Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5 [2009] QPELR 533

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 5 PARTIES: Townsville no 368 of 2008 MICHAEL BAEVSKI Applicant V GLADSTONE REGIONAL COUNCIL First Respondent And SEA BREEZE (QLD) PTY LTD ACN 118600936 Second Respondent And SUNRISE AT 1770 CTS 32536 Third Respondent And MIDELL PTY LTD ACN 082975915 Fourth Respondent Brisbane no 3257 of 2008 SEA BREEZE (QLD) PTY LTD ACN 118600936 Applicant V GLADSTONE REGIONAL COUNCIL First Respondent And MICHAEL BAEVSKI Second Respondent And -- 1 of 11 -- 2 SUNRISE AT 1770 CTS 32536 Third Respondent And MIDELL PTY LTD ACN 082975915 Fourth Respondent FILE NO/S: Townsville matter no 368 of 2008; and, Brisbane matter no 3257 of 2008 DIVISION: Planning and Environment PROCEEDING: Application and cross-application for declaratory relief, and enforcement orders ORIGINATING COURT: Planning and Environment Court of Queensland at Townsville, and Brisbane DELIVERED ON: 12 March 2009 DELIVERED AT: Brisbane HEARING DATE: 10 December 2008 JUDGE: Alan Wilson SC, DCJ ORDER: In Townsville 368/2008 1 Declare that the building work on the detached dwelling house at lot 71 on SP 150910 has been undertaken without a development permit (as required by the First Respondent’s relevant planning scheme, and under the Sunrise at 1770 Community Title Scheme contained in an order of this Court of 1 August 2002 (as amended) and is unlawful and constitutes a development offence; 2 Order that the building work cease unless and until an effective development permit for that work is obtained; 3 Declare that the development approval certificate issued by a private certifier on 12 March 2008 for the proposed detached dwelling house is void, and is set aside; 4 Adjourn any further hearing of the proceedings to 17 April 2009 for further mention. In Brisbane 3257/2008 1 Application dismissed -- 2 of 11 -- 3 CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS APPROVALS AND PERMITS – where preliminary approval given but development permit from local authority not applied for – whether residential house lacks proper approval from the local authority – whether preliminary approval makes the development self assessable rather than code assessable – whether further development should be declared unlawful or restrained Body Corporate and Community Management Act 1997 Building Act 1975 Integrated Planning Act 1997 s 3.1.4, 3.1.5, 3.1.6, 4.1.21(1)(a), 4.3.1, 4.3.22, 4.3.25 and Schedule 10 Cases Considered: BHG Investments Pty Ltd v Maroochy Shire Council [2007] QPELR 318 Catchpole v Rohde [2001] QPELR 467 Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96 Cox & Ors v Maroochy Shire Council [2006] QPELR 628 Di Marco v Brisbane City Council [2006] QPELR 731 Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200 Friends of Currumbin Association Inc v Gold Coast City Council & Anor [2006] QPELR 657 Jewry v Maroochy Shire Council & Anor [2005] QPELR 665 Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPELR 353 Matijesevic v Logan City Council [1984] 1 Qd R 599 NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706 Paddison v Redland Shire Council [2004] QPELR 258 Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334 Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 Westfield Management Ltd v Brisbane City Council [2003] QPELR 520 Woolworths Ltd v Caboolture Shire Council [2004] QPELR 634 COUNSEL: C L Hughes SC and A N S Skoien for Michael Baevski and Midell Pty Ltd N J Kefford for Gladstone Regional Council M Labone for Sea Breeze (Qld) Pty Ltd SOLICITORS: Wilson Ryan and Grose Solicitors for Michael Baevski and Midell Pty Ltd MRH Lawyers for Gladstone Regional Council Clarke Kann Lawyers for Sea Breeze (Qld) Pty Ltd -- 3 of 11 -- 4 [1] The company Sea Breeze is building a house on land1 in an estate just south of Agnes Waters. Mr Baevski, an architect and director of the company Midell (which developed the estate), is concerned that the house is too conspicuous and offends the ‘design philosophy’ for the estate, which emphasised that structures should complement the topography and vegetation of the area. He says that, in any event, the house lacks proper approval from the local authority and seeks remedies which would stop the building work on it. Gladstone Regional Council supports him. Sea Breeze resists his application and cross-applies for declarations that its building work is, in fact, lawful 2 . [2] The estate, called ‘Sunset at 1770’, consists of about 174 lots incorporated in a Community Title Scheme (CTS) 3 . Its development began in a practical sense with the grant, by this Court, of an order incorporating a ‘preliminary approval’ in August 2002. That order and the terms of the approval have been amended on several occasions since, but not in a way which touches the issues here. [3] Under s 3.1.4 of the Integrated Planning Act 1997 (IPA), a development permit is necessary for assessable development. Mr Baevski and Council say Sea Breeze’s construction of a dwelling house was what IPA calls code assessable4 