1770 Nominees Pty Ltd & Anor v Gladstone Regional Council [2026] QPEC 1

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: 1770 Nominees Pty Ltd & Anor v Gladstone Regional Council [2026] QPEC 1 PARTIES: 1770 NOMINEES PTY LTD ACN 112 571 730 and MARK MERGARD (Applicants) v GLADSTONE REGIONAL COUNCIL (Respondent) FILE NO/S: 95 of 2025 DIVISION: Planning and Environment PROCEEDING: Originating application to change an enforcement order DELIVERED ON: 15 January 2026 DELIVERED AT: Maroochydore HEARING DATES: 17 November 2025 and 21 November 2025 JUDGE: Cash DCJ ORDERS: (a) The enforcement orders made on 18 March 2025 be changed in accordance with the draft order ‘Annexure A’ to the Council’s written submissions dated 23 October 2025 save that the date for compliance with paragraph 1(c) is to be 30 June 2026. (b) The Council are to prepare a draft order to this effect which I will make in chambers. (c) If the parties do not agree on an order as to costs, each party is to file and serve an outline of submissions not exceeding five pages on or before 29 January 2026. The submissions should address whether any party wishes to make oral submission about costs. In the absence of any such indication the issue of costs will be decided on the written submissions without an oral hearing. CATCHWORDS: PLANNING AND ENVIRONMENT – ENFORCEMENT ORDERS – where the applicant makes an application to change an enforcement order – where the respondent seeks -- 1 of 13 -- 2 alternate orders – whether there has been partial compliance with conditions of the development approvals – whether compliance can be achieved – whether the respondent’s proposal is to be preferred – whether discretion conferred by the Planning Act 2016 (Qld) should be exercised. LEGISLATION: Planning Act 2016 (Qld), s 181(4) Planning and Environment Court Act 2016 (Qld), s 61(1) CASES: Brisbane City Council v Bowman & Ors [2015] QPEC 14; (2015) QPELR 527 Chavez v Moreton Bay Regional Council [2009] QSC 179 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gavin v Sunshine Coast Regional Council (2021) 9 QR 191; [2023] QPELR 347; [2021] QCA 217 Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53; [2002] QPELR 119; [2001] QCA 382 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 APPEARANCES: M Mergard in person and on behalf of 1770 Nominees Pty Ltd M J Batty KC with J Bowness instructed by McCullough Robertson Lawyers for the Respondent [1] 1770 Nominees Pty Ltd and Mark Mergard1 are concerned with the management and operation of the 1770 Marina. The company owns or leases the land on which the Marina is located. Mr Mergard is in charge of its daily operations. [2] The Marina has been operating for many decades. It is within the local government area administered by the Gladstone Regional Council. The Marina is a hub for tourist activities, especially boat tours and amphibious vehicle excursions. Development at the Marina has, at times, been uncontrolled or unlawful. While the premises have the benefit of development approvals, it is accepted that 1770 Nominees has not complied with all conditions of the approvals and that parts of the premises have been unlawfully used. [3] Consequently, in March 2025, I made enforcement orders which were intended to secure compliance with the development approvals attaching to the premises. The making of the orders was not opposed by 1770 Nominees Pty Ltd or Mr Mergard. Of importance to the present application were orders requiring the construction of driveways and the provision of carparks in accordance with approved plans (‘the carpark plans’), and the removal or demolition of structures which had not been 1 I will generally refer to the applicants collectively as ‘1770 Nominees’. Where it is appropriate or necessary, I will refer to each applicant individually as either ‘1770 Nominees Pty Ltd’ or ‘Mr Mergard’. -- 2 of 13 -- 3 approved or which were inconsistent with the carpark plans. Implementation of the carpark plans has been a long-running issue. The uncontested evidence shows that implementation of the carpark plans is desirable to address safety concerns arising from the present parking and traffic arrangements at the premises. [4] The work required by the enforcement orders was to have been completed by early September 2025. [5] It was not. [6] 1770 Nominees have applied to change the terms of the enforcement orders to allow more time to complete the works. The issue in dispute [7] The Council does not oppose an extension of the time within which to complete the works. Where the parties differ concerns the consequences of 1770 Nominees failing to meet the extended deadline. The order proposed by 1770 Nominees contemplates applications for approval for at least some of the existing works and would allow the parties to agree to a further