Enforcement proceedings – where applicant alleged
numerous development offences under the Sustainable Planning Act
2009 (SPA) – where applicant owned and occupied premises
adjoining site where alleged offences occurred – where
applicant bore the onus of proof – where insufficient
evidence to ground any of alleged breaches.
Facts: This proceeding was concerned with an
application for enforcement orders pursuant to s61 of the SPA to
remedy the alleged commission of a development offence relating to
the upgrading of two tennis courts adjacent to the Appellant's
property at Mapleton.
The Applicant's grounds were that the First, Second and
Third Respondents had carried out a material change of use (MCU) on
the subject site without the required approvals. In the
Appellant's view, the upgrade of the tennis courts amounted to
an MCU because it re-established an abandoned use and/or
intensified the existing use.
The Applicant alleged that the First, Second and Third
Respondents and/or the Fourth Respondent had committed development
offences pursuant to the following sections of SPA:
Section 575 – carrying out development without a
Section 576 – compliance with compliance permit or
Section 578 – carrying out assessable development without
Section 582 – offences about the use of premises.
In addition, a development application for lights to be
installed at the tennis courts was on foot and the Applicant had
sought an order under 601 of SPA to prevent the installation of the
Decision: The Court held, in dismissing the
The onus of proof rested with the Applicant and proof of the
commission of a development offence under SPA was to be assessed by
reference to the civil standard and the 'sliding
The ground of the upgrade amounting to a re-establishment of an
abandoned use was not pursued by the Applicant due to lack of
probative evidence, however had the ground been pursued it would
have failed. This was due to there being no evidence that the
owners intended to abandon the use (and plans to upgrade the courts
had been contemplated for a number of years). While the popularity
of tennis had declined since the establishment of the courts and
the physical state of the courts had declined, the courts could be
used whenever someone wanted to use them. The physical cessation of
the use did not connote its abandonment.
The Applicant failed to prove the development offences
prescribed under s575 and s576 as there was no proof that a
compliance permit/certificate was required.
While an intensification of the use had occurred due to the
upgrading of the tennis courts, that an intensification existed was
not enough. There needed be a material change to the intensity or
scale. The fact that there had not been an increase in the number
of courts meant that it could not be said that there had been a
material change to the intensity or scale. The tennis courts were
also only part of the overall use of the premises (which included
cricket and football fields and a hall).
The introduction of 'night tennis' (a product of the
proposed lights) contemplated an intensity of the use (and perhaps
the start of a new use), however a development application had been
lodged with Council for the erection of the lights and there was no
basis for the Court to interfere with this process.
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