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Carrigan v Goondiwindi Regional Council[2016] QPEC 8

Carrigan v Goondiwindi Regional Council[2016] QPEC 8

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Carrigan v Goondiwindi Regional Council [2016] QPEC 8

PARTIES:

GRANT PATRICK CARRIGAN
(applicant)

v

GOONDIWINDI REGIONAL COUNCIL
(respondent)

FILE NO/S:

2346 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

17 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2016

JUDGE:

Jones DCJ

ORDERS/
RULINGS:

  1. The use constitutes a material change of use of the premises.
  1. The use falls within the definition of a detached house for the purposes of the planning scheme. 

 

HEARING OF AN APPLICATION – APPLICATION FOR DETERMINATION OF PRELIMINARY ISSUES – Whether shed unlawfully constructed on the subject land constituted a material change of use for the purposes of the Sustainable Planning Act 2009 – and, if so, whether the use fell within the definition of “detached house” or “storage facility” or is otherwise undefined under the relevant planning scheme

FINDINGS OF FACT – Where court invited to make findings adverse to the applicant based on circumstantial evidence – whether such findings open on the evidence

MATERIAL CHANGE OF USE – whether construction of large shed on large rural residential allotment amounted to a material change of use because – it introduced a new use to the premises – it constituted a re-establishment of an abandoned use – it was a material increase in the scale and/or intensity of the use of the premises.

Sustainable Planning Act 2009

Waggamba Shire Council Planning Scheme 2006

Leeming v City of Port Adelaide [No. 2] (1987) 62 LGRA 296

Maroochy Shire Council v Barnes [2001] QPELR 475

Gorrie & Anor v Mackay City Council & Anor [2003] QPELR 328

Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31

Southside Action Group Against the Proposed Dump at Rochedale Incorporated v Brisbane City Council & Anor (1992) 76 LGRA 402

COUNSEL:

Ms M J Kefford for the applicant
Mr J T Dillon for the respondent

SOLICITORS:

McCullough Robertson for the applicant
King & Company for the respondent

  1. [1]
    This application is concerned with determining the following questions:

“(1) whether the use of the proposed shed constitutes a material change of use of the subject land; and

(2) if the use of the proposed shed constitutes a material change of use of the subject land, whether the use falls within the definition of ‘detached house’ or ‘storage facility’ provided in the Waggamba Shire Council planning scheme 2006 or, alternatively whether the use is a use not defined in the planning scheme.”

  1. [2]
    For the reasons set out below the answer to those questions are as follows:
  1. The use constitutes a material change of use of the premises.
  1. The use falls within the definition of a detached house for the purposes of the planning scheme. 

Background               

  1. [3]
    The applicant is the owner of a 2.798 hectare lot located on the outskirts of Goondiwindi. The land is located in the Low Density Residential Precinct of the Low Density Residential Zone of the subject planning scheme. That scheme generally provided that sheds associated with detached houses within that zone are to be no larger than 91m2 with a maximum height of 4m or otherwise must not impact adversely on the amenity of the zone.
  1. [4]
    On 10 September 1992, the then owners of the land lodged an application for approval for building work. The application described the proposed building works as being two sheds with an intended use as “storage/garage”.[1]  One of those sheds was located close to the house and was described as a “proposed garage”.  The dimensions of that shed were 12m in length x 6m in width and 2.4m in height.  The second shed was located at the northern end of the property well removed from the dwelling and the nearest property boundaries and was described as a “modern garage shed”.  The dimensions of that shed were 15m in length x 9m in width and 5m in height.[2]
  1. [5]
    Sometime in 2002 the owners of the land lodged a development application concerning the second of the sheds described above. That application was for a material change of use for “Home industry (machinery storage)”. That application was approved subject to conditions by the then Waggamba Shire Council on 24 October 2002.  That Council of course no longer exists and its local government area now forms a part of the Goondiwindi Regional Council local government area. In a document provided by the owners, Kevin and Kath Quinn, under the heading “Quinn Contract Farming” the proposed uses of the shed were decided as:[3]

“Machinery to be stored at various times:

‐Tractor

‐Truck

‐Header

‐Air Seeder

Activities to be carried out:

