Sunshine Coast Regional Council v. Flanigan & Ors
[2009] QPEC 68
•14 August 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Sunshine Coast Regional Council v Flanigan & Ors [2009] QPEC 68
PARTIES:
Sunshine Coast Regional Council (Applicant)
AND
Ronald Douglas Flanigan and Lynda Ann Flanigan
(First Respondent)
AND
Ron Flanigan Motors Pty Limited (Second Respondent)
AND
Flanigan Motors (Aust) Pty Ltd (ACN 130 005 917) trading as Torquegas Conversions Sunshine Coast (Third Respondent)
FILE NOS:
103/09
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:
14 August 2009
DELIVERED AT:
Maroochydore
HEARING DATE:
6 August 2009
JUDGE:
Judge J.M. Robertson
ORDER:
Adjourn application to a date to be fixed. Liberty to apply
CATCHWORDS:
BUILDING AND PLANNING CONTROL: application by Council for declarations and enforcement orders; where respondents had benefit of pre-existing lawful use of premises as vehicle repair shop; where respondents applied retrospectivly for material change of use approval (Code Assessable) in respect of extension of building in 2006; where approval given retrospectively and conditions imposed; where respondents now argue that there was no material change of use in that there had been no material change in intensity or scale of the use.
STATUTORY CONSTRUCTION: meaning of “material” in definition of “material change of use” in s 1.3.5(1)(a)(iii) of the IPA; whether proper test requires proof of “planning impacts”.
Legislation:
Integrated Planning Act1997 (Qld)
Cases Considered:
Herston Kelvin Grove Residents Action Group Inv v Brisbane City Council & Ors [2001] QPE 015, Newton DCJ
Maroochy Shire Council v Barns [2001] QPE 031, Dodds DCJ
Maroochy Shire Councilv Barnes [2001] QCA 273
Thiess Services Pty Ltd & Anor v Mareeba Shire Council & Ors [2009] 1 QPELR 1, White DCJ
Caloundra City Council v Taper Pty Ltd and Anor [2003] QPELR 558, Robertson DCJ
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335COUNSEL:
Mr. D. O’Brien for Applicant
Mr. A. Sinclair for RespondentsSOLICITORS:
Heiner & Doyle Solicitors for Applicant
Taylaw Solicitors for Respondents
INTRODUCTION
[1] Ronald Flanigan has operated a vehicle repair centre at premises at 19 Latchman Drive Caloundra since 1991. The business is owned and operated by various corporate entities associated with Mr. Flanigan and his wife, the names and structure of which have changed from time to time over the years. Mr. Flanigan’s business specializes in gas conversions and he also makes and exports brackets associated with gas cylinders and conversions. He is very proud of his business and its obvious success over the years. He has (and still operates) similar activities in Victoria from where he and his family came in 1991.
[2] He has every reason to be proud of his achievements. At inspection the operation was extremely well organized and clean even allowing for a little preparation in anticipation of a Court inspection.
[3] He comes from an era, both in this State and probably in Victoria, in which the planning controls over land use were not as integrated and intense as they are now.
[4] When the Integrated Planning Act1997 (Qld) (IPA) came into effect on 30 March 1998, Mr. Flanigan (and/ or his companies) had the benefit of a lawful permit to use the premises as a vehicle repair centre which lawful use was deemed to be lawful under the IPA by virtue of s 1.4.1. A number of permits and plans approved prior to then were introduced in evidence.
[5] In late 2006, Mr. Flanigan’s business rapidly expanded and in December 2006, he built an extension to the existing building which more than doubled its size. He did not have a permit to build the extension which he now accepts was in breach of the law. A permit was only granted retrospectively some months after these proceedings were commenced in 2009.
