Gold Coast City Council v El Safty Enterprises Pty Ltd & Sustainable International Property Pty Ltd
[2010] QPEC 142
•15/12/2010
[2010] QPEC 142
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 3300 of 2010
| GOLD COAST CITY COUNCIL | Applicant |
| and | |
| EL SAFTY ENTERPRISES PTY LTD ACN 096 009 371 | Respondent |
| and | |
| SUSTAINABLE INTERNATIONAL PROPERTY PTY LTD ACN 142 066 108 | Co-Respondent |
BRISBANE
..DATE 15/12/2010
JUDGMENT
Catchwords:
Sustainable Planning Act 2009, s 456, s 601, s 604
Local Government (Planning and Environment) Act 1990, s 4.1.13(18), s 8.10(8), s 8.10(8B)
Declaration and enforcement order sought by Council about respondents' proposal to use (hitherto unusued) flat rooftop of approved seafront building containing approved restaurants as a location where paying patrons could enjoy alcoholic and other beverages and light meals - site included a long- established public swimming pool - in current planning scheme, site is Public open Space - site always had a similar zoning/designation - whether apprehended use was assessable development unlawful without a development permit - respondents contended the use was authorised by a 1986 town planning permit issued pursuant to a successful appeal to the Local Government Court which allowed a use of a restaurant of defined capacity and contemplated erection of a suitable building - requested modifications of permit and/or acceptance of changed building plans by Council authorised expansion of restaurant and like uses inside the building, also substitution of a flat roof with perimeter balustrade for a sloping roof - designation of roof as "roof terrace/viewing platform" in approved building plans in 1987 held to relate to building issues only, not to use issues - any approval there might have been lapsed by passage of time - whether recent compliance permit issued by Council regarding plumbing and drainage implied approval of the use - discretionary considerations that might disentitle Council to relief discussed
HIS HONOUR: I apologise that the delivery of reasons is going to be rather untidy. I haven't had the time I expected to have overnight to prepare something more elegant after we adjourned some time after 6.30 last night following the second day of hearing. It's important to indicate to the parties what the result is quickly, given the nature of the matter and the impending holiday season. What's at issue is whether the council can prevent the commencement of a new activity on the roof of a building which exists on the site of the long-established Burleigh Baths on the foreshore of the beach at Burleigh Heads with a street address of 43 Goodwin Terrace.
At least three restaurants and a takeaway food activity operate in the building at present. The proposal is to turn the roof area, which is a flat concrete structure exceeding 400 square metres in area, into a venue where paying patrons may enjoy the spectacular outlook to the point break at Big Burleigh in one direction and to the Surfers Paradise skyline in another.
In the circumstances, details of the proposed activity have emerged only sporadically given that there's been no development application made to the council in respect of the proposed use of the rooftop area. Indeed, the essential contest between the parties is whether a development approval is necessary at all, the respondents contending that it's not. The council's approach is that it is, that a development offence will occur if the proposed activities go ahead - which ought to be prevented by the court's making an appropriate declaration under section 456 of the Sustainable Planning Act 2009 (SPA) and orders under section 601 and following to restrain the apprehended commission of a development offence.
Some reliance may also be placed on section 456(7) which concerns orders about a declaration made by the court.
One of the reasons for the court's determining to announce and explain its decision now rather than reserve the council's application for consideration is that Mr Youssef who represented the second respondent, of which he's a director, anticipating an adverse outcome here, voiced a determination to appeal. From that point of view, the sooner this court's determination is known the better, given the difficulties there may be in locating a Court of Appeal Judge to consider an application for a stay.
The application came on first before Judge Searles on the 1st of December. His Honour appreciated the urgency of the matter and, indeed, its importance to the parties. At that stage only El Safty Enterprises Pty Ltd was a respondent but steps were in train to join the other company which is clearly identified as the entity that will conduct activities on the roof area, apparently under the registered business name Clique.
Judge Searles set the matter down for the 9th of December when a hearing lasting until after 6 p.m. occurred. Mr Youssef offered no opposition to the joinder of his company, although complaining, and understandably so, about the short notice that he had had.
The day was devoted to opening statements by Mr Hughes SC who represented the council and on the other side by Mr El Safty, also Mr Youssef, and to cross-examination by the former of those council witnesses he had required to be present for the purpose - also to the giving of evidence by Mr El Safty orally and cross-examination.
The next step was intended to be the calling of Mr Youssef to give evidence. The lateness of the hour and his expressed desire to obtain legal advice as to whether he ought to give evidence and what evidence he ought to give, whether there was any conflict between the two respondent companies and the like resulted in an adjournment until yesterday - for a shorter period Mr Youssef, in any event, would have desired.
When the matter came on yesterday, solicitors had been engaged for both respondents and Mr Cooke QC appeared for them seeking an adjournment which, given the shortness of time available to Mr Cooke and the solicitors, Mr Hughes was disposed to agree to. The issue became what conditions which ought to obtain during the period of the adjournment which would carry the matter into next year, after the important holiday period when Clique's venture was likely to get off to a propitious start - but by the same token the impacts of the activity (which is likely to be successful if it gets underway) may be particularly severe in the congestion which characterises Burleigh in December and January.
There are issues of traffic and parking here. The respondent's vision is to have the rooftop available for paying customers who will enjoy the benefits of the location. Those are obvious enough and include enjoying observing
activities on the beach and in the surf and, on occasions, special events such as surfing competitions.
It's intended that the guests have the ability to enjoy alcoholic and other drinks while they are there and light meals.
It seems that payment will be made by something in the nature of a cover charge which will purchase entry and perhaps a certain amount of food and/or drink. The respondents made much of the charge which they say is intended to be set at a level to price out patrons who might be considered undesirable.
There's been reference in the material to functions being held on the roof area, in particular one on the 5th of December.