‐General Repairs

‐Cleaning

‐Storage”

  1. [6]
    The applicant became the registered proprietor of the subject land on 15 February 2013. It would appear that prior to that, on 17 December 2012 he lodged a development application for a material change of use of the land to, in effect, approve an extension to the aforesaid machinery shed and the construction of a (HLS) helicopter landing site. A letter accompanying that application provided, amongst other things, the following information:[4]

“It is the intention of the owner to store company owned helicopters (Goondiwindi Helicopters) in the extended machinery shed.  No employees are to operate from this site.  The helicopters being stored would operate on the basis of a take off and landing sequence, this sequence of operation would take place between the hours of 6.00 am and 6.00 pm, six days a week.”

  1. [7]
    Under cover of a letter dated 13 December 2012 consultants acting for the applicant delivered to the respondent “the mandatory supporting information” and “completed IDAS forms 1 and 5 …”. The supporting information described the application in these terms:[5]

“This application is an extension to the existing material use of the land.  Primarily it represents an extension to the existing machinery shed and the addition of a (HLS) helicopter landing site or pad.  The use of the shed has been defined in detail on the proposed shed layout.  No repairs and maintenance to machinery, other than domestic, are planned for this property.  No storage of aviation fuel is proposed for this site.

It is the intention of the owner to store company owned helicopters (Goondiwindi Helicopters) in the extended machinery shed.  No employees are to operate from this site. …” (emphasis added)

The ‘proposed shed layout’ and ‘extended machinery shed’ emphasised above are shown in a document described as “proposed floor plan”.[6]

  1. [8]
    Inexplicably between October and November 2013, that is while the development application was still being assessed, the applicant demolished the existing shed and constructed a new shed in its place without obtaining any building or material change of use approvals. The dimensions of the new shed as constructed is 24.45m in length x 18.6m in width and 7.6m in height. The new shed was therefore 454.8m2 and 7.6min height, to be compared with the size of the demolished shed which was 135m2 x 5m in height.  The shed as constructed is also materially larger than that originally proposed in the “helicopter” application.  At that time it was proposed to add a 165m2 addition to the existing shed, giving a total volume of 300m2.[7]
  1. [9]
    On 17 December 2012 the respondent refused the application. The applicant appealed that refusal but the appeal was discontinued on or about 11 August 2014. Not surprisingly enforcement proceedings were brought against the applicant.
  1. [10]
    Instead of prosecuting the appeal concerning the helicopter storage use, on or about 15 August 2014 the applicant filed a fresh development application for building works in respect of the new shed. That application was amended on 17 September 2014. Ms Kefford, counsel for the applicant, described this application in the following terms:[8]

“In an attempt to regularise his unlawful conduct in constructing the new shed without the necessary development permit, on or about 11 August 2014 Mr Carrigan made a development application (‘Application’) for building work assessable against a planning scheme for a shed on his land...  The dimensions of the shed are 24.45m x 18.6m, with a height of 7.6m.”

  1. [11]
    By a decision notice dated 27 May 2015 the respondent refused the applicant’s development application and on 18 June 2015 the applicant filed his appeal against that refusal.

The fundamental positions of the parties

  1. [12]
    Section 10 of the Sustainable Planning Act 2009 (SPA) relevantly defines a “material change of use” as:
  1. (a)
    the start of a new use of the premises; or
  1. (b)
    the re-establishment on the premises of a use that has been abandoned; or
  1. (c)
    a material increase in the intensity or scale of the use of the premises.
  1. [13]
    On behalf of the applicant it was submitted that the new shed is neither a new use of the premises, nor does it involve the re-establishment on the premises of a use that has been abandoned, nor does it involve a material increase in the intensity or scale of the use of the premises. It was also submitted on behalf of the applicant that in the event that the court was to find that there was in fact a material change of use, that use would be properly defined as falling within the definition of a “detached house” for the purposes of the respondent’s planning scheme.
  1. [14]
    On behalf of the respondent it was contended that the new shed resulted not only in a new use of the premises (or in the alternative results in the re-establishment on the premises of a use that had been abandoned) but also constituted an increase in the intensity and/or scale of the use of the premises. It was also submitted on behalf of the respondent that, in particular, having regard to the dimensions of the shed it could not possibly fall within the definition of “detached house” for the purposes of the planning scheme.