[6] When Council officers became aware of the new building, Mr. Flanigan was told that as this constituted a material change in the intensity or scale of the use of the premises as a vehicle repair centre, he was required to make a material change of use application for a permit which was Code Assessable. By this time the extension was complete and the business had expanded into the new area so the application would necessarily be for a retrospective approval which Mr. Hann (the planner with Council who dealt with the application) said was “a situation which is encountered from time to time.”
[7] Mr. Flanigan consulted Mr. Simon Dwyer a Senior Planner with Ken Hicks & Associates Consultant Town Planners on the Sunshine Coast. Mr. Dwyer prepared and lodged the MCU application on behalf of the Flanigan interests. As Mr. Hann said, the progress of the application was unexceptional leading to an approval with conditions set out in a Decision Notice from Council dated 22 April 2008. Mr. Dwyer did seek to negotiate some of the conditions but Council would not alter them.
[8] The Flanigan interests did not appeal against any of the conditions.
[9] Council filed an originating application on 24.04.08 seeking (inter alia) declarations that the Flanigan interests had committed (and were continuing to commit) various development offences by contravening various conditions of the development approval.
[10] The application was amended by leave of the Court on 19 June 2009 and Mr. Sinclair on behalf of the Flanigan interests provided Council’s solicitors with a response which helpfully made admissions and identified the issues in dispute. The response was not filed, as it is not a pleading, but I gave Mr. Sinclair leave to read and file it at the hearing and I direct that it be filed with the Amended Application.
[11] The Flanigans do admit that they have not complied with some of the conditions but now say that, despite having lodged a development application for a material change of use for Code Assessable development, no material change of use has actually taken place in that there has not been a material increase in the intensity or scale of the use of the premises.
[12] The Council’s application focuses on a number of conditions only namely:
“1.the site is to be developed generally in accordance with the approved plans (except where varied by conditions of approval);
2.provision of on-site parking to accommodate twenty vehicles and one bicycle in accordance with City Plan 2004. Parking spaces numbered 1-12 may be provided in a tandem arrangement in order to satisfy this condition;
3.access to carparking spaces, bicycle spaces, vehicle loading and manoeuvring areas and driveways is to remain unobstructed and available during the hours of operation;
………………………………………………………
11.the following City Plan Infrastructure Policy Contributions apply to this development and are payable within 90 days of the issue of this development approval. The contribution amounts are based on June 2004 rates and will be indexed on a quarterly basis at the time of payment;
Infrastructure Contribution June 2004 amount $ Current quarter index amount $ Bike Lane, Pathway and Footpath $599 $665 Open Space $3,941 $4,374 Public Transport $41 $49 Water Supply $9,135 $10,140 Sewerage $10,099 $11,210 Road Network $982 $1,168 Total calculated Infrastructure Contributions $27,606 12.a contribution of$3,300 shall be paid to Council to cover the cost of painting and maintaining line marked parking bays on both sides of Latcham Drive. The contribution shall be paid within 30 days of the applicant receiving the development approval;”
[13] The Decision Notice also sets out as the Relevant Period of Approval as 90 days from the date of the approval. Council says that was an error which is explained by Mr. Hann. Mr. Sinclair argues that as a matter of law the approval has lapsed and therefore cannot be enforced. He also argues that if I am against him on his principal argument that there was no material change of use, nevertheless, in the exercise of discretion I would not enforce conditions 11 and 12.
[14] As well as the declarations Council seeks enforcement orders to compel the Flanigan interests to comply with the conditions.
THE LAW
[15] It is accepted that Mr. Flanigan has the benefit of a pre-existing lawful use of the premises as a vehicle repair centre pursuant to s 1.4.1(1) of the IPA. The central issue in dispute is whether the extensions to the building in December 2006 in which the use is now primarily carried out constitutes a “material change of use” in the sense in which that phrase is defined in s 1.3.5(1)(a)(ii) of the IPA, namely “a material change in intensity or scale of the use of the premises”. The parties diverge as to the proper construction of “material” as used in the sub-section. Council argues on the one hand that what it needs to establish is that there was an “important” or “significant” change in intensity or scale of the use around the time the new building was erected which, it is submitted, is a question of fact and degree based on the evidence. Mr. Flanigan, on the other hand, argues that “material” requires proof of planning impacts and submits that as there is little or no evidence of such impacts, the application by Council is bound to fail.