The intended number of patrons is perhaps unclear but I think may be gauged from use of the number 250 in the approval issued by a private certifier to the first respondent which authorises, among other things, the construction of a new and handsome staircase giving access to the roof which could safety accommodate large numbers of patrons from the restaurant level below.
On the evidence, what has been available hitherto has been narrow, winding, unsafe access, partially blocked by equipment and the like which has apparently been availed of by those charged with the maintenance of such equipment; this working environment has caused concern to relevant council officers from the point of view of its safety.
The evidence, including photographs, establishes that a huge investment has been made to prepare the roof area for the new venture. There is what appears to be a fixed bar at one end including large bar refrigeration units and sinks for washing glassware. That's at the western end. At the eastern end, there is another bar which may be a movable one. There are tables, comfortable chairs, reclining chairs and the like to permit patrons to enjoy themselves on the roof area in comfort.
There is lighting and a large glass "airlock" (as one witness called it) which is there to protect the entrance via the stairway and to keep the elements which plainly constitute a threat to activities on the rooftop from intruding too much into the lower part of the building.
The development rights which the respondents assert have their origin in an order of the Local Government Court of the 7th of March 1986.
The Court and the parties should appreciate the efforts of Mr El Safty and others assisting him, such as the planner Mr Ransom, in collecting relevant documents. As it happens they have had greater success in this area than the council; “freedom of information” possibilities have been resorted to.
This consideration is not solely the reason for an accolade to those gentlemen, it also has an obverse side of giving the court some satisfaction that the respondents - or Mr El Safty's company, at least - are very much on top of the issues, legal and factual, which concern the court.
Mr Cooke offered an undertaking to the court to govern the situation until some adjourned date next year. Mr Hughes sought something more restrictive. There were suggestions which could have to have been taken up that the adjournment period be covered by an interim enforcement order made under section 603 of the SPA which would have raised a serious question for the court as to requiring an undertaking from the council as referred to in sub-section (2). The financial implications for the council may well be considerable were such an undertaking to be called on.
Matters never got to the stage of the council being required to state whether or not it was prepared to give the undertaking because no suitable interim arrangement could be devised and the application proceeded as one for final relief, meaning that the SPA did not raise any question about an undertaking.
What Mr Cooke had proffered was an undertaking in terms of what the council had sought in its originating application filed on the 11th of November 2010. It became unclear just what might be achieved by restraining the carrying out of assessable development without an effective development permit for the use of the rooftop premises for a restaurant, café, reception room or tavern as defined by the planning scheme.
In its originating application the Council seeks a declaration under s 456 of the Sustainable Planning Act 2009 (SPA) that apparently proposed use of the rooftop of “Burleigh Beach House” for a restaurant café reception room or terrace under the current planning scheme definitions is assessable development for which there is no effective development permit and an order under s 456(7) or s 601 ff to restrain the carrying out of such assessable development without an effective development permit. By s 578 and the Schedule 3 definition doing that would be a “development offence”. “Assessable development” is defined in the Schedule as development prescribed by a regulation under s 232(1) and also development declared assessable under the local planning scheme.
The planning scheme in the Burleigh Local Area Plan contains detailed provisions controlling uses. The building is on land designated Precinct 6, Public Open Space. The relevant Intent states that “no further intrusion of commercial uses into this precinct will be supported.” The Table of Development for material change of use, (defined in the SPA in s 10 to mean:
the start of a new use of the premises; or
(ii)the re-establishment on the premises of a use that has been abandoned; or
(iii)a material increase in the intensity or scale of the use of the premises; or…”)
establishes 5 categories of exempt development:
“(Natural) Conservation…
area management
Low-Impact Telecommunications Facility
Minor Change in the scale or intensity of an existing lawful use
Park
Public Utility”
Everything else is assessable. The impact assessable categories include Café, Outdoor Sport and Recreation and Restaurant.
By s 7.6.1 of the general provisions for Local Area Plans, any use not individually listed is considered undesirable or inappropriate and any material change of use for it will be treated as an impact assessable development.
As is often encountered in these situations, reference to such use definitions can produce a nightmare of anomalies particularly where, as here, particular definitions expressly exclude others. Although we didn't get into detailed discussion about this, it seemed to me there was every possibility that the respondents who wished to go ahead and would, on any scenario, have been allowed to use the roof area for some purposes, might have succeeded in showing that, as a matter of strict construction, they were not carrying out any of the uses identified and, perhaps, because of a mixture of activities, which one would think generated potential for a judgment that they were carrying out multiple uses.[1]
[1] Since making that statement I have come across section 7.2 in the current Burleigh Local Area Plan; it makes some attempt to provide for multiple or overlapping “triggers” by imposing the highest (something) of the potential levels of assessment, that is impact assessment.
In those circumstances, by way of interim arrangements, the council sought a specific addition to what was precluded to include the consumption of food and beverages. That is at the heart of what the respondents are hoping to do and one would think central to the attraction of their venue for potential patrons.
It became clear that the respondents had means in view of indirectly achieving outcomes which the council wished to prevent. By way of example, there might be mentioned the provision of light snacks such as tapas by an outside caterer which may or may not have been one of the cafes or restaurants in the building.
In a similar vein it was suggested that consistently with the requirements of the Liquor legislation arrangements could have been made to avoid offences yet still permit the bringing in of alcohol “sold” elsewhere in a location where the sale would be lawful.
The use definitions in both the current planning scheme and the 1982 planning scheme (which applied when the significant existing relevant development approvals or permits were granted) involve the concept of serving food or beverages. On reflection it seemed to me that any order forbidding consumption may be too wide, as it might be wrong to prevent users of the roof from bringing their own victuals to the roof area.
My associate has located at dictionary.com a definition of "serve" which I think appropriately explains that otherwise undefined term. The meaning is, for example, "to carry and distribute portions of food or drink to a patron or a specific table." That seemed to me the type of activity that the use definitions have in mind.
