Gold Coast City Council v Metrostar Pty Ltd
[2004] QPEC 24
•16 June 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gold Coast City Council v. Metrostar Pty Ltd & Ors [2004] QPEC 024
PARTIES:
GOLD COAST CITY COUNCIL (Applicant)
v
METROSTAR PTY LTD (First Respondent)
and
BAPTIST JERRY ROMANO (Second Respondent)
and
PATRICIA ANN ROMANO (Third Respondent)
and
ROMANO CONSTRUCTIONS PTY LTD (Fourth Respondent)
and
PATRICK JOHN CLARKE (Fifth Respondent)FILE NO/S:
42 of 2003
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court Brisbane
DELIVERED ON:
16 June 2004
DELIVERED AT:
Brisbane
HEARING DATE:
4 and 5 May 2004
JUDGE:
Alan Wilson SC DCJ
ORDER:
1. The first and fourth respondents shall within
fourteen days from the date hereof:
(a) apply hydromulching in accordance with
paragraph 6.1(b) to (e) and paragraph 6.7(b) of
the order made 3 November 2003 to those parts
of the areas referred to paragraph 6.1(a) of that
order where there is grass cover of less than
50% excluding the existing road track, the areas
where hydromulching is to be applied in
accordance with this order to be identified by
agreement between Mr Niven and Dr Loch on
inspection and marked on the ground by
spraypaint within seven days from the date
hereof;(b) install further spill through weirs at the lowest
point of the existing sediment fences on the land,
those points to be identified and agreed by Mr
Niven and Dr Loch on inspection within seven
days from the date of this order;(c) further extend by one metre each side of the
rock check dams referred to in paragraph 6.4(a)
of the order made 3 November 2003
(d) cover the upstream face of each of the rock
check dams referred to in paragraph 6.4(b) of
the order made 3 November 2003 with non-
woven geotextile having a density of a minimum
300 grams per square metre.2. Paragraph 6.6 of the order made 3 November 2003 and paragraphs 1.3(a) to (e) of the order made 14 November 2003 are set aside, and in lieu thereof it is ordered that the first and fourth respondents within 45 days from the date hereof landscape the areas marked Open Space Area and Open Space/Gully Area on the Immersion Drawing No. SLI 10/01 dated 29 December 2003 in accordance with and on the terms stated on that drawing.
3. Paragraph 1.1 of the order made 14 November 2003 is varied so as to delete sub-paragraph (a) thereof and in lieu it is ordered that the first and fourth respondents within 45 days from the date hereof revegetate the areas marked Residential Buffer Areas on the Immersion Drawing No. SLI 10/01 dated 29 December 2003 with the species referred to in paragraph 1.1 of the order made 14 November 2003 at a minimum density of 1 per 2m2 using 75 mm diameter native tubes.
4. Paragraph 1.2 of the order made 14 November 2003 is varied so as to delete sub-paragraphs (a) to (e) thereof and in lieu it is ordered that the first and fourth respondents:
(a) commence to revegetate the eastern buffer area
referred to in the second order in accordance with
and pursuant to the terms of the approval granted
by the council on 5 December 2003 for such works
under the operational works application 24/00118
within 21 days from the date of this order; andwithin (b) within 45 days from the date hereof revegetate the
Eastern Buffer Area in accordance with sub-
paragraph (a).5. Without prejudice to or in limitation of the applicant’s rights and the first and fourth respondents’ obligations under this order, in the event that the first and fourth respondents fail to comply with any of the requirements of this order the applicant shall be entitled to call upon the banker’s undertaking dated 16 January 2004 given by Westpac Banking Corporation in favour of the Gold Coast City Council referring to liability No. 232460/0044 without notice to the first and fourth respondents and to apply all or part of that sum to remedying the non-compliance
CATCHWORDS:
PLANNING AND ENVIRONMENT – ENFORCEMENT ORDERS – non-compliance with enforcement orders – discretionary considerations
Integrated Planning Act 1997 ss 4.1.22, 4.3.25, 4.3.27
Cases considered:
Queensland Cement Limited v United Global Cement Pty Ltd [1999] QPELR 167COUNSEL:
Mr M Hinson SC and Mr WG Everson for the applicant
Mr E J Morzone for the first and fourth respondentsSOLICITORS:
Minter Ellison Gold Coast for the applicant
Macdonnells Solicitors for the first and fourth respondents
These proceedings relate to land being developed at Armstrong Way, Nerang. This court declared on 3 November 2003 (‘the first Order’) that the first and fourth respondents (‘the respondents’) had, in the course of development of the site for the construction of town houses, carried out work in contravention of development approvals. The first Order, and a later one made on 14 November 2003 (‘the second Order’) directed that the respondents perform remedial work. The Council now complains they have not complied with those orders, and seeks further enforcement orders directing them to do so.
