In brief

The case of Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 003 involved a dispute about the use of a property within the rural zone of the Bowen Shire Planning Scheme for temporary accommodation. 

In particular, the Whitsunday Regional Council sought the following declaration and enforcement order against Branbid Pty Ltd, which had ignored previous show cause and enforcement notices:
  1. A declaration that Branbid Pty Ltd was committing a development offence to the extent that it was providing temporary accommodation without an effective development permit.
  2. Enforcement order, on an interim and permanent basis, requiring Branbid Pty Ltd to:
(a) cease committing the development offence without first obtaining an effective development permit; and
(b) return the land to the condition it was in prior to the development offence occurring.

Branbid Pty Ltd argued that the temporary accommodation was a temporary use incidental to and necessarily associated with a continuing pre-existing lawful use.

The Court declined to make an order requiring remediation work on the basis that there was no evidence before the Court as to any change in the condition on the land.

The Court did, however, find that a development offence had been committed and in making that finding considered the following matters:
  1. What was the proper classification of the use of the land?
  2. Did the use of the land constitute 'assessable development' that required a development permit?
  3. Were declarations or enforcement orders appropriate in the exercise of the Court's discretion?

What was the proper classification of the use of the land?

The Court identified the following relevant principles:
  1. The Whitsunday Regional Council bore the onus of proof to show that a development offence had been committed.
  2. Branbid Pty Ltd bore the onus of proof to show that the use being carried out was a temporary use incidental to and necessarily associated with a continuing pre-existing lawful use.
In respect of the first principle, the Whitsunday Regional Council tendered photographs which depicted a number of campervans, tents, and other vehicles, some with trailers, present on the land.

In respect of the second principle, Branbid Pty Ltd tendered no evidence other than its own anecdotal evidence that there was a pre-existing use right for a cattle sale yard in relation to the land, with temporary accommodation being incidental to that use.

The Court was not persuaded by the anecdotal evidence of Branbid Pty Ltd and held that, even if there had been such a pre-existing use right established, the temporary accommodation activity described by Branbid Pty Ltd was not incidental to and necessarily associated with the use of the land for a cattle sale yard.

The Court was not satisfied, on the balance of probabilities and on the evidence before it, that there was a pre-existing use right to which temporary accommodation was incidental to and necessarily associated with.

Did the use of the land constitute assessable development that required a development permit?

The Court held that the use of the land for temporary accommodation constituted a new use being a 'material change of use' of the premises requiring a development permit because temporary accommodation was not exempt development or self-assessable development in the rural zone.

The Court therefore found that Branbid Pty Ltd was and had been carrying out assessable development without an effective development permit and was therefore committing a development offence.

Were declarations or enforcement orders appropriate in the exercise of the Court's discretion?

In considering whether it was appropriate for the Court to exercise its discretionary powers to make declarations and enforcement orders, the Court reflected (at [27]) upon the observations of Kirby P, as he then was, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, namely:
 "… the need to consider the clear legislative intent of planning law to promote integrated and co-ordinated development, observing that if unlawful exceptions and exemptions became condoned by the court’s exercise of discretion not to enforce the law, the equal and orderly enforcement of planning law would be undermined, with a concomitant sense of inequity felt by those who complied with the requirements of the law, or failed to secure similar favourable exercises of discretion. 
… where the application for enforcement of the planning law is made by a Council, a court may be less likely to deny equitable relief, than it would in litigation between private citizens, because the Council are seen as the proper guardians of public rights; its interest is deemed to be protective and beneficial, not private or pecuniary.
"

The Court also had regard to the show cause and enforcement notices issued by the Whitsunday Regional Council to Branbid Pty Ltd, as well as Branbid Pty Ltd's subsequent non-compliance.

In the circumstances, the Court was satisfied that it was appropriate to make the declaration and enforcement orders sought as they were necessary to empower the Whitsunday Regional Council with the requisite authority to discharge its public duty of managing development, including managing the use of land or premises, within its local government area and in accordance with its 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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