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Savage v Cairns Regional Council[2016] QCA 103

Savage v Cairns Regional Council[2016] QCA 103

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Savage & Anor v Cairns Regional Council [2016] QCA 103

PARTIES:

WARREN GEORGE SAVAGE
(first applicant)
SAVAGE RESORTS PTY LTD ACN 150 197 256 AS TRUSTEE FOR THE ETERNITY TRUST UNDER INSTRUMENT 714445096
(second applicant)
v
CAIRNS REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 9279 of 2015

P & E Appeal No 54 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Cairns – [2015] QPEC 37

DELIVERED ON:

22 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The application for leave to appeal is refused.
  2. The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – OTHER MATTERS – where the first applicant is the caretaker of a block of 39 strata title units – where the first applicant owns the second applicant company, which holds the management rights, and is licensed to conduct a letting business for the units – where the units have been used as predominantly holiday accommodation since they were constructed in 1995 – where in 2014 at least one of the units was used as a permanent residence, leading to the respondent issuing notices to compel the use of the units as holiday accommodation only – where 24 of the unit owners applied to the respondent in 2014 for a material change of use from “Holiday Accommodation” to “Holiday Accommodation/Multiple Dwelling” – where the change of use was approved – where the applicants challenged the approvals in the Planning and Environment Court on the bases that i. the respondent had unlawfully approved the applications for material use, ii. the applications were made in a piecemeal way in the sense described in Pioneer Concrete v Brisbane City Council, iii. the applications were not properly made within the meaning of s  261(1)(a)(ii) of the Sustainable Planning Act 2009 (Qld), and iv. there was modification by the respondent of the original approval given in 1994, limiting the use of the units to short term accommodation for tourists and travellers – where the learned primary judge dismissed the application – where the applicants contend that the primary judge erred in law and failed to give adequate reasons – whether the primary judge erred

Sustainable Planning Act 2009 (Qld), s 260, s 261(1)(a)(ii), s 263(1)(a), s 498(1)(a), s 498(2)

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, cited

Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639; (1983) 50 LGRA 309, cited

Bartlett v Brisbane City Council [2004] 1 Qd R 610; [2003] QCA 494, cited

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited

El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33, cited

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, cited

Gladstone Regional Council v Homes R Us (Australia) Pty Ltd (2015) 209 LGERA 302; [2015] QCA 175, applied

HA Bachrach v Caboolture Shire Council (1992) 80 LGERA 230; [1993] QPLR 33; [1992] QCA 384, cited

Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2010] 1 Qd R 439; [2009] QCA 231, cited

Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] QPELR 5 l; [2000] QCA 268, cited

Hoveringham Gravels Ltd v Secretary of State for the Environment (1977) 76 LGR 533, cited
Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299; [2004] FCAFC 307, considered

Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited

Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, cited

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; [1980] HCA 1, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, followed

Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPELR 848; [2015] QPEC 37, approved

Woolworths Ltd v Caboolture Shire Council Warehouse Pty Ltd [2004] QPELR 550; [2004] QPEC 15, cited

Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL:

G R Allan for the applicants

T Fantin for the respondent

SOLICITORS:

All About Law for the applicants

P & E Law for the respondent

  1. FRASER JA:  I have had the advantage of reading in draft the reasons of my colleagues.  I agree with the reasons of McMurdo JA, which I consider do not conflict with the reasons of Morrison JA except in some relatively minor respects.  The application for leave to appeal should be refused and the first and second applicants should pay the respondent’s costs of the application to be assessed on the standard basis.
  2. MORRISON JA:  Il Centro in Cairns is a block of 39 strata titled units, 38 of which are one-bedroom in size.  Mr Savage owns and resides in the 39th, the only two-bedroom unit.  He is also the caretaker of the block.  His company, Savage Resorts, has the management rights, and is licenced to conduct a letting business for Il Centro.
  3. The one-bedroomed units can be described as single bedroom apartments with a convenience kitchenette, on-site management and a breakfast room.  Since it was constructed in about 1995, those units have been used predominantly as holiday accommodation units.
  4. However by about 2014 at least one was used as a permanent residence, leading to the Council issuing notices to compel use for holiday accommodation only.
  5. As a result, a total of 24 unit owners applied to the Cairns Regional Council in 2014, for approval for a material change of use, from “Holiday Accommodation” to “Holiday Accommodation/ Multiple Dwelling”.  The Council approved the change of use.  The practical effect is that those 24 unit owners can now use their units for permanent residential use as well as holiday accommodation.
  6. Mr Savage and Savage Resorts challenged the approvals in the Planning and Environment Court, applying for declarations that the applications for material change of use, and the Council’s approvals, were unlawful and invalid for a variety of reasons.  Success would have had the effect of striking down the approvals and restricting the use of the units to holiday accommodation.
  7. The learned primary judge dismissed the application.
  8. Mr Savage seeks leave to appeal from those orders, based on a large number of proposed appeal grounds.  Leave to appeal is required under s 498(2) of the Sustainable Planning Act 2009 (Qld).  If leave is granted, the grounds of appeal are restricted to errors or mistakes of law: s 498(1)(a) of the Act.  For that purpose it is not sufficient to demonstrate an arguable error of law, as the error has to be material in the sense that it “could … have materially affected [the] decision”.[1]
  9. The proposed grounds of appeal can be grouped together into five main areas of dispute.  Thus the issues are whether the learned primary judge erred:
  1. in finding that the Council had lawfully approved the applications for material change of use, as code assessable applications for two separate but not inconsistent uses, namely “Multiple Dwelling” and “Holiday Accommodation”;[2]
  2. by failing to give adequate reasons for rejecting the contention that the “Multiple Dwelling” and “Holiday Accommodation” uses were mutually exclusive uses;[3]
  3. in finding that:[4]
  1. the consent of the body corporate owner was not required for the applications;
  2. the common property did not form part of the subject land for each application;
  3. the common property did not need to be included in the applications; and
  4. the applications were not made piecemeal in the sense described in Pioneer Concrete v Brisbane City Council;[5]
  1. in finding that the applications were properly made within the meaning of s 261(1)(a)(ii) of the Sustainable Planning Act 2009 (Qld), once the Council had received and assessed them;[6] and
  2. in finding that there was no modification of the original approval given in 1994, which limited the use of the units to short term accommodation for tourists and travellers.[7]
  1. The parties agreed that the substance of the proposed appeal would be heard together with the application for leave to appeal.