The premises in the before and after situations

  1. [15]
    “Premises” for the purposes of the SPA is defined in Schedule 3 as:

“(a)  a building or other structure; or

  1. (b)
    land, whether or not a building or other structure is situated on the land.”
  1. [16]
    As best as I can determine from the evidence, in the before case the relevant premises comprised of a 2.8 hectare lot on the outskirts of the rural town of Goondiwindi. Improvements on the land comprised of a house, a garage/shed located near the house, a driveway, a dam, a tennis court and a 135m2 shed located more remotely from the house.  From the latter shed the previous owners of the land conducted a Home Industry (machinery storage) business. The nature of that business were particularised in paragraph [5] above. 
  1. [17]
    In the after case the only relevant change to the use of the land is that the 5m high 135m2 shed had been demolished and replaced with the 454.8m2 shed and a concrete pad having a floor area of approximately 245.5m2.  It was initially intended that that pad would be used as a landing pad for the helicopter business operated by the applicant.
  1. [18]
    Before proceeding further with the prospective arguments of the parties I should deal with one particular matter raised by the respondent. It was contended on its behalf that there was no evidence that the applicant resided on the premises. As far as I can tell that issue was first raised when Mr Dillon’s written submissions were delivered to Ms Kefford. According to Ms Kefford she was not made aware of that issue until the date of the hearing of the application.[9]  In circumstances where the respondent used the address of the subject land when forwarding correspondence to the applicant, including correspondence concerned with the enforcement proceedings,[10] I consider that it is open for me to proceed on the basis that the applicant does in fact reside on the premises. In this context I also note that the consent to the most recent development application signed by the applicant identifies his address as also being that of the subject land.[11] 
  1. [19]
    The now proposed use of the new shed is described in the IDAS material in the following terms:[12]

“The current application seeks approval for a shed larger to that applied for in December 2013 (see s 3.3 above).  The applicant no longer intends to use the shed as part of the helicopter business, rather the majority of it will remain for use only associated with the existing residential use of the land.  Such uses may include storage of domestic property maintenance equipment, vehicles and personal items.  As described earlier it is intended that the existing approval will continue to apply to a 136.8sqm portion of the proposed shed in accordance with the terms of the approval.”

  1. [20]
    The original IDAS material to which I have referred was prepared on the basis that the application for a development permit for the shed was self-assessable under the planning scheme.[13] By letter dated 25 August 2014 the respondent advised the applicant that the development application was not a properly made application as the proposed development was code assessable under the planning scheme.[14]  It appears to have been accepted on behalf of the applicant’s consultants that that was correct and on 17 September 2014 IDAS material was provided carrying out an assessment against the relevant Low Density Residential Zone Code.[15]  The fundamental reason why the respondent contended that the development application was code assessable was because the construction of the shed involved more than 50m3 of filling and/or excavation.[16] 
  1. [21]
    It was submitted on behalf of the respondent that the shed should be properly categorised for the purposes of the planning scheme as a “storage facility”. For the purposes of the planning scheme a storage facility means:[17]

“Premises used for the storage of goods including the selling of those goods by wholesale.  The term includes storage activities such as: a builder’s yard or construction contractor’s yard; a truck, vehicle or plant parking depot, and a ‘game meat chiller box’.  The term also includes the following activities when carried out in connection with a storage facility…”

