Queensland Court of Appeal refuses leave to appeal against enforcement orders requiring the modification of a dwelling to prevent it being misused for rental accommodation

In brief

The case of Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217 concerned an appeal by landowners (Appellants) to the Queensland Court of Appeal (Court of Appeal) against the enforcement orders made by the Planning and Environment Court of Queensland (P&E Court) in the case of Sunshine Coast Regional Council v Gavin & Anor [2020] QPEC 63.

The Appellants had committed development offences by renting out rooms of a building located at Birtinya, Queensland (Premises), contrary to the zoning requirements for the land under the Caloundra City Planning Scheme 1996 (Planning Scheme).

The P&E Court made enforcement orders to the following effect:

1. Without a development permit authorising a material change of use, the Premises or parts of the Premises were not to be used as an "Accommodation Building" or for any purpose other than a "Dwelling House" as defined in the Planning Scheme.

2. A tenancy agreement in respect of the Premises was not to be entered into, and the Premises or parts of the Premises were not to be advertised for a letting purpose.

3. Certain features of the Premises that might enable the Appellants to again use the Premises for accommodation were to be modified, including the removal of solid-core doors, internal locks, and electricity and water sub-meters. 

The Appellants submitted that the orders made by the P&E Court were beyond power for the following reasons: 

1. The P&E Court could not prohibit a material change of the premises for a use that is an accepted use under the Planning Regulation 2017 (Qld) (Planning Regulation) or Development Control Plan 1 - Kawana Waters.

2. There was no limitation on the operation of the restriction of entering into a tenancy agreement or advertising the Premises or parts of the Premises. 

3. On a proper construction of section 180 of the Planning Act 2016 (Qld) (Planning Act), the P&E Court could not order the alteration of a building where the building was lawfully erected, could lawfully be used without an alteration, and the development offences committed concerned the use of the Premises and not a physical part of the building.

The uses the Appellants sought to identify as accepted uses under the Planning Regulation and Planning Scheme were irrelevant to the Court of Appeal's decision, because they, or any other sensible use for the Premises, were not put before the P&E Court. Given the P&E Court's specialist jurisdiction, it was inappropriate for the issue to be raised for the first time before the Court of Appeal (at [84]).

The Court of Appeal held that although there is a general expectation that less intrusive enforcement orders will be complied with by a respondent, the powers in respect of making enforcement orders are very broad, and in rare cases, the interference with a respondent's rights beyond those orders that directly restrain the commission of a development offence will be appropriate (at [12]).

The Court of Appeal held that the enforcement orders made were within the power of the P&E Court, and in this case, the P&E Court's finding that the Appellants were likely to recommit a development offence without the modification of the Premises warranted a modification order.

Background 

The Premises is three storeys, with 17 bedrooms of roughly the same size that each contain an ensuite, a solid-core self-closing door with an individual lock, an individual air-conditioner and electricity and water submeters, soundproofing, and fire prevention. The Premises has two common areas on each floor accessible via a stairway with a solid-core self-closing door, balconies with laundry facilities, and no toilet or bathroom in the common areas.

The Premises was certified as Class 1(a) "single dwelling", and could only be lawfully used as a "Dwelling House". Use of the Premises for an "Accommodation Building" was prohibited under the Planning Scheme.

The factual findings of the P&E Court, which were not contested on appeal, were relevantly the following: 

1. The Appellants had committed two development offences contrary to section 162 of the Planning Act by carrying out development that was prohibited under the Planning Scheme and section 165 of the Planning Act by using the Premises unlawfully for an accommodation building.

2. The Appellants were aware before the Premises was constructed that an accommodation building was prohibited under the zoning of the Planning Scheme.

3. The Appellants had always intended to use the Premises for an accommodation building, and had made misrepresentations to the Sunshine Coast Regional Council and the private certifier when seeking approval to construct the Premises as a "Dwelling House".

4. One Appellant had occupied the Premises with his family for six weeks before advertising the Premises and renting out rooms between January 2019 and March 2020. 

5. Absent the order requiring the modification of the Premises, the Appellants would again contravene the Planning Act.

Limitation to use of the Premises as a dwelling is within power 

The Appellants submitted that item 2(1) and item 6 of Schedule 6 of the Planning Regulation and permitted uses under Development Control Plan 1 - Kawana Waters identified accepted development which conflicted with the orders limiting the use of the Premises to a "Dwelling House".

The Court of Appeal held that those uses, or indeed any use to which the Premises might sensibility be put, were not identified before the P&E Court. The Court of Appeal did not have the benefit of the P&E Court's consideration or town planning evidence in respect of those uses (see [76] to [78]). 

The Court of Appeal held that "the form of the orders [were] directly affected by the way the proceedings were conducted below…", and had accepted or permitted uses been put before the P&E Court, the P&E Court may have made a different order (at [83]).

As the P&E Court had identified the appropriate avenue for the Appellants and any successor to them was to apply to the P&E Court under section 181(4) of the Planning Act seeking a change be made to the enforcement orders (at [84] and [101]). 

Modification orders made by the P&E Court were within power

One enforcement order made by the P&E Court required the Appellants to modify the Premises to make it less amenable to use as an accommodation building. 

The relevant parts of section 180 of the Planning Act state the following: 

"(5) An enforcement order or interim enforcement order may direct the respondent—

(a) to stop an activity that constitutes a development offence; or

(b) not to start an activity that constitutes a development offence; or

(c) to do anything required to stop committing a development offence; or

(d) to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or

(e) to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

• to repair, demolish or remove a building
• to rehabilitate or restore vegetation cleared from land

(6) An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act.

Example—

An enforcement order may require the respondent to provide security for the reasonable cost of taking the stated action."

The Court of Appeal held that section 180(5)(e) of the Planning Act is broader than the other subsections of section 180, and allows for a direction requiring something to be done to bring about compliance with the Planning Act (at [7] to [8]). Further, that the example in section 180(6) of the Planning Act made clear that an enforcement order may infringe upon property rights beyond a direction under section 180(5)(d) of the Planning Act (at [9]).

The Court of Appeal also held that section 180(5)(b), (c), and (e) and section 180(6) of the Planning Act were the source of the power to order the modification of the Premises, because the P&E Court considered a development offence will be made unless the order is made (see [113], [115], and [116]).

The Court of Appeal held that the P&E Court was permitted to make an enforcement order to secure compliance with the Planning Act (at [10], [109], and [117]), including by making it more difficult for the respondent to recommit a development offence by requiring modifications be made to the Premises (at [11], [113], [116], and [117]). 

Conclusion

The enforcement orders made by the P&E Court were within power and appropriate to prevent a development offence occurring in the future. Where an enforcement order is sought to be cancelled or changed, the appropriate course of action is to apply to the P&E Court under the Planning Act. The Court of Appeal therefore refused leave to appeal against the enforcement orders.