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
and 604
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 Originating Application.
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 effluent disposal.
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 developer.
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 the Court.
Decision: The Court held, in granting the application, that:
- 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 development offence.
- 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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