Caloundra City Council v. Taper Pty Ltd & Anor [2003] QPEC 19 (22 May 2003)

Caloundra City Council v. Taper Pty Ltd & Anor [2003] QPEC 19 (22 May 2003) - QPEC 2003 case summary — Zoe

[65]

[14] The Council has not prosecuted anyone for a development offence pursuant to Division 4 Part 3 of IPA, nor did it give the respondents an enforcement notice pursuant to s.4.3.11 of IPA. It is arguable that the time for prosecuting the respondents has now passed: s.4.4.2 IPA. A prosecution for an offence against s.4.3.3(1) attracts the criminal standard of proof. Council has elected to proceed by way of declaratory relief pursuant to s.4.1.21 of IPA. Mr Couper, senior counsel for the Council, submits that these proceedings are civil in nature and that the civil standard applies. He concedes that given the serious consequences to the respondents of a finding of deliberate contravention, the top of the range in the sliding scale contemplated in Briginshaw v.Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at 362-3 is appropriate. The respondents submit that the appropriate standard is the criminal standard, and rely on Gold Coast City Council v. California Court Pty Ltd [2000] QPELR 24 at 31, approved in Patterson v. Redland Shire Council & Anderson [2002] QPEC 68 at [6] and Mareeba Shire Council v. Laghaifar [1999] QPELR 179 at 180. In California Court, Newton DCJ seems to have assumed without discussion that the appropriate standard for the issue of an enforcement order based on the commission of a development offence was the criminal standard. In Patterson Britton SC DCJ followed California Court, again without detailed analysis; and on the basis there that the parties to the proceedings agreed that the criminal standard applied. In both cases, the applicants were seeking declaratory relief. In Laghaifar, Daly DCJ considered that in relation to the making of an enforcement order pursuant to s.4.3.25 of IPA, he was required to be satisfied to the criminal standard that (in that case) an offence will be committed unless restrained. The wording of s.4.3.25(1) "if the court is satisfied", does suggest to me that the draftsperson did turn his or her mind to the level of proof required, however no guidance as to the required standard is given in s.4.1.21. In my opinion, given the absence of binding authority on the point, as a matter of principle, relief sought under s.4.1.21 is classically civil in nature. The section is not penal. It is common ground that this Court's powers to make orders pursuant to s.4.1.22 (if satisfied that a development offence has been committed) does not include power to impose pecuniary or other penalties. The power to make orders pursuant to s.4.1.21 (including the orders sought in paragraph (g) of Council's application) is discretionary in nature, and, in Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 at 341, in discussing the guidelines applicable to the exercise of such discretion, Kirby P seems to draw a distinction between proceedings of this nature and criminal prosecutions for (in that case) enforcement of environmental law in the public interest. In my opinion, the appropriate standard of proof is the civil standard subject to the Briginshaw sliding scale, and in my opinion having regard to the very significant consequences to the respondents of the making of the order sought in paragraph (g) of Council's application, the standard should be at the top of the range of that sliding scale. My conclusion is supported by the observations of Judge Robin QC in Crowther v. State of Queensland [2002] QPEC 79 in which his Honour was considering the same issue in the context of injunctive relief sought on the basis of alleged breaches of the Environmental Protection Act. In turn his Honour followed conclusions to the same effect of Judge Dodds in Caloundra City Council v. McGreath [1998] QPELR 178 at 182, and Judge Brabazon QC in Hawkins v. Izzard v. Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423 at 429.

[144]

