In brief

The case of Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors [2019] QPEC 19 concerned an application to the Planning and Environment Court (Court) by the Sunshine Coast Regional Council (Council) seeking orders from the Court in circumstances where the parties were unable to agree on the form of such orders.

The originating application by the Council concerned a dispute in relation to the use of residential allotments located on levels two, three and four of the Sebel Pelican Waters Resort (Resort). The development application for the Resort was approved by the Council in 2003, where the Council approved a mixed-use 12-storey resort, with a condition that the premises located on levels two, three and four of the Resort were to be used as a hotel/motel, whilst the remaining levels were to be used for permanent residents (Condition 5). 

The Council submitted that the allotments located on levels two, three and four of the Resort were not being used for temporary accommodation as outlined in Condition 5 of the development approval. The Council therefore sought an order from the Court that the allotments located on levels two, three and four could not be used for permanent accommodation and that any permanent accommodation must cease either on expiration of any fixed term tenancy or otherwise within three months. 

The Respondents comprised the various owners of the allotments, as well as the body corporate and the owner of the common property.

As the parties could not agree the form of the orders sought in order to proceed to a hearing, the Court had to determine the following issues: 

  • Did the originating application or the service letter identify the Respondents as an entity “directly affected” by the relief sought?

  • Which party had the most appropriate draft order to determine the interpretation point?

The Court held that the draft order submitted by the Respondents was more appropriate in order to progress the proceedings, and therefore the Court made orders reflective of the Respondents' draft order, with minor amendments. 

Parties to the proceedings could not agree on orders to progress the proceedings

The draft orders to progress the proceedings could not be agreed upon by the parties. The Council sought the following orders: 

“6. By 3 May 2019 the respondents are to file and serve on the applicant a statement of Facts, Issues and Contentions that outlines:

(a) the matters in the Amended Originating Application that are admitted, and the matters that are in dispute;

(b) for those matters that remain in issue, the matters of fact and law that form the basis of the dispute; and,

(c) to the extent not dealt with in subparagraph 6(b) above, the grounds in respect of which the respondents contend that the relief sought in the Amended Originating Application should not be granted.

7. By 24 May 2019 the applicant is to file and serve upon the active parties the affidavit material that it intends to rely upon at the hearing of the Application.

8. By 14 June 2019 the respondents are to file and serve upon the applicant any affidavit material that they intend to rely upon at the hearing of the Application.

9. By 5 July 2019 the applicant is to file and serve upon the active parties any material in reply.

10. Any respondent that has given or at any time gives notice to the applicant to the effect that they will not take an active part in the application, is excused from participating in and appearing at the hearing (and any further reviews) of the application.

11. The Application be listed for a two day hearing commencing on 5 August 2019.

12. The Application be listed for review on 19 July 2019.

Liberty to apply.”

The Respondents sought the following draft orders: 

“6. By 26 April 2019 the applicant file and serve on the respondents any material, including certificates, upon which it intends to rely to determine the interpretation point.

7. By 30 June 2019 the respondent file and serve any materials upon which they intend to rely to determine the interpretation point.

8. The interpretation point be set down for hearing for two days commencing on 5 August 2019.

9. The interpretation point is:

The interpretation of the decision notice dated 17 October 2003 for the use of premises for the purposes of a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling, including condition 5 for that part of the premises identified as lots 201-218, 301-318 and 401-418 on SP 168156 and whether it:

(a) limits the use of that part of the premises to use for temporary accommodation of travelling and/or holidaymakers only; or

(b) allows that part of the premises to be used for permanent and/or long term accommodation as well as temporary accommodation for travellers and/or holidaymakers; and

(c) what temporary accommodation means.

10. The hearing of the proceeding relating to the courts discretion be deferred pending the determination of the interpretation point.

11. The application can be listed for review on 17 July 2019.

Any party shall have liberty to apply upon the giving of two days’ notice.”

The Council submitted that the proposed orders by the Respondents only sought a preliminary determination of the effect of Condition 5 of the development approval and was inappropriate as the determination of the lawful use of the allotments should be determined by reference to the development approval as a whole and not solely by reference to Condition 5. It was further submitted by the Council that the draft orders by the Respondents did not allow for a Statement of Fact, Issues and Contentions and also limited the affidavit material only to the interpretation of Condition 5 of the development approval. 

The Respondents submitted that the draft order sought by the Council was entirely inappropriate as it required the Respondents to produce material in proceedings which had a criminal nature, that order 6 of the Council's draft order reversed the onus of proof as it required the Respondents to file a Statement of Facts, Issues and Contentions and lastly, the draft order required the Respondents to file and serve affidavit material prior to the Council. 

The Court did not accept the Respondents' submissions against the Council's draft orders as the Court determined that the Respondents were only required by the Council's proposed order 6 to file a Statement of Facts, Issues and Contentions and not to file material until the Council had done so. The Court further held that the Council's draft order did not reverse the onus of proof as stated by the Respondents.  

Did the originating application or the service letter identify the Respondents as an entity “directly affected” by the relief sought?

The Respondents argued that the Council did not identify in the originating application or the service letter any Respondent who was "directly affected" by the relief sought. The Respondents submitted that an originating application must name as a respondent the entity “directly affected” by the relief sought and provide the grounds on which the relief is sought as stated under rule 8(1) of the Planning and Environment Court Rules 2018 (P & E Court Rules). 

The Court was not persuaded by the Respondents' submission and determined that the originating application and service letter clearly identified the Respondents, as the originating application and service letter identified the lot owners on the floors in question who were the persons in respect of which the order sought to do something or refrain from doing something. 

The Court therefore determined that there was no breach of the requirements under rule 8(1) of the P & E Court Rules. 

Which party had the most appropriate draft order in order to determine the interpretation point? 

The Respondents lastly submitted that the orders sought in their draft orders allowed the interpretation point to be determined without the following: 

  • the need for the Council to identify particular allegations against a particular lot owner;

  • avoided issues of any of the Respondents waiving privilege against self-incrimination; and

  • avoided the need for undertakings about the use of evidence in the enforcement proceedings not being used in any subsequent prosecution action. 

The Court was persuaded by the merit of the Respondents’ approach for the following reasons: 

  • the orders sought in the originating application, other than paragraphs 1 and 3, raised issues of fact well beyond the determination of what was involved in the interpretation points and consideration of the development approval; 

  • the determination of the effect of the development application is necessary and is not likely to prolong litigation; 

  • the interpretation point was not confined to Condition 5 of the development approval, it instead involved interpreting the whole of the development approval; and 

  • there would be little to no overlap of issues raised on the interpretation point. 

The Court therefore held that it would be appropriate to make the orders as set out by the Respondents with amendments to the dates therein. 

Conclusion

The Court held that the draft orders submitted by the Respondents were more appropriate than the draft orders submitted by the Council with amendments to the dates.

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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