Environment and planning – application for summary
judgment by Third Respondent – ambit of power to make
declarations – ambit of power to make enforcement order
– discretionary considerations
Sustainable Planning Act 2009 (Qld), ss 456, 457, 601
Uniform Civil Procedure Rules 1999 (Qld), r 293
Planning and Environment Court Rules 2010 (Qld), s 3
Facts: This was an application for summary
judgment brought by the Third Respondent local government to the
The matter related to the First Respondent developer's
breach of development approvals issued to it by the Council for the
purpose of developing a residential housing estate.
The Council had issued approvals permitting the commencement of
building works on certain residential lots before the completion of
operational works including earthworks, road works, and the
provision of services such as electricity, water, telephone, and
The result was that the Applicants had purchased housing lots
and taken steps to develop them in circumstances where the
necessary services were not provided to each of the lots by the
The Originating Application sought an order (in paragraph 9)
requiring the Council to "diligently progress, assess, and
determine any application or request lodged for approval,
authorisation, or permission" in relation to the outstanding
works. It also sought orders (in paragraph 10) which, in essence,
sought to impose a responsibility on Council to complete the works
if the developer failed to do so.
Council submitted that the order sought in paragraph 9 of the
Originating Application reflected its duty under the
Sustainable Planning Act 2009 (SPA) and
was superfluous and of no utility, and that the Court possessed no
jurisdiction to grant the remedies sought by paragraph 10.
Council also argued that the Applicants had acted in a vexatious
manner in instituting the proceeding against it which enlivened the
Court's costs jurisdiction pursuant to s. 457 of the SPA and
that the way that he proceeding was instituted and prosecuted
justified an award of indemnity costs.
The Applicants argued that Council facilitated the commission of
the development offence by enabling building work to occur in
circumstances where operational works did not need to be completed
beforehand by the developer and that Council had failed to properly
police the development approvals it issued.
The issue before the Court was whether the Council's conduct
fell within the jurisdiction of the Court in such a way as to make
the relief sought in paragraphs 9 and 10 properly justiciable by
Decision: The Court held, in granting the
What was sought by paragraph 10 were contingent orders allowing
for circumstances where orders which may be made by the Court may
either not be complied with or prove of no utility in the event of
various prospective events.
The jurisdiction contemplated in section 601 of the SPA and the
powers provided for in section 604 of the SPA did not conceive of
such contingent scenario where the Third Respondent had neither
committed nor been knowingly involved in the commission of a
The relief sought in paragraph 10 also contemplated a contempt
on the part of the other Respondents which was unappealing as a
vehicle for relief.
Council's application was granted and summary judgment
entered in respect of the relief sought against it.
The broad approach to the construing of sections 456, 601 and
604 of the SPA was at least notionally arguable by the Appellants,
in circumstances where Council's negotiated decision notice had
been a major contributor to the dispute before the Court. There
should be no order as to costs.
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guide to the subject matter. Specialist advice should be sought
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