Planning and Environment Court finds no unlawful increase in the number of residents in a backpacker hostel and sets aside enforcement notice

In brief

The case of Moramou2 Pty Ltd v Brisbane City Council [2019] QPEC 18 concerned an appeal to the Queensland Planning and Environment Court against the decision of the Respondent, the Brisbane City Council (Council), to give an enforcement notice to Moramou2 Pty Ltd (Appellant) in respect of the use of its premises as a backpacker hostel. In issue was whether there had been an unlawful increase in the number of residents occupying the premises. 

Background

The Council gave an enforcement notice to the Appellant, in respect of the use of its premises, located at 47 Brighton Road, Highgate Hill (Premises), as a backpacker hostel. The Appellant lodged an appeal against the decision to the Court. The only issue for the Court to determine in respect of the enforcement notice, was whether there had been an unlawful increase in the intensity or scale of the use of the Premises, specifically in relation to the number of people accommodated there.

Determining the relevant regulatory regime

The lawful use of the Appellant's Premises was the subject of a development approval, dated 14 December 1989, for an extension to a community dwelling (Development Approval). The Development Approval included condition E.4.(Ak) which stated: "the total number of people accommodated within the combined development is not to exceed the number stipulated on the license for the premises". Additionally, condition 1.(A)(1) stated that all relevant Council ordinances continued to apply. 
Under Chapter 5, Part 1 of the ordinances of the Council, the Premises were registered as multiple dwellings. The Court noted that section 14 of the ordinances expressly provided that the Council could impose a cap on the number of people that may be accommodated in the Premises.
 
However, these ordinances were repealed and the Local Law (Accommodation Standards) 1999 (Local Law) and the Local Law Policy (Accommodation Standards) 1999 came into effect, which provided for conditions relating to the maximum occupancy of a multiple dwelling as well as the calculation of the maximum occupancy for backpackers' hostels. Accordingly, 143 people were authorised to be accommodated on the Premises, and this remained the authorised number of occupants at the time of the repeal of the Local Law on 30 August 2005.

The Court found that the Council had failed to outline the precise regulatory regime for ascertaining the occupation density of the Premises that was in effect between 9 September 2005 and 4 April 2008. Nevertheless, it was clear to the Court that the state government had assumed responsibility for the task from 4 April 2008, and the task is currently undertaken under the Queensland Development Code which came into effect on 4 April 2008. Accordingly, the Court held that the Premises could currently lawfully accommodate a maximum of 291 people.

Compliance with the regulatory requirements in respect of the permitted maximum occupancy

The Court found that there was no evidence that the Appellant failed to comply with the regulatory requirements in respect of the maximum authorised occupancy of the Premises, which the Council expressly conceded. The Court stated that the regulation of the permitted number of residents accommodated at the Premises had always been the subject of additional regulatory assessment by both the Council and the state government. Indeed, this was effected at the time of the Development Approval, by the issuing of a licence in respect of the use of the Premises. 

The Court interpreted condition E.4.(Ak) of the Development Approval to be the regulatory process which set out the number of people that could be accommodated at the Premises. If this condition continued to apply, despite the new regulatory process undertaken by the state government, then it was uncontentious that the Development Approval was being complied with. However, if the effect of the new regulatory regime was such that the condition no longer continued to apply, then the only cap on the occupancy of the Premises is that which was set by the regulatory regime currently in force. In either case, the current use of the Premises lawfully complies with both the Development Approval and the legislative requirements under the current regulatory regime for multiple dwellings. 

Conclusion

The Court concluded that the Council had not discharged the onus of establishing that the appeal should be dismissed. Despite some uncertainty as to whether condition E.4.(Ak) of the Development Approval, or the current regulatory regime administered by the state government, has lawful effect in regard to the regulatory process for setting the maximum occupancy of the Premises, the Appellant was complying with both requirements. Thus, the appeal was allowed and the enforcement notice was set aside.