Grounds 1-3: construction of “Multiple Dwelling”

  1. Under the relevant planning instrument, CairnsPlan 2009, whether a development application for a material change of use was categorised as code assessable or impact assessable, was the subject of an Assessment Table, categorising them by the various types of development activities and by planning area.[8]
  2. There were two relevant uses, that for “Multiple Dwelling” and that for “Holiday Accommodation”.  Under the table each was code assessable.
  3. Counsel for Mr Savage contended that when regard was had to the definitions of those uses, it was apparent that the only permissible use for premises defined as a “Multiple Dwelling” was permanent residence, and not any type of short term accommodation.[9]  In that respect reliance was placed on authorities where it was said that “residential” usually connotes permanent occupation.[10]  Further, it was contended the learned primary judge was wrong to find that the two uses, “Multiple Dwelling” and “Holiday Accommodation”, were not mutually exclusive.[11]  It was also put that the learned primary judge erred in finding that there was no need or justification to treat the two uses as a “combined use”.[12]

Legal principles

  1. The resolution of this issue turns on the proper construction of the definitions.  For that purpose this Court has held[13] that one needs to apply the principles for construction made clear by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:[14]

“[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’

…

[78]However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”

  1. Zappala also set out two further matters applicable to the correct approach when construing planning instruments:[15]

“[55]The correct approach to statutory interpretation must begin and end with the text itself.[16] At the same time it must be borne in mind that the

‘modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense ...’[17]

[56]The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical,[18] and read as a whole and as intending to achieve balance between outcomes.[19]”

Discussion

  1. The definition of “Multiple Dwelling” is listed under “Residential Uses” in s 5.3.1:[20]

“Multiple Dwelling

Means the use of premises comprising six or more dwelling units of self-contained accommodation on one lot for residential purposes.

The use includes accommodation commonly described as flats, home units, apartments, townhouses or villa houses.”

  1. It is immediately obvious that the definition does not use the phrase “permanent residential purposes”, or any variant of it.  Other definitions in the residential uses section do so.  One example is the definition of “Retirement Village” as the use of premises “as an integrated community containing a number of dwelling units for permanent residential accommodation for older or retired persons, generally 55 or more years of age”.  Another is the definition of “Special Residential Accommodation” as the use of premises “specifically designed (where not located in an existing building), managed and used to provide short term or for permanent residential accommodation for a group of unrelated persons associated with a religious order or for social or community purposes intended to ensure the health and well-being of the occupants”.[21]
  2. Further, the definitions of “Home Activity” and “Home Based Business” each refer to use by “permanent resident/s of the house”.
  3. Some residential uses are also defined in a way that permits letting on short term accommodation for holiday rental.  Thus the definition of “House” means the “use of premises comprising self-contained accommodation located on a lot for the exclusive residential use of one household”, but included in that residential use is “short term letting of a house for the purpose of holiday rental accommodation”.[22]  Further, the definition of “Home Based Business”, a residential use, includes “the provision of accommodation to tourists or travellers, commonly described as bed and breakfast accommodation (no more than 2 bedrooms) or farm-stay accommodation”.
  4. The mixture of residential use and short term accommodation for tourists or holiday rental are all forms of “similar [residential] uses”.[23]
  5. Section 5.3.2 deals with “Tourist And Short Term Accommodation Uses”.  Within that section “Holiday Accommodation” is defined as follows:

“Means the use of premises for the accommodation of tourists or travellers.

The use may include restaurants, bars, meeting and function facilities, dining room, facilities for the provision of meals to guests and a manager’s unit and office when these facilities are an integral part of the accommodation.

The use includes facilities commonly described as holiday apartments or suites, international or resort hotel or motel.”

  1. It is to be noted that whilst the use is for holiday accommodation for tourists or travellers, and therefore typically short term or non-permanent accommodation, the use includes “a manager’s unit”, which could be, and is likely to be, permanently occupied.  The same is the case in the definition of “Short Term Accommodation”.[24]
  2. There are other defined uses in the Tourist And Short Term Accommodation section that comprehend permanent residential use, as well as short term holiday use.  One example is the definition of “Caravan and Relocatable Home Park”:[25]

“Means the use of premises for the placement of caravans or relocatable homes for residential accommodation.

The use includes the use of camping areas and cabins for overnight and holiday accommodation, as well as amenity buildings, recreational and entertainment facilities, manager's office and residence, kiosk and storage facilities which cater exclusively for occupants of the caravan park.”

  1. Whilst the word “permanent” is not used to qualify “residential accommodation”, it is notorious that relocatable home parks are used for a cheaper form of permanent residential occupation.
  2. In my view, whilst s 5.3.1 refers to residential uses, it is clear on the plain language of the definitions referred to above, that they were not meant to be restricted to permanent residential uses unless the qualifying word “permanent” was used.  The inclusion of short term or holiday accommodation uses in various uses defined as “residential uses” in s 5.3.1, and conversely the inclusion of permanent residential uses in various uses defined as “tourist and short term accommodation uses” in s 5.3.2, indicate that the residential purposes are not restricted to permanent residential uses unless specified so.  In my view, where the definition of “Multiple Dwelling” refers to “residential purposes” it does not mean “permanent residential purposes”.
  3. Such a construction is compelled, in my view, by CairnsPlan 2009 itself.  In s 1.4.1[26] the question of interpretation of the instrument is dealt with.  It provides (relevantly) that “In the interpretation of CairnsPlan, the interpretation that will best achieve the desired outcomes of CairnsPlan contained in … The DEOs [and] The purposes of the Codes … Is to be preferred to any other interpretation”.[27]
  4. For the City Centre Planning Area Code[28] the purposes of the Code include facilitating the following desired environmental outcome: “The provision of housing for permanent residents and additional accommodation for tourists is facilitated, provided a high standard of residential amenity can be achieved”.[29]
  5. Then, the Multiple Dwelling and Holiday Accommodation Code,[30] which governs development for a material change of use, includes the purpose to: “Foster the development of alternative housing options, including a mix of population densities, within residential areas”.
  6. The construction of “residential purposes” in “Multiple Dwelling” as not being restricted to “permanent residential purposes” would “best achieve the desired outcomes” reflected in those purposes.

Uses mutually exclusive

  1. Counsel for Mr Savage contended that the uses of Multiple Dwelling and Holiday Accommodation were “mutually exclusive”.  The contention was developed in those terms because of the way the learned primary judge expressed his conclusion:[31]

“I do not see the uses as being mutually exclusive. It is conceivable that they could be carried on separately and at the same time. A self contained dwelling unit may be used by a tourist or traveller for residential purposes for a long or short stay. It is also conceivable that a so-called a 'fly-in fly-out' worker may own a unit for permanent residential purposes but seek to let it for holiday accommodation whilst periodically away for work. More importantly, there is no discernable increased impact in the way the two uses may be enjoyed.”