[31] It follows that there is a degree of flexibility available in the determination of "ground level" for a particular site, and therefore there is a discretionary power vested in the Council to determine the meaning for the purposes of the particular site. Mr Perkins, who was called to give expert town planning evidence on behalf of the Council, and who has worked extensively on the DCP, believes the ultimate agreed meaning of ground level to be very generous to the respondents. As I noted in some questions to him, it would be likely that many ratepayers in the area would assume that original ground level means natural ground level, however that is not the definition in the DCP. Indeed it appears that in the consultation stage for the draft DCP at some point the definition was "the ground level existing prior to any development" (6.98 Volume 1 of Exhibit 1). Mr Faithfull was of that view initially - at the assessment stage that "original ground level" meant ground level which existed "historically" i.e. before any development of the site had occurred. The respondents argued for a ground level at the slab for the old Shearwater Motel. Mr Faithfull took legal advice, and as a consequence, he accepted the respondents' argument. Hence, the spot levels calculated by Mr Clifford in SD02 Rev G, are above the historical or natural ground level existing prior to any development of the site. Mr Faithfull therefore regarded this plan as very important as it contained the key information which enabled him to calculate the height of the building. By way of example, if one takes the spot level 8.93 beside the drawing of the lift overrun site in the centre of the drawing, by subtracting that figure from the marked FL (finished level) of 25.43, 16.5 is obtained. Mr Faithfull did not notice that the marked levels of the new kerb on the Esplanade were almost all above the ground level of RL 6.1 in the proposed building. He acknowledges that none of the plans suggested any provision for a step down of approximately a metre from the kerb level to the ground level or any design proposals for disabled access, and stormwater management. He says this plan was not used by him for that purpose - its purpose was to satisfy Council that the 16.5 metre trigger had not been exceeded thus rendering the application impact assessable and "not preferred" under the DCP. He acknowledged in cross-examination that he was not aware at the time of the assessment that the absolute level of the kerb of the Esplanade had been raised as a result of the realignment of the road. If he had realised that the ground level as agreed was to be below the kerb, he would have looked for design and drainage features in the proposal to address those issues.

[169]

[46] Mr Clifford (or a surveyor from his office) was responsible for setting the TBM by reference to a nearby Permanent Site Marker. He did this by marking the RL in paint and placing a screw as the benchmark. The TBM was on a concrete slab under the Council's entry statement as depicted in the site plan at 27.15 of Volume 3 of Exhibit 1. Prior to the commencement of the excavation of the site (after demolition of the old Shearwater Motel), a surveyor transferred the TBM to a temporary soldier pile which was in place on the site to retain the excavation. Mr Toomey accepts responsibility for transferring the TBM down the soldier pile to the bottom of the excavation although he says this work is done by two people, and he assumes his foreman Mr Fuller would have assisted him. At that point, a surveyor from Mr Clifford's firm set out the horizontal levels for the purposes of constructing the sub-basement level, however at no time was his firm instructed to undertake any vertical levels. Indeed, his evidence is that he (or one of his surveyors) set out horizontal levels for each floor during construction, but never received instructions to do vertical levels. There was some conflict in the expert surveying evidence as to the need to have a surveyor do vertical levels during the construction stage, particularly where height is so important. Mr Toomey is an experienced builder. He has built at least seven multi-use high rise buildings in Caloundra City prior to Shearwater resort. On all previous occasions, the planning scheme provided for height calculated by reference to the number of storeys. This was the first building he had constructed by reference to an actual height above ground level. His evidence, supported by Mr Clifford, is that if the builder is experienced, it is quite acceptable for him to transfer the TBM around the construction site as construction proceeds. I accept that evidence. Mr Clifford had worked for Mr Toomey in the past, and regarded him as a competent builder. In fact, Mr Toomey now acknowledges that a mistake has occurred probably in the transfer of the TBM down the soldier pile to the sub-basement floor, or from there into the sub-basement itself after excavation. The Council submits that certainly on the basis of Mr Lawson's uncontested evidence, the sub-basement constructed is 0.79m above the level in the approved plans; however it submits that it was no mistake. Mr Toomey was cross-examined by Mr Couper on this point. It was suggested to him that if there was this one error, then it would be expected that the same error i.e. 0.79m would be replicated up to maximum height. Mr Toomey explained that there are ordinarily variations in vertical levels due to variations in floor thickness as a result of the behaviour of concrete. It is difficult for me to accept that the accepted additional exceedance of 0.15m between the sub-basement and the basement level is attributable to such ordinary variations. Certainly, the small variations from basement to Level 6 are explicable in terms of Mr Toomey's evidence. He was not extensively cross-examined about the basement sub-basement exceedance, and I am unable to take this any further in terms of my assessment of his credibility as the evidence is scant on the point. Certainly, Mr Toomey does not suggest that there was a second mistake in moving the TBM to the basement level. Mr Fuller was not called by the respondents and the Council asks me to draw a Jones v. Dunkel inference as a result. I will return to this issue later.

