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

Patterson v. Redland Shire Council & Anderson [2002] QPEC 68

Mareeba Shire Council v. Laghaifar [1999] QPELR 179

Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335

Crowther v. State of Queensland [2002] QPEC 79

Caloundra City Council v. McGreath [1998] QPELR 178 Hawkins v. Izzard v. Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423

Woollongong City Council v. Australian Iron & Steel Ltd (1988) 67 LGRA 51

Weigall Constructions Pty Ltd v. Melbourne & Metropolitan Board of Works [1972] VicRp 93; [1972] VR 781

Hall & Co Ltd v. Shoreham-by-Sea Urban District Council [1964] 1 WLR 240

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Jefflane Pty Ltd v. Brisbane City Council [2003] QPELR 97

R v. The Justices of the County of London (1889) 24 Q.B.D. 341

Mt Barker Properties Ltd v. Mt Barker District Council [2001] SASC 249; (2001) 115 LGERA 190

Lever Finance Ltd v. Westminster London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222

Grace Brothers Pty Ltd v. Willoughby Municipal Council & Ors (1984) 44 LGRA 400

Firefast Pty Ltd v. Council of the City of Gold Coast [1999] QPELR 200

Hawkins and Izzard v. Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414

Payne v. Parker [1976] 1 NSWLR 191

RPS v. The Queen [2000] HCA 3; [2000] 168 ALR 729

Matijesevic v.Logan City Council (No. 2) (1983) LGRA 51

Mariner Construction Pty Ltd & Ors v. Maroochy Shire Council [2000] QPELR 334

House of Peace Pty Ltd & Anor v. Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440

R v. Lockwood; Ex parte Attorney-General [1981] Qd R 209

Tynam v. Meharg (1998) 101 LGERA 255

Mudie v. Gainriver Pty Ltd & Ors [2001] QCA 382

Cromar Pty Ltd & Cronin v. Brisbane City Council & Anor [1996] QPLR 84

Connelly's Case (1952) 19 LGR(NSW) 18

Integrated Planning Act 1997, ss.4.1.21, 4.1.22, 4.3.3, 4.3.22, 4.3.25

Environmental Protection Act 1994, s.435

S.S. Couper, Q.C. with A.N.S. Skoien for the Applicant

Is there a mental element in a development offence?

Did the respondents act deliberately or in contumelious disregard for the approvals?

(v) The consequences to the respondents and innocent third parties

[1] The Caloundra City Council ("the Council") seeks the following declarations and orders against Taper Pty Ltd (the first respondent) and Chadmont Pty Ltd (the second respondent):

(a) a declaration, pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the height levels stipulated in the approved plans under the development permit issued by the Applicant on 4 March 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach, are Australian Height Datum height levels;

(b) a declaration, pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the height levels stipulated in the approved plans under the development permit issued by Suncoast Building Approvals on 22 February 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach, are Australian Height Datum levels;

(c) a declaration, pursuant to Section 4.1.21 of the Integrated Planning Act 1997 that the First Respondent and/or the Second Respondent have contravened the development permit issued by the Applicant on 4 March 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

(d) a declaration, pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the First Respondent and/or the Second Respondent have contravened the development permit issued by Suncoast Building Approvals on 22 February 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

(e) a declaration, pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the First Respondent and/or the Second Respondent have committed a development offence, within the meaning of the Integrated Planning Act 1997, in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

(f) a declaration that the use of premises at 79 Edmund Street, Kings Beach, for the purpose of mixed use development containing Multiple Dwelling, Shops, Restaurant and Conference Room, to be known as Shearwater Resort, is not a lawful use within the meaning of the Integrated Planning Act 1997;

(g) an order, pursuant to Section 4.1.22 of the Integrated Planning Act 1997, that the First Respondent and/or the Second Respondent carry out such works, including demolition, as are required to ensure that the building, to be known as Shearwater Resort, constructed at 79 Edmund Street, Kings Beach, complies with the development permits issued by the Applicant and Suncoast Building Approvals in respect of that development;

(h) an enforcement order, pursuant to Sections 4.3.22 and 4.3.25 of the Integrated Planning Act 1997, that the First Respondent and/or the Second Respondent carry out such works, including demolition, as are required to ensure that building, to be known as Shearwater Resort, constructed at 79 Edmund Street, Kings Beach, complies with the development permits issued by the Applicant and Suncoast Building Approvals in respect of that development;

[2] The first respondent is the owner and developer of land situated at 79 Edmund Street, Kings Beach ("the site"). The site is an amalgamation of three separate sites aggregated for the express purpose of the development with frontages to Edmund Street, De Vene Avenue and The Esplanade.

[3] The second respondent is a builder engaged by the first respondent to construct a building on the site to be known as the Shearwater Resort ("the development"). Jeffrey Michael Toomey ("Mr Toomey") is a director of both respondents, and the principal person involved in the development and building applications and the construction of the building.

[4] The site is zoned "Special Development" under the town planning scheme for the City of Caloundra which calls up the relevant Development Control Plan for guidance as to development assessment.

[5] On the 22nd August 2001 the Kings Beach Development Control Plan (the "DCP") came into force in the City of Caloundra. The land is part of a key site in the DCP mixed use precinct, and the relevant Code provides for a maximum building height on that site of 16.5m with a stipulation that the ground level (of any development on the site) must incorporate an active non-residential frontage. At or around this time, the respondents' consultants provided Council with a document entitled "Material Change of Use Application for Shearwater Resort, Kings Beach, Caloundra" which is an almost identical form to the document lodged as the formal MCU Application in October.

[6] On the 1st October 2001 the first respondent made application (the "MCU application") under the Integrated Planning Act 1997 ("the Act") to the Council for a development permit for material change of use in respect of the development. The MCU application was accompanied by development plans. Subsequently, as part of the IDAS process the Council forwarded a request for further information to the first respondent on the 15th October 2001 which request raised issues with respect to the original ground level, and to the height of the building. On the 6th November 2001 the first respondent, through its town planning consultants Dillon Folker addressed matters raised in the request for information. In this submission, Mr Folker argued for a definition of "ground level" which was the level of the ground floor level of the existing Shearwater Motel. Ultimately, that definition was accepted by Council. I will refer to this issue in greater detail later. There was a significant change to the plans, in that although the overall proposed height of the building had not altered, the ground levels had altered from RL 6.2m to RL 6.1m.

[7] On the 27th December 2001 the applicant issued a decision notice, within the meaning of IPA, in respect of the MCU application (the "MCU approval"). The first respondent negotiated with the applicant in relation to some of the conditions of the MCU approval, and, on the 4th March 2002 the applicant issued a negotiated decision notice which thereby modified the MCU approval.

[8] In January 2002 the first respondent made application under the Act (the "Building Application") to Suncoast Building Approvals, a private certifier under IPA, and on the 22nd February 2002, Suncoast Building Approvals decided the building application (the "building approval"). The building approval approved development in accordance with the building plans and the MCU approval, and in February 2002, the second respondent commenced construction of the building. The building is substantially complete. The building was inspected by the Court on the first day of the trial. It is a substantial building comprising two levels or storeys of basement car parking below ground level, a single level of shops, restaurants and other commercial activities at ground level, and six levels or storeys of dwelling units (50 in total) above the ground level shops and commercial areas.

[9] By October 2002, the construction had reached the stage where the sixth and uppermost level of the building was in the course of construction. As a result of a complaint from a member of the public, the Council contacted Suncoast Building Approvals requesting that the building be measured. The complaint was that the building was too high.

[10] The plans attached to the MCU approval and the building approval set out a ground level of 6.1 RL (which it is accepted by the respondents to be relative to Australian Height Datum (AHD)), a roof level of 25.05 metres AHD, a maximum building level (relating to the approved lift overrun) of 25.43 metres, and a maximum height of 16.5 metres above ground level. It is common ground that the MCU application was assessed and approved by reference to the DCP, and that for this site any building over 16.5 metres would move from being Code assessable to being impact assessable and be "not preferred" under the DCP. It is common ground that the MCU application was assessed by Council by reference to the relevant Codes in the DCP. It is common ground that the building as constructed is at a ground level of 7.08 metres AHD, a roof height of 25.98 metres AHD, and a maximum lift overrun of 26.40 AHD. In accordance with the uncontested evidence of Mr Lawson, the Council surveyor, this represents a constructed ground level of 980mm above the approved height, constructed roof level of 940mm above approved height and constructed maximum roof height (lift overrun) of 970mm above approved height.

[11] The Council's case is that the respondents have acted deliberately and/or recklessly in contumelious disregard for the approved plans, to construct a building which exceeds the critical height limit of 16.5 metres; that is critical in the sense that the 16.5 metre limit for this site in the DCP is the trigger between Code assessable development and impact assessable development.

[12] The respondents accept now that the building as constructed, in accordance with Mr Lawson's evidence, is 970mm too high. Their case is multi-faceted. Firstly, they allege that the building as constructed conforms with the relevant provisions of the DCP and achieves the planning goals promoted by that document. Secondly, they contend that as a matter of construction of the approvals, the building is constructed "generally" in accordance with the approved plans which form part of that approval, and that, notwithstanding the admitted height exceedance, there has been no contravention of the approvals.

[13] The Council carries the onus of proof. It is an offence to contravene a development approval, including any condition in the approval: s.4.3.3(1) IPA. On the 19th December 2992, the Council's solicitor Mr Heiner wrote to the respondents' Solicitors inter alia in these terms:

"I have now received instructions that the council intends to apply to the Planning and Environment Court, for appropriate orders under Integrated Planning Act Chapter 4, Part 3, Division 5, on the basis that your client has contravened IPA s.4.3.3.