  1. In turn, the phrase “mutually exclusive” was adopted by the learned primary judge because it was used in the Originating Application[32] and submissions by Mr Savage, to which the Council responded in the same terms.[33]
  2. The phrase was meant by Mr Savage to be understood “in the sense that [the two uses] cannot be “started” or carried on –“year round” - at the same time, because one is a permanent “residential use” and one is “short term accommodation use”.[34]
  3. In truth what was meant was that the uses are inconsistent or incompatible with one another, and cannot be carried on at the same time.
  4. I do not accept the contention that the uses are inconsistent or incompatible.  There is nothing inconsistent or incompatible with an owner of the units using the unit as the owners’ residence for part of the time, and using it to rent out for the balance.
  5. The learned primary judge gave one example of two such consistent or compatible uses in paragraph [56] of the Reasons, as mentioned in paragraph [30] above.  Others are easy to imagine: a resident owner going away for some time wishing to let out the unit in order to make some income; a resident owner moving to new residential premises, and wishing to let out the unit; a resident owner wishing to take in casual tenants under a scheme such as Airbnb, or Stayz.
  6. In my view, the same result would follow even if the “Multiple Dwelling” residential purposes were construed as “permanent residential purposes”.  Just because an owner permanently resides in a unit does not mean that their letting of the unit on a short term basis while temporarily absent destroys that permanency.
  7. That conclusion is consistent with the authorities which establish that two uses can be carried out upon the same premises.[35]  It is also consistent with the authorities that establish that multiple planning permissions can validly co-exist for the development of the same land, even if mutually inconsistent.[36]
  8. In Gladstone Regional Council v Homes R Us (Australia) Pty Ltd[37] this Court adopted, as applicable under the Sustainable Planning Act 2009 (Qld), the principle applicable under other planning legislation,[38] that different development approvals for the same land may co-exist.  It is not necessary in this case to consider a situation in which inconsistent development approvals co-exist for the development of the same land and one of the approved developments occurs.  As explained above the learned primary judge was correct in holding that the approved uses of “Multiple Dwelling” and “Holiday Accommodation” are not inconsistent.  They are capable of being carried on together at the same time or separately at different times.  (An example of the former situation is a case in which a permanent resident grants a licence over part of a unit (or a non-exclusive licence over the whole unit) for the accommodation of a tourist or traveller).
  9. Part of Mr Savage’s contentions on this point were that when the applications were made to the Council, they sought approval to a combined or hybrid use, namely “Multiple Dwelling and Holiday Accommodation”.  That, it was said, was not a defined use in the Land Use Definitions section[39] and therefore not a defined use for the Assessment Table for material change of use.  Therefore, the hybrid use fell to be assessed under “All other Material Change of Use”, which was impact assessable, not code assessable.
  10. I do not accept that contention.  The owners sought two separate permissions in their application.  The first was a newer version of the use that they currently enjoyed (Accommodation Unit used for holiday letting), Holiday Accommodation, and the second was the Multiple Dwelling use.  They did not seek, nor did the Council understand them to be seeking, a new form of combined use.
  11. In my view, grounds 1-3 of the proposed appeal fail.

Ground 4: failure to give adequate reasons

  1. In support of this ground it was contended that the learned primary judge did not refer to “the provisions of the planning scheme and the application of the principles of statutory construction from Zappala (as that case applied the principles from Project Blue Sky) … nor did he refer to the case law to which he was referred in oral submissions …”.[40]  Thus, it was said, the learned primary judge had not dealt with Mr Savage’s contentions “relating to the construction of CairnsPlan 2009 … which were relied upon in support of the submission that “multiple dwelling” … and “holiday accommodation” were mutually exclusive uses”.[41]
  2. The learned primary judge applied the principles in Project Blue Sky, as is evident from his recitation of them in his reasons.[42]  His Honour’s failure to mention Zappala is not to the point, as that case (not surprisingly) followed Project Blue Sky.  Plainly the learned primary judge applied the correct principles from Project Blue Sky.
  3. The learned primary judge also referred to the central issue (whether the applications were code or impact assessable),[43] the relevant definitions,[44] the Assessment Table,[45] the principles of construction,[46] the argument that the two uses were a combined use that came in a later section of the Assessment Table,[47] the extended definitions,[48] the intent of the CBD - North Cairns District, the City Centre Planning Code and Multiple Dwelling and Holiday Accommodation Code.[49]
  4. The submissions to which this contention refers, and which were adopted before this Court, are simply the detailed construction arguments that were made orally to this Court.[50]  Those contentions have been rejected, and therefore cannot be said to have been matters which, if accepted by the learned primary judge, would have affected the outcome before this Court.  The failure to deal with them in a more detailed way does not indicate an error of law.[51]
  5. The learned primary judge’s reasons reveal his analysis of the definitions, conducted by applying the principles from Project Blue Sky and other relevant authority, and how he reached the conclusion rejecting the contentions that the use was a combined use and that the two were mutually exclusive uses.  His Honour was not required to expose his reasoning in greater detail.  This Court in Drew v Makita (Australia) Pty Ltd[52] said:

“[59]The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons.’ For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:

‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’

[60]McHugh JA's view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but "… it is necessary that the essential ground or grounds upon which the decision rests should be articulated.’”

  1. In my view, there is no substance in this contention, and ground 4 fails.

Grounds 5-8: inclusion of common area in the application; consent of the body corporate; piecemeal applications; applications not properly made

  1. These grounds are grouped together because each of grounds 5-7, if made out, would result in a finding that the application was not properly made for the purposes of s 260 of the Sustainable Planning Act, and if ground 8 does not succeed the learned primary judge’s finding, that the application was properly made, will be upheld.
  2. It is therefore appropriate to discuss ground 8 first.
  3. The learned primary judge held that: (i) the common property did not form part of the land the subject of the applications; (ii) the common property was not required to be included in the IDAS form for the applications; (iii) consent of the body corporate, to the applications for a material change of use, was not required; and (iv) the applications were not “piecemeal” because they contained an accurate description of the land and did not omit reference to a substantial part of the affected land.[53]
  4. Underpinning those findings was the factual finding that, in so far as the applications involve the use of common property for access purposes, such access “will not materially increase in scale or intensity”.[54]
  5. His Honour then said:

“[70]Even if I were to arrive at a contrary view, that is, the original form of the application was not properly made for the purposes of s 260 of SPA; pursuant to s 261(1)(a)(ii), they were deemed to be properly made for the purposes of the Act once the council as the ‘assessment manager’ received, assessed and decided them.”

