Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

Bucknell v Townsville City Council[2021] QCA 26

Bucknell v Townsville City Council[2021] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:

Bucknell & Anor v Townsville City Council & Anor [2021] QCA 26

PARTIES:

PETER ADRIAN WENWORTH BUCKNELL

(first applicant)

FRANCES O’CALLAGHAN

(second applicant)

v

TOWNSVILLE CITY COUNCIL

(first respondent)

ACE AVIATION & ENGINEERING PTY LTD

ACN 113 025 264

(second respondent)

FILE NO/S:

Appeal No 1301 of 2020

P & E No 89 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Townsville – [2019] QDC 280 (Coker DCJ)

DELIVERED ON:

23 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2020

JUDGES:

Philippides and McMurdo JJA and Bradley J

ORDERS:

  1. Leave to appeal be granted.
  2. The appeal be dismissed.
  3. The parties have leave to file written submissions, not exceeding four (4) A4 pages in length, as to the orders which should be made as to the costs of this appeal, within 14 days of the publication of these reasons.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the applicant seeks leave to appeal from a decision of the Planning and Environment Court pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) – where the applicants submit that leave should be granted because the primary judge erred in law in respects that materially affected his Honour’s decision, made various errors of law of general importance in relation to the proper construction of development approvals and enforcement of planning laws and that the issues were of specific importance to the applicants – where the respondents opposed leave being granted as the matter raises no matter of public importance and any prejudice to the applicants was not material, as the subject uses commenced prior to the commencement of their residence, in the case of the second respondent – whether leave to appeal should be granted

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – INTERPRETATION AND CONSTRUCTION – PARTICULAR CASES – where the applicants sought declarations in the Planning and Environment Court in relation to the interpretation of a town planning approval given in 1991 which approved a town planning consent permit for the use of certain land for the purposes of a private airstrip and hangar building – where the applicants claimed below that the second respondent used the property for “air services” without an effective development permit in that the use exceeded the scale and intensity authorised by any existing lawful use rights – where the applicants also claimed that the second respondent unlawfully used the property for short-term accommodation and publicly advertised fly-ins in Easter 2014 and 2015 (being outdoor sport and recreation, tourist attraction and/or tourist park uses), for which the second respondent had no right to lawfully use the property in such ways – where it was contended that in carrying out those uses, the second respondent carried out assessable development on the property for which there was no effective development permit (such uses not authorised by the development approval) and thereby committed development offences under the Sustainable Planning Act 2009 (Qld) – where the primary judge construed the development approval broadly, held that the uses complained of were authorised and contemplated by the approval and accordingly dismissed the application – whether the primary judge erred in relation to his Honour’s conclusions as to of the physical extent of the private airstrip and hangars – whether the primary judge erred in his Honour’s conclusions as to the entertainment and short-term accommodation associated with the Easter fly-in events

Integrated Planning Act 1997 (Qld)

Local Government (Planning and Environment) Act 1990 (Qld), s 8.10(7)(a), s 8.10(8)

Local Government Act 1936 (Qld), s 33(2C)(c), s 33(16C)

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld), s 63(1)

Sustainable Planning Act 2009 (Qld), s 311(1)(a), s 311(2)(a), s 456, s 604

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

Eames v Brisbane City Council [2010] QPELR 504; [2010] QPEC 14, cited

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13; [2016] QCA 19, cited

Moore v Kwiksnax Mobile Industrial and General Caterers Pty Limited [1991] 1 Qd R 125; [1990] QPLR 213, cited

Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334; [2007] QPEC 5, cited

Stockland Development Pty Ltd v Townsville City Council (2013) 195 LGERA 317; [2013] QCA 210, cited

COUNSEL:

D R Gore QC, with E J Morzone, for the applicants

K Wylie for the first respondent

G J Gibson QC, with J G Lyons, for the second respondent

SOLICITORS:

Wilson Ryan Grose Lawyers for the applicants

Keir Steele Waldon Lawyers for the first respondent

Connolly Suthers Lawyers for the second respondent

  1. [1]
    PHILIPPIDES JA:

Background

  1. [2]
    This is an application for leave to appeal against the dismissal by the Planning & Environment Court (P&E Court) on 16 December 2019 of an amended originating application for declarations and enforcement orders, inter alia, under the Sustainable Planning Act 2009 (Qld) (the SPA).[1]
  2. [3]
    The P&E Court proceeding concerned land located on the corner of Jones Road and Rowe Road, Woodstock, in the State of Queensland, more particularly described as Lot 601 on E124123 (the property).[2]  The proceeding was brought by the present applicants, Peter Bucknell and Frances O’Callaghan, who reside in a house relocated to adjoining land.[3]  The proceeding was brought against the Townsville City Council (the Council),[4] as first respondent, and Ace Aviation and Engineering Pty Ltd (Ace), as the second respondent, who in 2005 became the registered owner of the property as trustee for the Mackenzie Family Trust,[5] those parties being respondents to the present application for leave to appeal.
  3. [4]
    The proceeding concerned a town planning approval given by the Thuringowa City Council in May 1991 (the 1991 Approval), by which it approved, subject to conditions, a town planning consent application lodged with the City of Thuringowa in March 1991.[6]  That application sought the issue of a town planning consent permit both for use of the property for the purposes of a “private airstrip” and the erection on the property of a “hangar” building (the Consent Application).[7]
  4. [5]
    The Consent Application was lodged and decided under the Local Government Act 1936 (Qld) (the 1936 Act) and the town planning scheme for the City of Thuringowa, gazetted on 22 October 1988 (the 1988 Scheme).[8]  Other than the 1991 Approval, no development approval exists as to the carrying on of any use or the making of any material change of use in respect of the property.[9]
  5. [6]
    In the P&E Court proceeding, the applicants sought, inter alia:
    1. (a)
      declarations under s 456 of the SPA that Ace’s use of the property for the purposes of air services, short term accommodation and outdoor sport and recreation, tourist attraction and/or tourist park, being defined uses within the Townsville City Plan 2014 (the 2014 Scheme), were uses for which no effective development permit had been issued; and
    2. (b)
      enforcement orders pursuant to s 604 of the SPA, restraining Ace from carrying out those uses on the property, save where that use was authorised by an effective development permit on the basis that development offences were committed under the SPA.
  6. [7]
    The applicants claimed that Ace used the property for “air services” without an effective development permit in that the use exceeded the scale and intensity authorised by any existing lawful use rights[10] and, further, that the use constituted a material increase in the scale and intensity of the use authorised under the 1991 Approval.  In addition, it was claimed that Ace used the property for short term accommodation and publicly advertised fly-ins in Easter 2014 and 2015 (being outdoor sport and recreation, tourist attraction and/or tourist park uses) for which Ace had no existing right to lawfully use the property in such ways.[11]  Those uses were contended to constitute the making of a material change of use of the property because they constituted a material increase in scale and intensity of the use authorised under the 1991 Approval.[12]  In essence, it was claimed that in carrying on those uses, Ace carried out assessable development on the property for which there was no effective permit (such uses not being authorised by the 1991 Approval) and thereby committed development offences under the SPA.[13]
  7. [8]
    If granted leave, the grounds of appeal sought to be agitated are reduced to two legal issues concerning the scope of the 1991 Approval with respect to:
  1. the physical extent of the private airstrip and its hangars; and
  2. entertainment and accommodation associated with the two fly-in events.

