Western Downs Regional Council v Grams - [2010] QPEC 38

[2010] QPEC 38

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3631 of 2009

WESTERN DOWNS REGIONAL COUNCIL	Appellant
and
SEAN GRAMS	Respondent

BRISBANE

..DATE 22/04/2010

..DAY 1

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009 s 832(1)
Integrated Planning Act 1997 s 3.5.30, s 4.3.3, s 4.3.25

Enforcement orders sought by Council requiring a dam to be fenced comformably with s 14 of the Buildling Regulations 2006 for swimming pool fencing as fitted in a dam not a swimming pool as defined - Council relied on a fencing obligation contained in a development condition in an approval of a material change of use of a dam for aquaculture - neither conditions nor Council's enforcement notice appealed against

HIS HONOUR: Before the Court is an originating application filed on the 16th of December 2009 by which the Council seeks against Mr Grams, who has represented himself, orders that:

(a)Within 60 days of the date of this order, the respondent erect fencing complying with the design, building and performance standard prescribed by section 14 of the Building Regulation 2006 at the location indicated in the plan forming part of the respondent's development application to Tara Shire Council dated 18 April 2007;
(b)Failing compliance with order (a) within 70 days of the date of this order, the respondent completely fill in the excavation the subject of Tara Shire Council's decision notice to the respondent dated 13 June 2007.

The filing of the application occurred two days before the coming into force of the Sustainable Planning Act 2009, by section 832(1) of which the Integrated Planning Act 1997 (IPA) continued to apply for the purposes of this application.

The orders are sought under section 4.3.25 of the IPA as a means of remedying commission of a "development offence" as defined in schedule 10 of IPA. By section 4.3.3, it is an offence to contravene a development approval including any condition in the approval.

The development application (the Court was given to understand) was made by Mr Grams on advice of Council officers of the then Tara Shire Council which had jurisdiction over the property in the township of Glenmorgan to make a development application to regularise use of the property for "aquaculture" involving an existing excavated dam whose dimensions are said to be 30 metres by about 12 metres with a maximum depth of a couple of metres. The Court hears that there was complaint based on the danger the complainer thought existed in having that body of water in the town unfenced.

Mr Grams has told me that the aquaculture consists of breeding golden perch, not for commercial purposes, but for his own recreational purposes. The application to the Council was successful. Unsurprisingly, given the history, the Council imposed a condition "That the entire excavation be fenced to a standard complying with the Swimming Pool Fencing Regulations. Such fence to be maintained in accordance with the regulation."

Although informed of his appeal rights by a communication from Council, Mr Grams,…

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: [2010] QPEC 38
Decision Date: 22/04/2010

CaseChat Overview and Summary

The appellant, Western Downs Regional Council, sought enforcement orders against the respondent, Sean Grams, to compel him to fence a dam on his property in compliance with the Building Regulation 2006. The Council argued that the dam, used for aquaculture, required fencing similar to that for swimming pools to prevent drowning. Grams argued that the dam did not fall under the definition of a swimming pool and was not subject to the same fencing requirements. The court had to determine whether the dam fell within the definition of a swimming pool and if the Council had the authority to enforce the fencing condition.

The court examined the definition of a swimming pool under the Pool Fencing Guidelines and concluded that the dam did not meet the criteria. However, the court held that the Council's authority to enforce the fencing condition was based on the reasonableness and relevance of the condition under the Integrated Planning Act 1997. The court found that the condition was reasonable and relevant, considering the proximity of the dam to residences and the potential risk of drowning. The court also noted that Grams had the opportunity to appeal the condition but did not do so, and therefore, the condition remained valid.

The court granted the Council's enforcement orders, requiring Grams to fence the dam in compliance with the Building Regulation 2006. The court emphasised the importance of taking planning requirements seriously to discourage potential developers from disobeying planning laws. The court rejected Grams' argument about double standards, stating that the Council's enforcement of the condition was not arbitrary but based on the specific circumstances of the development application and the need to prevent drowning in unfenced water bodies.

Orders