[16] Mr. Sinclair’s argument in this regard, at its core, relies upon what he submits is the ratio of his Honour Judge Newton’s judgment in Herston Kelvin Grove Residents Action Group Inv v Brisbane City Council & Ors [2001] QPE 015. As he concedes, the other two Queensland cases on point Maroochy Shire Council v Barns [2001] QPE 031; Thiess Services Pty Ltd & Anor v Mareeba Shire Council & Ors [2009] 1 QPELR 1; do not refer to the need for proof of planning impacts in order to establish a material change of intensity or scale of the use in question.
[17] Briefly, the facts in the Herston Kelvin Grove Residents case were that premises at Herston had been used for many years prior to the commencement of the IPA as a nursing home providing care and accommodation for elderly residents. The use was abandoned after the commencement of the IPA and the property was sold in vacant possession to one of the respondents and soon after the premises began to be used for accommodation of mentally handicapped persons and/ or the short term accommodation of immigrants. At page 2 paragraph [2] [vi], his Honour refers to the terms of s 1.3.5[1] without mentioning the section and it appears that “material change of the use” was defined in the same terms as it is now (see also paragraph [67]). At [70] his Honour writes:
“Existing use rights are now dealt with in Pt4 of IPA. Under the provisions of s1.4.1(1) the protection of existing use rights now only applies where there has been "no material change of use" since the new planning instrument came into force. Thus, the protection provided by s1.4.1 would be excluded if there has been a "material change of character, intensity or scale of use”.
[18] Insofar as his Honour was there including the word “character” into the s 1.3.5(1) definition, I intend to proceed on the basis of the actual definition.
[19] The applicant was a local residents association which sought declarations to the effect that the use of the premises as accommodation for mentally ill persons was unlawful in that it involved a “material change of use” under one or more of the categories referred to in the s 1.3.5(1) definition; for which no development permit had been obtained. Ultimately the respondents successfully argued that the “new” use did not involve a “material change of use” and was therefore a protected pre-existing lawful use pursuant to s 1.4.1(1) of the IPA.
[20] What I had not appreciated from his written outline forwarded to me prior to the commencement, is that Mr. Sinclair in (d) of his written outline was arguing that Judge Newton had determined that in construing the meaning of the word “material” in s 1.3.5(1) in the definition of “material change of use” at (a)(iii), it was necessary for there to be proof of impacts or “a significant change of impact” to establish that a “change in the intensity or scale of the use” is “material”. If that submission is correct it would conflict with the decision of Judge Dodds in Maroochy Shire Council v Barns [2001] QPE 031 in which at [47] he cites Judge Newton’s decision as authority for the proposition that:
“The use of “material” to describe when change in the intensity or scale of a use will amount to a material change of use, appears to involve a question of fact and degree.”
[21] I think that Mr. Sinclair has misconstrued what his Honour was saying at paragraph [77] (not paragraph [75] as cited in the written outline). In the first part of paragraph [77] his Honour seems to be saying no-more than what Judge Dodds said in Barnes:
“It must always be a matter of degree in attempting to assess the overall impact of the scale and intensity of the current use compared to the previous use and whether there has been a "material change"”.
[22] In that paragraph, his Honour was doing no more than dealing with the evidence of members of the applicant many of whom gave evidence of “impacts” from the new use which did amount to evidence of impact on amenity. However, the central tenor of his Honour’s decision is indeed paragraph [75] at which his Honour says by way of introduction:
“The real issue, in my view, is whether there has been a material change in the intensity or scale of use within the meaning of IPA. To determine this requires some comparison to be made between the activities of the Herstonville Nursing Home and Herston Lodge.”
