In brief 

The case of Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor [2019] QPEC 12 concerned an application by the Council of the City of the Gold Coast (Council) for declaratory relief and consequential orders for non-compliance with the conditions of a development permit for a material change of use. 

The land the subject of the proceeding was located at 38 Prairie Road, Ormeau (Land). The First Respondent, Ashtrail Pty Ltd (First Respondent), owns a business which conducts driving instruction and motor vehicle repairs on the Land, and the Second Respondent, Talranch Pty Ltd (Second Respondent), owns the Land. 

The Council issued a Show Cause Notice to the First and Second Respondents in February 2007, which required the First and Second Respondents to show cause why an enforcement notice ought not be issued requiring them to cease using the Land for driving instructing and commercial equipment hire without a development approval. The Show Cause Notice required the First and Second Respondents to cease the alleged unlawful use and carry out remedial works, or to make a development application to regularise the use. 

On 4 October 2007, the First Respondent lodged a development application, which lapsed on 16 February 2008. On 29 October 2008, the First Respondent lodged another development application for a material change of use for a Service Industry Type B (Driving Instructing), a Motor Vehicle Repair Station, and an Environmentally Relevant Activity 28 (ERA 28), being a Motor Vehicle Workshop (Development Application). On 15 February 2010, the Council issued a Negotiated Decision Notice approving the Development Application subject to conditions (Development Approval). The First and Second Respondents, however, accepted that they did not comply with the conditions of the Development Approval. 

The Development Application was made under the Integrated Planning Act 1997, however, the Development Approval took effect under the Sustainable Planning Act 2009. The transitional provisions of the Planning Act 2016 (PA) require that the Development Approval be treated as an approval made under the PA.

The Court considered the following issues in the appeal:

  • whether the Land uses approved under the Development Approval were existing lawful uses;

  • if the Land uses were not existing lawful uses, whether the Development Approval lapsed because of non-compliance with the conditions of the Development Approval;

  • if the Land uses were not existing lawful uses, whether the Development Approval lapsed because of departures from the approved plans; 

  • if the Development Approval has not lapsed, whether the conditions of the Development Approval are enforceable despite the Limitations of Actions Act 1974 (LAA);

  • if the Development Approval has not lapsed, whether the conditions of the Development Approval are enforceable despite the Acts Interpretation Act 1954 (AIA); and

  • if a development offence was committed, whether the Court should exercise its discretion to deny the Council declaratory relief.

The Court held that the First and Second Respondents had breached the conditions of the Development Approval, and granted the declaratory relief sought by the Council and made consequential orders.

The uses the subject of the Development Approval were not existing lawful uses

The First and Second Respondents argued that the Development Approval had lapsed, but Driving Instructing and a Motor Vehicle Workshop were existing lawful uses.

Firstly, the First and Second Respondents argued that they did not rely on the provisions of the Development Approval that related to Driving Instructing. This was because they had an existing lawful use status since the Driving Instructing on the Land commenced in 1998. However, the Court held that Driving Instructing on the Land had intensified since 1998. Therefore, the scale of the Driving Instructing was materially more significant by the date the Development Approval took effect. Thus, the Court held that Driving Instructing was not an existing lawful use. 

Secondly, the First and Second Respondents argued that a Motor Vehicle Workshop was an existing lawful use. The Gold Coast Planning Scheme 2003 defines a Motor Vehicle Workshop as a use “for the purpose of carrying out repairs to motor vehicles". The First and Second Respondents argued that they had one workshop and the Motor Vehicle Workshop use was ancillary to the purpose of conducting educational activities. Thus, the First and Second Respondents argued that the Motor Vehicle Workshop was an ancillary use that did not require a separate development permit.

The Court held that promotional materials indicated that despite being one workshop structure, there were essentially two workshops, one for education and another for repairs. The Court held that the primary purpose of the workshop was to service and maintain the First Respondent's driver training fleet. The Court therefore held that it was necessary for the First Respondent to obtain a development permit for a material change of use for ERA 28, and that the uses the subject of the Development Approval were not existing lawful uses.

The Court thus considered whether the Development Approval had lapsed. 

Development Approval did not lapse because of non-compliance with the conditions

The First and Second Respondents accepted that they did not comply with conditions 5, 6, 10, 12 and 16 of the Development Approval. However, the First and Second Respondents argued that the conditions were a pre-requisite to the commencement of the Development Approval. Thus, non-compliance caused the Development Approval to lapse. 