extension. Other than the implicit prospect of the Council initiating some further proceeding in court, there are no specific consequences which would attach if an extended deadline was not met. The order proposed by the Council is more stringent. It would, in the event the deadline is not met, effectively require 1770 Nominees to cease the use of the premises permitted by the existing development approvals until a further order of the P&E Court.2 [8] The Planning Act 2016 (Qld) (‘the PA’) permits a person to apply to change an enforcement order. The issue in dispute in the present application is how the discretion conferred by the PA should be exercised. For the reasons which follow, the Council’s proposed orders should be made. The statutory power to change an enforcement order [9] Pursuant to section 181(4) of the PA, the P&E Court has a discretion to change an enforcement order.3 The language of the provision is broad,4 and does not contain any criteria to guide the exercise of the discretion. It may be understood as conferring a wide discretion upon the court. While the facts and circumstances attending a particular case will provide the best indication of the relevant matters to consider, some general observations may be made. [10] First, the power to change an enforcement order is remedial and would usually be exercised to relieve a party from some prejudice or injustice arising after the order was first made.5 [11] Secondly, the legislative purposes which inform the making of an enforcement order at first instance remain relevant if the P&E Court is asked to change the order. These purposes may be discerned from the text of section 180 of the PA. They include 2 The terms of the Council’s proposed order would allow some ancillary approved use of the premises for marina berths, amphibious vehicle tours and reef boat tours to continue, while requiring the cessation of the premises for shops and food outlets. 3 Gavin v Sunshine Coast Regional Council (2021) 9 QR 191; [2023] QPELR 347; [2021] QCA 217, [84]. 4 Brisbane City Council v Bowman & Ors [2015] QPEC 14; (2015) QPELR 527, [56] dealing with an earlier, but similar legislative provision. 5 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283 (Wilson J). -- 3 of 13 -- 4 causing someone to refrain from committing a development offence or remedying the effect of a development offence which has been committed. The important purpose of securing compliance with the PA is also emphasised by section 180(6). [12] Thirdly, while due regard is to be given to the principle of finality of litigation, this principle does not warrant placing an arbitrary limitation on the exercise of the power not found in the words of the legislation.6 This is reinforced by the choice of parliament to include in the legislation an unfettered statutory power to change or cancel an existing enforcement order. [13] Fourthly, while the relevant considerations will vary from case to case, they will often include the following: - (a) the circumstances in which the enforcement order was made, including whether it was unopposed which may be an indication of the willingness and ability of a party to comply with the order as originally made; (b) the subsequent conduct of the parties, especially the party seeking to change the order; (c) the circumstances of any non-compliance with the order; and (d) any aspect of prejudice or unfairness which might arise from changing the enforcement order,7 including prejudice or unfairness arising from the relaxation of the enforcement of a public duty imposed by legislation seeking to promote the public interest in orderly development.8 The premises [14] The coastal town of 1770 lies at the end of a small peninsula jutting north into the Coral Sea. It is practically equidistant between the larger cities of Gladstone and Bundaberg. The peninsula protects a part of Bustard Bay to the east, making the area an ideal access point for the islands of the southern end of the Great Barrier Reef. A short drive to the south of 1770 along Captain Cook Drive, in a sheltered reach of Round Hill Creek, there is a public boat ramp and the 1770 Marina. [15] The Marina is located across three separate lots at 535 Captain Cook Drive. One lot is owned by 1770 Nominees Pty Ltd. The other two lots are leased by the company from the State of Queensland. There are two buildings at the eastern end of the site, closer to the road reserve of Captain Cook Drive than to the water. The northeast building (‘building 1’) has in the past housed a small general store and a fish and chip shop. To the west of the building there is an outdoor seating area which has been serviced by a food van. The southeast building (‘building 2’) has housed various shops and booking offices for local tours. It presently houses a café and other commercial enterprises. For a time, these included an undertaking called ‘Katrina’s Bar’, but the operation of this business ceased before the enforcement orders were made. [16] As discussed below, the use of this part of the premises is governed by an approval dating back to 2008, and which made regular existing uses on the site. The approval authorised various catering and commercial uses. On the uncontested traffic evidence, 6 Ibid. 7 Chavez v Moreton Bay Regional Council [2009] QSC 179, [7]. The correctness of de Jersey CJ’s observations in this regard were not challenged on appeal – Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299; [2009] QCA 348. 