Planning and environment enforcement proceedings: Where
Council sought declarations and orders against the first
respondents; where Council alleges that Units in the Resort are not
fire safe; where all active parties by consent asked the Court to
determine 3 preliminary points which was done and not challenged by
appeal; where application set for full trial on 13-14 February
2014; where matter was compromised; where Council with consent of
all active parties filed by leave an Amending Originating
Application; where at hearing on 13 February 2014 without demur
Orders were made which included an enforcement order (7a.) directed
at the second respondent; where it proceeded to carry out the
requirements of that order; where a dispute of fact arose as to
whether the works done by it enlivened the undertaking given by
Council in order 7; where second respondent filed a number of
applications in pending proceedings which in part challenged the
Court's power to make order 7a.; where it also sought to
adjourn the hearing on 21 November; where it also seeks summary
judgment against Council.
Facts: This was a proceeding for declarations
and enforcement orders in relation to the use of units at Noosa
Lakes Resort. These proceedings followed an earlier Judgment made
by the Court, which considered the use of the lots in the resort as
dual accommodation facilities. The Court, in that instance, held
"The development approval current for Noosa Lakes Resort is
94 lots (each having as an additional permitted use, the use of
the downstairs area for the accommodation of parties unrelated to
the users of the upstairs area); and
Not for 188 self-contained dwellings."
A subsequent Judgment was made by the Court declaring that the
owners of the lots were committing a development offence for
breaching a condition of the development approval, which required
that each lot have fire separation and egress requirements for a
Class 2 building.
It later transpired that the above Orders were made, despite the
fact that the owners had not committed any development offence.
In dispute was whether:
the earlier Orders declaring that the Owners were committing a
development offence could be set aside; and
whether or not, as a question of fact, the fire safety system
installed at the direction of the Body Corporate fits the
description of the fire system required to be installed in the
Decision: The Court held, in dismissing the
applications and making a finding of fact in relation to the fire
On the proper construction of relevant provisions in Chapter 7,
Part 3, Division 5(2) of the Sustainable Planning Act 2009 (SPA),
the Court did not have jurisdiction to make an enforcement order
against an entity that has not committed or is not likely to commit
a development offence.
The Orders declaring that the Owners were committing a
development offence were made in error, but cannot be set aside.
The only avenue available to the Body Corporate was to appeal to
the Court of Appeal on the grounds that the Court made an error of
The fire safety system installed by the Body Corporate
satisfies the description of the fire system required to be
installed in the resort's lots.
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