Kilmister v Gold Coast City Council
[2001] QPEC 73
•19/11/2001
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Kilmister v Gold Coast City Council & Anor [2001] QPEC
073PARTIES: BARRY EDWARD KILMISTER
Appellant
and
GOLD COAST CITY COUNCIL
First Respondent
and
EDWARD CAMPBELL, CHIEF EXECUTIVE,
DEPARTMENT OF LOCAL GOVERNMENT AND
PLANNING
Second RespondentFILE NO/S: 324 of 2201 DIVISION: Planning and Environment PROCEEDING: Appeal – determination of compensation to complainant for
“costs” of private building certifier’s unsuccessful appeal
under s 44 of the Building Act 1975.ORIGINATING COURT: DELIVERED ON: 19 November 2001 DELIVERED AT: Brisbane HEARING DATE: 13 November 2001 JUDGE: Judge Robin QC ORDER: The appellant pay to the first respondent as compensation
towards costs incurred by it the sum of $4,500CATCHWORDS: Integrated Planing Act 1997 s 4.1.23
Building Act 1975 s 45(3) – compensation order following an
unsuccessful appeal against a finding of professional
misconduct of a private certifier – no provision for costs
order in Act, rather compensation for any costs in “bringing
the complaint” – held costs of bringing the complaint include
the costs of prosecuting the complaint and resultant appeals –
first respondent gave the appellant fair warning that the
appeal in their view was insubstantial and frivolous and
would incur unnecessary costs which would be sought against
the appellant –some contribution by way of “compensation”
towards the first respondent’s costs appropriate – “test case”
aspect taken into account in awarding reduced compensation
amount.G Lazy J Pastoral Ltd v Queensland Building Services
Authority Appeal 3365 of 1998, 12 May 2000;
Project Blue Sky Inc v Australian Broadcasting Authority
(1998) 194 CLR 355;
Clouston v Motor Sales (Dunedin) Ltd (1973) 1 NZLR 542
Re: An Arbitration between the Autothreptic Steam Boiler
Co., Limited and Townsend, Hook & Co (1888) 21 QBD 182COUNSEL: Mr A. Collins for the Appellant
Mr B. Everson for the First RespondentSOLICITORS: Fitz-Walter for the Appellant
Minter Ellison for the First Respondent
Crown Law for the Second Respondent
REASONS FOR JUDGMENT
Set out in an appendix are the court’s reasons given on 11 October 2001 at the
conclusion of the hearing of Mr Kilmister’s appeal under s 44 of the Building Act
1975 (against the Chief Executive’s decision finding a contravention of s 5.3.5(4) of
the Integrated Planning Act 1997) for the appeal’s being dismissed. That decision
resulted directly in a further decision that Mr Kilmister was “guilty of professional
misconduct”, a notion defined extraordinarily widely, which includes acting ultra
vires, negligently or incompetently in relation to a private building certifier’s power
or practice. As well as an order dismissing the appeal, one was made conditioning
processing of any future application by Mr Kilmister which would have the effect
of re-instating his accreditation (which had lapsed) until he completed relevant
training. The application was adjourned to 13 November 2001 when the court was
“to determine the amount to be paid to the Council by Mr Kilmister under s
45(3)(c)(i) of the Building Act”. I noted that “This provision appears to require the
Court to fix an amount in dollars, rather than permit an order for costs to be
assessed.”
Section 45(3) is:
“In deciding the matter, the court may –
(a) direct the accrediting body to do anything the accrediting body could have done under section 40; or (b) impose a fine, of not more than 1 665 penalty units on the building certifier; or (c) order the building certifier to pay to the complainant or another person the amount the court considers appropriate as compensation for –
(i) any costs in bringing the complaint; and (ii) any damage suffered by the complainant or the other person as a result of the professional misconduct; or (d) make any other order the court considers appropriate.”
The reason for the adjournment was that there was no material before the court
indicating the amount of “costs” within (c)(i); there was no suggestion of “damage”
as referred to in (c)(ii).
