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Sunshine Coast Regional Council v D Agostini Property Pty Ltd

 

[2019] QPEC 52

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v D Agostini Property Pty Ltd and Others [2019] QPEC 52

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(Applicant)

v

D AGOSTINI PROPERTY PTY LTD

( First respondent )

and

13 INVESTMENT COMPANY PTY LTD

(Second respondent)

and

ROSS WILLIAM MAUDSLEY & MARYA VERONICA MAUDSLEY

(Third respondent)

and

ROSSPROP PTY LTD

(Fourth respondent)

and

ONCE UPON A TIME ENTERPRISES PTY LTD

(Fifth respondent)

and

CEMONE LEITH TIRA

(Sixth respondent)

and

XYCON PTY LTD,  STEVEN DOUGLAS MOODY, HORIZON GROUP INVESTMENTS PTY LTD

(Seventh respondent)

and

LMFC HOLDINGS PTY LTD AS TRUSTEE

(Eighth respondent)

and

MARION JOSEPHINE CRUTTENDEN

(Ninth respondent)

and

VERA BRAZEL & BERNADETTE ANNE MOORE

(Tenth respondent)

and

PRICELESS & UNIQUE ENTERPRISES PTY LTD

(Eleventh respondent)

and

GARRY ANDREW CAMPLIN & KAREN PAMELA CAMPLIN

(Twelfth respondent)

and

JOHN ARTHUR HOZIER & DENISE BETTY HOZIER

(Thirteenth respondent)

and

RL & CG THOMPSON PTY LTD AS TRUSTEE

(Fourteenth respondent)

and

SHUKRY SAHHAR & HELEN SAHHAR

(Fifteenth respondent)

and

KAY ELIZABETH SOMERVILLE

(Sixteenth respondent)

and

ROBERT JOHN BALMER

(Seventeenth respondent)

and

JAMES WILLIAM BROWN

(Eighteenth respondent)

and

DIDIER MARIE LAROSE & MAEVA JOSEE ROSE-MAY LAROSE

(Nineteenth respondent)

and

MICHAEL JAMES HARRIS & YASMEEN LIZA HARRIS

(Twentieth respondent)

and

VIVIENNE ELIZABETH GREEN, PHILIP JOHN GREEN, MICHAEL ESKANDER & OLIVIA ESKANDER AS TRUSTEES

(Twenty-first respondent)

and

GREGORY JOHN BOTT & LINDA JULIE BOTT

(Twenty-second respondent)

and

HOMESHIELD THE HOME IMPROVERS (SOUTHSIDE) PTY LTD

(Twenty-third respondent)

and

KEVIN BRUCE FULFORD

(Twenty-fourth respondent)

and

ADRIAN RICHARD ARTHUR WATERS AS TRUSTEE

(Twenty-fifth respondent)

and

RICHARD ANTHONY GARDNER & FIONA HEATHER HORNERY

(Twenty-sixth respondent)

and

RAOUF NASEIF ISHAG GEORGE

(Twenty-seventh respondent)

PETER JOHN JACKSON & LEAH JANE JACKSON AS TRUSTEES

(Twenty-eighth respondent)

and

KELLEY SUE LACY

(Twenty-ninth respondent)

and

ALISON LOUISE BERNER

(Thirtieth respondent)

and

AZTEC DEVELOPMENTS (QLD) PTY LTD AS TRUSTEE

(Thirty-first respondent)

and

WILLIAM ANTHONY WELFORD PEGLER & ELIZABETH JEAN TOWNS

(Thirty-second respondent)

and

STUART REGINALD SIMMONDS & VERITY LOUISE SIMMONDS AS TRUSTEES

(Thirty-third respondent)

and

DENISE KAY RUHLE

(Thirty-fourth respondent)

and

DAVID NEVILLE RICHARD HANLIN, DULCIE LOUISE HANLAN & RICHARD HENRY HANLIN AS TRUSTEES

(Thirty-fifth respondent)

