In brief

The case of 13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120 concerned an application to the Queensland Court of Appeal for leave to appeal against the judgment of the Planning and Environment Court by the owners of several units within a multiple dwelling (Applicants) that those units may not be used for permanent accommodation under the relevant development approval. 

A resort on the Sunshine Coast obtained a development approval (Development Approval) for the following:

  • basement carparks;
  • restaurants, function rooms and kitchens on level one;
  • 102 one-bedroom units, each with kitchenettes, on levels two to four (Units);
  • 62 residential units with various layouts on levels five to twelve. 

The Development Approval was given by the relevant Council on 17 October 2003 and was for a material change of use for "a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling".

The Council argued that the use of the Units is restricted to temporary accommodation in accordance with the Development Approval. The Applicants argued that there is no constraint on the use of the Units and that they can therefore be used for permanent occupation. 

The Court of Appeal upheld the decision of the Planning and Environment Court and held that the Development Approval was for separate Hotel and Motel uses which operated in conjunction, and that it was the Motel use which regulated the type of accommodation for which the Units may be used in accordance with the relevant definitions of the uses in the applicable planning scheme.

Development Approval inconsistently referred to the Units

The Development Approval referred to the Units in inconsistent terms as follows:

  1. Decision notice – The Units are referred to as "a Hotel/Motel (102 suites)" and as a "proposed Motel" in the part of the decision notice dealing with parking requirement reallocation.

  2. Condition 1 and approved plans – Condition 1 required the site to be developed in accordance with the approved plans, and the approved plans referred to that part of the building concerning the Units as a "proposed hotel" and "102 KEY HOTEL".

  3. Condition 5 – This condition referred to the use definitions in the relevant planning scheme and relevantly stated that the use of the premises for a "Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling" shall accord with the use definitions in the relevant planning scheme.

  4. Other references –The decision notice also included references to the Units as follows:

(a) "Hotel Suites" in condition 25 regarding the provision of a Community Titles Management Statement.

(b) "Hotel Rooms" in the tables of contributions for Headworks. 

It is relevant to note that the decision notice referred to a reduction in parking form the 242 spaces required by the relevant planning scheme to 214 spaces "because of the nature of the use and the international nature of the proposed Motel many of the guests will arrive as part of organised coach tour groups…".

Planning instruments contained the relevant definitions of the Hotel and Motel uses

The Court of Appeal noted the following relevant definitions in the planning scheme:

  • "Hotel" – "… any premises specified in a General Licence granted under the Liquor Act 1992. The term also includes a Totalisator Administration Board agency when operated as an ancillary use. The term does not include a Shop."
  • "Motel" – "… premises used or intended for the temporary accommodation of travellers, where such accommodation is provided in serviced guest rooms or suites, each containing its own bathroom. The term includes an ancillary Caretaker’s Residence, office and Restaurant."

The Court of Appeal noted that the Hotel and Motel uses are considered by the relevant planning scheme to be separate uses.

Applicants' arguments

The Applicants made the following three arguments in relation to the allowable use of the Units for permanent accommodation:

  1. The Units may be used for permanent accommodation as the definition of Hotel does not contain a restriction as to the type of accommodation that might be involved, and therefore.

  2. The Motel use could be held in reserve in some way, in the sense that it would only be brought into operation if the Hotel’s licence did not provide for permanent accommodation in the Units.

  3. The conditions attached to the decision notice referred at times to the Units as "Hotel Suites" or "Hotel Rooms".

Court of Appeal held that Hotel and Motel uses were separate and operated in conjunction

The Court of Appeal held that properly construed the decision notice intended that the Hotel and Motel uses were separate albeit operated in conjunction with each other for the following reasons:

  1. Conditions – Condition 5 states that the relevant uses shall accord with the definitions in the planning scheme, being that the part of the resort to be used as a Motel is on the basis that it was reserved for temporary accommodation. Inconsistent terms such as "Hotel Suites" or "Hotel Rooms" was not considered to overcome the express reference in Condition 5 that each use must accord at all times with the relevant definitions in the planning scheme.

  2. Hotel use – A hotel use is defined under the relevant planning scheme by reference to premises "specified in a General Licence granted under the Liquor Act" (at [27]). A General Licence under the relevant Liquor Act 1992 is a licence to only sell liquor for consumption off the premises identified in the Liquor Act 1992. No evidence was provided that the Units formed part of the premises of the General Licence. It is clear, therefore, that the development application sought two distinct uses, firstly, a Hotel use which comprised the liquor supply facilities on level one and, secondly, a Motel use for the Units. 

  3. Construction of Development Approval – If the Development Approval was constructed so that the Motel use was held in reserve in some way, the Motel use would not be given any effective work, or in other words, it would have made the application for the Motel use pointless. The Court of Appeal concluded that the references to "Hotel/Motel (102 suites)" was intended to operate such that the Hotel uses on level one and Motel use for the Units operated separately, but in conjunction with each other. 

  4. Parking requirements – The Court of Appeal noted that the decision notice states that a reduction in parking is allowed due to the nature of the guests in the Units being temporary, demonstrates an intention that the Units were approved as a Motel use only.

  5. Design of building – The building was designed so that there was a service lift between the facilities on level one and the Units. That the service lift was not designed to extend to the residential accommodation on levels 5 to 12 was considered to support the conclusion that the Hotel use and Motel use were to be operated in conjunction with each other. 

Conclusion

The Court of Appeal concluded that the decision of the Planning and Environment Court was correct and that the Development Approval was for separate Hotel and Motel uses which operated in conjunction. The Court of Appeal refused the Applicants' application for leave to appeal.

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 2021.

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