Emerald Pharmacy Services Pty Ltd & Anor v Barbayannis & Ors [2026] QPEC 21

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Emerald Pharmacy Services Pty Ltd & Anor v Aphrodite Barbayannis & Ors [2026] QPEC 21 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: 28 May 2026 DELIVERED AT: Brisbane HEARING DATE: 27 May 2026 JUDGE: Kefford DCJ ORDER: ON THE BASIS OF the First and Second Applicants having given an undertaking to pay the First and Second Respondents an amount a court decides should be paid for damages that the First and Second Respondents may sustain because of this interim enforcement order, -- 1 of 22 -- 2 PURSUANT TO s 180(4) OF THE PLANNING ACT 2016, IT IS ORDERED THAT, UNLESS AND UNTIL FURTHER ORDER BY THE COURT: 1. by 4 pm on 29 May 2026, the First and Second Respondents must cease, and not recommence, the use of the demountable building (“the demountable building”) contained in the car park of 51-27 Hospital Road, Emerald, more particularly described as Lot 91 on SP314634 (“the subject land”) for a pharmacy; 2. by 4 pm on 29 May 2026, the First and Second Respondents must disconnect, and not re-connect, the diesel generator that is currently connected to the demountable building; and 3. by 4 pm on 5 June 2026, the First and Second Respondents must remove the diesel generator, and all equipment and barriers associated with the connection of the diesel generator to the demountable building, from any car park on the subject land. 4. Liberty to apply. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION – where there is an application for interim enforcement orders under s 180 of the Planning Act 2016 – where the applicants offered an undertaking as to damages – where it was conceded that there was a serious question to be tried - whether the balance of convenience favoured granting the interim relief sought – whether there were other discretionary factors that supported the grant or refusal of the interim relief sought – whether the interim enforcement orders should be granted in the exercise of the discretion LEGISLATION: Planning Act 2016 (Qld) ss 3, 4, 5, 6, 164, 165, 180, 181, sch 2 Planning and Environment Court Act 2016 (Qld) s 11 CASES: Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301, cited Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1979) 146 CLR 249, cited Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 75, applied Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, applied Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, approved -- 2 of 22 -- 3 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, approved COUNSEL: L Walker for the First and Second Applicants E Morzone KC and D Purcell for the First Respondent 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 Introduction .......................................................................................................................... 3 What interim enforcement orders are sought?...................................................................... 4 What is the relevant legislative context and legal principles? .............................................. 4 Is there a serious question to be tried? ............................................................................... 10 Does the balance of convenience favour the making of interim orders? ........................... 12 What are the other considerations that are relevant to the exercise of the discretion? ....... 16 Should interim orders be made in the exercise of the discretion? ...................................... 21 Conclusion .......................................................................................................................... 22 Introduction [1] On 21 May 2026, the Applicants, Emerald Pharmacy Services Pty Ltd and DCO Central Highlands Pty Ltd, filed an Originating Application seeking relief under s 11 of the Planning and Environment Court Act 2016 (Qld) and s 180 of the Planning Act 2016 (Qld). The relief includes enforcement orders and interim enforcement orders with respect to the use of a demountable building on land at 51-57 Hospital Road, Emerald, more particularly described as Lot 91 on SP 314634 (“the subject land”) for a pharmacy. [2] It is undisputed that: (a) the First Respondent, Dr Aphrodite Freda Barbayannis, occupies the demountable building on the subject land and operates a pharmacy from it; and (b) the Second Respondent, Quanta Holding Co Ltd, is the registered owner of the subject land. [3] The subject land is located within the local government area of the Third Respondent, Central Highlands Regional Council (“the Council”). -- 3 of 22 -- 4 [4] The Applicants allege that the use of the demountable building for the pharmacy is unlawful and constitutes a development offence under s 164 of the Planning Act 2016 as it contravenes: (a) conditions 1, 9, 10, 16 and 28 of the development permit for a material change of use for shopping centre (extension) and building works for a shopping centre (extension) in the Flood overlay granted by the Council on 25 August 2025 (“the development permit”); and (b) the town planning consent permit for an extension to an existing shopping centre granted on 8 April 