The site (Lot 3 on RP 807016) contains 33.847 hectares. On 21 May 2001 Council issued a development permit for a material change of use potentially allowing the building of 112 town houses[1], in three stages. Some notion of the respective size of each stage can be obtained from the fact that Stage 1 was originally intended to contain 40 town houses, Stage 2 would have 42, and Stage 3, 30. On 11 January 2002 Council approved vegetation removal, but only on the area described as Stage 1[2].
[1] Certificate of Dale Dickson, Chief Executive Officer of the applicant, filed 24 October 2003, attachment 7.
[2]Ibid, attachment 14.
Evidence presented at the hearing on 3 November 2003 very clearly showed the respondents had in fact cleared Stage I, but also cleared and removed most of the natural vegetation in Stages 2 and 3, without permission; and, had failed to perform other works required under the development approvals of 21 May 2001 and 13 May 2002. Under the first Order they were required to stop work on Stages 2 and 3 and perform defined remedial work on them, and other open space areas which had also been wrongly cleared; to revegetate a gully; and, to monitor and maintain those works.
Subsequently, the parties returned to court on 14 November and obtained the second Order on agreed terms[3] dealing with the revegetation of Stages 2 and 3, part of Stage 1 called the “Eastern Buffer Area”, and open space areas. It was quite precise about the work to be done, descending to the nature of trees, shrubs and ground cover/grasses to be planted.
[3] Order 14 November 2003
In the present application filed 14 April 2004 Council sought enforcement of those orders with which, it is alleged, the respondents had not complied. The matter was heard on 4 and 5 May. An inspection of the site was undertaken, and witnesses were cross-examined. On 4 May the respondents cross-applied for an order setting aside or varying the second Order but by an oversight (as I accept) neglected to seek an order also setting aside or varying paragraph 6.6 of the first Order. Council was not surprised by that second application and it is appropriate to grant the respondents leave to amend their application filed 4 May 2004 by:
(a) inserting the words “order made on 3 November 2003 (the 3.11.03 order)” after the words “(the order”) in the first line of the introductory part of para. 1 of the application; and
(b) inserting the words “paragraphs 6.6 of the 3.11.03 order” in the introductory line of sub-paragraph 1(c).
Jurisdiction to make the first and second Orders arises under the Integrated Planning Act 1997 (“IPA”), Chapter 4, Part 3 and, in particular, Division 5 (Enforcement orders of court)[4]. The respondents did not dispute the court’s power to make those Orders or to hear this application, which was brought under s 4.1.22 (Court may make orders about declarations) or s 4.3.25 (Making enforcement order).
[4] see, in particular, s 4.3.25
The first and second Orders, beyond restraining the respondents from committing development offences were remedial, and not punitive in nature: IPA ss 4.3.26(1)(d) and (2)(b). As those parts of the legislation plainly contemplate, the orders were made with the expectation they would be obeyed and would, as effectively as possible in the circumstances, restore the affected parts of the land to its condition before the commission of the offences. The inspection of the site on 4 May 2004 vividly showed, and the respondents conceded, that they had not complied with a number of aspects of both orders. The concession involved an acknowledgement that additional works were necessary to complete or maintain the work prescribed by paragraphs 6.1, 6.2, 6.4 and 6.6 of the first Order; and, by inference, there was a further admission that much of the revegetation work required by the second Order had not been performed.