Mr Kilmister, who had conducted his own appeal, apparently became apprehensive
about the amount he might be ordered to pay and engaged solicitors who, in the first
item of a bundle of correspondence produced to the court, wrote to the Council’s
solicitors on 8 November 2001:
“In addition to the provision of an affidavit setting out the costs claimed and that the deponent be available for cross-examination, we require production of the entire file of the hearing of the application ... would you kindly provide us by return with copies of your client’s retainer/s with your firm and Counsel in the above proceedings.”
Their response has been to deny any obligation to comply with such requirements,
but an affidavit was filed on the eve of the application in which Michelle Pennicott,
solicitor, deposes to “legal costs (comprising professional fees and outlays) incurred
by the first respondent up to 25 October 2001” as follows:
| Period | Stage | Amount |
| 02/00 to | Enforcement Enforcement notice 02/02/00, negotiation of | $2,151.38 |
| 06/00 | amended development plan, remedial negotiations and enforcement notice 02/06/00 |
| 06/00 to |
| 10/00 | BSA | $0.00 |
| 11/00 to | DLGP Notice of appeal, BSA disclosure, appeal |
| 03/01 | $6,198.69 |
submission, receipt of certifier’s
submission, attendance before DLGP
P&E Court Commencement stage:
| 05/01 | $598.02 |
Receipt of notice of appeal, entry of
appearance, notification to appellant re:costs
| 06/01 to | P&E Court Preliminary jurisdictional stage; | |
| 08/01 | Hearing 15/06/01, hearing 29/06/01, | |
| ||
| 23/07/01, securing orders, notification to appellant |
P&E Court Hearing and preparation stage:
| 09/01 to | Receipt of appellant’s affidavit material, | |
| 10/01 | first respondent’s affidavit material, BSA | |
| accreditation history, subpoena for | ||
| ||
| 21/09/01, hearing preparation, hearing 11/10/01 |
$34,764.65
(The Period column refers to months.)
Through his legal representatives, Mr Kilmister has persisted in his requests
notified in their letter of 8 November 2001, observing in a later letter that the
Council is “seeking the very substantial sum of $35,762.04 in costs from Mr Kilmister without providing him with any opportunity to assess whether the sum is
reasonable in the circumstances.”
While the taking of such an attitude by Mr Kilmister and his legal representatives is
understandable, it is based on a misconception about the exercise the court had
adjourned. I do not think it was ever suggested that the Council might recover its
full costs. I reiterate that the court’s concern was to have some assurance that any
“compensation” that might be awarded fell comfortably within the amount of costs
actually incurred by the Council. At the hearing on 13 November 2001, Mr
Everson, representing the Council, suggested that compensation might be fixed at
$10,000. The court at no time intended to embark on an exercise of assessment or
taxation of costs, and so the sustainability of the amounts deposed to by Ms
Pennicott (which there is no particular reason to doubt) was never the issue, once
the court was comfortably satisfied (as has happened) that costs which may simply
be described as running to “tens of thousands of dollars” have actually been
incurred. It is unfortunate if Mr Kilmister took away with him from the appeal
hearing a different impression. At a number of points I had referred to the amount
that might be claimed by or awarded to the Council being less that it had expended;
Mr Everson had suggested that it was “not looking at trying to get an indemnity
situation even on a party and party basis”.
In the circumstances, there is no question of my awarding more by way of
compensation than the sum mentioned by Mr Everson.
The primary submission of Mr Collins, who appeared on the adjourned hearing for
Mr Kilmister, was that nothing should be awarded at all, on the basis that Mr Kilmister’s appeal should be regarded as a test case, the running of which involved
a public benefit. (Mr Collins in part of his submissions identified the public benefit
as the court’s determining that it is negligence in a certifier to accept uncritically an
applicant’s protestations about the use to which proposed buildings will be put,
eschewing a more sceptical or objective evaluation.) He cited Judge Forde’s
decision in G Lazy J Pastoral Ltd v Queensland Building Services Authority (3365
of 1998, 12 May 2000) in which his Honour, having reserved the issue of costs for
further argument when giving reasons in (2000) QDC 220, ultimately made no
order as to costs of an unsuccessful appeal in which the QBSA was the respondent,
noting that “it may be that there was an attempt to gain for itself in this respect on
the part of the appellant but the end result will be a clarification of a difficult area of
law for home owners.” His Honour’s earlier reasons had suggested that home
owners should seek professional advice before making progress payments, and that
(perhaps surprisingly to a lay person) it may be possible to challenge a certificate
without the builder’s becoming entitled to “walk away from the construction.” His
Honour advanced additional reasons for making no order as to costs, including the
Authority’s having disavowed the line of reasoning adopted by the Tribunal
member whose decision was under appeal.
