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  4. Redland City Council v Boutique Capital Pty Ltd - [2025] QCA 94

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Redland City Council v Boutique Capital Pty Ltd[2025] QCA 94

Redland City Council v Boutique Capital Pty Ltd[2025] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

Redland City Council v Boutique Capital Pty Ltd [2025] QCA 94

PARTIES:

REDLAND CITY COUNCIL

(applicant/appellant)

v

BOUTIQUE CAPITAL PTY LTD ACN 621 697 621 AS TRUSTEE UNDER INSTRUMENT NUMBER 721552472

(first respondent)

KEY SPEC CONSTRUCTION PTY LTD ACN 612 441 568

(second respondent)

GEOFFREY ROBERT MITCHELL

(third respondent)

FILE NO/S:

Appeal No 2081 of 2024

P & E Appeal No 3188 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2024] QPEC 1 (McDonnell DCJ)

DELIVERED ON:

3 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2024

JUDGES:

Boddice JA, Bradley and Hindman JJ

ORDERS:

  1. Leave to appeal granted.
  2. Appeal dismissed.
  3. The appellant pay the costs of the first and second respondents.

CATCHWORDS:

ENVIRONMENT AND PLANNING – PLANNING – PLANNING CONTROLS – QUEENSLAND – LOCAL PLANNING INSTRUMENT – where the matter concerns the development of a Building, on a site in Cleveland, that would be used as specialist disability accommodation – where the site is within a low-density residential zone in the Council’s planning scheme – where the respondents contend the intended use of the Building is as a “community residence” as defined in the Planning Regulation 2017 (Qld) – where the use of the Building as a community residence would not be an assessable development under the local planning instrument and private certification would be sufficient for the issue of the required development permit – where the applicant seeks leave to appeal against a decision of the Planning and Environment Court, which dismissed the Council’s application for declarations and orders under s 11 of the Planning and Environment Court Act 2016 (Qld) in relation to the development of the Building – where the effect of the declarations and orders would have been that the private certification was void and of no effect – whether a development offence has been committed – whether the primary judge made an error of law in interpreting and determining compliance with the definition of community residence

Planning Act 2016 (Qld)

Planning Regulation 2017 (Qld), sch 24

Batchelor & Co Pty Ltd v Websdale [1963] 63 SR (NSW) 49, distinguished

Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64, cited

Dilworth v Commissioner of Stamps [1899] AC 99; [1898] UKLawRpAC 56, distinguished

Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13, cited

YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12, considered

COUNSEL:

K W Wylie for the applicant/appellant

J M Horton KC, with A N S Skoien, for the first and second respondents

No appearance for the third respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant/appellant

CIF Lawyers for the first and second respondents

No appearance for the third respondent

  1. [1]
    BODDICE JA:  I agree with Bradley J.
  2. [2]
    BRADLEY J:  The first respondent is the owner of land at Cleveland.  The second respondent is developing a building on that land (the Building).  They (the respondents)[1] intend the Building to comprise four two-bedroom residential units, a one-bedroom support worker unit and a garage with four resident’s carparks, and, as shared spaces, a foyer, lift, stairwells, and multipurpose room, when completed.  The Building would be used as specialist disability accommodation (SDA).  The residents would be supported by the National Disability Insurance Scheme (NDIS).
  3. [3]
    The appellant (the Council) is the local government for the area in which the Building is being constructed.  The site is within a low-density residential zone in the Council’s planning scheme (the City Plan).  The City Plan is a local categorising instrument under the Planning Act 2016 (Qld) (PA).
  4. [4]
    The respondents did not apply to Council for a development permit for the intended use of the Building.  They contended that the intended use is as a “community residence” as defined in schedule 24 of the Planning Regulation 2017 (Qld) (the Regulation).  The use of the Building as a community residence would not be an assessable development[2] under the City Plan.  It would not require a development permit for a material change of use, and private certification would be sufficient for the issue of the required development permit.
  5. [5]
    The third respondent is a private building certifier (the certifier).[3]  Between 14 July 2022 and 24 August 2022, the certifier issued decision notices (the decision notices), which granted development permits for the various stages of works to occur on the site, including construction of the Building.
  6. [6]
    On 22 December 2022, the Council applied to the Queensland Planning and Environment Court (QPEC) for declarations and orders under s 11 of the Planning and Environment Court Act 2016 (Qld) (PECA).  If granted, the effect of the declarations and orders would have been that the decision notices were void and of no effect, that the respondents had committed a development offence in breach of the PA by carrying out the works associated with the Building, and that, on completion and residential occupation of the Building, the material change of use would also be a development offence under the PA.  The Council also applied for enforcement orders under s 180(3) of the PA.  If granted, the effect of the enforcement orders would have been to require the respondents to cease carrying out works on the land and return the land to the condition it was in before the works started, and to restrain the respondents from commencing the use of the Building in its intended configuration until a development permit was in effect for that use.
  7. [7]
    On 10 January 2024, QPEC dismissed the Council’s application and the learned primary judge published reasons for the decision.[4]
  8. [8]
    The Council sought leave to appeal against the dismissal of its application.

