In brief

The case of Phillips v Wareham & Ors [2015] QPEC 5 concerned an application for enforcement orders to remedy the commission of a development offence for the construction of two tennis courts adjacent to Ms Elizabeth Phillips' property and to request an order under section 601 of the Sustainable Planning Act 2009 to prevent the installation of nightlights at the tennis courts.

The Planning and Environment Court dismissed Ms Phillips' application for enforcement orders because the current use of the tennis courts and the works associated with the tennis courts did not constitute development offences.

Ms Phillips carried the onus to prove the alleged development offences on the balance of probabilities

Ms Phillips alleged that the owners of the adjacent premises committed the following development offences under the Sustainable Planning Act 2009:

  • carrying out development without a compliance permit (section 575),
  • contravention of a compliance permit or compliance certificate (section 576),
  • carrying out assessable development without a development permit (section 578),
  • unlawful use of premises (section 582).

The court observed that Ms Phillips carried the onus to prove the alleged development offences, and the proof of the commission of the alleged offences in this proceeding was to be assessed by applying the civil standard, namely on the balance of probabilities and the "sliding scale" discussed in Briginshaw v Briginshaw (1938) 60 CLR 336.

The court further observed that this was different from the prosecution of a development offence by the relevant authority in the Magistrates Court in which the standard of proof was beyond reasonable doubt.

Court found that Ms Phillips failed to establish the works required compliance assessment or the issuing of a compliance permit or compliance certificate

In relation to the alleged offences concerning the carrying out of development without a compliance permit and contravention of a compliance permit or compliance certificate, the court found that Ms Phillips failed to show that the works required compliance assessment or the issuing of a compliance permit or compliance certificate. As such the commission of those alleged offences was not established.

Court accepted that there was an intensification in the use of the tennis courts but it did not amount to a material change of use

Ms Phillips alleged that the activities being carried out on the tennis courts constituted a "dramatic intensification of use" and the intensification amounted to a material change of use. The activities involved the introduction of coaching and the increase in the number of games of tennis being played. It was further alleged that a development approval was required for the carrying out of the activities and no such approval was given.

The court noted that there had not been a start of a new use of the premises. Further, the activities being carried out on the tennis courts were not a re-establishment of a use that had been abandoned given that the use of the tennis courts remained ongoing although at different levels of intensity.

While it was accepted that there had been an intensification in the use of the tennis courts, the court did not consider that there was a material change in the intensity or scale of the use of the courts, particularly given the historical use of the tennis courts for social and competitive tennis.

In the court's view, the increase in the number of games being played on the tennis courts and the introduction of coaching could not be described as a material change of use.

Whilst the introduction of nightlights would give rise to a material change in the intensity of the use of the tennis courts or possibly the start of a new use, as a development application for a material change of use for that purpose was being considered by the council, the court did not see any basis for interfering with the application process

In addition to the activities being carried out on the tennis courts, Ms Phillip also alleged that the likely future use of the courts for night tennis as a result of the introduction of nightlights would constitute a material change of use for which a development approval would be required.

The court acknowledged that the introduction of nightlights would give rise to a material change in the intensity of the use of the tennis courts or possibly the start of a new use being night tennis. However, given that a development application for a material change of use for that purpose had been made and was being considered by the council, the court did not see any basis for interfering with the application process at this point in time.

The resurfacing of the tennis courts and their re-orientation did not require an approval from the council and the fencing work was subject to the council's permission

Ms Phillips alleged that the following works associated with the tennis courts required a development permit:

  • the installation of a new fence which exceeded three metres in height,
  • the resurfacing of the courts including wiring which as alleged by Ms Phillips had been undertaken to accommodate the installation of the nightlights,
  • the re-orientation of the courts.

The court noted that the resurfacing of the courts or their re-orientation did not require an approval from the council and nonetheless, they would be exempt development if they could be properly described as "building works" for the purposes of the Sustainable Planning Act 2009.

The new fence was not an exempt building work as it exceeded three metres in height. However, the council granted permission for the work by way of a decision notice and the fencing work was therefore lawful.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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