Emerald Pharmacy Services Pty Ltd & Anor v Aphrodite Barbayannis & Ors (No. 2) [2026] QPEC 26

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Emerald Pharmacy Services Pty Ltd & Anor v Aphrodite Barbayannis & Ors (No. 2) [2026] QPEC 26 PARTIES: EMERALD PHARMACY SERVICES PTY LTD (ACN 611 972 680) (First Applicant) and DCO CENTRAL HIGHLANDS PTY LTD (ACN 679 683 222) (Second Applicant) v APHRODITE FREDA BARBAYANNIS (First Respondent) and QUANTA HOLDING CO LTD (ACN 601 712 707) (Second Respondent) and CENTRAL HIGHLANDS REGIONAL COUNCIL (Third Respondent) FILE NO/S: 1499/26 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 22 June 2026 DELIVERED AT: Brisbane HEARING DATE: 18 and 19 June 2026 JUDGE: Kefford DCJ ORDER: UPON BEING SATISFIED THAT THE FIRST AND SECOND RESPONDENTS HAVE COMMITTED DEVELOPMENT OFFENCES CONTRARY TO s 164 OF THE PLANNING ACT 2016, PURSUANT TO s 180 -- 1 of 37 -- 2 OF THE PLANNING ACT 2016, IT IS ORDERED THAT: 1. effective immediately, the First and Second Respondents must not use the demountable building (“the demountable building”) contained in the car park of 51-57 Hospital Road, Emerald, more particularly described as Lot 91 on SP314634 (“the subject land”) for a pharmacy unless such use is authorised by, and undertaken in compliance with, a new development permit; 2. within 14 days of this order taking effect, the First and Second Respondents must remove the demountable building and the associated ramp and other infrastructure from the subject land and undertake any works necessary to reinstate the car parking spaces on which it was constructed; 3. paragraph 2 of this order takes effect on 25 August 2026; and 4. paragraphs 1 to 3 of this order replace the interim enforcement order made on 28 May 2026. IT IS FURTHER ORDERED THAT: 5. The First and Second Respondents pay the First and Second Applicants’ costs of the proceedings assessed on the standard basis unless otherwise agreed. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – ENFORCEMENT ORDERS – where there is an application for enforcement orders under s 180 of the Planning Act 2016 – where the Applicants allege that the First and Second Respondents are committing development offences under ss 164 and 165 of the Planning Act 2016 – whether the pharmacy use by the First and Second Respondents breaches conditions of a development approval – whether it is appropriate to make an enforcement order that allows an opportunity to obtain a development permit on different conditions to authorise the use as commenced – whether a costs order is appropriate LEGISLATION: Electrical Safety Regulation 2013 (Qld) ss 70, 77 Integrated Planning Act 1997 (Qld) ss 6.1.23, 6.1.24 Local Government (Planning and Environment Act) 1990 (Qld) s 4.13(12) Planning Act 2016 (Qld) ss 3, 4, 5, 6, 43, 44, 46, 49, 161, 163, 164, 165, 180, 181, 286, 292, sch 2 -- 2 of 37 -- 3 Planning and Environment Court Act 2016 (Qld) s 11 Sustainable Planning Act 2009 (Qld) ss 801, 850 CASES: Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, approved Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, applied Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, approved Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 33, cited Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, approved Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd (1995) 88 LGERA 157, distinguished R v KU, ex parte Attorney-General (No. 2) [2008] QCA 154; (2011) 1 Qd R 439, cited Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, approved COUNSEL: L Walker for the First and Second Applicants D Purcell for the First Respondent D Gore KC and J Bowness for the Second Respondent H Stephanos for the Third Respondent SOLICITORS: MacDonnells Law for the First and Second Applicants Robert James Lawyers for the First Respondent Corrs Chambers Westgarth for the Second Respondent Hamilton Locke for the Third Respondent TABLE OF CONTENTS Overview .............................................................................................................................. 4 What is the relevant planning context for the subject land?................................................. 8 What is the relevant legislative context for enforcement proceedings? ............................... 9 What are the alleged offences? ........................................................................................... 11 What is the alleged offence under s 164 of the Planning Act 2016?.............................. 12 What is the alleged offence under s 165 of the Planning Act 2016?.............................. 13 What do the relevant development approvals require? ...................................................... 14 What does the evidence demonstrate? ................................................................................ 17 -- 3 of 37 -- 4 Does the evidence demonstrate that Dr Barbayannis and Quanta Holding Co Ltd have contravened the development approvals? ........................................................................... 25 Is there non-compliance with condition 1 of the development permit? ......................... 26 Is there non-compliance with conditions 9 and 10 of the development permit? ............ 26 Is there non-compliance with condition 16 of the development permit? ....................... 28 Is there non-compliance with condition 28 of the development permit? ....................... 29 Is there non-compliance with conditions 1 and 3 of the consent permit? ...................... 29 Conclusion regarding the alleged development offences under s 164 of the Planning Act 2016 ................................................................................................................................ 30 Is it appropriate to make an enforcement order? ................................................................ 30 What are the appropriate terms of the enforcement order? ................................................ 33 What enforcement order should be made in the exercise of the discretion? ...................... 35 Should costs be ordered in the exercise of the discretion? ................................................. 36 Overview [1] The Second Respondent, Quanta Holding Co Ltd, is the registered owner of a 2.44- hectare-parcel of land at 51-57 Hospital Road, Emerald, more particularly described as Lot 91 on SP 314634 (“the subject land”). It is improved by a shopping centre known as “The Village @ Emerald” (“the shopping centre”), which takes the form of a standard suburban shopping centre surrounding by large areas of at-grade hardstand car parking. [2] The subject land is located within the local government area of the Third Respondent, Central Highlands Regional Council (“the Council”). [3] There are several development approvals and an exemption certificate that attach to the subject land and govern its lawful use. One of them is a development permit for a material change of use for a shopping centre (extension) and building works for a shopping centre (extension) in the Flood overlay. It was given by the Council and is dated 25 August 2025 (“the development permit”). [4] The development permit authorises a material change in the intensity and scale of the shopping centre use by permitting use of a demountable building (“the demountable building”) in the shopping centre car park on the subject land for a pharmacy. The approved plans depict the demountable building, and the associated ramp that was to provide access to it, located across six of the car parking spaces for the existing shopping centre. [5] In late April and early May 2026, the demountable building was placed in the approved location in the car park and an access ramp was constructed to provide access. -- 4 of 37 -- 5 [6] Around 8 May 2026, the use of the demountable building for a pharmacy commenced. The pharmacy was operated by the First Respondent, Dr Aphrodite Freda Barbayannis. [7] On 21 May 2026, the Applicants filed an Originating Application commencing this proceeding. [8] The Originating Application seeks: (a) declarations about the lawfulness of the use of the demountable building on the subject land under s 11 of the Planning and Environment Court Act 2016 (Qld); and (b) interim enforcement orders and enforcement orders under s 180 of the Planning Act 2016 (Qld) with respect to alleged development offences associated with the use of the demountable building for a pharmacy. [9] On 27 May 2026, I heard that part of the application that sought interim enforcement orders. On 28 May 2026, I made an interim enforcement order (“the interim enforcement order”) and delivered reasons for judgment with respect to that decision: Emerald Pharmacy Services Pty Ltd & Anor v Aphrodite Barbayannis & Ors [2026] QPEC 21. [10] This matter is now before me for hearing and determination of the application for final relief. [11] The Applicants no longer pursue that part of their application that seeks relief in the form of declarations under s 11 of the Planning and Environment Court Act 2016. However, the allegations that underpin that relief are identical to those that inform the relief for enforcement orders. [12] In support of its application for enforcement orders, the Applicants rely on extensive evidence. None of the evidence was challenged and the other parties elected not to adduce any evidence. [13] At the outset of the final hearing, Dr Barbayannis and Quanta Holding Co Ltd conceded that the Applicants’ evidence demonstrates that the Court’s power to make an enforcement order is enlivened. Dr Barbayannis and Quanta Holding Co Ltd each admit to the commission of a development offence under s 164 of the Planning Act 2016, namely the contravention of a development approval. [14] In that respect, Dr Barbayannis and Quanta Holding Co Ltd admit: (a) Dr Barbayannis used the demountable building for a pharmacy between 8 May 2026 and 29 May 2026 (when the use temporarily ceased as required by the interim enforcement order); (b) Quanta Holding Co Ltd permitted Dr Barbayannis to use the demountable building for a pharmacy; (c) use of the demountable building for a pharmacy is authorised by the development permit and is not otherwise a lawful use; and -- 5 of 37 -- 6 (d) the use of the demountable building contravened conditions 1, 9, 16 and 28 of the development permit. [15] Although made late, the admissions are unsurprising given the strength of the evidence adduced by the Applicants. [16] Dr Barbayannis and Quanta Holding Co Ltd appropriately concede that the circumstances warrant the Court exercising its discretion to make an enforcement order. In written submissions filed on 15 June 2026, Quanta Holding Co Ltd provided a draft enforcement order that it submitted was appropriate. It stated: “PURSUANT TO s 180(3) OF THE PLANNING ACT 2016, IT IS ORDERED THAT: 1. The First and Second Respondents must cease, and not recommence, the use of the demountable building (Demountable Building) contained in the car park of 51–57 Hospital Road, Emerald, more particularly described as Lot 91 on SP314634 (Land), for a pharmacy until the Development Permit for a Material Change of Use for Shopping Centre (Extension) granted on 25 August 2025 (Development Permit) has been complied with in the following respects: (a) the Demountable Building (including any associated ramp or accessway) has been built in accordance with the approved plans for the Development Permit, unless the Development Permit is changed in accordance with the Planning Act 2016 (Qld), in which case the Demountable Building (including any associated ramp or accessway) has been built in accordance with any approved change to the Development Permit; (b) the Demountable Building has been connected to reticulated electricity supply to the standard of the relevant service provider; (c) any electrical boxes and meters are mounted above DFE level; and (d) amended elevation plans have been submitted to the Third Respondent showing: (i) Display windows for a minimum of fifty (50) per cent of the southern façade area; (ii) Louvres, awnings and/or overhang of the southern and western facades that provide continuous weather protection for pedestrians and patrons using the ramp; (iii) Building walls (excluding windows and doors) on the southern, eastern and western facades having -- 6 of 37 -- 7 at least three (3) variations, with the variations consisting of the following: A. Changes in surface textures; B. Changes in materials; C. Changes in colours. (e) An amended site plan has been submitted to the Third Respondent for approval showing: (i) A 1.5-metre-wide landscaping strip around the southern and eastern perimeter of the proposed building; or (ii) Planter box/pods/containers with a minimum area of 1.5m2, separated by no more than 1 metre intervals, around the southern and eastern perimeter of the proposed building; and (iii) The building will not obstruct the pedestrian access gates to 5 and 9 Cyprus Drive, Emerald. IT IS FURTHER ORDERED THAT: 2. The interim enforcement order made by her Honour Judge Kefford on 28 May 2026 be vacated. 3. The First and Second Respondents pay the First and Second Applicants’ costs of the proceedings, fixed in the amount of $50,000.” [17] The terms of the enforcement order set out above were not opposed. [18] Given the grave consequences that flow from an enforcement order, it is reasonable to expect that this Court would not lightly embark on a decision to make an enforcement order including terms that are more draconian than those sought by any of the parties to the litigation. I identified the grave consequences to which I refer in Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, wherein I observed at 325 [366]: “… the making of an enforcement order can have significant consequences to the rights of landowners to deal with their land. Unless the Court orders otherwise, an enforcement order, other than an order to apply for a development permit, attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises. The order is to be recorded on the register for the premises by the registrar of titles. Further, contravention of an enforcement order is a criminal offence for which punishment includes imprisonment.” (footnotes omitted) [19] Although the Court should not lightly decide to impose a more draconian enforcement order than sought by the parties, equally it must be recognised that the parties cannot, -- 7 of 37 -- 8 through agreement, tie the Court’s hands. That is true for both the decision to make an enforcement order and the terms of any such order. The position of the Court is analogous to the relationship between a sentencing judge and the prosecutor making submissions on sentence: the prosecutor cannot shift the burden of responsibility for imposing a proper sentence from the sentencing judge: R v KU, ex parte Attorney- General (No. 2) [2008] QCA 154; (2011) 1 Qd R 439, 465 [100]. It is trite to say, the Court has an obligation to satisfy itself that the power to make an enforcement order is enlivened and that the terms of any enforcement order are an appropriate exercise of the discretion. [20] The exercise of the discretion involves a balancing exercise that has regard to: (a) the guidance on the exercise of the discretion provided in ss 180 and 181 of the Planning Act 2016, including but not limited to: (i) s 180(2) of the Planning Act 2016, which defines an enforcement order as an order that requires a person to do either or both of the following: (A) refrain from committing a development offence; (B) remedy the effect of a development offence in a stated way: s 180(2) of the Planning Act 2016; (ii) s 180(6) of the Planning Act 2016, which states that an enforcement order may be in terms the Court considers appropriate to secure compliance with the Planning Act 2016; (iii) the consequences of an enforcement order to which I refer in paragraph [18] above: see ss 180(8), (9) and (10) of the Planning Act 2016; and (b) the relevant facts and circumstances of the case, including the seriousness of the alleged offences and their impact. [21] Having read the material in advance of the hearing, when presented with the proposed order, I indicated that I had concerns about its appropriateness. Most of the hearing was spent addressing that issue. [22] Ultimately, for the reasons provided below: (a) I am persuaded that a development offence has been committed and that it is appropriate to make an enforcement order; but (b) I am not persuaded that the balance is appropriately struck by making an enforcement order on the agreed terms. What is the relevant planning context for the subject land? [23] As I have mentioned, the subject land is located within the Council’s local government area. The lawful use of the subject land is regulated by, amongst other things, the Central Highlands Regional Council Planning Scheme 2016 (“the Planning Scheme”). [24] Under the Planning Scheme, the subject land is located in the Principal centre zone. It is also affected by the Flood hazard overlay, which indicates that use of the subject land may be subject to constraints associated with flooding. -- 8 of 37 -- 9 [25] The Council’s flood mapping indicates that the defined flood event for the subject land is between 178.9 and 179 metres Australian Height Datum (“AHD”). [26] The 2011 LiDar contour data indicates that the subject land has a ground level of between 176 and 177 metres AHD at its western boundary and 177 to 178 metres AHD at its eastern boundary. [27] Pursuant to s 43 of the Planning Act 2016 and the version of the Planning Scheme that has been in force since 7 June 2024, the making of a material change of use of the subject land for a “shop” (such as a pharmacy) or a “shopping centre” (i.e., a group of shops) is assessable development. It requires a development permit: ss 44 and 163 of the Planning Act 2016. What is the relevant legislative context for enforcement proceedings? [28] Section 180(1) of the Planning Act 2016 confers a right to start proceedings in this Court for an enforcement order. An “enforcement order” is an order that requires a person to do either or both of the following: (a) refrain from committing a development offence; and (b) remedy the effect of a development offence in a stated way: s 180(2) of the Planning Act 2016. [29] The Court’s power to make an enforcement order is enlivened if the Court considers a development offence has been committed; or will be committed unless the order is made: s 180(3) of the Planning Act 2016. [30] The Applicants carry the onus of proving the commission of the offences alleged. They also carry the onus of proving the matters necessary to make good the enforcement orders it seeks and persuading the Court that the orders should be made: Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, 353 [22]. [31] In deciding whether to make an enforcement order, the Court has a broad discretion. [32] An enforcement order may, amongst other things, direct a person: (a) to stop an activity that constitutes a development offence; or (b) to do anything required to stop committing a development offence; or (c) to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or (d) to do anything to comply with the Planning Act 2016: s 180(5) of the Planning Act 2016. [33] An enforcement order may be in terms that the Court considers appropriate to secure compliance with the Planning Act 2016: s 180(6) of the Planning Act 2016. [34] The Court may make an enforcement order regardless of whether the development offence has been prosecuted: s 181 of the Planning Act 2016. -- 9 of 37 -- 10 [35] The making of an enforcement order has material consequences. A person who contravenes an enforcement order commits an offence punishable by up to 4,500 penalty units, or five times that for a corporation, or two years imprisonment: s 180(8) of the Planning Act 2016. An enforcement order also attaches to the premises and is required to be registered on title within 10 business days of the order being made: ss 180(9) and (10) of the Planning Act 2016. It can only be removed upon notice given to the Registrar of Titles that there has been compliance with the enforcement order: ss 180(11) and (12) of the Planning Act 2016. For these reasons, the onus of proof is to be discharged according to the Briginshaw standard informed by the gravity of the issues involved: Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336; Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, 561-2 [14]. [36] Although those are relevant considerations that guide the exercise of the discretion, they are not the only matters to be considered in the exercise of discretion under s 180(4) of the Planning Act 2016. The exercise of the discretion should also consider: (a) the other matters referenced in ss 180 and 181 of the Planning Act 2016; and (b) the subject matter, scope and purpose of the Planning Act 2016. [37] As for the subject matter, scope and purpose of the Planning Act 2016, s 3 of the Planning Act 2016 identifies that the purpose of the Act is to: “establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning (planning), development assessment and related matters that facilitates the achievement of ecological sustainability.” (emphasis added) [38] In ss 3(2) and (3) of the Planning Act 2016, ecological sustainability is identified as a balance that integrates: (a) the protection of ecological processes and natural systems at local, regional, State, and wider levels; (b) economic development; and (c) the maintenance of