The council will ask the court to make an order requiring Taper Pty Ltd to carry out such works, including demolition, as are necessary to ensure that the Shearwater Development is brought into conformity with the development approval issued in March 2002.

The council also intends to prosecute those parties responsible for committing the development offence.

Senior counsel has been briefed and court papers will be filed and served early in the New Year.

The purpose of this letter is to advise that these are the council's instructions. Those instructions were received yesterday 18 December 200.

The council is aware that work on the project is continuing apace. The question arises whether work - at least on the top level of the building - should be discontinued, until these issues have been resolved. The council has considered the possibility of giving your client an Enforcement Notice (requiring work on the top level of the building to case), but has consciously decided to refrain from doing so. In its consideration of this issue, the council was mindful of the concerns expressed, and the threats implicit, in Mr Toomey's letter of 5 December.

The issue of discontinuation of work on the top level of the building is one for your client to consider.

This letter will if necessary be put before the court."

[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.

[15] As there are competing arguments as to the proper construction of the relevant parts of the DCP; it is necessary to set out briefly the history of its development leading up to commencement on the 22nd August 2001. The respondents accept that they and their consultants were vitally interested in the development of the DCP and were involved in the consultation process from the outset.

[16] It is common ground that prior to the commencement of the DCP, under the relevant planning scheme a development such as this was a consent use, however, the scheme provided for a maximum height of four storeys. It seems clear that the respondents (reasonably) delayed lodgement of the MCU application until after the commencement of the DCP. It is clear to me; indeed it is acknowledged by Mr Toomey, that a critical issue in the development of the DCP was height.

[17] Preparation of the DCP commenced in or about 1999.

[18] A draft DCP was released by Council in November 1999. The draft identified the subject land (or more specifically that occupied by Shearwater Motel) as a "key site" and proposed a building height control of 22 metres. That height was offered as an "incentive" for a developer to incorporate an "active, non-residential street frontage" at ground level of any development. If no such frontage was included the height limit was reduced to 16 metres.

[19] The issue of building height was the subject of significant input from the public during community consultation, including non-statutory consultation in relation to the draft DCP. In May 2000, Council erected scaffolding in Lions Park to the east of the subject land, which depicted various heights, including 22 metres and 16 metres, to enable members of the public to gain a real impression of various building heights. I am satisfied that as the scaffolding was erected in Lions Park down the slope to the east of the site, an observer would not gain a completely accurate picture of a building to such heights on the site. The agreement by the Council during the assessment process to a ground level set at the slab of the old Shearwater Motel, that is at a higher level than historical or natural ground level, also tended to undermine the real purpose of the construction of the scaffolding in Lions Park; that is, to give members of the public an accurate appreciation of height and its effect on amenity.

[20] The revised draft DCP adopted by Council on 17 August 2000 contained a 16.5 metre height control for the site. Any development which exceeded that height would require impact rather than code assessment, and be "not preferred".

[21] I am also satisfied that during the consultation stage for the DCP, the respondents argued for greater height, although I am satisfied that at least by the time of the meeting on the 26th April 2001 between Mr Faithfull, Mr Krueger and Mr Patey on behalf of the Council, and Mr Toomey, Mr Raadschelders (architect) and Mr Folker (town planner) (on behalf of the respondents) the respondents were clearly accepting that their design had to comply with the 16.5m height limit. There was clearly tension during the consultation process between Mr Toomey and Mr Dwyer, the Councillor for Division 9 which includes the Kings Beach area, who was the chairman of the Kings Beach Redevelopment Steering Committee; and this tension at least in part focussed on the issue of height. In relation to Mr Dwyer's evidence of a "heated discussion" with Mr Toomey "some time during 2001", I am satisfied that this occurred prior to the 26th April meeting.

[22] The DCP is found at 15.3 of Volume 1 of Exhibit 1. The site is part of the most southern key site precinct marked at 15.4 The relevant sections of the DCP are set out below.

The Mixed Use Precinct includes the ... Shearwater Motel ... and areas adjacent to Kings Beach Park (Map 3.1 - Precincts). It is intended that this precinct will provide a diverse range of activities and facilities to complement the urban improvement works envisaged by the Kings Beach Redevelopment Master Plan.

In particular, it is intended that new development will incorporate:

* a range of retail, outdoor dining, entertainment and leisure activities (at ground level) which add to the vibrancy of the area;

* a range of tourist accommodation and tourist accommodation facilities (above ground level);

* active street frontages which encourage interaction between new development and adjacent public places; and

* high quality building and streetscape design which complements the Kings Beach Redevelopment Master Plan works and contributes to the creation of a pre-eminent beachside location.

Residential and tourist development in this precinct is subject to the Mixed Use Code in Part 4 (Section 4.4). The code also includes general design guidelines which seek to encourage high quality development on all sites within this precinct.

Other codes applicable to development in this precinct are identified in Table 4.1 (Guide to Code Applicability)."

Section 3.7.2: "... will be developed with "land mark" buildings which comply with the Mixed Use Code and in particular, the specific design criteria applicable to key sites. Development of these sites will be expected to achieve outstanding levels of architectural and landscape design which epitomise the vision for Kings Beach."

This Code will be considered in assessing material change of use, building work or operational work development applications located in Precinct 6 that follow the code or impact assessment process.

The level of assessment is determined by the Development Assessment Table contained in Section 3.8 of the DCP. [Note 6 to the Development Assessment Table provides that:

"... in Precinct 6, any material change of use is (not preferred) if ... proposal on a key site exceeds the height above ground level specified in Table 4.2 of the Mixed Use Code"]

The Acceptable Solutions present one acceptable way of complying with the Performance Criteria. There may be other ways to comply that meet the Code's purpose. It is the responsibility of the applicant to demonstrate that alternative solutions can achieve the Code's purpose. A proposal that fails to comply with these Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.

It may not be possible to comply with all performance criteria on certain sites. In these situations, some compromise may be acceptable, based on the following principles:

* the amenity of neighbours takes precedence over the amenity of the development's residents or occupants; and

* windows, balconies or decks, if oriented to the north, may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code.

* attractive high density housing and tourist accommodation that provides a pleasant living environment for its occupants;

* tourism, convenience, leisure and recreation related uses particularly at ground floor level, to provide active street frontages that encourage movement and interaction between private development and the adjacent public spaces;

* buildings at a scale appropriate to the neighbourhood;

* dwelling units that relate to and overlook the street;

* external spaces integrated with the design of the building;

* a high level of comfort, convenience and safety for occupants;

* energy efficiency through minimising the need for artificial heating, cooling and lighting; and

* a pleasant aspect and outlook and access to attractive outdoor spaces for each dwelling unit."

"Table 4.2. Building Heights and Notes for Key Sites as indicated on Map 3.1.

An acceptable solution is required to demonstrate the following:

* at least 75% of the total length of the site boundaries to the Kings Beach Master Plan Area have active non-residential frontages at ground level;

* a stepping back of building form from all boundaries above 2 storeys with particular emphasis on the Esplanade/Ormonde Terrace;

* development incorporates urban design and landscape improvements at ground level that complements the King Beach Redevelopment Master Plan Works;

* service areas, parking areas and driveways are sited and designed to minimise disturbance to the amenity of neighbouring properties;

* where only part of the key site is developed, buildings are sited and designed to ensure there is no unreasonable loss of amenity to adjacent sites (refer to Figure 4.4.2b); and

* the principal vehicle access is provided from Edmund Street.

One acceptable solution for part of this Key Site is illustrated on Figure 4.4.2a and 4.4.2b (Shearwater Key Site Design Acceptable Solutions).

1 The ground level must incorporate an active non-residential frontage."

P2 The site layout maintains stormwater overland flow paths to avoid causing ponding on neighbouring land.

A2 The development complies with the stormwater management guidelines contained in Council's Manual of Engineering Guidelines and the Queensland Urban Drainage Manual.

P5 Buildings to contribute to street activity at ground floor level.

Refer to Figure 4.4.4. (Building Elevation Design in Precinct 6)

A5.1 Ground floor frontages within Precinct 6 facing onto the Kings Beach Master Plan Area (refer to Map 1.1 - DCP Area) are to have a minimum of 70% of frontage as `active frontage' comprising the following features:

* Incorporating activities that are likely to foster casual, social and business interaction for extended periods - such as shopfronts, indoor/outdoor cafes and restaurants;

Figure 4.4.4 Building Elevation Design in Precinct 6.

The explanatory and use definitions applying to the Kings Beach DCP area are those contained in Part 8 of the Planning Scheme except as modified by the following:

means that part of a building fronting a road or other public space that has windows and doors opening to that space and is used for one or more of the following uses:- cottage crafts & sales; food outlet; local store; restaurant, shop; or shopping centre.

for the purposes of determining the maximum height of a building in the DCP area the height above ground level is measured vertically to the top of the building at all points on the site over which the building is to be erected. Such measurement excludes any non-load bearing aerial or antenna attached to a building and plumbing ventilation pipes, but includes other rooftop structures and projections such as architectural features, lift shafts and motor rooms, air conditioning or other mechanical or electrical plant, satellite dishes, and advertising devices.

has the meaning assigned to "original ground level" in Section 8.1 of the Planning Scheme.

those sites identified during the development of the Kings Beach Redevelopment Master Plan and in the preparation of the DCP that are critical to the urban renewal of Kings Beach. These sites are indicated on Map 3.1 (Precincts).

means the City of Caloundra Planning Scheme gazetted on 2 August 1996 and subsequent amendments.