  1. Mr Savage challenged that finding.  However, there was evidence that prior to approving the applications, the Council had been made aware of the lack of consent and the omission of the common property from the applications, and had taken legal advice on the consequences.  Thus in a recommendation to the Council it was told:

“Owners consent to making a Development Application

This issue does effect how an application might progress through the planning process. The applicant contended that the proposal can be lodged with Council without the consent of the relevant Body Corporate endorsement. Council officers sought legal advice on this aspect of the proposal, which concluded that;

a.provided the proposed use will involve the use of common property for access purposes only, common property does not form part of the land the subject of the application and need not be included in the IDAS form 1; and

b.if there is to be no development of the common property (e.g. no material increase in the scale of the use of common property) the common property does not form part of the application and it follows that the consent of the body corporate is not required;

On the above basis the application was processed without the consent of the Body Corporate for Il Centro.

Further, there is nothing in law to prevent the applicants from making the subject application.”

  1. That evidence grounds the application of s 261(1)(a)(ii) of the Sustainable Planning Act, and thus the applications were properly made applications.  Once the impact of that evidence was understood, Counsel for Mr Savage advised that ground 8 was no longer maintained.
  2. However, it was said that grounds 5-7 were still maintained.  That cannot be accepted.  Each of those grounds is overtaken if s 261(1)(a)(ii) is satisfied.  In my view, even if there were substance to the complaints in grounds 5-7, they must fail because of the finding in paragraph [70] of the Reasons below, which is no longer challenged.
  3. Ground 8 is not maintained and grounds 5-7 fail.

Ground 9: modification of the 1994 consent permit

  1. On the hearing below, Mr Savage sought to establish that in 1994 the Council modified the original permit, in a way that restricted the use of the accommodation units in Il Centro to “... ‘holiday apartments’, namely short term accommodation for tourists and travellers and not for permanent residential accommodation”.[55]
  2. The learned primary judge found against that contention:[56]

“[42]It follows that there was no lawful modification of the original approval by limiting the use to holiday apartments' namely short term accommodation for tourists and travellers and not for permanent residential accommodation. The continuing lawful use permitted by original approval remained for ‘Accommodation Units (High Density)’ as defined in the 1971 Scheme, which included, but was not limited to, holiday accommodation.”

  1. Counsel for Mr Savage accepted that if the main construction point (reflected in grounds 1-3) was resolved against Mr Savage, even if ground 9 succeeded there was little utility in making a declaration, because as far as the 24 owners who were granted the 2014 approvals were concerned, the 1994 permit will have been overtaken by the later approvals.  Counsel also accepted that there was no utility in making a declaration, in those circumstances, against the remaining 14 owners, as they had not sought approvals and were not parties to the current litigation.
  2. In my view, once the 2014 approvals are upheld, and the construction point is resolved against Mr Savage, there is no utility in making the declaration sought.  I would decline to do so on that basis, even if the points were otherwise made out.
  3. However, I respectfully agree with the learned primary judge that there was no relevant modification to the 1994 permit, for the reasons his Honour gives in paragraphs [37] and [38] of the Reasons below.  All that was sought was a variation to the car parking calculation, and no variation to the permit itself.
  4. Ground 9 fails.

Conclusion and orders

  1. For the reasons given above, no error of law has been demonstrated that would warrant the grant of leave to appeal.
  2. I would propose the following orders:
  1. The application for leave to appeal is refused.
  2. The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.
  1. PHILIP McMURDO JA:  The applicants sought declaratory and injunctive relief in the Planning and Environment Court.  Their case was dismissed in its entirety.[57]  They apply for leave to appeal, arguing that the primary judge made several legal errors.[58]  The court has heard full argument on the merits of the proposed appeal.  For the reasons that follow the application for leave to appeal should be refused.
  2. The issues relate to the use which may be made of the units within the “Il Centro” complex in central Cairns.  The council’s approval for its erection and use was given by a permit issued on 8 February 1994, which I will call the original approval.  One of the issues is the effect of that approval.  The applicants say that the use of the units, according to the original approval, was only for holiday makers, tourists and travellers.  For many years the council seemed to agree with that view and this litigation has its genesis in demands by the council, against some unit owners, that their units not be used for accommodation of a different kind, such as a permanent or long-term residence.
  3. The ultimate response of many of those owners was to seek another development approval.  Seven owners made an application in June 2014 and another 17 made a relevantly identical application in December 2014.  The evident intent of the applicants was to obtain a development approval which would not limit the use of their units to tourist and travellers but would permit a use also for longer term accommodation.  The council issued the approvals as sought.  I will refer to these as the 2015 approvals.
  4. In the proceeding in the Planning and Environment Court, the applicants joined the 24 owners.  However they took no active part in the proceeding and nor were they represented in this court.
  5. Some of the declaratory relief which was and is sought by the applicants concerns the effect of the original approval.  But if the applicants’ challenges to the effect of the 2015 approvals are not to succeed, as they did not before the primary judge, that relief would seem to have no utility: the permitted use or uses of the 24 units would be according to the 2015 approvals.
  6. I have concluded that the 2015 approvals are effective.  But in case that is incorrect, I have considered the arguments as to the original approval and it is convenient to go to them first.

The original approval

  1. Two declarations are sought by the proposed appeal.  They are in identical terms and are distinguished only according to the identity of the unit owners.  In effect a declaration is sought that:

“The use of each of [the 24 lots] within Il Centro that was approved under Town Planning Consent Permit 3902/93 issued by the Cairns City Council on 8 February 1994…was for ‘accommodation units’ - holiday apartments, short term accommodation for tourists and travellers.”

  1. The relevant terms of that permit, as set out in the council’s letter of 8 February 1994 were as follows:

“Consent has been given by the Council to the use of [the development site] and the erection and use of a building or buildings for the purpose of 38 x 1 bedroom and 1 x 2 bedroom accommodation units…”

It can be seen at once that the approved use was for “accommodation units” but with no further description of that use.  In particular the use was not confined to accommodation units which were for “holiday apartments, short term accommodation for tourists and travellers.”

  1. The applicants’ argument was and is that the effect of the original approval was revealed by correspondence which followed the issuing of the approval itself.  The primary judge considered that argument but rejected it.[59]
  2. The correspondence which followed the issue of the permit related to carparking.  A condition of the original approval, as issued 8 February 1994, was as follows:

“Provision shall be made on the site for carparking spaces and access thereto at the rate current at the time the Building Application is submitted as well as for the loading/unloading of vehicles.  Such carparking, access and loading/unloading areas shall be constructed in accordance with the requirements of the City of Cairns Town Planning Scheme and By-laws and the approved plans and to the reasonable satisfaction of the City Engineer.  On the present method of calculation 48 spaces would be required.

A minimum of 39 spaces shall be provided on the site.”