Conditions 5 and 6 of the Development Approval required the payment of infrastructure contributions for the water supply network and sewerage network prior to the commencement of the use. However, because conditions 5 and 6 of the Development Approval did not expressly state that no work or use of the Land could be undertaken prior to payment, the Court held that the conditions were not pre-requisite conditions. 

Conditions 10, 12 and 16 of the Development Approval, required the design and construction of roadworks, footpaths and bikeways and the dedication of land prior to the commencement of the use. The Court relied upon the decision in Sunshine Coast Regional Council v Recora Pty Ltd & Anor [2012] QPEC 8, in which the Court held that the failure to pay an infrastructure contribution prior to the commencement of a use, did not discharge the obligation nor sever the condition from the development approval. 

Therefore, the Court concluded that the Development Approval did not lapse because of non-compliance with the conditions, and that the non-compliance constituted a development offence. 

Development Approval did not lapse because of a departure from the approved plans

The Development Approval required that development be carried out generally in accordance with the approved plans. The Court held that the First Respondent made departures from the approved plans that were not minor.

The Court, however, concluded that a departure from the plans on its own was not sufficient to cause the Development Approval to lapse.

LAA did not apply to the proceeding

The Council sought to rely on various sections of the Planning and Environment Court Act 2016 (PECA) and the PA to seek to recover the monies outstanding as a result of the non-compliance with conditions 5 and 6 of the Development Approval. 

The First and Second Respondents argued that section 10 of the LAA prevented the Council from enforcing conditions 5 and 6 of the Development Approval, because the LAA states that actions to recover a sum by virtue of an enactment cannot be brought after six years from the day that the cause of action arose. In the current case, the First and Second Respondents had breached the conditions over a period of nearly eight years prior to the proceedings. 

The Court held that the Council was not suing to recover a sum, but rather had brought a proceeding to enforce the conditions of the Development Approval, which required the First and Second Respondents to pay a sum to the Council.  

Therefore, the Court concluded that section 10 of the LAA did not apply, because the proceeding was brought to enforce conditions of the Development Approval, and not to recover a sum.

Proceeding is not subject to the AIA

The First and Second Respondents also argued that the proceeding ought to be dismissed because it was not brought “as soon as possible” under section 38(4) of the AIA. 

The Court held that section 38(4) of the AIA does not operate to limit or bar the availability of an enforcement proceeding. The passage of time is only a relevant consideration in the exercise of discretion, and is only usually exercised where a delay may cause a party material prejudice. 

The Court concluded that section 38(4) of the AIA did not apply because the delay had not caused the First and Second Respondents sufficient prejudice to justify dismissing the proceeding. 

No relevant discretionary grounds to warrant denying the Council declaratory relief

The First and Second Respondents argued that the Court should deny the Council declaratory relief using its discretionary powers under section 11 of the PECA. The Court referred to Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, in which the Court stated that it was less likely to exercise its discretion where it was a local government that had brought a proceeding because local governments are seen “as the proper guardians of public rights”. 

The First and Second Respondents also argued that the Court ought to exercise its discretion to deny the Council the declaratory relief it sought on the following grounds:

  • the Council's delay in bringing the proceeding caused the First and Second Respondents negative financial impacts and evidentiary prejudice;

  • the First Respondent made an application on 1 February 2016 to regularise the Land use for educational activities without prompting from the Council, and where the Council was aware of the on-site activities since 1999; 

  • if the First and Second Respondents were required to pay the infrastructure contributions they would become insolvent, which would negatively impact employment and educational opportunities in the area;

  • the infrastructure contributions are not a relevant or reasonable amount; and

  • the Council failed to provide evidence of inappropriate associated activities or conduct, or provide evidence of negative consequences that would or could arise as a result of non-compliance with the conditions.

The Court concluded that none of the grounds put forth by the First and Second Respondents warranted the Court exercising its discretion to deny the Council the declaratory relief it had sought. 

Conclusion

The Court concluded that the Development Approval had not lapsed and that the First and Second Respondents had breached the conditions of the Development Approval. The First and Second Respondents had therefore committed a development offence under section 164 of the PA. Therefore, under section 180 of the PA, the Court ordered that the First and Second Respondents comply with the conditions of the Development Approval.

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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