1997. [5] Further, or alternatively, the Applicants allege that the use of the demountable building for the pharmacy is not a lawful use and, as such, constitutes a development offence under s 165 of the Planning Act 2016. [6] The Originating Application was listed on 27 May 2026 for directions and hearing of the application for interim enforcement orders. [7] Although all parties had received the mandatory notice of the application, at the outset of the hearing, Quanta Holding Co Ltd applied to adjourn the hearing of the application for interim enforcement orders for a period of several weeks to allow preparation for a final hearing of the proceeding. In the exercise of my discretion, I dismissed the application for the adjournment given the application for interim enforcement orders were sought based on, amongst other things, an allegation of a safety risk associated with the alleged unlawful use. What interim enforcement orders are sought? [8] The Applicants seek orders that within a period of between 24 and 48 hours of the order of the Court, and until the proceeding is determined or until further order of the Court, Dr Barbayannis and Quanta Holding Co Ltd: (a) cease, and not recommence, use of the demountable building on the subject land for a pharmacy; and (b) disconnect, and not re-connect, the diesel generator connected to the demountable building. [9] Dr Barbayannis and Quanta Holding Co Ltd resist the application for interim enforcement orders. [10] The Council does not advocate for or against the interim enforcement order. However, it assisted the Court by providing an affidavit of Mr Lachlan Deon. Mr Deon is a town planner who is employed by the Council in the role of Coordinator Development & Planning. What is the relevant legislative context and legal principles? [11] Section 180 of the Planning Act 2016 confers a right to start proceedings in this Court for an order that requires a person to refrain from committing a development offence. [12] In deciding whether to make an order, the Court has a broad discretion. -- 4 of 22 -- 5 [13] Guidance on the exercise of the discretion is provided in ss 180 and 181 of the Planning Act 2016, which state: “180 Enforcement orders (1) Any person may start proceedings in the P&E Court for an enforcement order. (2) 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; (b) remedy the effect of a development offence in a stated way. Example— An enforcement order may require a person to pay compensation to someone who, because of the offence, has— (a) suffered loss of income; or (b) suffered a reduction in the value of, or damage to, property; or (c) incurred expenses to replace or repair property or prevent or minimise, or attempt to prevent or minimise, the loss, reduction or damage. (3) The P&E Court may make an enforcement order if the court considers the development offence— (a) has been committed; or (b) will be committed unless the order is made. (4) The P&E Court may make an enforcement order (an interim enforcement order) pending a decision in proceedings for the enforcement order. (5) An enforcement order or interim enforcement order may direct the respondent— (a) to stop an activity that constitutes a development offence; or (b) not to start an activity that constitutes a development offence; or (c) to do anything required to stop committing a development offence; or (d) 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 (e) to do anything to comply with this Act. Examples of what the respondent may be directed to do— • to repair, demolish or remove a building -- 5 of 22 -- 6 • to rehabilitate or restore vegetation cleared from land (6) An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act. Example— An enforcement order may require the respondent to provide security for the reasonable cost of taking the stated action. (7) An enforcement order or interim enforcement order must state the period within which the respondent must comply with the order. (8) A person must not contravene an enforcement order or interim enforcement order. Maximum penalty—4,500 penalty units or 2 years imprisonment. (9) Unless the P&E Court orders otherwise, an enforcement order, or interim enforcement order, other than an order to apply for a development permit— (a) attaches to the premises; and (b) binds the owner, the owner’s successors in title and any occupier of the premises. (10) If the enforcement order, or interim enforcement order, does attach to the premises, the respondent must ask the registrar of titles, by a notice given within 10 business days after the order is made, to record the making of the order on the appropriate register for the premises. Maximum penalty—200 penalty units. (11) A person may apply to the P&E Court for an order (a compliance order) that states the enforcement order, or interim enforcement order, has been complied with. (12) If a person gives a notice that a compliance order has been made, and a copy of the compliance order, to the registrar of titles, the registrar must remove the record of the making of the enforcement order, or interim enforcement order, from the appropriate register. (13) If the enforcement order, or interim enforcement order, is not complied with within the period stated in the order, the enforcement authority may— (a) take the action required under the order; and (b) recover the reasonable cost of taking the action as a debt owing to the authority from the respondent. -- 6 of 22 -- 7 (14) A notice given to the registrar of titles under this section must— (a) be in the form approved by the registrar under the Land Title Act; and (b) be accompanied by the titles registry fee under the Land Title Act for the notice. 