The respondents contended, however, that paragraph 6.6 of the first Order and the whole of the second should be set aside or varied because facts had been discovered, or had arisen, since the making of those orders which, had they been the subject of evidence at the time would have led the court to exercise its discretion differently. In the alternative, it was contended the respondents were entitled to be relieved from performance of some of the requirements of the orders. The court’s jurisdiction to order relief of this kind was said to arise under IPA s 4.3.27(3), which provides:
(3) The court may cancel or change an enforcement order or interim enforcement order.
These claims for relief against enforcement were advanced on the grounds the respondents had genuine concerns about the work the orders required and that those works might be rendered futile because of other works said to be the subject of the original development permit, and pending approvals for further, subsequent works. By inference, these concerns occurred to the respondents almost immediately after the second Order was made because, as inspection of the site showed, their efforts at compliance were plainly desultory.
After the first and second Orders were made and in accordance with their terms the respondents submitted an ‘operational work application’[5] which Council approved on 5 December 2003. Thereafter, revegetation of specified areas should have been undertaken within 30 days. (Under paragraph 1.1 of the second Order, revegetation of Stages 2 and 3 should have been completed earlier – within 30 days of the order itself, ie by 14 December.) All of the works required by both orders should have been completed, then, by 5 January 2004.
[5] as paras 1.2(d) and 1.3(d) of the second Order required
Instead, when Council’s engineer Mr Steer inspected the site on 16 December he discovered no revegetation work had begun on Stages 2 and 3. The following day he had a meeting at the site with the second Respondent Mr Romano and others including the respondents’ landscape architect. Both Mr Steer and Mr Romano filed affidavits and were cross-examined. I am satisfied that, at that meeting, only Stages 2 and 3 were discussed and Mr Romano expressed concern that the works required in those areas by the orders would be futile (because subsequent building work, to be undertaken in the foreseeable future, would damage plants and groundcover, and a change in the road and building layout was also anticipated); and, that Mr Steer spoke words at that meeting from which it could be inferred the Council would adopt a ‘practical’ approach to compliance with the orders[6].
[6] T 71.10-24.
The respondents submit that their non-compliance should be considered in the light of that indication from Mr Steer, and their subsequent lodgement of a Banker’s Undertaking for $60,000 with Council, and of applications in January, February and March 2004 for variations of the proposed layout of the development of Stages 2 and 3, and earthworks and landscaping (none of which have yet been approved by Council); and, that these events satisfactorily explain why nothing has been done to revegetate under paragraphs 6.6 of the first Order or the whole of the second Order, and warrant excusing those failures or, at least, mean they should not be viewed harshly.
It was not contended that anything said by Mr Steer constituted a waiver of Council’s right to insist upon compliance with the orders, or gave rise to some form of estoppel which might avail the respondents in these proceedings. Otherwise, the respondents’ submissions cannot easily be accepted. As appears from the following reasons, their non-compliance has been, by any measure, serious and flagrant. Their subsequent conduct means it can readily be inferred that they quickly formed a resolve not only to ignore the orders, but to take steps which might discourage Council’s insistence upon compliance: for example, the subsequent applications were made piecemeal, and intermittently, rather than in a fashion consonant with ongoing efforts to achieve compliance on, say, new terms.
The discretion arising under s 4.3.27(3) is plainly a very wide one. The factors raised by the respondents are, I accept, relevant to it but they do not warrant the lenient approach for which they contend. The orders were clear in their terms. No appeal was brought against them. They followed clear breaches of development permits and the unlawful and almost complete destruction of natural vegetation on areas which clearly should not have been touched. Mr Romano’s protestations of good intentions, during his evidence, and willingness to do ‘whatever needs to be done’[7] were belied by the respondents’ long failure to respond to the Orders, or act in a way suggesting a serious or genuine intention to attempt to comply, however belated or ineffectual. In the interim, as the inspection showed, they have nevertheless been diligent in advancing the building works.
[7] T 135.17
For these reasons, the respondents’ submissions about the way the discretion should be exercised have little force, and I am not persuaded there are any grounds for granting the relief they seek. There was, however, some evidence about aspects of the work the subject of the orders which is relevant to the terms of any particular further orders that should be made, and those matters are dealt with individually below.