8 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, 339. -- 4 of 13 -- 5 it is these uses which generate the demand for car parking as people attend the premises to make use of these facilities. [17] On the southern side of building 2 there are two large shipping containers and a large acrylic awning supported by a frame. In the water to the west of the buildings there is a large jetty which can accommodate several moored boats, and which caters for a variety of sea-based tourist activities. Chairs, tables, umbrellas and other smaller items can be found scattered around the site. [18] Car parking is largely provided for in the area at the eastern boundary of the lots between the buildings and Captain Cook Drive, with further parking available on Council controlled land on the eastern side of the road. There is little or no onsite parking for customers. At the time the enforcement orders were made, there were no formally constructed driveways between Captain Cook Drive and the premises. The extent of existing development approvals [19] There are three relevant approvals concerning the premises. Each approval is subject to a suite of conditions, of which I will mention only those relevant to the present application. The oldest is an approval for a material change of use authorising existing uses. This was given in 2008 and is referred to in the material as the ‘Existing Use DA’. Next is an approval for tidal works which permitted construction of the jetty and associated works to a rock revetment. This was given in 2015 and is referred to as the ‘Tidal Works DA’. The most recent approval authorises ‘port services’, being the arrival and departure of vessels, movement of passengers and goods on and off vessels, and ancillary activities. This was given in 2020 and is referred to as the ‘Marina Berths DA’.9 [20] It is the Marina Berths DA which is central to the present application. The first condition of the approval concerned car parking. 1770 Nominees Pty Ltd was to construct carparks and driveways in accordance with the carpark plans attached to the approval. The plans, identified as ‘SK01’, were detailed and called for a total of 31 carparks to be provided internally on the premises. Existing tandem carparks were to be removed and there was to be provision for disabled parking. Most of the car parks were to be provided in the northern part of the premises, with driveways to facilitate the one-way circulation of traffic in a clockwise direction. Associated with the carpark plan, bicycle parking spaces were to be provided near the entrance to the premises. [21] The conditions also required the construction of three driveways to provide access to and egress from the premises. The driveways were specified as to width and type. Relevantly, they were each to be a ‘Type B2 Commercial Driveway’. The Council’s kerbing, channels and grass verge were to be reinstated where affected by the driveways and a footpath marked across them in a manner to be approved by the Council. [22] The Existing Use DA concerned only the Lot owned by 1770 Nominees Pty Ltd. It authorised those premises to continue to be used for commercial and catering purposes, as well as shops. The conditions of this approval included that development was to be generally in accordance with an attached concept plan, all works were to be completed within 12 months of the approval (that is, sometime in 2009), the site was to be maintained in a clean and orderly state, there was to be provision for waste collection, and all buildings and structures were to be within the boundaries of the lot. 9 It has also been called the ‘Port Services Approval’. -- 5 of 13 -- 6 [23] The Existing Use DA also made provision for the construction of driveways, carparks and bicycle parking in a manner somewhat similar to the later Marina Berths DA. An important part of the conditions of the Existing Use DA was an obligation to provide sanitary facilities in accordance with the requirements of the Building Code of Australia. [24] The Tidal Works DA was principally concerned with the construction of the jetty, which was to be built in