As to whether there is an existing approval, the story begins with Judge Row's reasons in the Local Government Court which he published in December 1985 in appeal LGA number 2 of 1985 in the Local Government Court at Southport between Kinami Pty Ltd and the Council of the City of Gold Coast. There were three respondents by election, plainly no more than a representative sample of the large number of objectors there had been to Kinami's proposal to establish a restaurant on the site. His Honour's reasons reveal some of the bases for objection, which include amenity concerns, noise (including traffic related noise), and also the views held by some that the foreshore area ought not to be made available for private profit making uses, the zoning, unsurprisingly, being public open space (general).
Judge Row indicated an intention to allow the appeal and on the 7th of March 1986 did so by an Order which will be found in Exhibit 2, thanks to the thoroughness of Mr El Safty's research. That Order allowed an appeal by Kinami, the Crown lessee of the site at that stage, which had applied to use the land for the purposes of a restaurant.
The Order fixed 36 numbered conditions, including the following from Exhibit B to an affidavit referred to in the Order with the substitution as per Exhibit 4 of a different condition 20:
“1. Payment to Council of $126,000-00 in lieu of twenty-eight (28) off-street car parking spaces, such amount to be paid to Council prior to occupation of the building. A bond, acceptable to the Town Clerk for the required amount is to be lodged with Council prior to the issue of Building Approval. Should the development be designed in such a manner as to reduce the amount of required car parking, the required payment may upon application to the Chief Inspector, be amended accordingly.
...
Submission to and approval by Council of satisfactory building plans and specifications in accordance with the Building Act, Council's By-laws where applicable and the city of Gold Coast Town Planning Scheme, and generally in accordance with the plan approved in this town planning Permit, and the conditions of this Permit. The building is to be constructed in accordance with the approved building plans prior to the commencement of the use approved in this Town Planning Permit.
...
12.Any lighting device is to be so positioned and shielded as not to cause any glare nuisance to any nearby residential occupation or passing motorist.
13.The premises are to be fully air-conditioned and sound-proofed to the reasonable satisfaction of the Chief Inspector.
14.There is to be no interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fume, smoke, vapour, steam, soot, ash, dust, waste water, waste product, grit or otherwise.
28.Restaurant to accommodate no more than 200 people.
...
36.The approval is only for a restaurant and any discotheque type activity would be subject to consent for indoor recreation and would require a town planning application.”
It is reasonable to record that Mr Hughes didn't place particular reliance on conditions 12 and 14; however, they appear to be of some significance in a context where there are across Goodwin Terrace numerous residential units where people live - but they may well be the source of some of the complaints which the material indicates council has been receiving in respect of activities or apprehended activities in relation to the rooftop.
Except for the change to condition 20, those conditions had been approved by a resolution of the council after publication of Judge Row's reasons for allowing the appeal. The council issued the town planning permit, number 9/225 in due course as required by the Local Government Act 1936. It's dated the 21st of March 1986 and contains two further conditions purporting to allow revocation if rights are not exercised within 24 months, or uses were discontinued for any period of six months. By the Local Government Act the council was bound by the Court's Order, which did not necessarily preclude the addition of further conditions.
The permit left some things, for example final building plans, for determination by the council. Although condition 4 required the swimming pool facility on the land which had been there for decades, as I happen to know personally and as his Honour recognised, to be maintained for public use. Neither the Court Order nor the permit authorised any other use for the land than restaurant. (The permit, presumably on record in the council and available on search, is the operative document which would be consulted and relied upon by anyone concerned to identify development or use rights attacking is the land apart from those conferred by planning scheme provisions.)
In particular, neither of those documents authorised and, indeed, there's no evidence that there had been sought any approval for any use of "outdoor recreation", whose relevant definition, at the time, was in the 1982 Planning Scheme.
Outdoor recreation means “any premises used or intended for use for the following purposes where such use is primarily outdoors: (a) the watching of, practising of, receiving or giving of instructions in, or taking part in, whether for recreation or otherwise (i) a sport, (ii) a form of athletics, or (iii) a game, not being a sport or form of athletics; (b) a trade fair or exhibition; (c) a meeting place for persons associated or for a body incorporated for a social, sporting, athletic, literary, political, or other like purpose, for that purpose; (d) an open air theatre or drive‑in theatre; (e) a circus, fair, show, or other like purpose; or (f) a zoological garden; (g) public swimming baths, ice-skating rink, roller-skating rink. The term does not include an unlit tennis court, which has a playing area not greater than 150 m², and is not used for commercial purposes, and it does not include simulated war games as herein defined.”
Now, can you help me where the Table of Uses is?
MS KEFFORD: My recollection, page 152 of the‑‑‑‑‑
HIS HONOUR: Thanks.
MS KEFFORD: Or 153 of the second certificate.
HIS HONOUR: Thanks. Yes. Thank you. In the Table of Uses for the public open space general zone, the purposes for which buildings or other structures might be erected or used, or for which land might be used without the consent of council, were limited to caretakers' residences, parks and park kiosks. In column 4, one finds the purposes for which buildings or other structures may be erected or used, or for which land may be used, only with the consent of the council. Those include outdoor recreations, reception rooms, and restaurants.
The relevant definition of reception room was: "Any premises used or intended for use for the holding of receptions or functions at which food and/or drink is served; the term does not include a restaurant, indoor recreation, or a hotel as herein defined."
Some reference was made to that definition on behalf of the respondents to contend that a reception room had to be a room which had walls and a roof or ceiling, presumably with the consequence that an open rooftop area could not possibly be a reception room. That may accord with one's common understanding. However, “premises” is, three definitions above, defined as "any land, building or other structure" and, in my experience, is universally used to apply to land without any building, as much as to buildings. While the ordinary interpretation of room would point to an enclosed, covered area, this document does seem to be an instance of a concept of a "room" which may be out in the open.
