Bundy woman loses to council in court over dual house drama
A QUEENSLAND judge has ruled against a woman appealing an enforcement notice issued by Bundaberg Regional Council.
Kalkie resident Katherine Lalis took the council to court on May 15 after she was given an enforcement notice insisting she stop using an unauthorised dwelling on her land.
The notice, issued on October 20, alleged that Ms Lalis committed a development offence by carrying out assessable development without the necessary permits.
The Mandi Ct property was built about 18 months ago and includes two dwellings, each of which services a different household.
According to Section 163 of the Planning Act 2016, the maximum penalty for not having the necessary permits when carrying out assessable development is $548,550.
One month after receiving the enforcement notice, Ms Lalis filed an appeal in the Planning and Environment Court of Queensland.
This month the court heard Ms Lalis disagreed with the council's assertion that her land was being used as a dual occupancy.
Instead, she argued the second dwelling was subordinate to the first and used in conjunction with the other dwelling.
Judge Nicole Kefford noted that each of the lot's dwellings had separate, fenced off backyards, separate street addresses displayed and their own mailboxes, waste collection bins, kitchens, bedrooms, laundries, bathrooms and front doors.
Each dwelling was also advertised for rent, and had been rented, as separate dwellings.
Barrister James Lyons, however, said that because one of his client's dwellings was smaller than the other, and that both were separated by a common wall and shared one mains water and one mains electricity connection, the second dwelling was subordinate to the other.
But Judge Kefford disagreed and said "Matters such as the dwellings being located on the same parcel of land and structural integration fall well short of demonstrating that the dwellings are being used in conjunction with each other."
"I am satisfied that the smaller dwelling is not being used subordinate to the other."
"The use of the subject land is for dual occupancy, not a dwelling house and associated dwelling."
During the hearing, Judge Kefford also assessed whether the enforcement notice issued to Ms Lalis should be set aside for discretionary purposes.
Mr Lyons argued his client would not have proceeded with the investment and bought the land if she'd known that she wouldn't be able to let the premises out separately.
Judge Kefford said while he did not view Ms Lalis's use of her land as a deliberate defiance of the planning law, it was her choice not to get legal advice about using the land as a dual occupancy.
"I am unpersuaded that this is a sufficient basis to permanently stay the enforcement notice," she said.
"For those reasons, I am satisfied that council ... is entitled to have the appeal dismissed."