accordance with attached plans. These plans did not include any structures on the jetty. In the enforcement proceeding the Council contended, and 1770 Nominees accepted, that a small structure used to run a boat hire business had been constructed on the jetty, contrary to the Tidal Works DA. [25] In summary, 1770 Nominees has approval to use the premises for defined commercial and catering purposes associated with the Existing Use DA and for the ‘port services’ described in the Marina Berths DA, but this is dependent upon the satisfaction of the conditions associated with each approval. As discussed below, much of the work required by the conditions mentioned above has not been completed. What led to the enforcement orders of March 2025? [26] The present dispute arises in the context of a significant history of enforcement actions taken by the Council. It is not necessary to detail the full history. [27] Of most relevance are events in 2018 and 2019 which again concerned carparking at the premises. At that time, the premises had the benefit of a development approval with a condition that 1770 Nominees pay the Council $95,000 in lieu of providing onsite carparks. Only $3,000 was paid, and the Council commenced proceedings in the P&E Court for enforcement orders. Judge Williamson KC ordered that 1770 Nominees Pty Ltd and Mr Mergard pay an outstanding amount of $92,000, but suspended operation of the order. The order was suspended because it was anticipated that 1770 Nominees would bring a change application in relation to the carparks. They did, and this became the Marina Berths DA referred to above. This approval overtook the prior obligation to pay a contribution in lieu of carparks, but once again obliged 1770 Nominees to provide carparks on the premises. This was to be in accordance with the carpark plan identified as ‘SK01’. [28] In early 2024, three years after the Marina Berths DA, very little had been done to implement the carpark plan. This led the Council to apply for enforcement orders on the basis that 1770 Nominees had committed development offences.10 [29] The application came on for hearing before me in Gladstone on 17 March 2025. Evidence was heard, including from Mr Mergard. On the second day of the hearing, I was advised that the parties had reached agreement, and 1770 Nominees no longer opposed the making of enforcement orders. It was accepted that 1770 Nominees Pty Ltd and Mr Mergard had committed development offences contrary to sections 164 and 165 of the PA. The parties jointly proposed a suite of enforcement orders which where the orders I then made. [30] It would not be correct to describe these as orders made ‘by consent’. But the fact that 1770 Nominees joined in proposing these orders may be taken as an indication that 10 This involved allegations of breaching conditions of the development approvals and unlawfully using the premises. The latter was principally concerned with the use of part of the premises for a bar known as either ‘Katrina’s Bar’ or ‘Sunsets @ 1770’. This unlawful use of premises was resolved in March 2025 and is of little continuing relevance. -- 6 of 13 -- 7 they accepted the orders were appropriate and could be given effect. That is, it suggests that 1770 Nominees regarded the timeframe provided for in the orders was one which could be achieved. What is required by the enforcement orders of March 2025 and what has been done? [31] The remaining dispute focusses on paragraph 1(c) of the orders, and its many sub- paragraphs. The work required by this paragraph was to be completed within 120 working days of the orders. That is, it was to be completed by early September 2025. This was a hard deadline on the face of the order. There was no provision, for example, for the parties to agree to an extension of time or suspension of the orders in the event there was an application to change or obtain an approval. [32] Paragraph 1(c) is long. The parts of it relevant to the present application, and the extent of compliance by 1770 Nominees at the time of this hearing, are summarised below. Paragraph 1(c)(i) [33] This required 1770 Nominees to construct 31 car parks on the premises in accordance with the carpark plans SK01. The carparks were to be sealed, line marked, provided with wheel stops and maintained. The plans show where the various car parks were to be located. [34] These car parks have not been provided in accordance with SK01. Stuart Holland, a traffic engineer engaged by the Council, attended the premises in March and October 2025. He did not observe anything that appeared to be onsite car parking as required by the carpark plans, and he observed and photographed outdoor furniture in places designated for carparks according to the plans. Mr Holland gave evidence, and in cross-examination it