development and a permit was necessary; but Sea Breeze claims that by virtue of the wording of the preliminary approval the construction of a dwelling was, effectively, made self- assessable5 . [4] There can be no doubt that, if the preliminary approval is ignored for the moment, the construction of a detached dwelling on this land would, under the planning scheme applying at the time, have been code assessable. The land is now in the local government area of Gladstone Regional Council but, at the relevant time, was within the area of the former Council of the Shire of Miriam Vale, and subject to the planning scheme for that shire in effect then (‘the planning scheme’)6 . Under that scheme the land was in the rural zone and, because Sea Breeze’s allotment contains less than 4,000m2 , a material change of use for the purposes of a dwelling house required code assessment 7 . [5] A preliminary approval is also a creature of IPA which, in the words of s 3.1.5(1) approves assessable development, but does not authorise it to occur. As the commentators explain8 , there were often practical problems under the legislation preceding IPA where a series of approvals might be necessary for large scale development (e.g. re-zoning, town planning consent, and then subdivision) and each application had to deal with all elements within the scope of the individual applications. Preliminary approval was intended to ameliorate this difficulty. As another commentator suggests9 , an approval of this kind permits a developer to 1 Lot 71 on SP150901, County of Flinders, Parish of Uxbridge. 2 The fourth respondent in each matter signified, through solicitors, that it would not be appearing but would ‘abide the order of the Court’. 3 Created pursuant to, and under, the Body Corporate and Community Management Act 1997. 4 IPA Ch 3 Pt 1; and, Schedule 10 (Dictionary). 5 Ibid. 6 The Miriam Vale Shire Planning Scheme appears, in full, in Exhibit 5 at Tab 2. 7 Exhibits 6, Certificate of the Chief Executive Officer of the Gladstone Regional Council, paragraphs 1-4 and exhibit GIK 02 (Shire of Miriam Vale Planning Scheme Pt 2, Section 2.1, cll 2.3.3.1, 2.3.3.2(b)(i)(B)(d)). 8 ‘Planning and Development Queensland’ Fogg Meurling & Hodgetts at para [2920]. 9 ‘Integrated Planning Act and Commentary’ Fynes-Clinton at page 61. -- 4 of 11 -- 5 proceed with things like final detailed designs at quite an early stage in the development approval process, knowing that it has a vested legal right to proceed with development in accordance with the parameters specified in the approval. [6] The preliminary approval is a large document containing over 300 pages (and incorporating four orders of this court)10 . It included permission for a material change of use of the whole of the estate to certain specified uses including low density residential development, and detailed provisions about the need for residential structures to comply with particular codes, relating to construction, in the planning scheme; and, also, for the setting up of a Community Title subdivision which incorporated Body Corporate by-laws. [7] Those by-laws, in turn, empowered the Body Corporate to set up a Design Review Panel to review all construction proposals for dwellings in the estate, to ensure they complied with those codes. The CTS document also says 11 that the obtaining of a development permit for building works under the Standard Building Regulations is a separate process which remains the responsibility of the owner, and should not be undertaken until the approval of the Body Corporate is obtained – because an application for a development permit for building works must be accompanied by the approval of the body corporate. [8] In the face of these requirements what Sea Breeze did in respect of its proposed house was to lodge a concept design for the dwelling with the Design Review Panel; later, lodge a more detailed final design and obtain the Panel’s approval; and, then submit that approval and the approved plans to a private certifier, who issued a building permit for construction to proceed. [9] Mr Baevski and Council say Sea Breeze wrongly failed to undertake one critical step: after it had obtained the approval of the Design Review Panel it should, in accordance with the planning scheme, have sought a development permit from Council – and, only then, building approval. [10] Under IPA s 3.1.6, a preliminary approval may override a local planning instrument – eg, a planning scheme. Under s 3.1.6(2)12 a preliminary approval may also state whether a development is assessable development (requiring code or impact assessment), or self-assessable (or exempt) development; and, identify codes for the purposes of the development. [11] Sea Breeze’s argument is that the terms of the preliminary approval here (identifying, as it did, codes relating to building work but not specifying whether a material change of use for the purpose of a dwelling is assessable development) ought to be read in terms that development which complies with the codes is to be treated as, in effect, self-assessable – and, asserts that its development complies with the codes. The argument also focuses on the language of the preliminary approval which is said to be riven with ambiguity and the submission that, out of fairness to Sea Breeze, that ambiguity should be resolved in a way which places the least burden upon it13 . 