The case of Council of the City of Gold Coast v McKean & Ors  QPEC 28 concerned a declaratory proceeding brought by the Council of the City of Gold Coast (Council) before the Planning and Environment Court (Court) in respect of land located at Tallebudgera, Queensland.
The Council had sought a declaration from the Court that a development permit for a material change of use ought to have been obtained by the developer prior to the issuing of a building permit by a certifier, and that as a consequence the building permit that was issued ought to have been taken as void and of no effect.
The relevant land was unimproved and located at 110 Valley Drive, Tallebudgera within the Council's local government area. The developer had sought to improve the land with a two storey dwelling house, balcony and garage (Building Application), which required a development permit for a material change of use to be issued by the Council (Development Permit) under the Planning Act 2016 (Planning Act).
The respondent certifier approved the building application without a development permit having been issued (Building Permit), thereby contravening section 83 of the Building Act 1975 (Building Act) which required that a private building certifier "must not grant [a] building development approval applied for [until] all necessary development permits are effective for development".
The Council submitted that because the building permit had been issued prior to the developer obtaining the relevant development permit, the building permit should be declared by the Court as either void ab initio (that is, invalid from the outset) or voidable.
Under the Gold Coast City Plan (City Plan), the land was located within a Rural residential zone and was also subject to the Bushfire hazard overlay code (Code). Required Outcome 1 (RO1) of the Code relevantly provided that accepted development must comply with the following requirements:
a written assessment by a bushfire management consultant confirming that the site is not in a "Bushfire Hazard Area" for the purpose of accepted development; or
the development complied with an existing approved Bushfire management plan forming part of an approved reconfiguration of a lot; or
the development is for a dwelling house that occurs on a lot smaller than 1,000m2 and is serviced by reticulated water.
The Court found, firstly, that the related overlay map for the Code identified the site as falling within an area that had been rated as "high" and "very high" in terms of the likelihood of bushfire, and secondly, that no approved Bushfire management plan was in place, and thirdly that the site was significantly larger than 1,000m2, namely being 48,990m2.
The Code provides that failure to comply with RO1 would necessitate compliance with RO2 – RO6 to avoid the requirement for a Code assessable development application. In particular, RO3 (Access requirements) relevantly provides that the access driveway for development in such an area must have a length of no more than 70m from the street to the dwelling. The site had a planned driveway in excess of 500m and was found to be non-compliant by the Court.
Consequence of non-compliance
The Council submitted that given the building application (as acceptable development) was not in compliance with the Code, a development permit for a material change of use should have been sought by the developer prior to the building permit being granted.
Furthermore, the requirement to comply with section 83 of the Building Act was fundamental to the developer's purported application, and therefore the failure to comply with the section had rendered the building permit invalid.
The Council placed further reliance on the following reasons:
sound public policy dictated that a "proper outcome" in the circumstances would be to declare the permit void ab initio, or otherwise having been issued in non-compliance with the Building Act;
given that development permits "run with the land", it would be imprudent of a local government to allow a subsequent landowner to wrongly rely on a permit issued to its own detriment;
the site was highly liable to bushfire, had no acceptable management plan in place, and therefore posed a considerable risk to public safety;
the certifier had accepted the building permit's non-compliance with the statutory regime and had subsequently requested that the developer cancel the building permit.
The Court noted that the Council had made a "Calderbank offer" (that is, an offer made "without prejudice" save as to costs) to the developer in order to resolve the matter prior to the hearing. No response was received. Instead, the developer had opted to resist the Council's application for declaratory relief despite having had no reasonable prospects of success in the matter.
Whereas section 59 of the Planning and Environment Court Act 2016 (PECA) provides that "each party to a … proceeding must bear the party's own costs for the proceeding", section 60 of the PECA relevantly provides that where the Court considers the proceeding was started or conducted primarily for an improper purpose, was frivolous or vexatious, or was brought without reasonable prospects of success, then the Court may grant costs to the successful party on the standard basis.
Having issued the orders for the declaration as sought by the Council, the Court also ordered that the building permit be set aside and that the developer pay the Council's costs on the standard basis.
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