181 P&E Court’s powers about enforcement orders (1) The P&E Court’s power to make an enforcement order or interim enforcement order may be exercised whether or not the development offence has been prosecuted. (2) The power to order a person to stop, or not to start, an activity may be exercised whether or not— (a) the P&E Court considers the person intends to engage, or to continue to engage, in the activity; or (b) the person has previously engaged in an activity of the same type; or (c) there is danger of substantial damage to property or injury to another person if the person engages, or continues to engage, in the activity. (3) The power to order a person to do anything may be exercised whether or not— (a) the P&E Court considers the person intends to fail, or to continue to fail, to do the thing; or (b) the person has previously failed to do a thing of the same type; or (c) there is danger of substantial damage to property or injury to another person if the person fails, or continues to fail, to do the thing. (4) A person may apply to the P&E Court to cancel or change an enforcement order or interim enforcement order. (5) The P&E Court’s powers under this section are in addition to the court’s other powers.” [14] The proceeding raises allegations of development offences under ss 164 and 165 of the Planning Act 2016, which state: “164 Compliance with development approval A person must not contravene a development approval. Maximum penalty—4,500 penalty units. 165 Unlawful use of premises A person must not use premises unless the use— -- 7 of 22 -- 8 (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.” [15] Pursuant to s 6 and sch 2 of the Planning Act 2016, “lawful use” of premises means: “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.” [16] In the substantive proceeding, the Applicants bear the onus of proving the commission of the development offences alleged. The Applicants also bear the onus of proving the matters necessary to make good the orders it seeks and of persuading the Court that the orders should be made. [17] It was common ground that, in deciding whether interim enforcement orders should be made, it is appropriate to have regard to the principles applicable to the grant of an interlocutory injunction as set out in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 75, wherein Gummow and Hayne JJ observed at 81-2 [65]: “The relevant principles in Australia are those explained in Beecham Group Limited v Bristol Laboratories Pty Limited. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: “How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”” (footnotes omitted) -- 8 of 22 -- 9 [18] I accept that it is relevant to consider whether the applicant for interim orders has demonstrated: (a) there is a serious question to be tried; and (b) the balance of convenience favours the grant of the interim enforcement order. [19] 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. [20] In terms of the former, it is relevant to bear in mind that the making of an order has material consequences. A person who contravenes an interim enforcement order commits an offence punishable by up to 4,500 penalty units or two years imprisonment. In addition, unless the Court orders otherwise, an interim enforcement order attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises. 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]. [21] As for the latter, 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) [22] 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. [23] 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 -- 9 of 22 -- 10 (b) a variety of offences and enforcement arrangements: s 4 of the Planning Act 2016. [24] 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) [25] 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. Is there a serious question to be tried? [26] The first question for the Court in the application for interim enforcement orders is whether there is a serious question to be tried. That calls for consideration of whether there is sufficient evidence that an offence under either or both of ss 164 and 165 of the Planning Act 2016 has been or will be committed. [27] As I have mentioned above, the Applicants allege that the use of the demountable building for the pharmacy constitutes a development offence: (a) under s 164 of the Planning Act 2016 as it contravenes: (i) conditions 1, 9, 10, 16 and 28 of the development permit; and (ii) the town planning consent permit granted on 8 April 1997; and (b) under s 165 of the Planning Act 2016 as the use is not a lawful use under the Planning Act 2016. -- 10 of 22 -- 11 [28] Dr Barbayannis and Quanta Holding Co Ltd both concede that there