10 Affidavit of Daniel John Morton filed 1 December 2008, Exhibits A & B. 11 At page 33. 12 As it was at the relevant time. 13 See e.g., Matijesevic v Logan City Council [1984] 1 Qd R 599 at 605; Friends of Currumbin Association Inc v Gold Coast City Council & Anor [2006] QPELR 657; BHG Investments Pty Ltd v -- 5 of 11 -- 6 [12] The particular words, phrases and clauses in the preliminary approval said to create this ambiguity are condition 1(e) which relevantly provides that the estate may be developed as a low density residential development subject to: ‘…(e) compliance with all relevant…building, subdivision and town planning local laws and policies and the provisions of Council’s planning scheme, except where amended by or inconsistent with these conditions, building and/or appropriate engineering works approval shall be obtained prior to any operation being commenced on the site.’ (Emphasis added) [13] Earlier, in the same passage14 , it is said that the low density residential development: ‘…(c) is to be undertaken pursuant to the Body Corporate and Community Management Act as separate schemes but with the common use of infrastructure and facilities regulated through the respective Community Management Schemes.’ [14] Later, in clause 4 of the preliminary approval, it is also said that ‘the development and building codes set out in schedule 2 shall apply to development under this approval’. The codes referred to are the general development code and the dwelling house code, attached to the preliminary approval. [15] Read as a whole the preliminary approval nowhere suggests, however, that the procedures involving the Design Review Panel or compliance with the codes themselves are things intended to circumvent the requirement, in the planning scheme, for development permit from Council when a material change of use for a dwelling house on land in the rural zone of less than 4000m2 , is involved. Clause 1(e), read in context, emphasises rather than derogates from Council’s continuing involvement in the development process with its reference to ‘…the provisions of Council’s planning schemes, except where amended by or inconsistent with these conditions’. The preliminary approval adds extra burdens for any party wishing to build a structure (via the CTS approval process) but those additional burdens do not simultaneously exonerate parties from the planning scheme requirements, applying to all residential development in the Shire. [16] Other parts of the preliminary approval strengthen this interpretation: while clause 4 refers to Council’s building codes and says they apply to ‘development under this approval’ the codes themselves, and the introduction to them in the preliminary approval, are couched in terms indicating that Council is not forfeiting its right to consider and approve development permits for material changes of use. The introduction says, relevantly15 : ‘1 Introduction The development codes are intended to be adopted as the guidelines and controls by which all development in the sunrise at 1770 project is undertaken. They can be adopted by Miriam Vale Shire Council and by Sunrise at 1770 Pty Ltd…as the checklist against which each proposal for construction is assessed. … Maroochy Shire Council [2007] QPELR 318; and Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334. 14 Affidavit of Daniel John Morton filed 1 December 2008, Exhibit A, page 5. 15 ibid, pages 19-23. -- 6 of 11 -- 7 Each outlines an approach, which encompasses these objectives and sets principles covering the general planning intent. They also dictate that a development application for assessable development will only be favourably considered where the proposed development is compatible with the approach and principles and that all potential impacts of the proposed development have been appropriately mitigated. They include schedules and performance criteria and acceptable solutions.’ (emphasis added) [17] The last of these paragraphs contains a plain reference to a ‘development application’ which, in context, is pretty obviously a reference to the need to apply to Council for a development permit. Other, subsequent passages in the document support this view: ‘ 2 Performance Criteria … There will also be situations when not all Performance Criteria can be met…in such cases, the development application may be approved where Council is satisfied that there are sufficient planning grounds to justify the decision having regard to the purpose of the code and code elements. … 3 Acceptable Solutions … Where Acceptable Solutions are not used, the Council must be satisfied that the alternative measures satisfactorily meet the performance criteria in keeping with the purpose of the code and code element. 