and

ANTHONY JOHN WEST & SANDRA DIANNE WEST

(Thirty-sixth respondent)

and

RCR DEVELOPMENTS PTY LTD

(Thirty-seventh respondent)

and

REX WILLIAMS BARNES & JUDI MARGARET BARNES

(Thirty-eighth respondent)

and

ROBERT RAYMOND SPRIGGS & BRENDA JOY STICKLER

(Thirty-ninth respondent)

and

BRONWYN LOUISE HOWE & PAUL ALEXANDER HOWE

(Fortieth respondent)

GRAHAM IAN POWLEY

(Forty-first respondent)

and

MICHAEL LOUIS WOODBURY BUGLER

(Forty-second respondent)

and

GARY WAYNE JONES & LEE MARGARET JONES

(Forty-third respondent)

and

GARY EDWARD PENROSE

(Forty-fourth respondent)

and

BRIAN JOHN PEGLER & NAOMI LORRAINE PEGLER

(Forty-fifth respondent)

and

BODY CORPORATE FOR PELICAN WATERS RESORT COMMUNITY TITLES SCHEME 34816

(Forty-sixth respondent)

FILE NO/S:

09/2019

DIVISION:

Planning and Environment

PROCEEDING:

Application within a proceeding for the determination of a preliminary point

ORIGINATING COURT:

Planning and Environment CourtMaroochydore

DELIVERED ON:

8 November 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

8-9 August 2019

JUDGES:

Cash QC DCJ

ORDERS:

It is declared that the decision notice dated 17 October 2003, as it relates to the premises identified as lots 201-218, 301-318 and 401-418 on SP 168156, limits the use of that part of the premises to use for the temporary accommodation of travellers.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – PRELIMINARY POINT – PROPER CONSTRUCTION OF DEVELOPMENT APPROVAL – where a decision notice gave approval for the construction of a multi-level resort – where approval was to “establish a Hotel/Motel (102) suites, Function Rooms, Restaurant and Multiple Dwelling (62 units)” – dispute about use of particular allotments – whether some allotments can only be used for temporary accommodation – meaning of approval – meaning of “temporary accommodation”.

Planning and Environment Court Act 2018 (Qld), s 11

Planning Regulation 2017, Schedule 24

Uniform Civil Procedure Rules 1999 (Qld), r 117

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, 19 [73]

Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 [20]

Caloundra City Council v Pelican Links Pty Ltd & Anor [2005] QCA 84, [22]

Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 290

HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, 235

Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414, 416

Matijesevic v Logan City Council [1984] 1 Qd R 599, 605

Parramatta City Council v Shell Co of Australia Ltd [1992] 2 NSWLR 632

Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2011] QPELR 1

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 305, 326

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686, 698 [52]

COUNSEL:

C L Hughes QC with H Stefanos for the applicant

R A Quirk for the second, third, sixth, eleventh, fifteenth, eighteenth, twenty-second, twenty-fifth, fortieth, forty-first, forty-third and forty-fourth respondents

No appearance for the balance of the respondents

SOLICITORS:

Sunshine Coast Council Legal Services for the applicant

P&E Law for the second, third, sixth, eleventh, fifteenth, eighteenth, twenty-second, twenty-fifth, fortieth, forty-first, forty-third and forty-fourth respondents

No appearance for the balance of the respondents

Introduction

  1. [1]
    In October 2003 the applicant Council[1], by way of a decision notice, gave approval for the construction of a resort at Pelican Waters.[2] The planned development included a multi-story building containing accommodation units over several floors. The approval was to establish “a Hotel/Motel (102 suites), Function Rooms, Restaurant and Multiple Dwellings (62 units)”. Among the conditions attached to the approval were conditions that the site be developed in accordance with the approved plans and that:

“the use of the premises for the purpose of a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwellings shall at all times accord with the criteria set out within the Hotel, Motel, Function Rooms, Restaurant and Multiple Dwellings definitions in Section 9.2 of the Planning Scheme.”[3]

