Enforcement orders issued to remedy significant risks posed by unlawful carport and photovoltaic solar panels structures

Gold Coast City Council v Bush & Anor – What’s the case about? The Planning and Environment Court delivered a decision in the case of Gold Coast City Council v Bush & anor [2017] QPEC 29 which involved an application made by Gold Coast City Council to the Court seeking an enforcement order under section 604 of the Sustainable Planning Act 2009 requiring Irene and Ian Bush to remove or regularise the following structures which were constructed without the necessary development permits and said to be dangerous:

• carport structure attached to a dwelling on the premises;
• timber supporting structure for photovoltaic solar panels constructed on the roof of the dwelling on the premises.

Through aerial photography, the Council established that the carport structure was constructed between 26 June 2008 and 30 April 2009 and the structure supporting the photovoltaic solar panels was constructed in November 2011.

The Council also commissioned a building certifier to prepare a report in relation to the structures. The certifier’s findings were that both structures were considered dangerous as in his view they did not comply with the current standards and consequently both structures posed a significant risk to the residents and the community.

The Council contended that:

• the structures were assessable development at the time they were constructed and its records indicated that no development permits were obtained for the works;
• Ms Bush was responsible for causing the carport structures to be built as at the time she was the registered owner and was residing at the premises during the relevant construction period;
• Mr and Ms Bush were responsible for the construction of the structure supporting the photovoltaic solar panels as at the time she was the registered owner and was residing at the premises but Mr Bush was her carer and also resided at the premises during the relevant construction period.

Mr and Ms Bush contended in response that:

• the carport structure was constructed by the previous owner and neither of them were responsible for such work however, they were not able to put sufficient evidence before the Court to support the contention;
• he was responsible for arranging the contractors to construct the structure for the photovoltaic solar panels;
• they would do what was necessary to achieve compliance in relation to both structures.

The Court had regard to the evidence put forward by both parties and held that it was appropriate to exercise its discretion and make the enforcement orders, as:

• at the time the structures were constructed the works constituted assessable development for which no development permit was obtained;
• Mr and Ms Bush were both responsible for the construction of the structures;
• the structures represented an ongoing risk.

Snapshot of the Court’s consideration and findings

The Court noted that in order to make an enforcement order pursuant to section 604 of the Sustainable Planning Act 2009, it must be satisfied that an offence has been committed. The offence alleged by the Council was that Mr and Ms Bush carried out assessable development without an effective permit. As part of establishing the offence, the Council was required to establish the time when the work occurred and that as of that time it was an offence.

Construction of the carport

The construction of the carport dated back when the Integrated Planning Act 1997 was still in force and it was necessary to determine whether the construction of the carport was assessable development under that Act.

The Council, through evidence of the building certifier, contended that the structure was a class 10a structure and the structure involved building work which was assessable development as it exceeded certain parameters under the Building Regulation 2006.

Mr and Ms Bush offered no evidence to the contrary. However, Mr Bush contended that the previous owner of the premises constructed the structure. The Court considered the affidavit material of Ms Bush, but noted that the evidence contained in the affidavit supported the Council’s contentions that she was in possession of the premises at the time the structure was constructed. At the very least, she was a party to the offence, but most probably the one who engaged contractors to have the carport constructed.

Construction of the structure for photovoltaic solar panels

The construction of the structure for photovoltaic solar panels was carried out while the Sustainable Planning Act 2009 was in force. The Council, through evidence of the building certifier, contended that the structure was a class 10 structure or alternatively a special structure, the building work associated with the structure was assessable development as the works were not exempt or self assessable under the Building Act 1975 or Building Regulation 2006.

Mr and Ms Bush offered no evidence to the contrary and he submitted that he was responsible for arranging the contractors to carry out the works.

Enforcement orders

The Court was satisfied that the enforcement orders ought to be made, having considered the report of the building certifier which concluded that the structure did not comply with current standards and posed a significant risk, the cost involved in achieving compliance, and the risk of the structure not being approved by the Council.

Points worth noting

The Court’s power to make an enforcement order is discretionary, and matters which the Court may consider when determining whether to make the order include the risk the unlawful structure may pose to the residents and the community.