4 General Development Code This code applies to making a material change of use and/or carrying out building or construction work on proposed lots 2, 3, 4 and 5 for the Sunrise at 1770 Conservation and Coastal Residential Project as defined in the Proposal Assessment Report. It is to be used to assess applications in accordance with the approval of Sunrise at 1770 Pty Ltd or the Bodies Corporate.’ (Emphasis added) [18] Later, again, in clause 4 there is a reference to the need for development applications to be compatible with the approach and principles set out in the codes; and, in clause 5, (the ‘Dwelling House Code’) similar passages appear; and, in schedule C (the by-laws for the Body Corporate for the CTS) there is a reference to ‘assessing authority approvals’ meaning the ‘…development approvals (including conditions of approvals) given under the Integrated Planning Act in connection with the development of the scheme; and, a requirement in by-law 2.1 ‘that each owner must observe the ‘…conditions of assessing authority approvals given in respect of development of the scheme land’. [19] In Part 2 of the by-laws (the ‘Building Design Review Process’), by-law 2 says that: ‘no owner will undertake any development on a Lot until the Body Corporate’s approval has been obtained and where necessary, assessing authority approval being obtained’; and, in By-law 5: -- 7 of 11 -- 8 ‘ 5 Body Corporate Approval Process 5.1 All development must be approved by the Body Corporate as a condition precedent to the seeking of assessing authority approvals and at the commencement of work.’ [20] While it is not impossible to see how Sea Breeze overlooked the local authority development application process, it is tolerably clear that step was not extinguished by the procedures set up in the preliminary approval. In light of the emphasis, apparent from the preliminary approval, upon the special qualities the estate is to have that requirement is unsurprising. [21] The preliminary approval therefore sets up a three-stage process for approval of dwellings; first, approval from a Design Review Panel set up under the CTS; second, Council approval by the grant of a development permit after code assessment; and, third, building approval. What Sea Breeze neglected to obtain was the second. [22] In light of the arguments advanced for Sea Breeze16 , it is appropriate to find, as I am satisfied, that clause 1(e) of the preliminary approval does not override the planning scheme, nor amend it so as to make dwelling houses self assessable; and, neither are the planning scheme and the preliminary approval inconsistent with each other. In particular, I am satisfied that the preliminary approval did no more, in terms of IPA s 3.1.6(2), than identify Codes applying to development of the land; it did not, in terms of subsection 2(2), specify the level of assessment or, in particular, prescribe that dwellings were self-assessable (or exempt). [23] Sea Breeze also contends that the approval of its building work by the private certifier makes the use of its land for the purposes of a dwelling house, and its construction, lawful. That certification was under the Building Act 1975. On its face, the certificate itself17 asserts that the question whether any further development permits are required is ‘not applicable’. For the reasons previously set out, that was not correct. [24] In fact, Sea Breeze’ opponents contend that sections 83 and 84 of the Building Act negate the building approval. Section 83 directs that the private certifier must not grant building development approval if the application includes development other than building work. Here, because Sea Breeze needed but had not obtained Council permission for a material change of use for a dwelling house, the prohibition applied. [25] Section 84 directs that a private certifier’s approval must not be inconsistent with earlier approvals. Again, for reasons already explored, the approval was not consistent with the terms of the preliminary approval which required an application for a material change of use to Council under the planning scheme. In light of these conclusions, Sea Breeze’ further argument that the preliminary approval and the building development permit from the private certifier, read together, make the building work lawful must also fail: neither succeeds in circumventing or overriding the need for Council permission. On the contrary, sections 83 and 84 mean the 16 And the relief sought in its cross-application brought in 3527/2008. 