Gold Coast City Council v. Goldsite Pty Ltd & Ors
[2008] QPEC 12
•19 February 2008
Planning &Environment Court of Queensland
| CITATION: | Gold Coast City Council V Goldsite Pty Ltd & Ors [2008] QPEC 12 |
| PARTIES: | Gold Coast City Council And Noel Charles Mewett And Christopher Robert McKibben |
| FILE NO: | OA551 of 2007 |
| PROCEEDING: | Originating Application |
| DELIVERED ON: | 19 February 2008 |
| DELIVERED AT: | Southport |
| HEARING DATES: | 18, 19th February 2008 at Southport |
| JUDGE: | C.F. Wall Q.C. |
| ORDER: | Application to suspend enforcement refused |
| CATCHWORDS: | PLANNING- PLANNING LAW- unlawful use of land contrary to condition of Development Approval- order requiring use to cease- whether enforcement of order should be suspended pending application to vary condition- relevant considerations. |
| COUNSEL | S. Ure for Applicant J. Houston for Respondents |
| SOLICITORS: | Applicant – King & Co Solicitors Respondents –IPA Law |
HIS HONOUR: It is conceded by the respondents that the applicant is entitled to orders in terms of the first two orders sought in the originating application filed on the 9th of November 2007.
The respondents submit that enforcement of the second order should be suspended pending the resolution of an application to be made in March by the respondents for an alteration of conditions to allow the use of the land currently described as recreational open space for car parking purposes.
Three reasons are advanced by the respondents as to why the enforcement of the second order should be suspended.
The first is that the respondents have actively sought a development approval. That is so, but the process was wrong in the first place, but they have indicated that by March a proper application for approval will be made. That does not alter the fact that the use which the respondents are making of the land is unlawful. It is more related to whether the respondents should be ordered to remove the work which they have carried out on the land, as opposed to an order that they cease allowing the land to be used for car parking.
The fact that an application for an alteration of conditions will be made by the respondents in the future does not alter the unlawfulness of the use. It does not alter the fact of the conditions limiting the use of the land or the fact that formal Council approval is required before use can be made of the land for purposes other than recreational open space.
The respondents at all times, I find, have been conscious of the planning limitations on the use of the land and of the fact of conflict between what they have allowed to occur on the land and the conditions of approval associated with their development, and also the provisions generally of the planning scheme.
I accept the submissions made by Mr Ure of Council as to the reasons why enforcement of the second order should not be suspended and they effectively mirror the matters which I raised with Mr Houston during his submissions.
I agree with the Council that there has been, by the respondents, a flagrant breach of the conditions of the development approval. I also agree that the respondents have acted with a cavalier and complete disregard of those conditions. Not only have they continued to allow the land to be unlawfully used once they were formally advised of the unlawful nature of the use but they have expanded the unlawful nature of the use, in particular by constructing the bitumen car park, constructing a fence around it, allowing vehicles to park on the grass on the northern side of the car park fence, and then moving those vehicles to an additionally constructed area to the south of the bitumen car park. Much of that activity was carried out after the 6th of June 2006 when the show cause notice was issued by the Council.
The fact that the respondents lodged an application to change conditions on the 3rd of August 2006 did not give them a licence to continue to unlawfully use the land and to build upon that unlawful use.
The second reason relied upon by Mr Houston for suspending the enforcement of the second order is what he says would be the impact of the order on some 50 residents who will be forced to obtain alternative accommodation for their vehicles currently stored on the site, and he correctly referred to this matter being mentioned in the authorities as an impact on third parties. I have no difficulty with the principle. However, there is no evidence at all that there will be any adverse impact should the second order be enforced on either the respondents or on the 50 residents referred to by Mr Houston. Some evidence was given by Mr Millard but that goes nowhere near far enough to establish any adverse impact or hardship upon third parties. The evidence does not establish that any unjust result would accrue should enforcement of the second order not be suspended. There is no evidence that any third parties will suffer any injustice, nor is there is any evidence that any of them will suffer inconvenience.
The third matter relied upon by Mr Houston for suspending the operation of the second order was the steps taken to minimise the impacts upon neighbouring owners accepting that there have been impacts upon those owners. Those, I find, are merely attempts, at their highest, to manage an admittedly unlawful and an expanding unlawful use. When I say expanding I mean the extent to which it has expanded since it initially commenced. The attempts by the respondents to manage this use are not sufficient, even accepting them at the level advanced by the respondents, to cause me to exercise my discretion in the balancing exercise in favour of the suspension sought by the respondents.
I agree with Mr Ure that the breach by the respondents of the condition requiring this land to be used only as recreational open space is not just a technical breach. It is not just a case of allowing the parking of vehicles on the land. The use has gone far beyond the mere parking of vehicles on grass and has extended to construction of car parks with bitumen surfaces and earthworks on the land.
The application for a suspension of enforcement of the second order will be refused.
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HIS HONOUR: I make the following orders:
(1) I declare that the use of part of the land described as lot 6 on SP131457 and situated at 17 Pappas Way West, Highland Park, designated as landscape recreation area type 1 on the approved plan of development and depicted as hatched on the plan attached to the originating application 551 of 2007 filed on the 9th of November 2007 and marked A to that originating application ("the subject land") as a hard stand area for the storage and parking of boats, trailers, caravans and motor vehicles and the storage of equipment contravenes condition 1 of Development Approval PM242042/01/DA1 and is an unlawful use and constitutes a development offence.
(2) I order that the respondents, within four weeks of today, cease using or permitting to be used the subject land for the purposes of the storage and parking of boats, trailers, caravans and motor vehicles and the storage of equipment without first having obtained the relevant development approval from the applicant.
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HIS HONOUR: (3) I order that the application otherwise be adjourned to a date to be fixed.
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HIS HONOUR: (4) I give the applicant and the respondents liberty to apply on seven days' notice one to the other.
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