is a serious question to be tried. Their concessions are appropriate given Dr Barbayannis and Quanta Holding Co Ltd each acknowledge that: (a) the demountable building is being used for a pharmacy; (b) the development permit authorises use of the demountable building for a pharmacy; (c) the development permit is subject to the 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. As specified within the wording of the condition. -- 11 of 22 -- 12 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 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 (d) the demountable building is not connected to reticulated electricity supply. [29] These concessions are consistent with the evidence of Mr Deon, which includes a copy of the development permit and photographs showing that the demountable building is connected to a diesel generator using electrical infrastructure, including a metal cable tray. Mr Deon says that the Council intended to issue a show cause notice as it believes that there is non-compliance with condition 16. [30] In the circumstances, I am readily satisfied that there is a serious question to be tried. Does the balance of convenience favour the making of interim orders? [31] In their written submissions, the parties address various matters that they say inform where the balance of convenience lies. Many of these matters do not relate to whether the inconvenience or injury that the Applicants would be likely to suffer if interim -- 12 of 22 -- 13 enforcement orders were refused outweighs or is outweighed by the injury that Dr Barbayannis and Quanta Holding Co Ltd would suffer if the orders were granted. Rather, they relate to the broader discretionary considerations to which I refer in paragraphs [19] to [25] above. I will address those other considerations separately below. [32] There is no evidence of any identifiable inconvenience or injury that the Applicants would be likely to suffer if interim enforcement orders were refused other than the interest of the type referred to in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335. [33] There is also no evidence of any injury to Quanta Holding Co Ltd should the interim enforcement order be granted. [34] The only evidence about potential injury of private interests of the parties is contained in the affidavit of Mr Dimitri Peries. Mr Peries is a partner of the law firm retained by Dr Barbayannis. He explains that Dr Barbayannis is presently in Greece but that he has been informed by her about the impacts that would be occasioned if the interim enforcement orders were made. Mr Peries says: “The applicants seek interim orders which would have the effect of ceasing the Pharmacy’s operations pending the determination of this proceeding. I am informed by Freda, and believe, that such orders, if made, would have the following impact: a. The Pharmacy could no longer serve the Emerald community and the extended highland community, particularly residents in the vicinity of The Village @ Emerald Shopping Centre. The Pharmacy is the only pharmacy operating from within the Emerald Village Shopping Centre. The role and importance of community pharmacy in regions with limited medical clinics and hospitals heavily relies on the accessibility of community pharmacies for the safe supply of medication in a timely manner, management of minor ailments and critical ongoing chronic disease management. b. The Pharmacy’s sole registered pharmacist would likely be stood down or terminated. c. The Pharmacy would lose the ability to earn revenue, but Freda would still be liable to pay rent to Quanta under the lease. d. The Pharmacy currently holds refrigerated pharmaceutical stock including insulin, vaccines, biological medicines and certain prescription medications requiring continuous refrigerated storage. If electricity to the refrigeration units is interrupted for any period exceeding the manufacturer's recommended maximum (typically 4 to 8 hours), the integrity of that stock will be compromised. Pursuant to the requirements of the Therapeutic Goods Administration and Freda's professional obligations as a registered pharmacist, compromised cold-chain stock must be destroyed. -- 13 of 22 -- 14 e. The Pharmacy also holds ambient temperature pharmaceutical stock. Many pharmaceutical products carry recommended storage conditions of “below 25 degrees Celsius” or “store in a cool, dry place”. Interruption to air conditioning (which operates from the same electricity supply) in the warm to hot climatic conditions of Emerald, Queensland, would accelerate product degradation and reduce shelf life, resulting in stock wastage requiring condemnation and destruction. f. The Pharmacy holds PBS approval under section 90 of the National Health Act 1953 (Cth). Any cessation of trading may trigger reporting obligations to the Department of Health and Aged Care and may place the PBS approval at risk of cancellation or re-assessment. The loss of PBS approval, even temporarily, would be catastrophic to the Pharmacy’s viability. Restoration of PBS approval, if forfeited, could require a fresh application and a further period of many months before Freda could lawfully resume dispensing PBS benefits