Automotive business loses traction after Planning and Environment Court orders the cessation of the unlawful use

In brief

The case of Moreton Bay Regional Council v Giffin & Anor [2022] QPEC 20 concerned an application to the Planning and Environment Court of Queensland (Court) by the Moreton Bay Regional Council (Council) under section 180 (Enforcement orders) of the Planning Act 2016 (Qld) (Planning Act) seeking enforcement orders to refrain the Respondents from committing, and require the Respondents to remedy, a development offence on land located in Burpengary, Queensland (Subject Land).

The development offence alleged by the Council was an unlawful use of premises (see section 165 (Unlawful use of premises) of the Planning Act) for the reasons that the use of the Subject Land for an automotive spare parts and repair business (Business) did not have, and required, a development approval.

The Court held that since at least December 2010 the Respondents were on notice that the Business activities being carried out on the Subject Land were unlawful and had therefore been provided with sufficient time to remedy the unlawful use without Court intervention (at [8]).

The Court was satisfied from the uncontested evidence before it that a development offence had been and was continuing to be committed. The discretionary considerations, such as the role of a local government in achieving good order and governance of its locality, public interest and concern, impact of the use of the Subject Land, and the time that the Respondents had to remedy the unlawful use, weighed in favour of granting the enforcement orders sought by the Council (see [18] and [20]).

The Court relevantly ordered that the Respondents cease the unlawful use of the Subject Land, remove items relating to the Business from the Subject Land, and return the Subject Land to, as close as is practicable, its state before commencing the unlawful use.

Background

The evidence before the Court in respect of the Business was as follows (see [9]):

• The Respondents jointly acquired in late-2004, and owned, the Subject Land.

• The First Respondent around late-2004 to early-2005 moved to the Subject Land the Business, which was previously being conducted on other land, and was certainly operating on the Subject Land by September 2009.

• From July 2005 through to 2021 the Council had received complaints from local residents in respect of the Business.

• The Council issued between December 2010 and January 2015 a number of show cause notices to the Respondents in respect of the use of the Business on the Subject Land. The notices identified that the Council considered the use to be assessable development under its planning scheme which required a development approval.

• The Council issued between April 2011 to September 2013 a number of enforcement notices, which required the Respondents to stop committing and remedy the development offence being committed by the unlawful use of the Subject Land.

• Aerial imagery indicated that the intensity of the Business had increased overtime, and inspections of the Subject Land in March 2022 indicated that a sign for the Business existed at the front of the Subject Land, and that there was on the Subject Land 50 or more vehicles and a number of vehicle parts in various states of repair and disrepair, equipment, including a truck and forklift, and a shipping container.

The Second Respondent stopped being involved in the day-to-day operations of the Business in February 2011, and did not oppose the orders sought by the Council.

The First Respondent did not provide evidence to the Court, but opposed the orders sought by the Council.

Principles relevant to the Court's discretion

The Court held that its discretion to exercise the powers under section 180 and section 181 (P&E Court's powers about enforcement orders) of the Planning Act arises upon the satisfaction that a development offence has or will be committed, and considered the following principles established by the Courts in respect of the characterisation of the use of land (see [14] to [15]):

• "The appropriate question is to ask what, according to ordinary terminology, is the appropriate designation of the purpose best served by the use of the premises…".

• To determine the appropriate genus which describes the activities in question, a use must be categorised under a planning scheme in a practical and common sense way.

• Where there are two or more applicable defined uses, an approach which applies the principles of statutory construction is required, including in an approach to find the "best fit".

• Where there is conflict in a planning scheme, "…it must be alleviated as far as possible by adjustments which best give effect to the purpose and language of the provisions, while maintaining the unity of all the statutory provisions".

Use of the Subject Land for the Business was unlawful and constituted a development offence

In this instance, it was clear based upon the town planning evidence before the Court that the use of the Subject Land for the Business under the relevant planning scheme was currently and historically assessable development. It was therefore not necessary for the Court to categorise the use of the Subject Land in a detailed way to determine that it was unlawful (see [16] to [17]).

The Court was satisfied to the necessary extent that a development offence had been and was being committed on the Subject Land (at [18]).

The Court held, in the context of "…the general proposition that planning laws should be enforced and offending conduct resolved, with a particular importance on sending a strong message that the contravention of planning laws will not be tolerated" and being guided by the principles helpfully summarised in Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128; [2012] 2 QPELR 216 at [131], that the following discretionary matters weighed in favour of the exercise of its discretion to grant the enforcement orders sought by the Council (at [20]):

• There had been public concern in respect of the Business raised and the Council is a publicly elected body whose interests in the proceeding encompass the good order and good governance of the locality.

• Although there was no technical environmental evidence before the Court, the use of the Subject Land for the Business is industrial in nature and without a development approval and possible conditions may be causing or may cause environmental impacts.

• The Respondents have had more than 10 years, on account of the Council not rushing to bring the proceedings before the Court, to seek to regularise the unlawful use and chose not to.

Conclusion 

The Court relevantly ordered that the Respondents cease, and remove the Business items used in association with, the unlawful use of the Subject Land, and return the Subject Land, as close as is practicable, to its state before commencing the unlawful use.