As the Local Government Act contemplated, the lessee at the time made application to the council for modification of the permit. Fees set in that regard were paid and the applications were processed.
The first change - if you could help me, Ms Kefford, where will I find that - increasing the floor area of the restaurant?
MS KEFFORD: It's in the first certificate following town planning permit 9 of 225.
HIS HONOUR: On 21st of December 1987 the council wrote formally to Linkon Design, consultant for the then lessee, to advise that council had approved modification of town planning permit 9/225 and that the total use area of 436.3 square metres, which was an increase, be approved for restaurant use.
RESPONDENT (MR EL SAFTY): Sorry, your Honour. I'm not sure that they actually mention total use area in there. I don't know‑‑‑‑‑
HIS HONOUR: I'll read exactly from the letter: "resolved that the modification to the town planning permit 9/225 be approved and that the total use area of 436.3 metres squared be approved for restaurant use. A further contribution of one car space of $5,940 will be required for the additional restaurant area." The letter goes on: "It was further resolved that the outdoor terrace area has not been approved for restaurant seating and, as this area is in excess of the 5 per cent allowable as minor modification to the town planning approval already granted, the use of the terrace area for restaurant seating will require town planning consent and a further additional car parking contribution."
A couple of points that come out of that letter include the respondents’ directing attention to the council's concern that the outdoor area was not being approved for restaurant seating. They sought to engraft a negative pregnant upon that and other material to indicate that the council neither contemplated nor desired nor was entitled to contemplate a restriction on use of the roof area. Their argument along those lines was supported by reference to planning scheme definitions of "total use area" and the like in which a roof area does not get counted.
In later applications for modification the council was applied to for and approved the establishment of a new café or restaurant, which I understand is called "Mermaids" on a lower level of the split-level, single storey building. That I understand to be "Mermaids" - in a space which previously had been designated for a gym. An approval was given to establish a take-away food kiosk (presently called “Nook”) and I think another restaurant. Mr El Safty told me that the seating, which no doubt has been approved, has increased beyond the‑‑‑‑‑
Can you remember what you told me it was, the seating, the total seating?
RESPONDENT: Oskars can do about 140 to 160 and Point Break can do 100 to 120, so the‑‑‑‑‑
HIS HONOUR: So it's increased to just under 300?
RESPONDENT: That single storey was split into two.
HIS HONOUR: Yes, yes, but that's - that's - that's been done with express approvals from the council?
RESPONDENT: That's correct.
HIS HONOUR: To allude again to the major issue, there's no application before the council for a development approval to which conditions about parking or anything else might be attached.
Considerable store is set by the respondents for their contention that no development application is necessary on notations that can be found on plans submitted to the council seeking changes in the building envisaged in condition 6. The original plans envisaged a building with a sloping roof which could not have been safely used for activities of any kind, let alone commercial activities of the kind envisaged for the roof now.
The council accepted as consistent with the intent of the Local Government Court’s order a proposal to replace the roof with a flat concrete one. Plans which were submitted to the council and indeed attracted its approval for the purposes of the construction of the building being permitted refer to the roof as a "roof terrace" surrounded by a glazed balustrade.
In one instance, the description is "roof terrace/public viewing platform." There is in the material unearthed a letter from Linkon extolling the merits of the redesigned building by reference to the provision of the viewing platform. In my opinion, such a document cannot be regarded as part of the public record which may be searched to discover use rights.
The respondents are contending that the council's acceptance in its communications formally accepting changed plans for the building represent in some way a council approval of the use. This brings us to the crux of the issue that divides the parties. The council in this proceeding raises no issue about the building or its lawfulness, restricting itself to issues of the uses that are permitted of the building.
In my opinion the distinction relied on by the council is correctly made. The uses permitted on a site and issues to do with what buildings are permitted to be constructed on a site are totally separate and it's not possible to take from some indication of intended purpose on plans included in a building permit that a use has been approved.
As appears from the above, the only use that's shown to be approved of the building is restaurant and the dimensions of that use are strictly confined by conditions limiting seating numbers and/or area.
In 2009 the council did become concerned with building issues, perhaps driven to examine what was happening on the site by complaints from local people concerned at the appearance of cranes and other activities indicating construction on the roof.
HIS HONOUR: The council issued a show cause notice to El Safty Enterprises Pty Ltd dated the 14th of August 2009. It contended that the roof line of the building constituted by a balustrade there was excessive in height. It intimated council's belief that an enforcement notice should be given under section 4.3.11 of the Integrated Planning Act 1997 requiring the company to remedy the commission of the offence by removing or ceasing to erect the proposed balustrade on the roof top and to restore the premises to a state complying with the development approvals and the planning scheme.
The notice goes on to require that all works cease unless evidence was forthcoming from a qualified surveyor to demonstrate that the proposed top of the balustrade wouldn't exceed an RL of 10 metres. It went on: "Further, council requests you advise of the proposed/intended usage of the rooftop area."
That last request, unfortunately, attracted no prompt or truly informative response. The building certifier involved was Mr Thomas. He took action on learning of the show cause notice and on the 20th of August 2009 issued a notice of his own to cease work.
He recorded his understanding from the council that many complaints had been made in respect of the "proposal" and that continued construction might not be beneficial in resolving the matter: "Resolution of the difference of opinion of Humphreys Reynolds Perkins and council in respect to town planning compliance is necessary to move this matter forward and allow continued construction."
That was sage advice. The company took action by bringing the issue to the Building and Development Tribunal in a proceeding which, in my understanding, was between the company and the certifier. However, the council learned of it and sent its solicitor along to look to its interest. Given restrictions on legal representation, Mr MacNaughton may have been there as a McKenzie friend assisting a council officer. The Tribunal accepted the argument that it lacked jurisdiction, which the solicitor, had prepared.