  1. [22]
    That definition clearly contemplates the storage of moveable property and/or merchandise for commercial purposes or at least the storage of personal property at a major scale. According to the respondent “the objective likelihood is that the shed will in fact be used for general storage purposes, including commercial storage purposes associated with the Appellant’s business, which are not meaningfully associated with any Dwelling or Detached House use of the land.”[18] 
  1. [23]
    During the course of submissions I suggested to Mr Dillon that, by reference to his written and oral submissions, he was asking me to draw the inference that the shed would be used as a storage facility as defined under the scheme for the following reasons. First, by reference to the size of the shed. Second, that the applicant’s initial intention was to use the shed primarily for commercial/business purposes. Third, that having regard to the applicant’s previous conduct I should not accept his assertions as to the now proposed use. That conduct, of course, involved the applicant’s demolition of the original shed and the construction of the new shed notwithstanding warnings issued by the respondent. The general thrust of the submission was clearly to the effect that the applicant was not a person of good character. Mr Dillon agreed with my understanding of his position.[19]
  1. [24]
    Before addressing each of those matters it needs to be borne in mind that the intended uses are expressly stated in the formal development approval lodged with the respondent with the express endorsement of the applicant.[20]
  1. [25]
    Turning then to each of those matters but not necessarily in order: as to the character of the applicant there can be no doubt that he acted unlawfully in carrying out the building works. That said, on the evidence before me I am sufficiently satisfied that the applicant is not now attempting to mislead the respondent as to his intended use of the shed. As to the second matter, that the applicant initially intended to carry out unlawful activities does not mean that those intentions persist. In the absence of some direct evidence on the point, and there is none, I am not prepared to draw that inference either. As to the first matter, this case is not concerned with an application to construct a new shed. The shed exists and its size is a direct consequence of the applicant’s then intention to use it as a part of his helicopter business. One might well be highly sceptical in circumstances where an application was made to build a shed of these dimensions and assert that it was going to be used for personal storage. As I have said though, that is not the case here and, in the circumstances of this case, I am sufficiently satisfied that the inference sought against the applicant be it based on the size of the shed alone or in combination with the other circumstantial matters raised by Mr Dillon, is one that is not reasonably open.
  1. [26]
    In this context I would also note that at no time during the decision making process concerning the subject development application does it appear that the respondent itself contended that the shed was intended to be used as a storage facility. If that were the case it would have insisted that the application was impact assessable and not code assessable. Indeed in this regard, by reference to the notice of appeal, the central issue was whether the shed and hardstand was in conflict with the Low Density Residential Zone Code.
  1. [27]
    On the evidence before me I am sufficiently satisfied that it would be inappropriate to categorise the shed as a storage facility. Rather, I accept that its intended use is that the bulk of the shed would be used for personal storage purposes, including the storage of large 4WD vehicles and other typical plant and equipment associated with large rural residential properties. While Mr Buckley expressed the view that the shed “could” fall within the definition of “storage facility”[21] he did not say why that could be so.  It would appear that that conclusion was largely, if not solely based on the size of the shed.  The balance of the shed of approximately 135m2 of the shed would continue to be used for Home Industry uses under the approval granted in 1992. 

Has there been a material change of use?

  1. [28]
    It is not in dispute that the shed is assessable development. On behalf of the applicant it is contended that it is code assessable. On behalf of the respondent it is contended that it is impact assessable as a storage facility or undefined use.
  1. [29]
    Looking at the use of the premises when considering whether a new use has been introduced, the only relevant change is the destruction of the original 135m2 shed and the construction of the new shed and the large concrete pad.  Approximately 135m2 of the new shed is to be used for home industry purposes under the approval granted in 2002.  However, a new “use” has been introduced to the premises namely the additional storage space of approximately 319m2.  I was not taken to any evidence as to how the concrete pad was to be utilised.  Notwithstanding that the additional space will be used to store personal plant equipment and other personal property, and, accordingly may be seen as a low level use in the scheme of things, it still constitutes a new use for the purposes of s 10 of the SPA.
  1. [30]
    The storage space provided by the new shed will, on the evidence before me, be well in excess of applicant’s needs. That said, having regard not only to the applicant’s 4WD vehicles but also to the size of the property, the extensive driveway, tennis court and swimming pool, it could readily be inferred that the need for storage would well exceed that normally associated with residential uses.
  1. [31]
    The next issue to be determined is whether the intended use involves the reestablishment of a prior but abandoned use. As already addressed, on 22 October 2002 the respondent consented to the original 135m2 being used for home industry purposes.  In Mr Ovenden’s report dated 1 December 2015 he states:[22]

“The 2002 Home Industry development application was made and approved under the provisions of the 1994 Planning Scheme.  It is understood that the use has continued on the site except for that short period where the first shed was demolished and the shed, the subject of these proceedings, was constructed.” (emphasis added)

