The case of Bundaberg Regional Council v Chkorbatov [2026] QPEC 39 (‘BRC v Chkorbatov’), decided on 14 October 2026, highlights the importance of obtaining the necessary development approval before undertaking earthworks on a property. The decision considers when filling and excavation constitute assessable development and the circumstances in which Council may seek enforcement action against unauthorised works.
Legislative Background
Under section 163(1) of the Planning Act 2016 (Qld), a person must not carry out assessable development unless all necessary development permits are in effect. Assessable development can include operational work, such as filling and excavation, where the work materially affects premises or their use.
Whether filling and excavation require development approval depends on the applicable local planning scheme, including its assessment tables and any relevant overlays. In particular, earthworks may be subject to additional assessment requirements where land is affected by a Flood Hazard Overlay.
Where assessable development is carried out without the necessary development permit, Council may apply the Planning and Environment Court for enforcement orders under section 180 of the Planning Act 2016 (Qld). These orders can require the responsible parties to stop the unlawful development and, where practicable, restore the land.
Recent Application
The case of BRC v Chkorbatov concerned earthworks undertaken on two adjoining properties in Woodgate, Queensland. The works involved excavating soil, primarily from one property, and using it to fill a nearby gully or depression located along the common boundary between the properties. The works were arranged by one property owner and undertaken by a contractor, without the necessary development permits. The owner of the second property had not consented to the works being undertaken on her land.
Following complaints from members of the public, Bundaberg Regional Council (‘Council’) investigated the works and commenced enforcement proceedings in the Planning and Environment Court. The Court found that the earthworks had materially changed the natural ground levels and contours of both properties, altering overland water flow paths and contributing to water ponding on surrounding properties.
The Court considered the assessment requirements under the Council’s planning scheme and found that the works did not qualify as accepted development. This was because the excavation and filling exceeded the applicable volume thresholds, and did not meet other criteria for accepted development. Both properties were also subject to a Flood Hazard Overlay, which independently made the works code assessable. As no relevant development permits or applicable exemptions were in place, the works were found to be assessable development carried out without a necessary development permit, contrary to section 163(1) of the Planning Act 2016 (Qld).
The Court’s Reasoning
In determining whether an offence had occurred, the Court considered the meaning of operational work under Schedule 2 of the Planning Act 2016 (Qld). Operational work is defined as ‘work, other than building work or plumbing work or drainage work, in, on, over or under premises that materially affects premises or the use of premises’.
The Court also considered this definition from the Council’s planning scheme definitions of filling or excavation, which refer to the removal or importation of material that changes the ground level of a lot. The Court was satisfied that the works fell within both definitions, as they materially changed the natural contours and ground levels of the properties.
The Court then examined the relevant assessment tables within the Council’s planning scheme to determine whether the works could be classified as accepted development. It found that the works exceeded the applicable excavation and filling thresholds and did not satisfy the other requirements for accepted development. Consequently, code assessment was required. The Court further considered the Flood Hazard Overlay, finding that the works were separately code assessable under the overlay because they were not identified as accepted development.
Having established that the works constituted assessable development and that no development permit had been obtained, the Court found that an offence had been committed under section 163(1) of the Planning Act 2016 (Qld).
The Court also considered whether the unlawful works could be regularised through a development application. However, it accepted engineering evidence that a partial solution, addressing each property separately, was unrealistic. The Court was therefore satisfied that enforcement orders were appropriate to secure compliance with the Act
The Court ultimately ordered the affected land to be restored, as far as practicable, to its condition before the unlawful works were undertaken, with the restoration to be completed by 14 December 2026.
We can help
Milne Legal has extensive experience in QPEC appeals in a wide range of planning and environmental law matters. If you have any queries or concerns and would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.