the cultural, economic, physical and social wellbeing of people and communities, including the maintenance of well-serviced communities with safe development. [39] The system to facilitate the achievement of ecological sustainability includes, amongst other things: (a) a development assessment system for implementing planning instruments and other policies and requirements about development by, amongst other things, establishing rights and responsibilities in relation to development approvals; and (b) a variety of offences and enforcement arrangements: s 4 of the Planning Act 2016. -- 10 of 37 -- 11 [40] The relevance of these considerations is supported by Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, wherein Kirby P observed at 339-40: “In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney- General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co- ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211.” (emphasis added) [41] Although these observations relate to the Environmental Planning and Assessment Act 1979 (NSW), they are nevertheless apposite in planning law in Queensland. Like s 124 of the Environmental Planning and Assessment Act 1979 (NSW), s 180 of the Planning Act 2016 permits any person to start proceedings in this Court for an order that requires a person to remedy or restrain the commission of a development offence [42] In Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339-341, Kirby P (as his Honour then was) set out additional guidelines for the exercise of a Court’s power to make enforcement orders. Relevantly, his Honour observed that: (a) circumstances that may be considered include whether a breach is purely technical, rather than having an adverse effect on the environment or amenity; and (b) the obvious intention of planning law is that those concerned in development and use of the environment will comply with the terms of the legislation, with frequent unlawful exemptions and exceptions having the tendency to undermine the equal and orderly enforcement of such legislation. What are the alleged offences? [43] The Applicants allege that two offences have been committed. They allege that Dr Barbayannis and Quanta Holding Co Ltd have committed offences under ss 164 and 165 of the Planning Act 2016. Each of these is a development offence under the Planning Act 2016: s 161 of the Planning Act 2016. -- 11 of 37 -- 12 What is the alleged offence under s 164 of the Planning Act 2016? [44] The Applicants allege that Dr Barbayannis and Quanta Holding Co Ltd have committed two development offences under s 164 of the Planning Act 2016, which states: “164 Compliance with development approval A person must not contravene a development approval. Maximum penalty—4,500 penalty units.” [45] Pursuant to s 49(1) of the Planning Act 2016, a development approval includes a development permit. Section 49(5)(b) of the Planning Act 2016 provides that a reference to a development approval includes the development conditions imposed on the development approval. [46] For this development offence, the Applicants must prove that: (a) there is a development approval; and (b) Dr Barbayannis and Quanta Holding Co Ltd have contravened the development approval. [47] The particulars of the development offences are set out in the Originating Application. The Applicants allege a failure to comply with: (a) conditions 1, 9, 10, 16 and 28 of the development permit; and (b) conditions 1 and 3 of a town planning consent permit T9/96 dated 8 April 1997 (“the consent permit”). [48] The Originating Application does not particularise the basis on which each of Dr Barbayannis and Quanta Holding Co Ltd are criminally liable for this development offence. However, it is apparent from the conduct of the case that the Applicants contend that: (a) Dr Barbayannis is liable as she, and her employees and agents, occupies the demountable building and conduct a pharmacy from it and the use does not comply with the conditions of the development approvals; and (b) Quanta Holding Co Ltd is liable on the basis that it is the owner of the subject land and permits Dr Barbayannis to conduct the pharmacy use from the demountable building and the use does not comply with the conditions of the development approvals. [49] Under s 7 of the Criminal Code, Dr Barbayannis and Quanta Holding Co Ltd would each be potentially liable as a principal offender on that basis. [50] Dr Barbayannis and Quanta Holding Co Ltd both admit to failing to comply with conditions 1, 16 and 28 of the development permit. Quanta Holding Co Ltd also admits failing to comply with condition 9 of the development permit. They both deny the alleged failure to comply with condition 10 of the development permit and conditions 1 and 3 of the consent permit. -- 12 of 37 -- 13 What is the alleged offence under s 165 of the Planning Act 2016? [51] The Applicants alleges that Dr Barbayannis and Quanta Holding Co Ltd have committed a development offence under s 165 of the Planning Act 2016, which states: “165 Unlawful use of premises (1) A person must not use premises unless the use— (a) is a lawful use; or (b) for designated premises—complies with any requirements about the use of the premises in the designation. Maximum penalty—4,500 penalty units.” [52] For this development offence, the Applicants must prove that: (a) Dr Barbayannis and Quanta Holding Co Ltd are using the subject land for a pharmacy; and (b) the use is not a lawful use. [53] A “lawful use” is defined in Schedule 2 of the Planning Act 2016 as: “… a use of premises that is a natural and ordinary consequence of making a material change of use of the premises in compliance with this Act.” [54] The definition of lawful use has two parts. First, it involves the identification of a use of premises that is a natural and ordinary consequence of making of a material change of use. Second, it requires the identified material change of use of premises to be in compliance with the Planning Act 2016. [55] A development permit was required to lawfully use the demountable building on the subject land for a pharmacy. That is because such a use involved a material increase in intensity and scale of the existing shopping centre use. The development permit is the only development approval that authorises the use of the demountable building for a pharmacy. There is no suggestion that the use is an authorised existing lawful use under the Planning Act 2016. [56] The Originating Application does not particularise the basis on which each of Dr Barbayannis and Quanta Holding Co Ltd are criminally liable for this development offence. However, it is apparent from the conduct of the case that the Applicants contend that: (a) Dr Barbayannis is liable as she, and her employees and agents, occupies the demountable building and conducts a pharmacy from it; and (b) Quanta Holding Co Ltd is liable on the basis that it is the owner of the subject land and permits Dr Barbayannis to conduct the pharmacy use from the demountable building. [57] Under s 7 of the Criminal Code, Dr Barbayannis and Quanta Holding Co Ltd would each be liable as a principal offender on that basis. -- 13 of 37 -- 14 [58] The Applicants contend that unless the pharmacy in the demountable building is conducted in compliance with the Planning Act 2016, i.e., in accordance with the conditions of the development permit, it is not a lawful use. They rely on the particulars of the offending under s 164 of the Planning Act 2016 to establish this development offence. [59] Quanta Holding Co Ltd denies committing an offence under s 165 of the Planning Act 2016. It says that the reference to “in compliance with this Act” in the definition of a lawful use is not intended to convey that non-compliance with conditions of a development approval constitutes an offence under both s 164 and s 165 of the Planning Act 2016. [60] On the facts and circumstances that pertain in this case, the gravamen of the offending is entirely reflected in the alleged development offences under s 164 of the Planning Act 2016. As such, the terms of any enforcement order would not be materially informed by the alleged offending under s 165 of the Planning Act 2016. Given those circumstances, the Applicants do not press for a finding about non-compliance with s 165 of the Planning Act 2016. As such, it is unnecessary for me to address that allegation any further. What do the relevant development approvals require? [61] The predominant use of the subject land is authorised by the consent permit. It was given pursuant to s 4.13(12) of the Local Government (Planning and Environment Act) 1990 (Qld). The consent permit and its attendant conditions are a development approval that attaches to the subject land for the purposes of the Planning Act 2016: ss 6.1.23 and 6.1.24 of the Integrated Planning Act 1997 (Qld), ss 801 and 850 of the Sustainable Planning Act 2009 (Qld) and ss 286 and 292 of the Planning Act 2016 (Qld). [62] The consent permit authorised development of the subject land for an extension to an existing shopping centre subject to compliance with conditions. The conditions include: (a) condition 1, which states: “Compliance with the facts and circumstances set out in the application and with all Council By-laws and policies, and the Emerald Shire Town Planning Scheme and generally in accordance with Plan Number TP-T9/96.” (b) condition 3, which states: “The provision of three hundred and seventy-one (371) car spaces on the subject land to the requirements and satisfaction of the Director of Engineering Services.” [63] On 8 October 2020, the Council gave an exemption certificate, pursuant to s 46 of the Planning Act 2016, permitting the installation of a “click and collect” bay in the car park. It authorised the removal of approximately six car parking spaces. [64] On 25 August 2025, the Council gave the development permit. It authorises a material change in the intensity and scale of the shopping centre use by permitting -- 14 of 37 -- 15 use of the demountable building for a pharmacy. The development permit is subject to conditions, which include: # CONDITION TIMING PARAMETERS OF APPROVAL 1 COMPLIANCE WITH CONDITIONS The Applicant is responsible for ensuring compliance with this development approval and the conditions of the approval by an employee, agent, contractor or invitee of the Applicant. At all times. APPROVED PLANS AND DOCUMENTS 9 APPROVED PLANS & DOCUMENTS – REQUIRED CHANGES Within nine (9) months from the date of the development approval taking effect, submit to Council for approval amended elevation plans showing: (a) Display windows for a minimum of fifty (50) per cent of the southern façade area; (b) Louvres, awnings and/or overhang off the southern and western facades that provide continuous weather protection for pedestrians and patrons using the ramp; (c) Building walls (excluding windows and doors) on the southern, eastern and western facades having at least three (3) variations, with the variations consisting of the following: (i) Changes in surface textures; (ii) Changes in materials; (iii) Changes in colours Advice note: Design features such as façade cladding, eaves, horizontal articulation and the pitch of the roof line may assist demonstrate compliance with the above. Within nine (9) months from the date of the development approval taking effect, submit to Council for approval an amended site plan showing: (a) A 1.5-metre-wide landscaping strip around the southern and eastern perimeter of the proposed building; or (b) Planter box/pods/containers with a minimum area of 1.5m2, separated by no more than 1 metre As specified within the wording of the condition. -- 15 of 37 -- 16 intervals, around the southern and eastern perimeter of the proposed building; and (c) The building will not obstruct the pedestrian access gates to 5 and 9 Cyprus Drive, Emerald. 