[23] The MCU approval contained a number of conditions which are set out having regard to the issues to be determined:

"1. The site is to be developed in accordance with the approved plans (except where varied by conditions of approval);

18. prior to, or at the same time of lodging a Development Permit for Building Works, the applicant shall modify the development design/layout as necessary to incorporate the following:-

- truncation of the corner of Edmund Street and the Esplanade to suit the containment of the frontage footpath within the verge and to suit adequate future provision for services. The extent of the truncation may be confirmed upon lodgement of construction detail for the development. However, it appears that a single chord truncation not greater than 4.0 metres by 2.0 metres will be sufficient.

- a minimum 1 metre clearance between the constructed footpath and the frontage kerb line except at designated pedestrian crossing locations. To achieve this width, it will be necessary to reconfigure/reduce the alfresco dining areas where they encroach onto the footpath/road reserve. This strip is required to contain a mixture of hard and soft landscaping elements, to deter unlimited pedestrian access to the Esplanade roadway. The design of this strip shall be submitted with the revised Landscape Plan required by condition 11 of this approval, and endorsed by Council;

- adequate vehicle turning at the corner of Edmund Street and the Esplanade for the design service vehicle, minimum heavy rigid vehicle;

- visitor space configuration in the porte-cochere in accordance with code requirements and to suit satisfactory manoeuvring; and

- driveway grade requirements in accordance with AS 2890.1 and minimum driveway level requirements of the Queensland Urban Drainage Manual;

19. intersection and frontage works, access, car parking and stormwater drainage works associated with the proposed development shall be designed and constructed in accordance with Council's Manual of Engineering Guidelines, Parking Policy, other relevant Council Policy and relevant Australian Standards; "

[24] As the hearing progressed, the factual and associated planning issues were clearly defined. These can be summarised as follows from the respondents' point of view:

(a) The design plans (which form part of the MCU approval and the building approval) were essentially completed prior to the re-alignment of the Esplanade to the east of the site, and in designing the building they (and they say their consultants) have always assumed reasonably that ground level was "at grade" with the kerb level of the Esplanade. They now acknowledge that in fact, as a result of the re-alignment of the Esplanade to a position approximately 20 metres to the west, i.e. towards the site, the pre-existing kerb level has risen, a fact not appreciated until late in 2002. The respondents further contend that although at all times they understood that height levels in the approved plans were referable to AHD, nevertheless AHD is not stipulated as such in the plans.

(b) As a consequence of this error, they proceeded at all times on the basis that the development as approved had a ground level at or slightly above the kerb level of the Esplanade thus catering for the need for an active street frontage as contemplated by the DCP.

(c) In transferring the Temporary Bench Mark (TBM) from a soldier pile to the sub-basement area prior to construction commencing, an error has occurred resulting in a higher RL in the sub-basement area than that provided for in the approved plans, which error has been replicated (taking into account minor level changes at each floor level) up to the maximum roof level.

(d) As a result of this error, the ground level when constructed was in fact at or slightly above the kerb level with the Esplanade, whereas if designed in accordance with the levels fixed in the development plans it would have been approximately a metre below ground level. Because of their belief summarised in (b) above, the respondents did not appreciate any problems with construction until the survey levels were conducted subsequent to the complaint in October 2002.

(e) At no time in the assessment or approval process did any of the officers from the Council assessing the application raise any issue, such as stormwater drainage, design etc, such that would have confirmed that the building as designed had a ground level approximately a metre below the kerb level.

[25] Council submits that the errors and mistakes admitted by the respondents defy innocent explanation. It is the Council's case that against a background of intense emphasis on the issue of height over a number of years leading up to the MCU application, it is inconceivable that such errors could have been made innocently, and therefore it submits that the respondents (and necessarily their consultants) have made a conscious decision to build the sub-basement higher than permitted by the approved plans. Alternatively, the Council submits that if there was not a conscious decision to so act, then the actions and omissions of the respondents and Mr Harrison the engineer are so grossly negligent as to amount to a contumelious disregard for the approvals.

[26] I will now turn to a detailed analysis of the evidence on each of these key issues, as this will largely determine the threshold question, that is have the respondents committed a development offence by contravening 4.3.3(1) if IPA.

[27] As part of the overall Kings Beach Redevelopment Plan, the Council carried out extensive road works to the north and east of the site, including a relocation of the Esplanade kerb west 20 metres towards the site. The realignment was completed by the 5th August 2001, i.e. before the gazettal of the DCP and before the lodgment of the MCU application. Clearly the respondents were aware of these roadworks, including the realignment of the Esplanade. Indeed they were required to relocate a sewer in conjunction with the redevelopment works. Mr Harrison produced a plan for this purpose in June 2001. For this purpose he was given access to Council plans prepared by Maunsell McIntyre for the redevelopment which he acknowledges now had the realigned levels of the Esplanade kerb marked. He says he detected some errors in the plans in relation to horizontal levels and did not turn his mind to them further, and when designing the sewer relocation, he did not appreciate the new vertical levels. There can be no doubt that the design for the Shearwater resort commenced some years before the MCU application. The allegation of fact pleaded in the amended defence paragraph 5(g)(iv) to the effect that during the consultation stage prior to the DCP and the MCU application, the Council officers "refused to communicate or to allow its consultants to communicate with the respondents or their consultants with respect to the realignment and reconstruction of the Esplanade", is not established on the evidence.

[28] There may have been some confidentiality issues early in the process i.e. in 1999-2000, however there is no doubt that Mr Harrison had the relevant information to enable him to prepare the sewer realignment; and indeed Mr Toomey had commissioned his surveyor Mr Clifford to prepare survey plans for the express purpose of establishing kerb position and levels in the new Esplanade. The new survey plan performed by Mr Clifford which shows the levels for the realigned Esplanade kerb forms part of the material lodged by the first respondent with the MCU application. Mr Raadschelders' drawing SD02 Rev G which is a site plan was an important plan to satisfy Council officers assessing the MCU application that the building as constructed would not exceed the 16.5m height permitted by the DCP. The site plan comprises a drawing of the building on site superimposed over Mr Clifford's survey plan dated the 6th July 2000 as amended to include the realigned levels of the Esplanade. The realignment road works were completed on or about the 5th August 2001. The plan is reproduced at 16.6 in Volume 2 of Exhibit 1. The plan clearly shows the levels of the realigned Esplanade kerb, and a simple mathematical exercise indicates that all the levels along the Esplanade kerb with the exception of a level of 5.8 in the bottom left of the drawing, are above 6.1.

[29] As I have noted, the respondents and their consultant Mr Harrison who was the principal author of the MCU application, say that the design of the building had been completed by Mr Raadschelders before the realignment, and that despite having the correct levels at best just prior to the lodgment of the MCU application, the new levels were simply overlooked. Significantly, the Council officers assessing the application also overlooked what now appears an obvious fact. Mr Faithfull is a town planner and a senior planner with the Council. He was the person who handled the development application on behalf of the Council. He is the author of Exhibit 30 which is a copy of the code assessment report which was approved by the Council's delegated authority and formed the basis of the subsequent decision notice. He was intimately involved in the consultation process leading up to the lodgment of the MCU application. He gave evidence which I accept that at all times height was a key issue in the assessment of any development on this site, and that the respondents were aware of this. He acknowledged that drawing SD02 Rev G in the plans accompanying the MCU application was an important document to enable the Council to assess the proposal and to ensure that the finished building would be within the height limit. Spot levels on the building footprint are marked at various points of the shaded outline of the building on site. These spot levels represented the "ground level" for the purposes of measuring the 16.5 metre height limit permitted by the DCP. Guides to interpretation of the meaning of "ground level" in the DCP can be found at 5.1 in the DCP. As Mr Faithfull notes in his statement (Exhibit 3 at paragraph 23):

"... that expression is defined to cross-refer to the expression "original ground level" in section 8.1 of the Planning Scheme."

[30] Mr Faithfull is quoting the definition in 5.1 of the DCP. In fact, the term is defined in s.9.1 of the Planning Scheme as meaning:

"the ground level existing prior to any earthworks, site levelling and the like, and for land which is affected by inundation from tidal flood levels, as determined by Council, the minimum floor level as defined by Council, provided such level does not exceed 1 metre above original ground level."

[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.

[32] At this point, it is convenient to deal with the debate about the applicability of Australian Height Datum as the relevant standard used for the purposes of elevations in the MCU approval (and the building approval). The Council seeks the relevant declarations in paragraphs (a) and (b) of its application.

[33] At an early stage of the proceedings the respondents appeared to abandon any suggestion that the marked levels in the plans are other than AHD levels. Ultimately their final submission focussed on the word "stipulated" in the application. The approved plans, for example SD02 Rev H at 27.15 of Volume 3 of Exhibit 1 (which is the same site plan SD02 Rev G in the MCU application revised), contains no reference to AHD and it is not stipulated in the conditions of approval. The Reader and Clifford details appearing in the box in the bottom right hand corner of SD02 Rev G are not reproduced in SD02 Rev H which forms part of the approved plans, and therefore the respondents submit AHD is not "stipulated". In my opinion, this submission misconstrues the nature of the Council's application. The height levels are "stipulated" in the plans. Indeed there are no other levels stipulated, as the respondents concede. In construing conditions of approval, the context is "all important" and "An over-technical approach to the meaning of the language used in conditions attached to permits and approvals is, as a general rule, not called for." per Holland J in Woollongong City Council v. Australian Iron & Steel Ltd (1988) 67 LGRA 51 at 56, relying upon Weigall Constructions Pty Ltd v. Melbourne & Metropolitan Board of Works [1972] VicRp 93; [1972] VR 781 at 796-797 and Hall & Co Ltd v. Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 at 245 where Wilmer LJ observed "I do not think that the words used by a local authority in imposing conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman". I proceed on the basis that if not "stipulated" in the sense that AHD is recorded in the approved plans as the relevant level datum, all parties understood and acted at all times as if it was intended to be so, and therefore the plans are not confusing or ambiguous, and should be construed accordingly.