17 Exhibit 10, affidavit of Kerstin Thompson, ex KT-1. -- 8 of 11 -- 9 private certifier’s approval was, in the circumstances, wrongly given and of no effect. [26] These conclusions warrant, Mr Baevski and Council say, a declaration that the current building work is unlawful because it lacks a development permit; and, an enforcement order staying work until one is obtained. (At the beginning of the hearing Senior Counsel for Mr Baevski abandoned claims for orders relating to remedies involving demolition18 .) [27] Initially, relief is sought under IPA s 4.1.21(1)(a) which gives ‘any person’ the right to bring proceedings in the court for declarations about a matter that ‘…should have been done for this Act’; or, under subsection (1)(d) for a declaration about ‘…the lawfulness of land use for development’. Mr Baevski then seeks a complementary enforcement order under sections 4.3.22 and 4.3.25, under which a person may bring a proceeding for an order to remedy or restrain the commission of a ‘development offence’, a term defined under IPA s 4.3.1 to include ‘…carrying out assessable development without an effective development permit’. [28] The scope of the declaratory power in s 4.1.21 is wide and the empowerment of ‘any person’ in subsection (1) places only limited inhibitions on the nature or interests of parties wishing to avail themselves of the remedy. That said, limits have been placed when, for example, the central question was essentially hypothetical because, for example, no development application had actually been made, and there was no proper contradictor: Paddison v Redland Shire Council [2004] QPELR 258. Here it is material that, for reasons already explored, there has been a plain breach of planning laws 19 . [29] In Jewry v Maroochy Shire Council & Ors [2005] QPELR 665 Skoien SJDC, in finding against an applicant for declaratory relief, made some remarks about his ‘status’ which suggested the lack of clarity about that question told against the applicant in the exercise of the discretion. Here, the evidence shows an obvious connection between the applicant and the development of the estate. Otherwise, the relief Mr Baevski seeks is, it has generally been said, to be considered in much the same light as proceedings involving judicial review: the Court does not embark upon a consideration of the merits of the development approval but, rather, whether or not the decision (or here, the circumstances in which no permit sought) is legally flawed20 . [30] Relief by way of consequential enforcement orders is also, of course, discretionary. The Court has a broad power under s 4.3.22 to make orders to restrain development offences, usually in the nature of some kind of injunctive relief. Relevant factors will include the nature of the breach, the history of the matter, and the consequences 21 . It has been suggested that, at least in respect of the legislation which preceded IPA, that the fact an applicant may have no special interest in the outcome may tell against the remedy: NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706. In the present instance Mr Baevski has, again, an apparent connection with the 18 T1-7.18-28. 19 See Woolworths Ltd v Caboolture Shire Council [2004] QPELR 634 at [23]. 20 Di Marco v Brisbane City Council [2006] QPELR 731, at para [14]; Westfield Management Ltd v Brisbane City Council [2003] QPELR 520, at [55] – [57]. 21 Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 at 339 – 341. -- 9 of 11 -- 10 estate and, significantly, the local authority now takes an active part in the proceedings and supports the relief he seeks. [31] While s 4.3.22 gives no guidance about the type of order which may be made, the cases again show that the nature of the relief is discretionary. The discretionary issues raised by Sea Breeze here were several. An attack was mounted against the nature and extent of Mr Baevksi’s interest in the matter but that is not, for reasons already discussed, telling. It is said that no practical harm has been done but, as considered a little later, that is at least moot; on any view, planning laws have not been observed. In the course of proceedings I allowed Sea Breeze to tender the opinion of another barrister, provided to the Council, about the question whether it should take proceedings; it was not encouraging but, I accept, was not based on the information now available. There were also suggestions that other landowners may have made the same error but, even accepting that possibility, the pertinent fact here is that a breach of the applicable planning laws has plainly occurred. [32] Here, the issue about the need for a development permit raised by Mr Baevski concerns a fundamental question about the lawfulness of land use and development under IPA, within the jurisdiction of this Court22 . Council’s present support for the relief sought by him is, also, plainly material. Whatever its position in the past, the fact the local authority now considers it has been the victim of a failure to comply with relevant provisions of the Integrated Planning Act 1997 (Qld) - a view with which the Court concurs – would ordinarily, it might be thought, be a powerful factor. [33] The enforcement provisions use language which contemplates orders in the nature of directions to the parties to take appropriate action, consequent upon the court’s declaration23 . Logically, here, the finding that Sea Breeze had failed to take a step required by IPA and the planning scheme would lead to an order that, at least, work on the construction of the house cease until that oversight is remedied. That