Grounds of appeal

  1. [9]
    The Council set out three proposed grounds of appeal.  Each would allege that the primary judge made a distinct error of law in interpreting and determining compliance with the definition of community residence in schedule 24 of the Regulation.
    1. First, the Council would allege that the primary judge erred in law in finding that paragraph (b) of the definition was included to “avoid any doubt” and, by implication, finding that the proposed development was not required to satisfy paragraph (b) to constitute a community residence.
    2. Second, the Council would allege that the primary judge erred in law in finding that a use including a building or structure that was reasonably associated with a use for residential accommodation by more than six persons who require assistance or support with daily living needs (such as the Building) could be a community residence within the definition, considering the apparent capacity restraint set out in paragraph (a) of the definition.
    3. Third, the Council would allege that the primary judge’s conclusion that the Building comprised only one community residence, rather than four community residences, was inconsistent with some prior factual findings made by her Honour.
  2. [10]
    It is convenient to deal with each proposed ground of appeal in turn.

The first ground

  1. [11]
    A community residence is defined in this way:

“community residence —

  1. means the use of premises for residential accommodation for—
  1. no more than—
  1. (A)
    6 children, if the accommodation is provided as part of a program or service under the Youth Justice Act 1992; or
  1. (B)
    6 persons who require assistance or support with daily living needs; and
  1. no more than 1 support worker; and
  1. includes a building or structure that is reasonably associated with the use in paragraph (a).”
  1. [12]
    The Council contends that the primary judge erred in construing the word “includes” in paragraph (b) as adding or expanding the meaning in paragraph (a) by including a building or structure reasonably associated with the use in paragraph (a).  The following is the relevant part of her Honour’s reasons (footnotes omitted):

“[25]The use of the phrases “means” and “includes” in a definition was considered by the High Court in International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) & Ors in which the Court observed:

‘The use in this way of the concept ‘means and includes’ is to avoid any doubt that what is identified by the inclusion falls within the scope of the designated meaning of [the word being defined]’.

[26]Adopting that approach, which I accept, ‘Community residence’ means the use of premises for residential accommodation for no more than six persons who require assistance or support with daily living needs (Residents) and no more than one support worker, and to avoid any doubt includes ‘a building or structure that is reasonably associated with that use’.

[27]The requirement in paragraph (a) provides a clear limit on both the type and number of persons using the Building for residential accommodation.  It permits the accommodation of no more than six Residents and no more than one support worker.  In my view, it follows that the use of the Site for residential accommodation of persons who are not support workers or Residents, such as family members, is outside the scope of activities prescribed by the defined term.  A person, including family members of Residents, may not use the Building for residential accommodation unless both the number and type criteria in paragraph (a) are satisfied.  This is evident as no more than seven persons who satisfy particular criteria may be accommodated.  Because there is a cap on the number and the type of persons, I do not accept that the use of the Building for residential accommodation for people other than those satisfying both criteria are reasonably associated with the use.”[5]

  1. [13]
    The Council submitted that the proper construction of the definition was one in which the use of the premises must satisfy both paragraph (a) and paragraph (b) of the definition.  The Council relied on interpretations of other provisions to contend that the word “includes” in paragraph (b) should be construed as “means and includes”.  None of these other provisions was formulated with the same structure as the definition.
  2. [14]
    In Dilworth v Commissioner of Stamps,[6] the Privy Council considered a New Zealand statute exempting certain bequests for “charitable purposes” from stamp duty under another Act.  The clause specified only what the expression “charitable purposes” “includes”.  It did not specify what that expression “means”.  In this context, their Lordships found it was not necessary to determine whether the word “includes” should be construed in the general sense as extending the ordinary meaning of the defined term to include the renumerated things, or whether it should be construed as “means and includes” so that the numerated things would be an “exhaustive definition” of the defined term, excluding other things that might be within its ordinary meaning.  Unlike the definition in Dilworth, the definition here did use “means” at the beginning of paragraph (a), as well as “includes” in the same place in paragraph (b).  Given the clear difference between the statutory provisions, their Lordships’ obiter dictum is of limited assistance in construing the definition.  Perhaps it assists in identifying the ordinary effect of “includes”, which is consistent with the primary judge’s decision.
  3. [15]
    In YZ Finance Co Pty Ltd v Cummings,[7] the question was whether a promissory note was a security within the meaning in s 24 of the Money-lenders and Infants Loans Act 1941 (NSW).  Like the provision considered in Dilworth, s 24(2) did not use the expression “means”, but only “includes”.  Parliament had provided only that “security”:

“includes bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan.”