was suggested that some car parks (around the area of car parks 13 to 24 on SK01) had been prepared by the laying of diamond grid. There is some support for this suggestion found in photographs taken by Mr Holland in October 2025. But even if there have been some steps taken toward the preparation of the car parks, it was acknowledged by Mr Mergard in submissions that (at least) the line- marking and wheel stops required by the conditions have not been completed. As well, the diamond grid preparation referred to by Mr Mergard concerned, at best, a dozen of the 31 car parks which were to be provided. [35] The evidence before me shows that there has been little progress towards achieving compliance with the conditions of the 2020 Marina Berths DA in respect of car parking, and an equivalent lack of progress towards compliance with paragraph 1(c)(i) of the March 2025 enforcement orders. Paragraphs 1(c)(ii), (iii) and (iv) [36] These three paragraphs concern what has been referred to as the ‘northernmost’, ‘middle’ and ‘southernmost’ driveways. Apart from some difference in the width of the driveways, the orders are identical. Each requires 1770 Nominees to construct a driveway in the location shown on SK01, of a type described as ‘Type B2 Commercial Driveway’ and in accordance with an identified Council standard. [37] When Mr Holland inspected the site in October 2025, there were access points in the approved locations for the northern and middle driveways, but they were not sealed driveways constructed to the standard required by the conditions of the Marina Berths DA. These conditions also required the northern and middle driveways to operate in -- 7 of 13 -- 8 conjunction with the northern car parks to allow for clockwise circulation of traffic on the site, an arrangement aimed at enhancing pedestrian safety. The absence of appropriate sealing, signage and line-marking, as well as the extant outdoor furniture where car parks were to be located, means this has not been achieved. [38] Mr Holland observed a concrete driveway under construction in the approved location for the southern driveway. While the evidence was not clear,11 I assume this driveway is to be of a type and to a standard consistent with the conditions of the Marina Berths DA. This would represent some progress towards compliance, but it is to be seen in the context of the failure to provide onsite car parking, particularly parking in the southern area of the premises. Paragraph 1(c)(v) [39] This paragraph operates in conjunction with the driveway conditions and requires 1770 Nominees to delineate a footpath across the driveways. This is to be done by using an alternate surface treatment, line marking, or in some other manner approved by Council. As the driveways have not been constructed, there has not been compliance with this aspect of the orders.12 Paragraph 1(c)(vii)(A), (B), (D), (E), (F), (G), (J) and (K) [40] Paragraph 1(c)(vii) is concerned with the demolition or removal of items or structures which are not the subject of approvals, some of which are in places where parking would be located according to the carpark plans, SK01. In total, there are 11 sub- paragraphs to paragraph (1)(c)(vii). It is necessary to deal with two, subparagraphs (H) and (I), separately because of the arguments raised by 1770 Nominees in respect of them. There has been compliance with one (paragraph (1)(c)(vii)(C)). As for the remaining eight sub-paragraphs, they related to awnings, chairs and a food van; a large acrylic frame structure previously employed for parking amphibious vehicles used for tourist activities; unsecured items on the roof of building 2; bins and rubbish against the south wall of building 2; and the unlawful boat hire structure on the jetty. [41] In essence, this part of the enforcement orders is aimed at achieving compliance with the car parking conditions (by removing obstructions), and the condition requiring the site to be maintained in a clean and orderly state. Mr Mergard submitted that there has been some compliance with this part of the orders. If that is correct, there has only been compliance to a minor extent. Photographs taken by Mr Holland in October 2025 show there was still outdoor seating to the west of building 1, blocking access to the area which should be car parks 13 to 24 and preventing the clockwise circulation of onsite traffic envisaged by the conditions. As well, the structure which housed ‘Katrina’s Bar’ remains, blocking access to what should be car parks 10 to 12. [42] Again, the extent of any compliance is trivial, and ineffective to achieve compliance with the relevant conditions of the development approvals or the enforcement orders. 