  1. [2]
    The development was completed in 2006 and the resort is in use. The applicant is of the view that allotments on levels two, three and four of the building (“the allotments”) were approved for use only as temporary accommodation and, contrary to the approval, some units are currently being used as permanent residential accommodation.
  2. [3]
    On 29 January 2019 the applicant commenced proceedings seeking a declaration pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld). The effect of the declaration sought would be that 102 allotments, found on levels two, three and four of the resort cannot be used for permanent residential accommodation and are approved only for “the temporary accommodation of travellers (including tourists or holiday makers)” for no more than three consecutive months. The 46 respondents are the registered owners of the lots the subject of the application as well as the body corporate for the resort. A number of respondents resist the Council’s application.
  3. [4]
    On 12 April 2019 Reid DCJ ordered that a preliminary point be decided before the determination of the application.[4] The preliminary point was defined as:

“The interpretation of the decision notice dated 17 October 2003 for the use of premises for the purposes of a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling, including condition 5 for that part of the premises identified as lots 201-218, 301-318 and 401-418 on SP 168156 and whether it:

  1. (a)
    limits the use of that part of the premises to use for temporary accommodation of travelling (sic[5]) and/or holidaymakers only; or
  1. (b)
    allows that part of the premises to be used for permanent and/or long term accommodation as well as temporary accommodation for travellers and/or holidaymakers; and
  1. (c)
    what temporary accommodation means.”
  1. [5]
    On 8 and 9 August 2019, I heard evidence and argument concerning the preliminary point. The parties who participated were the Council and the second, third, sixth, eleventh, fifteenth, eighteenth, twenty-second, twenty-fifth, fortieth, forty-first, forty-third and forty-fourth respondents. The participating respondents were all represented by the same counsel and solicitor. Before considering the competing arguments concerning the preliminary point it is appropriate to deal with the position of the respondents who did not participate in the proceedings.

The respondents

  1. [6]
    Only twelve of the 46 respondents participated in the proceedings. The remaining respondents are a mix of natural persons and companies, as well as the body corporate for the resort. All but one of the remaining respondents were actually served, or treated as having been served pursuant to an order made on 23 April 2019. The fourth, fifth, eighth, fourteenth, twenty-fourth, thirty-first and thirty-seventh respondents were all served with the originating application in accordance with the applicable rules. The order of 23 April 2019 had the effect of treating the first, seventh, ninth, tenth, twelfth, thirteenth, sixteenth, seventeenth, twentieth, twenty-first, twenty-third, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-eighth, thirty-ninth, forty-second, forty-fifth and forty-sixth respondents as having been informally served pursuant to rule 117 of the Uniform Civil Procedure Rules 1999 (Qld). In relation to the nineteenth respondent it was ordered that service was taken to have been effected by post. The failure to personally serve the final respondent, the thirty-second, was excused.
  2. [7]
    As well, with varying degrees of formality, 23 respondents indicated they did not wish to take an active part in the proceedings. These were the seventh, ninth, tenth, twelfth, thirteenth, sixteenth, seventeenth, twentieth, twenty-first, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-eighth, thirty-ninth, forty-second, forty-fifth and forty-sixth respondents.
  3. [8]
    In the result only twelve respondents elected to participate in the proceedings.