  1. [16]
    Their Honours approved the reasoning of Sugarman J in Batchelor & Co Pty Ltd v Websdale,[8] concerning the same provision, which had been followed by the Full Court of the Supreme Court of New South Wales.  Sugarman J had concluded that in s 24(1) “includes” was equivalent to “means and includes” and that the definition was “intended to be exhaustive”.  The considerations that led to this conclusion were that:

“The enumeration in sub-s (2) adds nothing to the natural import of the word ‘security’.  Indeed all the matters enumerated are within the strictest meaning of that term and, within that meaning, the second limb of the definition is of the widest import.  All the matters enumerated share the common characteristic that they relate to securities by which rights in relation to specific property of the debtor are conferred.”

  1. [17]
    After citing that passage, McTiernan J explained that:

“The word ‘security’ … could, in the absence of sub-s (2), include a promissory note.  All the transactions mentioned in sub-s (2) are securities in themselves.  None of them needs any expression of legislative intent to be a security … The manifest object of sub-s (2) to be gathered from its contents is to afford guidance as to what the term ‘security’ in sub-s (1) is intended to be confined.  I think it would be contrary to the legislative intention revealed by adding sub-s (2) to sub-s (1) to enlarge by construction the scope of the word ‘security’ in sub-s (1) to bring within the operation of the latter provision a promissory note, as no such instrument falls within the enumeration of securities in sub-s (2).  In my opinion this sub-section provides ‘an exhaustive explanation’ of the meaning of ‘security’ for the purpose of sub-s (1).”[9]

  1. [18]
    The definition here is not of that nature.  A building or structure reasonably associated with the use in paragraph (a) is not something ordinarily within the scope of paragraph (a).  The inclusion effected by paragraph (b) extends the definition to include something within paragraph (b).  The construction adopted in YZ Finance is not apt for the present definition.
  2. [19]
    The Council’s submission would have more force, had paragraph (a) of the definition not begun with “means”, or if paragraph (b) had begun with “that” or “that also”.  It does not.  The provision does not convey a legislative intention that a use must be “a building or structure that is reasonably associated with” the use in paragraph (a) of the definition, as well as being a use within paragraph (a), to fall within the definition.  Construed as the Council contended, the provision would lack certainty, not least because of the circuitous nature of that construction.
  3. [20]
    The Council’s construction would run afoul of the observation of Barwick CJ in Favelle Mort Ltd v Murray that:

“there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined.”[10]

  1. [21]
    The inclusion of paragraph (b) in the definition expresses the legislative intention to include a reasonably associated building or structure within the scope of “community residence”.  It does not limit that use by adding another necessary condition.  The Council’s submissions to the contrary should be rejected.  In the context of the Building, structures like the garage, the shared foyer, the lift, the stairwells, and the multipurpose room are reasonably associated with the use of the premises for the relevant type of residential accommodation.  The inclusion of paragraph (b) removes any doubt about such structures being within the residential accommodation use.
  1. [22]
    The primary judge was applying the ordinary meaning of the word “includes”.  So, the differences between the definition and the provision construed in International Litigation Partners[11] is of little importance.
  2. [23]
    As the High Court observed in Corporate Affairs Commission (SA) v Australian Central Credit Union,[12] the use of the word “including”, without “means”, generally indicates the provision is “expansive of what would otherwise be included”.  Their Honours said:

“The function of such an inclusive ‘definition’ is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases.”[13]

  1. [24]
    The Council also submitted that the absence of the words “the use of premises” from paragraph (b) of the definition implied that the word “includes” should be construed differently to the same word in other defined uses, such as “wind farm”.  The defined term “community residence” is itself a use.  The absence of the phrase “the use of premises” does not support the implication the Council would draw.
  2. [25]
    The Council supported its construction by arguing that the Council would have to be “in a state of continual vigilance, undertaking periodic and intrusive internal inspections of the premises” to ensure that the premises were not being unlawfully used if its construction were not adopted, whereas its construction would reduce (it did not contend for eliminate) the risk of an unlawful use of premises.  Many premises designed for a particular lawful use might be able to be used in an unlawful manner.  The Council’s submission about work it may need to do to ensure premises are being used lawfully, is therefore not compelling to the resolution of the construction issue.
  3. [26]
    The primary judge was not in error in construing the definition in accordance with its ordinary meaning.  The first ground of appeal should fail.

