In brief

The case of Johnston v Banana Shire Council & Anor [2019] QPEC 8 concerned a submitter appeal to the Planning and Environment Court against the approval of a development application for an integrated caravan park and accommodation village. 

A commercial competitor (Submitter) commenced an appeal in the Planning and Environment Court against a decision by the Banana Shire Council (Council) to approve an application for a development permit for a material change of use for an integrated caravan park and accommodation village.  

A caravan park has operated on the land in Moura since the 1960s. Moura is located south-west of Rockhampton and primarily services surrounding mining and rural activities. In recent times, the use of the land, owned by Panchek Pty Ltd (Applicant), has expanded to provide accommodation for non-resident workers. The expanded use resulted in the Council issuing a Show Cause Notice and a subsequent Enforcement Notice. 

The development application was made to both regularise the expanded use of the land, and provide for a staged expansion of a larger accommodation component, for non-resident workers in the future. The Council approved the development application. 

The Submitter relevantly alleged that the development application failed to comply with the planning scheme, being the Banana Planning Scheme 2006 (Planning Scheme), and that no planning need existed for the proposed development. The issues in dispute narrowed considerably prior to the hearing of the appeal, such that the only issue in dispute was the terms of a condition to be imposed upon the development approval. The Submitter and the Applicant proposed competing terms of a condition which concerned the type and proportion of residents that could occupy the proposed development.  

At the hearing of the appeal, the Court considered the issues in dispute as follows:

  • Whether the proposed condition was reasonably required?
  • Whether the proposed condition was an unreasonable imposition on the development approval?
  • Whether either proposed condition, if any, should be imposed on the development approval?

To these questions, the Court determined the following:

  • The Submitter's proposed condition was not reasonably required as it posed an unreasonable imposition upon the development approval.

  • The Applicant's proposed condition was reasonably required and ought be imposed.

Proposed condition

The Submitter and the Applicant proposed conditions that sought to regulate the use of the  caravan park development generally.

In particular, the parties argued for an enforceable condition which concerned the maximum number of cabins within the accommodation village expansion that may be used by non-resident workers. The conditions proposed were materially the same, differing on two points: the permitted percentage of non-resident workers occupying the development, and the way in which occupancy was to be recorded.  

The Applicant's proposed condition sought to allow a higher percentage of occupancy for non-resident workers. While both parties proposed a register to record the rates of occupancy, the Applicant's proposed condition provided greater specificity.

Legislative framework

The Court, in determining the appeal, was required to assess the development application with regard to sections 45 and 65 of the Planning Act 2016

Section 45 provides that the development application must be assessed against the relevant planning scheme in place at the time the application was properly made, and that assessment may be made with regard to any other relevant matters. 

Section 65 provides that a condition may be imposed if it is either relevant to, but not an unreasonable imposition on, the development, or is reasonably required in relation to the development. The Court noted that the Court has interpreted the power to impose lawful conditions on an approval as a broad residual discretion which must be exercised for a proper planning purpose.

Whether the proposed conditions were reasonably required?

The Court assessed the development application and the competing conditions against the relevant assessment benchmarks in the Planning Scheme, in particular the relevant zone code being the Town Zone Code. 

The Court found that the overall outcomes in the Town Zone Code, for the relevant precinct, being the Tourism Precinct, were particularly relevant. The Court relevantly found that the proposed development involved the continued operation of a caravan park to some degree, and therefore the land would continue to be used predominantly for tourism, regardless of which condition was imposed, in compliance with the relevant overall outcomes. The Court held that the development application therefore complied with the relevant overall outcomes for the Tourism Precinct in the Town Zone Code. 

Expert witnesses confirmed a significant demand existed for the accommodation of non-resident workers in the Moura area. The Court concluded that there was a need for the accommodation village expansion aspect of the proposed development which was not currently being met.

The Court determined that a proposed condition which sought to cap the number of non-resident worker occupants, was therefore reasonable. 

Whether the proposed condition was an unreasonable imposition?

The Court held that the Submitter's proposed condition was unlawful and an unreasonable imposition on the proposed development. The Court stated the following in respect of the Submitter's proposed condition (at [16]): 

"an excessive quarantining of the proposed development in terms of non-resident worker accommodation does nothing to contribute to the economic advancement of Moura and achieves no legitimate outcome for the community."

Conversely, the Court held the Applicant's proposed condition was a reasonable imposition which would ensure the proposed development's viability. 

Should either proposed condition, if any, be imposed on the development approval?

The Court stated that no planning purpose existed to justify the imposition of the Submitter's proposed condition and reiterated that, in any event, it should not be imposed. 

The Court held that the Applicant's proposed condition would, for reasons mentioned above, be an appropriate imposition on the development approval.

Conclusion

The Court upheld the Submitter's appeal to the extent that the Applicant's proposed condition be imposed. 

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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