  1. On 22 April 1994, the developer’s architects wrote to the council about carparking.  After referring to that condition of the approval, they wrote that “[c]learly the ‘Il Centro’ design is for Holiday Apartments” so that the council should calculate its required number of car spaces with that use in mind and it should require no more than its stated minimum of 39 spaces.
  2. On 18 May 1994, the council replied that it would require only 39 spaces:

“on the basis that:

  • the proposed developments will have on-site management and are intended to operate as holiday apartments;
  • Council’s Policy currently requires one carspace for each strata titled self‑contained motel unit which is considered to be a similar use to the proposed holiday apartments; and
  • the proposed holiday apartments are unlikely to generate the same level of on‑site carparking as permanent accommodation due to the short term occupancy of residents and due to the location of the proposed developments in the Central Business District.”
  1. The primary judge reasoned that the subjective intention of the council or the developer was irrelevant, as was the fact that the council’s later stance (which prompted the 2014 applications for approval) was that the original approval was limited in the way for which the applicants contend.  His Honour said that the original approval of 8 February 1994[60] was unambiguous and that the expression “accommodation units” took its meaning from the definition, within the council’s then planning scheme, of “Accommodation Units (High Density)” as including any “building or other structure used or intended for use as flats and home units” as well as “guest houses, hostels, unlicensed hotels [and] motels”.  From that definition, the term “accommodation units” was not limited as the applicants had argued.  Further, contrary to the applicants’ argument, his Honour concluded that there was no variation of the original approval after it issued on 8 February 1994.[61]
  2. I agree with that reasoning.  The declaration or declarations, according to the proposed notice of appeal to this court, would not call for a consideration of the argument that the original approval was modified by that subsequent correspondence.  Those declarations would be as to the effect of the original approval as issued on 8 February 1994.  I agree with the primary judge’s conclusion as to meaning of “accommodation units” by reference to the council’s then planning scheme.  Further, on any ordinary understanding of that term it would not be limited in the way for which the applicants contend.
  3. It follows that the relief sought in respect of the original approval could not be granted.

The 2015 approvals: what was permitted?

  1. The applicants argue that the 2015 approvals were given irregularly, in that the council’s planning scheme required the applications for those approvals to be the subject of an impact assessment,[62] rather than the code assessment[63] which they received.  The argument turns upon the proper characterisation of what was sought by each of the applications.  That issue requires a consideration of the meaning of the terms “multiple dwelling” and “holiday accommodation” which were used in the applications and which are defined terms under the current planning scheme, which is called CairnsPlan 2009.
  2. The owners applied for an approval for a development in the nature of a material change of use of their units to “Multiple Dwelling/Holiday Accommodation”.  The primary judge said that it was undisputed this expression was intended to mean “Multiple Dwellings and Holiday Accommodation”.[64]
  3. The terms “Multiple Dwelling” and “Holiday Accommodation” are defined in CairnsPlan 2009 as follows:

“Multiple Dwelling:

Means the use of premises comprising six or more dwelling units of self-contained accommodation on one lot for residential purposes.

The use includes accommodation commonly described as flats, home units, apartments, townhouses or villa houses.”

“Holiday Accommodation:

Means the use of premises for the accommodation of tourists or travellers.

The use may include restaurants, bars, meeting and function facilities, dining room, facilities for the provision of meals to guests and a manager's unit and office when these facilities are an integral part of the accommodation.

The use includes facilities commonly described as holiday apartments or suites, international or resort hotel or motel.”

  1. The council argued, and the primary judge accepted, that the 2014 applications effectively sought, in each case, relevantly two planning permissions.[65]  The first was to use the unit as a “multiple dwelling” as defined in the plan.  The second was to use it for “holiday accommodation” as defined.  As the applicants accept, according to CairnsPlan 2009 an application for a material change of use to “multiple dwelling” or an application for a material change of use to “holiday accommodation” would each be code assessable.
  2. His Honour held, correctly, that there was no impediment to the grant of an approval which permitted more than one use.  That was confirmed, subsequent to his judgment, by this court in Gladstone Regional Council v Homes R Us.[66]
  3. However the applicants argued, as they do in this court, that what was sought by the owners was not effectively those two permissions, but instead a permission to use their lot in a different way, according to a type of use which was some hybrid of “multiple dwellings” and “holiday accommodation”.  By characterising the application in that way, the applicants argued that it fell within a different category within that part of CairnsPlan 2009 which prescribed the type of assessment (code or impact assessable) which was to be undertaken.  By being neither an application for a use as multiple dwellings nor an application for a use as holiday accommodation, the applications fell into the category of “all other Material Change of Use (unless otherwise specified in Schedule 8 of IPA)”, for which it was prescribed that the application was impact assessable.
  4. The primary judge did not accept that characterisation of the applications.  He held that what was sought was effectively two permissions.  That conclusion was clearly correct.  When there is no impediment to the grant of a development approval which permits more than one use, even where such uses could not be contemporaneously enjoyed for the same piece of land,[67] there is no reason to interpret the applications and thereby the 2015 approvals in such a way.  Because each of the uses of “multiple dwellings” and “holiday accommodation” is a defined use under the planning scheme, the applications in the terms of those made in this case were to be read as an intended reference to those uses, absent some particular and unambiguous specification to the contrary (of which none was suggested).
  5. Moreover, a further weakness in the applicant’s argument comes from their contention that the distinct uses of “multiple dwellings” and “holiday accommodation” are “mutually exclusive”, by which the applicants mean that they could not be simultaneously enjoyed within the one property.  If that is correct, it is difficult to conceive of a use which could be a hybrid of the two.
  6. Upon the primary judge’s construction of the applications, they were code assessable, which is the assessment which they received.  Before discussing the other basis for challenging the 2015 approvals,[68] it is convenient to go to the applicants’ argument for declarations as to the meaning of the terms “multiple dwelling” and “holiday accommodation” as defined in CairnsPlan 2009.
  7. The applicants’ argument can be introduced by setting out the terms of the declarations which they would seek in this respect:

“(a)The proper construction of the term “multiple dwelling” which is a separately defined use in the “Residential Use” category of land uses in CairnsPlan 2009 is the use of premises comprising six or more dwelling units of self‑contained accommodation - including flats, home units, apartments, townhouses or villa houses - for permanent residential accommodation and does not include the use of premises for "holiday accommodation";

(b)The proper construction of the term “holiday accommodation” which is a separately defined use in the “Tourist and Short Term Accommodation” category of land uses in CairnsPlan 2009 is the use of premises for short term accommodation by tourists and travelers [sic] and does not include the use of premises for self‑contained permanent residential accommodation;”