The respondents attacks on the council's conduct of the matter included assertions that Mr MacNaughton had arranged to meet privately with the chair of the Tribunal and presumably to exert some influence in that quarter. I accept Mr MacNaughton's sworn denials that nothing of that kind occurred.
The company had success from its exercise in the Tribunal and in particular in the council's withdrawal of the notice to show cause. I accept from the council's witness that the council's reasoning was it was not worthwhile to pursue the issues raised. The building was essentially up already, and had been for years; there appeared to be evidence in documentation going back to the 1980s to the effect that council had perhaps knowingly approved, or perhaps inadvertently passed after construction work in excess of the height limit being insisted on.
It's true there was some mention in the 2009 events and documents of what might be permissible uses. One can understand the respondents’ - Mr El Safty's company in particular - taking from the 2009 outcome that the council had no issues respecting uses.
Any understanding along those lines ought to have dissipated in March 2010 when the council's solicitors sent a detailed letter clearly asserting that the use that appeared to be proposed of the rooftop area was unapproved and unlawful. The letter to Mr El Safty (dated 22 March 2010) began:
“Burleigh Beach House – Unlawful use of roof top terrace
We refer to your letter to Matthew Hulse, Planning and Development Manager, Gold Coast City Council (Council) dated 17 March 2010 and to your e-mail to Mr Hulse dated 28 January 2010, and confirm that you have withdrawn your undertaking not to use the roof top terrace in respect of the ‘Burleigh Beach House’ located at 43 Goodwin Terrace, Burleigh Heads (Premises).
We reiterate to you again that the use of the roof top terrace of the Premises for any use whatsoever will amount to a development offence for the carrying out of assessable development without a development permit. No development approval currently attaches to the land which permits the use of the roof top terrace as you allege. Our reasons in support of this view are set out in further detail below.”
Mr El Safty presents a case that the council has not been consistent in its approach in that it's been sending him signals that what he proposes is acceptable in town planning terms to the council. For example, he relies on a statement of Mr Sharpe who in cross-examination admitted making it, to the effect that occasional use of the rooftop area by couples resorting to it for some discrete romantic activity would not cause the council concern, would not be regarded as a new use that ought to be separately applied for.
Both as a matter of common sense and law and practice in planning, it is accepted that there is no objection to occasional uses of premises incidental to some authorised use of them. This can go as far as having an airstrip or a helicopter landing pad in a residence on sufficiently large grounds. See Lizzio v Ryde Municipal Council (1983) 155 CLR 211, 216-7, per Gibbs CJ, for example.
I think Mr Sharpe was probably right to intimate that the council wouldn't have required a development application to authorise the occasional resort of restaurant patrons to the roof for some satisfying activity while they waited for their next course, for example.
What's proposed for the roof now is, in my view, a totally different case. Mr Sharpe's evidence was useful in establishing the legitimacy of council concerns as to the impacts of what appears to be proposed for the roof. The specific categories mentioned by him are noise, traffic, demand on parking in Burleigh Heads and light nuisance. I accept that his expertise as a planner and experience in the council qualify him to depose to there for being such legitimate concerns.
Mr El Safty indeed has provided corroboration in respect of the noise issue in the form of a noise expert's report which acknowledges that, even absent any discotheque or such activity, what's proposed for the roof would generate noise at levels of concern to sensitive receptors located across Goodwin Terrace.
He proposes that, except on the beach side, noise attenuation barriers 2.4 metres high could be erected. That's the evidence to this stage and it plainly would require an increase in the height of the 1.5 metre existing balustrades which would need an appropriate approval if it was to happen.
Mr El Safty claims some relevant expertise of his own in this area and asserted that there are alternative means of noise attenuation available which wouldn't require those high barriers. There's nothing sufficiently definite in that regard to be at all persuasive.
Apropos the balustrades, it might be noted that when, over the years, the council has given thought to them, it was determined that for safety reasons the balustrades ought to be narrow at the top so that any patrons there could not place glasses on them which might fall to the injury of persons below.
I agree with Mr El Safty that that is an indication that some use of the roof area which might give rise to those proper concerns was envisaged by council officers, and indeed the council officially. Again, in my opinion, that's a very different thing from saying that the council has in some way become committed to a proposition that it has approved the large-scale use of the roof now envisaged, effectively – doubling of the restaurant are immediately below and of its capacity.
Mr Ransom was allowed to be called by Mr El Safty, notwithstanding Mr Hughes’ objections which were understandable, as he had completed his closing address.
Mr Ransom I understood to present the view that the 1986 permit ought to be construed as approving an outdoor recreation use because the pool was there as well as the restaurant use. As I understood him, seizing on the "watching" element of the definition of that use, it would be permissible for patrons of a commercial activity in any numbers consistent with safety to purchase alcohol and food while "watching" something happening nearby.
I reject the basic premise that there was a use of outdoor activities approved in 1986. (Just how the swimming pool got established in the distant past does not appear at all from anything before the Court.)
The Council relies on provisions of the Local Government (Planning and Environment) Act 1990 against the possibility that the court might take a different view and consider that uses by way of a viewing platform and the like had been approved in 1986.
I accept the argument that if that had been so, the 1990 Act caused any permit to lapse no later than four years after the commencement of the Act, the use, as far as the evidence shows, not having been commenced at all. See section 8.10(8) and (8B) and the provisions of section 4.13(18) incorporated by reference.
In the circumstances, the council has established entitlement to the relief sought to prevent what appear to be threatened development offences being committed on the rooftop. That is not an end of the matter.
There are discretionary considerations which must be consulted. The outcome of that exercise may be that the court declines an exercise of its discretion to make a declaration or other order.
Mr Hughes referred to the well known authorities as collected in Mudie v. Gainriver [2002] 2 Qd.R. 53 at paragraph 13 and, no doubt, to that collection emphasise to the court the statement of Kirby P set out there that there is a public interest in upholding the law and seeing that it is obeyed: "Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy."
