The case of Townsville City Council v Body Corporate for Magnetic International Resort Hotel Community Title Scheme 22894 & Ors [2025] QPEC 5 concerned an originating application made by the Townsville City Council (Council), which sought a declaration that the use of lots in the Magnetic International Resort Hotel (Resort) for permanent or long-term accommodation is not a lawful use. The Council also sought enforcement orders restraining that use.

The proceeding was against the Community Title Scheme for the Resort and the lot owners of the 96 units (Accommodation Units).

The Council and the lot owners had agreed upon the terms of a proposed final order, except for two lot owners: the 78th Respondent, who wanted a modified order, and the 12th Respondent, who opposed the making of any declarations or enforcement orders (at [3]).

The Court considered the relevant development permits and planning schemes and determined that the use of the Accommodation Units for permanent or long-term accommodation is not a lawful use. The Court also considered a number of matters relevant to the exercise of its discretion to make enforcement orders, including the fact that the Council had, in correspondence, given support to the use of the Accommodation Units for permanent or long-term accommodation, and made an order on terms which offered protection to existing tenants and owners who reside in an Accommodation Unit.

The resort comprises the Accommodation Units plus two units which are self-contained and used for permanent manager accommodation. Each of the Accommodation Units has a gross floor area of either 30 m² or 50 m² and is modestly equipped with a kitchenette containing a fridge, microwave, toaster, kettle, and sink, as well as a small bathroom and a patio. Relevantly, each Accommodation Unit is not separately metered for water and electricity, has no storage spaces, no cooking facilities such as a cooktop or oven, and no laundry facilities. There are communal facilities within the Resort, comprising laundry facilities, a restaurant and bar, a swimming pool, a tennis court, a gymnasium, and a playground (at [6]).

The Council sought declarations pursuant to section 11(1)(c) of the Planning and Environment Court Act 2016 (Qld) that the permanent or long-term accommodation use of the Accommodation Units is unlawful, and enforcement orders pursuant to section 180 of the Planning Act 2016 (Qld) to restrain the alleged unlawful use (at [2]).

The Court considered the historical planning approvals and planning schemes as follows (at [5]):

• The Council approved on 13 November 1975 a "Tourist Holiday Resort", being an undefined use.

• The Council approved on 13 November 1985 a manager's residence and 34 additional units. This, and other relevant development permits approving extensions to the Resort, did not clarify the approved use.

• None of the applicable planning schemes which apply to the land on which the Resort is located have from 1975 to the date of the judgment conferred a right to use the Accommodation Units for permanent or long-term accommodation.

• The Council approved on 10 January 1996 a group title subdivision of the Resort but subject to a condition that the premises be used in accordance with the existing planning approvals.

In the absence of a definition of "Tourist Holiday Resort" in the relevant development approvals and planning schemes, the Court had regard to the principles of statutory construction and more particularly the Macquarie Dictionary Online which defines Tourist as "someone who tours, especially for pleasure", Holiday as, inter alia, "a vacation", and Resort as, inter alia, "a large hotel with special facilities offered" (at [7]). The Court looked at the meaning of each word and the facilities offered within each Accommodation Unit and within the broader Resort, and concluded that the use of the Accommodation Units for permanent or long-term accommodation is not a lawful use (at [8]).

The Court went on to consider the discretionary nature of the relief sought. In particular, the Court had regard to the Council's submission that the size and characteristics of each Accommodation Unit made them unsuitable for permanent or long-term accommodation (at [12]). The Court also had regard to communications from officers of the Council since 2003 which provided support for the Accommodation Units being used on a permanent basis, as well as the fact that the Council has collected rates on the basis that the Accommodation Units are used on a long-term or permanent basis (at [10]).

The Court noted that the exercise of the Court's discretion is broad, and that as set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 "…it concerns the enforcement of a public duty in circumstances where there is a legislative purpose in upholding", "the integrated and co-ordinated nature of planning law", and "a court may be less likely to deny equitable relief than it would in litigation between private citizens" (at [11]).

The Court made an order on terms including variations sought by the 78th Respondent, which prohibit the use of the Accommodation Units for permanent or long-term accommodation except those Accommodation Units subject to a lease for up to 12 months and Accommodation Units owned by respondents who live in them for as long as they live in them (at [13]).

The Court thus declared the use of the Accommodation Units for permanent or long-term accommodation is not a lawful use (at [8]), and made orders on the terms of a draft prepared by the Council (at [15]).

The Court's decision highlights that as a general rule representations made by Council officers cannot make right that which is wrong at law. In this case, the fact that the Council officers had made representations in support of the permanent or long-term accommodation use did not overcome the fact that such use was not supported by the development approvals.