  1. The relief which is thereby sought is not limited to units in Il Centro.  Further, the relief is not sought in circumstances where there is some apparent controversy as to whether the use of any of the units in Il Centro is within one or other of those defined uses.  The apparent purpose of these declarations is to achieve an outcome by which a unit in Il Centro would not be used contemporaneously as a “multiple dwelling” and as “holiday accommodation”.
  2. There is a further question, however, raised by this part of the applicants’ argument.  It is whether the expression “for residential purposes”, within the definition of “multiple dwelling”, should be read as for “permanent residential purposes”.  That question arises because the declarations sought each employ the expression “permanent residential accommodation”.
  3. In the definition of “multiple dwelling”, there is no express reference to permanence.  Ordinarily the expression “residential purposes” would have a broader reach than “permanent residential purposes”.  In Marana Holdings Pty Ltd v Commissioner of Taxation,[69] the Full Federal Court (Dowsett, Hely and Conti JJ) extensively discussed the ordinary meaning of the terms “reside”, “residence” and “residential premises”.  The court concluded that the term “residential premises”, according to its ordinary meaning, “includes premises which are occupied as a residence, or intended to be, and capable of being so occupied” and that “[i]n that context the word ‘residence’ has the meaning attributed to it by the various dictionary references, involving a degree of permanent or long‑term commitment to the occupation of the premises in question.”[70]
  4. That reasoning has been applied in this court in Pearson v Thuringowa City Council[71] and Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd.[72]  In the latter case, Chesterman JA, with whom McMurdo P and Dutney J agreed, said that the word “residential”, within the definition of “residential purposes”, in the then Integrated Planning Act 1997 (Qld):[73]

“…must be given its ordinary meaning and connotation which, as Keane JA observed,[74] requires the occupant of the premises in question to live in them over a substantial period.”

  1. It can then be seen that the declarations which are sought would confine the expression “residential purposes” to a narrower category than would follow from its ordinary meaning.  Further, some other terms in CairnsPlan 2009 are defined by the expression “permanent residential accommodation”, which confirms that “residential accommodation” is not so confined.  At least for that reason, the declarations sought could not be granted.
  2. I return to the principal question raised by this part of the applicant’s argument, which is whether a unit could be used both as a “multiple dwelling” as defined and as “holiday accommodation” as defined.  For present purposes it may be accepted that in no case could a use fall within both categories.  But that is not the question here:  rather it is whether these two permissions are mutually inconsistent, as Lord Scarman discussed in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment.[75]  Lord Scarman there gave as an example the facts of Hoveringham Gravels Ltd v Chiltern District Council,[76] where an owner was given permission to build a house on a certain part of land, on condition that it should be the only house built there, and where it was later discovered that there was an earlier but effective permission to build a house on another part of the same land.  Before discovering that earlier permission, the owner had built a house under the permission which he had obtained.  Those two permissions were mutually inconsistent because the erection of a second house would have been inconsistent with the terms of the permission by which the first house had been erected.
  3. But in the present case, these permissions are not mutually inconsistent.  It is not uncommon for residents to let their homes, or part of them, for short term holiday accommodation, particularly by marketing their homes on well-known websites.
  4. It follows that the declaratory relief sought in the terms which I have set out above at [71] should not be granted.

The consent of the body corporate

  1. It was argued that the applications for the 2015 approvals were irregular because they were not accompanied by the consent of the body corporate of Il Centro.  It is clear that in fact there had been no such consent lodged with the applications.  But the council considered that this was unnecessary and the primary judge agreed.  By the proposed appeal, the applicants would seek a declaration from this court that the consent of the body corporate was required.
  2. By s 263(1)(a) of the Sustainable Planning Act 2009 (Qld), “the consent of the owner of the land the subject of an application is required for its making if the application is for…a material change of use of premises…”.  The term “owner” of land is defined in sch 3 of the Act to mean the person for the time being entitled to receive the rent for the land.  It is accepted by the council that the body corporate is the owner in the relevant sense of the common property at Il Centro.
  3. By s 260(1)(e) of the Act, it is provided that if, under s 263, the consent of the owner of the land the subject of the application is required, the application for a development approval must “contain or be accompanied by the owner’s written consent” or it must include a declaration that the owner has given such a written consent.
  4. Section 261 provides that an application is a “properly made application” only if either it complies with (relevantly) s 260(1) or the assessment manager for the application (here the council) is satisfied of that compliance and accepts the application.
  5. The applicants’ argument to the primary judge was that approval should also have been sought for the use of the common property, being that property used for access to and from the relevant lots,[77] which was an incidental use necessarily associated with the use proposed to be made of these lots.  In reliance upon the judgment of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council,[78] it was said that an application which sought permission or permissions only for the units, and not also for the common property, was invalid because it failed to disclose the entirety of the proposed use of land.  I shall refer to this as the Pioneer Concrete argument.  In turn, the inclusion of the common property within the land the subject of the application in each case would have required the consent of the body corporate as its owner.
  6. The primary judge reasoned that the consent of the body corporate:[79]

“… was only required if the proposal involved the use of the common property for particular purposes other than the ordinary right of access to and from the lots.  The use of the common property for its established function of providing access does not require its inclusion as part of the land.”

  1. His Honour distinguished this “from a case where parts of the common property are an important part of the proposed use or there is a material increase in the intensity or scale of the use of the common property”.[80]  After setting out a passage from the judgment of Jones J in Bartlett v Brisbane City Council,[81] the primary judge concluded that the common property did not form part of the land which was the subject of the applications so that the consent of the body corporate had not been necessary.  He said that “the applications could not be said to be ‘piecemeal’,[82] because the applications contained an accurate description of the land and did not omit reference to a substantial part of the affected land.”[83]
  2. His Honour went further, concluding that there was a complete answer to this argument from the fact that the council had considered a suggested non‑compliance with s 260(1) of the Sustainable Planning Act in this respect and had accepted the application, with the result that in each case it was to be treated, according to s 261, as a “properly made application”.
  3. In the hearing in this court, counsel for the applicants conceded that the facts had engaged s 261.  Once that concession was made, it followed that each of the applications was a “properly made application”.  It also appeared to follow, although this remained in issue, that there was no apparent basis for impugning the 2015 approvals by the arguments about the common property.
  4. Arguably however, the objection upon the basis of the Pioneer Concrete argument was one which could not have been defeated by the operation of s 261.  According to the Pioneer Concrete argument, the application should have been more extensive in that it should have been made by reference not only to these particular units but also to the common property.  Section 260 was not the obvious source of a requirement for such a more extensive application.  It is only a non‑compliance with s 260 which could engage s 261.
  5. But in the present case, as the primary judge reasoned, the Pioneer Concrete argument could not be accepted.  In Pioneer Concrete itself, the deficiency in the application was that it did not seek permission to use certain adjoining land upon which it was intended to construct and use an access road for the subject site which the appellant was proposing to use as a quarry and for other purposes.  In the language of the current statute (the Sustainable Planning Act) that use of the adjoining land would have constituted “development” for which a development approval would be necessary.  In Pioneer Concrete, the necessity for such an approval was undisputed and the appellant’s argument, which was rejected by the majority, was that such an approval could be sought at a later stage.  But in the present case, as the primary judge held, there was no planned development upon the common property.  The reasoning in Bartlett v Brisbane City Council was therefore applicable.  The use of the common property for access to and from the units was already permitted by the 1994 approval.  Therefore the common property was not land which had to be included within the application for approval.  The consent of the body corporate was not required because it was not the owner of any of the lots, and they were the land which constituted “the land the subject of the application”.