The issue for preliminary determination

  1. [9]
    The preliminary point reserved by Judge Reid raises three questions.
  2. [10]
    First, does the development approval limit the use of the identified allotments to temporary accommodation only?
  3. [11]
    Secondly, does the approval permit the use of those allotments for permanent and/or long term accommodation?
  4. [12]
    Thirdly, was does “temporary accommodation” mean?
  5. [13]
    At the hearing of the matter before me an issue arose as to the nature of the preliminary point reserved by Judge Reid and how it might be answered. Both parties provided draft orders.[6] Both parties framed the draft orders as declarations. Some time was spent hearing submissions from the respondents about whether the preliminary point should be answered at all. This was curious, not least of which because the reservation and formulation of the point was taken directly from the submissions for the respondents.[7] The concern of the respondents appeared to be that the form of orders proposed by the applicant would transgress an order of Judge Reid that the “hearing of the proceeding, including issues relating to the court’s discretion, be deferred pending the determination of the interpretation point”. That is, it was suggested that the effect of my decision would be to finally determine the dispute between the parties in circumstances where the respondents had been denied the chance to put on relevant evidence.
  6. [14]
    In the end, it was plain that both parties agreed that I was required to construe the development approval to determine its meaning.[8] Whether or not my determination of the meaning of the development approval involves the exercise of discretion, and I doubt that it does, it cannot be suggested that my answer to the questions posed would finally determine the originating application. Whatever view I reach as to the meaning of the development approval and the phrase “temporary accommodation” there remains, at least, the issue of the actual use of the allotments and whether that use is consistent with or contrary to the proper meanings I determine. As well, the question of what orders for relief, if any, might be made will no doubt involve truly discretionary considerations. The process in which I am engaged does not involve a “hearing of the proceedings, including issues relating to the court’s discretion”.

Relevant principles

  1. [15]
    It is appropriate to commence with a consideration of the principles relevant to the construction of the development approval. The same principles which apply to statutory construction apply to the construction of planning documents.[9] The rights to the use of land are to be determined from the terms of the approval itself, which may include expressly or by implication other material.[10] As development approvals operate, in effect, in rem and may be relied upon by subsequent owners and users of the land, the approval, where ambiguous, should be construed in the manner that places the least burden upon the land owner.[11] Any limitations or restrictions should appear plainly in the approval and the consequences of a lack of clarity fall upon the approving authority.[12] Extrinsic evidence, including that of experts, may be admissible to explain technical terms or “the physical state of the land and the course of development” to aid a proper understanding of planning instruments.[13] But the opinion of an expert about the construction of a planning approval is not admissible.[14]