[34] As I have noted, as a result of the failure of Mr Toomey and Mr Harrison (and presumably other consultants such as Mr Raadschelders and Mr Lees the consultant hydraulic engineer) to appreciate the significance and indeed the fact of the change in levels of the realigned Esplanade, it was assumed by the respondents that the ground floor of the building as constructed would be slightly above kerb level. The respondents submit that the plans properly construed support this assumption - this is disputed by Council.

[35] The respondents in support of their argument on this point placed particular reliance on some of the elevation drawings which form part of the approved plans, and the importance of a non-residential active street frontage at ground level in the DCP.

[36] Particular reliance is placed on the Edmund Street elevation which is Mr Raadschelders' Drawing SD25 Rev H (27.21 of Volume 3 Exhibit 1). Firstly, it is acknowledged by the respondents that none of these elevation plans refer to kerb level, and that the only levels stated on the plans are the levels there recorded starting with ground level of RL 6.1 and going up to the highest point of RL 25.40.

[37] Mr Toomey and Mr Harrison say that in considering this drawing, they read it as depicting kerb level - which they took to be the black line appearing below the marked ground level - as being slightly below ground level. Similarly, the respondents rely on SD43 Rev H which is a cross-sectional drawing through the lift shaft which is 27.25 in Volume 3 of Exhibit 1.

[38] Mr Faithfull says he never turned his mind to this issue, as it was never raised or discussed with him by anyone. He was cross-examined by Mr Hughes on this issue. These questions and Mr Faithfull's answers appear at pages 22-23 of the transcript.

"And there's no doubt in your mind that the commercial and retail level was at ground level, not below ground level?--Yes, it was at ground level.

Right. It didn't ever occur to you that the council was approving a building with shops to be constructed below the ground level?--No, not at the time.

Right. Well now, could I do to Exhibit 3, that's your statement, at paragraphs 41 and 42, where you deal with some of these matters, or some of the matters that I'm addressing now. You say in the course of these paragraphs that you never had any discussions about the change in footpath levels adjacent to the subject land adjacent to the site, do you recall saying that, I think it's at paragraphs 41 and 42?--Yeah, that's right, in my statement, yes.

Right, And you say, I think, or at least you infer, there was never any conversation or discussion about the shops being at or about footpath level, correct?--That's right.

The simple fact for that Mr Faithfull, as we've discussed looking at the plan is it was assumed by not only the council officers but also my client, the shops would be at ground level, correct?--Yes.

[39] Mr Sando is a civil engineer employed as a development engineer in Council's Growth Management Unit (GMU). As I understand the internal processes of the Council, the GMU is ultimately responsible for the recommendation to approve, and it receives input from employed Council officers with expertise such as Mr Faithfull and occasionally from outside consultants. I note that the delegated authority in Exhibit 30 is the Acting Manager of the Growth Management Unit. In his statement (Exhibit 8) by reference to paragraph 6(g) in the Amended Defence Mr Sando states:

"It is true that the "as constructed" level of parts of the foothpath outside the Shearwater site is at levels above 6.1 AHD. There is no argument about that. All this means is that an entrant to the site would have to descend by a step or ramp from the foothpath level to the on-site finished ground level. This is unexceptional."

[40] Mr Sando assessed the MCU application from the engineering perspective. Initially, he was of the view that the first respondent should make a separate application for "operational works". Ultimately, his recommendation was overruled by Council. It goes without saying that if there had been a separate operational works approval stage, the level issue would have been resolved before construction commenced. Mr Sando conceded that if he had realised that, as designed the ground level of the building was to be below the kerb by approximately a metre, he would have been more forceful in pushing for an operational works stage. The reason he was overruled as it were, appears in Mr Faithfull's statement at paragraph 56. He says:

"The Council can, and sometimes does, require a separate application and permit procedure for "operational works" but we are trying to steer away from this process because of the time and expense involved for the applicant and the Council."

[41] In cross-examination, Mr Sando did not agree with Mr Faithfull on this point (Transcript 106, line 10). Mr Sando certainly read the plans as depicting the commercial level at the ground level as being at or just slightly above street level, by reference to plans such as the Edmund Street elevation (SD25 Rev H) and the cross-sectional drawing (SD43 Rev H). He also conceded that none of the plans depicted a ground level below kerb. Mr Sando's major contribution to the ultimate approval was the addition of Conditions 18 and 19. As I understand Mr Sando's evidence, these conditions were designed to provide conditions similar to, but far less intensive, than a separate operational works phase. Condition 18 relevantly makes the approval conditional upon:

"prior to, or at the same time of lodging a development application for a development permit for building works, the applicant shall modify the development design/layout as necessary to incorporate the following:-

driveway grade requirements in accordance with AS2890.1 and minimum driveway level requirements of the Queensland Urban Drainage Manual." (QUDM)

[42] The building approval stage was handled by a private certifier Suncoast Building Approvals. The building approval was issued on the 22nd February 2002. It was not until the 4th April 2003 that the first respondent complied with this condition, that is after the building was constructed and these proceedings commenced. If those detailed engineering drawings had been provided in accordance with Condition 18 i.e. prior to or in January 2002 when the first respondent made building application to Suncoast Building Approvals, it is almost certain that the level issue would have been fully understood by all parties. There appears on the evidence to be no protocol or system in place in Council to check on conditions such as these. Certainly, at no time prior to the present issues arising did Council challenge the first respondent about its non-compliance with Condition 18. Mr Sando, the engineer, had nothing to do with the matter after the MCU approval. It was not part of his responsibility to ensure, on behalf of Council, that Condition 18 was satisfied. He seemed to say that it was a matter of trusting the relevant developer.

[43] It is common ground that in terms of the DCP, an active non-residential frontage at ground level is an important acceptable solution for the development of key sites such as this site. Mr Hughes submits that as a matter of proper construction of the DCP, reference to "at ground level" when used in the document in relation to "active non-residential frontages", means "at grade" with the street level. As noted "active non-residential frontage" is defined as:

"that part of a building fronting a road or other public space that has windows and doors opening to that space and is used for one or more of the following uses:- cottage crafts & sales; food outlet; local store; restaurant, shop; or shopping centre."

[44] He also calls up in support of his argument footnote 1 to "16.5m" in Table 4.2 and the elevation drawing appearing in Figure 4.4.4. He submits that giving the phrase its ordinary and natural meaning and taking into account the guidance in the DCP, it can only mean "at grade" with the street or kerb level.

[45] In my opinion, the submission of Mr Hughes cannot be accepted. Mr Schomburgk, who gave expert town planning evidence on behalf of the respondents acknowledged that there are examples in Brisbane CBD and Noosa of developments requiring an active non-residential street frontage that are built below or indeed above street level. Given the flexibility attaching to the definition of "ground level" in the DCP to which I have earlier referred, it is unlikely that the drafters of the DCP intended that every development subject to this acceptable solution would be built "at grade" with the street. I agree with Mr Couper, that when one particularly has regard to the footnote 1 to Table 4.2, the meaning of "ground level" in the relevant parts of the DCP is a reference to the ground floor of the relevant building.

[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.

[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.

[48] As part of its case, the respondents argue that the building as constructed does not contravene the MCU approval or the building approval, properly construed according to law. Given the acknowledgment by the respondents as to the constructed levels as compared with the levels stated in the approvals, this submission needs to be carefully scrutinised. The key to understanding the respondents' case on this point can be demonstrated by reference to the pleadings and by way of example I refer to paragraph 3(d) of the defence which deals with the MCU approval:

"(d) the approval, properly construed required the subject land to be developed generally in accordance with certain approved plans (which plans were stipulated in the conditions of approval) except where such plans required variation by the conditions of approval."

[49] The Council takes issue with the word "generally". There is no issue that the plans approved by the Council involved two levels of basement car parking below ground level relative to the Esplanade, a single level of shops, restaurants and other commercial uses at ground level, and six levels of dwelling units above the ground floor level. It was always intended that the non-residential ground floor level would provide an active street frontage to the Esplanade in accordance with the DCP.

[50] Prior to the DCP, the relevant scheme would have limited development to four storeys which, I am satisfied on the basis of Mr Faithfull's evidence, generally equated to a height of 16 metres, although height was not stipulated in the planning scheme. The overwhelming effect of the evidence satisfies me that the first respondent was able through this design to gain approval for a seven storey building which, on the basis of the plans approved, was still within the height maximum of 16.5m.

[51] I am also satisfied that the building as constructed (absent the accepted height exceedance) satisfies all the relevant requirements of the DCP, including the express requirements for the key sites that they be developed with "land mark" buildings achieving "outstanding levels of architectural" design. Mr Bailey, who is the architect responsible for the overall design of the very attractive now completed Kings Beach Re-Development Project, was subpoenaed by the respondents to give evidence in their case. He is still involved as a consultant on behalf of the Council in the development of its new planning scheme, and he was clearly a reluctant witness. He was however a frank and impressive witness. He readily acknowledged that the building as constructed was a very attractive piece of architecture. Mr Faithfull who wrote Exhibit 30 the code assessment report which formed the basis for the MCU approval, was very positive in his opinion that the building (as designed) more than satisfied the planning objectives of the DCP. Mr Middleton and Mr Schomburgk gave similar evidence which I accept.