The complaint of insufficient reasons

  1. A further argument for the applicants, although not one which was developed orally, is that the primary judge did not give sufficient reasons.  This argument has no basis.  The primary judge’s reasoning was clear and comprehensive.  And in part the effect of the argument seems to be that the judge did not accept the applicant’s submissions rather than that he did not reveal his reasoning.

Conclusion and order

  1. For these reasons the proposed appeal is without merit.  I would refuse the application for leave to appeal and order the applicant to pay the costs of the application.

Footnotes

[1] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639; HB Bachrach v Caboolture Shire Council (1992) 80 LGERA 230 at 238; Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] QPELR 5.

[2] Grounds 1-3: AB 789-791.

[3] Ground 4: AB 791.

[4] Grounds 5-7: AB 791-792.

[5] (1980) 145 CLR 485.

[6] Ground 8: AB 792.

[7] Ground 9: AB 793.

[8] AB 585.

[9] Applicant’s outline paragraphs 23-24, 27.

[10] Referring to AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44 at [28] (AAD); Zappala Family Company Pty Ltd v Brisbane City Council [2014] QCA 147 at [78]-[80] (Zappala); Pearson v Thuringowa City Council [2006] 1 Qd R 416 at [12]; Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2010] 1 Qd R 439 at [30]-[32].

[11] Applicant’s outline paragraph 24.

[12] Applicant’s outline paragraphs 11-14.

[13] AAD at [73]; Zappala at [52]-[54].

[14] (1998) 194 CLR 355; [1998] HCA 28, at [69]-[71] and [78].  Internal citations omitted.

[15] Zappala at [55]-[56].

[16] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, 46 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98, 107 [39]; [2012] HCA 55.

[17] CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, at 408.

[18] Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337; [2005] QPEC 15, 342.

[19] Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494; [2011] QPEC 23.

[20] AB 620.  Emphasis in original.

[21] AB 620; emphasis added.

[22] AB 619.

[23] CairnsPlan2009, s 5.3, AB 619.

[24] AB 621.

[25] AB 621, emphasis added.

[26] AB 552.

[27] In my view it is plain that the conjunctive “and” was meant to be between the DEO’s and the purposes of the codes, rather than where it is placed: see AB 552.

[28] The relevant Code as Il Centro is located in the City Centre.

[29] Section 4.5.8, AB 592.

[30] Section 4.7.17, AB 597.

[31] Reasons [56].

[32] Paragraphs 94, 95; AB 669.

[33] Applicant’s outline below, paragraphs 228, 230, 296, 300; AB 713, 720, 721.  Respondent’s list of disputed items, paragraph 5(c) and (d), 12(g); AB 680, 682.  Respondent’s outline below, paragraphs 35(c), 40, 45, 51, 85(g), Appendix A paragraphs 5(d), 12(g); AB 736, 737, 739, 740, 749, 752, 755.

[34] Originating application paragraph 95, AB 669; Applicant’s outline below, paragraph 230, AB 713.

[35] For example, Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Woolworths Ltd v Caboolture Shire Council [2004] QPEC 15.

[36] For example, Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132.

[37] [2015] QCA 175 at [9].

[38] See Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 144.

[39] Chapter 5 of CairnsPlan 2009, AB 617.

[40] Applicant’s outline paragraph 30.

[41] Applicant’s outline paragraph 31.

[42] AB 783, Reasons [52].

[43] Reasons [15].

[44] Reasons [45].

[45] Reasons [48].

[46] Reasons [52].

[47] Reasons [48].

[48] Reasons [54].

[49] Reasons [58].

[50] Applicant’s outline below, paragraphs 233, 286-292, 297-302 and 306-314; AB 713, 719, 720-721 and 722.

[51] Cf: El Boustani v Minister Administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198 at [60].

[52] [2009] 2 Qd R 219; [2009] QCA 66, at [59]-[60].

[53] Reasons [68]-[69].

[54] Reasons [68].

[55] Reasons [37], Applicant’s outline below, paragraph 112, AB 697.

[56] Reasons [42].

[57] Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPEC 37.

[58] Leave being required and an appeal being limited to errors of law:  s 498 of the Sustainable Planning Act 2009 (Qld).

[59] [2015] QPEC 37, [38].

[60] Incorrectly referred to as 18 February 1994: [2015] QPEC 37, [25].

[61] [2015] QPEC 37, [38].

[62] Sustainable Planning Act 2009 (Qld) s 314.

[63] Sustainable Planning Act 2009 (Qld) s 313.

[64] [2015] QPEC 37, [44].

[65] [2015] QPEC 37, [51].

[66] [2015] QCA 175, [9].

[67] See eg Pioneer Aggregates (UK) Pty Ltd v Secretary of State for the Environment [1985] AC 132, 144 per Lord Scarman.

[68] Discussed below at [33]-[42].

[69] (2004) 141 FCR 299; [2004] FCAFC 307.

[70] (2004) 141 FCR 299, 312; [2004] FCAFC 307, [57] (Emphasis added).

[71] [2006] 1 Qd R 416, 418; [2005] QCA 310, [11] per Keane JA (as he then was), McPherson JA and Dutney J agreeing.

[72] [2010] 1 Qd R 439; [2009] QCA 231.

[73] [2010] 1 Qd R 439, 446; [2009] QCA 231, [32] (Emphasis added).

[74] In Pearson v Thuringowa City Council.

[75] [1985] AC 132.

[76] (1977) 76 LGR 533.

[77] Which included the car space for a lot.

[78] (1980) 145 CLR 485.

[79] [2015] QPEC 37, [65].

[80] [2015] QPEC 37, [65].

[81] [2004] 1 Qd R 610, 619.

[82] A reference to the Pioneer Concrete argument.

[83] [2015] QPEC 37, [69].

