In brief

The case of Carrigan v Goondiwindi Regional Council [2016] QPEC 8 concerned an appeal commenced by Grant Carrigan against the decision of Goondiwindi Regional Council to refuse a development application for building work for a new shed which had already been constructed on Mr Carrigan’s land.

The Court was requested to determine two preliminary issues, namely whether the use of the new shed constituted a material change of use; and if so, whether the use fell within the definition of a detached house or storage facility under the Waggamba Shire Council Planning Scheme 2006, or alternatively whether it was not a defined use under the planning scheme.

The Court found that the use of the new shed constituted a material change of use but fell within the definition of a detached house under the planning scheme.

Council refused a development application for building works which was lodged to regularise the construction of a new shed without the requisite development approval

A shed of 135m2 with a height of 5m was lawfully constructed on Mr Carrigan’s land and used for "home industry (machinery storage)" under an approval given in 2002. In 2012, a development application for a material change of use for an extension of the machinery shed and the construction of a helicopter landing site was lodged with the council. The proposal was to store helicopters in the extended machinery shed.

While the application was being assessed, Mr Carrigan demolished the machinery shed and constructed a new shed without obtaining any approvals for building work or a material change of use. The new shed was 454.8m2 with a height of 7.6m, which was materially larger than the old machinery shed and the proposed extended machinery shed.

In 2014, Mr Carrigan lodged a development application for building work for the new shed seeking to "…regularise his unlawful conduct in constructing the new shed without the necessary development permit…" (at [10]), which was subsequently refused by the council.

Court found that the new shed was not a storage facility but rather it was predominately used for personal storage purposes

The Court first dealt with the council’s contention that the use of the new shed was a storage facility for the purposes of the planning scheme. The council sought to rely on the size of the new shed and a number of circumstantial matters such as the character and previous conduct of Mr Carrigan to support its contention.

Based on the evidence before the Court, it was not satisfied that use of the new shed was a storage facility. Rather, in the Court’s view, the intended use of the new shed was predominantly for personal storage purposes which would include "…the storage of large 4WD vehicles and other typical plant and equipment associated with large rural residential properties…" (at [27]). The council’s contention was therefore rejected.

Court found that the additional storage space of the new shed constituted a new use of premises

In considering whether a new use was introduced, the Court noted that approximately 135m2 of the new shed would be used for home industry purposes in accordance with the 2002 approval. As such, any new use would relate to the additional storage space of approximately 319 m2.

While the Court acknowledged that the additional storage space would be used to store personal plant and equipment, it would constitute a new use of the premises and therefore a material change of use for the purposes of the Sustainable Planning Act 2009.

Court was satisfied that the home industry use was abandoned in 2012 and the use of the new shed was a re-establishment of a use that had been abandoned

The Court then considered whether the intended use constituted a re-establishment of an abandoned home industry use. By reference to Leeming v City of Port Adelaide [No. 2] (1987) 62 LGRA 296, the Court observed that one must have regard to what is taking place on the land to determine whether an existing use continues or has been abandoned and the intention and conduct of the owner or occupier of the land were relevant considerations.

Having regard to Mr Carrigan's 2012 development application, the Court was of the view that Mr Carrigan had no intention to maintain the home industry use. Further, the Court observed that Mr Carrigan had not offered any explanation why the old shed was demolished had it been Mr Carrigan’s intention to maintain the home industry use.

In the Court’s view, the home industry use was abandoned in 2012 and did not accept Mr Carrigan’s proposition that the home industry use had continued other than the short period between the demolition of the old shed and the construction of the new shed. On this basis, the use of the new shed constituted a material change of use for the purposes of the Sustainable Planning Act 2009.

Court found that the use of the new shed constituted a material increase in the scale, but not the intensity, of the use

In determining whether there was a material increase in the intensity or scale of the use of the premises, the Court did not consider that there was a material increase in the intensity of use just because of the size of the new shed and the hardstand area, particularly in the context of a rural residential situation.

However, the Court found that there was a material increase in the scale of the use in that the footprint of the new shed was three times bigger and 50% higher than the old shed.

Even though the scale of the new shed was excessive, the court was satisfied that the use of the new shed could be properly characterised as being incidental to and necessarily associated with the use of the land for a detached house

Given that the Court found that the use of the new shed amounted to a material change of use, it had to determine whether it fell within the definition of a detached house under the planning scheme.

The Court considered the meaning of "use" which was defined under the Sustainable Planning Act 2009 to include "any use incidental to and necessarily associated with the use of the premises".

In the context of a large rural residential lot, the Court was of the view that the use of the new shed could be properly characterised as being incidental to and necessarily associated with the use of the land for a detached house whilst noting that the scale of the new shed was excessive and was more than that contemplated under the planning scheme.

The Court therefore concluded that the use of the new shed fell within the definition of a detached house for the purposes of the planning scheme.

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.

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