In brief

The case of Neilsens Concrete Pty Ltd & Anor v Brisbane City Council [2020] QPEC 3 concerned an originating application to the Planning and Environment Court (Court) seeking a declaration that the use of land at Coorparoo as a concrete batching plant has not been abandoned, and that the land may be lawfully used consistent with the development approval issued by the Court on 25 March 1983.

The land was used as a concrete batching plant until the tenant decided to cease the operation in 2012 and removed all associated plant and equipment in 2014. During the time the land was not being used as a concrete batching plant, the owner of the land, being the Second Applicant, had been in protracted negotiations with the First Applicant to lease the land for the purpose of operating a concrete batching plant, and eventually the land was sold to the First Applicant.
 
Despite the length of cessation of the use of the land, the Court found that the use of the land as a concrete batching plant had not been abandoned and that the land may be used for purposes consistent with the development approval.

Abandonment of use

The Court adopted the approach taken by Wilson SC DCJ in Mac Services Group Ltd v Beylando Shire Council & Ors [2008] QPELR 503, 506 at [20]-[21], which relevantly stated as follows (at [22]):

"… Those decisions show that the question of whether or not an abandonment has occurred is one of fact to be determined having regard to all the circumstances of the case, considered from the stance of a reasonable person with knowledge of all of those circumstances; and also that, importantly, those circumstances will include the subjective intention of the relevant person (and that subjective intention must involve an intention not to abandon the use, and not merely to preserve existing rights if that is possible) …".

The Court concluded that "the question of whether or not a use has been abandoned is a question of fact to be determined objectively but where the subjective intentions of the owner/occupier is a relevant and important consideration" (at [23]). The Court also agreed with the observation of Rackemann DCJ in Benter Pty Ltd v Brisbane City Council [2006] QPELR 451 at [15] - [19] that "a conclusion of abandonment cannot be avoided simply by the assertion of an ongoing intention to preserve existing rights" (at [23]).

Cessation of activities and vacant land

The Court considered whether the use as a concrete batching plan had been abandoned in circumstances where:

  • from 25 March 1983 to December 2012, Boral Constructions Materials (Qld) Ltd (as it is now known) (Boral) operated a concrete batching plant from the land as a lessee;

  • Boral remained in tenancy until April 2015, during which on 27 June 2014 it wrote to the Second Applicant and the Council stating that it did not intend to recommence the operation of a concrete batching plant; and

  • all associated plant and equipment were removed by Boral in October or November 2014.

The Court noted the observation made by King CJ in Leeming v City of Port Adelaide [No 2] (1987) 45 SASR 506, which provided as follows (at [42]):

"A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or to terminate the use. It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future." (Emphasis added)".

Prior to the removal of the plant and equipment, the Second Applicant wrote to Boral on 3 June 2014 stating that it intended to seek another tenant who would operate a concrete batching plant or "similar operation" and asked Boral whether the plant could be sold to another operator. The Second Applicant then wrote to the Council confirming on 21 July 2014 that it intended to lease the land for the operation of a concrete batching plant.

On 31 July 2014, the First Applicant made an offer to lease the land on a condition that the Second Applicant confirm that the current use could continue "as of right". After long negotiations, which included a draft heads of agreement being delivered to the First Applicant on 27 May 2015, the First Applicant indicated on 1 December 2016 that it did not intend to lease but to purchase the land.

After further negotiations, a contract of sale was entered into by the First Applicant and the Second Applicant on 21 December 2018.

Having regard to the above facts, amongst other things, the Court considered that the period for which the land was vacant and it was not used as a concrete batching plant could be satisfactorily explained by the "protracted nature of the negotiations" between the First and Second Applicants. The Court was satisfied that "when the totality of the relevant facts and circumstances are concerned, it could not be reasonably said that the use of the site had been abandoned" (at [73]).

Further, the Court considered that the duration of inactivity, or the vacant land, did not necessarily amount to abandonment of use; but that, "[e]ach case will turn on its own facts" (at 78]). The Court further observed that "[a]s a general observation … it would be reasonable to expect that the longer the period of inactivity, the more difficult will it be for the Court to be satisfied that the use has not been abandoned" (at [78]).

Conclusion

The Court found that the use of the land as a concrete batching plant had not been abandoned, with the result that a further development approval was not required for the use.

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 2020.

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