Gold Coast City Council (Council) issued an enforcement notice to the owner of a lot in a community title scheme (CTS). The lot adjoins a buffer area, which is common property of the CTS (the Buffer Area), and borders Saltwater Creek in Helensvale. Pursuant to the community management statement for the CTS, the lot owner has exclusive use rights for the part of the common property comprising the buffer area.
It was alleged by Council that the owner of the lot had committed a development offence by erecting fencing and play equipment in the buffer area contrary to the development approval that created the CTS.
The Buffer Area was subject to a registerable planning covenant and a coastal management program for the buffer to Saltwater Creek.
The conditions of the original subdivision approval required the then applicant to comply with the relevant registrable planning covenant and the coastal management program for the buffer to Saltwater Creek, which effectively prohibited the erection of buildings and structures in the Buffer Area.
The lot owner filed an appeal in the Planning and Environment Court against the Council’s enforcement notice, alleging (amongst other matters) that she could not be shown to have committed a development offence as the conditions of the original subdivision approval did not attach to her lot but rather the land the subject of the Buffer Area (which was common property).
The Council and the lot owner engaged in correspondence for some months after the filing of the appeal which eventually resulted in the Council withdrawing the enforcement notice.
The issue in the proceedings then became a matter of costs.
The lot owner argued that in the context of the appeal against the Council’s enforcement notice, costs should be awarded against Council for the following reasons:
The Council argued against costs being ordered for the following reasons:
Costs are confined to sections 59 and 60 of the Planning and Environment Court Act 2016 (PEC Act). While the default position is that each party bear its own costs, this may be varied in one or more of the scenarios contemplated in section 60.
In Favero v Council of the City of Gold Coast  QPEC 61, His Honour Judge Kent QC, DCJ held that the lot owner could not be shown by Council to have been the proper respondent to the enforcement action taken by Council. It was also observed that the appeal had proceeded at a leisurely pace since it was filed by the owner.
Overall, His Honour could not accept that on the evidence that the proceeding was started or conducted primarily for an improper purpose, including, for example, to delay or obstruct (section 60(1)(a) of the PEC Act).
However, in respect of whether the proceedings were frivolous or vexatious (section 60(1)(b)) of the PEC Act, His Honour Held at para  that:
“… the enforcement notice and the initial resistance to the appeal are within the category of “frivolous and vexatious” in circumstances where the basic flaw in the notice, apparently fatal to its prospects, should have been known to, or ascertained by, the respondent before giving it. In all the circumstances the application for costs is allowed. The respondent will pay the appellant’s costs of the appeal including this application on the standard basis.”
The costs application against Council was allowed.
This decision highlights the importance of ensuring that enforcement action for alleged development offences is only taken against the proper party and that costs can be awarded against the enforcement authority if action is taken against the wrong person.
For recipients of an enforcement notice, it pays to check the basis on which the enforcement notice has been issued. Although each case will turn on its own facts and circumstances, recipients of an enforcement notice should not accept at face value the basis upon which an authority has initiated enforcement proceedings.
Equally, enforcement authorities need to carefully identify the person responsible for an alleged offence and ensure that action is only taken against a proper respondent.
The Court has demonstrated that it will order costs against a council if it resists an appeal where a flaw in an enforcement notice could be fatal to its prospects, despite early resolution.
Stafford Hopewell, Partner
Sarah Day, Associate