Sunshine Coast Regional Council v Gavin - [2020] QPEC 63

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Gavin & Anor [2020] QPEC 63

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant)

v

MICHAEL IVAN GAVIN

(first respondent)

JDL INVESTMENTS PTY LTD (ACN 611 912 808)

(second respondent)

FILE NO/S:

D125/2019

DIVISION:

Planning and Environment

PROCEEDING:

Application

DELIVERED ON:

18 December 2020

DELIVERED AT:

Maroochydore

HEARING DATE:

15 June 2020; 16 June 2020; 17 June 2020

JUDGE:

Cash QC DCJ

ORDERS:

Orders are as appears in the judgment

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the first and second respondents constructed a building and used it as an ‘accommodation building’ in a zone where this use was not permitted – where respondents accepted this use of the building amounted to development offences – where council sought enforcement orders preventing any further unlawful use of the building including to bring about significant interior structural changes – where respondents contested the orders sought by council – what orders ought be made to ensure compliance with the legislative scheme

LEGISLATION:

Planning Act 2016 (Qld), s 11, s 44, s 162, s 165, s 180, s 181

Planning and Environment Court Act 2016 (Qld), s 61(1)

Caloundra City Planning Scheme 1996

CASES:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2) [2018] QPEC 59; [2019] QPELR 379
Mudie v Gainriver Pty Ltd & Ors [2002] 2 Qd R 53; [2001] QCA 382
Tynan v Meharg (1998) 101 LGERA 255

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

COUNSEL:

R J Anderson QC with G Barr for the applicant
M J McDermott for the respondents

SOLICITORS:

Heiner and Doyle for the applicant
Andrew Davis Planning Lawyers for the respondents

Introduction

The second respondent owns land in Birtinya upon which it caused to be constructed a building. The first respondent is a director and controlling mind of the second respondent. The building has three storeys, seventeen bedrooms (each with their own ensuite bathroom), capacity for a kitchen on each floor, and provision for separate electrical and water metering for each bedroom. It is on land that does not permit a building to be used as an ‘accommodation building’.[1] The council contends, and the respondents do not now dispute, that the building has been used as an ‘accommodation building’ contrary to its ‘Residential A’ zoning under the applicable planning provisions. The council also contends, and the respondents do not now dispute, that both respondents have committed development offences contrary to the Planning Act 2016 (Qld) (‘the PA’). As a consequence the council seeks enforcement orders it says will have the effect of preventing any further use of the building contrary to its lawful use.
[1]As explained below, an ‘accommodation building’ includes premises used or intended to be used as a boarding house, guest house, hostel, serviced apartments, and the like.

The respondents initially resisted practically all of the council’s application. In particular…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QPEC 63
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Sunshine Coast Regional Council v Gavin, the council sought enforcement orders against the respondents who had constructed and used a building as an accommodation facility in a zone where such use was not permitted. The respondents admitted that their actions constituted development offences. The council sought orders to prevent any further unlawful use of the building, including significant interior structural changes. The respondents contested the orders sought by the council, leading to the legal issues before the court.

The court had to determine the appropriate enforcement orders to ensure compliance with the legislative scheme. This involved considering whether the council had the authority to issue such orders and whether the orders were necessary to prevent further unlawful use of the building. The court also needed to assess the evidence provided by both parties and weigh the public interest in enforcing planning laws against the respondents' rights.

In reaching its decision, the court found that the council had the statutory authority to issue enforcement orders to prevent further unlawful use of the building. The court accepted that the orders were necessary to ensure compliance with the legislative scheme and protect the integrity of the planning system. The court concluded that the enforcement orders were appropriate to prevent the respondents from making further unlawful changes to the building.

The court made orders that the respondents were prohibited from making any further unlawful use of the building, including significant interior structural changes, until such time as the respondents obtained the necessary approvals. The orders also required the respondents to take steps to bring the building into compliance with the applicable planning scheme.

Orders

Orders of the court

Orders are as appears in the judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sunshine Coast Regional Council v Gavin & Anor [2020] QPEC 63
PARTIES:	SUNSHINE COAST REGIONAL COUNCIL (applicant)
v
MICHAEL IVAN GAVIN (first respondent)
JDL INVESTMENTS PTY LTD (ACN 611 912 808) (second respondent)
FILE NO/S:	D125/2019
DIVISION:	Planning and Environment
PROCEEDING:	Application
DELIVERED ON:	18 December 2020
DELIVERED AT:	Maroochydore
HEARING DATE:	15 June 2020; 16 June 2020; 17 June 2020
JUDGE:	Cash QC DCJ
ORDERS:	Orders are as appears in the judgment
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the first and second respondents constructed a building and used it as an ‘accommodation building’ in a zone where this use was not permitted – where respondents accepted this use of the building amounted to development offences – where council sought enforcement orders preventing any further unlawful use of the building including to bring about significant interior structural changes – where respondents contested the orders sought by council – what orders ought be made to ensure compliance with the legislative scheme
LEGISLATION:	Planning Act 2016 (Qld), s 11, s 44, s 162, s 165, s 180, s 181 Planning and Environment Court Act 2016 (Qld), s 61(1) Caloundra City Planning Scheme 1996
CASES:	Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2) [2018] QPEC 59; [2019] QPELR 379 Mudie v Gainriver Pty Ltd & Ors [2002] 2 Qd R 53; [2001] QCA 382 Tynan v Meharg (1998) 101 LGERA 255 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
COUNSEL:	R J Anderson QC with G Barr for the applicant M J McDermott for the respondents
SOLICITORS:	Heiner and Doyle for the applicant Andrew Davis Planning Lawyers for the respondents