  1. [32]
    There is no evidence from the applicant to that effect. And, despite this matter being squarely raised during submissions, Ms Kefford was unable to direct me to any probative evidence that might substantiate or form a basis for Mr Ovenden’s “understanding”. On the face of it, it would appear that he has repeated what he has been told, probably by the applicant.
  1. [33]
    Whether there has been abandonment is a question of fact to be determined having regard to all relevant circumstances, including the subjective intention of the relevant occupier of the premises. In Leeming v City of Port Adelaide [No. 2][23] King CJ said:

“… Essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land.  The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier.  The significance, for example, of the continued presence on the premises of equipment and fittings appropriate for the existing use may depend upon the intentions of the owner or occupier with respect to such equipment and fittings.  If they are allowed to remain on the premises for the purpose of facilitating the resumption of activity pursuant to the use on the premises, their continued presence will be a strong indication of a continuance of the use.

…

A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use.  It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or a termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future.” 

  1. [34]
    On the material before me I am unable to accept the proposition that the home industry and storage use had continued up to the time the 135m2 shed was demolished and then continued after the new shed was erected.
  1. [35]
    In the material accompanying the material change of use application concerned with the helicopter business of the applicant dated 13 December 2012, the current use of the premises was described as: “Resident/Home Industry – machinery storage”.  The brief description of the proposed use was “the proposal consists of an extension to the existing machinery shed and the construction of a (HLS) helicopter landing site”.  Nowhere is there any mention of maintaining the home industry use.  Indeed, in my view, the only reasonable inference to be drawn is that the applicant never intended to maintain that use.  As identified in paragraph [7] above, the intention of the owner was to store company owned helicopters in the extended machinery shed, and that the use was “defined in detail on the proposed shed layout”.  When reference is had to that shed layout[24] it is, in my view, more likely than not that the vast majority of the new shed and the then existing shed was to be used as a part of the applicant’s helicopter business.  Also, in this context, no attempt was made to explain why, if the home industry use was to continue, it was necessary to demolish the original shed and construct a new shed some 8m in height over its entire length.  On balance, I am sufficiently satisfied that from at or about December 2012 the home industry use had been abandoned by the applicant.  The applicant’s conduct clearly established that he intended to abandon or terminate the home industry use. In this context that the helicopter business never got off the ground is of little significance.
  1. [36]
    For the reasons given I find there has been a material change of use of the premises.
  1. [37]
    In this regard I reject the argument advanced on behalf of the applicant which was to the effect that Mr Ovenden’s “understanding” ought to be accepted because his reports were tendered as part of the evidence without challenge and without him being required for cross examination. According to Ms Kefford, to reject Ms Ovenden’s evidence on this matter would be to deny the applicant natural justice.[25]  Mr Ovenden’s evidence on this topic only goes so far as to establish what his understanding is.  It goes  no further than that, and, where it appears to be inconsistent with direct evidence as to what has occurred or was going to occur, it is open to reach a different conclusion.  There is no denial of natural justice.      
  1. [38]
    Having regard to the above finding it is not strictly necessary to consider whether there has been a material increase in the intensity or scale of the use of the premises. However, I consider it appropriate to do so.
  1. [39]
    It was accepted by both parties that the relevant premises here was not limited to the new shed alone and it had to be considered in context, having regard particularly to the area and use of the subject land and the other improvements located thereon. The use of the premises has already been described above. Essentially, before the new shed was constructed, it was a rural residential use with a home industry component. The proposed use remains essentially rural residential with a home industry component, but with the introduction of an additional storage component of approximately 319m2 and the concrete pad.
  1. [40]
    In Maroochy Shire Council v Barnes[26] Dodds DCJ said:

“The use of ‘material’ to describe when change in the intensity or scale of a use, will amount to a material change of use, appears to involve a question of fact and agree… Not any change in the scale or intensity of a use will do.  It must be a material change and I think the materiality must be informed from IPA and relevant planning instruments.”