from shop 25. g. The Pharmacy has been trading for only 2.5 weeks. A visible and public cessation of trading, even for a matter of weeks, would cause significant and irreparable reputational damage, disrupt the relationships Freda and her staff have built with her patients, and would likely result in the permanent migration of those patients to competing pharmacies. That loss of goodwill is not capable of quantification and cannot be adequately compensated in damages. h. The making of the orders sought would have an unfair and damaging impact on Freda’s commercial interests, whilst she is out of the country and unable to attend to the consequences of any orders made.” [35] The first matter referred to by Mr Peries is a matter of public interest. I address it later. As for the balance: (a) I accept that, if I grant the interim enforcement orders, there is a genuine prospect that Dr Barbayannis will sustain financial damage associated with: (i) termination of the pharmacist; (ii) lost revenue and rental costs; (iii) the loss of stock to the extent that arrangements cannot be conveniently made for the stock to be stored in an appropriate alternative location, whether such difficulties are occasioned by the lack of a suitable alternative location or by reason of difficulties occasioned by Dr Barbayannis’ being overseas; (b) with respect to the approval under s 90 of the National Health Act 1953 (Cth), although there is a prospect of some impact, such as the need to deal with the relevant administering authority, having considered the relevant legislation, I am not persuaded that the likely impacts are as serious as those described by Dr Barbayannis – the relevant decisions are discretionary; -- 14 of 22 -- 15 (c) although I accept that there is the prospect of a loss of goodwill: (i) I have serious reservations about the claim that temporary cessation of the use would cause “significant and irreparable reputational damage” in circumstances where the pharmacy has been trading for less than three weeks and is located at the edges of a car park for a shopping centre; and (ii) I am not persuaded that any such loss is not capable of quantification and, as such, cannot be adequately compensated in damages. Goodwill is a head of damages that can be compensated: Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1979) 146 CLR 249, 285. [36] These are all matters that weigh in the balance against the grant of the interim enforcement orders. [37] The Applicants submit that the weight to be afforded these considerations should be moderated because there is little prejudice occasioned by requiring Dr Barbayannis and Quanta Holding Co Ltd to cease the use in circumstances where: (a) if Dr Barbayannis and Quanta Holding Co Ltd are successful in the substantive proceedings, any cessation would be of short duration given this proceeding has been listed for final determination on 18 and 19 June 2026; (b) in the meantime, if Dr Barbayannis and Quanta Holding Co Ltd achieve compliance with some or all the conditions, such as condition 16, they may apply to the Court to discharge the interim orders; and (c) to the extent that Dr Barbayannis and Quanta Holding Co Ltd may sustain damages because of the interim enforcement order, that is answered by the Applicants offer of an undertaking to pay for such damages. [38] It is undisputed that, in considering the balance of convenience, it is relevant to consider whether an undertaking as to damages is offered. In Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301, Cooper J (with whom Kneipp and Shepherdson JJ agreed) observed at 311: “The adequacy of an award of damages, or the availability or sufficiency of an undertaking on the part of a plaintiff, are two important matters to be considered in the balancing process whereby the Court is required to determine where the greater convenience lies. In some cases, depending upon the particular facts of that case, they may ultimately as a matter of importance and weight be determinative of the matter. However, they are to be considered as part of the totality of determining the balance of convenience and not as a step anterior thereto.” [39] Although there is no direct evidence of the financial means of the Applicants, the evidence of Ms Jessica Burrey and Mr Ryan Lam, directors of the First and Second Applicants respectively, about the businesses of the Applicants satisfies me, to the requisite standard, that the offered undertaking is of worth. [40] I am satisfied that the matters raised by the Applicants provide a degree of moderation to the weight I would otherwise place on the injury that Dr Barbayannis and Quanta -- 15 of 22 -- 16 Holding Co Ltd would suffer if the orders were granted. That said, overall the balance of convenience is a consideration that weighs against the grant of the interim enforcement orders. What are the other considerations that are relevant to the exercise of the discretion? [41] The Applicants rely on three other considerations that they say support the grant of the interim enforcement orders. [42] First, the Applicants submit that consistent with the observations of Kirby P in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, the