The Consent Application

  1. [9]
    The Consent Application lodged with the Thuringowa City Council contained the following information:
  • In item 2 “DESCRIPTION OF LAND”, the real property description was stated as Lot 601 E124123, County Elphinstone, Parish Wyoming and the area of the subject land which was stated to be 64.75 hectares.
  • In item 3, “EXISTING ZONING”, was stated as Rural B.
  • In item 4, “EXISTING USE was stated as rural.
  • In items 5 and 6, the existing buildings and services were stated as nil.
  • In item 7, “LENGTH OF ROAD FRONTAGE” was stated as “Jones Road – 630.259 metres; Rowe Road – 970.234 metres. Proposed Road – 1,117.278 metres”.
  • In item 8, “PROPOSED USE” was stated as “Private Air Strip”.
  • In item 9, “AREA OF LAND OVER WHICH CONSENT IS REQUIRED” was stated “As per attached site plan; effected (sic) area approximately 41,212 square metres”.
  • In item 10, “PROPOSED BUILDINGS” was stated as:

“Hangar

10.1 Dimensions … 10m x 10m x 5m

10.2 Gross Floor Area … 100 square metres

10.3 Number of Stories … 1

10.4 Height … 5 metres”.

  • In item 12, the number of parking bays was stated as six.
  1. [10]
    Attached to the Consent Application was “Site Plan No’d 3013P1” which was a plan of the property and depicted Jones Road, Rowe Road and a “Future Road”.  It also showed the outline of an existing air strip (approximate location), a hangar (the proposed hangar building) and a proposed male and female septic toilet block, each of particular dimensions.

The 1991 Approval

  1. [11]
    The meeting of the Thuringowa City Council, in respect of the Consent Application, was documented on 17 July 1991.  The document bore the title “SCHEDULE OF CONDITIONS OF APPROVAL GRANTED BY RESOLUTION OF COUNCIL” and set out some introductory details, referring to the name of the applicant and owner of the land, which was described as “Lot 601 on E.124123, Parish of Wyoming, as and situated on Jones Road, Woodstock” and to the “CONSENT USE” as “Private Airstrip – as shown on Plan No’d.3013P1” and File no C5/91 (being a reference to the Consent Application lodged in May 1991).
  2. [12]
    After setting out those details, the document set out the “Schedule of Conditions” as follows:[14]

“1. The use – Private Airstrip – shall be substantially commenced within a period of two (2) years from the date of the approval of the application by the Council. Should the use not have been substantially commenced prior to the expiry of such period, or should the land cease to be used for the purpose of the consent for any continuous period of twelve (12) months thereafter, the Council may take action to revoke this consent.

  1. Plans and specifications for all civil and site works to be constructed as part of this project shall be submitted to and approved by Council prior to any development works being commenced.
  1. The proposed Private Airstrip shall be constructed in accordance with the provisions of all relevant Acts, Regulations, By-laws and adopted Policies of the Council and shall, in the opinion of the Council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.
  1. The owner of the subject land shall contribute on an annual basis towards the cost incurred by the Council on the maintenance of Jones Road.

The City Engineer shall assess the respective numbers of vehicle movements annually by the use of traffic counters for a minimum period of four (4) weeks prior to the calculation of the contribution payable being invoiced to the owner. "PASTM" shall be based on vehicle movements at the boundary of the subject land and "JRTM" shall be based on vehicle movements at the Woodstock end of Jones Road.

  1. The Private Airstrip shall be operated in accordance with the requirements of the Civil Aviation Authority.
  1. The Private Airstrip shall be fenced to a standard sufficient in the opinion of Council to prevent the entry of livestock on to the subject land, details of the proposed fencing to be approved by Council before works are commenced.
  1. All effluent shall be disposed of in the boundaries of the subject land, and adequate provision shall be made to confine any overflow from the effluent disposal system within the subject land in accordance with standard practices, to the satisfaction of the Chief Environmental Health and Parks Officer. No effluent shall be permitted to be discharged into any watercourse, gully or natural stormwater drainage without the written approval of the Queensland Water Quality Control Council having first been obtained.
  1. A supply of potable water shall be available at the Private Airstrip to the satisfaction of the Council at all times.
  1. Toilet facilities shall be provided on the subject land for the users of the Private Airstrip in accordance with the provision of the Standard Sewerage By-laws, to the satisfaction of Council.
  1. In the event that the applicant failed, in the opinion of the Council, to comply with these conditions or the requirements of any other Act, Regulation or Bylaw, the Council may take action and conclude procedures, under the Local Government Act 1936-1991, for the revocation of the subject town planning consent and, in that event, no compensation shall be payable by the Council to the applicant in respect of such revocation.”

The building permit

  1. [13]
    On 10 December 1992, by building permit C337/92 issued by the City of Thuringowa, approval was given for the carrying out of building operations described as “HANGER (sic) AND TOILET BLOCK” and subject to the conditions stated therein.  (Site Plan 3013P1 was stamped and signed by a building inspector to indicate that it was approved on 7 December 1992 as part of that building permit and was to be read in conjunction with that permit and any conditions imposed by it and that separate sewerage approval was required.)
  2. [14]
    Subsequently, further building permits were obtained for some but not all of the other sheds on the property.  The applicants do not contend that anything turns for present purposes on the lack of a building permit for all the structures.

The P&E Court decision

The applicants’ case

  1. [15]
    The applicants’ summarised their case below as centred on there being two categories of uses of the land which went beyond the authority of the 1991 Approval:
    1. (a)
      The first was that the private airstrip activities had increased in scale and intensity and were greater than detailed in “the information lodged in support of the subject application”.  In particular, four additional hangars had been erected, the size of the hangar built pursuant to the Approval was larger (13m x 13.5m), a second runway[15] had been built and several other buildings were built (some of which were not used).
    2. (b)
      The second was that Ace had commenced new and separate uses for which there was no approval, particularly short term accommodation and outdoor entertainment areas in relation to the two flyin events in Easter 2014 and 2015.

The relevant legislation

  1. [16]
    The primary judge set out the relevant legislation including tracing changes to the legislation.  That exposition was not challenged.
  2. [17]
    At the time of lodgement of the Consent Application, the 1936 Act was in effect, as was the 1988 Scheme and the by-laws of the City of Thuringowa which, pursuant to s 33(2C)(c) of the 1936 Act formed part of the 1988 Scheme.  Under ch 23 of Thuringowa by-laws, the Council was empowered to give its consent to an application, refuse consent or give its consent subject to reasonable and relevant conditions.  Subsequent to the lodgement of the Consent Application, but prior to the decision by the Thuringowa Council to consent to it, the 1936 Act was repealed and replaced on 15 April 1991 by the Local Government (Planning and Environment) Act 1990 (Qld) (the 1990 Act).  By virtue of transitional provisions, notwithstanding the repeal of the 1936 Act, the 1988 Scheme, including the Thuringowa by-laws, was taken to be a “planning scheme” approved pursuant to the 1990 Act.  Consequently, the Consent Application was required to be assessed and decided as if the 1936 Act had not been repealed[16] and an approval was to be a consent permit under the 1990 Act.[17]
  3. [18]
    On 30 March 1998, the 1990 Act was repealed and replaced by the Integrated Planning Act 1997 (Qld) (the IPA).  However, transitional provisions provided for the continuing effect of approvals issued before its commencement with the consequence, as the primary judge stated, that the 1991 Approval was taken to be a development permit under the IPA.[18]  Similarly, on the repeal of the IPA and its replacement by the SPA on 18 December 2009, by transitional provisions, the 1991 Approval was taken to be a development permit under the SPA.  The SPA was repealed and replaced by the Planning Act 2016 and again, by transitional provisions, the 1991 Approval continued to have effect and was taken to be a development permit issued under that Act.[19]

The 1988 Scheme

  1. [19]
    Part 1 of the 1988 Scheme dealt with definitions and stated:

“… unless the context otherwise indicates or requires, the following terms have the meanings respectively assigned to them, that is to say:-

USE DEFINITIONS

Any land, building or other structure or any part thereof used or intended for use for the following purposes.”