10 IMPLEMENT AMENDED APPROVED PLANS Implement the amended approved plans within three (3) months of receiving approval by Council. As specified within the wording of the condition. TELECOMMUNICATIONS AND ELECTRICITY 16 ELECTRICITY & TELECOMMUNICATIONS Connect the development to reticulated electricity supply and telecommunications to the standard of the relevant service provider. Prior to the commencement of the use and at all times thereafter. FLOOD HAZARD OVERLAY 28 ELECTRICAL BOXES & METERS Electrical boxes and meters are required to be mounted above the DFE level At all times [65] The approved plans for the development permit (“the approved plans”) are: Plan/Document Name Drawing No. Rev Date Prepared by Title Sheet DA-0000 B Undated Chalmers Partners Architects Site Plan DA-0000 B Undated Chalmers Partners Architects Site Plan – Flood DA-0000 B Undated Chalmers Partners Architects BLD A DA-0000 B Undated Chalmers Partners Architects [66] The Approved Plans show: (a) “PROPOSED BUILDING A” with a gross floor area of 33.5 square metres built across part of five car parking spaces; (b) a 1:14 ramp, with most of the length of the ramp positioned parallel to the frontage of the demountable building so that it occupies the same five car parking spaces as the demountable building and one additional car parking space; (c) the entire development contained within six car parking spaces; and (d) no part of the development occurring in the circulation area of the car park. [67] The development permit was approved under delegated authority. It is apparent from the Delegate’s Assessment Report that the development permit was issued on the basis that it would result in the removal of only six car parking spaces that currently provide parking for the existing shopping centre. -- 16 of 37 -- 17 [68] On 23 April 2026, a private certifier gave a development permit for building work for a “new retail shop” in respect of the subject land (“the building approval”). [69] The approved site plan for the building approval shows the demountable building, described as a “proposed office building”, with a connecting ramp. The design and location of the ramp is inconsistent with the development permit. The building approval shows the ramp positioned so that most of its length does not run parallel to the demountable building but instead extends from one end of the demountable building and across several additional car parking spaces and encroaching into the circulation aisle for the car park. What does the evidence demonstrate? [70] In support of its application for enforcement orders, the Applicants rely on extensive evidence including: (a) two affidavits of Mr Ryan Lam; (b) two affidavits of Ms Jessica Burrey; (c) two affidavits of Mr Karl Friman, which provides evidence of various matters, including: (i) search results for a registered business name; (ii) building and plumbing approvals for the subject land; (iii) flood mapping and imagery obtained from the Council’s online records; (d) two affidavits of Mr Peter Parker; (e) an affidavit of Mr Stuart Holland; (f) an affidavit of Mr Leo Mewing; (g) an affidavit of Mr Martin Giles; (h) several certificates of the Chief Executive Officer of the Council given pursuant to s 251 of the Local Government Act 2009, which certificates provide evidence of: (i) the representations made to the Council in the development application for the development permit; (ii) the reasons for the Council’s decision to approve the development permit; (iii) the development permit and the other development approvals that attach to the subject land, including the consent permit; and (iv) relevant provisions of the Planning Scheme; and (i) an affidavit of Mr Lachlan Deon, a town planner employed by the Council in the role of Coordinator Development & Planning, who provides evidence of his observations from an inspection of the subject land on 26 May 2026 and the Council’s view that there are non-compliances with the conditions of the development permit. -- 17 of 37 -- 18 [71] As I have mentioned, none of the evidence was challenged and the other parties elected not to adduce any evidence. [72] I accept the unchallenged evidence. It is persuasive. Although I refer to some of the evidence in my reasons for judgment in Emerald Pharmacy Services Pty Ltd & Anor v Aphrodite Barbayannis & Ors [2026] QPEC 21, it is convenient to repeat relevant aspects of that evidence here. Below I will also address other aspects of the evidence that was not addressed in my earlier reasons. [73] Mr Lam and Ms Burrey are local pharmacists who attended the subject land on several occasions in April and May 2026. [74] On the evening of 30 April 2026, Mr Lam attended the subject land and observed that the demountable building had been substantially constructed in the car park of the shopping centre with a connecting access ramp. The demountable building was behind construction fencing. [75] On 7 May 2026, Mr Lam again attended the subject land. He observed that the construction fencing had been removed, the construction of the demountable building appeared complete, and there was now an external generator on the subject land. [76] On 8 May 2026, Mr Lam attended the subject land twice to observe the state of the demountable building and the generator. Mr Lam took photographs of the generator and gave evidence that: (a) the demountable building had signage indicating that it was operating as a pharmacy, including signage recording the hours of operation; (b) there was electrical wiring within an elevated cable tray that connected the demountable building to the generator; and (c) when he attended at 4 pm: (i) the demountable building was being used for a pharmacy; (ii) Mr Lam was able to purchase Zempreon, a “pharmacist only” medication which is unlawful to supply without authorisation: s 35 of the Medicine and Poisons Act 2019; and (iii) the receipt that Mr Lam was given for his purchase of Zempreon was issued in the name of “Pharmacy The Village Emerald”. [77] “Pharmacy The Village Emerald” is a business name registered to Dr Barbayannis. [78] On 12 May 2026, at approximately 6 am, Jessica Burrey attended the subject land and observed the demountable building, generator and cable tray. Ms Burrey took several photographs. They show the signage for the newly commenced pharmacy in the demountable building and the cable tray blocking the entrance to 9 Cypress Drive. [79] Mr Lam again visited the subject land at 5.15 pm on 17 May 2026. He observed the demountable building, generator and cable tray in the same location. He again took photographs of them. -- 18 of 37 -- 19 [80] Similar observations were made by Ms Burrey when she visited the subject land again on 18 May 2026. [81] Mr Lam and Ms Burrey each give evidence that their recollections of the configuration of the buildings and structures on the subject land are consistent with the annotations on the aerial image set out below: [82] Ms Burrey also says that her recollections of the configuration of the buildings and structures on the subject land are consistent with the markings on the approved plan that forms part of the consent permit shown below: [83] The evidence of Mr Lam and Ms Burrey is supported by the evidence of the council officer, Mr Deon. [84] Mr Lam and Ms Burrey attended the subject land again on the evening of 27 May 2026 around the time of a rain event. They provide photographic and video evidence of their observations of the area surrounding the generator. That evidence shows that -- 19 of 37 -- 20 the generator was in an area that was inundated with water. One of the photographs taken by Mr Lam is reproduced below: [85] Mr Lam and Ms Burrey also give evidence that it is important for a pharmacy to have a continuous electricity supply. It is required for refrigeration, air-conditioning, dispensing systems, electronic prescription systems and access to patient medication records. [86] Mr Peter Parker is a qualified electrical and automation engineer with over 35 years’ experience in the design, fabrication and construction industry in Australia. He holds a Queensland Electrician’s Licence. [87] Prior to the hearing for the interim enforcement order, Mr Parker provided an affidavit that exhibited an Electrical Compliance Report in relation to the electricity supply arrangements for the demountable building. His report was prepared following his review of: (a) the development permit; (b) the building approval for Class 6 Tenancy Fit Out & Class 6 New Retail Building that appear to have been given by a private certifier on 23 April 2026 in respect of the subject land; (c) the affidavits of Mr Lam and Ms Burrey, which contain photographs, videos, as well as annotated site plans and aerial photographs indicating what had been constructed on the subject land; and (d) the affidavit of Karl Friman with exhibit KJF-01, which contains various forms, certificates, and plans associated with the building approval. [88] In the Electrical Compliance Report, Mr Parker describes his understanding of the electricity supply arrangements for the demountable building. He explains that the installation method of the electrical cabling to the demountable building is a single- phase power cable installed inside rigid and flexible PVC conduit, which is cable-tied to an elevated cable tray that traverses, for some distance, along the rear of the car -- 20 of 37 -- 21 park, within multiple car parking spaces. According to Mr Parker, the cable tray appears to be earthed using two small 4 mm2 earth cables. Mr Parker says that the subject land includes a single phase 230V supply from a 12kVA (53A) diesel