  1. [41]
    I respectfully agree with those observations and also with the observation of Quirk DCJ in Gorrie & Anor v Mackay City Council & Anor[27] where his Honour pointed out, unsurprisingly, that in dealing with matters of this kind a measure of common sense is called for. 
  1. [42]
    Having regard to the intended use of the shed I do not consider that it could be reasonably said, particularly in the context of a rural residential situation, that there has necessarily been a material increase in the intensity of use based solely of the size of the shed and the hardstand area of about 245m2. 
  1. [43]
    Turning to the question of scale it is necessary to have regard to the physical characteristics of the shed. Although the intensity of the use may not have materially changed it is still relevant to consider the scale of the structure intended to accommodate the use. Even disregarding the hardstand area, the new structure is significantly larger than the original shed used for home industry. The footprint of the shed demolished by the applicant was 135m2 and it was 5m in height.  The footprint of the new shed is more than three times that of the one demolished and is more than 50% higher at 7.6m.  While reasonable minds might differ on this issue, having regard to the dimensions of the new shed, I am not satisfied that it does not constitute a material change of use for the purposes of the SPA.  That landscaping may ameliorate the visual impacts of the shed is not to the point.  Neither is the fact that other large sheds are located on some of the other rural residential blocks in the vicinity.  In this regard, there was no evidence concerning the background of those sheds.  That is, whether they were the subject of approval by the respondent for specific uses.  There is certainly no evidence that the other sheds of the dimensions referred to by Mr Ovenden were being used for personal storage. 

The characterisation of the shed

  1. [44]
    As a consequence of my finding that there has been a material change of use of the premises it was contended on behalf of the respondent that the use fell within the meaning of a storage facility for the purposes of the planning scheme or, if not, the use is one that is not defined within the planning scheme. I have already decided against the submission that the appropriate categorisation of the use would be as a storage facility. On behalf of the applicant it was submitted that the use falls within the definition of “detached house” for the purpose of the planning scheme.
  1. [45]
    Under the respondent’s planning scheme a detached house is defined to mean premises used for residential accommodation which comprises one Dwelling Unit on one lot. A Dwelling Unit is defined to mean any building, or part thereof, comprising a self-contained unit exclusively for residential use and includes the curtilage thereof. Of particular significance is that the word “use” is defined to have the meaning given in the Integrated Planning Act 1997 (IPA).  That Act of course has been replaced by the SPA where “use” is defined as:

“In relation to premises, includes any use incidental to and necessarily associated with the use of the premises.”

  1. [46]
    “Premises” is defined in the planning scheme to have the meaning given in the IPA. The meaning of that term under the SPA has already been referred to.
  1. [47]
    In Ms Kefford’s written submissions, after referring to Barro Group Pty Ltd v Girgenti[28] it is stated:[29]

“In this case, the additional process is storage of domestic property maintenance equipment, vehicles and personal items.  The storage of such items is inevitably involved in use of premises for residential accommodation: consideration of the size of the receptacle used for their storage is not determinative of whether storage is incidental or a separate and distinct use.”

  1. [48]
    While I agree that “size” is not determinative it is, nonetheless, a relevant consideration. It was certainly not intended that the shed be used in any way which could be described as being incidental to, and necessarily associated with any of the uses associated with other improvements on the subject land. Its intended use was of a commercial/industrial character and its size reflects that. Also, as I have said previously, on the evidence before me, it is more likely than not that there will be a significant amount of excessive storage space.
  1. [49]
    In Mr Dillon’s written submissions the following is asserted:[30]

“The use of any storage shed, let alone a 454.77m2 shed, is not incidental to and necessarily associated with a Detached House use as defined under the 2006 Planning Scheme because a storage shed, and certainly a shed of the size proposed, is not necessarily or unavoidable or inevitably associated with a Detached House use.

The proposed 454.77m2 shed use is properly characterized as being a “Storage Facility” use or alternatively an undefined use for the purposes of the 2006 Planning Scheme.”