  1. [20]
    “Private air strip” was defined in the “use definitions” as:

“Privately owned premises for the landing and departure of aircraft. The terms includes facilities provided at such premises for the housing, servicing and maintenance of aircraft and for passengers or goods carried by aircraft using the airstrip;”

  1. [21]
    “Premises” was defined to mean “any land building or other structure or any part thereof.”  By the extended definition of “use”, the term included “any use which is incidental to and necessarily associated with the lawful use of the land in question”.
  2. [22]
    Part II of the 1988 Scheme dealt with zoning and divided the scheme area into “Zones”.  The property was located in the Rural B Zone.  The intent of Rural B Zone was stated as being[20] “to generally permit rural pursuits as of right with the Council consent being necessary for most other purposes”.  It was also stated that: “The wide discretion given to the Council through the consent procedure has been provided so that there may be more flexible control over development”.
  3. [23]
    Division II of the 1998 Scheme set out a “Table of Zones”, which in Column I, identified each Zone.  For each Zone, the Table also identified in:
  • Column III “Purposes for which buildings or other structures may be erected or used or for which land may be used without consent of the Council”.
  • Column IV “Purposes for which buildings or other structures may be erected or used or for which land may be used only with consent of the Council”.
  • Column V “Purposes for which buildings or other structures may not be erected or used or for which land may not be used”.
  1. [24]
    For the Rural B Zone, a number of discrete purposes were listed as Column III items and Column V items, while Column IV items were described as “Any purposes other than those referred to in Column III or Column V”.  The following were not a Column III or Column V purpose for the Rural B Zone and were therefore a Column IV purpose requiring Council consent: “Private Air Strip”, “Caravan park” and “Outdoor entertainment”.
  2. [25]
    Subsequently, pursuant to the Townsville City Plan 2005, the property was located in the Rural precinct.  Pursuant to the Townsville City Plan 2014, the property was located in the Rural zone.[21]

The reasons of the primary judge

  1. [26]
    In his Honour’s reasons,[22] the primary judge construed the 1991 Approval as authorising the use of the property “in its entirety, not just the 4.1 hectares for a ‘private airstrip’”.  Referring to the definition of the term “private airstrip”, his Honour observed[23] that it “includes facilities provided at the premises for the housing, servicing, and maintenance of aircraft, and for passengers or good carried by aircraft using the airstrip”.  His Honour concluded “This, in my assessment, can and should be considered broadly, and as such authorises the use of the land for the airstrip and hangers (sic), as well as other structures associated with such on-site activities”.  His Honour held:[24]

“This is even more obviously the case when it is noted that the consent permit did not place any constraints on the hours of operation, though obviously the airstrip, not having lights, is only able to operate from dawn to dusk, as well there being no constraints on the type of aircraft used, or upon movement and numbers. Accordingly, I am satisfied that the use currently made of the land is for aircraft related activities, and is entirely consistent with the rights granted by the 1991 consent permit.

There was no suggestion, in the consent permit, of any restrictions related to the scale of use, or intensity of use, of the private airstrip and to seek to now impose such restrictions flies in the face of proper practice. In that regard, I am particularly mindful of the obvious consideration of the Thuringowa council, as it then was, in relation to the possible requirement for additional payments to be made by the owners of the land in relation to increased road usage. With that in mind, it could not be other than considered that the granting of the permit was based upon an expectation, at least, that there was a possibility of an increase in use, and therefore the possibility of greater road traffic associated with the use of the private airstrip.”

  1. [27]
    His Honour had regard to condition 3 in para [69] of his reasons:

“The conditions relevant to the consent permit and, in particular, condition 3 require associated buildings and structures to be undertaken substantially in accordance with the material that accompanied the consent application. Again, I am satisfied that all works that have followed the granting of that permit have related appropriately to the operation of the private airstrip. Condition 3 does not preclude other building upon the land but rather required that it be substantially in accordance with what was required to operate the private airstrip. The use of the land by the second respondent for aircraft related purposes is undertaken lawfully and is consistent with the use permitted and authorised by the consent permit of 1991.”

  1. [28]
    His Honour also stated that “the consent permit authorises the provision of various facilities for passengers and goods” and held that:[25]

“… the activities complained of by the applicants, such as the provision of short-term accommodation and outdoor entertainment, is no more than what is contemplated and authorised. It is limited in the extreme, and the provision of such limited facilities is clearly contemplated by the consent permit.”

The application for leave

  1. [29]
    An appeal to this Court under s 63(1) of the Planning and Environment Court Act 2016 (Qld) is restricted to error of law.  The applicants submit that leave should be granted because:
    1. (a)
      the primary judge erred in law in respects which materially affected his decision;
    2. (b)
      the primary judge made various errors of law which are of general importance in relation to the proper construction of development approvals under Queensland planning legislation and the orderly enforcement of planning laws and development offences; and
    3. (c)
      the issues are of specific importance to the applicants as owners of adjoining property such that they are exposed to adverse impacts from the second respondent’s activities.
  2. [30]
    The Council opposed leave being granted on the basis that no matter of public importance was raised as the proposed appeal concerns the construction of particular conditions of a “site-specific legacy permit” given pursuant to repealed legislation and a repealed planning scheme.  Any prejudice to the applicants was not material, as the subject airstrip had operated prior to commencement of their residence.  Further, the applicants did not challenge the lawfulness of the use of the land for an airstrip, but rather the manner of its operation, including hangars.  The applicants elected to move their house to its present location on the adjoining land in proximity to the existing aerodrome between 1996 and 1999.  Ace has agreed that the use of the airstrip has decreased since 2015 and the alleged “fly ins” comprised only two events.[26]  Further, the primary judge made a factual finding that the impugned short term accommodation and outdoor entertainment activities were “limited in the extreme”.
  3. [31]
    Ace joins in arguing that leave should be refused because the primary judge did not err in any material respect and no question of general importance is raised by the appeal.

Proposed grounds of appeal

  1. [32]
    By the proposed amended notice of appeal, the applicants raise the following matters:
  1. The primary judge erred in law by misconstruing the 1991 Approval by misconstruing:
  1. (a)
    the nature and extent of the use authorised, being “Private Airstrip – as shown on plan No’d D3013P1”; and
  1. (b)
    that part of condition 3 which provided “The proposed private Airstrip … shall … substantially comply with the proposal as detailed in the information lodged in support of the subject application”.
  1. The primary judged erred in law in construing the 1991 Approval and/or in principle:
  1. (a)
    in failing to conclude that the scale and intensity of the use authorised by it was limited by the description of the consent use “Private Airstrip – as shown on plan No’d D3013P1” and by condition 3;
  1. (b)
    in failing to conclude that the Site Plan No D3013P1 lodged in support of the Consent Application limited the scale and intensity of the use by reference to two structures, being a hangar building and a male and female toilet block;
  1. (c)
    in concluding at [69] that condition 3 did “not preclude other building upon the land but rather required that it be substantially in accordance with what was required to operate the private airstrip”;
  1. (d)
    in concluding at [68] that it could not be other than considered that the granting of the 1991 Approval was based upon an expectation, at least, that there was a possibility of an increase in use (by misconstruing condition 4);
  1. (e)
    in taking the view at [70] that the provision of short term accommodation and outdoor entertainment was no more than what was contemplated and authorised and clearly contemplated by the 1991 Approval;
  1. (f)
    in apparently concluding at [69] that the buildings and structures on the subject land were substantially in accordance with the proposal as detailed in the information lodged in support of the application; and
  1. (g)
    in taking into account the opinions of town planners (particularly Ms Relf and Mr Motti) in construing the development approval (at [50], [61] and [64]).
  1. The primary judge erred in law in failing to give adequate reasons for rejecting the argument that Site Plan No D3013P1 had been incorporated into the development approval and limited the scale and intensity of the use to the extent shown on the drawing and in not addressing the particular arguments advanced as to the correct legal approach to the proper construction of the 1991 Approval.
  1. [33]
    In the applicants’ written outline, the proposed grounds were said to raise three errors of law:[27]

Ground 1 – error in law in misconstruing the 1991 Approval, having regard to its terms and condition 3 (in relation to the private airstrip complying with the proposal as detailed in the information lodged in support of the Consent Application) and condition 4.[28]

Ground 2 – erred in law in construing the 1991 Approval and/or in principle, in failing to conclude that the scale and intensity of the use authorised by it was limited by the description of the authorised use and condition 3.[29]

Ground 3 – error in failing to give adequate reasons.