The circumstances relied on by the respondents which, even though not perhaps presented by Mr El Safty for this purpose (given that his argument was that there is a relevant permit extant), were many and various. They include the council's conduct since the 1980s, long before he came on the scene in the current decade. He says the Council has done much to generate the belief that the flat roof which it allowed to be built could be used, at least for purposes of the kind now proposed.
He submits, but I don't accept, that the council gave every appearance of abandoning the concerns about uses in the Building and Development Tribunal saga which led to the show-cause notice being withdrawn. He says, notwithstanding the letter of March 2010 which was followed by other communications in similar vein, that the council, through the concession to Mr Sharpe and the like, intimated an attitude of acceptance of his proposal.
Further, he relies on a document of 30th of September 2010 in the form of a compliance permit approving plumbing and drainage works in the roof area, in particular, for the sinks mentioned. Mr El Safty says - and, indeed, with the support of Mr Ransom who has some experience of working as a planner for the council in his past, that the inescapable implication of the compliance permit is that the council is approving the activities proposed for the roof or, perhaps, accepting that appropriate planning permission exists for carrying them out. The stamped plans are headed “Hydraulic Services – Proposed Roof Top Terrace – Sky Barn – Oskars on Burleigh”.
That contention is made notwithstanding that the very first condition of approval reads, "This compliance permit applies to all regulated plumbing and drainage work pursuant to the Plumbing and Drainage Act 2002 applied provisions, local laws and related council policies. Work may not commence where other development permits are required to allow development to be carried out."
I do not accept, at all, the contention that the council has been blowing hot and cold, at least since March 2010 when the solicitor's letter went. It's absurd, in my opinion, to suggest that the compliance permit of the 30th of September 2009 can be taken as overriding the council's persistent approach since the letter of 22 March 2010 or before. The letter records the reason for it is Mr El Safty’s withdrawal of an undertaking that had been given.
The latest demonstration of the council's determination to prevent the threatened use is its representations by the solicitors to the Office of Liquor and Gaming Regulation - a detailed letter was sent on the 15th of October 2010 urging the Office to withhold any cooperation by way of facilitating what's proposed by Clique on the rooftop.
I might say in regard to the various statements written and oral attributed to council officers that I take the view that the council cannot be estopped from carrying out its public duties to see that order prevails in planning matters by statements, even for such serious purposes as the compliance permit, of officers. On this topic of estoppels and local governments, see Seymour CBD Pty Ltd v. Noosa Shire Council [2001] QPEC 66 and [2002] QPEC 473, leave to appeal refused at 2002 QCA 446, see the Court of Appeal's reasons at paragraph 22. I do not doubt that a clear statement by council officer with relevant responsibilities and apparent authority to the effect that, say, no development approval was necessary to implement a use frankly and fully described could well stand in the way of the Council’s obtaining from a court with a discretion in the matter orders of the kind sought here.
The points made by the respondent which may be seen as relevant to the discretion issue include delay, in particular lateness in respect of the second respondent's joinder. I attempted to explain to Mr Youssef that even if no order were made against his company but one was made against Mr El Safty's, there would be considerable risk in his proceeding to do anything on the roof through Clique which undercut the Court's order against the other respondent.
It was contended that the Surf Life Saving Club had been favoured over the respondents by being allowed to carry on activities said to produce far more by way of nuisance and amenity impacts than what Clique threatens. As to what occurs at the Club, it's not known what development permits the Club may have.
It was submitted that if there was a parking issue to do with the proposed use of the roof, as it seems to me there is, given that parking requirements are calculated on a scale depending on the area devoted to particular uses (although the respondent's argument is that for technical definitional reasons uses, however extensive on the roof, don't count) the council created those parking problems. In particular, it did so by increasing parking fees in the central area of James Street and leading workers to seek parking further afield. As one would expect, there is emphasis on the huge amount of money that has been spent and even before the March 22nd letter clarified beyond doubt the council's stance of opposition.
There was no evidence at all as to what expenditure might have been made before the letter was received. Mr Youssef told the Court from the Bar table that large numbers of staff had been engaged, indeed, they were ready to start today.
It's submitted, and with justification, that what the council wants to do will lead to loss of an excellent activity and venue. Reference was made to some polling that has occurred showing strong community support for the venture. It doesn't appear whether there's any support from the residents on the other side of the street.
It's urged on the court that there's no need for fears to be held that any nuisance or disturbance might occur, that only unreasonable people would be likely to complain, the respondents could be trusted to run an orderly operation.
It was submitted that it ought to be left to the general law about noise abatement, sale of liquor and the like which, of course, has its own concerns with noise, for that law to be invoked and take its course should things go wrong in the future.
It may be that this is a time of year when it is unusually difficult for relevant authorities to police things in that way, even more difficult to do anything to stop their repetition.
It was urged on the court that the parties should have an opportunity to negotiate conditions which, indeed, is what Mr El Safty has been seeking all along. He takes the approach that if the council would engage in serious discussions with him, appropriate conditions could be devised. However, there's no indication of what those conditions might attach to. There's no development approval, indeed, there's not even going to be any court order as there might have been had Mr Cooke's application for an adjournment succeeded. That application was rejected, at which point Mr Cooke and the solicitors withdrew leaving the clients to their own devices.
It's submitted that the current planning scheme would strongly favour the proposal, indeed, Mr El Safty has said without detail that the proposal "ticked every box". That may well be so, but the question, of course, is not whether an application for a development permit for the use ought to be successful. The council’s point is that without the permit there shouldn't be the use.
I accept from Matjisevic v. Logan City Council [1984] 2 Qd R 599 at 605 that development approvals, where ambiguous, ought to be construed in favour of the person with the benefit of them - being the owner, or for present purposes, lessee of the site from time to time. It is trite to observe that development approvals “run with the land.”
