In brief

The case of Chong & Anor v Logan City Council [2015] QPEC 12, concerned an appeal in the Planning and Environment Court against the decision of Logan City Council to refuse the landowners, Tyam Heong Chong and Chin-Jui Yang's claim for compensation under section 705 of the Sustainable Planning Act 2009 arising from the change to the council's planning scheme.

The court found that a public purpose was not the only purpose for which the land could be used as a result of the change to the council's planning scheme and as such the landowners were not entitled to a compensation under section 705 of the Sustainable Planning Act 2009.

Council carried the onus to establish that the land could be used for a public purpose only after the change to the council's planning scheme, other than the purpose for which it was being used when the change was made

Section 705 of the Sustainable Planning Act 2009 provides that "an owner of an interest in land is entitled to be paid reasonable compensation by a local government if because of a change the only purpose for which the land could be used, other than the purpose for which it was lawfully being used when the change was made, is for a public purpose".

The council carried the onus to establish that the landowners' appeal should be dismissed. In order for the council to be successful, the council must establish that the land could be used for a public purpose only, after the change to the council's planning scheme, other than the purpose for which it was being used when the change was made.

Based on the parties' submissions, the primary matters that the court had to decide were as follows:
  • whether the code assessable use for a "home business", which was available for the land after the change to the council's planning scheme, was a use for the purpose for which the land was being used when the change occurred
  • whether the code assessable use for a "restaurant" or "food outlet" if carried out with but incidental and subordinate to a public recreation or nature-based recreation activity, which was available for the land after the change to the council's planning scheme, was a use for a public purpose

Court found that a home business use involved no change to the purpose for which a dwelling house was used and as such it was a use for the purpose for which the land was being used when the council's planning scheme was changed

The court first considered whether a home business was a use for the purpose for which the land was being used when the change to the council's planning scheme was made.

The land was being used for a residential dwelling at the time of the change. The court accepted the landowners' submission that a home business was a residential use, which must be subordinate to the residential use of the premises by a person who resided in the dwelling unit permanently.

Since a home business was a component or aspect of a residential use, the court was of the view that "starting a home business involves no change to the purpose for which a dwelling house is used". On that basis, the court concluded that a home business was a use of the land for the purpose for which the land was being used at the time of the change to the council's planning scheme.

Court found that a restaurant use in a park could be for a commercial purpose and therefore was satisfied that the land could be used for a purpose other than only a public purpose after the change of the council's planning scheme

The court then considered whether a use for a restaurant or food outlet subject to being "carried out with but incidental and subordinate to a public recreation or nature-based recreation activity" was a use for a public purpose.

Whilst the court acknowledged that the words "carried out with but incidental and subordinate to" had the effect of defining and limiting the available use, it was of the view that in the context of a restaurant in a park, the restaurant and the park could be "appropriately described as two complementary uses and two complementary purposes". For a restaurant, the most appropriate description of the purpose would be a commercial purpose. On that basis, the court was satisfied that the land could be used for a purpose other than only a public purpose.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

Related Articles