I accept the proposition that public authorities of many kinds, from those associated
with the Commonwealth and the States to local governments, ought, in the interests
of justice, to bear the costs of test cases in very many situations. I do not suggest
there is any universal rule about this.
There are some special circumstances here. The Council’s solicitors gave Mr
Kilmister fair warning in a letter of 25 May 2001 (a copy of which is exhibited to Ms Pennicott’s affidavit) that they considered the appeal unmeritorious,
insubstantial and frivolous, which was forcing the Council to “unnecessarily incur
costs”; the letter threatened that unless a notice of discontinuance was filed within
the next few days, the Council’s instructions were to seek costs against Mr
Kilmister. As my earlier reasons indicate, Mr Kilmister has taken a stubborn
attitude from the outset, adhering to an erroneous certification, in the face of the
Council’s advices (vindicated by the Chief Executive’s and the court’s
determinations) and declining to take steps to persuade his client not to proceed
with the work. I am confirmed in my provisional view reached at the appeal
hearing that it is consistent with justice that Mr Kilmister be required to make a
contribution by way of “compensation” towards the Council’s costs. I take into
account that the Council’s costs, as observed by the opposing solicitors, are
substantial and that Mr Kilmister has declined to avail himself of opportunities to
have matters resolved at earlier stages, before substantial costs were incurred. I
take into account as well that Mr Kilmister has avoided any penalty by way of a
fine as permitted by the Building Act.
Mr Collins’ subsidiary argument was that any compensation that might be ordered
was strictly limited to “costs in bringing the complaint” which I took him to
contend were limited to the institution of the complaint by an officer of the Council,
and did not extend to costs in the court, for example. The complaint dated 13 June
2000 had an eventful history, having been unsuccessfully pursued before the
Building Services Authority; the Council was not successful until it took the matter
further before the Chief Executive. According to Mr Collins’ argument, costs of
proceedings in this court could not be considered. Mr Everson urged the court to
resist such an inconvenient solution by reference to principles of statutory construction recently approved by the High Court in Project Blue Sky Inc v
Australian Broadcasting Authority (1998) 194 CLR 355, in particular in relation to
“conflicting statutory provisions”.
It is somewhat difficult to identify conflicting statutory provisions here, but one is
aware of the general rule that costs are always a matter of statute, and may be
awarded only where a statute says so. If it matters, in the Planning and
Environment Court, the general rule is against the awarding of costs: Integrated
Planing Act 1997 s 4.1.23. Such considerations do not, in my view, have a bearing
on the proper interpretation of s 45(3)(c)(i). In Clouston v Motor Sales (Dunedin)
Ltd (1973) 1 NZLR 542, 543, it was held that the “bringing of an appeal” involved
more than simply the lodging of a notice of motion referred to in a section of the
relevant legislation (albeit in a different context from the present).
In my opinion, the costs of bringing a complaint include the costs of prosecuting the
complaint and resultant appeals. As Mr Everson pointed out, there is no provision
in the Building Act permitting the making of any order relating to costs of a
“complaint” (defined in s.3(1) as “a complaint about a building certifier made under
part 5”) except the power given to the court on appeal. I think there is a proper
analogy with a power to award “costs of a reference” to arbitration. It is
convenient to set out the short judgments in Re: An Arbitration between the
Autothreptic Steam Boiler Co., Limited and Townsend, Hook & Co (1888) 21 QBD
182:
“ HUDDLESTON, B. I have no doubt whatever that my brother Denman was right; and that the master was wrong in not having allowed all the expenses incurred preliminary to the agreement to refer, but necessary for the purpose of putting the agreement of the parties into form. They agreed that the disputes should be referred and that the costs of the reference and award should be in the discretion of the umpire. What are the costs of the reference? Those costs which are incidental to the reference and incurred in bringing it about, -- costs of arrangements, meetings, discussions, consultations, conferences, and all that are necessary to bring the parties ad idem – to the point on which they agree, but up to which there must be preliminary steps. The master thought that he was bound by the practice which had previously obtained, but I think that he failed to discriminate between a reference in an action and the present case of a reference by agreement, and overlooked the distinction suggested by the learned counsel for the plaintiffs, that when a cause at nisi prius is referred “the costs of the arbitration and award to be in the discretion of the arbitrator,” those costs begin only at the time of the reference, because all the costs prior to the reference are allowed as costs in the cause and the arbitrator would only have to deal with the costs of the reference and award. In In re an Arbitration between Walker & Son and Brown 9 Q.B.D. 434, which was a reference by agreement, Field, J. said, ‘Common sense suggests that the power over the costs of the reference includes a power to give the costs of the award. If no award was made, the reference would never be finished.’ Here if no arrangement had been made prior to the reference there never would have been any reference.”