11 There is affidavit evidence from Mr Mergard that he engaged contractors to build the driveway to a different council standard (CMDG-R-050 rather than the mandated CMDG-R-042A). In the end nothing turns on this. 12 There was some evidence of coloured gravel being used to mark a footpath, but 1770 Nominees did not submit this was effective or sufficient to achieve compliance with this requirement of the orders. -- 8 of 13 -- 9 Paragraph 1(c)(vii)(H) and (I) [43] These two sub-paragraphs concern two large shipping containers on Lot 29 and an associated ‘workshop’. There are no extant approvals which authorise the placement of the shipping containers or the workshop use, and they remain in place. [44] 1770 Nominees did not attempt to argue in this court that the shipping containers should be the subject of a development approval. The argument raised by Mr Mergard was in essence an appeal to the discretion of the court to allow them to remain, citing their use by his brother in his business endeavours. It will be necessary to return to this argument separately. Why is it important that there be compliance with the conditions of the development approvals? [45] Apart from the obvious general considerations which would apply to any development approval,13 there are specific reasons why compliance with the car parking and other conditions pertaining to these premises is important. [46] The first and most important consideration is the risk to safety created by the present arrangements. Mr Holland’s unchallenged opinion was that ‘the traffic layout and car parking provision at the 1770 Marina remains unacceptable and gives rise to traffic safety risks as well as traffic efficiency and amenity problems.’ Several factors contributed to this conclusion. The absence of onsite parking leads to ad hoc parking along the site frontage where it meets Captain Cook Drive. Cars manoeuvring into and out of this space cross the active travel path for pedestrians while having to negotiate entry onto Captain Cook Drive, which in this area has a speed limit of 60 kph. The risk of collision or injury is obvious. To this may be added the problems created by the absence of a properly formed and marked active travel path for pedestrians. [47] Other health, safety and amenity concerns are created by the disorderly state of the premises and unlawful building and plumbing work. At the time of the hearing, work was underway to provide sanitary facilities in accordance with the Existing Use DA. If this work was not to be completed, or did not comply with the relevant approvals, it would leave the premises with insufficient facilities to cater to the number of people expected to use the premises. [48] These concerns are validated by the numerous community complaints received by the Council concerning the Marina. [49] In short, if the 1770 Marina is allowed to continue to operate as it has, in breach of the conditions attaching to the relevant development approvals, it will likely produce unacceptable outcomes in terms of the safety and amenity of customers and the local community. When can compliance be achieved? [50] It is important to once again note that 1770 Nominees did not oppose the enforcement orders made in March 2025. They were, at the time, represented by counsel and solicitors of considerable experience in this jurisdiction. It may be inferred that in choosing to accede to the enforcement orders, 1770 Nominees closely considered the timeframe necessary to comply with those orders. Regrettably, on the evidence before 13 Cf. Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, 339 (G) – 340(B); Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53, [13]. -- 9 of 13 -- 10 me it appears that rather than work toward achieving that goal, 1770 Nominees has put their efforts into other pursuits, such as faint attempts to change the terms of the existing approvals. [51] In any event, during the hearing Mr Mergard repeatedly submitted that compliance with the orders was relatively easy and could be done quickly. That largely seems to be correct. Cleaning up the areas needed for car parking and the removal of rubbish on the site should not be difficult. Finalising the car parks with the necessary line- markings and wheel stops can follow immediately. Construction is already well underway on the southern driveway and sanitary facility. Once the remaining driveways are constructed the active travel path may be marked. [52] These are not inconsiderable works, but it seems to me that Mr Mergard’s optimism about how quickly they can be completed is not misplaced. What are the matters relevant to the exercise of the court’s discretion? [53] Having set all this out, it seems to me that the following matters are of most relevance to whether, and if so how, the enforcement orders should be changed. [54] First, the premises have had the benefit of development approvals for many