[23] His Honour then goes on to make (12) findings of fact relevant to the “real issue” of law.
[24] The reference to impacts was no more than a part of the evidence in the circumstances of that particular case which bore on the question of whether as a matter of fact and degree there had been a material change in the intensity or scale of the use.
[25] I can find no support at all in his Honour’s reasons for the submission made by Mr. Sinclair that in construing the word “material” in (a)(iii) of the definition of “material change of use”, it is necessary for there to be proof of planning impacts in order to establish that there has been a “material change in the intensity or scale of the use”.
[26] The final nail in the coffin containing Mr. Sinclair’s submission is the decision of the Court of Appeal in Maroochy Shire Councilv Barnes [2001] QCA 273, which was an appeal from the earlier decision of Judge Dodds. Although the Court thought that the appeal was premature because final orders had not been made at first instance, nevertheless the Court disposed of the appeal by holding that Judge Dodds had made no error of law. His statement at [47] was not criticized as an error of law nor was it suggested that “material” involves proof of impacts.
[27] Mr. O’Brien is quite right when he observes that in some cases evidence of impacts may amount to circumstantial evidence of a material change in the intensity or scale of a use (such as the Herston Residents case where there had been no increase, for example, in the size of the building), but it is not an essential requirement in every case.
THE EVIDENCE
[28] There is a great deal of common ground although there are some issues of reliability bearing upon some of the aspects of the evidence that Council relies upon in asserting that there has indeed been a material change of use.
[29] There is no doubt that in or about December 2006 the Flanigan interests constructed an extension to the original shed which increased the size from 444m² to 462m²; in other words approximately a doubling of the building size. In her most recent affidavit filed on 05.08.09, subsequent to the Court ordered inspection of the premises on 30.07.09, Ms. Sharon Lee (at the time a planning inspector employed by Council) says by reference to exhibit A (which is floor plan showing the extensions) that the 462m² does not include the mezzanine floors in the extension which increase the floor area as a result of both the mezzanine areas and the so called wash down area to 567m². She was not challenged on this evidence; rather she accepted that the mezzanine “floors” in the new building were being used solely for storage and were not high enough for an average person to stand.
[30] The evidence of Ms. Lee (confirmed at inspection) is that the older shed is now being used primarily for storage of stock, a showroom, lounge and waiting room, offices and a steel fabrication workshop.
[31] Mr. Flanigan frankly concedes that the steel fabrication business is a new use which commenced in around 2001 when he moved the operation up from Victoria. Having regards to the plans approved in 1994 (when a new addition was added which is depicted in exhibit A as the showroom on the new plans), it is clear that the steel fabrication business is now operated from a part of the original building which would have represented (in 1994) approximately ⅓ of the floor area.
[32] At the time of the inspection the steel fabrication workshop was not in use but I have no reason to doubt Ms. Lee’s evidence of her observations of this part of the operation at the time of the inspection in July, at paragraph 8 of her latest affidavit:
“The steel fabrication workshop shown on the approved plan was in use for that purpose at the time of our inspection and employees were at work in this location. I photographed extensive racks of steel tubes and other material used in steel fabrication.”
[33] Mr. Flanigan told me in his oral evidence that raw steel (which is stacked in racks outside the workshop area) is turned into brackets in the workshop which are then dipped and drained in the spraying booth and exported all over Australia. The brackets are of his own design and are used to hold gas cylinders and as part of the gas conversion process.
[34] Mr. Flannigan says (and I accept) that prior to the construction of the new extension there were three fixed hoists used in the business and one mobile hoist. At the inspection on 30.07.09, Ms. Lee noted 7 work stations including the Dyno bay (a new use) and a hoist in the wash-down bay behind car-parks 13 and 14.
[35] The 1994 approved plans (part of exhibit 1) show (6) car parks and the 2007 plans for the new extension show 21 line marked car-parks although at least 12 are tandem parks for staff member working different shifts.