Because the parties approached each Order and the matters relevant to it in much the same way (traversing, seriatim, paragraph 6 of the first Order and the whole of the second) it is convenient to deal with the issues in the same sequence.
The first Order
Paragraph 6.1: Hydromulching
Paragraph 6.1 required the respondents to cover all cleared areas in Stages 2 and 3, and Open Space areas, with hydromulch in accordance with certain specifications as soon as reasonably practicable. Paragraph 6.7(b) required the hydromulch to be maintained. Some of this work has been carried out but, in the nature of hydromulching, it provides only short term protection and maintenance and reapplication are usually necessary[8] . Generally, the expert witnesses were in agreement that hydromulch required re-application in those areas where its initial application had resulted in grass cover of less than 50%, and in respect of which there is not less than 30% visible soil cover excluding roads and tracks[9].
[8] Dr Loch, T 98 ll 30-45, T 101; Mr Woodrow T43, T44
[9] Mr Woodrow T 27, Mr Niven T 124 ll 8
No attempt was made by the respondents to excuse or explain their apparent failure to perform adequate maintenance work or re-apply the hydromulch as necessary, and there is no reason it could not be performed forthwith. Disagreement between the parties eventually contracted to an argument about the period in which this work should be performed and who, on behalf of the applicant Council, should inspect to ensure its proper performance. The respondents sought 21 days to perform the work, and Council contended for 14. It is necessary to enforce the terms of the first Order in this respect and appropriate to direct that the respondents apply hydromulching, in accordance with paragraphs 6.1(b) to (e) and paragraph 6.7(b) of the first Order to those parts of the areas referred to in paragraph 6.1(a) of that Order where there is grass cover of less than 50% excluding the existing road track; and, that the areas where hydromulching is to be applied in accordance with this order should be identified by agreement between Mr Niven and Dr Loch at an inspection, and marked on the ground by spraypaint within seven days from the date of this order; and, that otherwise the respondents should perform all of this hydromulching work within 14 days of the date of this order.
Paragraph 6.2; Sediment Fences
Paragraph 6.2 of the first Order required the respondents to carry out certain works in relation to sediment fences as soon as reasonably practicable. The fences were required to be maintained: 6.7(b). The evidence of Mr Woodrow clearly established deficiencies in the fences as late as 8 April 2004 although, at the time of inspection, some defects had apparently been remedied. The parties agreed the only current, outstanding matter concerned paragraph 6.2(c) which required the installation of spill-through weirs at 30 metre spacings along sediment fences greater than 100 metres in length[10].
[10] Mr Woodrow, T 29-30, T 49; Mr Niven, T 125
The draft orders submitted by the parties in this respect were largely in accord, and it is appropriate to direct that the respondents, within 14 days of this order, install further spill-through weirs at the lowest points of the existing sediment fences on the land, those points to be identified and agreed by Mr Niven and Dr Loch at an inspection within seven days from the date of this order.
Paragraph 6.4: Rock Check Dams
Paragraph 6.4 required the respondents to extend each end of the rock check dams built in a gully up to the sides of that gully in accordance with a specified drawing, and to cover the dams with a product called geotextile as soon as reasonably practicable. They proffered no explanation why this very clear order had not been acted upon. Mr Woodrow and Mr Niven agreed the ends of the dam should be extended by one metre on each side, and covered with geotextile. The appropriate order is that each side of the rock check dams be further extended by one metre and that the upstream face of each of the dams referred to in paragraph 6.4(b) of the first Order be covered with non-woven geotextile having a density of a minimum 300 grams per square metre, within 14 days.
Paragraph 6.6: Revegetation of Gully Area (and paragraph 1.3 of the second Order)
Paragraph 6.6 of the first Order required the respondents to revegetate with two plant species in the gully, in the manner specified in that order, as soon as reasonably practicable. This gully area overlaps an area which is the subject of paragraph 1.3 of the second Order, on which replanting was to occur within 30 days of the operational works approval given on 5 December 2003. I accept Mr Niven’s evidence that none of this work has been carried out. I also accept Mr Steer’s evidence that this was not a matter discussed at the meeting he had with the Mr Romano in December 2003[11]. This failure (and other failures) has occurred while, as inspection very clearly illustrated, the respondents have progressed with the construction of townhouses in Stage 1 and other related works with apparent speed and vigour. It has not been suggested they lacked a capacity to perform the works the Orders require.