The second ground

  1. [27]
    The Council’s second ground of appeal would depend upon the Council succeeding on the first ground.  It illustrated how the Council would apply the PECA and the PA, if it succeeded on the first ground.  For the reasons above, that should not be the outcome.
  2. [28]
    The second ground should fail in any event.  It proceeded on the assumption that a building with a total of eight SDA standard bedrooms across four units, and one separate support worker unit, could not be a building “reasonably associated with the use of the premises for no more than six persons requiring assistance.”
  3. [29]
    Her Honour found that:

“Use of the Building by eight Residents would not comply with the definition of Community residence.  Just because the Building can physically accommodate eight Residents does not mean that the Building is not reasonably associated with the use by no more than six Residents.”[14]

  1. [30]
    The Council’s position was that the use of a second bedroom or bathroom for a visitor was not reasonably associated with the use of the premises for no more than six persons requiring assistance.  The Council also relied on opinion evidence that the second bedroom need not be accessible to a resident with relevant needs, so that the resident would not be able to access all the rooms of their home.
  2. [31]
    If the Council’s submissions were adopted the consequence might be that a person with relevant needs would not be permitted to, entertain visitors in their home; the person would not have a second bathroom for a visitor to use; the person would not have a second bedroom in which a visitor could rest during the day or stay overnight; and that the person would not have such facilities for a visitor with needs best met by an SDA standard bathroom or bedroom.  Another consequence might be that a relevant person would not be permitted to use a second bedroom for mobility or exercise or therapy equipment or to store goods not in current use or as a home office.  A restrictive view of the abilities and the rights of persons with a disability, which would follow the Council’s submissions, should be rejected.
  3. [32]
    The Council did not challenge the primary judge’s acceptance of evidence that some residents requiring assistance may wish to share a residential unit in the Building, rather than live alone.
  4. [33]
    Contrary to the Council’s submission to this Court, the primary judge did not approach the Council’s application on the basis that whether the respondents’ intended use of the Building was within the definition was “unascertainable in advance”.  Nor had her Honour approached the issue on the basis that the lawfulness of the intended use would be “informed by the numbers of residents actually accommodated in the premises from time to time.”
  5. [34]
    As her Honour found:

“The evidence, which I accept, establishes that the second bedroom and bathroom in each [Residential Unit] is capable of being used for the purposes of residential accommodation for a Resident or in a manner reasonably associated with the use in paragraph (a) [of the definition].  The Building can be used in a manner which is unlawful.  However, the Building is capable of being wholly used in a manner which is lawful.”[15]

  1. [35]
    The same might be said for many premises in the Council’s local government area.  Having applied orthodox legal principles to the construction of the definition, the primary judge found the design and construction of the Building was consistent with a lawful use as a community residence.  Speculation about the possible use of the premises outside or contrary to the definition could not render the intended use unlawful.  The primary judge did not err in applying the relevant statutory provisions in this way.
  2. [36]
    The second ground should fail.

The third ground

  1. [37]
    The Council’s third ground of appeal was that the primary judge erred in rejecting the Council’s submission that the Building comprised four separate community residences.
  2. [38]
    The Council’s submissions were that the broad meaning of “premises” and “building” allowed each of the units in the Building to be a separate premises, a separate building and so a separate community residence.  So construed, the Council submitted, the Building comprised four dwellings on a single parcel of land.  The use of four buildings on the land as community residences required a development permit for a material change of use.  So construed, the Council also submitted each unit would have to have two resident car parks, a total of eight.  The Building included only four resident carparks.
  3. [39]
    The primary judge rejected the Council’s submission because:

“This approach requires the reading of words into the definition.  The definition does not require that there be a communal form of living in the development.  Multiple residents are envisaged in a Community residence, but there is nothing in the definition limiting the use to a single dwelling.  Irrespective of the number of dwellings, the use remains a Community residence.  I am satisfied that, whilst there might be more than one dwelling in the Building, the use of the Building remains a single Community residence.”[16]