  1. [34]
    In the applicants’ written summary of oral argument and in oral submissions by counsel for the applicants, the three issues were reduced to two legal issues concerning the scope of the 1991 Approval.[30]  They are, as mentioned, firstly, as to the physical extent of the private airstrip and its hangars and, secondly, as to entertainment and accommodation associated with Easter fly-in events.  As to the first issue, counsel for the applicants specifically submitted in oral submissions that that issue was confined to the interpretation of the 1991 Approval and no question of material change of use was agitated.[31]  As to the second issue, that was confined to the nonaircraft activities that occurred on the premises during the 2014 and 2015 Easter flyin events.  It was contended they were not authorised by the 1991 Approval and did not satisfy the test applicable to the extended meaning of “use” under the SPA.[32]
  2. [35]
    By the proposed amended notice of appeal, the applicants sought orders that the orders of the P&E Court of 16 December 2019 be set aside and the matter be remitted to the P&E Court for determination in accordance with the reasons of this Court.  In their amended written outline at [30], the applicants sought declarations, should leave be granted and the appeal be allowed, that:
  • the Approval did not authorise the current scale of use of the subject land for a private airstrip;
  • the use is limited to that shown on Plan No’d 3013P1 and described in the Consent Application; and
  • the Approval did not authorise the use of the land for fly-in events.
  1. [36]
    The applicants submitted that upon those declarations being made that the matter should be remitted to the P&E Court in relation to consequential orders.  The respondents agreed that if the appeal was allowed, the matter should be remitted.
  2. [37]
    In my view, the matters raised justify the grant of leave to appeal for the reasons advanced by the applicants.  However, for the reasons that follow, I would dismiss the appeal.

Issue 1 – The scope of the 1991 Approval in respect of the physical extent of the private airstrip and hangars

The applicants’ submissions

  1. [38]
    Turning to the issue concerning the proper construction of the 1991 Approval, the applicants submitted that the primary judge erred in law by misconstruing that document (being a document given force by statute) and erred in principle.[33]
  2. [39]
    It was submitted that the proper construction of the 1991 Approval required consideration not only of its terms, but also the Site Plan No’d 3013P1 and the Consent Application to which express reference was made.  This was because both the terms of the 1991 Approval and condition 3 expressly incorporated the Site Plan No’d 3013P1 and the Consent Application.  In that respect, while it was acknowledged that the general rule for the construction of a development approval required it to be construed without reference to extrinsic material, reliance was placed on the observation in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd[34] that material accompanying a development application can be considered where it has been incorporated in the development approval, either expressly or by necessary implication.
  3. [40]
    The applicants then argued that, when the 1991 Approval was construed having regard to its terms, condition 3 and the incorporated Site Plan and the Consent Application, the scope of the approved use was limited to one hangar and to a limited area.  In that regard, it was submitted:[35]
    1. (a)
      First, even without any reference to its conditions, the use authorised by the 1991 Approval was limited by its terms in that it referred to the description of the consent use as “Private Airstrip – as shown on Plan No’d 3013P1”.  It was submitted that that description made it clear that approval was not an unlimited or unqualified consent use of a “Private Airstrip” but a use that in its scale and location was expressly fixed or limited by the description “as shown on Plan No’d 3013P1”.
    2. (b)
      Second, the terms of condition 3 of the 1991 Approval made it clear that the bounds of the approved consent use were intended to be limited by “the proposal as detailed in the information lodged in support of the subject application”.  In that regard, reliance was placed on the reference in the Consent Application to:
      1. the area of land over which consent was required as being “As per attached site plan – effected (sic) area approximately 41,212 square metres”; and
      2. the proposed building being a “Hangar” with specific dimensions.
  4. [41]
    It was submitted that it followed[36] from the limitations imposed in the 1991 Approval by the description of the consent use and by condition 3 that the concepts in planning law of conditions requiring developments to be “generally in accordance” with a plan were not engaged (which it was said had been relied on by the primary judge[37]).  However, even if they did, the contrast between what was approved and what was built was “particularly stark, and it was not reasonably open to describe the latter as generally in accordance with the former”.  It was an error of law to arrive at an evaluative conclusion which was not reasonably open.[38]
  5. [42]
    Thus, the primary judge erred in construing the 1991 Approval and should have found that the scale and intensity of the use authorised was limited by the description of the “consent use” and by condition 3.[39]
  6. [43]
    In addition, the applicants submitted[40] that the primary judge misconstrued condition 4 which related to Council levied contributions for the maintenance of Jones Road, calculated by reference to a formula considering vehicle movements entering the land through the private access.  It was contended that the formula in condition 4 was designed to allow for natural variations within the bounds of the scale of the airstrip that had been approved and did not contemplate (expressly or impliedly) any increase in the scale or intensity of the approved development and it was wrong for the primary judge to construe condition 4 in that way.

The Council’s submissions

  1. [44]
    The Council submitted that in construing a development approval or consent permit (such as the 1991 Approval), a well-established principle relevant in the present case was that any ambiguity is to be construed in favour of the permit holder.[41]  The Council made the following submissions:[42]
    1. (a)
      The simple reference to “Plan 3013P1” in the Consent Use title to the 1991 Approval without other reference to it in the conditions to that approval (and which necessarily control that approval), may not meet the threshold of express incorporation or necessary implication.
    2. (b)
      The part of the Consent Application seeking consent to use the land for the purpose of a private air strip (in item 8) included no material limitation or qualification to that use, and none were applied in the Consent Approval.
    3. (c)
      Having regard to Plan 3013P1, to the extent that it was referable to the part of the 1991 Approval authorising use of the land for private airstrip purposes, it merely identified the area of the land as comprising 64.75 ha and provided an indicative location of an “existing air strip” already in use.
    4. (d)
      To the extent that the depiction of structures on Plan 3013P1 had any relevance or meaning, they were relevant to the part of the 1991 Approval authorising the erection and use of the hangar applied for in item 10 of the Consent Application. It did not follow that a failure of Plan 3013P1 to depict other hypothetical future structures proscribed their subsequent lawful erection to be utilised for an existing lawful purpose for which the property was being used.
    5. (e)
      Any submission to the effect that the reference to Plan 3013P1 ought be construed to implicitly operate to limit future intensity of the approved private air strip by provision of additional hangarage ought not be accepted for ambiguity.

Ace’s submissions

  1. [45]
    Ace submitted[43] that the correct interpretation of the 1991 Approval was that it approved the use of “Private Airstrip” over the whole of the property and was not limited having regard to the following:
    1. (a)
      the 1991 Approval identified the land the subject of the approval by the real property description of the property, not merely part thereof;
    2. (b)
      the Consent Application included the same description;
    3. (c)
      although the Consent Application referred to the “attached Site Plan”, the “Site Plan” was a plan of the property, not merely part thereof; and
    4. (d)
      although the Consent Application included reference to “effected (sic) area approximately 41,212 square metres”, that expression was either ambiguous or uncertain.  Ambiguities in planning approvals are to be construed “in the way which places the least burden on the land owner”[44] and conditions that are uncertain are unenforceable.[45]  Its metes and bounds were not identified on the Plan and the extent of the “effected area” was, at best, indicative; the extent of the “effected area” being stated to be “approximately” and the meaning of the word “effected” being unclear.
  2. [46]
    Ace argued[46] that the identification in the Consent Application of the proposed buildings as a hangar of particular dimensions did not limit the scope of the 1991 Approval.  Rather, consistent with the Table of Zones in the Planning Scheme, that part of the Consent Application sought approval to erect or use a building for the purpose of private airstrip, which was approved.  The 1991 Approval did not purport to, and did not, as a matter of fact or law, address the use of the property or any part of it for the purpose of a “Private Airstrip”.  Nor did the approval of the hangar preclude subsequent approvals of other buildings, including hangars.  His Honour correctly concluded that condition 3 did not preclude other building upon the land.[47]
  3. [47]
    Ace submitted that, contrary to the applicants’ submissions, his Honour did not err by treating the words “substantially comply with” in condition 3 as being analogous to the concept of “generally in accordance” with.[48]  First, there are similarities in principle between the two expressions, as is evident from the discussion of the latter in Serenity Lakes Noosa v Noosa Shire Council.[49]  Second, his Honour’s reasons at [69] reveals that, as a matter of fact, his Honour did not base his conclusion on considerations extraneous to the wording of condition 3.  Thirdly, the applicants’ wrongly focused on the contrast between what was approved and what was built and being used as the points of reference for the comparative exercise, whereas condition 3 referred to the proposal, not the buildings.  The proposal included all elements of the Consent Application, operational and otherwise, of which the built form was only one.  His Honour’s conclusion was open and there was no error of principle.  Nothing in Stockland Development Pty Ltd v Townsville City Council[50] was to the contrary.