[36] As part of the disclosure process Mr. Flanigan (on behalf of the respondents) disclosed a number of documents which Council say are very relevant to the issue of increase in intensity or scale.
[37] A number of these documents are annexed to Mr. Heiner’s affidavit filed 30.07.09. Mr. Flanigan referred to some of these documents in his second affidavit filed on 04.08.09 and gave evidence about the others in his oral evidence.
[38] I emphasize that these are all documents under the control of Flanigan interests.
[39] At paragraph 16 of his first affidavit filed 29.05.09 Mr. Flanigan swears:
“In 2005 we had noticed that things had begun picking up again. The Commonwealth Government Grant for gas conversions was a reality. The price of oil had risen dramatically and we could predict that business was again going to get busy. It was for these reasons that we contemplated the addition to the site which is now the centre of the current dispute before this Court.”
[40] Exhibit A to Mr. Heiner’s affidavit is a monthly payroll activity summary for the period 01.06.06 – 30.06.06 i.e. some months prior to the extension being built. There are 17 employees noted (including Mr. and Mrs. Flanigan and family members) and a total wage for that month of $45,149.62. Exhibit B is a payroll activity summary for the 2009 financial year i.e. the financial year immediately following the 2008 financial year in which the building was extended. The total wages for that financial year is $1,211,741.68 with 33 employees. By a simple mathematical calculation, a rough estimate of the wages for the 2006 financial year can be obtained by multiplying $45,149.62 by 12 giving a figure of $541,795.44.
[41] Mr. O’Brien asks me to contrast the estimated wages for the financial year immediately preceding the extension with the 2009 figure, which he suggests shows a very significant increase in the wages bill which he submits bears upon the central issue in the case. Mr. Sinclair did not really make a contrary submission although he submitted (unsuccessfully) for a different test which was the main focus of his argument. Late in his cross-examination, Mr. Flanigan did suggest (by reference to no other documents) that the 2006 wage may have been for a 5 week period but Mr. Sinclair in his final argument made no attempt to undermine the force of Mr. O’Brien’s submission based on the wage increase.
[42] Mr. O’Brien submitted that the increase in the number of employees is also a significant fact bearing upon the central issue. It is probable that there has been some increase in staff but these figures are not very helpful as they include wages paid to family members and wages paid to individuals who clearly have only worked part of the year.
[43] Exhibit C and E to Mr. Heiner’s affidavit are the financial statements for the business for the 2005 – 2007 financial years. Mr. Flanigan was cross-examined closely by Mr. O’Brien on some aspects of these financial accounts. He accepted that the figures confirm that the gross profit from the business in the 2006 financial year (i.e. prior to the December 2006 extension) was $793,156.23 which had risen in the 2007 year (after the extension) to $2,063,169.79. I note that in the 2007 accounts the gross profit for 2006 is said to be $221,693.53 i.e. not $793.1786.23 as stated in the 2006 accounts. This apparent anomaly was not raised with Mr. Flanigan so I will disregard it. It is immediately obvious that there has been a substantial increase in gross profit from trading in the financial year in which the building was extended. Mr. Flanigan acknowledged this but tried to suggest that rather than being representative of an increase in intensity of business in the premises, it was somehow due to an expansion of that part of his business which relies on trading on the internet where goods are never actually received onto his premises. His evidence on this point is not supported by reference to other documentation under his control which may have supported his contentions. I have no doubt that he does do some business on the internet but I do not accept that it explains, in any meaningful way, the significant increase in the profit of the business in the relevant period.
