Queensland Court of Appeal finds that the Planning and Environment Court did not make an error of law in construing the scope of a planning approval granted in 1991, which authorised the use of a private airspace and hangar building

In brief

The case of Bucknell & Anor v Townsville City Council & Anor [2021] QCA 26 concerned an application by the Applicants to the Queensland Court of Appeal (Court of Appeal) seeking leave to appeal against the decision of the Planning and Environment Court of Queensland (P&E Court) in Bucknell v Townsville City Council & Anor [2019] QDC 280 and the hearing of the appeal (Appeal).

The originating application in the P&E Court concerned a town planning approval issued in 1991 (Approval) by the Townsville City Council (formerly the Thuringowa City Council) (Council). The Approval authorised the use of a "private airspace" with a "hangar" building and toilet block in Woodstock, Townsville (Property). The Second Respondent became the registered owner of the Property in 2005.

The Applicants' residence was situated on land adjoining the Property. The Applicants sought declarations and enforcement orders in the P&E Court to restrict the Second Respondent from carrying out the following use and activities on the Property without a development permit:

• "Air services" to the extent it exceeded the scale and intensity authorised by the Approval (Air Services Use).

• "Short term accommodation and outdoor sport and recreation, tourist attraction and/or tourist park" (Accommodation and Entertainment Activities).

The P&E Court refused to grant the declarations and enforcement orders sought by the Applicants. The Court of Appeal was required to consider whether the P&E Court made errors of law in construing the scope of the Approval as it related to the Air Services Use and the Accommodation and Entertainment Activities. 

The Court of Appeal granted the Applicants leave to appeal. However, a majority of two judges dismissed the Appeal on grounds that the P&E Court did not make an error of law in construing the Air Services Use. The Court of Appeal unanimously agreed that the P&E Court did not make an error of law in construing the Accommodation and Entertainment Activities. 

Applicants granted leave to appeal 

The Applicants applied for leave to appeal to the Court of Appeal under section 63 of the Planning and Environment Court Act 2016 (Qld) (PEC Act). A single judge of the Court of Appeal has power to grant leave to appeal under section 63(3) of the PEC Act.

The Applicants contended that an error of law materially affected the decision of the P&E Court, and that the error was (at [29]):

(a) of general importance to the "proper construction of development approvals" and the "orderly enforcement of planning laws and development offences"; and

(b) of specific importance to the Applicants who were exposed to adverse impacts of the Air Services Use and Accommodation and Entertainment Activities.

One judge of the Court of Appeal granted leave to appeal for the reasons advanced by the Applicants. This was sufficient to determine the issue. 

Of note, one judge found that the error of law in relation to the Air Services Use warranted leave to appeal, but found that the "isolated nature" of the Accommodation and Entertainment Activities, which occurred "some years ago", did not warrant leave to appeal (at [95]).

Majority of the Court of Appeal found that the P&E Court did not make an error of law in construing the Air Services Use

Since the Approval, the number of hangars on the property had increased from one to five, the size of the hangars had increased in scale, further buildings had been erected, and a second runway had been built and was in use.  

Of particular importance, the term "private air strip" was defined in the 1988 town planning scheme for the City of Thuringowa as follows (at [20]):

"Privately owned premises for the landing and departure of aircraft. The terms includes (sic) facilities provided at such premises for the housing, servicing and maintenance of aircraft and for passengers or goods carried by aircraft using the airstrip".

The Applicants contended that the Air Services Use on the Property had come to "exceed the scale and intensity" authorised by the Approval and constituted a "material increase in the scale and intensity" of the Approval (at [7] and [79]). As a consequence, the Applicants contended that the Air Services Use went beyond the authority of the Approval.

The P&E Court made the following observations in relation to the Air Services Use (requoted by the Court of Appeal at [89]):

"[66] …The term 'Private airstrip'… can and should be considered broadly, and as such authorises the use of the land for the airstrip and hangers (sic), as well as other structures associated with such on-site activities.

 [67] This is even more obviously the case when it is noted that the [Approval] did not place any constraints on the hours of operation, though obviously the airstrip, not having lights, is only able to operate from dawn to dusk, as well there being no constraints on the type of aircraft used, or upon movement and numbers…"

This informed the finding of the P&E Court that (requoted by the Court of Appeal at [89]):

"[67] …the use currently made of the land is for aircraft related activities, and is entirely consistent with the rights granted by the [Approval]."

The majority of the Court of Appeal (Majority Judgment) found that the P&E Court did not make an error of law in determining the scope of the Approval. The key finding of the Majority Judgment was that the definition of "private airstrip" was inclusive and "extended to include the use of the premises for the provision of facilities for aircraft" (at [60]). Therefore, the Approval imposed no restriction on the number of hangars that could be erected on the Property, nor the portion of the Property which could be used for the private airstrip.

The judgment in dissent (Dissenting Judgment) found that the P&E Court made an error of law in determining the scope of the Approval. This was because the Approval did not "authorise the use of any building or structure apart from the two buildings identified in the relevant documents" (at [90]). Rather, the scale and intensity of the "use" was confined to the structures and runway identified in the Approval. 

As a consequence, the Dissenting Judgment was that the P&E Court made an error of law by failing to answer "whether the use of the land for 'air services' had come to exceed 'the scale and intensity authorised by any existing lawful use rights'" (at [92] to [93]). The Dissenting Judgment concluded that the matter should be remitted to the P&E Court to answer this question.

Court of Appeal unanimously found that the P&E Court did not make an error of law in construing the Accommodation and Entertainment Activities  

The Second Respondent used the Property on two separate occasions in Easter of 2014 and Easter of 2015 for "fly ins". The fly ins were publicly advertised events, which involved accommodating passengers who had flown in aircraft to the Property, and included live entertainment and camping.

The Applicants contended that there was no effective permit for the Accommodation and Entertainment Activities as the Approval did not "refer to and authorise any short term accommodation or outdoor entertainment uses…" (at [63]).

The extended meaning of "use", as it applied to "premises" under schedule 3 of the repealed Sustainable Planning Act 2009 (Qld), included "any use incidental to and necessarily associated with the use of the premises".

The P&E Court found that the Accommodation and Entertainment Activities engaged in by the Second Respondent were: "no more than what [was] contemplated and authorised" by the Approval, "limited in the extreme", and "clearly contemplated" by the Approval (requoted by the Court of Appeal at [28]).

The Court of Appeal found no basis to conclude that the Accommodation and Entertainment Activities engaged in by the Second Respondent were "capable of amounting to a use", having regard to the infrequency of the activities (at [69] and [95] and in reference to the case of Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1990] QSCFC 32; [1991] 1 Qd R 125, 129).

Conclusion

The Court of Appeal granted the Applicant leave to appeal but dismissed the Appeal on the grounds that the decision of the P&E Court did not make an error of law in identifying the scope of the Approval in relation to the Air Services Use or the Accommodation and Entertainment Use.