Close

Editorial Notes

  • Published Case Name:

    Savage & Anor v Cairns Regional Council

  • Shortened Case Name:

    Savage v Cairns Regional Council

  • MNC:

    [2016] QCA 103

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, McMurdo JA

  • Date:

    22 Apr 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QPEC 3706 Aug 2015Application for declaratory relief dismissed: Morzone QC DCJ.
Notice of Appeal FiledFile Number: 9279/1516 Sep 201554/15
Appeal Determined (QCA)[2016] QCA 10322 Apr 2016Application for leave to appeal refused: Fraser, Morrison and Philip McMurdo JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
3 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Cite 3 - [2013] 1 Qd R 1
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
1 citation
Jump To
Cite 1 - [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
1 citation
Jump To
Cite 1 - (2009) 239 CLR 27
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 639
Cite 2 - [1983] 2 Qd R 639
Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309
1 citation
Jump To
Cite 1 - (1983) 50 LGRA 309
Bartlett v Brisbane City Council[2004] 1 Qd R 610; [2003] QCA 494
3 citations
Jump To
Cite 1 - [2003] QCA 494
Cite 2 - [2004] 1 Qd R 610
Cite 3 - [2004] 1 Qd R 610
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
1 citation
Jump To
Cite 1 - (1997) 187 CLR 384
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
1 citation
Jump To
Cite 1 - [1997] HCA 2
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98
1 citation
Jump To
Cite 1 - (2012) 87 ALJR 98
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
4 citations
Jump To
Cite 1 - [2009] QCA 66
Cite 2 - [2009] QCA 66
Cite 3 - [2009] 2 Qd R 219
Cite 4 - [2009] 2 Qd R 219
El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198
2 citations
Jump To
Cite 1 - (2014) 199 LGERA 198
Cite 2 - (2014) 199 LGERA 198
El Boustani v Minister administering Environmental Planning and Assessment Act 1979 [2014] NSWCA 33
1 citation
Jump To
Cite 1 - [2014] NSWCA 33
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
1 citation
Jump To
Cite 1 - [2012] HCA 55
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
2 citations
Jump To
Cite 1 - (1975) 32 LGRA 157
Cite 2 - (1975) 32 LGRA 157
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175
3 citations
Jump To
Cite 1 - [2015] QCA 175
Cite 2 - [2015] QCA 175
Cite 3 - [2015] QCA 175
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd (2015) 209 LGERA 302
1 citation
Jump To
Cite 1 - (2015) 209 LGERA 302
H A Bachrach P/L v Caboolture SC (1992) 80 LGERA 230
2 citations
Jump To
Cite 1 - (1992) 80 LGERA 230
Cite 2 - (1992) 80 LGERA 230
H A Bachrach Pty Ltd v The Council of the Shire of Caboolture [1992] QCA 384
1 citation
Jump To
Cite 1 - [1992] QCA 384
HA Bachrach Pty Ltd v Caboolture Shire Council [1993] QPLR 33
1 citation
Jump To
Cite 1 - [1993] QPLR 33
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd[2010] 1 Qd R 439; [2009] QCA 231
7 citations
Jump To
Cite 1 - [2009] QCA 231
Cite 2 - [2009] QCA 231
Cite 3 - [2009] QCA 231
Cite 4 - [2010] 1 Qd R 439
Cite 5 - [2010] 1 Qd R 439
Cite 6 - [2010] 1 Qd R 439
Cite 7 - [2010] 1 Qd R 439
Holts Hill Quarries Pty Ltd v Gold Coast City Council (2001) QPELR 5
2 citations
Jump To
Cite 1 - (2001) QPELR 5
Cite 2 - (2001) QPELR 5
Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [2000] QCA 268
1 citation
Jump To
Cite 1 - [2000] QCA 268
Hoveringham Gravels Ltd v Secretary of State for the Environment (1977) 76 LGR 533
2 citations
Jump To
Cite 1 - (1977) 76 LGR 533
Cite 2 - (1977) 76 LGR 533
Lewiac Pty Ltd v Gold Coast City Council [2011] QPEC 23
1 citation
Jump To
Cite 1 - [2011] QPEC 23
Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494
1 citation
Jump To
Cite 1 - [2011] QPELR 494
Marana Holdings Pty Ltd & Anor v Commissioner of Taxation (2004) FCA FC 307
3 citations
Jump To
Cite 1 - (2004) FCA FC 307
Cite 2 - (2004) FCA FC 307
Cite 3 - (2004) FCA FC 307
Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299
3 citations
Jump To
Cite 1 - (2004) 141 FCR 299
Cite 2 - (2004) 141 FCR 299
Cite 3 - (2004) 141 FCR 299
Pearson v Thuringowa City Council[2006] 1 Qd R 416; [2005] QCA 310
5 citations
Jump To
Cite 1 - [2005] QCA 310
Cite 2 - [2005] QCA 310
Cite 3 - [2006] 1 Qd R 416
Cite 4 - [2006] 1 Qd R 416
Cite 5 - [2006] 1 Qd R 416
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132
5 citations
Jump To
Cite 1 - [1985] AC 132
Cite 2 - [1985] AC 132
Cite 3 - [1985] AC 132
Cite 4 - [1985] AC 132
Cite 5 - [1985] AC 132
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1
1 citation
Jump To
Cite 1 - [1980] HCA 1
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 C. L. R. 485
3 citations
Jump To
Cite 1 - (1980) 145 C. L. R. 485
Cite 2 - (1980) 145 C. L. R. 485
Cite 3 - (1980) 145 C. L. R. 485
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPELR 848
1 citation
Jump To
Cite 1 - [2015] QPELR 848
Savage v Cairns Regional Council [2015] QPEC 37
11 citations
Jump To
Cite 1 - [2015] QPEC 37
Cite 2 - [2015] QPEC 37
Cite 3 - [2015] QPEC 37
Cite 4 - [2015] QPEC 37
Cite 5 - [2015] QPEC 37
Cite 6 - [2015] QPEC 37
Cite 7 - [2015] QPEC 37
Cite 8 - [2015] QPEC 37
Cite 9 - [2015] QPEC 37
Cite 10 - [2015] QPEC 37
Cite 11 - [2015] QPEC 37
Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 15
1 citation
Jump To
Cite 1 - [2005] QPEC 15
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
1 citation
Jump To
Cite 1 - (2004) QPELR 337
Woolworths Limited v Caboolture Shire Council [2004] QPEC 15
2 citations
Jump To
Cite 1 - [2004] QPEC 15
Cite 2 - [2004] QPEC 15
Woolworths Ltd v Caboolture Shire Council Warehouse Pty Ltd (2004) QPELR 550
1 citation
Jump To
Cite 1 - (2004) QPELR 550
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
2 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Bigini Pty Ltd v Brisbane City Council [2019] QPEC 12 citations
Development Watch Inc v Sunshine Coast Regional Council [2022] QCA 6 1 citation
Noosa Shire Council v 64 Gateway Drive Pty Ltd [2021] QPEC 191 citation
Perivall Pty Ltd v Rockhampton Regional Council [2018] QPEC 462 citations
Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council [2023] QPEC 23 citations
1

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