondent's affidavit or other material intended to be used on the hearing of that application be made available to the applicants by 10 a.m. on 28 April 2005 and indicate what if any approvals and certifications are relied upon by it.
There be liberty to apply.
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