generator. [89] Mr Parker notes that protection of the electrical supply from the generator to the demountable building must include a residual current device. He says that it is not clear if this was installed at the generator supply point. [90] In Mr Parker’s opinion, the primary electrical risk in these arrangements is from direct contact or collision by light vehicles and trucks with the cable support system. [91] In terms of that risk, Mr Parker says that there are a significant number of heavy vehicles that unload materials at the shopping centre loading dock on the subject land. He explains that those vehicles are required to reverse approximately 40 metres to the loading bay. In Mr Parker’s view, this significantly increases the collision risk with the generator, diesel fuel storage, and the electrical services tray. In assessing the extent of risk, Mr Parker had regard to evidence of previous contact between a vehicle and the water services support tray. He acknowledged that the damaged section does not include any electrical cabling but considers the existence of damage to be an indicator of the type of risk inherent with the use of the trays. He also notes that the cable tray reduces the length of multiple car parking spaces that it traverses, which also increases the risk of collision. [92] With respect to mitigation measures, Mr Parker notes that temporary water-filled collision barriers have been placed on the subject land. He explains that such barriers can mitigate the risk of collision if correctly installed. However, Mr Parker goes on to identify multiple deficiencies in their installation on the subject land. [93] Mr Parker is of the view that that the potential consequences of a collision include damage to the wiring, which in turn could result in a short circuit that could cause the cable tray to become live. He says that consequence is particularly likely if a residual current device has not been installed or if the cable tray has not been properly earthed. According to Mr Parker, if the cable tray is live and is touched by a person, the energy generated by the generator is sufficient to cause severe injury or death. He says that the risk of this occurring can be reduced by earthing or installation of a residual current device. [94] Another risk factor identified by Mr Parker relates to the location of the generator and most of the electrical conduits in an area that is designated as a very high flood risk zone in the Council’s mapping. Mr Parker opines that the generator has several elements that could be described as an electrical box, including open sockets for additional electrical connections, cabling and electrical circuit breakers. He says that the generator is installed at a ground level of approximately 176 metres AHD. He says that the generator is about 1.44 metres high and as such is entirely below the defined flood event, which has a level of 178.9 metres AHD. [95] In addition, Mr Parker opines that the generator and associated electrical conduit setup does not comply with the Australian Standard 3000:2018 Electrical Installations “Wiring Rules” (“the Wiring Rules”). -- 21 of 37 -- 22 [96] The importance of compliance with the Wiring Rules is apparent from ss 70 and 77 of the Electrical Safety Regulation 2013 (Qld), which contain offences with respect to failures to comply with the Wiring Rules. [97] Overall, Mr Parker opined that: (a) there are significant collision and flood risks associated with the temporary installation, which could be avoided by connecting to reticulated power; and (b) connection to reticulated power is easily achieved given an Ergon easement containing elevated electricity lines traverses the subject land. [98] Since providing his first affidavit, Mr Parker has visited the subject land on 31 May 2026. Based on his visit on 31 May 2026, Mr Parker advises that: (a) nothing that he observed during his inspection caused him to materially change the opinions expressed in the electrical compliance report in his first affidavit; (b) the residual current device that was apparently fitted to the generator was not configured to appropriately deal with risk to people and was inconsistent with the Wiring Rules; (c) under the Wiring Rules, the primary protection mechanism should be mechanical, i.e., a proper barrier, and a residual current device should be used to supplement or augment the mechanical protection; (d) an appropriate barrier was not present when the generator was being used; and, in any event, (e) the setup of the generator and associated conduit did not comply with the Wiring Rules. [99] Mr Parker’s evidence is compelling. His opinions are supported by cogent explanations. Those explanations include reference to: (a) photographs of the various components of the electrical supply system,; (b) flood mapping; (c) contours; (d) details about the generator; (e) the nature and extent of protective barriers such as water cable barriers; (f) figures from Australian Standards demonstrating requirements for the use of water-filled collision barriers; and (g) the applicable Australian Standards to which he had regard in forming his opinions. [100] I accept the evidence of Mr Parker. [101] With respect to collision risk, the evidence of Mr Parker is supported by the evidence of Mr Holland. -- 22 of 37 -- 23 [102] Mr Holland is a traffic engineer. In his affidavit, Mr Holland deposes to undertaking a review of the same material that was reviewed by Mr Parker. [103] Mr Holland gives evidence about the impact of the demountable building and associated ramp on the use of car parking spaces provided for the shopping centre. He explains that the demountable building, generator and cable tray inhibit the effective use of approximately 71 car parking spaces, being: (a) 11 car parking spaces occupied by the demountable building and ramp; (b) seven car parking spaces opposite the ramp, because the ramp intrudes into the parking aisle and unsatisfactorily affects the manoeuvring area for those spaces; (c) three car parking spaces occupied by the generator; and (d) 50 car parking spaces that contain intrusions from the cable tray rendering them non-compliant with the Australian Standard. [104] Like Mr Parker, Mr Holland opines that the cable tray is at risk of collision. He observes that the trolley bay in the car park near the demountable building appears to have already sustained a collision of the type to which the cable tray is susceptible. [105] Mr Holland’s observations are supported by photographs taken by Mr Parker on 31 May 2026. [106] Mr Holland explains that the location of the cable tray is of significance as it not only intrudes in the sealed area of car parks, it also reduces the available aisle width. It restricts the ability for two-way traffic to pass in the car park aisle and makes manoeuvring into spaces unviable if the spaces opposite them are occupied. [107] The photographs provided by Mr Parker and Mr Holland show that the ramp has not been constructed in accordance with the development permit or the building approval. The actual construction blocks more car parks than shown on the approved plans for the development permit and the building approval. The ramp is also constructed with more extensive encroachment into the circulation aisle for the car park than shown on the approved plans for the building approval. [108] Mr Holland opines that the location of the ramp prohibits two-way traffic movements in the area in which it is located. [109] Like Mr Parker, Mr Holland’s opinions are supported by cogent explanations. I accept his evidence. [110] Mr Martin Giles is a hydraulic engineer. He provides an affidavit in which he addresses flood risk considerations associated with the electrical arrangements implemented for the demountable building. He says that, prior to its removal pursuant to the interim enforcement order, the generator was at a level of 176.5 metres AHD. This is below the level of the defined flood event. The generator is in an area that has an expected flood depth of about 2.45 metres. Mr Giles says flooding of the subject land can be caused by flooding of the Nagoa River or localised catchment flooding from rain. -- 23 of 37 -- 24 [111] According to Mr Giles, the rainfall event on 27 May 2026 involved less than 15 millimetres of rain and yet it resulted in water ponding around the generator within a very short period (approximately 11 minutes). Mr Giles considers it likely that the water ponding was associated with flooding of the car park. [112] Mr Giles explains that electrical equipment is typically located above the 1 per cent AEP flood level. That is because of the significant risk associated with the location of electrical equipment in areas susceptible to flooding, [113] In this case, the generator was located over two metres below the applicable 1 per cent AEP flood level, being the defined flood event level. According to Mr Giles, that is not a suitable location for a generator given the flood hazard classification applicable to the subject land. [114] Mr Giles acknowledges that the flood level associated with the defined flood event is caused by outbreaks from the Nagoa River. Although he would need to further investigate the issue to have greater certainty, he expects that sufficient warning time would be available to move the generator in advance of a flood occurring in the Nagoa River. However, he does not consider that to be an appropriate solution. That is because, under such a scenario, the cables in the cable tray would be subject to inundation and would need to be tested before the generator could be safely reconnected to them. This was confirmed by Mr Parker. [115] Mr Giles acknowledges that it may be possible to manage the flood risk associated with regional flooding in the Nagoa River. However, in his view it would not be possible to move the generator in advance of local catchment flooding. That is because there would be insufficient warning time associated with local catchment flooding. [116] Mr Giles opinion in that regard is supported by the evidence of the event on 27 May 2026. Mr Giles explains that the warning time for that event would have been less than 12 minutes. He says that such a timeframe is inadequate to allow for: (a) the lag time between the commencement of rainfall and any reasonable trigger for movement of the generator being reached; (b) the lag time between a request being made for movement of the generator and mobilisation of a vehicle, such as a forklift, to move the generator; (c) the time necessary for the vehicle to reach the subject land; and (d) the time necessary to connect the generator to the vehicle and then move the generator. [117] In addition, Mr Giles says that, on his review of available