Evidence

  1. [16]
    Prior to the hearing the applicant filed affidavits from Shane Adamson, a town planner, and Melissa Evans, the general manager of the resort. At the hearing the applicant relied only upon part of the affidavit of Mr Adamson.[15] The respondent initially objected to much of the affidavit of Mr Adamson, but at the hearing the objection narrowed to paragraphs [66] to [80] of the town planning report that is exhibit “SA-2” to the affidavit of Mr Adamson’s affidavit. In these paragraphs Mr Adamson expresses opinions about the impact on the resort of what he assumed was the permanent residential use of a number of allotments on levels two, three and four. He also ventured the opinion that permanent occupation of the relevant allotments “could not have been contemplated by the Development Approval”. In my view, the opinions expressed by Mr Adamson in paragraphs [66] to [80] of exhibit “SA-2” are not relevant to my determination of the preliminary point. I have not had regard to this material in reaching my conclusions.
  2. [17]
    The balance of the evidence of Mr Adamson was to the following effect. The development was approved by notice on 17 October 2003. Since then there have been two minor changes to the approval but neither touched upon the allotments relevant to this application. Mr Adamson described the allotments planned for levels two, three and four of the development. On each level there are two single bedroom suites. The remaining suites, sixteen on each floor, are dual key. Thus on each floor there are 34 allotments – a total of 102 across the three floors. The plans provide for these to be “small, studio style suites with limited kitchen facilities”.[16] Across the remaining floors there are 62 allotments. The plans for these levels, five through to twelve, show units that are larger and have “more comprehensive” kitchen facilities.[17] The number of units per floor on the higher floors varies from no more than ten to as few as four.
  3. [18]
    The plans contemplate a dedicated service lift. The lift rises from the basement, where it is adjacent to the laundry, and continues through level one (in effect the lobby to the building) where it passes through the area designated as the kitchen, and on to the mezzanine where it passes near the area designated as “Housekeeping General Store”. The service lift continues to levels two, three and four but does not provide access to higher levels.[18]
  4. [19]
    The plans provided for car parking in the basement area. 90 spaces are allocated as “Resident Parking”, 73 spaces as “Hotel Parking”, 21 spaces as “Visitor Parking” and four spaces as “Staff Parking”. The “Resident Parking” spaces are separate to, and gated from, the spaces designated “Hotel” or “Visitor” parking. Most of the spaces designated “Resident Parking” are attached to a caged storage area. The “Hotel” and “Visitor” spaces do not have an attached storage area.[19]
  5. [20]
    In cross-examination Mr Adamson was asked about the view he expressed that the allotments on levels two, three and four were not “fully self-contained”. There was some debate about the meaning of the phrase and why Mr Adamson formed his opinion. In the end I do not think Mr Adamson’s opinion on this matter is relevant. The presence or absence in the planning approval of the sorts of features that might commonly be associated with permanent residential facilities may give some indication as to the meaning of the approval. But Mr Adamson’s opinion about whether a unit as constructed is “self-contained” does not assist in construing the development approval.
  6. [21]
    Mr Adamson was also asked about an aspect of infrastructure charges. Under the planning approval charges were calculated for water supply headworks.[20] The relevant planning scheme provides for different charges to be levied based upon the expected use of the premises. The charges are based upon a unit called an “Equivalent Tenement”, or “ET”. A dwelling house equates to 1 ET regardless of the number of rooms in the house. A “multiple dwelling” unit is treated as 0.6 ETs for water and 0.75 for sewerage, again regardless of the number of rooms. “Hotel/Motel” accommodation is treated as 0.37 ETs per bedroom for water and 0.5 for sewerage. In the development approval charges were calculated for what was described as “102 hotel bedrooms” and also for “Residential Units – 62 units”. The “hotel bedrooms” were rated according to the rates for “Hotel/Motel” accommodation under the Planning Scheme. The “units” were rated according to the rates for “multiple dwelling” units under the Planning Scheme.
  7. [22]
    Mr Adamson agreed that there may be instances where a one bedroom hotel room attracted a higher per bedroom charge than a multiple room dwelling. He was cross-examined about the apparent policy behind the rates and what that suggested about the intended use of parts of the development. I do not consider Mr Adamson’s views in this regard to be of assistance. The relevance of the assessment of the charges to the meaning of the development approval is to be found in the words of the approval itself rather than what Mr Adamson thought they meant or intended. The differential treatment between “102 hotel bedrooms” and “62 units” may suggest the use approved for each was not the same.
  8. [23]
    I note that Mr Adamson’s evidence was helpful to understand the plans incorporated into the development approval. I have taken care to avoid having regard to the building as it has in fact been constructed rather than considering what has been provided for in the plans that were incorporated into the development approval.[21] Where Mr Adamson expressed an opinion about the meaning of the development approval (e.g., paragraph [22] of “SA-2”) I have ignored that opinion.
  9. [24]
    The affidavit of Ms Evans, the manager of the resort, was read but not referred to other than a footnote in the applicant’s submissions. She was not cross-examined. Ms Evans’ described in general terms her experience, her responsibilities at the resort, and its facilities. She offered the opinion that the units on levels two, three and four are “designed, sized and fitted out in a manner that is consistent with typical ‘hotel’ or ‘motel’ style rooms”.[22] Ms Evans also set out her belief that some of the units on levels two, three and four are being used for permanent residency. I do not consider any part of Ms Evans affidavit relevant to the preliminary point I have to decide and I have disregarded its contents.