[44] Exhibit F and G are graphs disclosed by the Flanigan interests which set out the sales of gas conversions from 2000 – 2010. It is immediately obvious that in the 2006 calendar year the average monthly income from conversions was $134,701 which rose in 2007 to $169,514 and in 2008 to $224,998. Mr. Flanigan sought to explain this by reference to the increased cost of conversions associated with much more sophisticated technology. He told me that the business did maintain (as part of its business records) figures to show the number of conversions undertaken as opposed to the cost. He did not produce these figures as he told me that a large number of documents had been trashed prior to these proceedings commencing, and that the business’s computers had been corrupted and a lot of information including this had been lost. I regret to say that I agree with Mr. O’Brien that Mr. Flanigan’s explanation on this issue was quite unconvincing. Of course, it is the Council that bears the onus, and the only relevance of this finding is that it reflects generally on my impression of Mr. Flanigan as a reliable witness. On its own, this evidence really does not assist in determining the critical issue for me to decide.
[45] Mr. Flanigan was cross-examined about his knowledge and input into the MCU application made on behalf of himself and his wife and their companies by town planners Ken Hicks & Associates. The application was lodged with Council on 12.04.07. It was made on behalf of the Ronald Flanigan Motors Superfund and signed by Mr and Mrs Flanigan as the owners of the land. Mr. Flanigan agreed that he told the author of the town planning report that “the business had expanded rapidly in a short period of time”. Mr. Sinclair referred me to a passage in the report at 4.6 in which the author expresses an opinion “that this development application does not propose to significantly increase the anticipated scale and intensity of the activity, rather than better equip the current operations site to keep up with the workload as a result of the government subsidy”. The author of the report was not called as a witness and it follows that an expression of an opinion by a town planner in an unsworn document has no evidentiary weight at all in this hearing. Even if sworn it would probably be objectionable as it would be directed at the very issue for me to decide. If that was the genuine opinion of the town planner one wonders why he clearly advised his client to make an MCU application at all.
[46] Mr. Flanigan was questioned closely about the lodgement of building plans for approval and his knowledge as to the timing. I agree with Mr. O’Brien that in this area of his cross-examination his evidence was “all over the shop!” He suggested at first that he thought that the town planner had lodged the building plans. After some persistence and considerable dissembling by the witness, Mr. O’Brien got him to accept that he knew in 2006 that the plans for the extension would have to be lodged with Council, and that despite this the plans were not lodged until 2009 and some months after these proceedings were commenced. At paragraph 24 of his first affidavit Mr. Flanigan swears:
“In late September 2006 I had a meeting with Jason Lindsay who was our structural engineer at the site during which I was handed building plans and was advised by him that we could commence construction. I understood that as Barry and Jason had as I believed organised the plans approval with Council, Council having previously advised me that a DA was not required for an extension under 500m² that everything was in order to proceed.”
[47] “Barry” is Barry Cooper a building certifier and draftsman engaged at the time by the Flanigan interests.
[48] Despite this, and despite accepting that he did read the town planning report lodged with the MCU application, he continued to maintain that he thought that the building plans had been lodged with Council by the planner.
[49] To be fair to Mr. Flanigan, he is not a town planner or a builder, but he is obviously an astute and successful businessman and it simply defies belief that he did not know (during 2007) that the plans had not been lodged. This is not directly relevant to the central issue but bears generally on issues of reliability.
[50] At paragraph 21 of his affidavit Mr. Flanigan makes reference to a conversation he had with Ms. Lee on 22.07.05. At first blush, it may seem surprising that he could recall such a conversation without reference to any contemporaneous note, however by then he would have seen exhibit C to Ms. Lee’s first affidavit. This is a customer service request from Council records relating to an enquiry made by either Mr or Mrs. Flanigan of Ms. Lee on that date. The note records (inter alia) that the caller advised Ms. Lee that (he or she) “wants to add another room to the mechanical workshop” and was advised that “an extension of 500 square metres … would trigger a code assessable D.A.” At paragraph 21 of his affidavit, Mr. Flanigan suggests that he asked what size extension would require a D.A. and was advised by Ms. Lee that a building structure over 500m² would trigger the requirement for a code assessable D.A. In her second affidavit, filed 16.06.09, not surprisingly, Mr. Lee strongly denies that she told the enquirer on 22.07.05 that a development approval was only required if a particular extension had a floor area of more than 500m². Mr. Flanigan, in his oral evidence, seemed to accept that Ms. Lee did not say this. If there is any doubt, I find that it is more probable than not that the enquirer (if it was either Mr. or Mrs. Flanigan) asked Ms. Lee about a 500m² extension and was told by her that such an extension would trigger a Code Assessable DA.