data, there are no gauges in the area that would supply the real time rainfall data necessary to review incident rainfall and make decisions regarding movement of the generator. [118] Mr Giles says that there is a longer response time for flooding of the entire local catchment. He expects that the response time for such an event would be in the order of up to 75 minutes. He considers that, once a reasonable allowance is made for sufficient rainfall to occur to trigger movement of the generator, there would be insufficient time remaining to move the generator prior to ponding at the generator. -- 24 of 37 -- 25 [119] In either case, Mr Giles considers that the ponding of water would commence at the generator before a vehicle would be in place to move it. [120] Mr Giles recognises that flood management plans can use forecast rainfall as a trigger for pre-emptive action to increase the time available for action to be taken. However, he considers that it would not be possible to set a meaningful trigger based on rainfall forecasts for the generator on the subject land. He says that the small amount of rainfall that occurred on 27 May 2026 demonstrates that the trigger would result in frequent disconnection and movement of the generator. [121] In the circumstances, Mr Giles opines that it is not practicable to adopt a flood risk management approach with respect to the use of the generator. [122] Mr Giles’ evidence is compelling. His opinions are supported by cogent explanations. I accept the evidence of Mr Giles. [123] Mr Leo Mewing is a town planner. He attended the subject land and counted the number of line-marked car parking spaces on the subject land. He undertook an inspection of the subject land prior to the erection of the demountable building, ramp, and generator and associated cable infrastructure. Mr Mewing identified 332 car parking spaces on the subject land. [124] The collective observations of Mr Lam, Ms Burrey, Mr Parker and Mr Holland demonstrate that between 8 May and 29 May 2026: (a) the demountable building was being used as a pharmacy; (b) the generator was connected to, and the only apparent source of power for, the demountable building; (c) the generator was located below the level of the defined flood event and in a high-risk flood area; and (d) the use of the demountable building for a pharmacy rendered up to 71 car parking spaces ineffectual for their intended purpose, which is a far greater impact on the car parking arrangements for the shopping centre than the six car parking spaces that were authorised to be removed by the development permit. [125] Although the generator and cable tray have now been removed, the impacts associated with the ramp persist to date. Does the evidence demonstrate that Dr Barbayannis and Quanta Holding Co Ltd have contravened the development approvals? [126] As I have already mentioned, Dr Barbayannis and Quanta Holding Co Ltd admit some, but not all, of the allegations of non-compliance with conditions of the development permit and consent permit. As the nature and extent of any offending is relevant to the exercise of the discretion to make an enforcement order, and its terms, it is appropriate that I address each of the allegations of non-compliance with conditions. -- 25 of 37 -- 26 Is there non-compliance with condition 1 of the development permit? [127] Condition 1 of the development permit requires compliance with the development permit “at all times”. For the reasons set out below, the Applicants have established contravention of this condition, and indeed most of the conditions of both the development permit and consent permit referred to below. Is there non-compliance with conditions 9 and 10 of the development permit? [128] Condition 9 requires the submission of amended plans to the Council for approval within nine months of the date of the development permit taking effect. The development approval took effect on 25 August 2025. The amended plans were to be submitted by 25 May 2026. The amended plans were to show: (a) changes to the demountable building, including: (i) display windows for 50 per cent of the southern façade (facing into the car park); (ii) louvres, awnings or overhangs to provide continuous weather protection for pedestrians using the ramp; and (iii) variations to the façade treatments on the building walls; (b) landscaping around the demountable building; and (c) no obstruction to the pedestrian access gates to 9 Cypress Drive. [129] Condition 10 requires the works associated with the amended approved plans to be implemented within three months of approval of the amended approved plans. [130] The Applicants submit that, as a matter of logic, the amended approved plans would need to have been submitted to the Council, approved and implemented prior to commencement of the use. It says that the development would otherwise be non- compliant from the outset. [131] The photographic evidence establishes that the demountable building and its surrounds have not been constructed in the manner anticipated by condition 9. Relevantly: (a) there are no “display windows” on the southern façade of the demountable building, let alone for 50 per cent of the façade; (b) there is no weather protection on the ramp; (c) there is no landscaping around the demountable building; and (d) although it has now been removed, as required by the interim enforcement order, the cable tray that was connected to the demountable building blocked pedestrian access to 9 Cypress Drive. [132] In addition, the demountable building and ramp, as built, is non-compliant with the approved plans for the development permit because: (a) it is built over a much greater extent of the car park and intrudes into circulation areas; and -- 26 of 37 -- 27 (b) until recently, it was connected to the cable tray and generator, which was not shown on the approved plans. [133] Quanta Holding Co Ltd admits that the amended plans are yet to be submitted to the Council and, as such, admits non-compliance with condition 9. Dr Barbayannis and Quanta Holding Co Ltd dispute non-compliance with condition 10. They submit that the obligation to comply with condition 10 has not yet arisen. [134] The drafting of conditions 9 and 10 leave much to be desired. Unlike other conditions in the development permit, the timing for compliance with them is not said to be “prior to commencement of the use” but “as specified within the wording of the condition”. In those circumstances, it is reasonable to conclude that they are not a condition precedent: cf. Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd (1995) 88 LGERA 157. [135] Like Quanta Holding Co Ltd, the Council submits that the time for compliance with condition 10 has not yet arisen. It submits that condition 10 is to be construed in the context of conditions 8, 9 and 10. It says that those conditions are properly construed as development conditions that, read together, impose a limit on how long the lawful use may continue and the works may remain in place: see s 65 of the Planning Act 2016. The Council says that if the use commences but is not compliant with conditions 9 and 10 within 12 months of the development permit taking effect, than the use was required to cease and the demountable building would need to be decommissioned under condition 8. [136] Condition 8 states: “LIMITATIONS OF USE – DECOMMISSIONING OF BUILDING Within one (1) month of the Pharmacy use ceasing (i.e., once the tenant operating the Pharmacy vacates the Shopping Centre building the subject of this development approval), all buildings and structures associated with the appproved development must be removed and the site reinstated to car parking.” [137] The Council submits that such a construction is supported by the reasons for decision in the development permit, which state: “The development application is approved and the reasons for the decision are based on the following: (i) The proposal is for a use that is consistent with the purpose and overall outcomes for the zone; (ii) Conditions of approval have been imposed requiring the built form and design of the proposal to be consistent with the neighbourhood character contemplated by the Zone within 12 months of the development approval taking effect; (iii) Conditions of approval have been imposed requiring the built form and design of the proposal to incorporate landscaping that promotes an attractive streetscape and -- 27 of 37 -- 28 buffers adjoining uses, generally within 12 months of the development approval taking effect; (iv) The proposal has access to the road network and internal access arrangements that are suitable for the nature of the use and type of vehicles accessing the site; (v) Conditions of approval have been imposed the development be serviced by infrastructure which is appropriate to the nature and location of the development; (vi) The proposal does not increase the risk of people or property being exposed to natural hazards; and (vii) The proposal complies or has been conditioned to comply with the assessment benchmarks.” [138] In addition, the Council says that such a construction is supported by the fact that these conditions were material to the grant of the development permit. They were imposed to achieve compliance with the assessment benchmarks, i.e., absent the conditions, the development application would have been refused. [139] It is difficult to comprehend the Council’s decision to frame the condition in a way that would permit the use to commence before the required changes to the design were implemented given the conditions were imposed so that the use would comply with assessment benchmarks. That said, in this proceeding, it is necessary to give the timeframes in the conditions some meaning. For context, there is another proceeding in which the validity of the development permit is the subject of challenge: see Application No. 94 of 2026. [140] In the circumstances, I accept the submissions made by the Council. [141] It follows that there has been non-compliance with condition 9 but not with condition 10. Is there non-compliance with condition 16 of the development permit? [142] Condition 16 of the development permit required the demountable building to be connected to reticulated electricity supply prior to the commencement of its use for a pharmacy. [143] The evidence of Mr Lam demonstrates that the use of the demountable building for a pharmacy commenced on, at the latest, 8 May 2026. [144] The photographic and video evidence demonstrates that, at that time, there was no obvious electricity connection for the demountable building other than the connection to the generator. In addition, the electrical plans approved by the building approval do not show a connection to reticulated