Insights

In brief

The case of Benfer v Sunshine Coast Regional Council [2019] QPEC 6 concerned two proceedings heard in the Planning and Environment Court. The first proceeding concerned an appeal by a landowner (Landowner) against the decision of the Sunshine Coast Regional Council (Council) to give an enforcement notice regarding the alleged unlawful importation of approximately 10,000 cubic metres of fill. The second proceeding concerned an originating application commenced by the Council to seek enforcement orders requiring the removal of the fill and reinstatement of the land. 

The Court held that the Council did not discharge the onus of proof in relation to both proceedings. The Court found that the enforcement notice failed to state the nature of the offence and that it was possible to make the works comply with a development approval. The Court also held that it did not have jurisdiction under the Planning Act 2016 (PA) to make an order to require a person to remedy the effect of a development offence committed under the Sustainable Planning Act 2009 (SPA) and held that it was inappropriate to grant the Council relief as it did not establish that the Landowner had committed a development offence. The Court ordered that the appeal be allowed and the enforcement notice be set aside and dismissed the originating application. 

Background

In 2017, the Council gave the Landowner a show cause notice under section 167 of the PA in relation to complaints about a large quantity of fill material which had been imported onto the Landowner's land. An enforcement notice was issued by the Council to the Landowner in September 2017. 

The enforcement notice stated that the Landowner had committed a development offence under section 163 of the PA. Section 163(1) of the PA relevantly states that "A person must not carry out assessable development, unless all necessary development permits are in effect for the development". 

The Council claimed that 10,000 cubic metres of fill was imported onto the land without a development approval, and that the fill was located within the Flood and Inundation Area of the Council's planning scheme.

The Landowner appealed the Council's decision to issue the enforcement notice and, in response, the Council lodged an originating application seeking enforcement orders for the removal of the fill and reinstatement of the land.

Appeal proceeding

The Landowner lodged an appeal against the Council’s enforcement notice. The Landowner advanced three grounds of appeal which were as follows:

  1. the enforcement notice did not comply with section 168(3)(a) of the PA;

  2. it was unreasonable to require the removal of approximately 10,000 cubic metres of fill;

  3. the prescribed time frames for the removal of the fill were too short.

The Court found that the enforcement notice failed to comply with section 168(3)(a) of the PA

The Landowner alleged that the enforcement notice failed to comply with section 168(3)(a) of the PA as it "did not state the nature of the offence". The Landowner submitted that the enforcement notice failed to identify the following:

  • the type of development which was alleged to have been carried out without a development permit;

  • the planning scheme provisions which make the development assessable development requiring a development permit;

  • the dates, times or periods on which the alleged development offence occurred. 

The Council submitted that the enforcement notice contained sufficient particulars regarding the nature of the offence and complied with section 168(3)(a) of the PA. 

During the proceeding the Council argued that the Landowner had also committed a development offence under section 578 of the SPA. Relevantly, section 578(1) of the SPA provides that "A person must not carry out assessable development unless there is an effective development permit for the development". The Council conceded to the Court that the enforcement notice ought to have referred to section 578 of the SPA. 

Despite this concession, the Council submitted that the enforcement notice ought not be set aside for the following reasons:

  • section 168(3)(a) of the PA only required the nature of the alleged offence to be identified and not the legislative provision;

  • the conduct relied upon to allege the offence was the same under the SPA as it was under the PA; and

  • the Landowner had not suffered any prejudice as the relief for both offences is the same.

In regards to the Council's first submission, the Court found that section 168(3)(a) of the PA requires that a legislative provision be identified as well as the nature of the alleged offence. The Court additionally held that an enforcement notice should set out the nature of the alleged offence and the details of the actions required with sufficient certainty so that a person of ordinary intelligence and experience can ascertain what is reasonably required (see [95]). The Court found that the Council's enforcement notice failed to do this. Consequently, the Court held that the enforcement notice did not sufficiently particularise the nature of the offence for the purposes of section 168(3)(a) of the PA.