starting point must be that it is expected that there will be compliance with the requirements of the Planning Act 2016 and development approvals given under it. They submit that there is an obvious non-compliance with respect to condition 16 made out on the evidence and Dr Barbayannis and Quanta Holding Co Ltd should not be permitted to take the benefit of the development permit whilst disregarding the concomitant obligations imposed on them by way of conditions. Conditions are the “community price” a developer must pay for its approval. [43] Second, the Applicants submit that 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. [44] Third, the Applicants submit that the non-compliances that may be established are not trivial or technical. According to the Applicants, they are attended by significant consequences, including in relation to public safety. [45] With respect to this issue, the Applicants rely on the evidence of Mr Peter Parker, Mr Stuart Holland, Mr Lam and Ms Burrey. [46] Mr 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. [47] Mr Parker provided an Electrical Compliance Report with respect 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 has been implemented 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. -- 16 of 22 -- 17 [48] 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 park. 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. [49] 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 has been installed at the generator supply point. [50] In Mr Parker’s opinion the primary electrical risk for this site is from direct contact or collision by light vehicles and trucks with the cable support system. [51] 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 the existence of 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 considered 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 the multiple carparks that it traverses, which also increases the risk of collision. [52] With respect to mitigations 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. [53] 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 causes 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. [54] 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 Council 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 Australian Height Datum. 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 Australian Height Datum. -- 17 of 22 -- 18 [55] In addition, Mr Parker opines that the generator and associated electrical conduit setup does not comply with the Australian Standard AS/NZS:3000 Wiring Rules. [56] 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. 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 appears to have already sustained a collision of the type to which the cable tray is susceptible. 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, but also reduces the aisle width available. This restricts the ability for two-way traffic to pass down car park aisles and makes manoeuvring into spaces unviable if the spaces opposite them are occupied. He also opines that the location of the ramp to the demountable building will prohibit two-way traffic movements in the area in which it is located. [57] In terms of the significance of reliance on a generator by a pharmacy, the Applicants rely on the evidence of Mr Lam and Ms Burrey. They are both experienced pharmacists who explain the importance of a continuous electricity supply when operating a pharmacy. They say it is required for refrigeration, air-conditioning, dispensing systems, electronic prescription systems and access to patient medication records. [58] None of these witnesses were required for cross-examination. Despite that, Dr Barbayannis and Quanta Holding Co Ltd submit that there is no immediate or compelling safety risk associated with the supply of electricity by the system of cables and a generator. In support of their submissions, they rely on the evidence of Mr Leon Bennett and Mr Peter Lang. [59] Mr Bennett is a licensed electrical contractor with one years’ experience. In his affidavit, Mr Bennett deposes to having carried out electrical installation works at the subject land on 1 and 6 May 2026. He says that on 6 May 2026, he signed a Form 12 Aspect Inspection Certifcate in respect of the electrical works at the subject land. In doing so, he certified that the electrical aspect of the work had been completed and complied with the building development approval, including with AS/NZS 3000:2018 (Wiring Rules) and AS/NZS 2293.1/2293.2. Mr Bennett says that the inspection certificate to which he refers is that at pages 110 to 113 of Exhibit KJF-01 of the Affidavit of Karl Friman. Consideration of that inspection certificate and the documents referred to therein indicates that the certification only relates to “Installation and connection of the exhaust ventilation fan system as shown on the approved mechanical drawings”. There is no indication that it relates to the supply of electricity by way of the generator and its associated cable system. [60] Mr Bennett also explains that he had a video call with Mr Lang on 26 May 2026, during which he showed Mr Lang: (a) the generator and its set up, including the temporary