Consideration

Nature of the use approved and land over which the approved use extended

  1. [48]
    The 1988 Scheme recognised that consent could be sought in the one application for the purpose of land to be used for “Private Airstrip” and buildings to be erected and used for that purpose.  The Consent Application, as was agreed by the parties, was a dual application for a consent permit for the use of the property for the purpose of a “Private Air Strip” and the erection on the property of a “hangar” building.[51]
  2. [49]
    The Consent Application sought approval of private premises for use as a “Private Airstrip” which was required because of the Rural B zoning of the land.
  3. [50]
    The 1936 Act proscribed the power of a Local Authority, such as the Thuringowa Council, to impose conditions on the approval of an application to use land or use or erect any building for any purpose.  By s 33(16C) of the 1936 Act, it was provided:

Unlawful conditions. (a) It shall be unlawful for the Local Authority in the case of an application—

  1. (iii)
    for approval, consent or permission to use land or use or erect any building or other structure for any purpose,

to subject the approval of that application to a condition that is not prescribed by the scheme or by by-law or reasonably required by … the use of the land or the use or erection of the building or other structure in respect of which the application relates: …” (emphasis added)

  1. [51]
    The “use” that was approved by the 1991 Approval was that stated in condition 1 of the Schedule of Conditions which identified the “use” approved as being “Private Airstrip”.  The term “Private Airstrip” is be understood as a reference to the use definition of “Private air strip” in the 1988 Scheme, there being nothing to indicate or require that the term “Private Airstrip” was to have any other meaning than that assigned to it by the 1988 Scheme.  No condition was imposed limiting the ordinary scope of that use by virtue of any of the matters referred to s 33(16C)(iii) of the 1936 Act.  I do not consider that the terms of the 1991 Approval, even when construed having regard to the Consent Application and Site Plan, limited the scope of the use approved.
  2. [52]
    As to the inclusion in the 1991 Approval of the words “CONSENT USE: Private Airstrip – as shown on Plan No’d 3013P”, they did not operate to circumscribe, by means of a condition, the nature of the use approved, nor did they seek to do so in any event.  Rather, the words recognised that the consent sought by the Consent Application was not only for use of the land as “Private Airstrip” but, additionally, for the erection and use of buildings and that they were “as shown on the Plan No’d 3013P”.  That aspect is apparent from condition 2 which required that plans and specifications for the construction, both of civil and site works, as part of “this project” be approved prior to “any development works” being commenced.
  3. [53]
    Nor did condition 3 limit the scope of the 1991 Approval in the manner contended for by the applicants.  Condition 3 is specifically directed to the “proposed Private Airstrip” and imposes requirements in relation to that proposal.  That is, it is concerned with the construction of works actually proposed by the Consent Application and requires that that construction “substantially comply” with the proposal as detailed in the application.  Properly construed, it does not expressly or impliedly limit the “use” of the land approved, which was identified in unqualified terms in condition 1 as “Private Airstrip”.  Rather, it imposed a condition of “substantial compliance” between what the Consent Application proposed to be constructed as the “proposed Private Airstrip” (which, by virtue of the use definition, included facilities such as a hangar and toilet facilities) and what was in fact constructed.
  4. [54]
    Condition 3 is also to be construed in the context of condition 2 which did not by its terms restrict or limit the construction of works as part of “this project” to those “as shown on Plan No’d 30313P1” or “as detailed in the information lodged in support of the application”.  Rather, condition 2 was expressed in general terms with respect to “any” development works and required that plans and specifications for all works to be constructed, whether civil works or site works, be approved prior to being commenced.
  5. [55]
    Accordingly, the scope of the approved “use” under the 1991 Approval, properly construed, (and having regard to the Consent Application and the Site Plan) was that of “Private Airstrip” as defined in the 1988 Scheme, not some other variant species of use.
  6. [56]
    As to the physical scope of the 1991 Approval, the applicant’s submission that the land the subject of the 1991 Approval was a lesser area than the entirety of the property is misconceived, even accepting that the Site Plan and information in the Consent Application are relevantly to be considered in the construction of the 1991 Approval.
  7. [57]
    It is pertinent that condition 1 was not only directed to identifying the use that was approved, namely “Private Airstrip”, but also to specifying the consequences should “the land” cease to be used for the purpose of the consent.  The “land” was described in the preliminary part of the 1991 Approval in terms of the real property description of the property which encompassed the whole of the property.  Accordingly, the “land” referred to in condition 1 is to be understood as the “land” earlier identified as the whole of the property.  By its terms, condition 1 was premised on the approved use extending to the whole of the property described in the 1991 Approval.
  8. [58]
    The use as “Private Airstrip” that was approved was not confined by condition 1 to a particular area or portion of the property; that is, an area of 41,212 square metres.  Nor was it so confined by any other condition, even when regard is had to the documents that the applicants contended were incorporated.
  9. [59]
    Indeed, nothing in the Consent Application or the Site Plan supports such a limitation in the physical scope of the 1991 Approval and, in my view, no ambiguity arises as to the land covered by the approved use.  The Consent Application included in item 1 the same real property description as that stated in the 1991 Approval; that is referring to the whole of the property.  As already explained, the Consent Application also sought consent for the erection of a building and supplied information for that purpose.  In that regard, in item 9 as to the “area of land over which consent was required” was inserted “As per attached site plan; effected area approximately 41,212 square metres”.  The word “effected” may reasonably be understood as a typographical error and intending to refer to “affected”.  The information in item 9 is thus to be understood in the context of the dual purpose of the Consent Application and did not seek to limit the physical area of the use of land for which consent use was sought.  Likewise, the Site Plan was a plan of the whole of the property as described in item 3 of the Consent Application.  It simply supplied information pertinent to the dual purpose of the Consent Application.
  10. [60]
    In respect of the scope of the 1991 Approval for “Private Airstrip” in terms of hangar structures, as the use definition for “Private Airstrip” makes apparent, the use contemplated the use of private premises for aircraft movements (landing and departure) but was not confined to that activity.  The definition was expressed to be an inclusive one and extended to include the use of the premises for the provision of facilities for aircraft.  The use of the property for facilities such as a hangar is clearly within the defined use.  No limitation was expressly imposed in the conditions on the number of hangars within the use of providing facilities for aircraft using the airstrip.  Nor was any impliedly imposed in the conditions.  That the 1991 Approval authorised the erection and use of one hangar, which was what was sought in the Consent Application, did not impliedly impose a restriction on the number of hangars that might be erected as facilities for the purpose of the approved use.  A contrary construction is inconsistent with s 33(16C) of the 1936 Act.
  11. [61]
    While not all of the structures on the property had building permits or approvals, as mentioned, the applicant expressly disavowed the failure to obtain building approvals for all the buildings erected as relevant to the use of land authorised by of the 1991 Approval.
  12. [62]
    In passing, it should be noted that the applicants sought to argue that a second runway on the property was not authorised by the 1991 Approval.  That submission may be quickly dismissed.  It was not disputed that the runway in question was an emergency or safety runway that was available to be used in the event of extensive cross winds.  As Ace correctly submitted, the second runway was plainly encompassed by the extended definition of “use”.

