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(Robertson DCJ - 3 December 2014)
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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 that:

"The development approval current for Noosa Lakes Resort is for:

  1. 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
  2. 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:

  1. the earlier Orders declaring that the Owners were committing a development offence could be set aside; and
  2. 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 resort's lots.

Decision: The Court held, in dismissing the applications and making a finding of fact in relation to the fire system:

  1. 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.
  2. 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 law.
  3. 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.