Applicant’s submissions

  1. [25]
    Primarily, the applicant argues that the words of condition five should be given their obvious meaning. That is, the use of the premises for each of the purposes listed in the condition must conform to the definition for that purpose to be found in the Planning Scheme. The result would be that “hotel” is treated as a hotel, “motel” as a motel, “function room” as a function room, and so on. The 102 allotments on levels two, three and four must be the “Hotel/Motel (102 suites)” described in the approval and the remaining accommodation on the higher levels the “Multiple Dwelling (62 units).
  2. [26]
    The applicant relied upon the calculated infrastructure charges as support for the conclusion that the 102 suites were approved for a different use to the 62 units. As well the applicant relied upon aspects of the design, including the service lift, car parking and the fitout of the rooms themselves.
  3. [27]
    As to the definition of “temporary accommodation” the applicant acknowledged that Planning Scheme and legislation at the time of the approval did not define the term. The phrase “short term accommodation” is now defined in the Planning Regulation 2017 as “accommodation of less than 3 consecutive months to tourists and travellers”. This bears some similarity to the definition of motel in the Planning Scheme that motels are for the “temporary accommodation of travellers”. The applicant submitted that in the context of this matter “temporary accommodation” meant short term, non-permanent accommodation of no more than three consecutive months.

Respondents’ submissions

  1. [28]
    The respondent submitted that the use of the word “premises” in condition five of the approval imported the definition of “premises” from the Integrated Planning Act 1999 (Qld). Applying the expansive definition of “premises” from the legislation, it was argued, meant that condition five approved any part of the premises for any of the uses listed in that condition. That is, a part apparently designed as a restaurant might be used as a multiple dwelling and so on.
  2. [29]
    Alternatively, the respondents placed reliance upon the description of the allotments on levels two, three and four as “Hotel/Motel” (emphasis added). It was submitted each allotment was approved for use as either a hotel room or a motel room. The submission continued that while motel is defined in the Planning Scheme as “premises used or intended to be used for the temporary accommodation of travellers”, the definition of hotel carries no such restriction. Hotel is defined as:

“[A]ny 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”.

  1. [30]
    The respondents pointed to other aspects of the Planning Scheme that were said to indicate a hotel could have an accommodation component. In the various references to hotel or the accommodation component of a hotel there is no express limitation on the length of a person’s stay. Thus, it is said, there is no time limit on how long a person might stay in hotel accommodation. In support of this the respondent relied upon aspects of the Community Management Scheme (“CMS”) pertaining to the development and associated legislation. The interpretation promoted by the respondent, that the allotments were hotel accommodation without any restriction on length of stay, was said to be consistent with the CMS.
  2. [31]
    The respondents submitted it was unnecessary to consider the meaning of “temporary accommodation” as, on their case, the use of the allotments was not restricted in this way.