Issue 2 - Short term accommodation and outdoor entertainment

Submissions

  1. [63]
    The applicants’ proceeding was brought before the current Planning Act 2016 (Qld) commenced and it is not disputed that under the transitional provisions of that Act, the SPA continued to apply with respect to the proceeding.  Under the SPA, it was an offence to carry out assessable development unless there was an effective development permit.[52]  It was submitted[53] that the 1991 Approval was not such a development permit.  It did not refer to and authorise any short term accommodation or outdoor entertainment uses and there was therefore no effective permit for those uses.
  2. [64]
    The applicants submitted that the primary judge also misconstrued the 1991 Approval, or erred in principle, in concluding that “the provision of short term accommodation and outdoor entertainment is no more than that was already contemplated and authorised by the Approval”.
  3. [65]
    Under the 1988 Scheme, for the Rural B Zone, the uses of “Caravan park”[54] and “Outdoor entertainment”[55] were not a Column III or Column V purpose and were therefore a Column IV purpose and were a separately defined use.  The applicants contended that, as a matter of construction, the activities the subject of those separate definitions did not fall within the definition of “Private Airstrip”.  The scope of the 1991 Approval was fixed at the time that it was granted, and it is unnecessary to consider the terms of subsequent planning schemes.
  4. [66]
    The applicants submitted that, while under SPA, “use” in relation to premises included “any use incidental to and necessarily associated with the use of the premises”,[56] that was a stringent test, which has been held only to extend to any different use which was “unavoidably” or “inevitably” involved in the permitted use[57] or, possibly, to a use that was only “insignificantly present”.[58]  The primary judge did not address this stringent test and, on the basis of the evidence, it was not reasonably open to conclude that it was satisfied.

Consideration

  1. [67]
    The uses the subject of complaint concerned two Easter fly-in events in 2014 and 2015 which brought a number of aircraft to the property.  Live entertainment occurred on one night on each occasion.  It ceased at 10.00 pm[59] and was provided by three of the visiting pilots.[60]  Pilots and passengers attending the fly-ins were able to camp on site under the wings of the aircraft in swags, for which no charge was made.[61]  Barbeque packs were sold to patrons at cost price, no beverages other than soft drinks were sold (for a gold coin donation) and camp sites and caravans were provided free of charge.[62]
  2. [68]
    The use of the property for short term and overnight accommodation for the specific purpose of accommodating passengers carried by planes using the airstrip was a use within the use definition of “Private Airstrip”, given that that use was expressly defined to include facilities of such a nature.  That the use may also fall within the definition of another use is immaterial.  A “best fit” test approach to construction has been disapproved by this Court in AAD Design Pty Ltd v Brisbane City Council.[63]  Furthermore, the accommodation of pilots was also one within the use definition, given the extended definition of use to include any use incidental to and necessarily associated with the lawful use of the property for aircraft movements.
  3. [69]
    In relation to both the activities said to fall within the separate definition of “Outdoor Entertainment”, on the material before the Court, there is merit in the submission made on behalf of Ace that the activities were too infrequent to constitute a “use” as defined by the 1988 Scheme.[64]  In making that submission, reliance was placed on the decision of Connolly J (with whom Kelly SPJ and Dowsett J agreed) in Moore v Kwiksnax Mobile Industrial and General Caterers Pty Limited, ex parte Kwiksnax Mobile Industrial and General Caters Pty Limited,[65] where in relation to a provision of a Planning Scheme the equivalent of pt II cl 2 of the Planning Scheme, it was said that such a provision is concerned with uses that are “of some substance and permanence” rather than “some transitory act which occurs briefly on the Land, albeit repeated with some degree of regularity”.  Reference was also made to Eames v Brisbane City Council,[66] where, citing Moore, it was said, “not every activity on land, even one which is carried out repetitively, will constitute a use, incidental or otherwise”.  His Honour found that the entertainment activity was limited in the extreme.  In my view, given that factual finding, which was not challenged, there is no basis for a determination that the activity was such as to be capable of amounting to a use.

Orders

  1. [70]
    The orders I would propose are:
  1. Leave to appeal be granted.
  2. The appeal be dismissed.
  3. The parties have leave to file written submissions, not exceeding four (4) A4 pages in length, as to the orders which should be made as to the costs of this appeal, within 14 days of the publication of these reasons.
  1. [71]
    McMURDO JA:  In the Planning and Environment Court, the appellants sought declarations and injunctions.[67]  They asked the Court to declare that the second respondent’s uses of its land, for the purposes of “air services” and “short-term accommodation”, were uses for which no “effective development permit” had been issued, and that its uses of the land for the purposes of “outdoor sport and recreation, tourist attraction and/or tourist park” were unlawful for the same reason.  The injunctive relief which was sought was dependent upon the case for those declarations being established.
  2. [72]
    The land had the benefit of approvals granted in 1991 by the Thuringowa City Council[68] (the 1991 approvals), which were granted pursuant to the Local Government Act 1936 (Qld).  At the time of the approvals, the Local Government Act had been repealed.  However, because the application for the approvals (the application) had been made before its repeal, the application had to be assessed and decided under that Act.  The approvals were taken to be consent permits under the Local Government (Planning and Environment) Act 1990 (Qld).
  3. [73]
    Under the planning scheme in force at the time of the application land was categorised by “zones”.  A table of zones provided for, with respect to each zone, three categories of purpose for the erection or use of buildings or other structures, or the use of land.  There were purposes for which no approval was required, purposes for which the consent of the Council was required and purposes which were prohibited.  The relevant purpose here was “private air strip”, and in the zone for the land in this case, “private air strip” was a purpose for which the Council’s consent was required.
  4. [74]
    The term “private air strip” was defined in the planning scheme as follows:

“Privately owned premises for the landing and departure of aircraft.  The term includes facilities provided at such premises for the housing, serving and maintenance of aircraft, and for passengers or goods carried by aircraft using the airstrip”.

  1. [75]
    The application for the 1991 approvals described the “proposed use” as “Private Air Strip”.  Against the words “description of existing buildings” was typed “nil”.  Against “area of land for which consent is required” was typed “as per attached site plan; [a]ffected area approximately 41,212 square metres”.  And against “proposed buildings” was typed “hangar”, for which dimensions were specified.
  2. [76]
    The record of the Council’s approval described the “consent use” as “Private Airstrip – as shown on Plan No’d 3014P1”, and granted approval subject to a number of conditions.  Most relevantly, condition three provided:

“The proposed Private Airstrip shall be constructed in accordance with the provisions of all relevant Acts, Regulations, By-laws and adopted Policies of the Council and shall, in the opinion of the Council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.”

Condition four provided for annual contributions towards the maintenance of an adjoining road, which would vary according to the number of vehicles entering the subject land. 

  1. [77]
    Clause 2(b) of Part II of the planning scheme described what constituted a permissible use as:

“(b) the purposes for which any building or other structure may be erected or used or for which land may be used only with the consent of the Council …”[69]

Provision was thereby made for the approved use (and erection) of a building or other structure, as well as for the approved use of land.  What was sought in this case, and approved by the Council, was both the use of land and the erection and use of a hangar, for the purpose of a private airstrip.[70]  The plan which was referred to in the approval (plan 3013P1) showed a small building for toilets, so that the use of that building as part of the airstrip facility was also approved.  Apart from those two buildings however, there was no approval then granted for the erection or use of any other structure.  If any other building was to be erected or used for the purpose of the airstrip, the Council’s consent would be required.  However, in that event, no renewed consent would be required for the ongoing use of the land and the structures which were the subject of the 1991 approval.