“CHARLES, J. I am of the same opinion. There had been in the original contracts an agreement to refer. But it was necessary to formulate the agreement and reduce it into the shape of a regular submission. I have looked through the plaintiffs’ bill, and all the items are applicable to the formulating of the submission and appear to be costs of the submission. The master was misled by a false analogy. He referred to the practice with regard to a reference in an action where the costs of the order of reference are treated as costs of the cause and not of the reference. There the order of reference is properly enough part of the costs of the cause, being simply a step in the cause. But here there is no cause. I think the cost of the submission are properly costs of the reference for the reasons given by my learned brother, and that Denman, J. was right. The costs of the award have been held to be ‘costs of the reference.’ and I think the costs of the submission may be so likewise.”
All it is necessary to say in this matter is that there is no occasion to isolate some
strictly limited component of the Council’s costs, as suggested by Mr Collins.
Taking into account all relevant considerations, and making a generous allowance
for the “test case” aspect, I order that Mr Kilmister pay to the Council as
compensation towards costs incurred by it the sum of $4,500.
Appendix
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No 4353 of 2001
BARRY EDWARD KILMISTER Appellant and GOLD COAST CITY COUNCIL Respondent and EDWARD CAMPBELL, CHIEF EXECUTIVE, Second Respondent DEPARTMENT OF LOCAL GOVERNMENT
AND PLANNINGBRISBANE DATE 11/10/2001 JUDGMENT CATCHWORDS:
Building Act 1975 s 3(1), s 44, s 45(3) - Integrated Planning Act 1997 s 4.3.11, s 5.3.5(4), s 5.3.8, s 6.1.2 - appeal to Planning & Environment Court from decision of Chief Executive that private certifier was guilty of professional misconduct - appeal a hearing de novo - private certifier approved plans to build a residence and separate large carport and storage areas - certifier (whose good faith was not challenged) placing reliance on statements made by the owner-builder - vigilance is required from private certifiers who should always act in the public interest - certifier not IPA trained even though it was a condition of his accreditation - in Court's view intended "use" of proposal went beyond residential - plans should not have been certified without a prior material change of use approval - Court reluctant to consider matters not featured in the original complaint made to the Building Services Authority - professional misconduct found - Authority directed to ensure applicant was IPA trained before processing any future application that his accreditation be restored - costs to be awarded in terms of compensation pursuant to s 45(3)(c)(i) of the Building Act.
Mr Kilmister has conducted his own appeal pursuant to section 44 of the Building
Act 1975 against a decision of the Chief Executive, advised to him by letter of 16
March 2001 which found that he had contravened section 5.3.5 subsection (4) of
the Integrated Planning Act 1997 by deciding an application as a private certifier
before all necessary development permits existed as referred to in paragraph (a).
Acting as a private certifier Mr Kilmister had approved an IDAS development
application made by Mr Kevin Campbell for the construction of "new house and
sheds" on a large property at 62 Sickle Avenue, Hope Island.
The proposed development comprised a residence which appears to have had a
habitable area of about 159 square metres at first floor level. There was also a
storage area of some 180 square metres, a carport area of 270 square metres and
additional storage in the residence building of some 453 square metres (apparently
including an area designated "pergola", the area underneath the residence proper,
and a small area walled off from the residence proper) according to a calculation
on file. In addition 60 square metres was said to be comprised in a terrace/deck.
