In brief

The case of Sunshine Coast Regional Council v Gavin & Anor [2020] QPEC 63 concerned an application by the Sunshine Coast Regional Council (Council) to the Planning and Environment Court (Court) for enforcement orders against the landowner company (Second Respondent), and the director of the Second Respondent (First Respondent) in respect of a three-storey building located at 9 Fortitude Place, Birtinya (Premises).

Relevant features of the Premises

In or around November 2018, the Respondents finished the construction of the Premises, which relevantly contained the following features:

"In total, across the three storeys, there are 17 rooms that might be properly considered to be bedrooms. … Each bedroom has an ensuite bathroom, individually controlled air conditioning, a built-in wardrobe and lockable, solid core, self-closing doors. Each of these rooms has an individual water and electricity meter. There are soundproofing and fire prevention measures that the council contends are unusual for a domestic dwelling house" (at paragraph [7]).

"Access between floors is via an internal stairway. The stairway is sealed off from each floor by a solid core, self-closing door. Balconies outside the living areas on the first and second floor have a tap and laundry sink. There is laundry equipment in the garage. There are no toilet or bathroom facilities in what might be considered the common areas of the buildings." (at paragraph [8]).

Although the Premises was used as a "Dwelling House" between late 2018 to January 2019, when the First Respondent's family was occupying the Premises, the First Respondent subsequently advertised and rented the rooms in the Premises to individuals between January 2019 and March 2020. During that period the Premises was being used as an "Accommodation building" as defined in the relevant planning scheme.

Respondents admit to committing a development offence under the Planning Act 2016

The Court accepted the evidence of the Council and determined that the lawful use of the Premises was as a "Dwelling House" and that the use of the Premises as an "Accommodation building" was unlawful. The lawful use of the land was informed by the Caloundra City Planning Scheme 1996, which relevantly includes the following definitions (at paragraph [14]):

"Accommodation building’ means premises used or intended for residential use for a boarding house, guest house, hostel, unlicensed residential club, services apartments, services room, and the like."

"Dwelling House’ means premises used or intended for a single dwelling unit on any one allotment … The term does not include Accommodation Building, Caretakers Residence, Duplex Dwelling or Multiple Dwelling."

The Respondents ultimately conceded that they had each committed development offences under section 162 (Carrying out prohibited development) and section 165 (Unlawful use of premises) of the Planning Act 2016 (Planning Act). However, the Council and the Respondents disputed the terms of any enforcement orders to be made, and therefore the Court was required to consider the terms of the enforcement orders to secure compliance with the Planning Act.

The Court noted that the issue before the Court was in relation to the intended and subsequent use of the Premises, rather than the Premises itself, which could be lawfully used as a dwelling house without alteration.

Court considered evidence relevant to determining the terms of the enforcement orders

The Court considered the following relevant evidence for the purpose of determining the terms of the enforcement orders:

  1. The Respondents' conduct in respect of the instructions given for, and the preparation of, the plans for the Premises which:

    1. were designed in a manner that makes the Premises suitable for an "Accommodation building" use; and

    2. masked the features of the plans which alluded to the "Accommodation building" use.  

  2. Whether the First Respondent intended to use the Premises as an "Accommodation building" despite being aware that an "Accommodation building" use was not permitted;

  3. The adverse amenity impact that the unlawful use of the Premises had caused on the surrounding neighbourhood.

The Court concluded (at paragraph [43]) that much of the First Respondent's conduct suggested that strong terms were required to ensure compliance with the Planning Act and that terms that would make it harder for the Premises to be used as an "Accommodation building" were necessary.

The Court noted that although the Respondents "have enjoyed something of a financial windfall from the unlawful use of the buildingthe purpose of these proceedings is not to punish the respondents for their wrongdoing, but to ensure it does not happen again in relation to this land" (at [44]). The Court went on to note that the contravention of an enforcement order may result in a penalty of up to 4,500 units (currently, nearly $600,000) or imprisonment for up to two years.

Court makes orders to ensure compliance with the Planning Act

The Court made orders (numbered 1 to 4), stated in paragraph [56], which restrained the use of the Premises to that of a "Dwelling House" and proposed orders (numbered 5 to 7) that required the alteration of the Premises in generally the following ways (Proposed Orders):

  • the removal of certain doors and the replacement of certain lockable solid-core doors with a form of standard internal domestic door;

  • the discontinuance of the use of the kitchen and laundry services on the first and second floors and the permanent capping and decommission of the relevant plumbing;

  • the removal of electricity and water sub-meters such that there would be a single water meter and electricity meter for the Premises.

Subsequent application to stay the orders to alter the Premises and an order for costs

The parties were allowed to make submissions on the proposed orders to better reflect the Court's intentions as explained in the decision and make submissions as to costs.

The related case of Sunshine Coast Regional Council v Gavin & Anor (No. 2) [2021] QPEC 2 concerned the Court's consideration of the submissions and determination on the issues and also considered applications to stay the final orders pending the finalisation of an appeal to the Queensland Court of Appeal (Appeal).

The Court considered the submissions and made minor changes to the Proposed Orders, including an extension of 15 days to comply with the Proposed Orders.

The Respondents made an application to stay the Proposed Orders until 10 business days after the finalisation of the Appeal.

The Court considered the Respondents' application and noted that although the Respondent would suffer a financial detriment should the Appeal succeed, the Respondent did not have promising prospects in the Appeal and the Proposed Orders would not render the Appeal futile. Therefore, the Court refused to grant the Respondents' application to stay the Proposed Orders.

After hearing the submissions of the parties as to costs, the Court made further orders that the Respondents pay the Council's investigation costs and the Council's costs of the proceeding on a standard basis.

Conclusion

The Court noted that the Respondents conceded that they had committed development offences in relation to the use of the Premises as an "Accommodation building" and made enforcement orders, which restrained the use of the Premises to that of a "Dwelling House" and required alterations to make the Premises less attractive for use as an "Accommodation building".

The Court, in a subsequent judgment, amended the enforcement orders to give more time for the Respondents to comply with the alteration requirements. The Court also dismissed an application to stay the orders and awarded costs to the Council.

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 2021.

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