The importance of forensic and scientific investigations

In brief

The case of The Council of the City of Gold Coast v Thi Hoa Dam [2015] QPEC 51 involved an application in the Planning and Environment Court by the Gold Coast City Council seeking declarations about the lawfulness of development and enforcement orders against Thi Hoa Dam, the owner of land at 183-185 Monaco Street, Broadbeach Waters. These proceedings concerned the lawfulness of certain development that had occurred on the land in respect of a satellite dish, a pool cover and rock armouring works.

The council was successful in establishing that the pool cover was assessable development for which a development permit was required. As to the satellite dish, the court found that it was not assessable development. However, the council's case failed in relation to the rock armouring works primarily due to a lack of adequate expert evidence.

The court made a declaration that the pool cover constituted code assessable development for which a development permit was required and made a consequential order requiring the landowner to remove or regularise the unlawful development by obtaining a development permit within set timeframes.

The court was satisfied that, on the balance of probabilities, the landowner or her agents had erected both the satellite dish and the pool cover but was not satisfied that the rock armouring works were carried out by the landowner

On the evidence presented, the court was satisfied that the landowner, or her agents, had erected both the satellite dish and the pool cover.

In respect of the construction of the rock armouring, the council adduced evidence from its development compliance officer who had observed the rock armouring when inspecting the land and made a desktop comparison of aerial photographs. The court considered the opinion evidence adduced by the council was "no more than mere conclusions drawn on matters upon which the court is equally qualified to draw an opinion, and it is inadmissible" (at [27]).

The court was of the view that more forensic and scientific investigations could and should have been undertaken in the circumstances. In this regard, the court by reference to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, noted that expert evidence should provide criteria for testing the accuracy of conclusions reached which would enable the court to reach its own independent judgment by applying the relevant criteria. Such evidence should also be intelligible, convincing, tested and supported by materials which would convince the court of its fundamental soundness.

While the court had sought to review the aerial photographs to determine the difference in the rock armoury before and after the landowner purchased and occupied the land, it was not able to identify any increase of the rock armoury. Ultimately, the court concluded that there was not sufficient evidence to establish that, on the balance of probabilities, the landowner had carried out, or caused to be carried out, the works.

The court found that the pool cover constituted assessable development for which a development permit was required

The council adduced evidence from its development compliance officer and senior building certifier that the pool cover was a class 10a structure under the Building Code of Australia. The court again found this evidence to be deficient on similar grounds to the evidence about the rock armouring. The court emphasised that further investigations could have been undertaken and that the opinion evidence of council officers were mere conclusions drawn on matters that the court was equally qualified to reach an opinion on and were therefore inadmissible.

In its interpretation of the relevant provisions of the Building Code of Australia, the court found that the pool cover was a class 10a structure, being a non-habitable shelter or storage structure, irrespective of whether the structure was fixed to the ground or not.

Having made this finding, the court then considered whether the pool cover was self-assessable or exempt development under the Building Act 1975. Given the dimensions of the pool cover, the court found that it did not fall within the relevant criteria for self-assessable development. The court further noted that the pool cover did not constitute exempt development. Accordingly, the pool cover was assessable development for which a development permit was required.

The court found that the work on the satellite dish including its removal was not assessable development and therefore did not require a development permit

As to the satellite dish, the court found that it was a class 10b structure under the Building Code of Australia. In reaching this conclusion, the court had to solely rely on the historical photographs of the structure taken at some distance, and from the ground, by council's development compliance officer.

Having reached the conclusion on the classification of the structure, the court found that the building work for the satellite dish was exempt development under the Building Act 1975 as the satellite dish was no higher than 3m above its natural ground surface. On this basis, the work on the satellite dish, including its removal, did not require a development permit.

The court made a declaration that the pool cover was code assessable development for which a development permit was required and consequentially ordered the landowner to remove or regularise the unlawful pool cover, but declined to make an enforcement order

The court noted that the power to make the declaration and enforcement order sought by the council was discretionary.

It was observed by the court that the council had established only that the pool cover was erected by the landowner and constituted assessable development for which a development permit was required.

The court did not accept the council's submission that the development offence in this case was "flagrant", rather, the court held the view that it was borne out of limited comprehension, confusion and uncertainty on the part of the landowner. The court accepted that the landowner intended to remove or regularise the unlawful building work.

In this context, the court made a declaration that the pool cover was code assessable development for which a development permit was required and made a consequential order requiring the landowner to remove or regularise the unlawful development by obtaining a development permit within set timeframes. However, the court declined to make an enforcement order.