Mr Kilmister has taken issue with the percentage calculations worked out in
accordance with which the habitable area was 14.2 per cent, storage area 80.5 per
cent. He says that distorts the picture given the small portion of the site which was
covered.
What I have said will, I think, indicate the reason for the Chief Executive'sdecision, which was based on a view that there ought to have been an application
for approval of a material change of use to contemplate storage-type activities and
uses. The Campbells, indeed, have since, with Mr Kilmister's assistance,
successfully made an appropriate application.
The Chief Executive's determination resulted directly in a decision that Mr
Kilmister was "guilty of professional misconduct". There can be serious problems
in the use of such graphic language, whose impact on the public mind seems to me
obvious, to cover such a range of matters as are incorporated in the definition of
professional misconduct in section 3(1) of the Act which I set out here:
"professional misconduct" includes conduct (whether by
act or omission) when a building certifier -
(a)
seeks, accepts or agrees to accept a benefit (whether for the building certifier's benefit or another person) as a reward or inducement to act other than under this Act; or
(b) acts in a way contrary to a duty under this Act; or (c)
falsely claims the building certifier has the qualifications, necessary experience or accreditation to be engaged as a building certifier; or
(d) acts outside the scope of the building certifier's powers; or (e)
contravenes a code of conduct published by an accrediting body; or
(f)
acts negligently or incompetently in relation to the certifier's practice."
The matters covered include corruption at one extreme and excess of authority or
negligence at the other. It will be unfortunate if the Chief Executive's decision, which survives this appeal process, were taken by anybody as indicative of moral
obloquy or anything resembling it in Mr Kilmister cf. Greiner v. ICAC (1992) 28
NSWLR 125.
This is an appeal de novo and the complainant, which was the Gold Coast City
Council or, alternatively, Mr Storey, who filled out the original complaint dated 13
June 2000, was unsuccessful before the accrediting authority for private certifiers,
the Building Services Authority. The Council successfully took the matter further
before the Chief Executive.
So far as the Court can assess the matter today on the performance of Mr
Kilmister, he acted in good faith; he says, and there is no reason to doubt it, that he
placed reliance on statements made to him by Mr Campbell. It is impossible to
avoid the conclusion that that trusting attitude led to Mr Kilmister being distracted
from what was his duty in respect of the IDAS development application.
I am willing to adopt the views expressed by Mr Everson in his opening and
closing addresses for the Council as to the importance of the private certifier
system and the integrity of it. Section 5.3.8(1) of the Integrated Planning Act
enacts, "A private certifier must always act in the public interest when performing
the functions of a private certifier."
A significant penalty for breach of that obligation, particular instances of which
are spelt out in sub-section (2), of 1,665 penalty units is provided. It seems to me
that private certifiers are required to exercise the same level of vigilance which assessment managers who form part of the bureaucracy of local governments have
traditionally exercised and I think are expected by the general public to exercise,
galling as that may be on occasions to private developers anxious to get on with
their projects.
While Mr Kilmister appears to have been blinded to the possible ramifications of
what he approved, no-one else has been. The Council's attention was attracted at
an early stage by the complaint of an observer who was chafing under having had
to go through a rigorous and protracted procedure himself for a similar project
only to see Mr Campbell proceeding to do work after a minimum of preliminaries.
Plans submitted with the IDAS application show under "carports" 20 rectangular
spaces. Mr Kilmister disputed that this, in fact, provided for 20 tandem parking
spaces because, as I understand him, the lengths of the spaces were inadequate. In
his view, there were 10 carports only. In addition to that, there was parking for
two further vehicles under the residence behind what was identified on the plans as
a garage door. Beneath the residence was a vast amount of storage space, I think
in individually lockable sections, and that was similarly the arrangement in the
storage shed.
The Council intervened by enforcement notice under section 4.3.11 of the IPA to
prevent the progress of work. This did not happen until the slab for the storage
shed had been poured. Bowing to reality, the Council permitted revision of plans
to accept the bad situation and make use of the slab in particular for car parking. It was incumbent on the Council, pursuant to section 4.3.11(3), to notify Mr
Kilmister before issuing an enforcement notice. In the view of the Council, as
presented by Mr Everson, he compounded his offence by adhering to his approval
rather than act as the Council said he should have to prevail on the Campbells to
stop work until the town planning aspects of their proposal had been regularised.