[52] In support of his use of the word "generally" Mr Hughes relies on a judgment of Robin QC DCJ in Jefflane Pty Ltd v. Brisbane City Council [2003] QPELR 97. As Mr Couper observes, condition one to the approvals does not use the word "generally" to qualify the word "developed".

[53] In Jefflane, Judge Robin was considering the meaning of the phrase "is in accordance with (designated plan)" in a planning scheme not in an approval. He said (at 99):

"In Jefflane Pty Ltd v. Brisbane City Council [2002] Q.P.E.L.R. 81 McLauchlan Q.C., D.C.J. determined that, for purposes such as the present, there is no difference in meaning between "in accordance with" and "generally in accordance with". I accept that proposition, which Mr Hinson sought to support by adding a reference to R v. The Justices of the County of London (1889) 24 Q.B.D. 341. At 345, Matthew J said that when the matter went back to the Justices:

"... they may consider the provision that the building is to be "in accordance with the plans", to mean "in substantial accordance" with the plans. Departure from the plans will not divest the Justices of their power to sanction so long as the building is substantially that which was originally proposed to be erected."

[54] Judge Robin does not extend the analysis to express conditions in a development permit. It is clear that in both cases, in a different factual context, the Court was asked to compare a proposal with a plan in a planning scheme. In each case depending on the Court's finding, the proposal was either code assessable or it was impact assessable. Both Courts determined that the plan in the respective applications for development approval involved a "gross" departure from the plan in the planning scheme, and was therefore impact assessable. Judge Robin goes on to record part of the submission of Mr Hinson SC who was counsel for the applicant. I quote from part of that same submission, as relevant to the matter of law presently under consideration:

"Whether or not a building is in accordance with or generally in accordance with a plan involves questions of fact and degree in which the whole of the building and the whole of the plan must be compared: see Mt Barker Properties Ltd v. Mt Barker District Council [2001] SASC 249; (2001) 115 L.G.E.R.A. 190 at 204. A planning approval requiring that development be in accordance with or generally in accordance with a plan authorises work specified in the plan and immaterial variations: Lever Finance Ltd v. Westminster London Borough Council [1970] EWCA Civ 3; [1971] 1 Q.B. 222 at 230B-C."

[55] In neither Jefflane case was the Court faced with the situation here, that is construing the meaning of these words in a planning approval after the building has been completed.

[56] I do not accept the respondents' submission that the height exceedance here could be regarded as immaterial: Lever Finance Ltd v. Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] QB 222 at 230. The materiality of departure from an approved plan is to be assessed according to the town planning consequences of the departure: Grace Brothers Pty Ltd v. Willoughby Municipal Council & Ors (1984) 44 LGRA 400 at 406, and Firefast Pty Ltd v. Council of the City of Gold Coast [1999] QPELR 200 at 202. I note that in Firefast Quirk DCJ was considering a departure in a final design not an actually constructed building, however I am prepared to accept the applicability of these general statements of principle. I will refer to the town planning implications in more detail later in these reasons, however it is suffice for me to dispose of this argument by observing that had the building been designed with the actual constructed levels, it would have exceeded the 16.5m height stipulation and become impact assessable. It is clearly a material departure from the approved plans.

[57] Nor is there any substance in the respondents' submission that the alleged ambiguity or lack of clarity was in part due to the actions of the Council: see Hawkins and Izzard v. Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414 at 416 per Brabazon QC DCJ. There is no ambiguity or lack of clarity in the approved plans in my opinion.

[58] I can see no reason to inject the qualifying word "generally" into Condition 1 in the approvals, and I am not at all sure that the Jefflane cases are authority for the submission made by the respondents to that effect. In any event, if I am found to be wrong in that conclusion, I am satisfied that the exceedance of height in all the circumstances here could readily be described as a significant departure from the design plans, or at the very least a material departure not contemplated by the plans properly construed.

[59] As I have noted, the respondents rely specifically on Mr Raadschelders drawings SD25 Rev H and SD43 Rev H which form part of the approved plans. Mr Toomey and Mr Harrison both say they understood those plans to mean that ground level was to be slightly above street level. Mr Raadschelders was available to give evidence and was not called by the respondents.

[60] Council submits that the failure of the respondents to call the architect Mr Raadschelders, the hydraulics engineer Mr Lees and the foreman Mr Fuller call for a Jones v. Dunkel inference to be drawn against them.

[61] The unexplained failure of a party to call witnesses, may, not must in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case. The rule in Jones v. Dunkel is more readily applicable in cases such as where it is the party who fails to give evidence. It's applicability where a party has failed to call witnesses is more problematical. In Cross on Evidence Australian Edition at paragraph 1215, the learned authors quote with approval the statement of Glass JA in Payne v. Parker [1976] 1 NSWLR 191 at 201-2 (CA) where His Honour by reference to this aspect of the rule said:

"The missing witness would be expected to be called by one party rather than the other, ... is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied." (footnotes omitted)

[62] The general principle has recently been stated by the High Court in RPS v. The Queen [2000] HCA 3; [2000] 168 ALR 729 at 737:

"In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 312 per Windeyer J and that `where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.'"

[63] I am not satisfied that such an inference can properly be drawn in relation to Lees, Folker and Fuller, but I have reached a different conclusion in relation to Mr Raadschelders. Mr Hughes did not address any submissions to this issue.

[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.

[65] It is accepted that where a planning approval is ambiguous it should be construed in a manner which places the least burden on the landowner: per Connolly J in Matijesevic v.Logan City Council (No. 2) (1983) LGRA 51 at 57.

[66] In Mariner Construction Pty Ltd & Ors v. Maroochy Shire Council [2000] QPELR 334 at 336, Senior Judge Skoien noted that there was a "very good reason" for the approach of resolving ambiguity on the face of a development approval in favour of a landowner. That was that if a condition was imposed which was to restrict an approval, it should be expressed clearly.

[67] In House of Peace Pty Ltd & Anor v. Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440 the New South Wales Court of Appeal held that in construing a local government consent:

"The search is not for what the council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended ... it must speak according to its written terms, construed in context but having regard to its enduring function."

[68] In my opinion there is no ambiguity in the plans in relation to height. Adopting the words of the New South Wales Court of Appeal in House of Peace, according to its written terms the approvals construed in context and having regard to their enduring function, required a building to be construed with a ground level at 6.10 AHD, a roof level at 25.04 AHD and a lift overrun level at 25.43 AHD.

Is there a mental element in a development offence?

"(1) A person must not contravene a development approval, including any condition in the approval.

[70] I note that the Environmental Protection Act 1994 (EPA) provides for a similar regime of offences, and the insertion of sub-section (3) of s.4.3.3 of IPA in 1998 means that a person cannot be prosecuted under this Act for a breach of a development approval covered by sub-section (3). The EPA provides (relevantly):

"435 Offence to contravene a development condition

(1) A person must not wilfully contravene a development condition.

Maximum penalty - 2 000 penalty units or 2 years imprisonment.

(2) A person must not contravene a development condition of a development approval.

[71] The legislature did not see fit to provide for the more serious offence of wilfully contravening a development offence in IPA. It is not suggested that the offence involves strict liability; however, I am of the opinion, bearing in mind that it is a penal provision and is to be construed strictly, that it is not necessary for a mental element such as "intentionally" or "wilfully (to include recklessness)" to be proved to establish commission of an offence against s.4.3.3(1) of IPA in the context of an application for declaratory relief under s.4.1.21 of IPA.

Did the respondents act deliberately or in contumelious disregard for the approvals?

[72] The Council's argument is summarised neatly in its final written submission:

4.1 Taper and Chadmont would have this Court believe that there was not just one mistake in the course of the Development, but that there was a great raft of mistakes throughout the design and construction of the Building. First, it is suggested that neither Mr Toomey nor any of the consultants engaged by Taper took any notice of the survey of the kerb levels in The Esplanade, which was available to Taper no later than early August 2001, in the Material Change of Use Submission. Mr Toomey's evidence was that the survey plan was commissioned for the purpose of establishing kerb position and levels in the new Esplanade (see transcript pages 171 and 212). In this regard, Mr Harrison also suggests that he took no notice of levels of the Maunsell McIntyre plans for the realignment of The Esplanade which he had in his possession well before August 2001 (it is submitted that Mr Harrison's explanation, that he paid no attention to vertical heights shown on that survey plan because there was some question over horizontal data, is simply unbelievable).

4.2 Further, Taper and Chadmont would have this Court believe that neither Mr Toomey nor any of the relevant consultants paid attention to the available survey data, commissioned by Taper, when revised plans of development were submitted as part of the negotiated decision process. Again, Mr Harrison suggests that he paid no attention to kerb levels on two further plans which he prepared in October 2001 and November 2001.

4.3 Finally, insofar as the design process is concerned, Taper and Chadmont would have this Court believe that neither Mr Toomey nor any of the relevant experts paid any attention to the survey data at the time of preparing plans for the Building Approval.

4.4 With regard to the construction process, Taper and Chadmont would have this Court believe that neither Mr Toomey, nor any of Chadmont's employees, nor any of the subcontractors on the Site, nor any of the relevant consultants, paid any attention to the survey of the kerb levels in The Esplanade in performing construction works on the Site. Of course, in addition to this oversight, Taper and Chadmont allege that there was the additional mistake during construction in the transposition of the temporary benchmark onto a soldier pile. Happily for Taper and Chadmont, this last error avoided the time and expense of, at least, additional works in relation to excavation, drainage and driveway gradients.