fencing; (b) the residual current device and circuit protection installed at the generator supply point; (c) the generator earthing and cable tray bonding; (d) the cable sizing and cable installation method and mechanical protection; -- 18 of 22 -- 19 (e) the barriers along part of the cable tray; (f) the circuit protection and distribution board in the demountable building; and (g) the location of the cable tray in the car parks and its distance form the boundary of the car park. [61] In addition, Mr Bennett says that on his site inspection on 26 May 2026, he observed: (a) a residual current device installed in an enclosure with the generator, which is a Schneider RH99M VIGIPACT set at 0.3A, 0s; (b) the cable tray is earthed by bolted connections and earth bonding cable approximately every four segments; (c) some sections of the cable tray were bowed but there was no visible evidence of any impact and the cable installed in conduit was stable in its position and all cable tray covers were intact. [62] Mr Bennett did not explain the significance of these observations in terms of electrical safety. [63] Mr Lang is a registered electrical engineer retained by Quanta Holding Co Ltd to give evidence about the nature and extent of the safety risk associated with the use of the generator to supply electricity to the demountable building. In forming his opinion, Mr Lang reviewed the affidavits of Mr Parker and Ms Burrey. He also relied on the video site walk that he had undertaken with Mr Bennett and the photograph of the residual current device installed in an enclosure with the generator. Based on that information, Mr Lang opines that the use of the subject land for the pharmacy does not present any additional unacceptable risk to public safety because: (a) the electrical supply from the generator is protected by a residual current device that is installed “in line with a higher standard than would normally be required for a similar site”; (b) the residual current device is an electrical protection device required on final electrical circuits to protect occupants and others from risk of electrical shock; (c) the distribution board in the demountable is served by the generator and has residual current devices on the final circuits as would be expected; (d) in the event that the electrical cable is damaged by vehicle impact or misuse, the residual current device is designed to automatically trip the electrical circuit at the generator and to prevent any potential injury to persons present. [64] Mr Lang also opines that, while the residual current device provides sufficient protection, he also recommends that wheel stops be installed to provide physical protection from vehicles. He considers that this is not immediately required but could be attended to in due course. [65] With respect to the flood risk, Mr Lang opines that if there was a forecast flood risk, it would be straight forward to disconnect and remove the generator. He says that he would expect that as part of any standard flood mitigation plan. As such, he considers that there is no immediate risk resulting from flooding in the location of the generator. -- 19 of 22 -- 20 [66] Mr Lang accepts that there is always a risk with electrical installations. He considers that the residual current device provides sufficient protection. In his opinion, there is no significant, immediate risk to people attending the subject land, conducting normal activities, and using due care and attention. [67] Mr Parker’s evidence is compelling. His opinions are supported by cogent explanations to supports his opinions. 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 use of water-filled collision barriers; and (g) the applicable Australian Standards to which he had regard in forming his opinions. [68] With respect to collision risk, the evidence of Mr Parker is supported by the evidence of Mr Holland. Like Mr Parker, Mr Holland’s opinions are supported by cogent explanations. [69] The same is not true of the evidence of Mr Bennett and Mr Lang. Mr Lang does not explain the basis for his opinion about different standards for different sites. As such, his evidence about the standards of the installations is unpersuasive. I also do not find his evidence about flood risk compelling given there is no evidence about the extent of notice that would be required to action the flood mitigation measures as compared to the extent of warning that is expected in instances when the subject land floods. Overall, although I accept the factual evidence of Mr Bennett and Mr Lang about their observations, I do not accept their conclusions with respect to risk. [70] Some of Mr Parker’s evidence addresses the extent of risk if there is no residual current device or the cable tray is not properly earthed. The evidence of Mr Bennett and Mr Lang persuades me that such an assumption is not valid. That diminishes the weight that I attribute to the evidence of Mr Parker. However, it does not persuade me to completely reject his evidence. [71] Mr Parker opines that the existence of a residual current device or proper earthing for the cable tray reduces the risk. He does not indicate that the risk is eliminated. He