[11] Mr Steer’s affidavit, para 13
The purpose of the orders was to protect the gully area from erosion. The most dangerous period is December-April[12] but the oral evidence showed that the risk is only reduced, and not extinguished, over the coming winter months[13]. The respondents’ contention that a reasonable response to the risk is simply to ensure that revegetation works occur before the beginning of October 2004 is self serving, and sits uncomfortably in the mouths of parties who have simply ignored the clear terms of the orders.
[12] Dr Loch’s affidavit, para 40
[13] Mr Woodrow T 36, Dr Loch T 94 ll 20, 55
The respondents purported to rely, in the alternative, upon the terms of a further application concerning landscaping of the entire site which they had lodged with Council in January 2004, which has not yet been decided. There is no basis for interference with the Council’s jurisdiction about these matters through any attempt to predict the outcome of the applications it has before it[14].
[14]Queensland Cement Limited v United Global Cement Pty Ltd [1999] QPELR 167, per Robin QC, DCJ at 174.7
The respondents also contended that at the time the orders were made it was not drawn to the court’s attention that some parts of the clearing of the gully area had been properly undertaken pursuant to a bulk earthworks approval of 13 May 2003[15]. Some drawings[16] showed approval for battering, filling and compacting of fill, and the construction of rock walls, a rock check dam, a sewerage pump station, and a retention basin.
[15] Mr Dickson’s certificate filed 24 October 2003, Attachments 16 and 17
[16] D 9.2.11, 12, 14 and 15
I am not persuaded that clearing in the gully between Stages 1 and 3 was in truth the subject of that approval. Aerial photography[17] shows that clearing outside Stages 1, 2 and 3 occurred outside the gully itself, between Stages 1 and 3. Conditions attached to the approval of 13 May 2002[18] required revegetation of exposed works and that no area remain unvegetated for more than two weeks. Those conditions are reinforced in the Stormwater Management Plan, and Condition 8 of the Operational Works Approval required works to be performed in accordance with that plan. I am satisfied the second Order properly reiterates those requirements. In any event, at the time of this hearing all parties agreed works in the gully should be performed pursuant to Drawing SLI 10-01, which is Attachment 5 to Mr Dickson’s certificate of 14 April 2004.
[17] Mr Hardman’s affidavit filed 17 October 2003, Exhibit FGH 7
[18] Mr Dickson’s certificate 24 October 2003, Attachment 17, Conditions 8, 29, 30, 35 and 39
I am also unpersuaded that current sediment and erosion control measures are adequate to avoid the risks they should extinguish, and Mr Niven accepted that conditions attached to the Operational Works Approval of 13 May 2002 represented good engineering practice[19].
[19] T 121-122
The respondents again submitted that this work need not be performed immediately, and that they should simply be directed to undertake it no later than 30 September 2004, while Council argued for performance within 30 days. For the reasons set out above I am unpersuaded the risk has evaporated with the change of seasons, or that it should be deferred pending determination of the further applications, or that there is any good reason why it should not be undertaken promptly. The respondents’ new landscaper Mr Monger said it may take some time to source the relevant plants[20] but that is a problem entirely of the respondents own making.
[20] T 102.8
Nevertheless, taking these contingencies into account and concerned to ensure that all further orders of this court meet with compliance, I will allow 45 days; and, order that paragraph 6.6 of the first Order and paragraphs 1.3(a) to (e) of the second Order be set aside, and in lieu thereof it is ordered that the first and fourth respondents landscape the areas marked Open Space Area and Open Space/Gully Area on Immersion Drawing No SLI 10-01 dated 29 December 2003 in accordance with and on the terms stated on that drawing within 45 days.