years. Each of the approvals were subject to conditions and many important conditions have been ignored by 1770 Nominees. This has allowed the Marina to operate in a manner with some risk to safety sufficient to raise concern in the local community. It has also allowed 1770 Nominees a private benefit, not enjoyed by other persons or businesses. [55] Secondly, while 1770 Nominees have taken some steps to remedy the situation, much more could have been done. Little or no work has been directed toward the provision of the car parks required by an approval which is now five years old, and which requirement finds its origins in the 2008 Existing Use DA. What is arguably the most important part of the conditions attaching to the development approval remains unsatisfied more than fifteen years later. No real explanation or excuse was offered for this non-compliance. [56] Thirdly, there was no suggestion that 1770 Nominees would suffer prejudice, in the relevant sense, if required to comply with the enforcement orders. No doubt there will be costs involved in compliance, but such private commercial concerns have little or no relevance in an application of this kind. In any event, 1770 Nominees did not submit that it would be impossible or unduly oppressive for them to comply with the enforcement orders. [57] Fourthly, to deprive the Council of the benefit of the enforcement order by further delay would be contrary to the public interest in securing safe and orderly development. [58] Fifthly, Mr Mergard’s submissions concerning the shipping containers and his brother’s workshop are not persuasive. In effect, Mr Mergard submitted that the shipping containers should be allowed to remain because they contain the tools necessary for his brother to work on and maintain the amphibious tour vessels he uses in his business. There was also a suggestion that the containers had been in that position for a long time. These were matters which, it was submitted, warranted the court exercising its discretion to allow the continued use of the shipping containers in their present position. -- 10 of 13 -- 11 [59] There are at least two difficulties with this submission. The first is that leaving the shipping containers where they are would not allow for the provision of some of the southern car parks set out in the carpark plans. It would mean the conditions of the Marina Berths DA could not be fully complied with. This must have been understood by 1770 Nominees at the time they proposed the car park plan SK01 in late 2019. The second difficulty is that Mr Mergard understood that the enforcement orders of March 2025 required the removal of the shipping containers and workshop. He did not oppose those orders, which he could have done at the March hearing. Instead, he agreed to the orders while planning to somehow make a further application in the hope of securing approval from the Council. Whatever steps, if any, were taken toward that end, they have not been successful. [60] It is disingenuous to now suggest that 1770 Nominees should be allowed some further discretionary indulgence to maintain the shipping containers, especially when such an indulgence would come at the expense of the full implementation of the carpark plans. Why the Council’s proposal is to be preferred [61] First, it is to be noted that the Council does not oppose an extension of time within which to comply with the enforcement orders. At the time the written submissions in this matter were filed, the nominated date for the extension was 31 March 2026, that is about six months after the works should have been completed. These submissions were filed in October 2025 and the matter came on for hearing in November. Because of the Christmas court vacation, it has then taken a further two months to prepare and deliver these reasons. [62] Taking this into account, and as I raised with Mr Batty KC and Ms Bowness during the hearing, it is appropriate to further extend that date. In my view the final date for compliance with the enforcement orders should be 30 June 2026. [63] There remains, then, the real dispute between the parties: should the orders be changed, as proposed by 1770 Nominees, to allow them to request a further extension while they seek changes to the approval? Or should there be orders, as proposed by the Council, which would act as a ‘guillotine’, stopping the uses which were the reason for the conditions in the first place? [64] There is little to commend the orders proposed by 1770 Nominees. The need for onsite car parking was first identified many years ago. It has been a condition of the Marina Berths DA since 2020. There has been ample opportunity for 1770 Nominees to implement the car park plan, or to pursue some other solution through appropriate channels. The history of enforcement