[51] I make the following findings of fact based on the above analysis of the evidence:
(a)In 2006, the business conducted at 19 Latchman Drive Caloundra, operated by interests associated with Mr. and Mrs. Flanigan, expanded rapidly in a short period of time as a result of the introduction of a Commonwealth Government subsidy to encourage people to use LPG in their cars associated with a dramatic rise in the price of oil.
(b)In December 2006, the first and second respondents caused a substantial extension to be built on the premises which more than doubled the floor area available for the business under roof.
(c)The number of work stations was significantly increased, and part of the “old” shed, amounting to approximately one third of the space under roof prior to the extension was being used for a substantial “new” use as a steel fabrication workshop, an activity which had not been part of the pre-existing lawful use of the premises as a vehicle repair shop when IPA commenced.
(d)With the new extension, the number of on-site car-park spaces was substantially increased including 12 tandem car-parks for employees.
(e)After the extension was completed and the business realigned, all of the total floor area was being used for purposes directly associated with the use of the premises as a vehicle repair centre. This includes the new mezzanine floors which are used for storage.
(f)It is probable that the number of staff increased in the 2006 – 2007 period but not to any significant extent. The gross profit of the business post the extension increased significantly which I am satisfied is due in large part to an increase in the intensity of the use of the premises. There was an increase in the number of gas conversions in the same period.
[52] Based on these findings, and applying the correct legal test, I agree with Mr. O’Brien that the evidence is overwhelming in establishing to a high degree of probability that there has been a material change in the intensity or scale of the use of the premises and therefore a material change of use. Mr. Flanigan’s interests were obliged to make a Code Assessable MCU application for a development permit, and are required to comply with the conditions of the approval.
[53] Council’s application also focuses on conditions 2 and 3 of the permit. On-site parking has now been provided for one bicycle so it does appear that the Flanigan interests have complied with condition 2. Neither Ms. Lee or Mr. Flanigan were cross-examined about the dispute between them about obstruction of car-parking spaces contrary to condition 3. In these circumstances, it is difficult for me to resolve the outstanding issue which relates to the alleged obstruction of car-parks 13 and 14. In light of my primary conclusions it is hoped that the parties can resolve any dispute about this issue in the ordinary course of business.
THE 90 DAY POINT
[54] The decision notice (at 3) sets the “Relevant Period for this approval is 90 days”. Mr. Hann, the town planner who dealt with the town planning aspects of the MCU application says in his affidavit filed 16.06.09 that this was an error. It was not intended that the development permit only have a duration of (3) months, rather it was intended that the applicant be given (3) months leeway in which to comply with conditions such as the infrastructure contributions covered by conditions 11 and 12. He was not challenged about this in cross-examination rather Mr. Sinclair argues that, as a matter of law, the permit lapsed 90 days after its date and therefore is no longer applicable. This rather surprising submission is based on what he says is the effect in combination of ss 3.5.19(1)(a) and 3.5.21(1) of the IPA. He submits that the effect of these sections is that the approval lapsed after the expiration of 90 days from the date of the decision notice namely 90 days after the 22.04.08 and thereafter had no effect. His submission completely ignores the fact that this was a permit retrospectively for what I have found was a material change in the intensity and scale of the pre-existing lawful use and that the use was a continuing use throughout the 90 day period and thereafter. The use had happened before, during and after the 90 day period and s 3.5.21(1)(b) does not apply.
