Queensland Court of Appeal dismissed an appeal in relation to a development approval to regularise the use of a site for, relevantly, "driving instructing"

In brief

The case of Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82 concerned an appeal by Ashtrail Pty Ltd and Talranch Pty Ltd (Applicants) to the Queensland Court of Appeal against the decision of the Planning and Environment Court (P&E Court), in relation to enforcement proceedings brought by the Council of the City of Gold Coast (Council). The decision of the P&E Court was that:

• the Applicants' development approval for a material change of use for Service Industry Type B (Driver Instructing and Commercial Equipment Hire), Motor Vehicle Repair Station and Environmentally Relevant Activity (ERA 28 – Motor Vehicle Workshop) (2010 Development Approval) had not lapsed;

• conditions 5, 6, 10, 12 and 16 of the 2010 Development Approval, which related to the payment of contributions, design and construction of infrastructure, and land dedication, had not been complied with; and

• the Applicants' non-compliance with the conditions of the 2010 Development Approval constituted a development offence under section 164 of the Planning Act 2016 (Qld) (Planning Act).

The Applicants appealed the decision of the P&E Court to the Court of Appeal on the basis that the P&E Court had erred on the grounds discussed below. The Council did not oppose grounds one to five, however, the Council opposed the further grounds.

Ultimately, the Court of Appeal granted leave to appeal in respect of grounds one to five, refused leave to appeal for the further grounds and dismissed the appeal with costs.

Ground 1, that the P&E Court erred in finding that the 2010 Development Approval had not lapsed (non-compliance with conditions), failed as compliance with the conditions requiring payment of infrastructure contributions were not pre-conditions to commencing the use

Section 341(1) of the now repealed Sustainable Planning Act 2009 (Qld) (SPA) relevantly states that an approval for a material change of use lapses if the first change of use under the approval does not start within four years from the date the approval takes effect. The 2010 Development Approval took effect on 15 February 2010.

The Applicants argued that the 2010 Development Approval lapsed because the payment of the infrastructure contributions under conditions 5 and 6 of the 2010 Development Approval was a precondition to the commencement of the use of the premises the subject of the 2010 Development Approval (Premises). The Applicants did not pay the infrastructure contributions required by conditions 5 and 6 of the 2010 Development Approval and therefore argued that the use of the Premises did not commence.

The Court of Appeal construed the terms of the 2010 Development Approval including conditions 5 and 6 and considered the contextual circumstances of the Applicants, relevantly that the 2010 Development Approval was made to regularise an unlawful use of the Premises and that a material change of use in respect of the Environmentally Relevant Activity (ERA 28 – Motor Vehicle Workshop) commenced immediately.

The Court of Appeal agreed with the P&E Court and held that the wording of conditions 5 and 6 did not require payment of the infrastructure contributions as a precondition to the commencement of the use under the 2010 Development Approval. Therefore, the 2010 Development Approval did not lapse when the Applicants failed to pay the infrastructure contributions in accordance with the relevant conditions.

Ground 2, that the P&E Court erred in finding that the 2010 Development Approval had not lapsed (departure from approved plans), failed as the departure from the approved plans was not determinative

After considering the "as constructed" development and the approved plans attached to the 2010 Development Approval, the P&E Court concluded that the "as constructed" development departed from the approved plans in a way that was not minor.

The Applicants argued that the 2010 Development Approval had lapsed under section 341(1) of the SPA because the Applicants failed to comply with condition 1 of the 2010 Development Approval, which required the development to be carried out generally in accordance with the approved plans and drawings, and therefore the use of the Premises had not commenced.

The Court of Appeal agreed with the P&E Court that the departure from the approved plans was not determinative of whether an increase in the intensity or scale of the use of the Premises had occurred.

Ground 3, that the P&E Court erred in finding that the Limitation of Actions Act 1974 did not apply, failed as the character of the proceedings was not one for which the Limitation of Actions Act 1974 applied

The Applicants argued that the P&E Court erred by finding that section 10(1)(d) of the Limitation of Actions Act 1974 (Qld) (LAA) did not apply to an application to the P&E Court, which seeks an enforcement order pursuant to section 180 of the Planning Act in circumstances where the application is made more than six years from the date on which the cause of action arose.

Section 10(1)(d) of the LAA provides that an action to recover a sum of money recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action arose.

The Court of Appeal concluded, in agreement with the P&E Court, that the character of the proceedings did not come within section 10(1)(d) of the LAA as the proceedings related to declaratory relief for an enforcement order to compel the correction of a development offence, not the recovery of a sum of money. The Court of Appeal therefore determined that ground 3 failed.

Ground 4, that the P&E Court erred in finding that the Acts Interpretation Act 1954 did not apply, lacked merit as any delay by the Council did not bar the enforcement proceedings and did not result in prejudice to the Applicants

The Applicants argued that the P&E Court erred in finding that section 38(4) of the Acts Interpretation Act 1954 (Qld) (AIA) did not apply to the Council's delay of several years in bringing the application to the P&E Court for enforcement orders.

The Court of Appeal agreed with the P&E Court that section 38(4) of the AIA does not operate as a limitation of or bar to the institution of proceedings, and given that the Applicants' non-compliance constituted a continuing breach of the obligation to pay the contributions stated in the conditions of the 2010 Development Approval, there was no prejudice caused by the Council's delay. The Court therefore determined that ground four lacked any merit.

Ground 5, that the P&E Court erred in construing the term "driving instructing" to include both trucks and plant and equipment, failed as the construction approach submitted by the Applicants was artificial

"Driving instructing" was stated in the 2010 Development Approval to be part of the previous use of the Premises. "Driving instructing" was not defined in any relevant planning scheme, and was therefore construed by the P&E Court.

The Applicants argued that the P&E Court erred in construing the term "driving instructing" to include instruction in all forms of trucks as well as instruction in the operation of plant and equipment. The Applicants also argued that the P&E Court did not give adequate reasons for so constructing the term "driving instructing".

The Court of Appeal considered the P&E Court's findings and conclusions and agreed with the P&E Court that the term "driving instructing" in the relevant circumstances went beyond trucks to include instruction in plant and equipment. Several reasons were given in support of the Court of Appeal's conclusion, which relevantly included that the separation between trucks and plant and equipment was artificial as the development application for the 2010 Development Approval was made on the basis that the proposed use covered both categories of instruction.

The Court of Appeal also stated that the Applicant's allegation that the P&E Court had to quantitatively determine the level of driver training occurring at the time the 2010 Development Application was given in order to reach a conclusion about whether there was an increase in the intensity or scale was unsupportable. The Court of Appeal went on to state that the assessment of whether an increase of intensity occurred could be done qualitatively. Ground five was therefore also found by the Court of Appeal to fail.

Leave to raise further grounds of error was refused because the errors contended by the Applicant were in respect of findings of fact

The Court of Appeal also considered three further arguments by the Applicants, however, the Court of Appeal held that "these three proposed grounds amount to an appeal based on challenging factual findings, which is not open on an appeal from the [P&E Court]" at [121]. The Court of Appeal did not grant leave to raise those grounds.

Conclusion

The Court of Appeal granted leave to the Applicants to appeal in relation to five grounds of appeal and otherwise refused leave to appeal on the remaining proposed grounds of appeal. After considering the relevant grounds of appeal and determining that every ground failed, the Court of Appeal dismissed the appeal with costs.