4.5 With respect, the assertions by Taper and Chadmont simply defy belief. While one might be persuaded that one of the relevant parties (either Mr Toomey himself or a consultant) might, perhaps, on one occasion, have made one of the mistakes which is suggested, it is simply implausible that each and every person made precisely the same mistake on each and every occasion. As a matter of common sense, such repeated mistakes by intelligent, professional people simply do not occur in the real world.

4.6 It is submitted that this Court should draw the inference which Council submits is compelling that, at some point or other (either before the MCU Approval, or before the amendment of the MCU Approval, or during the first phases of construction), a deliberate decision was made to modify construction to place the Ground Level of the building above the constructed kerb level."

[73] Alternatively the Council submits that the conduct of the respondents amounts to a contumelious disregard for the development approval conditions relating to height. Council's submissions are summarised thus:

5.1 If, contrary to Council's principal submission, it is accepted that all of these mistakes actually occurred, it is clear that Taper, Chadmont, and the relevant consultants were, at best, grossly negligent in the design and construction of the Building. This negligence must then be placed in context.

5.2 It is quite apparent that, at all times during the preparation of the Kings Beach DCP, an emphasis was placed upon the question of height limits in the Kings Beach area. It is also quite apparent that, from the earliest of times in this process, Taper was arguing for greater allowances in building height. Contrary to the propositions put to Mr Dwyer in cross-examination, it is quite apparent that Taper was still seeking to relax the provisions with regard to building height as late as January 2001 (see Document 10 in Exhibit 1).

5.3 In obtaining the MCU Approval, Taper argued for, and ultimately persuaded Council to adopt, a generous interpretation of "original ground level" in the application of the height limitation in the Kings Beach DCP to the Site. The generosity of this interpretation is demonstrated by the fact that Taper obtained approval for a seven storey building within a 16.5 metre height limitation (to put it another way, a 19 metre building within a 16.5 metre height limitation). Taper was required to show that its building, with bare minimum heights for each storey, could fit within the 16.5 metre height limitation. It did so by relying upon the survey data which it now says it subsequently disregarded.

5.4 Mr Toomey, the controller of Taper and Chadmont, has accepted that, at all times, the height of the Development was a real issue. Mr Toomey was aware that building height had been restricted by the imposition of particular AD levels for the Building. Yet, it is quite apparent that during construction (and even when giving evidence), Mr Toomey displayed total disregard for (almost ignorance of) the obligation to ensure that the Building did not exceed the approved height levels.

5.5 With respect, it is submitted that, in this context, any disregard by either Taper, or Chadmont, or the consultants, employees or contractors of those entities, is contumelious."

[74] In my opinion, there is little difference in the circumstances here between the two concepts. Both involve concepts of deliberate conduct much the same as in relation to the meaning of "wilfully" in s.461 of the Criminal Code: see R v. Lockwood; Ex parte Attorney-General [1981] Qd R 209.

[75] Mr Hughes submits that on the evidence there was really only one "mistake", and that is in the movement of the TBM down or from the soldier pile prior to the commencement of construction of the sub-basement. In reality, on the respondents' own case there were a number of mistakes. Firstly, neither they or any of their consultants appreciated that in the re-alignment of the Esplanade the actual levels relative to the site had risen. I include all the consultants, because if any of the consultants who did not give evidence had noticed the change in levels at any time prior to excavation, it defies belief to suggest that this would not have been brought to the attention of the respondents. Not only was this mistake made in a visual sense; and in this regard I note Mr Toomey and Mr Harrison's explanation about the gently sloping nature of the topography from the previous position of the Esplanade to its realignment; it was also made on a number of occasions prior to the commissioning of the Reader and Clifford survey which was available to the respondents no later than August 2001. Prior to this time Mr Harrison had not noticed the levels in the Maunsell McIntyre plans for the realignment of the Esplanade. During the negotiated decision process, revised plans were submitted to Council relevant to the issue of overall height (including the final plans which indicated a ground level of 6.1 from 6.2 in the plans lodged with the MCU application), and it follows that, on a number of occasions the respondents and their consultants again did not note the realigned levels or appreciate their significance to the design. It follows that there were in fact multiple mistakes made by the respondents and their consultants. The council's submission is that this is simply implausible, and, "as a matter of commonsense, such repeated mistakes by intelligent professional people simply do not occur in the real world".

[76] Further, Mr Couper submits that the conduct of the respondents and/or Mr Harrison on their behalf post October 2002 when the issue of height was first raised, also bears on the issue of "deliberateness". Initially, when the matter was first referred by Council to Suncoast Building Approvals, Mr Toomey responded by measuring the building from constructed ground level to the highest point (the sixth floor was being constructed then) with a tape measure and advising the Council that it was in fact 40mm under height. He spoke to Mr Clifford who suggested that they wait until the roof was on before he (Mr Clifford) would do the appropriate checks.

[77] Mr Toomey said he believed the initial communication from Suncoast Building Approvals which attached a memo dated the 2nd October 2002 from Council, was to do with height. The Council raised the issue again in November, requiring "a certificate from a licensed surveyor confirming that the height of the building does not exceed the approved height of RL 25.430m". Mr Clifford did undertake a survey soon after that communication. He dug up the original TBM, which did not have the original RL marked in paint, but still had the screw in place. He then checked the RLs and I am satisfied that by the 25th November 2001 the respondents and Mr Harrison knew that the building was over height. Nonetheless, Mr Harrison agrees he was responsible for drafting the letter from Mr Clifford to Suncoast Building Approvals dated the 26th November 2002 which is in these terms:

"Our company has been instructed by Taper Pty Ltd to carry out a survey to check the height of the new Shearwater Resort which is presently under construction.

The results of the check levels found that the height of the building from ground floor level at the main entrance foyer to the top of a 70mm high parapet hob around the roof is 18.98 metres.

I trust this information is as you require. Please do not hesitate to contact me if you have any queries."

[78] The letter is misleading. The explanation is that the respondents were responding exactly to the request for information, and it was only when Council on the 3rd December 2002 requested:

A surveyor's certification that clearly and unambiguously shows the finished height of the uppermost portion of the building. This finished height is to show the level relative to the Australian Height Datum (A.H.D.)"

did they then appreciate that the Council wanted to check levels relative to AHD.

[79] On the 5th December 2002 Mr Toomey wrote to the Council in these terms:

"We have been forwarded Council's correspondence of 29 November 2002 and 3 December 2002 addressed to Suncoast Building Approvals and confirm that a licensed surveyor has been commissioned to accurately measure the Shearwater building.

Upon receipt of the surveyor's documentation same will be forwarded to both Suncoast Building Approvals and Council. Due to current workloads in the construction industry however, we request an extension of time until Friday 13 December 2002 to complete the measure and prepare documentation.

A meeting with Mayor Aldous and Council's Chief Executive Officer, Mr Gary Storch, was held on 27 November 2002 to highlight potential damage should the Shearwater project be delayed or financiers become `nervous' due to rumours circulated.

Interest payments currently run at $3,000 per day and over $2 million per month in subcontractor's payments are being made; with all units sold and many commercial tenants having purchased stock in anticipation of an early 2003 opening, the ramifications of delays or withdrawal of funding would not only impact severely on the local based investors in Taper Pty Ltd, but result in non-payment of subcontractors and substantial losses for tenants.

Please be aware that Taper Pty Ltd is taking very seriously rumours regarding the Shearwater development and have briefed a planning and environmental lawyer and barrister plus a civil barrister on the matter.

It is Taper's position that construction is in accordance with approval documentation and the company will take steps to recover any damages sustained due to any party or parties actions which wrongfully delay construction or finance at this critical stage.

We note in your correspondence of 29 November 2002 that "Permission to pass the survey document onto a third party has been denied by the source who commissioned it" and insist that all correspondence and communications between Council, Taper Pty Ltd and its agents be kept strictly confidential.

We look forward to reaching an amicable resolution of this matter."

[80] The correspondence in Volume 3 of Exhibit 1 commencing with the letter from Mr Manning to Mr Heiner on the 13th December 2002 (45.1) and concluding with Mr Heiner's letter (51.1 - 51.2) which is reproduced earlier in these reasons, indicates that the respondents considered urgently moving this Court for declarations to construe the approvals. It is clear that they then knew that the building was constructed over height. The explanation of Mr Harrison and Mr Toomey as to their interpretation of the Council's concerns about height is disingenuous and I do not accept it. I think that it is more probable than not that Mr Toomey was stalling for time. I am not satisfied that this conduct suggests deliberate conduct at the earlier pre-construction stage. It is equally consistent with a reaction of people who were surprised at what they discovered, and then set about to avoid the issue.

[81] Having ruled against the respondents' primary submission that their approved plans are ambiguous and that the building as constructed is generally in accordance with the approvals, it follows that the admitted height exceedance constitutes a contravention of the approvals; and the respondents have committed a development offence. As to whether the Court is satisfied to the high degree of proof required that the breach was deliberate or reckless, I now turn to some other aspects of the evidence which bear upon this decision.