  1. [78]
    In their case in the Planning and Environment Court, the appellants made essentially two complaints.  The first was about the use of the land as “air services”.[71]  The second was about the use of the land for other purposes, described as “short-term accommodation, publicly advertised fly-ins, entertainment, the sale of food and beverages, the use of showers and toilet facilities and paid accommodation for caravans and campsites.”[72]  In this Court, that second complaint was limited to what were described as short-term accommodation and “outdoor entertainment events”.
  2. [79]
    Their complaint about the use of the land for air services was that the use of the land for that purpose had come to exceed “the scale and intensity authorised by any existing lawful use rights”, and that it constituted “a material increase in the scale and intensity which had been authorised.”[73]  Their case was that the number of hangars being used had increased from 1 to 5, and the additional hangars were of a substantially different scale, such that the total area of the hangars exceeded 1,130 square metres when the hangar approved in 1991 had an area of 100 square metres.  In addition, they said, other buildings had been erected so that there were, in total, 13 structures existing on the land, although some of them were not being used.  It was also said that a second runway had been built and was being used.
  3. [80]
    In essence, the argument for the appellants was, and remains, that it was not any private airstrip which was permitted by the 1991 approval, but only an airstrip as described in the application or approval, and in any document, such as plan 30113P1, to which it referred.  Consequently, the second respondent was limited to an airstrip comprising the structures and runway as proposed and approved in 1991.
  4. [81]
    The appellants’ case in the Planning and Environment Court raised two essential questions.  The first involved the nature and extent of what was permitted by the 1991 approvals.  The second involved the application of the planning laws which applied by the time of the proceeding in the Planning and Environment Court.
  5. [82]
    On the first question, for the most part at least, the appellants’ argument ought to have been accepted.  The use of the land as a private airstrip, which was permitted in 1991, was the use which was described and depicted in the relevant documents.  The use of the land as an airstrip was permitted.  The use of the hangar and the other building for that purpose was also permitted.  However the 1991 approvals did not also permit the erection or use of any other structure for that purpose.  Other structures could not be used for that purpose simply upon the basis that the nature of the use of the land would remain that of a private airstrip.  As the submissions for the Council helpfully explain, under the then legislation, a distinct approval would have been required for the use of another structure.[74]
  6. [83]
    On the other hand, the 1991 approvals imposed no conditions, for example, limiting the number of aircraft which the facility might accommodate.  The fact that there was only one approved hangar for the airstrip is likely to have had a practical effect on the number of aircraft which the facility could accommodate.  But the relevant legal limitation was upon the structures which could be used, rather than upon the number or type of aircraft.
  7. [84]
    The Local Government Act 1936 was replaced by the Local Government (Planning and Environment) Act 1990.  The erection or use of any further structure remained subject to effectively the same regime as had existed under the 1936 Act.  That is, the erection and use of another structure for this facility would have required the consent of the Council.
  8. [85]
    However, the position changed upon the enactment of the Integrated Planning Act 1997 (Qld).  By s 6.1.23(1) of that Act, the 1991 approvals took effect as if the approval and its conditions were a development permit under that Act.  In turn, by similar provisions of the SPA[75] and (if relevant) the Planning Act 2016 (Qld),[76] the 1991 approvals had effect as a development permit under those statutes.  However, this did not affect the scope of the approved use of the land, except in the following way.
  9. [86]
    As is submitted here for the Council,[77] the consequence of the different regime, introduced by the Integrated Planning Act and continued under the succeeding legislation, was that it was no longer a statutory requirement to obtain a further approval for the use of another structure in each and every case.  Rather, there was a requirement to obtain an approval, in the nature of another development permit, for a “development”, which was defined to include the carrying out of building work or the “making a material change of use premises”.[78]  The term “material change of use” was defined[79] to mean:

“(a) the start of a new use of the premises; or

  1. (c)
    a material change in the character, intensity or scale of the use of the premises.”

Similarly, under the SPA, permission was required for any “development”, which again was defined to include the carrying out of building work or the making of a material change of use of premises,[80] the latter being defined to include “a material increase in the intensity or scale of the use of the premises”.[81]  The Planning Act 2016 provides the same regime, with the terms “development” and “material change of use” being defined in relevantly the same way.

  1. [87]
    Consequently, from and after the enactment of the Integrated Planning Act 1997, the erection and use of any further structures for this airstrip required the approval of the Council only if they involved a material change (increase) in the intensity or scale of the use of the airstrip.
  2. [88]
    The primary judgment correctly identified that one of the “central questions” was whether, from the commencement of the Integrated Planning Act, there had been a material change in the intensity and scale of the use such as to constitute a development requiring the Council’s approval.[82]  In the extensive reasons for judgment which then followed, the judge detailed the evidence and the arguments before explaining his conclusions, as to this part of the case, on pages 71 and 72 of the judgment.
  3. [89]
    The judge had to assess the intensity or scale of the use of the airstrip and compare that with what was permitted in 1991.  His Honour described the extent of the use permitted by the 1991 approvals as follows:

[65] The 1991 consent permit authorised the use of the land at Jones Road, Woodstock in its entirety, not just the 4.1 hectares for a “private airstrip”. This is relevantly defined as:

“Privately owned premises for the landing and departure of aircraft.”

[66] The term “private airstrip” includes facilities provided at the premises for the housing, servicing, and maintenance of aircraft, and for passengers or goods carried by aircraft using the airstrip. This, in my assessment, can and should be considered broadly, and as such authorises the use of the land for the airstrip and hangers (sic), as well as other structures associated with such on-site activities.

[67] This is even more obviously the case when it is noted that the consent permit did not place any constraints on the hours of operation, though obviously the airstrip, not having lights, is only able to operate from dawn to dusk, as well there being no constraints on the type of aircraft used, or upon movement and numbers. Accordingly, I am satisfied that the use currently made of the land is for aircraft related activities, and is entirely consistent with the rights granted by the 1991 consent permit.

[68] There was no suggestion, in the consent permit, of any restrictions related to the scale of use, or intensity of use, of the private airstrip and to seek to now impose such restrictions flies in the face of proper practice. In that regard, I am particularly mindful of the obvious consideration of the Thuringowa council, as it then was, in relation to the possible requirement for additional payments to be made by the owners of the land in relation to increased road usage. With that in mind, it could not be other than considered that the granting of the permit was based upon an expectation, at least, that there was a possibility of an increase in use, and therefore the possibility of greater road traffic associated with the use of the private airstrip.”

  1. [90]
    In my respectful opinion, the primary judge erred in that analysis.  As I have explained, the 1991 approvals did not authorise any use of the land as a private airstrip, in that it did not authorise the use of any building or structure apart from the two buildings identified in the relevant documents.  What was permitted by the 1991 approvals was the use of the land as an airstrip, and the use of those two identified and particularised structures for the purpose of an airstrip.  The question then was whether there had been a material increase in the intensity or scale of that use.  The effect of the submissions for the respondents is that the judge answered that question and by a finding which this Court cannot review because it was a factual one.  However, it is not that question which this Court is asked to consider.  This Court is asked to consider the anterior question, involving the scope of the 1991 approvals.
  2. [91]
    In my respectful opinion, the judge erred in law, in determining the scope of the 1991 approvals.  His Honour reasoned that everything which, by the time of the hearing in the Planning and Environment Court, was occurring at this facility was within those approvals.  In his view, it was sufficient that “all works that have followed the granting of that permit have related appropriately to the operation of the private airstrip” and constituted development which was “substantially in accordance with what was required to operate the private airstrip”.[83]
  3. [92]
    The appellants’ argument in this Court was limited to the correctness of the judge’s interpretation of the 1991 approvals, and, understandably, did not extend to the factual question of whether there had been a material change of use.  That factual question is not answered in the Planning and Environment Court because of the error in the interpretation of the 1991 approval.  The final resolution of the controversy between the parties would require an answer to it, and the case should be remitted for that to occur.
  4. [93]
    The error of law warrants the grant of leave to appeal, and the appeal being allowed to the extent of ordering the Planning and Environment Court to consider the question raised by paragraph 11(a) of the grounds of the amended originating application, namely whether the use of the land for “air services” had come to exceed “the scale and intensity authorised by any existing lawful use rights”.
  5. [94]
    It remains to mention the second complaint of the appellants, which is that the use of the land for “short term accommodation” and “outdoor entertainment” was not authorised by the 1991 approval.  As Philippides JA has explained, ultimately this is a complaint about the use of the land for overnight camping, and “entertainment” constituted by one or more of the campers entertaining the others, over two Easter weekends, in 2014 and 2015.
  6. [95]
    It is sufficient to say that, as is submitted for respondents, these activities were too infrequent to constitute a “use” of the land in the relevant sense.[84]  Similarly, because of the isolated nature of those events some years ago, it would not be appropriate to grant leave to appeal for the purpose of considering whether a declaration should be made in response to this complaint.
  7. [96]
    For these reasons I am unable to agree with the orders proposed by Philippides JA, and would order as described above at [93].
  8. [97]
    BRADLEY J:  For the reasons expressed by Philippides JA, I respectfully agree that the primary judge did not err in law in identifying the scope of the 1991 approval on its proper construction.  I also agree with the orders proposed by her Honour disposing of the appeal.

