Court found that the wholesale nursery was an existing lawful use and no approval was required

In brief

In Allen & Anor v Cairns Regional Council & Anor [2015] QPEC 28, Mr Barry Allen and Edgewill Pty Ltd made an application to the Planning and Environment Court for a declaration in respect of the lawfulness of the wholesale nursery on land located at 29-31 Zanzoo Close, Crystal Cascades, Redlynch.

The court found that the wholesale nursery was an existing lawful use under section 681 of the Sustainable Planning Act 2009 and the development application for the wholesale nursery was not required.

Court was required to satisfy itself that the wholesale nursery fitted within the definition of agriculture under the 1978 town planning scheme and that it commenced before 29 November 1996

Until 29 November 1996, the land was zoned Rural Residential A under the Town Planning Scheme for the Balance of the Shire of Mulgrave gazetted in July 1978 under the Local Government Act 1936. Agriculture on the land would have been lawful under the 1978 town planning scheme without the consent of the council.

The various town planning schemes commenced on and from 29 November 1996 would have required a development approval to be obtained to lawfully carry out agriculture on the land. Accordingly, the court had to be satisfied that the wholesale nursery commenced prior to 29 November 1996 and fitted within the definition of agriculture under the 1978 town planning scheme.

Mr Allen demonstrated and satisfied the court that through his continuous activities on the land the wholesale nursery commenced its use on the land before 29 November 1996

The court was satisfied that the wholesale nursery commenced before 29 November 1996 based on the evidence of a series of continuous activities carried out by Mr Allen since the early 1990s up to 29 November 1996, which included the several years of planting stock in the ground, the maintenance of growth plants with irrigation, mulching, fertiliser and weeding, a large portion of the land being used for nursery purposes, increased planting of dracaenas, propagation of dracaenas in pots and sale of pots.

Court was satisfied that the primary use of the land was agriculture and that it was a lawful use in November 1996

The owners of the neighbouring land submitted that the propagation process was the dominant use of the land and the growth of the dracaena stock was an incidental use. It was asserted by the owners that the "cutting of the canes from the mother stock in combination with the propagation phase was 'Rural Industry'" (at [69]) and as such it was not a lawful use.

The court disagreed with the neighbouring landowners' assertions. The court was of the view that the primary use of the land was for growing stock and the propagation phase formed part of the growing phase. The cutting of the canes was incidental to the primary use of the land. Accordingly, it was satisfied that the use of the land was agriculture, which was lawful in November 1996.

Court was not satisfied that there had been material intensification or abandonment of the wholesale nursery use

The neighbouring landowners asserted that there had been material intensification of the use of the land after 30 March 1998 or abandonment of the use in 1993 and 2013.

The court found that there had not been material intensification of the use for the following reasons:

• since 1994, the proportionate use of the land for the purpose of wholesale nursery had remained roughly the same
• there had not been an increase of the volume of the production of pot plants
• there had been a consistent number of deliveries of mulch, fertiliser and potting mix
• the volume of pesticides or herbicides sprayed and vehicles or equipment used on the land had not been increased

The court also found that the use of the wholesale nursery was not abandoned even though the previous company owned by Mr Allen was liquidated in 1993, so long as the use commenced before and was continuing after 29 November 1996. The asserted abandonment in 2013 was not consistent with the evidence.

Court found that the past use of a shade house without a building approval would not warrant a refusal of making the declaration sought in this case

The neighbouring landowners sought to submit that the shade house was unlawfully erected on the land. Based on the evidence before the court, it was not satisfied that the shade house was unlawful.

Nonetheless, the court did not consider that Edgewill Pty Ltd had wilfully not obtained a building approval and where such approval was required, the council could take remedial actions.

In any event, the court was not persuaded that the previous use of the shade house constructed on the land without a building approval, if that was the case, would warrant a refusal of making the declaration sought.