There seems to have been no basis on which Mr Kilmister's approval of the IDAS
development application could be vacated. Once the difficulty arose, it became
clear that Mr Kilmister's approach was to place complete credence on Mr
Campbell's protestations that the large scale carport and storage aspects of the
proposal were all connected with the residential development which, for present
purposes, was all that the relevant zoning or equivalent arrangements permitted.
Mr Campbell is a builder. He said he had a good deal of gear in that connection.
He and his wife were said to have four daughters living with them, accounting for
a total of six vehicles, and to have large numbers of hanging baskets which might
be hung in some of the covered areas. Further, Mr Campbell intimated that the
land was owned by a superannuation fund which was subject to requirements
limiting its ownership of land to residential land.
While Mr Kilmister was satisfied with these claims, I find it impossible to think
that anyone approaching the matter with the degree of scepticism which I think is
appropriate would have been similarly seduced.
Mr Kilmister has conceded that his approval ran with the land, and that asubsequent owner might come on the scene, who did not acknowledge the
Campbells limitations to purely residential purposes. If the Campbells or others
built as per the original plan, there would presumably be a potential problem
requiring policing by Council officers to ensure that the apprehended commercial
use of the land did not eventuate would be called for, at considerable cost. It is
difficult to agree with Mr Kilmister's assessment that the original proposal was too
small to be capable of being used commercially.
Mr Kilmister has picked up submissions from Mr Hinson SC (who appeared for
the Chief Executive) which indicated that pursuant to section 3.5.11 of IPA and
related sections, conditions could have been attached to his approval with a view
to commercial uses being excluded. I think Mr Kilmister was wrong to adopt the
trusting approach which he did. There has been a good deal of background
evidence which may go far to explain how this could happen.
Mr Kilmister has no legal or town planning qualifications. He is a structural
engineer and building surveyor and, among other things, has used his skills
working in local government. He has not undertaken IPA training as he was
required to do within a limited time as part of his accreditation as a private
certifier. He indicates he has attended some lectures, but he has not sat the exam
which is part of the course required.
He demonstrated during the hearing of this appeal what might be called acommonsense approach which is in some ways at odds with IPA which, as I
suggested to him, may regard a use as occurring at what commonsense might
regard as a very preliminary stage when preparations are made to facilitate an
intended use.
Another aspect which I raised myself is that Mr Kilmister had a role in this matter
as structural engineer and building surveyor, lending his status as such by way of
approval of slab and footing layouts for the proposed residence, carports and
"garages". The imprint of his business in that regard appears on plans of
December 1999 which were part of the plans submitted with the IDAS
development application. Others of those plans which appear to have been
prepared by Mr Campbell, himself, bear Mr Kilmister's stamp and signature as a
private certifier, and one dated the following month. A code of conduct for
building certifiers in part 1 of a document headed Queensland Practice Standard
for Building Certifiers issued by the Queensland Department of Communication
and Information, Local Government and Planning, in partnership with the
Building Services Authority, a copy of which is Exhibit 2, which is picked up in
the definition of professional misconduct, does not include an express statement of
the kind found in section 4.1 which says, "A building certifier cannot be engaged
if there is a conflict of interest." I would think it salutary, perhaps, if such a
stipulation, which I think is inherent in part 1, were expressly there.
I do not find it necessary to resolve the question whether the relevant definition of
"use" is to be found in section 19 of the relevant Planning Scheme which was the Albert Shire Planning Scheme of February 1995, Exhibit 1, or the schedule 10
definition in the IPA which is more restrictive. It says that, "Use in relation to
premises includes any use incidental to and necessarily associated with the use of
the premises", whereas the scheme defines the term as including "any use which is
ancillary to the lawful use of the premises in question", with "ancillary" being
defined as "associated with but not incidental and subordinate to the relevant
development." It is this definition of "use" that Mr Kilmister says he used. Mr
Everson may be correct in saying that the IPA definition is the one that is
favoured, having regard to section 6.1.2(2).
The Court of Appeal also indicated in Boral Resources (Qld) Pty Ltd v. Cairns
City Council [1997] 2 Qd R 31 at 36 that a certain amount of rigour is called for in
the application of "necessarily associated with".