[82] There is no doubt that the Council approved a building with seven storeys above street level. In exceeding the height stipulation by 0.97m, the respondents have not gained an extra storey, nor have they added to the return they would have expected from a building constructed in accordance with the approvals. The exceedance has not improved views. The Council's closing submission (both written and oral) was silent on this point. Consequently, I invited further submissions on this issue which I have received and considered. The Council does not have to prove any advantage or "motive", however, modifying Mr Couper's own words, it is difficult to accept as a matter of common sense that a number of intelligent people would risk so much if, in fact, they stood to gain very little. I do not think that the evidence establishes that the respondents have avoided extensive unexpected construction costs as a result of the raising of the sub-basement level. For example, there was no real exploration of the extent of rock in the excavation site such that would convince me that the respondents regarded this as a potential significant extra cost. Similarly, the evidence does not establish any significant additional expense for the design and construction of stormwater structures, which have been avoided by the exceedance. Indeed the evidence from Mr Sando and Mr Sutherland is to the effect that such measures are unremarkable and easily catered for in the design process. That is, if anyone had realised there was such an issue.

[83] Mr Couper concentrated on the driveway gradient issue as being the most likely source of benefit to the respondents by raising the sub-basement level. His submission is that the inference is open on the evidence on this issue as a whole, that the respondents must have realised just prior to construction that the driveway gradient could not be constructed in accordance with the relevant Australian Standard at the height levels for the sub-basement and basement in the approved plans. There is no direct evidence to support this submission. Despite extensive disclosure, which included some late examination of Mr Harrison's files by Council during the hearing, the only documentation touching on this issue is the sketch of the driveway sent to Mr Harrison by Mr Raadschelders on the 5th February 2002. The facsimile transmission of that date is part of Exhibit 37. As I have noted, there was no drawing of the driveway done by Mr Harrison until April 2003. He says he did not respond to the architect's fax, as it was not an engineering issue. Mr Couper submits this is false. As I understand the evidence of Mr Harrison, he took the fax as being a design only, for comment by him if he had "any concerns". He did not - from an engineering perspective - and did not respond. In my view, it is a huge step in logic to then argue, because he did not respond, he must have then been party to a plan to deliberately raise the building to avoid the alleged gradient compliance difficulty. In my view, the evidence does not establish that a driveway constructed at the height levels in the approvals would not have complied with the Standard. The evidence falls well short of establishing any real benefit to the respondents in relation to this issue.

[84] The absence of any real advantage in contravening the approvals is, in my opinion, a significant factor bearing on the question of deliberateness. Conversely, I think there is considerable force in the submission of the respondents that not only has the contravention not given them any material advantage, it has positively lead to considerable detriment in terms of costly legal proceedings and delay. Given that the building as constructed complies in all respects with the DCP and the approved plans, with the exception of the height exceedance, I am satisfied that there has been no real advantage to the respondents in avoiding impact assessment. Of course, the development would have been "not preferred" and Mr Faithfull - I think with the wisdom of hindsight - says he would not have approved it even if no-one had lodged objections.

The consistency of the conduct of the respondents

[85] I am satisfied on the basis of all the evidence that the respondents and Mr Harrison did proceed on the basis of a ground level constructed at or slightly above street level. I am satisfied that the relevant Council officers (Mr Faithfull and Mr Sando) also proceeded in the assessment and approval process on the same basis. Given the importance of height, I find it difficult to accept that neither turned their minds to this issue. I think it is more probable than not that they did but did not take it any further because they assumed the building would be constructed with a ground level above kerb level. In this trial, all parties have (relevantly) focussed on the issue of height and that was clearly a primary focus in the design ,assessment and approval process. But in assessing the application overall Mr Faithfull was obliged to look at the whole proposal by reference to the DCP. He was satisfied (in Exhibit 30) that it complied in all respects with the DCP; and the building, as constructed, with the exception of the height exceedance, does in fact comply with all aspects of the DCP. To the extent that Mr Perkins disagreed with this proposition, I think his evidence is based on the wisdom of hindsight, and on this point I prefer the evidence of Mr Schomburgk.

[86] Mr Harrison was the author of the MCU application. On page 5 of the document under the heading "Site Context & Planning" he says:

"The amalgamated site itself features a change in elevation of approximately 3m from the existing Shearwater Motel to kerb lines adjacent the Celebration Place redevelopment. This topography and requirements for active frontages at grade to address Celebration Place and the redeveloped "Lions Park" has allowed the proposed Shearwater Resort development to be lowered in relation to sites to the north-west and hence achieve desired yields whilst maintaining view amenity of surrounding areas." (my emphasis)

[87] It defies belief that Mr Harrison, with the intention of being party to a defiance of the plans in relation to height, would be foolish enough to refer to this factor knowing that it would be read and carefully assessed by Council. It suggests to me that he held the belief that active frontages were to be "at grade" with the redeveloped areas adjoining the site at the time he wrote the introduction to the MCU application. It is more probable than not that Mr Toomey too held that belief.

[88] As I have observed, the Council's case is circumstantial. There is no direct evidence of deliberate conduct, for example, an admission or an incriminating entry in a journal, workbook or file notwithstanding an extensive disclosure process. It was open to the Council to inspect all of the many files of the respondents and their consultants. I agree with Mr Couper that it is extraordinary that a number of apparently competent professionals, and an apparently competent builder have overlooked level changes. Mr Harrison has been negligent in my opinion, and Mr Toomey has in this respect shown himself to be incompetent; but the evidence in my opinion, falls well short of establishing deliberate conduct on their part. In reaching this conclusion, I have also taken into account the adverse inference that I have drawn as a consequence of the failure of the respondents to call Mr Raadschelders.

[89] It follows that the Council's applications (a)-(e) should succeed. I am not persuaded that a declaration of the kind sought in (f) is required. In all the circumstances, it would be of no practical utility.

[90] I now turn to the declarations sought in paragraphs (g)-(h) of Council's application. I am not at all certain that s.4.1.22 of IPA permits me to make the orders sought in paragraph (g) of the application, particularly as the Court is given the discretionary power to make an order "about" a declaration made under s.4.1.21. As there was no argument advanced on this point, I will proceed on the basis that the Court does have the power. It is of no moment in the circumstances here as the Court certainly has the discretionary power to make an enforcement order in terms of paragraph (h) of the Council's application.

[91] It is common ground that the orders sought pursuant to s.4.1.22 of IPA involve the exercise of discretion.

[92] The leading authority as to the way in which the discretion should be exercised in cases such as the present is Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335. Sedevcic was applied by the New South Wales Court of Appeal in Tynam v. Meharg (1998) 101 LGERA 255. In Mudie v. Gainriver Pty Ltd & Ors [2001] QCA 382 the Court of Appeal referring to both cases at [13] said:

"The application of similar statutory powers in New South Wales when work has been performed without necessary planning approval has been considered in Tynan v. Meharg and in Warringah Shire Council v. Sedevcic. The Court's function in determining what is to be done in such cases is to perform a balancing exercise with a view to matters of both private and public interest. It is a discretionary power. Indeed, one of the principal submissions of Mr Lyons QC, who appeared for the Council and Gainriver in this matter, is that the discretion is a broad one and it cannot be shown that his Honour erred in law in arriving at the decision he did. Certain "guidelines for the exercise of discretion" were formulated by Kirby P in Sedevcic's case, and it is enough to refer to pp 339-341 of that case and to pp 259-260 of Tynan's case as useful checklists of points that will often need consideration in such matters. Among potentially relevant matters is that aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed.

"Also relevant to the discretion is the `orderly enforcement' of a `public duty' to comply with the requirements of planning laws: see Sedevcic (at 339-340; 365-366). Another way of putting this is that there is a public interest in upholding the law and seeing that it is obeyed. As Kirby P said in Sedevcic (at 340, 365), Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy ." "

[93] Of relevance here is guideline 7 in the judgment of Kirby P (as his Honour then was) in Sedevcic (at 340):

"7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v. Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved."

[94] In my opinion the circumstances that arise here that impact on the exercise of discretion and are relevant to the balancing exercise to be undertaken, can be summarised as follows:

* the nature and seriousness of the breach in the context of the DCP;

* the relevant conduct of the parties and/or their consultants;

* the town planning considerations, such as effect of the height exceedance on views, and the acceptance that a building designed as constructed would have been impact assessable and third parties would then have the rights conferred on them by IPA;

* the consequences to the respondents and entirely innocent third parties who are not parties to these proceedings, such as shareholders in the respondents, and unit holders, and persons who are now fitting out the commercial areas on the ground level;

* in this context, the decision of the respondents to proceed with construction after receipt of Mr Heiner's letter of the 19th December 2003.

[95] Having rejected the respondents' submission that the DCP and the approved plans are ambiguous, the height exceedance of 0.97m in the context of the development of the DCP and the granting of the approvals, and the emphasis on height as being a key issue in the DCP, cannot be described as minor. It is a significant breach in my opinion.

[96] I have determined that the acts and omissions of the respondents were not deliberate or reckless, rather they were incompetent. As against that, the significance of the changed levels of the Esplanade depicted in the MCU application and the approvals did not occur to Council officers either. As I have noted, their statutory role is entirely different from the role of the respondents and their consultants. The Council officers are not responsible for the design, but the fact is that they too missed the significance of this vital data. They say they did not turn their minds to whether or not the plans as approved depicted ground level at or slightly above street level. I am satisfied that they proceeded on the basis that they did - otherwise they would have called for design solutions to deal with step downs to different levels below kerb level around the site, and stormwater drainage issues would have played a much greater part. With the wisdom of hindsight, one wonders how this important issue was missed by so many experts including those from the Council. Also relevant in this context is the decision of the Council (after taking legal advice) to permit a definition of "ground level" that can only be described (as Mr Perkins suggests) as very generous. It is relevant only in this sense that obviously an exceedance of 0.97m measured against a building with an actual height of 16.5m is much greater than when measured against a building with a height from the slab of the old motel. I also regard the decision of Council - contrary to the advice of its engineer Mr Sando - to forgo an operational works stage as a relevant matter in this context. The respondents certainly did not want an operational works stage, but Council did not need much persuading for the reasons outlined by Mr Faithfull in paragraph 56 of his statement. Council accepts that the level issue would have been clearly enunciated and dealt with if there had been an operational works stage.