electricity. They identify, as the “ELECTRICAL POINT OF ENTRY”, the area in which the cable tray connects to the demountable building. [145] In light of that evidence, and in the absence of evidence of any alternative connection, it is reasonable to infer that the sole source of electricity to the demountable building at the time the use commenced was the generator. -- 28 of 37 -- 29 [146] For those reasons, I am satisfied that Dr Barbayannis and Quanta Holding Co Ltd did not comply with condition 16. The non-compliance is also admitted by them. That is unsurprising given the strength of the evidence. Is there non-compliance with condition 28 of the development permit? [147] Condition 28 of the development permit requires electrical boxes and meters to be mounted above the defined flood event level. [148] The term “electrical box” is not defined in the development permit, the Planning Scheme, the Planning Act 2016 or the Planning Regulation 2017. The Macquarie Dictionary1 defines: (a) “electrical” as “concerned with electricity”; and (b) “box” as: “1. a case or receptacle, usually rectangular, of wood, metal, cardboard, etc., with a lid or removable cover … 12. Machinery an enclosing, protecting, or hollow part” [149] Mr Parker opines that there are several elements of the generator that would be considered an electrical box. [150] I accept the unchallenged evidence of Mr Parker that the generator is an enclosed receptable containing electrical components. As such, it is either an electrical box or consists of several electrical boxes. [151] I accept the evidence of Mr Giles and Mr Parker that the generator, and all its components, were located below the defined flood event level. [152] As such, the evidence establishes that there was non-compliance with condition 28 of the development permit. Again, having regard to the strength of the evidence, it is unsurprising that there was an admission to this effect by Dr Barbayannis and Quanta Holding Co Ltd. Is there non-compliance with conditions 1 and 3 of the consent permit? [153] As I have mentioned above, Mr Mewing undertook an inspection of the subject land prior to the erection of the demountable building, ramp, and generator and associated infrastructure such as the cable tray. Mr Mewing identified 332 car parking spaces on the subject land. That is well below the 371 car parking spaces required by condition 3 of the consent permit, even accounting for the six car parking spaces removed under the exemption certificate. [154] That is now compounded by the complete loss of 11 car parking spaces directly attributable directly to the demountable building and ramp. That is five more car parking spaces than were intended to be lost pursuant to the conditions of the development permit. [155] In addition, prior to their removal by reason of the interim enforcement order, an additional three car parking spaces were occupied by the generator and, according to 1 Ann Atkinson et al (eds), The Macquarie Dictionary (The Macquarie Library Pty Ltd, 2006). -- 29 of 37 -- 30 the unchallenged calculations of Mr Holland, up to 71 car parking spaces were affected by the cable tray. [156] The location of the ramp is inconsistent with the approved plan for the consent permit, particularly to the extent that it intruded into further car parking spaces and circulation areas for the car park. Prior to their removal by reason of the interim enforcement order, the generator and cable tray were also inconsistent with the approved plan for the consent permit. [157] For those reasons, I am satisfied that there is non-compliance with conditions 1 and 3 of the consent permit. Conclusion regarding the alleged development offences under s 164 of the Planning Act 2016 [158] The photographic and expert evidence readily demonstrates, to the requisite standard, that there have been a multitude of contraventions of the development permit and the consent permit. Quanta Holding Co Ltd and Dr Barbayannis are guilty of development offences under s 164 of the Planning Act 2016. Is it appropriate to make an enforcement order? [159] There are five considerations that support the exercise of the discretion to make an enforcement order. [160] First, the starting point must be that it is expected that there will be compliance with the requirements of the Planning Act 2016 and approvals given under it: see Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. Given the obvious non- compliances made out on the evidence, Dr Barbayannis and Quanta Holding Co Ltd should not be permitted to take the benefit of the development permit while disregarding the concomitant obligations imposed on them by way of conditions. After all, development conditions are the “community price” a developer must pay for its development approval: Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334. [161] Second, it is equitable that Dr Barbayannis and Quanta Holding Co Ltd be held to the same standard as other pharmacists operating in Emerald, such as Mr Lam and Ms Burrey who are officers of the Applicants, and other landholders generally. [162] Third, the non-compliances are not trivial or technical. This is evident from: (a) the evidence of Mr Parker and Mr Holland about the public safety consequences; (b) the evidence of Mr Lam and Ms Burrey, which demonstrates that it is important for a pharmacy to have a continuous electricity supply to facilitate use of refrigeration, air-conditioning, dispensing systems, electronic prescription systems and computer systems to access patient medication records; and (c) the evidence of Mr Giles, which demonstrates that the risks associated with flooding of the generator cannot be appropriately addressed through management measures. -- 30 of 37 -- 31 [163] Fourth, the conditions of the development permit with which there is non- compliances are fundamental to the acceptability of the use of the demountable building for a pharmacy. [164] This can be reasonably inferred from: (a) the reasons for the decision set out in paragraph [137] above; (b) matters in the Delegate’s Assessment Report, in particular the matter identified in paragraph [67] above; and (c) the fact that the development application was code assessable and, as such, was to be approved if compliance with the assessment benchmarks could be achieved by the imposition of conditions. [165] Having regard to those matters, I infer: (a) conditions 9 and 10 of the development permit were considered necessary to achieve compliance with built form, design and landscaping requirements; (b) condition 16 of the development permit was informed by the nature of the use (i.e., a pharmacy); and (c) condition 28 of the development permit was informed by consideration given to natural hazards, such as flood. [166] In addition, as I mentioned in paragraph [67] above, it is apparent from the Delegate’s Assessment Report that the development permit was issued on the basis that it would result in the removal of only six car parking spaces. As such, it is reasonable to infer that compliance with the approved plans was a matter of significant import. [167] These inferences were supported by submissions made by Counsel for the Council. Ms Stephanos submitted that conditions 8, 9 and 10 were fundamental to the Council’s decision to approve the proposed development. [168] In those circumstances, Dr Barbayannis and Quanta Holding Co Ltd should not have the benefit of the development permit, and the use rights it confers, in the absence of complying with conditions that were central to the Council’s decision to grant the approval. [169] Fifth, I am comfortably satisfied that the non-compliances with some of the conditions were deliberate and flagrant breaches. [170] It is evident that the right to commence the pharmacy use was contingent upon the demountable building being connected to reticulated electricity supply. As I found in my reasons for judgment for the interim enforcement order, prior to commencing use of the demountable building for a pharmacy, Dr Barbayannis was aware that: (a) reticulated electricity supply was unlikely to be achievable until around six to eight weeks after 6 May 2026; and (b) depending on timing, reticulated electricity supply may not be pursued at all. [171] It is reasonable to infer that Quanta Holding Co Ltd was also aware of these matters as it obtained the building approval and relevant certificates to permit occupation. -- 31 of 37 -- 32 [172] In addition, Quanta Holding Co Ltd was aware that compliance with the development permit could not be achieved. This only became apparent towards the end of the hearing and only because of persistent questioning by me about the purpose of the reference to a minor change application. The questioning led to the following exchange: “HER HONOUR: All right. And so in terms of any redrafting, that would really mean that the enforcement order need not make any reference to your intention to try and make what exists on the ground there lawful in some other way in terms of the ramp? You can pursue that at your own risk as a separate process, not referenced in the enforcement order. Have I ‑ ‑ ‑ MR GORE: That’s correct. HER HONOUR: - - - or is – yes. MR GORE: So if a change application was not made ‑ ‑ ‑ HER HONOUR: Yes. MR GORE: ‑ ‑ ‑ then it would mean that there will never be compliance with paragraph 1, because we accept that the ramp – not the building but the ramp – is not in compliance with the approval. … HER HONOUR: No, no, no. You could change the ramp, remove the ramp, and build the ramp in accordance with how it’s currently approved. You don’t need a change application for that, do you? MR GORE: That’s correct. But can I say to your Honour, the difficulty is that the ramp’s been built to cater for disability issues, which were not addressed at the approval stage. HER HONOUR: I see. MR GORE: And so ‑ ‑ ‑ HER HONOUR: So practically. MR GORE: ‑ ‑ ‑ from – so practically, we’re stuck with that design. Yes. HER HONOUR: I see. And so if the council’s not happy with that design, because off the number of car parks lost, then ‑ ‑ ‑ MR GORE: We’re out. HER HONOUR: Then practically ‑ ‑ ‑ MR GORE: Yes. HER HONOUR: - - - it’s going to follow through that the demountable will go. MR GORE: Correct, your Honour. That’s the intention there. -- 32 of 37 -- 33 HER HONOUR: Right. MR GORE: So it’s not as if a sloppy job was done. A job was done to comply with the disability requirements, but that brought about a non-compliance with the approval. HER HONOUR: I see. MR GORE: And so I repeat, if ‑ ‑ ‑ HER HONOUR: So once – yes. MR GORE: ‑ ‑ ‑ things stay the way they are ‑ ‑ ‑ HER HONOUR: Yes. MR GORE: ‑ ‑ ‑ I’m conceding that there’s non-compliance in that respect, and that would engage paragraph 