[170]

[47] The respondents submit that had anyone appreciated that the ground level of the building as constructed would be one metre below kerb level, then stormwater issues would necessarily have been addressed as part of the assessment process. As I understand their argument, the fact that these issues did not loom large in the assessment stage adds credence to the respondents' belief that the approved plans provided for the construction of a building with a ground level at or just above street level. The respondents go further and argue therefore that as a matter of proper construction the approved plans permit the construction of a building accordingly. Mr Couper refers to the schematic approach apparently taken by the respondents in reaching this view. Mr Sando acknowledged that had the ground level been below street level, he would have expected the issue of stormwater to be addressed then. Mr Harrison gave evidence for the respondents on this issue. He produced the flow paths depicted in Exhibit 15B, and the calculations for major flood events in Exhibit 31. There is not a great deal of significant conflict between Mr Harrison's evidence on this issue, and Mr Sutherland who is a hydraulics engineer who gave evidence for Council. However, I prefer Mr Sutherland's evidence where it conflicts with Mr Harrison. I find that Mr Harrison has overstated the effects on flow at the constriction in De Vene Avenue immediately opposite the drive way into the resort at that point. Conversely, I do not think a wall at that point, as suggested by Mr Sutherland, would be a practical or appropriate (in town planning terms) response to a situation where the ground level of the building was below kerb level at that point. I accept his evidence generally that had the design been understood to have a ground level below the kerb level, design solutions, such as pumps, bunding and walls etc. could have been presented by the first respondent. He agreed that if he had been assessing the design and appreciated this fact, he would have recommended adequate measures to deal with the issue. It follows that the factual matters pleaded in paragraphs 6(g)(i), (ii) and (iii) are not made out on my view of the evidence.

[193]

[64] The evidence establishes that Mr Raadschelders, or his employees, were intimately involved with the design of the development from an early stage. He was present with Mr Toomey and/or Mr Harrison at many of the pre-assessment meetings with Council officers. His plans form a fundamental core to the MCU application and consequently the approvals which flowed later as a consequence of that application. In evidence, witnesses were constantly referred to his plans, in particular the site plan (SD02 Rev G), the Edmund Street elevation (SD25 Rev H) and the cross-sectional drawing (SD43 Rev H). As I have noted, there is much dispute about the significance of the lines on the last two drawings which the respondents say represents kerb level. Mr Raadschelders was the author of the drawings. There is no reference to kerb levels in the plans. Mr Couper submits, with some justification when one considers the topography of the site as represented on SD02 Rev H, that the horizontal lines at the base of each of those drawings are inconsistent with the known topography of the site which involves sloping frontages to each street, and are more likely to be mere surplusage. Mr Raadschelders could have explained those lines and been tested on his explanation. In cross-examination Mr Couper questioned both Mr Toomey and Mr Harrison about the schematic appearance of the drawing No. SD23 Rev G (16.37 Volume 2 of Exhibit 1) which depicts the De Vene Avenue elevation as part of the MCU application. Mr Couper suggested that drawing did not show ground level above kerb level. Taking the approach that Mr Toomey and Mr Harrison have in relation to the other plans, there is some force in Mr Couper's suggestion. Mr Raadschelders could have cleared up the confusion. He is available, and potentially a very important witness who could touch on this critical issue. I am satisfied that the failure of the respondents to call him justifies me in inferring that his evidence would not have assisted the respondents' case.

[292]

[113] In exercising my discretion not to make an enforcement order including a demolition order, I have taken into account the nature of the contravention, the lack of financial benefit to the respondents in constructing a building 0.97m above the height in the approved plans (that is, apart from height exceedance, the building as constructed conforms in all respects with the DCP and the approvals; the respondents have not gained an extra storey; they have not constructed a building that is visually at odds with the designed building; and the exceedance has not improved views from the top level); the acts and omissions of the respondents (and their consultants) in failing to realise that as a result of raised levels of the Esplanade after completion of realignment works, the ground level as designed was below the kerb of the Esplanade by approximately a metre at some points; the apparent error in transferring the TBM prior to construction of the sub-basement; the failure of Council officers assessing the MCU application to appreciate that the building as designed would have a ground level below kerb level; the decision of Council (contrary to the advice of their engineer) not to require an operational works phase which would have revealed the level issue prior to construction; the town planning consequences of the exceedance (that is, in relation to views, the building constructed as designed and approved would have interfered significantly with views of other residents in any event; and in this context I have taken into account the decision of Council in the approval stage, to take as original ground level for the purposes of measuring the height of the building, the ground level of the Old Shearwater Motel site, which was above the natural ground level or ground level before any development); the significant loss to the respondents of the making of a demolition order, the conduct of the respondents in continuing construction notwithstanding their knowledge of a height exceedance, and the substantial loss and detriment to innocent shareholders and sub-contractors of the respondents and the purchasers of units particularly those who have purchased the six penthouse units and the north-eastern end unit on level five.

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Cases Cited (6)