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(Robertson DCJ – 5 December 2014)
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Planning and environment court – originating application – where applicants as private citizens applied for declarations and enforcement orders alleging multiple breaches of a court approved material change of use permit granted on 14 January 2005 – where hearing proceeded on 13 October 2014 over three days – where at the conclusion of the hearing the First Respondents and Second Respondents represented by Anthony Joseph Dender agreed to negotiate with the other parties resulting in an order made on 15 October 2014 which was essentially in terms of the declarations and orders sought in the originating Application filed on behalf of the applicants – where first and second respondents have filed no material to indicate compliance with the 25 October 1014 order – where the only evidence of partial compliance comes from an affidavit filed by the applicants' solicitor – where the first and second respondents seek an extension of time for the operation of enforcement order no. 4 in the order dated 15 October 2014 – where application is opposed by applicants – where applicants have applied by way of application in pending proceeding for an order for indemnity costs against the first and second respondents – where applicants seek costs of investigations pursuant to the SPA
Facts: This was a costs application relating to a dispute about a development approval for dog kennels granted over land at West Peregian.
The First Respondents (Denders) owned the subject site. The Second Respondent (controlled by the Denders) operated the use. The applicants (Younies) were neighbours of the Denders.
The matter had a lengthy history. The development approval had been granted, subject to extensive conditions, by a judgment of the Court on 14 January 2005 (Reservilt Pty Ltd v Maroochy Shire Council  QPELR 71). The development approval authorised development in accordance with approved plans.
The Denders subsequently obtained a building permit and constructed the kennels.
In October 2013, the Younies filed an Originating Application seeking declarations and enforcement orders on the basis that the use of the dog kennel facility was unlawful.
The evidence given on behalf of the Younies in support of the Originating Application was that, among other things:
- The building works which had been carried out on the site were not in accordance with the Court approved plans and involved a significantly different kennel design (in addition, the plans attached to the building permit differed from the Court approved plans).
- The building which was actually constructed under the supervision of the Denders did not comply with the plans attached to the building permit.
- The changes to the design of the kennels and the non-compliance with the approved plans had removed noise attenuation measures and significantly increased noise impacts on the Younies' premises.
- The Younies had made many complaints to Council and the Denders over a period of years which had not been dealt with.
- The cost to the Denders of building the kennels the way they did would have been significantly less than the cost of complying with the Court approved plans.
The Originating Application went to hearing. Following negotiations between the parties an order was made on the third day of the hearing (15 October 2014) which, in summary:
- declared that the building permit was invalid;
- declared that the use of the site was unlawful;
- ordered the Denders to cease the use (this order was stayed for a period of approximately 8 weeks); and
- imposed obligations on the Denders to carry out further investigations and interim mitigation works and to take certain steps aimed at "regularising" the use.
The Younies subsequently filed a costs application. The Younies also gave evidence that the Denders had failed to comply with the order made on 15 October 2014.
At the costs hearing, the Denders made an oral application for an extension of the stay on the operation of the enforcement order requiring them to cease the use. The Younies opposed the extension.
Decision: The Court held:
- The Denders' application to extend the stay was an attempt to unfairly buy more time at the expense of the Younies' quiet enjoyment of their property and at the expense of the proper enforcement of the law.
- There was a very significant public interest in ensuring that orders designed to ensure compliance with town planning law were strictly complied with, particularly in circumstances in which the parties most affected consented to the orders with full knowledge of the consequences. This was even more so where it was a private citizen and not the administering authority that had successfully taken action to achieve the result.
- It was a clear case in which the Denders had participated in the proceeding with no reasonable prospect of success. The Denders also failed to comply with the court's procedural requirements and their failures to make concessions or to file material required the Younies to make extensive investigations.
- In relation to the costs application, the Younies were wholly vindicated by the order made on 15 October 2014.
- The Denders conceded very little despite multiple continuing breaches of the conditions of the Court approval over many years with significant adverse consequences to the Younies.
- The Denders' participation in what was a complex case was "frivolous and vexatious".