Consideration

  1. [32]
    The respondents’ first proposition, that the development approval permits any part of the premises to be used for any of the listed purposes, cannot be accepted. Merely stating the proposition that a part of the building designed as a restaurant could be used as a multiple dwelling is probably sufficient to illustrate the absurdity of this interpretation. As well, this interpretation is inconsistent with the very idea of a condition, which is to confine or restrict the manner in which the approval is to be exercised. It is also inconsistent with the assessment of infrastructure charges, which levy different rates based upon the assumption there will be different uses. The condition should be read as requiring each component of the development to be used in accordance with the Planning Scheme definition for that component.
  2. [33]
    It is necessary then to consider into which category the allotments the subject of this application fall. As noted, the subject allotments total 102. The allotments on the remaining floors number 62. This is consistent with the approval and the plans. It must follow that the 102 allotments the subject of the present application are those described as “Hotel/Motel (102 suites)” in the approval.
  3. [34]
    This leads to the respondents’ second point, that the allotments were approved for use as a hotel as well as motel and “hotel” does not impose any restriction on the length of accommodation. I am unpersuaded this is how the approval should be read. The relevant definition of hotel says nothing about accommodation. It refers only to that part of a building that may be subject to a liquor licence or a TAB betting shop. As was submitted by the applicant, a building can be a hotel even if it does not have accommodation. Indeed, common experience suggests this is often the case. If there is to be an accommodation component to a hotel development it is necessary to obtain approval for that purpose. Approval of a “hotel” is not itself enough to allow accommodation, temporary or otherwise. The CMS does not assist the respondent. It was brought into existence some time after the approval. The CMS contains no restrictions on the use of the allotments on levels two, three and four. The respondent submitted this supports the conclusion that permanent accommodation was intended or contemplated. In my view it is at least equally open to conclude the absence of restriction in the CMS reflected that the use was otherwise limited by the approval.
  4. [35]
    The applicant’s submission that the 102 allotments were approved for use in accordance with the definition of “motel” in the Planning Scheme must be accepted. Apart from the language of the decision and condition five, which is in my view persuasive, there is considerable support for a finding that the allotments were not approved for permanent accommodation. Each of these allotments was planned to be relatively small, studio-style accommodation with limited kitchen facilities. The levels on which the allotments are found was planned to be serviced by a dedicated “service lift” that starts adjacent to the laundry, passes through the kitchen and housekeeping areas, and ends at level four. The car parking arrangements provide further support. Each car park in the “Resident Parking” section bears a number that correlates to one of the unit numbers on the plan for levels five to twelve. Many of these parks are adjacent to a storage cage. In contrast, the car parks in the “Hotel Parking” section are unallocated and do not have storage facilities. Finally, the calculations of infrastructure charges also suggests the accommodation was approved for different uses.
  5. [36]
    Having regard to all of these matters, I am satisfied that the 102 allotments on levels two, three and four were approved for use as a “motel” as that term is defined in the Planning Scheme. The definition, as far as is relevant, is as follows:

‘Motel’ means 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.”

  1. [37]
    A key question in the proceedings generally will be whether any of the allotments are being used in a manner inconsistent with this definition. It is for this reason that it was proposed to decide what “temporary accommodation” means. The applicant submits that temporary in this context means not more than three consecutive months. A difficulty with so defining the term is that it is obviously very dependent upon the context of these proceedings. The applicant, for reasons that are perhaps understandable, was unable to cite much by way of support for this definition. In Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2011] QPELR 1; [2010] QPEC 52, a case cited by the applicant, Judge Griffin SC was not required to attempt a definition of “temporary accommodation” but was instead concerned with whether a house was being used for “long term accommodation”. The decision that the house was not being used for that purpose turned upon the facts of the case. His Honour’s view that the house in question was being used for “short term accommodation for stays of two to three days normally but up to 59 days” is of little assistance.[23]
  2. [38]
    The present definition of “short term accommodation” in the Planning Regulation 2017 is also not determinative. There is in my view no basis for relying upon subsequent legislation to fix a precise meaning to a term used in the approval documents. “Temporary accommodation” is not a technical term or a term of art. It cannot have a single fixed meaning. Whether or not a particular use amounts to temporary accommodation is a question of fact. To decide if a use is “temporary accommodation” it would “usually, if not always, be necessary to exercise some judgment conditioned by matters external to its terms in order to determine what is comprehended within it and what is not”.[24] It is a matter to be judged in light of time, place and circumstances.
  3. [39]
    I am left in a position where it is, in my view, impossible to precisely define “temporary accommodation” as that phrase is used in the Planning Scheme definition of “motel”. Any time period I select, beyond which accommodation ceases to be temporary, would be arbitrary. Such a decision would be informed only by my sense of what the term means. In these circumstances it would be unwise to attempt a definition.
  4. [40]
    It is also, in my view, unnecessary to fix a definition. As noted above an issue in the proceedings is whether any particular allotment is being used in a manner inconsistent with the definition of “motel”. This question can be answered, based upon the evidence relating to the use of the allotment, without fixing a precise time limit for “temporary accommodation”.

