Finnigan v Gold Coast City Council [2002] QPEC 50 [2003]1 QPELR 145

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[2002] QPEC 050 PLANNING AND ENVIRONMENT COURT SENIOR JUDGE SKOIEN P & E Appeal No 2974 of 2002 RUSSELL FINNIGAN Appellant and GOLD COAST CITY COUNCIL Respondent BRISBANE ..DATE 23/08/2002 JUDGMENT -- 1 of 8 -- 23082002 T1/YRL21 M/T CMS82/2002 (Skoien SJDC) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: 1. This is an appeal by Mr Finnigan challenging the validity of an enforcement notice issued to him by the Gold Coast City Council. Mr Finnigan, or more properly Finney Pty. Ltd. trading as Suncoast Car Rentals, has for some time carried on the business of vehicle hire from premises at 14 The Esplanade, Surfers Paradise. 2. The only evidence on the actual date of commencement of the business was given by Mr Finnigan as December 1999. I see no reason to reject that despite a reference in a report of his town planner to a rather longer period which, however, I note is merely described as "approximately". 3. Under the relevant town plan that use can be carried on only with the consent of the Council and no such consent had been obtained when the use was commenced. Thus his use was a development offence under section 4.3.1A et seq of the Integrated Planning Act 1997 (IPA). Accordingly on 15 September 2000 the Council issued to Mr Finnigan and served him with a show cause notice under section 4.3.9 of IPA, inviting him to show cause by 16 October 2000 why an enforcement notice under section 4.3.11 of IPA should not issue requiring him to cease the use and restore the premises to a lawful state. 4. On 16 October 2000 Mr Finnigan wrote to the Council advising that an application for consent was being prepared "with a view to legalising the use of vehicle hire on the -- 2 of 8 -- 23082002 T1/YRL21 M/T CMS82/2002 (Skoien SJDC) 3 JUDGMENT 1 10 20 30 40 50 60 above property" and suggesting that enforcement proceedings would therefore be inappropriate. 5. An application for consent (a development application under IPA) dated 12 November 2000 for the appropriate material change of use was lodged by Finney Pty. Ltd. Its date of lodgment was probably some time in December 2000 because that is the date of the supporting town planner's report. 6. On 2 April 2001 the Council advised Finney Pty. Ltd. that it had given approval for the issue of a development permit under section 3.1.6 of IPA for a material change of use for a "vehicle hire premises and shop (beach equipment hire)". I think the reference should have been to section 3.1.5 of IPA. The approval was subject to 31 conditions. 7. On 9 May 2001 Finney Pty. Ltd. appealed to this court disputing the validity of almost all of those conditions. 8. On 19 June 2002 the Council issued an enforcement notice directed to Mr Finnigan. It was "given" to him (as section 4.3.11 of IPA requires) on 25 June 2002 when it was left at the subject premises. See also section 39(1)(a)(ii) of the Acts Interpretation Act 1954. Although it seems Mr Finnigan was then out of Australia he saw the document no later than 10 August 2002 and his solicitors had by then filed this notice of appeal on 11 July 2002. -- 3 of 8 -- 23082002 T1/YRL21 M/T CMS82/2002 (Skoien SJDC) 4 JUDGMENT 1 10 20 30 40 50 60 9. Mr Finnigan's appeal against the conditions was withdrawn by notice of withdrawal on 24 June 2002, a withdrawal which became effective on 8 July 2002 (see section 11A(3) of the Planning and Environment Court Rules 1999) so at least from that date Mr Finnigan must be taken as accepting the validity of the conditions and abandoning or waiving his right of appeal. 10. That is important because the letter to Mr Finnigan dated 2 April 2001 from the Council notifying the approval of his application contains this paragraph:- "If the applicant notifies Council in writing that the decision is accepted without dispute and they will not exercise any right of appeal to the Court in respect of this decision this decision may be taken to be the development approval." 11. In my opinion the withdrawal of the appeal was a notification within the contemplation of the Council's letter. It means that Mr Finnigan then had development approval for the material change of use but of course subject to the now undisputed 31 conditions. And in my view the date of that approval was 2 April 2001 as the letter clearly states. 12. By contrast, had the appeal against the conditions proceeded, then the position would be that the development approval would have taken effect when the appeal was finally decided. See IPA section 3.5.19(c). That however is merely a recognition of the fact that an appeal is a hearing de novo of an application so that the decision of the Court supplants any earlier decision of the Council. In this case however it -- 4 of 8 -- 23082002 T1/YRL21 M/T CMS82/2002 (Skoien SJDC) 5 JUDGMENT 1 10 20 30 40 50 60 cannot be the case that the appeal against the conditions followed by the withdrawal of that appeal would have required the Council to agree again in the terms of its letter of 2 April 2001. Rather, in my view, it restored the position as at 2 April 2001. 