proceedings suggests that a firm hand is necessary to ensure 1770 Nominees complies with the enforcement orders, and thereby the conditions of the development approvals, so as to prevent the commission of a development offence. [65] A mechanism by which 1770 Nominees could lodge some kind of change or approval application, then request even more time while that is determined, would likely only further frustrate and delay the outcome sought by the Council on behalf of the local community: the safe, lawful and orderly development of the 1770 Marina. It would also deny, or at least delay, the benefit won by the Council in the enforcement proceeding of March 2025. Finally, it would permit the current unsatisfactory traffic and parking arrangements to persist, with their attendant safety risks as noted by Mr Holland. -- 11 of 13 -- 12 [66] In circumstances where I am prepared to extend the time for compliance until 30 June 2026, I would not exercise my discretion to make the orders sought by 1770 Nominees. [67] But should the ‘guillotine’ order sought by the Council be made? [68] In the event the enforcement orders are not satisfied on or before 30 June 2026, the effect of the order would be to prohibit the uses otherwise permitted by the Existing Use DA, while permitting the continued uses associated with amphibious vehicle and reef tours, and the marina berths. This delineation arises from the evidence that demand for car parking stems largely from the onsite commercial activities – the stores and other businesses – rather than the tourist activities and marina berths.14 [69] That is, if the enforcement orders are not complied with and the carpark plans are not implemented, the uses which create the need for car parks are to cease. [70] This is, in the circumstances of the present case, a balanced and appropriate outcome. As was submitted by the Council: - The effect of the Council’s order is that if the non-compliances with the Enforcement Order are not resolved …, the components of the approve development which generate the bulk of the on-site car parking requirement in the current approvals cease operation. That would assist in ameliorating the traffic safety and efficiency issues on the Land. The Port Services use could continue pursuant to the Marina Berths Approval, and therefore the LARC [amphibious vehicle] and Reef tour operations could still operate. [71] This is an outcome which properly balances 1770 Nominees’ private interests against the community’s interests as reflected in relevant planning schemes and the development approval process. [72] Development approvals are commonly subject to conditions. Such conditions are an integral part of the approvals. Compliance with conditions of a development approval cannot be viewed as optional. 1770 Nominees has had more than enough time to comply with the conditions of the development approvals, and thereby avoid committing a development offence. It now has one last chance to do so, or it will lose at least some of the rights conveyed by the approvals of which it is the beneficiary. Costs of the application [73] The Council expressed a desire to be heard on the question of costs. Section 61(1) of the Planning and Environment Court Act 2016 (Qld) provides that if ‘the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person’. The Council has succeeded on the application to change the order. Assuming section 61(1) allows the P&E Court to make an order for the costs of an application to change an enforcement order, costs should follow the event. Unless there is some countervailing consideration of which I am unaware, 1770 Nominees Pty Ltd and Mr Mergard should pay the Council’s costs of the application, on the standard basis. But if it is necessary, I will hear the parties as to the costs of the application. Orders [74] For these reasons I make the following orders. 14 Mr Holland did give evidence that the tourist activities would create their own parking demands, but noted this was not part of the calculations at the time of the Marina Berths DA. -- 12 of 13 -- 13 (a) The enforcement orders made on 18 March 2025 be changed in accordance with the draft order ‘Annexure A’ to the Council’s written submissions dated 23 October 2025 save that the date for compliance with paragraph 1(c) is to be 30 June 2026. (b) The Council are to prepare a draft order to this effect which I will make in chambers. (c) If the parties do not agree on an order as to costs, each party is to file and serve an outline of submissions not exceeding five pages on or before 29 January 2026. The submissions should address whether any party wishes to make oral submission about costs. In the absence of any such indication the issue of costs will be decided on the written submissions without an oral hearing. -- 13 of 13 --