In my view, there's no ambiguity in the approval which is for a restaurant inside the principal building and not for any large-scale similar activity on the roof of it, approval for any such activity, if there ever had been one, having lapsed in any event.
I would be among the first to be extremely reluctant to prevent a worthwhile activity or development, to which considerable resources had been devoted, prevented. Like the community, the court abhors waste. I would be amenable to interim arrangements being made that might permit the activity to go ahead within appropriate parameters if steps were in train to regularise it which, in my view, would certainly be necessary here.
An outcome of that kind was reached in Somerset Regional Council v Bradford [2010] QPEC 109 and [2010] QPEC 110 to permit an event of some days' duration to be conducted in 2010. There, Mr Bradford had taken steps by way of a development application to regularise the conduct of what had become an annual event.
What's proposed here is not an event of short duration, but something that bodes to go on forever if the Crown lease lasts so long.
Further, the respondents are determined not to do what the court thinks is necessary to regularise their proposed use by seeking a development approval. So there's no light at the end of the tunnel, so to speak. It's known in this jurisdiction that it's common for enforcement proceedings brought by local governments to be put on the “back burner” while necessary development permits are applied for. There's no prospect of that here, unfortunately.
As to hardship and like features understandably presented by the respondents, which no doubt extend to “families”, as asserted, this is a context in which it seems to me the respondents have knowingly pursued their line in the face of the clearest intimations from council that it contends they must seek development approval.
The respondents have been frank about their motivation in not wanting to seek an approval - in marked contrast to predecessors who have sought approvals when they desired to expand their activities. What the respondents fear is the imposition of onerous conditions, particularly to do with parking which it was suggested might involve expenditure of $1 million.
The respondents have been blatant in their confrontation with the council, for example, displaying outside the premises at least as late as the 15th of October 2010 a large sign which said: "Public Invitation. The GCCC approved Burleigh Beach House public viewing platform is located on the roof deck of the Burleigh Beach House at 43 Goodwin Terrace, Burleigh Heads. This viewing platform can be enjoyed by locals and tourists alike to take in the magnificent views over the Gold Coast skyline, world famous Burleigh Point surf spot, the Pacific Ocean and whale migration over a relaxing drink and/or light meal between the hours of 10 a.m. and 10 p.m. weekdays and to midnight on Fridays and Saturdays. We believe that the approved development shall provide the following benefits:
§Provide a regional viewing amenity that is of a world-class standard.
§Increase local employment.
§Attract tourists to the Burleigh region and to the Gold Coast at large.
§Provide a sustainable development education amenity for primary, secondary and tertiary level individuals and institutions.
§Provide a world-class venue for professional surfing events, weddings, product launches et cetera.
§Enhance the region's cultural heritage by providing an excellent vantage point for viewing world-class surfing at a world-class point break."
The hours of operation proposed have now expanded to 7 a.m. to midnight, seven days a week, which generates cause for further concern. Mr El Safty told the court that this was in some way the council's fault for not having fallen in with the earlier notion of more limited hours.
As noted elsewhere, section 10 of SPA define material change of use of premises to be generally:
The start of a new use for the premises, or
The re-establishment on the premises of the use that has been abandoned, or
A material increase in the intensity or scale of the use of premises.
That, in my opinion, covers what is threatened here and it's interesting to note in the current Gold Coast Planning Scheme a definition of "Minor change in the scale or intensity of an existing use” as a change in the intensity or scale in existing use that does not exceed any of the following:
“(1)The limits expressed in the approved plan of development or a pre-management plan for the premises where applicable;
(2)an increase of 25 square metres of total use area;
(3)an increase in the number of separate tenancies occupying the premises; and
(4)any extension of commercial operating hours on the premises into and within the period between 7 p.m. and 7 a.m. on any day."
It seems to me that it would be difficult for the respondents to bring themselves within that concept of minor change assuming they have some relevant established use. In this context, in my opinion, it is not open to them to present arguments such as the increase in “total use area” is nil.
The respondents haven't satisfied the court that relief ought to be refused to the council on a discretionary basis.
Exhibit 8 tendered late yesterday was the order proposed by Mr Hughes.
For reasons indicated already, I have thought that the reference to "consumption of food and beverages" should be changed to "consumption of food and beverages served". Following that, I think that use should be uses.
Now I'm willing to make that order. Is that all of it or do you want the declaration too, Mr Hughes?
MR HUGHES: Your Honour, the declaration's probably unnecessary if your Honour makes an order in terms of Exhibit 8 with those changes.
HIS HONOUR: Well, so that's all you want.
MR HUGHES: And costs reserved, your Honour and can I indicate if there is an application for the costs to be made in writing within 21 days but it's a matter we have - I have to review your Honour's reasons and take instructions on that.
HIS HONOUR: Yes. I don't know when those are going to be available.
MR HUGHES: Well, perhaps if I just indicate to the Court if - in view of that perhaps I'd better say that if there is to be any application for costs it'll be made in writing within 28 days of today pending only if it‑‑‑‑‑
HIS HONOUR: I'll reserve the costs.
MR HUGHES: And, your Honour, can I just finally make sure I've got that right. It's in the sixth line down‑‑‑‑‑
HIS HONOUR: Well, you weren't here at the time that‑‑‑‑‑
MR HUGHES: No, I wasn't, your Honour. Use by the‑‑‑‑‑
HIS HONOUR: I'm concerned about incidental uses and so on. On what we've heard you wouldn't be entitled to stop someone who's waiting for the main course to be delivered popping up on the roof with a glass of wine to enjoy the view.
MR HUGHES: Well, I don't think that's quite right, your Honour because that would be extending the use of‑‑‑‑‑
HIS HONOUR: Well, what about the people who bring their own?