  1. [40]
    As her Honour noted, the definition describes a community residence as “the use of premises for residential accommodation” and does not limit it to “any dwelling used for accommodation”, as the former meaning of community residence did,[17] before the commencement of the Regulation and the definition.  The definition does not include any limit of the number of dwellings within a community residence.  It does not refer to “dwelling”.  Her Honour also observed that the definition does not require the persons with relevant needs to “share communal spaces”, as the former meaning did.
  2. [41]
    The designer of the Building gave evidence that the separate, private accommodation units “reflected the minimum requirement for a fit for purpose home” for an NDIS participant with High Physical Support needs.  The time has passed when persons in need of assistance or support with daily living needs could be expected to live only in shared accommodation with communal facilities.[18]  The definition should not be construed on the assumption that for persons with such needs the provision of barracks or dormitories of past centuries remains the norm.  As the respondents’ counsel submitted, it was hardly surprising that the definition does not mandate the way relevant persons are to live in a community residence.
  3. [42]
    The third ground should fail.

Final disposition

  1. [43]
    The Court should order:
  1. Leave to appeal granted.
  2. Appeal dismissed.
  3. The appellant pay the costs of the first and second respondents.
  1. [44]
    HINDMAN J:  I agree with Bradley J.

Footnotes

[1]It is convenient to refer to the first and second respondents as the respondents, as they were the respondents who participated in the appeal.

[2]PA, s 44(6)(a).

[3]The third respondent did not participate in the QPEC proceeding or in the appeal.

[4]Redland City Council v Boutique Capital Pty Ltd as Trustee [2024] QPEC 1 at [14] (the Reasons).

[5]Reasons at [25]-[27].

[6][1899] AC 99 (‘Dilworth’).

[7](1964) 109 CLR 395 (‘YZ Finance’).

[8][1963] 63 SR (NSW) 49 at 52-53.

[9]YZ Finance at 399.

[10](1976) 133 CLR 580 at 588.

[11]International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) (2012) 246 CLR 455 (‘International Litigation Partners’).

[12](1985) 157 CLR 201 (Mason ACJ, Wilson, Deane and Dawson JJ).

[13]At 206-207.

[14]Reasons at [37].

[15]Reasons at [56].

[16]Reasons at [50].

[17]Sustainable Planning Regulation 2009 (Qld), Schedule 26, made under the Sustainable Planning Act 2009 (Qld).

[18]The same might be said for children in programs or using services under the Youth Justice Act 1992 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Redland City Council v Boutique Capital Pty Ltd

  • Shortened Case Name:

    Redland City Council v Boutique Capital Pty Ltd

  • MNC:

    [2025] QCA 94

  • Court:

    QCA

  • Judge(s):

    Boddice JA, Bradley J and Hindman J

  • Date:

    03 Jun 2025

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QPEC 110 Jan 2024Application by local government for declarations and orders in connection with construction and use of specialist disability accommodation; application dismissed: McDonnell DCJ.
Notice of Appeal FiledFile Number: CA 2081/2421 Feb 2024Application filed.
Appeal Determined (QCA)[2025] QCA 9403 Jun 2025Leave to appeal granted; appeal dismissed: Bradley J (Boddice JA and Hindman J agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Batchelor & Co Pty Ltd v Websdale (1963) 63 SR (NSW) 49
2 citations
Jump To
Cite 1 - (1963) 63 SR (NSW) 49
Cite 2 - (1963) 63 SR (NSW) 49
Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201
2 citations
Jump To
Cite 1 - (1985) 157 CLR 201
Cite 2 - (1985) 157 CLR 201
Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64
1 citation
Jump To
Cite 1 - [1985] HCA 64
Dilworth v Commissioner of Stamps (1899) AC 99
2 citations
Jump To
Cite 1 - (1899) AC 99
Cite 2 - (1899) AC 99
Favelle Mort Ltd v Murray (1976) 133 CLR 580
2 citations
Jump To
Cite 1 - (1976) 133 CLR 580
Cite 2 - (1976) 133 CLR 580
Favelle Mort Ltd v Murray [1976] HCA 13
1 citation
Jump To
Cite 1 - [1976] HCA 13
International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) (2012) 246 CLR 455
1 citation
Jump To
Cite 1 - (2012) 246 CLR 455
Redland City Council v Boutique Capital Pty Ltd [2024] QPEC 1
2 citations
Jump To
Cite 1 - [2024] QPEC 1
Cite 2 - [2024] QPEC 1
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
2 citations
Jump To
Cite 1 - (1964) 109 CLR 395
Cite 2 - (1964) 109 CLR 395
YZ Finance Co Pty Ltd v Cummings [1964] HCA 12
1 citation
Jump To
Cite 1 - [1964] HCA 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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