Footnotes

[1]Bucknell & Anor v Townsville City Council & Anor, unreported, District Court of Queensland, Coker DCJ, 16 December 2019 at [1].

[2]Amended Statement of Agreed Facts at [1].

[3]Lot 25 on plan E124347, Lot 27 on plan EP21, Lot 29 on EP72, and Lot 2 on EP248.  Mr Bucknell held perpetual leases over the adjoining land and subsequently became the registered owner of part thereof: Amended Statement of Agreed Facts at [3]-[4].

[4]Both the property and the adjoining land were formerly located in the City of Thuringowa Local Government Area and are currently located in the Townsville City Council Local Government Area: Amended Statement of Agreed Facts at [7].

[5]Amended Statement of Agreed Facts at [2].

[6]Amended Statement of Agreed Facts at [18].

[7]Amended Statement of Agreed Facts at [16].

[8]Amended Statement of Agreed Facts at [8] and [17].

[9]Amended Statement of Agreed Facts at [19].

[10]Amended originating application at [11].

[11]Amended originating application at [9].

[12]Amended originating application at [10].

[13]Amended originating application at [14]-[15].

[14]AB at 256-257.

[15]This is a reference to an emergency or safety runway: AB at 737.

[16]Reasons at [7].

[17]Local Government (Planning and Environment) Act 1990, s 8.10(7)(a) and s 8.10(8).

[18]Reasons at [13]-[14].

[19]Reasons at [8].

[20]See Division II of Part II of the 1998 Scheme.

[21]Amended Agreed Statement of Facts at [20] and [21].

[22]Reasons at [65].

[23]Reasons at [66].

[24]Reasons at [67]-[68].

[25]Reasons at [70].

[26]Reasons at [46].

[27]Applicants’ amended outline at [7].

[28]Applicants’ amended outline at [8].

[29]Applicants’ amended outline at [9].

[30]Appeal transcript at 1-37.  The first issue was identified as being essentially the subject of grounds 1 and 2(a) to 2(c) of the proposed notice of appeal.  Ground 2(f) did not add anything new, while ground 2(g) was not a ground on which the applicants would independently succeed, but went to demonstrating that the primary judge was distracted by the town planners’ evidence leading to the alleged errors in grounds 1 and 2(a) to (c).  Ground 3 was said to be a mirror image of the primary grounds 1 and 2(a) to (c).

[31]Appeal transcript at 1-3.20-21.

[32]By the extended definition, “use” is defined to mean “in relation to premises, includes any use incidental to and necessarily associated with the use of the premises”: sch 3 of the SPA.

[33]Applicants’ amended outline at [9], [12].

[34][2017] 1 Qd R 13 at [26], [79]-[87].

[35]Applicants’ amended outline at [14] and [15].

[36]Applicants’ outline at [16]; Grace Brothers Pty Ltd v Willoughby MC (1980) 44 LGRA 400; Firefast Pty Ltd v Gold Coast City Council [1999] QPELR 200; Development West Inc v Maroochy Shire Council [2007] QPELR 48.

[37]Reasons at [69].

[38]Stockland Development Pty Ltd v Townsville City Council (2013) 195 LGERA 317 at [30]-[31].

[39]Applicants’ amended outline at [17].

[40]Applicants’ amended outline at [19].

[41]Councils amended outline at [23]; Grace Brothers Pty Ltd v Willoughby MC (1980) 44 LGRA 400; Firefast Pty Ltd v Gold Coast City Council [1999] QPELR 200; Development West Inc v Maroochy Shire Council [2007] QPELR 48.

[42]Council’s amended outline at [24].

[43]Ace’s amended outline at [21].

[44]Matijesevic v Logan City Council [1984] 1 Qd R 599 at 605; Hawkins and lzzardv Permarig Pty Ltd and Brisbane City Council (No 1) [2001] QPELR 414 at 416; Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors [2010] QPELR 74 at 84; Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334 at [6].

[45]Television Corporation Ltd v the Commonwealth (1963) 109 CLR 59 at 69 and 71.

[46]Ace’s amended outlines at [24].

[47]Reasons at [69] (AB at 81).

[48]Ace’s amended outline at [26].

[49][2007] QPELR 334 at 336 and ff.

[50](2013) 195 LGERA 317.  Cited in the applicants’ Outline at footnote 21.

[51]Amended Statement of Agreed facts at [16].

[52]SPA, s 311(1)(a), s 311(2)(a).

[53]Applicants’ amended outline at [22].

[54]“Caravan park” was defined in the 1988 planning scheme to mean: ‘The parking of caravans and the pitching of tents; the term includes, as an ancillary use, the erection and use of cabins and relocatable homes for providing overnight or holiday accommodation, where such cabins are provided within the caravan park’.

[55]“Outdoor entertainment” was defined in the 1988 planning scheme to mean: Any activity, purpose or pursuit which affords or is calculated to afford spectator interest, amusement or entertainment and which is conducted predominantly in the open air.  Without limiting the generality of the foregoing, the term includes but is not limited to those activities, purposes and pursuits set out in Appendix VII hereto but does not include a park as herein defined.  Appendix VII included: amusement park, circus, dog racing track, drive-in theatre, exhibition, go kart track, gymkhana, motorcycle track, racecourse, rodeo yard, shooting range (clay pigeon, rifle, pistol, etc), showground, speedway, sporting arena, stadium, trail bike course, travelling circus, trotting track, wild life or fauna park.

[56]SPA, sch 3.

[57]Boral Resources (Qld) Pty Ltd v Cairns CC (1996) 91 LGERA 323 at 327.

[58]Boral Resources at 327.

[59]MacKenzie affidavit at para. 47(e)(iii) (AB at 323).

[60]MacKenzie evidence at TI-33/5-10 (AB at 736).

[61]MacKenzie affidavit at para. 48(c) (AB at 324).

[62]MacKenzie affidavit at para. 48(f) (AB at 324-325).

[63][2013] 1 Qd R 1 at [45]-[46] per Chesterman JA; at [73] per Philippides J (as her Honour then was).

[64]Ace’s amended outline at [17(a)].

[65][1991] 1 Qd R 125 at 129.

[66][2010] QPELR 504 at 507F.

[67]As enforcement orders pursuant to s 603 of the Sustainable Planning Act 2009 (the SPA) (repealed 3 July 2017).

[68]Which was then the relevant local authority.

[69]Corresponding with the terms of s 33(18)(ii) of the 1936 Act.

[70]Paragraph 13 of the Council’s submissions in this Court described this as a “bifurcated consent application”.

[71]As defined in the Townsville City Plan 2014.

[72]Amended originating application:  Grounds, paragraph 8.

[73]Amended originating application:  Grounds, paragraph 11.

[74]Council’s amended outline of submissions, paragraph 17.

[75]s 801(1).

[76]s 286(2).

[77]Council’s amended outline of argument, paragraph 17.

[78]Integrated Planning Act s 1.3.2.

[79]By s 1.3.6 of the Integrated Planning Act.

[80]s 7.

[81]s 10.

[82]Bucknell v Townsville City Council & Anor, Unreported, Coker DCJ, 16 December 2019 at [10]; see also [29]-[30].

[83]Ibid at [69].

[84]cf. Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd, ex parte Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1991] 1 Qd R 125 at 129.

Close

Editorial Notes

  • Published Case Name:

    Bucknell & Anor v Townsville City Council & Anor

  • Shortened Case Name:

    Bucknell v Townsville City Council

  • MNC:

    [2021] QCA 26

  • Court:

    QCA

  • Judge(s):

    Philippides JA, McMurdo JA, Bradley J

  • Date:

    23 Feb 2021

  • White Star Case:

    Yes

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.