Planning and Environment Court of Queensland finds that proposed development was capable of falling within the defined use and refuses to grant the declaration sought

In brief

The case of Noosa Shire Council v 64 Gateway Drive Pty Ltd [2021] QPEC 19 concerned an originating application by the Noosa Shire Council (Council) to the Planning and Environment Court of Queensland (Court) seeking a declaration under section 11 of the Planning and Environment Court Act 2016 (Qld) that a development application by 64 Gateway Drive Pty Ltd (Respondent) for a development permit for a material change of use for "16 Ancillary Dwelling Units" (MCU Application) was not for "ancillary dwelling unit[s]" as defined in the Noosa Plan 2006 (Noosa Plan).

The MCU Application proposed to convert the upstairs portion of 16 out of 42 industrial units already approved by the Council (Existing Approval) into a "caretaker's residence" (Proposed Development).

The Court did not undertake an assessment of whether the Proposed Development ought to be approved because that was not the Court's function in the declaratory proceeding. An assessment of the Proposed Development was a matter for the appeal by the Respondent against the Council's refusal of the MCU Application, which was already afoot.

The Court held that the issue in this case was whether or not there was a legal impediment to an approval of the MCU Application "in the sense that the use for which the [MCU Application] ha[d] been made [was] not encompassed by the applicable definition of that use." (at [8]).

The Court observed that the fact that the MCU Application was a properly made application under the Planning Act 2016 (Qld) and that the Council had given similar approvals in the past were "unnecessary and unhelpful" to the issue. The Court noted that each case must be considered on its own merits, and that a prior assessment of development does not generally create a precedent for other approvals (at [11]).

The Court held that each of the 16 industrial units were a "premises" (or a "planning unit"), and that each unit was capable of falling within the definition of "ancillary dwelling unit" under the Noosa Plan. The Court observed that whether the Proposed Development satisfied each limb of the definition or fell within some other definition of the Noosa Plan were matters that went to an assessment of the Proposed Development, and were therefore matters for the appeal.

The Court dismissed the originating application.

Background

The Existing Approval was for the development of 42 industrial units arranged in six separated buildings on land properly described as Lot 13 on SP170295 (Site).

An "ancillary dwelling unit" was defined in section 2.11.5 of the Noosa Plan as follows:

"Ancillary dwelling unit means the use of premises for a caretaker’s residence or employee residence associated with a non-residential use on the same premises where:

• There is no other dwelling unit on the premises, except where the non-residential use is an agricultural use;
• The gross floor area of the dwelling unit does not exceed 150m²;
• The dwelling unit is subordinate to the non-residential use;
• The dwelling unit is attached to or within 25m of the non-residential use; and
• The dwelling unit is occupied by the owner of the non-residential use or somebody employed in the non-residential use."

The Council relevantly refused the MCU Application on the basis that the use the subject of the Proposed Development did not fall within the definition of "ancillary dwelling unit" for the following reasons:

• "Premises" means "a building or other structure or land whether or not a building or other structure is situated on the land".
• The MCU Application refers to the Site, and therefore to meet the definition of "ancillary dwelling unit" the MCU Application could only be made for one ancillary dwelling unit, where "premises" means "land", or alternatively, for six ancillary dwelling units, where "premises" means a "building".
• The definition of "ancillary dwelling unit" requires that there be no other unit on the premises, and that the "ancillary dwelling unit" be subordinate to the non-residential use, which the Respondent had not satisfied.

The Respondent relevantly submitted the following: 

• Each of the 42 units allowed in the Existing Approval were "premises", 16 of which were the subject of the MCU Application.
• The Proposed Development is for units that are "subordinate to the non-residential use" for reasons including the following:
  • Each unit was proposed to be occupied by only an owner or employee of the industrial business use operating on the lower level of the premises.
  • The use of each unit as a residence is secondary to the industrial business use.
  • The built form of the upper residence level of the unit is to be integrated with the lower industrial level, and the unit is not to function as a residence independent of the industrial use.
  • The proposed gross floor area of the residence level of each unit is less than 65m², which is smaller than the area for the industrial use.
  • For some of the Proposed Development, access to the caretaker's residence is to only be through the level used for the industrial use. 

Proposed Development was encompassed by the definition of "ancillary dwelling use" 

The Court (at [19] and [21] to [22]) rejected the Council's submission that the Proposed Development could not satisfy the requirement that there be "no other dwelling unit on the premises" because the MCU Application related to the whole of the Site or, alternatively, to each of the six buildings on the Site in the Existing Approval for the following reasons:

• The inclusion of the street address and the real property description of the Site in the MCU Application did not indicate that the Site was one planning unit.
• Reference to the Site was the only way for the Respondent to describe the "location of the premises" in the MCU Application.
• An objective reading of the MCU Application identified the 42 industrial units of the Existing Approval, which were each a "planning unit" (or "premises").
• The definition of "ancillary dwelling use" is capable of being applied to the MCU Application.

The Court also noted that other requirements of the definition of "ancillary dwelling use", including that the gross floor area of each unit not exceed 150m² or be attached to or within 25 metres of the non-residential use, were satisfied (at [21]).

Assessment of the applicability of other definitions in the Noosa Plan were irrelevant

The Court observed that the following other matters went to the assessment of the Proposed Development and were therefore matters to be considered in the appeal and not the declaratory proceeding:

• Whether the requirements of the definition of "ancillary dwelling use", including that an ancillary dwelling be "subordinate to the non-residential use" were satisfied.
• Whether the Proposed Development satisfied the definition of "Multiple Housing" in the Noosa Plan. 

Conclusion 

The Court dismissed the application for declaratory relief on the basis that the MCU Application related to 16 separate planning units (or "premises"), which were each capable of falling within the definition of an "ancillary dwelling unit" under the Noosa Plan.