was not tested about the extent to which the risk is reduced. [72] Further, and in any event, the existence of a residual current device or proper earthing for the cable tray do not address the identified flood risk or Mr Parker’s opinion that the generator and associated electrical conduit setup does not comply with the Australian Standard AS/NZS:3000 Wiring Rules. I do not accept the evidence of Mr Lang and Mr Bennett on those issues. I prefer the evidence of Mr Parker and, as such, those elements of risk remain. -- 20 of 22 -- 21 [73] Overall, having regard to the evidence referred to above, I am satisfied that the reliance on a generator, even temporarily, involves an unacceptable risk to safety. This is a compelling consideration that favours the grant of the interim injunction. In my view, coupled with the existence of a serious question to be tried, it is sufficient to warrant the grant of the interim enforcement orders. [74] In the circumstances, it is not necessary to address the remaining submissions made by the parties. It is sufficient to make two additional observations. [75] First, I do not accept the submissions of Dr Barbayannis that: “… this is not the ordinary case where a party is carrying out the assessable development without a development permit, and an interim order is sought pending determination of a regularising application, where the developer is gaining the commercial benefit of its unlawful conduct. The land has the benefit of an existing development approval which the First Respondent is lawfully entitled to act upon.” [76] On the evidence before me, it seems evident that Dr Barbayannis’ right to commence the use was contingent upon the demountable building being connected to reticulated electricity supply. It is reasonable to infer from the evidence adduced by Dr Barbayannis that, prior to commencing use of the demountable building for a pharmacy, Dr Barbayannis was aware that reticulated electricity supply was unlikely to be achievable until around six to eight weeks after 6 May 2026 and that, depending on timing, it may not have been pursued at all. [77] Second, I accept that the provision of pharmacies is of importance in regions with limited medical clinics and hospitals. However, the evidence demonstrates that there are other pharmacies operating in the region. As such, this consideration does not add material weight to the case for refusal of the interim enforcement order. Should interim orders be made in the exercise of the discretion? [78] The starting point for the consideration the exercise of the discretion is ss 3, 180 and 181 of the Planning Act 2016. [79] The purpose of the Planning Act 2016 and the provision for interim enforcement orders in s 180 of the Planning Act 2016 support the application for interim relief. The conduct sought to be restrained is important to an accountable system of land use planning. [80] There is no suggestion that there is a lawful basis to commence use of the subject land for a pharmacy prior to connection of the demountable building to reticulated electricity supply. The evidence indicates that such a connection is not likely to be achieved for some weeks yet. The alternative connection to the generator brings with it a greater degree of risk to the public. [81] I have also taken into account that the Applicants have filed most of their evidence and that this matter has been listed for final hearing on 18 and 19 June 2026. [82] In the circumstances, and for all the reasons provided above, I am satisfied that the terms of the interim enforcement orders sought by the Applicants are generally appropriate. I propose to make a few slight amendments. I intend to clarify the nature -- 21 of 22 -- 22 of the undertaking as to damages having regard to exchanges with Counsel for the Applicants. I also intend to require the diesel generator and cable to be removed from any carparks on the subject land. I consider this appropriate based on the evidence of Mr Holland, which I accept. Conclusion [83] I will make an order in the following terms: “ON THE BASIS OF the First and Second Applicants having given an undertaking to pay the First and Second Respondents an amount a court decides should be paid for damages that the First and Second Respondents may sustain because of this interim enforcement order, PURSUANT TO s 180(4) OF THE PLANNING ACT 2016, IT IS ORDERED THAT, UNLESS AND UNTIL FURTHER ORDER BY THE COURT: 1. by 4 pm on 29 May 2026, the First and Second Respondents must cease, and not recommence, the use of the demountable building (“the demountable building”) contained in the car park of 51-27 Hospital Road, Emerald, more particularly described as Lot 91 on SP314634 (“the subject land”) for a pharmacy; 2. by 4 pm on 29 May 2026, the First and Second Respondents must disconnect, and not re-connect, the diesel generator that is currently connected to the demountable building; and 3. by 4 pm on 5 June 2026, the First and Second Respondents must remove the diesel generator, and all equipment and barriers associated with the connection of the diesel generator to the demountable building, from any car park on the subject land. 4. Liberty to apply.” -- 22 of 22 --