Mr Kilmister is correct in a sense in saying that the use that would actually have
been made of the land is unknown. Whereas he draws the conclusion that reliance
should be placed on what the owner says is going to happen, it seems to me that
the whole planning system depends on looking a little more objectively at the
situation to identify the intended use. There can, of course, be multiple uses of the
same land.
Mr Hinson referred the Court to an interesting collection of cases which
demonstrate that. These included Walker v. Noosa Shire Council [1985] 1 Qd R
387 especially at 394;
Warringah Shire Council v. Raffles (1978) 38 LGRA 306;
Chesser v. Morris (1958) 4 LGRA 175; Beaudesert Shire
Council v. Smith (1997) QPELR 358; and North Sydney
Municipal City Council v. Hall (1987) 62 QGLA 1.
He also cited as indicating that a planning authority which might be the Court or a
local government or a private certifier ought to be careful about taking at face
value what owners or other self-interested persons say they intend to do with the
land, Theologidis v. Council of the Shire of Caboolture (1994) QPELR 301. That
was a decision of Judge Skoien.
I think the only reasonable conclusion in the present circumstances was that a
commercial use of a storage nature was apparently intended by the Campbells. Mr
Everson referred to a list of purposes in appendix 3 under "light industry" at 19.13
of Exhibit 1 as indicating that even some of the uses Mr Campbell indicated might
have come within the purview of light industry such as "builder's supply depot,
workshop or yard".
On the basis that anything of that kind was intended for the land, and I am told it
was, a material change of use was involved and under the provision relied on by
the Chief Executive that is something Mr Kilmister should have appreciated, with
the consequence that he ought not to have given the approval he did give until
things were regularised. I agree with the Chief Executive's conclusion.
This is an appeal de novo, and the Council bears the onus of proof. Judge Skoienhas, in fact, determined as much by a ruling given by him in this matter which
relies on his Honour's reasoning and conclusions in a similar matter of Stacey
Kennedy v. Gold Coast City Council and the Chief Executive and Building
Services Authority, file number 393 of 2001, 23 July 2001.
I have approached my task on that basis. I note that Mr Everson at one stage
appeared to be seeking to enlarge on the extent of Mr Kilmister's shortcomings as
a private certifier, raising, for example, other matters such as his failure to take the
IPA training course. Exhibit 3, a bundle of correspondence involving the
Authority and the appellant's affairs, indicates that he has, in fact, had his
accreditation cancelled on this basis.
I expressed misgivings about the appropriateness of extending the scope of this
appeal to bring in matters of that kind which didn't even feature in the complaint
made by Mr Storey to the Authority.
A number of views could be taken as to what matters might be properly ventilated
in an appeal such as this. Mr Everson's position was that in an appeal de novo, it
would open to his client to rely on any instances of "professional misconduct"
which it might unearth. (He said that in this case he was mentioning aspects such
as failure to complete IPA training and Mr Kilmister's persisting in assertions his
approval was correct in the face of challenge only in so far as they bore upon the
seriousness of that inappropriate approval.)
The most restricted view, I suppose, would be that the Court in this appeal waslimited to the instance of professional misconduct found by the Chief Executive.
A middle view might be that the parameters were fixed by the contents of the
complaint.
It is unnecessary for me to express any conclusion, but as presently advised I
would think that the complaint prima facie set the parameters, although I would
concede a case could be made for bringing in other matters of which the private
certifier being charged with professional misconduct had fair notice.
There have been some general submissions made relating to penalty. I am already
inclined to take up Mr Hinson's suggestion that the Court act under section
45(3)(a) of the Building Act and direct the Authority that should Mr Kilmister
apply for accreditation as a private certifier in the future his application not be
processed until he has completed the relevant IPA training. That seems to me an
order that is clearly called for as part of the total package of orders that might be
made, including dismissing the appeal.
Otherwise the appeal is adjourned to 9.30 a.m. on 13 November 2001 to determine
the amount to be paid to the Council by Mr Kilmister under s 45(3)(c)(i) of the
Building Act. This provision appears to require the Court to fix an amount in
dollars, rather than permit an order for costs to be assessed.
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