The case of We Kando Pty Ltd v Western Downs Regional Council  QPEC 65 concerned an application in pending proceeding by We Kando Pty Ltd (Applicant) to the Planning and Environment Court (Court) for a declaration about the use of land situated at 27150 Warrego Highway, Baking Board (Premises).
The Court determined the three main issues in the application to be the following:
whether the Court had the power to grant the declaratory relief sought;
whether leave should be granted under section 446(1) of the now repealed Sustainable Planning Act 2009 (SPA) to permit the application to be treated as if it were an originating application, and thereby a fresh proceeding;
whether the commencement of a use of the land for the parking of trucks (Truck Parking Use), as an ancillary use, is lawful.
The Court held that it did not have the power to grant the declaratory relief, was not satisfied that it should give leave to permit the application to be treated as an originating application and found that the Applicant failed to establish that the Truck Parking Use was lawful. The Court dismissed the application.
Applicant commences an application in pending proceeding seeking declaratory relief
The Applicant had submitted a development application to the Western Downs Regional Council (Council) for an environmentally relevant activity and four new uses, namely Extractive industry, Storage facility, Accommodation building and Noxious industry. The Council issued a part approval and refused the part of the development application which sought approval for the Storage facility and Accommodation building.
The Applicant appealed to the Court. The Applicant did not wish to proceed with the part of the appeal against the refusal of the Accommodation building.
The Applicant commenced an application in pending proceeding seeking declaratory relief in relation to the Truck Parking Use, with the intention of discontinuing the appeal if the declaratory relief was granted.
Transitional provisions do not save the right to commence an originating application for declaratory relief under the SPA
The Applicant commenced the application under section 456(1)(e) of the SPA, which provides that any person may bring a proceeding in the Court for a declaration about the lawfulness of land use or development. As the SPA had been repealed for eight months at the time of the hearing, the Court was required to consider if it had the power to grant the requested declaratory relief.
The Court noted that its statutory jurisdiction is confined to the powers given to it by the SPA and the Planning Act 2016 (Planning Act). The transitional provisions of the Planning Act, namely section 311(2)(a), provide that in certain circumstances "the [SPA] continues to apply to the proceedings" (at ).
Therefore, the Court turned its attention to section 446, section 456 and section 496 of the SPA and concluded that section 446 and section 496, despite being general powers, did not provide the Court with power to make the declaration and neither did section 456 (at  to ).
The Court considered the now repealed section 456 of the SPA and determined that the section required that a declaratory proceeding be commenced as an originating application. An application in pending proceeding, such as the application that was commenced by the Applicant, is not an originating application.
Although the transitional provisions of the Planning Act allowed for the Applicant's appeal to be brought under the SPA, there are no transitional provisions in the Planning Act which give legal force to section 456(1)(e) of the SPA. Therefore, section 456(1)(e) does not give a right to commence new proceedings after the repeal of the SPA.
The Court held that it has no power to grant declaratory relief under section 456(1)(e) of the SPA.
Court decided that it would not make an order to treat the application like an originating application
The Applicant submitted that in the alternative the Court could order that the application in pending proceeding be treated as an originating application and relied upon rule 13 of the Uniform Civil Procedure Rules 1999 (UCPR). The Court was not satisfied that it should make the order as the order would "impermissibly permit [the Applicant] to do indirectly that which cannot be done directly" (at ), as, relevantly, the Planning Act does not preserve the right under the SPA to commence fresh declaratory proceedings.
Applicant addressed the wrong question to the Court regarding the Truck Parking Use and consequentially failed to establish the elements necessary to grant relief
The Court then turned its attention to whether the Truck Parking Use was an ancillary use. The Applicant asked the Court (at ): "Is the Truck parking use lawful because it is ancillary to existing lawful uses permitted on the land?". The Court considered the question and concluded that if it was answered it would lead the Court into error. Furthermore, the Court concluded that the Applicant "incorrectly assume[d] the lawfulness of the use is determined by whether it is ancillary to an existing use" and the correct question to be asked and answered by the Court was "whether the Truck parking use, if started and continued on the land, would give rise to the commission of a development offence under [sections] 163, 164 and 165 of the [Planning Act]?".
As a consequence of the Applicant addressing the wrong question to the Court, the Applicant failed to provide adequate evidence that the Truck Parking Use would not give rise to a development offence under the third limb of section 163 of the Planning Act.
Section 164 of the Planning Act requires new uses to be generally in accordance with the approved plans which form part of the existing approvals over the land. The Applicant did not provide any evidence of the relevant existing plans for the Premises and, therefore, the Court, being unable to consider the relevant facts and circumstances, found that the Applicant had failed to establish that the Truck Parking Use would not contravene section 164 of the Planning Act.
Likewise, the Applicant failed to address to the Court the necessary elements required to determine if the Truck Parking Use would have been a lawful use under section 165 of the Planning Act. Therefore, the Court found that the Applicant failed to establish that the Truck Parking Use would be a lawful use.
Given that the Court held that it did not have the jurisdiction to grant relief under section 456 of the SPA, and that the Applicant had failed to establish that the Truck Parking Use would not contravene sections 163, 164 and 165 of the Planning Act, the Court ordered that the application be dismissed.
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