In brief

The case of Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52 concerned an application to the Planning and Environment Court seeking declaratory and consequential relief, and enforcement orders regarding the use of a public park for overnight parking of Recreation Vehicles (RV).

Caravan Parks Association of Queensland Limited (CPAQ) commenced proceedings in the Planning and Environment Court against the Rockhampton Regional Council (Council) alleging that the use of a public park (Kershaw Gardens) for RV accommodation was unlawful under the Planning Act 2016 (Planning Act). 

Kershaw Gardens is controlled by the Council and comprises two contiguous lots which are dedicated to park and recreation purposes. The RV accommodation use was located within one of the two designated carparks in Kershaw Gardens and began in 2014. 

CPAQ alleged a development offence was being committed as a consequence of the use of Kershaw Gardens for RV accommodation. 

The definition of "use" in the Planning Act was central to the Council's case. The Council contended that the existing use of Kershaw Gardens was as a single planning unit, characterised by its dominant purpose, being a park.

CPAQ alleged that RV accommodation was a separate and distinct use to the dominant purpose of Kershaw Gardens and that no development permit existed to authorise that use. 

The Court found it was necessary to examine the following issues:

  • what is an ancillary use?
  • is RV accommodation an ancillary use of Kershaw Gardens?
  • had section 163 of the Planning Act been contravened and a development offence committed?
  • had section 165(a) of the Planning Act been contravened and a development offence committed?

The Court relevantly determined the following:

  • The RV accommodation was not an ancillary use as it was not evident that a functional relationship existed between the accommodation use and the park use.
  • Section 163 of the Planning Act had not been contravened as the RV accommodation use predated the operation of the section.
  • The continuation of the RV accommodation use was not a lawful use and constituted a development offence under section 165(a) of the Planning Act. 

The Court granted enforcement orders intended to bring the RV accommodation use to an end. The Court declined to award the declaratory and consequential relief sought by CPAQ under section 11(1)(c) of the Planning and Environment Court Act 2016 (PECA). 

Importantly, the Court determined that section 163 of the Planning Act is not open to development offences involving the "carrying out of assessable development" having occurred before the commencement of the Planning Act on 3 July 2017.

What is an ancillary use?

The Court clarified the definition of "ancillary use". The Court provided that an "ancillary use" is one that is subservient to a principal use. 

The Court made reference to the following statement in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (emphasis added): 

"It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used."

The Court noted that the absence of a dominant and subservient relationship is indicative but not determinative of two separate and distinct uses. It held that it is "the strength of the connection or relationship… involving matters of fact or degree" that serves to establish whether two uses are separate and distinct (at [45]). 

Is RV accommodation an ancillary use of Kershaw Gardens?

The Council submitted seven matters to evidence that the RV accommodation was an ancillary use. The Court refuted the Council's key submissions that the size of the use, or the suggested lack of evidence regarding intensity, established that the RV accommodation was an ancillary use. The Court determined that most of the Council's submissions were not established on the evidence and constituted no more than general assertions.

The Court held that the RV accommodation was not an ancillary use of Kershaw Gardens. The determination was made on the basis that a dominant and subservient relationship did not exist between the accommodation use and the park use. The Court noted two particular features of the case in making this determination.

Firstly, the Court found as follows (at [46]): 

"As a matter of fact and degree, the strength of the connection or relationship as between the park and the RV accommodation use is limited in a functional sense, and is more a relationship of convenience." 

Secondly, the Court stated that the scale and intensity of the RV accommodation use did not evidence a use subordinate or subservient to the park use. Rather, the Court found the size and intensity of the RV accommodation use was consistent with CPAQ's proposition that it was separate and distinct from the dominant park use. 

The Court accepted CPAQ's argument that the provision of the RV accommodation altered the underlying and dominant purpose of Kershaw Gardens as a park. It held that the augmentation of the dominant purpose for which Kershaw Gardens was used further reinforced that the RV accommodation was not an ancillary use. 

Had section 163 been contravened and a development offence committed?

The Court went on to consider whether the RV accommodation use constituted assessable development carried out by the Council without an effective development permit.

Schedule 2 of the Planning Act defines a material change of use to be the "the start of a new use of the premises". Section 20C of the Acts Interpretation Act 1954 (Qld) provides a legal presumption that an act or omission will only constitute an offence if committed after the commencement of the law which makes such acts or omissions illegal. 

The RV accommodation use began in 2014, prior to the commencement of the Planning Act. CPAQ submitted that the Planning Act had retrospective operation and effect should be given to section 163 of the Planning Act. The Court did not accept this submission.

Section 163 of the Planning Act was held not to be open to offences involving the "carrying out of assessable development" which occurred before 3 July 2017. The Court, therefore, held that there had been no contravention of that section.

Had section 165(a) of the Planning Act been contravened and a development offence committed?

The Court considered whether the RV accommodation use constituted an unlawful use of premises under section 165(a) of the Planning Act. The Court relevantly examined the history of the RV accommodation use at Kershaw Gardens against relevant legislation and planning instruments. 

The Court found that when the RV accommodation use commenced in 2014 there was no effective development approval. This constituted a contravention of section 578(1) of the Sustainable Planning Act 2009 (SPA) which was in force at the time. 

The Court held that as no development approval had been obtained to authorise the start of the use under the SPA, or the continuation of the use from 3 July 2017 under the Planning Act, the use had, at no time, been lawful. 

It was held that, as the continuation of the RV accommodation use was not a lawful use, section 165(a) of the Planning Act had been contravened and a development offence had been committed. 

The Court, therefore, held that as section 165(a) of the Planning Act had been contravened, the Court's power to grant enforcement orders had been enlivened.

Conclusion

The Court granted enforcement orders against the Council to bring the RV accommodation use to an end. The Court declined to grant the declaratory and consequential relief sought by CPAQ. 

The Court allowed CPAQ's application under section 61 of the PECA to make submissions as to costs. In the later case of Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor (No. 2) [2018] QPEC 59, the Court ordered the Council to pay CPAQ's costs of these proceedings, awarded on the standard basis.

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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