MR HUGHES: Well, your Honour, that - that means that someone can arrive with an esky and sit there all day as long as they're permitted to. Your Honour, I really would suggest that there should - the word, "serve" shouldn't be added otherwise there'll be ways around or there's a potential for ways around‑‑‑‑‑
HIS HONOUR: I agree with that.
MR EL SAFTY: Your Honour, do we get the opportunity to have a say here or - I don't understand‑‑‑‑‑
HIS HONOUR: You had your say yesterday in the‑‑‑‑‑
MR EL SAFTY: Well, I mean, obviously, you're discussing with‑‑‑‑‑
HIS HONOUR: You do have an opportunity to say things about what the order ought to be. Yes, you do that.
MR EL SAFTY: Well, I think, you've established for your reasons there that, you know, who could access it if you're waiting between courses out of, you know, the restaurant that was approved at the time which is that middle level. So, in other words, you know, nobody would actually be coming off the street.
So would you be happy if there was an exception for patrons having a sit down meal in the restaurant?
MR EL SAFTY: That's what - where I thought you were heading with your reasoning and I find that to be acceptable, at least, you know, if the‑‑‑‑‑
HIS HONOUR: But they can't get the meal upstairs‑‑‑‑‑
MR EL SAFTY: No, no, they can't take their meal upstairs. We understand that. We don't have a food licence up there. It's only those two restaurants‑‑‑‑‑
HIS HONOUR: I know but, I've heard all this talk about how they're going to a caterer from somewhere or other‑‑‑‑‑
MR EL SAFTY: In your reasoning here you - sorry, from my understanding of your reasoning is that we can't give them the meals upstairs but if they go to Oskars and, you know, they have an entrée or they want to have a couple of‑‑‑‑‑
HIS HONOUR: Well, it's more than that. In my opinion, you can't charge them to go up onto the viewing platform‑‑‑‑‑
MR EL SAFTY: Well, that's‑‑‑‑‑
HIS HONOUR: ‑‑‑‑‑if they're paying you $100 for a meal in the restaurant‑‑‑‑‑
MR EL SAFTY: Well, they wouldn't be paying me, your Honour.
HIS HONOUR: ‑‑‑‑‑and I don't want to stop them from going up between courses or‑‑‑‑‑
MR HUGHES: Your Honour has made a number of findings in this matter. With the greatest of respect your Honour is inviting attempts to subvert the order if your Honour makes changes - in terms of whether the food and beverages are served‑‑‑‑‑
HIS HONOUR: Well, there'll have to be liberty to apply, won't there, because‑‑‑‑‑
MR HUGHES: Yes, your Honour.
MR EL SAFTY: I'm sorry, I didn't understand that, your Honour.
HIS HONOUR: Well, this is the sort of order that generates problems, Mr El Safty.
HIS HONOUR: There's obviously lots of scope for argument and we started having the arguments already. Liberty to apply means if there are problems you can go back to the Court or the council can go back to the Court.
MR HUGHES: Your Honour, so the attempt to add the word "served" after beverages is deleted‑‑‑‑‑
HIS HONOUR: Do you agree that uses should be plural?
MR HUGHES: Yes, your Honour. Then that would the first paragraph. The second paragraph would be liberty to apply and the third paragraph costs reserved.
HIS HONOUR: That's right.
MR HUGHES: Thank you.
MR EL SAFTY: I'm sorry, your Honour, I still need to get this explained to me.
HIS HONOUR: I'll delete "served" but just - this is just very difficult, Mr Hughes. I know what I'm trying to achieve‑‑‑‑‑
HIS HONOUR: ‑‑‑‑‑ but - there's not the time to do it in insufficient detail. I mean, really there should probably have been some thought about viewing platforms and so on.
HIS HONOUR: I'm not persuaded - they can charge people $20 a head to go up to the so-called public viewing platform in public open space. I don't know whether you've even thought about that.
MR HUGHES: Your Honour, the order in those terms is the only way in view of the conduct of the respondents to ensure - to best ensure that there isn't problems over the coming period‑‑‑‑‑
HIS HONOUR: All right.
MR HUGHES: ‑‑‑‑‑with attempts to circumvent the order.
HIS HONOUR: That's right. So it's order as per initialled draft‑‑‑‑‑
MR EL SAFTY: But, your Honour, in the originating application they were seeking declaration on those four uses. It's now been expanded to, you know, as a catchall‑‑‑‑‑
HIS HONOUR: Well, that's exactly right and I think it's happened before. The council is taking advantage of things that have come out during the hearing. I mean, given that you made a no development application to the council which could generate an information request the council really had no idea what you're proposing. You've given little glimpses of aspects here and there but it emerged more and more clearly. Perhaps I could say I’ve not taken trouble to set out the chapter and verse of what's in Mr Hughes’ outline of argument, but that's a useful summary of what particular council officers gleaned from discussions and documents about what was proposed. It just gets to look a bigger and bigger operation as each new‑‑‑‑‑
MR EL SAFTY: But if its‑‑‑‑‑
HIS HONOUR: ‑‑‑‑‑that information comes in.
MR EL SAFTY: Okay, but if it's limited to those people that are actually enjoying the restaurants at the next level below it you're immediately limited. So, you know, for them to now just completely shut us out it‑‑‑‑‑
HIS HONOUR: Well, you'll just have to think about it and if you need to take advice from some appropriate person, which is not going to be me, about what this order might still allow you to do.
MR EL SAFTY: But are we looking to settle the order now or‑‑‑‑‑
HIS HONOUR: Yes, I've done that - I'm making it now.
MR HUGHES: Your Honour's made the order‑‑‑‑‑
HIS HONOUR: I've made it.
MR HUGHES: I've nothing further, your Honour,
MR EL SAFTY: So what does it read now, your Honour?
HIS HONOUR: My associate will give you a copy. Adjourn the Court, thanks.
THE COURT ADJOURNED AT 12.36 P.M.
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