Conclusion and orders

  1. [41]
    I have concluded that the allotments the subject of the application were approved for use only in accordance with the definition of “motel” found in the Planning Scheme. It follows that the use of these allotments is limited to the “temporary accommodation of travellers”. The questions reserved include a reference to holidaymakers. There is no mention of such a term in the planning approval and associated documents. Its use in the questions probably derived from the wording of the originating application. It would be inappropriate to answer the questions in a manner that imported “holidaymakers”. The first two questions are really sides of the same coin. In addition, I have noted my concerns about defining “temporary accommodation”. In the circumstances it is only necessary to answer the first question posed, and this should be reframed to reflect the matters I have noted.
  2. [42]
    The order will be:

It is declared that the decision notice dated 17 October 2003, as it relates to the premises identified as lots 201-218, 301-318 and 401-418 on SP 168156, limits the use of that part of the premises to use for the temporary accommodation of travellers.

Footnotes

[1]  The applicant was then the Caloundra City Council but is now the Sunshine Coast Regional Council.

[2]  For convenience I refer to the approval conveyed by the decision notice as “the approval” or “the development approval”.

[3]  “Assessment Manager Conditions” one and five of the decision notice dated 17 October 2003, attached to the certificate issued pursuant to section 251 of the Local Government Act 2009 (Qld).

[4] Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors [2019] QPEC 19. The point identified by Judge Reid for preliminary determination was that posed by the respondents.

[5]  I have assumed this to be an error and that it was intended to use the word “travellers” rather than “travelling” as appears in the second part of the question.

[6]  Marked for identification as “A” and “C”.

[7] Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors [2019] QPEC 19 [15], [31] and [33].

[8]  T.1-40.34-45.

[9] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686, 698 [52]; AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, 19 [73].

[10] Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, 321 [20]; Parramatta City Council v Shell Co of Australia Ltd [1992] 2 NSWLR 632.

[11] Matijesevic v Logan City Council [1984] 1 Qd R 599, 605.

[12] Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414, 416.

[13] Caloundra City Council v Pelican Links Pty Ltd & Anor [2005] QCA 84, [22].

[14] HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, 235; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 305, 326.

[15]  The respondent relied upon Mr Adamson’s professional qualifications and experience as outlined in exhibit “SA-1”. As well the applicant sought to rely upon the following paragraphs in “SA-2”: [1] – [7]; [10] – [13]; [22] – [25]; [33]; [46] – [49]; [53] – [54]; [58] – [61]; and [66] – [80].

[16]  Affidavit of Shane Adamson, exhibit “SA-2”, paragraph [23].

[17]  Affidavit of Shane Adamson, exhibit “SA-2”, paragraph [24].

[18]  Affidavit of Shane Adamson, exhibit “SA-2”, paragraph [24]; also exhibit 4 being an extract from the approved plans.

[19]  Affidavit of Shane Adamson, exhibit “SA-2”, paragraph [61] and the photographs on page 79 of the exhibit; also exhibit 4 being an extract from the approved plans.

[20]  Certificate of Michael Whittaker dated 3 June 2019 issued pursuant to section 251 of the Local Government Act 2009 (Qld), page 9 of attachment 1.

[21]  For example, Mr Adamson described the multiple dwelling units on levels five to twelve as each having a private letterbox (paragraph [60] of exhibit “SA-2”). I have ignored this as a factor that might suggest a distinction in the way in which the various allotments are treated in the planning approval.

[22]  Affidavit of Melissa Gayle Evans, paragraph [10].

[23]  For completeness I note the decision was reversed on appeal for reasons that did not depend upon the meaning of “long term accommodation”: Sunshine Coast Regional Council v EBIS Enterprises P/L [2010] QCA 379.

[24] Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 290.

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Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd

  • Shortened Case Name:

    Sunshine Coast Regional Council v D Agostini Property Pty Ltd

  • MNC:

    [2019] QPEC 52

  • Court:

    QPEC

  • Judge(s):

    Cash DCJ

  • Date:

    08 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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