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(RS Jones DCJ - 25 February 2015)
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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 compliance permit.
- Section 576 – compliance with compliance permit or compliance certificate.
- Section 578 – carrying out assessable development without permit.
- 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 lights.
Decision: The Court held, in dismissing the application:
- 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 scale'.
- 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.