2 ‑ ‑ ‑ HER HONOUR: Well, see, isn’t that a material fact, in terms of asking me to make an approval – and this is why I didn’t understand why you wanted these words in – because effectively, what you’re saying is, you can’t lawfully commence the use under the approval that you’ve got, because it – you’ve fallen into the situation where you needed other approvals, in a Walker v Noosa sense. You didn’t have to have them first, but it turns out that your approvals are futility. And so – because you can’t comply with legislation about disability and comply with your approval. You can’t comply with both. MR GORE: Yes.” [173] For the reasons provided above, I am satisfied it is appropriate to make an enforcement order. What are the appropriate terms of the enforcement order? [174] There are three matters about the conduct of Quanta Holding Co Ltd and Dr Barbayannis that suggests strong terms are necessary to ensure compliance with the Planning Act 2016. [175] First, Quanta Holding Co Ltd and Dr Barbayannis had the benefit of most of the evidence relied on by the Applicants prior to the hearing of the interim enforcement order. The evidence available at that time was compelling. It was more than sufficient to demonstrate that there was non-compliance with conditions 1, 16 and 28 of the development permit and conditions 1 and 3 of the consent permit. Despite that, Quanta Holding Co Ltd and Dr Barbayannis both put up strong opposition to interim enforcement orders. They even attempted to avoid a hearing of the application for interim enforcement orders on the basis that a final hearing could be secured within a short timeframe. They urged the Court to adjourn the interim hearing with full knowledge that there was a live allegation that the existing use posed a safety risk to the community. [176] Second, although Quanta Holding Co Ltd and Dr Barbayannis’ made some admissions, the admissions are not such as to permit me to conclude that they will, -- 33 of 37 -- 34 absent strong incentive, comply with the Planning Act 2016 in the future. The admissions were made very late and in the face of compelling evidence of guilt. In addition, it seems to me that Quanta Holding Co Ltd was aware of the importance of ensuring that only six car parking spaces would be affected by the pharmacy use. This can be inferred from the town planning report that Quanta Holding Co Ltd submitted with the development application. [177] The third matter relates to the extremely late revelation about the futility of an enforcement order that allows time to make necessary changes to bring the ramp into compliance with the approved plans. It seems to me that this is a matter that Quanta Holding Co Ltd went to lengths to hide from the Court. It was only revealed after my persistent and unrelenting questions about why the enforcement order should be framed to require compliance with the development permit as changed by a minor change application that was yet to be made. [178] In addition, when deciding the appropriate terms, it is relevant to consider: (a) the admission made by Quanta Holding Co Ltd, through its Counsel, that compliance cannot be achieved with the development permit in its current terms and, as such, it lacks utility: see paragraph [172] above; (b) the importance of the breached conditions, and the approved plans, to the Council’s decision to grant the development permit: see paragraphs [163] to [167] above; (c) the prospect that the Council may not regard changes to the development permit to reflect the existing built form of the ramp to be a minor change given such a change will almost double the number of car parking spaces that will be lost and will impede a circulation aisle in the car park; and (d) the effect of condition 8 of the development permit. [179] In the circumstances, the terms I proposed will require: (a) the use of the demountable building for a pharmacy to cease and not recommence unless and until a new development permit is obtained; and (b) removal of the demountable building, ramp and associated infrastructure within 14 days of that requirement of the enforcement order taking effect. [180] In determining that a period of 14 days is sufficient time to effect removal of the demountable building, ramp and associated infrastructure, I have had regard to submissions made by Quanta Holding Co Ltd. Relevantly, at one stage towards the end of the hearing, Quanta Holding Co Ltd suggested amendments to its draft enforcement order that provided for removal in that timeframe. [181] It was common ground between the parties that there is a prospect that Quanta Holding Co Ltd may be able to obtain necessary approval under the Planning Act 2016 to use the current structures for a pharmacy given such a use is code assessable on the subject land. The prospect that a necessary approval will be obtained will likely be informed by, amongst other things, the Council’s assessment of the appropriateness of the loss of a further five car parking spaces and the impact on the adjacent circulation aisle of the car park. -- 34 of 37 -- 35 [182] In those circumstances, Quanta Holding Co Ltd and Dr Barbayannis submit that the requirement to remove the demountable building, ramp and associated infrastructure should be suspended for four months. This would allow: (a) a short period to submit plans that have been amended in the way required by condition 9 of the development permit; and (b) about three months for construction, being the period anticipated in condition 10 of the development permit. [183] The Council disputes the appropriateness of such an extended timeframe. It says that condition 8 anticipates that the demountable building would be decommissioned within one month of the pharmacy use ceasing. It notes that, in compliance with the interim enforcement order, the use ceased on 29 May 2026. The Council contends that any suspension should cease to operate on 25 August 2026, being the date that the Council decision anticipated a compliant built form for the use if the use commenced prior to the required amendments being made to the approved plans. [184] There is considerable force to the submissions made by the Council. Those matters, in conjunction with the evidence of Mr Holland about the impact of the ramp, persuades me that the appropriate period for a suspension is until 25 August 2026. What enforcement order should be made in the exercise of the discretion? [185] To give effect to the decision I have reached, I will make an enforcement order in the following terms: “UPON BEING SATISFIED THAT THE FIRST AND SECOND RESPONDENTS HAVE COMMITTED DEVELOPMENT OFFENCES CONTRARY TO s 164 OF THE PLANNING ACT 2016, PURSUANT TO s 180 OF THE PLANNING ACT 2016, IT IS ORDERED THAT: 1. effective immediately, the First and Second Respondents must not use the demountable building (“the demountable building”) contained in the car park of 51-57 Hospital Road, Emerald, more particularly described as Lot 91 on SP314634 (“the subject land”) for a pharmacy unless such use is authorised by, and undertaken in compliance with, a new development permit; 2. within 14 days of this order taking effect, the First and Second Respondents must remove the demountable building and the associated ramp and other infrastructure from the subject land and undertake any works necessary to reinstate the car parking spaces on which it was constructed; 3. paragraph 2 of this order takes effect on 25 August 2026; and 4. paragraphs 1 to 3 of this order replace the interim enforcement order made on 28 May 2026.” [186] The enforcement order will attach to the premises and bind future owners and occupiers. It will need to be registered in accordance with s 180(10) of the Planning Act 2016. -- 35 of 37 -- 36 Should costs be ordered in the exercise of the discretion? [187] The Applicants seek an order that Dr Barbayannis and Quanta Holding Co Ltd be required to pay its costs of the proceeding assessed on the standard basis unless otherwise agreed. [188] It is uncontroversial that, under s 59 of the Planning and Environment Court Act 2016, the starting point is that each party must bear its own costs. This is subject to, amongst other things, s 61(1) of the Planning and Environment Court Act 2016, which relevantly states: “If, for an enforcement proceeding, the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person.” [189] This provision is informed by s 58 of the Planning and Environment Court Act 2016, which states: “58 Definitions for part In this part— costs— (a) for a P&E Court proceeding of the following type, includes a party’s costs to investigate, or gather evidence for, the proceeding that the P&E Court decides the party reasonably incurred— (i) a declaratory proceeding about the lawfulness of land use or development under the Planning Act, including any order under section 11(4); (ii) an enforcement notice appeal; (iii) an enforcement proceeding; and … enforcement proceeding means a proceeding for an enforcement order or interim enforcement order under the Planning Act.” [190] The Applicants submit that it is appropriate to make the costs order it seeks because: (a) the Applicants were successful in restraining unlawful conduct; (b) it was necessary and appropriate for the Applicants to bring these proceedings in circumstances where: (i) unlike the Council, they do not have any power to take other steps to restrain the unlawful development, such as the power to issue enforcement notices; and (ii) putting aside the general admonition that planning law should be complied with, there were issues of public safety associated with the -- 36 of 37 -- 37 unlawful development, which the Applicants have incurred costs in demonstrating. [191] Quanta Holding Co Ltd and Dr Barbayannis submit that the costs should be fixed at $50,000 on the basis that there was an agreement between the parties to that amount before the final hearing commenced. Dr Barbayannis also submits that adjustment should be made given the Applicants abandoned that part of their development application that sought declaratory relief under s 11 of the Planning and Environment Court Act 2016. [192] I do not find the submissions of Quanta Holding Co Ltd and Dr Barbayannis persuasive because: (a) I have no evidence of the terms of the agreement; (b) I have no evidence that would allow me to assess whether $50,000 is an appropriate quantum of costs; and (c) although the declarations were not pursued, the grounds relied on to support them are the same as the particulars for the enforcement orders. [193] I am persuaded that it is appropriate to order that the First and Second Respondents pay the First and Second Applicants’ costs of the proceedings assessed on the standard basis unless otherwise agreed. -- 37 of 37 --