13. Despite Mr Finnigan's evidence that he has complied with the conditions to some extent (on which he was lacking in particularity) the evidence of the Council officers is that at all material times there has been substantial non-compliance. But from 2 April 2001 on, that non-compliance was with conditions. It was not non-compliance in the nature of carrying out a use which was a non-permitted use. 14. That non-compliance with conditions could have been the subject of a valid show cause notice. Section 4.3.10 requires that such a notice must outline the facts and circumstances forming the basis for the Council's belief that an enforcement notice should be given. In a valid show cause notice the outline of those facts and circumstances would be particulars of the non-compliance with the conditions. 15. Here the show cause notice did not deal with those facts and circumstances. It relied on the circumstance that the Council's "consent" for the use had not been obtained. That was the fact of the matter then (15 September 2000) but it ceased to be the fact on 2 April 2001 and of course it was not the fact on 25 June 2002 when the enforcement notice was served. -- 5 of 8 -- 23082002 T2/YRL21 M/T CMS82/2002 (Skoien SJDC) 6 JUDGMENT 1 10 20 30 40 50 60 16. The enforcement notice in terms relates to and relies on the show cause notice of 15 September 2000, the basis of which had been overtaken by events. Had there been no appeal against the conditions what the Council might have done in an enforcement notice (see IPA section 4.3.13(1)(e)) was to require Mr Finnigan to do acts to ensure that the use complied with the development approval, that is, the conditions, but of course the Council could only have done that if the enforcement notice had been preceded by a show cause notice on those grounds (see IPA section 4.3.9). 17. In this case, of course, between 2 May 2001 and 8 July 2002 Mr Finnigan's appeal against the conditions was on foot and in my view any attempt by the Council to take enforcement action during that period would not have been proper. 18. The proposition that the Council, having agreed on 2 April 2001 to permit the vehicle hire use, is now able to rely on an enforcement notice based on the lack of such permissions is, to my mind, offensive to justice. In my opinion the enforcement notice was invalid because no show cause of the proper type was served (section 4.3.9) and because it was seriously misleading (sections 4.3.12; 4.3.13). It follows that the appeal must be allowed. 19. I have considered the possible effect of section 4.1.47(1) which is:- -- 6 of 8 -- 23082002 T2/YRL21 M/T CMS82/2002 (Skoien SJDC) 7 JUDGMENT 1 10 20 30 40 50 60 "(1) If an appeal…is started under Division 8 the development must not be started until the appeal is decided or withdrawn." It is not easy to apply that provision to an appeal about conditions but in any event it seems to me to be of peripheral importance and it was not argued before me. The central points before me are when Mr Finnigan received his developmental approval and whether the enforcement notice properly sets out the requisite particulars. Similarly I have not received any assistance from section 4.3.1 which forbids starting assessable development without a development permit or section 4.3.3 which forbids the contravention of a development approval including any conditions in the approval. 20. While Mr Finnigan who appeared on his own behalf and who is not a lawyer did not, at least to my understanding, argue the critical point, I have taken the notice of appeal which was settled by lawyers clearly to raise it. 21. The Council was highly critical of what it considered to be Mr Finnigan's delaying tactics which have had the effect that for a considerable time his business has, it was submitted, been carried on in breach of the town plan. I note that there was some nine months' delay by the Council between the commencement of the business and the giving of a show cause notice. The application by Mr Finnigan for material change of use was lodged within three months of the show cause notice which, while not prompt, was not very dilatory. The Council's decision on the application took about three months. -- 7 of 8 -- 23082002 T2/YRL21 M/T CMS82/2002 (Skoien SJDC) 8 JUDGMENT 1 10 20 30 40 50 60 22. The real delay was between the institution of the conditions appeal in May 2001 and its withdrawal in July 2002. That seems lengthy but I was not made aware that Mr Finnigan's representatives had employed any of the delaying tactics sometimes encountered in these proceedings, nor was I told of any serious application by the Council to the Court to bring on the appeal with expedition. I would think it highly likely that an application by the Council for a speedy hearing based on the continuing use of premises in alleged breach of conditions of a development permit would have been likely to succeed. Thus if there was inordinate delay, so far as I know each party acquiesced in it and is equally at fault. 23. I allow the appeal and set aside the enforcement notice. ----- -- 8 of 8 --