[97] It is a significant consequence of the height exceedance that the respondents have thereby avoided the impact assessable and "not preferred" status that would have applied if the building as constructed had been the design. Mr Faithfull makes this point in paragraph 64 of his statement. He was criticised by Mr Hughes for his apparent retreat from objectivity referred to in the hypothetical situation discussed in that paragraph, however I thought Mr Faithfull was saying that given the language of the DCP, he would have regarded that as the overriding factor influencing his assessment of the project. As against that, Exhibit 30 indicates that in all other respects, Mr Faithfull was very impressed from the town planning perspective with the MCU application.

[98] The thwarted rights of third parties is also relevant. One can speculate that the owners of the two other properties on the key site, that is Sha Na Na and Sailaway may have objected, as may other residents living up the hill whose views were affected.

[99] There was a considerable amount of untested evidence about the effect on views of the height exceedance, including the evidence of residents from further up the hill from the site, namely Mr Ferris who has a unit at "White Caps" 44 Edmund Street, Mr Hamilton who also has a unit in "White Caps" and Mr Coogan who has a unit at "Nautilus" 44 King Street (Exhibit 12). There is conflict among the town planners. Not surprisingly the planners called by the Council (e.g. Mr Faithfull, Mr Perkins) thought the exceedance was significant in terms of visual amenity, whereas Mr Schomburgk (for the respondents) thought differently. I accept that a simple visual examination of the building could not possibly detect the exceedance on such a tall building (see the evidence of Mr Bailey for example). Mr Schomburgk made the valid point that assessment of views involves considerable subjectivity. What has to be kept in mind, is that views were going to be substantially affected in any event, if the building had been built as approved by Council. At the end of the day, I am not persuaded that the exceedance will have a significant effect on either the views of other residents or general visual amenity. There is no common law right to a view: Cromar Pty Ltd & Cronin v. Brisbane City Council & Anor [1996] QPLR 84, and care has to be taken in the circumstances here not to give undue emphasis and importance to the interests of existing owners in an area such as the Kings Beach amphitheatre where views are attractive and people do not wish to have their views obstructed: Connelly's Case (1952) 19 LGR(NSW) 18. In reaching this conclusion I have taken into account the photographs annexed to Mr Ferris's statement which show the "as constructed" building, and the digitally enhanced photographs prepared by Mr Raadschelders and attached to the MCU application (16.14 - 16.19 in Volume 2 Exhibit 1).

[100] Mr Dwyer in his evidence touched directly on this issue. He was asked by Mr Hughes in cross-examination:

"Right. Now, can I ask you this Councillor Dwyer, did you believe that the demolition of the top storey of this building is an appropriate response to the height exceedance which we're discussing?-- Yes, I do, sir.

And what public benefit, if any, do you see flowing from that?-- Public benefit, first of all, for that building to go over height, I've already had other developers say to me, "This is great. If they're allowed to leave the building on that, when I come to my next development I'll just walk up and whack $125,000 on the council straight away and go over height straight away." So that -----

What do you mean -----?-- That to me shows in the community there's people out there are very unhappy that someone else in the building game may get away with going outside the scheme and only having to pay, I believe it's $125,000. From the residents in my area, I've had nothing but criticism of the development with regard to the height, even before it became apparent, through measurements being done, from people that are affected by the view and by people that aren't affected by the view. They're very disappointed, in particular, the local people, we'd be putting up a building that disregards the planning scheme for Kings Beach, where we have height levels higher, further away from the beach, and lower, so that into the future, was may be able to maintain view lines as progress happens into the future."

[101] As I have noted Mr Dwyer's Council has not prosecuted the respondents for a development offence, and the course that they have adopted, that is seeking declarations pursuant to s.4.1.21 of IPA does not enable this Court to impose fines. The discretion here is only whether or not to make the enforcement order including a demolition order as sought in Council's application. The Council's application to this Court and the subsequent delay and costly legal proceedings must, I think, send a very strong message that contravention of approvals will not be tolerated.

(v) The consequences to the respondents and innocent third parties

[102] The Council called Mr Middleton an architect, who gave evidence that it was possible to demolish level six and to finish the building (which would then have only five storeys of dwelling units) in a way that would comply with the requirements of the DCP. His proposal would necessitate the demolition of the present end unit on level five as well as the six penthouse units on level six. He acknowledged that he had not done an on-site inspection and that his opinion was purely from an architectural point of view.

[103] The respondents called Mr Bengston who is a quantity surveyor from Rider Hunt. He is intimately familiar with the project, having been employed by the respondents to provide expert services and advice from an early stage. In some respects, his evidence was challenged by Mr Couper in cross-examination, however I accept his evidence that the demolition contemplated by Mr Middleton would cost somewhere between $2.4m - $2.6m and involve at least 20 weeks of construction time. Scaffolding would have to be re-erected and heavy machinery re-introduced into the site, and great care will be needed to protect the finished areas on the levels below. Clearly there will be a further impact on the amenity of the neighbouring residents from another substantial construction (or demolition and construction) site. I accept his evidence that, because of the unique nature of the project, no builder will be prepared to give a fixed quote; rather it will be an `at cost' project with every expectation of overruns.

[104] Confidential Exhibit 19 is Mr Toomey's statement dealing with the financial consequences to the respondents, their shareholders and unit purchasers of a demolition order. He also deals with these issues in his primary statement Exhibit 14.

[105] The shareholders of the first respondent are, in the main, persons or corporate entities of persons from the Caloundra district. Some are local businessmen, and there are professional people as well as a number of superannuation funds. The second respondent holds 130,000 of the 2,489,100 shares issued. Mr Harrison through a corporate entity owns 50,000 shares. I am satisfied that the majority of the shareholders had nothing to do with the design and construction of the development. The Bendigo Bank provided a $14.3 million facility to the first respondent to complete the construction. The facility is an interest capitalising loan, with the interest component being fully drawn by the end of this financial year. Interest is accruing at approximately $3,000 per day. I am satisfied that the making of a demolition order will in all probability lead to the liquidation of both respondents with consequent loss of shareholders funds. Mr Toomey and Mr Purse (the other director of the first respondent) have personally guaranteed the bank debt.

[106] There will also be serious consequences to the end purchasers of the six penthouses on the sixth floor and the unit on the fifth level that will have to go if a demolition order is make. All 50 units in the development have been sold, and some on-sold off the plans. One sale contract (in relation to Lot 22) was tendered by the respondents. Not surprisingly, there is a registration date of July 31, 2003 beyond which the purchaser may at its option terminate the contract. Mr Toomey says that the first respondent could obtain more for the units if sold now because of an upturn in the market. I am also satisfied that a demolition order which will lead to the probable liquidation of the second respondent, will result in consequent detriment to innocent subcontrators who may then be unpaid.

[107] Undertaking the balancing exercise referred to in the authorities, I decline to make the orders sought in paragraph (h) of its application. In relation to the "catch all" paragraph (i) of the application, I did raise with Counsel the possibility of adjourning the matter (once I was satisfied that the permits had been contravened) to enable the proposal to be subject to impact assessment. In all the circumstances, I am satisfied that such a course, albeit superficially attractive, would be pointless, with little prospect of a proper resolution of the issues raised by the application.

[108] The orders of the Court are as follows - I declare:

(a) pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the height levels stipulated in the approved plans under the development permit issued by the Applicant on 4 March 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach, are Australian Height Datum height levels;

(b) pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the height levels stipulated in the approved plans under the development permit issued by Suncoast Building Approvals on 22 February 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach, are Australian Height Datum levels;

(c) pursuant to Section 4.1.21 of the Integrated Planning Act 1997 that the First Respondent and the Second Respondent have contravened the development permit issued by the Applicant on 4 March 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

(d) pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the First Respondent and the Second Respondent have contravened the development permit issued by Suncoast Building Approvals on 22 February 2002 in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

(e) pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the First Respondent and the Second Respondent have committed a development offence, within the meaning of the Integrated Planning Act 1997, in respect of the construction of a building, to be known as Shearwater Resort, at 79 Edmund Street, Kings Beach;

[109] Otherwise Council's application is dismissed.

[110] I will hear further submissions in relation to any consequential orders sought arising out of the orders made, and on the question of costs.

[111] My reasons for reaching this ultimate conclusion are set out above. To summarise, as a matter of law, I have determined that proof of a development offence (in the context of an application for declaratory relief pursuant to s.4.1.21 of IPA, or an enforcement order pursuant to ss.4.3.22 and 4.3.25) does not require proof of a mental element. I have determined that the standard of proof is the civil standard, but at the high end of the sliding scale contemplated in Briginshaw. I have found on the evidence that I cannot be satisfied, that in overlooking the raised levels of the Esplanade, and in constructing the sub-basement contrary to the levels in the approved plans, the respondents acted deliberately or recklessly and in contumelious disregard for the approval conditions. I am satisfied that their conduct was negligent. I have rejected the submissions of the respondents that the approvals were ambiguous; and I have not accepted their arguments that the approvals properly construed required the building to be constructed "generally" in accordance with the approved plans.

[112] The Council acknowledges that I have no power to impose pecuniary penalties under s.4.1.21 of IPA.

[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.