  1. [50]
    In a case, which coincidentally was concerned with helicopter use, Wilson SC, DCJ (as he then was) considered the phrase “incidental to and necessarily associated with”[31] has, generally speaking, been given a narrow interpretation.  In Southside Action Group Against the Proposed Dump at Rochedale Incorporated v Brisbane City Council & Anor[32] Ryan J was also concerned with the phrase “any use which is incidental to and necessarily associated with” and made the following observation:

“It seems to me that a use is necessarily associated with a particular use if it is clearly adapted to achieving the purposes for which a site is to be used.  The word ‘necessary’ has been read in such a sense in other contexts…”

  1. [51]
    In my view the respondent has wrongly focused solely on the size of the shed whereas the extended definition of use focuses on any incidental and necessarily associated “use”. Clearly the scale of the shed is more than is contemplated under the planning scheme and most likely will result in significant wasted storage space.
  1. [52]
    That said, the uses identified in the development application are those identified in paragraph [19] above. Those uses, in the context of a relatively large rural residential allotment accommodating the various improvements/uses identified in paragraph [30] above, in my view can be properly characterised as being incidental to and necessarily associated with the use of the premises.
  1. [53]
    Just how large the area of hardstand is intended to be used remains somewhat of a mystery. That however, does not detract from the conclusions that I have reached concerning the shed.
  1. [54]
    For the above reasons, the order of the Court are:
  1. The use constitute a material change of use of the premises.
  1. The use falls within the definition of a detached house for the purposes of the planning scheme.

Footnotes

[1]  Exhibit 2 at p 55.

[2]  Ibid, p 56.

[3]  Ibid, p 66.

[4]  Ibid, p 69.

[5]  Ibid, pp 68-69.

[6]  Ibid, p 81.

[7]  Ibid, p 69.

[8]  Written submissions at para 3.

[9]  Transcript (T) 1-22 LL 20-39.

[10]  Eg Exhibit 2, pp106, 107 and 117.

[11]  Exhibit 2 at p 140.

[12]  Exhibit 2 at p 153.

[13]  The application dated 10 July 2014.  Exhibit 2 at pp 140-174.

[14]  Exhibit 2 at pp 175 – 183.

[15]  Exhibit 2 at pp 184-194. 

[16]  Exhibit 2 at p 178 and Mr Dillon’s written submissions at para 38.

[17] Shire of Waggamba Planning Scheme 2006 Part 2.

[18]  Written submissions para 62(g).

[19]  See T 1-46 LL 22-29

[20]  Exhibit 2 at p 140.

[21] Court document 12, para 69.

[22]  Court document 11 at p 6, para 2.3.9.

[23]  (1987) 62 LGRA 296 at 307.

[24]  Exhibit 2 at p 81.

[25]  T1-19 L 16-24.

[26]  [2001] QPELR 475 at 482 [47].

[27]  [2003] QPELR 328, 329 at [7]-[8].

[28]  [2001] QPELR 175, [14].

[29]  Written submissions at para 27.

[30]  Written submissions at paras 66 and 67.

[31] Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31 at [8].

[32]  (1992) 76 LGRA 402 at 409-410.

Close

Editorial Notes

  • Published Case Name:

    Carrigan v Goondiwindi Regional Council

  • Shortened Case Name:

    Carrigan v Goondiwindi Regional Council

  • MNC:

    [2016] QPEC 8

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    17 Feb 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Barro Group Pty Ltd v Girgenti [2001] QPELR 175
1 citation
Jump To
Cite 1 - [2001] QPELR 175
Gorrie v Mackay City Council [2003] QPELR 328
2 citations
Jump To
Cite 1 - [2003] QPELR 328
Cite 2 - [2003] QPELR 328
Leeming v City of Port Adelaide [No. 2] (1987) 62 LGRA 296
2 citations
Jump To
Cite 1 - (1987) 62 LGRA 296
Cite 2 - (1987) 62 LGRA 296
Maroochy Shire Council v Barns (2001) QPELR 475
2 citations
Jump To
Cite 1 - (2001) QPELR 475
Cite 2 - (2001) QPELR 475
Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31
2 citations
Jump To
Cite 1 - [2007] QPEC 31
Cite 2 - [2007] QPEC 31
Rochedale Inc. v Brisbane City Council (1992) 76 LGRA 402
2 citations
Jump To
Cite 1 - (1992) 76 LGRA 402
Cite 2 - (1992) 76 LGRA 402

Cases Citing

Case NameFull CitationFrequency
Gerhardt v Brisbane City Council [2017] QPEC 494 citations
1

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