The second Order
Paragraph 1.1: Revegetation of Stages 2 and 3
Paragraph 1.1 of the second Order required the respondents to revegetate all of Stages 2 and 3 excluding future roads and building footprints, as shown on three plans. The order was supplementary to paragraph 6.1 of the first Order which required that all cleared areas be hydromulched. The respondents now apply to set aside or vary that part of the second Order on the grounds touched upon earlier - that the extent of site disturbance necessary to construct works the subject of the further application they made on 27 February 2004 will render revegetation futile, and impractical; and, that it is unnecessary to perform the works to protect those stages from erosion, and sediment.
The second Order referred to particular plans. There has been no attempt at compliance. The plans put forward by the respondents at the time excluded areas around the ‘building footprints’ (areas where revegetation would be illogical because of future building construction)[21]. There was evidence suggesting that the rationale which excluded building footprints and future roads at the time of the second Order might now extend to a larger area, which should now be excluded, but the entire position has further uncertainty attached to it because the respondents have applied for modification to the Material Change of Use Approval, proposing a new and different layout. Mr Romano said that, subject to approval, works on Stages 2 and 3 will commence as soon as Stage 1 is finished, or in approximately three months time. In short, the respondents’ contention is that the maintenance of hydromulching on Stages 2 and 3 is sufficient and those areas might reasonably be left unvegetated subject to a condition that, upon approval of new development plans, any area then outside the area of the building and road footprints should be revegetated.
[21] Mr Dickson’s certificate 14 April 2004, Drawing 23010 LO4 (Attachment 2) and Drawing SLI 10-01 (Attachment 5)
In essence what the respondents seek is to be excused their past non-compliance with the previous Orders, or future compliance, by dint of a change in their plans and, in essence, inconvenience. These proposals for relaxing the terms of the orders facilitate the respondents’ own future development work, in the face of initial breaches which were themselves very serious, and which have been compounded by unexplained non-compliance. The works under the previous orders were required to be completed by 5 January 2004 at the latest, but were absolutely ignored. The respondents have subsequently made three applications to the Council, not simultaneously, but in January, February and then March 2004 relating to landscaping, and Stages 2 and 3. As Mr Hinson SC for the Council fairly submitted, it is impossible to conclude other than that the respondents have been assiduous in seeking to protect their interests, but have shown scant regard for the court’s orders and the conditions of their existing approvals.
I am not persuaded that revegetation is unnecessary to adequately protect Stages 2 and 3 from erosion, and sediment. The witnesses generally agreed that planting Acacia species will provide additional protection over and above hydromulching[22]. Mr Niven thought hydromulching and sediment fences might be sufficient by themselves but only if they were properly maintained and the respondents’ conduct in that respect provides no basis for confidence that would occur. Nor can it be said that any certainty attaches to the commencement of construction work in Stages 2 and 3. Further approvals are necessary and, as Mr Romano’s answers during his cross-examination implied, progress on those stages might be determined by the number of sales of dwellings in Stage 1[23].
[22] Mr Woodrow, T 41; Mr Schubert, T 58, T 60; Mr Steer, T 72; Dr Loch T 98-101; and, Mr Niven T 120
[23] T 128.4
Mr Steer did acknowledge the respondents had genuine concerns about revegetation work being rendered futile[24] and, following discussions with him (as I accept) they lodged plans and new applications for approval of a changed layout for Stages 2 and 3; but, for the reasons traversed earlier these events lack relevance to the primary circumstances, in which the respondents quite denuded large areas of land without permission and have subsequently ignored orders to remedy and repair those serious breaches. I am unpersuaded there is any proper basis to relieve the respondents of the obligation to repair Stages 2 and 3 in a satisfactory way but, again, in view of the time which has now elapsed and some confusion which has beset this development (largely, it must be said, at the respondents’ behest) it is appropriate, again, to allow them 45 days; and, to take into account the fact there has been some natural revegetation and the density of planting can be reduced[25].