The Court rejected the Council’s submission that the conduct of the alleged offence is the same under both the SPA and the PA. The Court held that the key difference relates to the timing of the importation of the fill. The Court found that the enforcement notice failed to refer to the importation of fill that occurred both prior to, and after 3 July 2017 (being the commencement date of the PA), and held that this was a material omission.

The Court rejected the Council’s submission that the Landowner did not suffer any prejudice from the Council's failure to reference section 578 of the SPA in the enforcement notice. The Court held that the absence of the reference to section 578 of the SPA inhibited the Landowner’s ability to have knowledge that the Council was alleging an offence under the SPA and therefore the Landowner's ability to lodge an appeal.

Lastly, the Court found that it was a material omission that the enforcement notice did not allege that the filling constituted operational work which was assessable development. The Court noted that the planning scheme only required a development approval if the fill does not involve the placement of topsoil. The Court therefore held that a reference to the planning scheme provision was essential.

The Court found that it is possible to make the works comply with a development approval

The Landowner alleged that it was unreasonable to require the removal of approximately 10,000 cubic metres of fill as the Landowner was willing to lodge a development application for a development permit to authorise the carrying out of operational work. 

The Court rejected the Council’s allegation that the Landowner was not genuine about lodging a development application as the Landowner did not have the opportunity to understand the nature of the offence that it was required to remedy. The Court found that the Landowner had the capacity to take practical steps to lodge the requisite development application.

The Landowner claimed that the fill additionally improved amenity and flood mitigation to the land. The Council submitted that the fill had caused negative impacts on amenity and increased flood risk to the land. The Court referred to the findings of the Council's engineering expert and found that the fill did not increase flood risk and had no adverse impacts on amenity. 

Council conceded that the timeframe to remove the fill was too short

The Landowner alleged that the prescribed timeframes for the fill’s removal were too short having regard to the volume of the fill. The Council conceded that the enforcement notice should be changed to enlarge the time to six months which the Court concluded to be a reasonable timeframe.

Originating Application

The Council lodged an originating application to seek enforcement orders requiring the Landowner to remove approximately 10,000 cubic metres of fill and reinstate the land. The Court considered the following three issues in relation to the originating application:

  1. whether the Court has power to make an enforcement order under section 180 of the PA;

  2. whether the Council has demonstrated the commission of a development offence under section 578 of the SPA and section 163 of the PA; and

  3. whether the Court should grant relief.

Court lacked jurisdiction

The Council submitted that section 180 of the PA confers power on the Court to make an order to require a person to remedy the effect of a development offence made under the SPA and the PA. The Court however held that the power conferred under section 180 of the PA does not confer a power to make an order requiring a person to remedy the effect of a development offence under the SPA, and is limited to a development offence under PA.

No commission of offence and therefore no relief granted

The Court found it unnecessary to consider whether the Council demonstrated the commission of development offences under section 578 of the SPA and section 163 of the PA, as the Council conceded that if the Court did not have power to make an enforcement order with respect to a development offence under the SPA, no enforcement order should be made as it was unable to identify the extent of the fill imported after 3 July 2017.

The Court found that it would be inappropriate to grant the relief sought as the Council failed to prove that the Landowner's actions constituted operational work that was assessable development. The Court found that as the Council did not provide evidence that the works undertaken by the Landowner did not involve the placement of topsoil, the Council did not discharge the onus of proof. 

The Court additionally found that the relief sought was inappropriate having regard to the delay in commencing the proceedings, the Landowner's indication that it would make a development application, and the evidence produced by the Council's expert that the fill did not increase the risk of flooding on the land or adjacent properties. 

Conclusion

The Court found that the Council did not discharge the onus of proof and relevantly ordered that the appeal be allowed and the enforcement notice be set aside. Additionally, the Court held that as the Council did not discharge the onus of proof, the originating application ought be dismissed.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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