THE EXERCISE OF DISCRETION
[55] Council does not pursue its case in relation to the building permit because one has belatedly been obtained. As I have noted in the introduction, the Flanigan interests did not appeal against any conditions imposed in the development permit. It is not open therefore in these proceedings for the respondent to now challenge the conditions pursuant to s 3.5.30 of IPA.
[56] Mr. Sinclair’s quite novel proposition is that I can however refuse to enforce the conditions in the exercise of my discretion. He frankly conceded in his oral submissions that the imposition of conditions 11 and 12 is really behind his client’s attitude to the permit and the conditions.
[57] There is no doubt that the power to make orders pursuant to s 4.1.22 of the IPA is discretionary and in Caloundra City Council v Taper Pty Ltd and Anor [2003] QPELR 558 at 558 I referred to the leading authorities and the “guidelines” formulated by Kirby P (as his Honour then was) in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. Obviously the breach in the Taper case related to a static development i.e. a building whereas the breach here is on-going.
[58] Mr. Sinclair makes no challenge to the lawfulness of these conditions. For example, he does not argue that the assessment officer has miscalculated or misapplied that relevant formula for calculating infrastructure contributions under the planning scheme. At paragraph 11 of Mr. Hann’s affidavit on 16.06.08 he states:
“These conditions were considered and set in accordance with the planning scheme’s Infrastructure Policy, a publicly available document. I thought – and still think – that these contributions were relevant and reasonable conditions of his approval, involving as it did an approximate doubling of the intensity of the landuse.”
[59] This evidence was not challenged.
[60] On behalf of Mr. Flanigan’s companies, Ken Hicks & Associates did indeed write to Mr. Hann on 22 May 2008 arguing that the contributions be revised in light of what is essentially the argument now i.e. because there are no extra toilets and minimal impact on water supply this particular developer should not have to make infrastructure contributions. It was not suggested that the conditions could not be imposed or had been unlawfully imposed. What Mr. Sinclair’s argument fails to appreciate is that infrastructure contributions are designed to spread the cost of these essential services across relevant development in the whole Shire. In Sedevcic Kirby P spoke of the “orderly enforcement” of a “public duty” to comply with the requirements of planning laws as one of the factors relevant to the exercise of discretion where orders such as these now sought are being considered. In other words, if Council had reduced the contributions for Mr. Flanigan that would be potentially unfair to other developers.
[61] There is no merit at all in Mr. Sinclair’s argument although I am inclined to give Mr. Flanigan some time to comply given his evidence about a recent downturn in his business.
CONCLUSION
[62] In light of my findings, the Flanigan interests are obliged to comply with conditions 11 and 12 of the approval. Council has satisfied me to a high degree of probability that by refusing to pay the contributions payable as a result of these conditions, a declaration should be made pursuant to paragraph 2 of the amended application filed 1 July 2009 that the relevant respondents have contravened s 4.3.3 of the IPA in failing to comply with conditions 11 and 12 of the approval. I say “relevant respondents” because of the many changes in corporate entities over time. It is probably sufficient that the declaration be made in relation to Mr. and Mrs. Flanigan as it is quite clear that Mr. Flanigan is the guiding mind behind the various corporations and trusts referred to in the evidence.
[63] Mr. Sinclair has raised no other argument (apart from the “unfairness” argument about the water and sewerage contributions) and Council is entitled to an order pursuant to s 4.3.22 of the IPA in terms of paragraph 3 of the amended application.
[64] As I have said, I am inclined to give Mr. Flanigan a reasonable time to comply. He should have complied by now and “reasonable” would not extend beyond a further 90 day period in light of his evidence about a downturn in the business in recent times.
[65] I will publish these reasons and adjourn the matter to a date to be fixed in the hope that the parties can either resolve the matter or agree to consent orders. I will give all parties liberty to apply by giving (7) days notice to enable any party to seek orders in light of these reasons.
2
1