[24] T 67.9
[25] Mr Schubert, T 559
The appropriate order is that paragraph 1.1 of the order 14 November 2003 be varied so as to delete sub-paragraph (a), and in lieu thereof to order that the first and fourth respondents revegetate the area marked Residential Buffer Areas on Immersion Drawing No. SLI 10-01 dated 29 December 2003 with the species referred to in paragraph 1.1 of the order 14 November 2003 at a minimum density of one per 2m² using 75mm diameter native tubes, within 45 days.
Paragraph 1.2: Revegetation of the Eastern Buffer Zone
Paragraph 1.2 of the second Order required the respondents to replant the Eastern Buffer Area, identified on a specified plan and in a subsequent application made by the respondents on 28 November 2003, and approved by Council on 5 December. The respondents seek to set aside or vary that order on the grounds that:
(a) parts of it were cleared by persons other than the respondents;
(b) earthworks and building approvals for Stage 1 necessitate entry into the buffer zone and disturbance of it;
(c) it will be the subject of permanent landscaping and revegetation works immediately upon completion of Stage 1.
Council’s engineer, Mr Steer, agreed that some clearing of this area might have been undertaken by persons other than the respondents but that is not, on any view, a justification for relieving them from performance of the clear terms of the order. The zone had been cleared before that order was made; and, the order was made without objection from them. No attempt has been made to identify what parts were cleared or what clearing might have been performed by other persons; nor do the respondents contend they should only be required to replant the areas they cleared. Save for the submission of an Operational Work Application for landscape works, required under paragraph 1.2(d), they have done nothing to meet the terms of the order (something which was very clear on inspection of the site).
It was also contended that parts of the zone are the subject of outstanding building works, for which approval has been granted and there is a need to gain access to them from the buffer zone – essentially, that areas in and around the zone are part of the building construction site. This submission could be readily comprehended on inspection but no attempt was made to put the building approvals in evidence and the earthworks approvals for Stage 1[26] contain conditions (7, 8, 30, 35 and 37) which are relevant. It was also contended there was little risk of a dust nuisance in coming months or, if it existed, it could be extinguished by a timely approval of final landscaping works, currently before Council; but, the plant schedule approved by Council on 5 December 2003 under paragraph 1.2(d) of the second Order is little different from that contained in the landscaping application subsequently lodged with Council by the respondents in January this year.
[26] Mr Dickson’s certificate 24 October 2003, Attachment 17
It was plain on inspection that some parts of the buffer area (eg, near an area called Galleria Court) could be revegetated now without impeding building work generally in Stage 1. It was also clear that construction works in Stage 1 near the Eastern Buffer Zone are highly advanced and the revegetation works could commence within a short interval without significant interference to them. Again, I think a period of 45 days is appropriate by way of a requirement that the breaches be remedied, and that this will not cause excessive hardship.
It is appropriate to order, then, that paragraph 1.2 of the second Order be varied so as to delete sub-paragraphs (a), (b), (c) and (d) and in lieu thereof to order that the first and fourth respondents:
(a) commence to revegetate the Eastern Buffer Area referred to in the second Order in accordance with and pursuant to the terms of the approval granted by the Council on 5 December 2003 for such works under the Operational Works Application 24/00118 within 21 days from the date of this order; and
(b) within 45 days from the date hereof revegetate the Eastern Buffer Area in accordance with sub-paragraph (a)
Respondents’ Banker’s Undertaking
Subsequent to his conversation with Mr Steer late last year, Mr Romano (on behalf of the respondents) volunteered a Banker’s Undertaking to the value of $60,000, and Council now seeks an order under which it would be entitled to call upon that if the respondents’ non-compliance persists. The respondents’ conduct thus far means Council’s fears are not unreasonable.
It is appropriate to order that, without prejudice to or in limitation of Council’s rights, and the first and fourth respondents’ obligations under this order, in the event those respondents or either of them fail to comply with any of the requirements of this order Council shall be entitled to call upon the Banker’s Undertaking dated 16 January 2004 given by Westpac Banking Corporation in favour of the Gold Coast City Council referring to Liability No. 232460/0044 without notice to the first and fourth respondents and to apply all or part of that sum to remedying the non-compliance.
Costs
In its written submissions Council signified an intention to seek costs associated with these proceedings and I will hear further submissions on that issue.
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