was the relief which appealed to Brabazon QC DCJ in Catchpole v Rohde [2001] QPELR 467 (a case with similarities to the facts arising here) and it is, I am persuaded, also appropriate here. [34] Sea Breeze referred to s 4.3.22(2) which limits the power to seek relief to the ‘assessing authority’ if the relief relates to ‘building assessment provisions’. The first term is defined in IPA Schedule 10 in a way which, here, would ordinarily mean the local authority. The second is also defined there, by reference to the Building Act 1975 s 30. That provision, and sections 6 and 7 of that Act make it clear, however, that the term is related to the actual business of construction – e.g., relating to the things considered in the private certifier’s approval; what is in issue here arises at an earlier point in the assessment process and s 4.3.22(2) is not, I think, a bar to Mr Baevski’s seeking relief. [35] The question whether or not the building is ‘conspicuous’ (by reference to the preliminary approval, and the codes it contains) and the relief which might be associated with a finding of that kind involves other issues. First, Mr Baevksi seeks a declaration that the proposed dwelling house is conspicuous within the meaning of 22 Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200; and Catchpole v Rohde [2001] QPELR 467. 23 See Integrated Planning Act and Commentary (supra) at page 192/10. -- 10 of 11 -- 11 that term as it is used in the general development code. There is evidence, including photographic evidence, suggesting the building is visible from some places above local vegetation, and ridgeline behind it. [36] Materially, of course, it is still being built and is some way from completion. Ms Thompson 24 , Sea Breeze’ architect avers that viewed from other, appropriate angles (which appear to have satisfied the Design Review Panel) the problem is not apparent; and that in any event landscaping already planned (and any additional planting thought necessary) and the use of subfusc colours will ameliorate any present, adverse impression. None of this evidence – either for or against the claim of conspicuousness – was tested by cross-examination. Courts hesitate to embark on the consideration of ‘merits’ questions like this in declaratory proceedings, or to make declarations dependent upon an examination of the factual assertions particularly when, as here, the evidence for and against the question was untested25 - and, it seemed to me, equivocal. [37] Mr Baevski originally sought, too, findings that the Design Review Panel had been misled, or made an erroneous decision but at the hearing this was reduced to a request that findings of fact be made that, again, the building was conspicuous. No evidence about the nature and the extent of the Design Review Panel’s deliberations, save for the submissions Sea Breeze and its architect made to it, was advanced and it was said, for Sea Breeze, that the question is outside the jurisdiction of the court. It is unnecessary to determine that question because, for reasons discussed earlier, relevant facts like the incomplete nature of the building and the possibility that any perceived problem will be ameliorated by landscaping and other means, tell against making the findings sought. Discretionary factors are also material: save for obtaining a development permit from the local authority, Sea Breeze followed the process for approval of the dwelling set out in the Body Corporate By-Laws, and engaged a reputable architect to design and manage the approval and construction of the dwelling. [38] The additional relief sought in respect of the building development approval (and the Design Review Panel) is also, it may be reasonably assumed, superfluous if Sea Breeze is effectively unable to proceed unless and until it obtains a proper development permit from the local authority. It is improbable that it would aggravate an existing development offence by continuing to build, unless and until the proper development permit is obtained. [39] For these reasons I think the relief ought be limited to a declaration that the building work on the proposed dwelling house lacks proper local authority permission (as required by the First Respondent’s relevant planning scheme, and under the Sunrise at 1770 Community Title Scheme contained in an order of this Court of 1 August 2002 (as amended) and is unlawful and constitutes a development offence; and, an Order that building work cease unless and until an effective development permit for that work is obtained. There should also be an order that the private certifier’s permit is void, and should be set aside. Sea Breeze’ cross-application should also, for the reasons set out, be dismissed. 24 Exhibit 10. 25 Di Marco v Brisbane City Council [2006] QPEC 035, at paras [38] and [39]; Cox v Maroochy Shire Council [2006] QPELR 628 at para [16]; Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96 at paras [46], [47] and [48]; and, Ken Ryan & Associates Pty Ltd v Brisbane City Council [2007] QPELR 353 at para [7]. -- 11 of 11 --