Whitsunday Regional Council v Branbid Pty Ltd
[2017] QPEC 3
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- Unreported Judgment
- Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 3
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Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 3
Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 3
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 3 |
PARTIES: | WHITSUNDAY REGIONAL COUNCIL Applicant v BRANBID PTY LTD Respondent |
FILE NO/S: | 3520/16 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application |
DELIVERED ON: | 8 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 December 2016 |
JUDGE: | Bowskill QC DCJ |
ORDER: | 1. Pursuant to s 456 of the Sustainable Planning Act 2009, the Court declares that Branbid Pty Ltd’s use of the land located at Miowera Saleyards, Roma Peak Road, Bowen, more particularly described as lot 2 on RP 738974 (the land) for the purpose of providing temporary accommodation of people in campervans and/or tents is a development offence in that it constitutes assessable development for which no effective development permit has been issued. 2. Pursuant to s 604 of the Sustainable Planning Act 2009, the Court orders that Branbid Pty Ltd, by its servants or agents, including Mr Brett Fallon, cease providing, or permitting to be provided, temporary accommodation to people in campervans, tents and/or caravans on the land (save for a legitimate visitor to the land, in no more than one (1) campervan, tent or caravan at any one time) without first having obtained an effective development permit authorising the use of the land for that purpose. 3. Order 2 takes effect from 15 February 2017. 4. Any application by the Council for costs of the proceeding is to be filed and served, with brief supporting submissions, within 14 days. Otherwise, there will be no order as to costs. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – whether the use of the respondent’s land for the temporary accommodation of people in campervans and/or tents, without an effective development permit, is a development offence – whether an enforcement order ought to be made Sustainable Planning Act 2009, ss 7, 10, 238, 456, 578, 603, 604 Briginshaw v Briginshaw (1938) 60 CLR 336 Caloundra City Council v Taper Pty Ltd [2003] QPELR 558 Council of the City of Gold Coast v Thi Hoa Dam [2015] QPELR 1029 Marshall v Averay [2007] QPELR 137 Philips v Wareham [2015] QPELR 413 Thaya Morgan-Phoenix v Gold Coast City Council [2007] QPELR 470 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 |
COUNSEL: | B Job for the Applicant |
SOLICITORS: | Wilson Ryan Grose Lawyers for the Applicant The Respondent appeared by its director, Mr B Fallon |
Introduction
- [1]Branbid Pty Ltd is the owner of land at Miowera Saleyards, Roma Peak Road, Bowen (lot 2 on RP 738974). The land is within the Whitsunday Regional Council local government area, and located near the Bruce Highway at Bowen. It has an area of about 14 acres.[1] Mr Brett Fallon is the sole director of Branbid. He lives on the land. He was given leave to represent Branbid in these proceedings.
- [2]The Council says that Branbid (Mr Fallon) is, and has been, using the land for the purpose of providing temporary accommodation to people in caravans, campervans and/or tents. The Council seeks a declaration under s 456 of the Sustainable Planning Act 2009 that Branbid’s use of the land for that purpose is a development offence under s 578 of the Planning Act because it constitutes assessable development, for which no effective development permit has been sought or obtained.
- [3]The Council also sought an enforcement order, on an interim basis under s 603 and on a permanent basis under s 604, requiring that Branbid cease using the land, or permitting the land to be used in that way, without first obtaining an effective development permit; and that Branbid return the land to the condition it was in prior to the development offence occurring. As to the latter, there was no evidence before the court as to any change in the condition of the land, as a result of the use complained of by the Council, and therefore no basis for relief in that form.
- [4]The Council’s application was heard on 14 December 2016. Mr Fallon appeared for Branbid, by telephone, due to his location in Bowen. No evidence had been filed by Branbid prior to the hearing. It became clear that there were factual matters Mr Fallon wished to place before the court. In the circumstances, I invited Mr Fallon to take an oath or make an affirmation, so that I could deal with what he wanted to say as evidence before the court. The factual matters addressed below are based on the evidence before the court from the Council[2] and from Mr Fallon, in the form of his oral evidence given after making an affirmation.
- [5]As the Council had no notice of what Mr Fallon would say in his oral evidence at the hearing, it reasonably reserved its position in terms of providing evidence in response, should that be necessary. After the completion of Mr Fallon’s evidence, the Council did request time to consider whether it wished to rely on further material in relation to two of the matters raised by Mr Fallon in his evidence. Directions were made in this regard. The Council did not ultimately seek to do so, but provided brief supplementary submissions by email on 23 December 2016.[3] In response, Mr Fallon sent an email to my Associate on 17 January 2017, saying “I have paperwork of my own pertaining to this matter. Who do i send it to?”. My Associate responded, by email on 18 January 2017, that Mr Fallon could either email the paperwork to her, and the Council’s legal representatives (providing all relevant email addresses) or send it by post (again, providing all addresses).[4] No further material has been received.
- [6]At the end of the hearing on 14 December 2016, although I was not in a position to finally determine the Council’s application, I was satisfied that it would be appropriate to make an interim enforcement order under s 603, pending delivery of my final judgment, which had the effect of maintaining the status quo until 3 January 2017 (that is, imposing no restrictions on Branbid / Mr Fallon’s use of the land through the Christmas and New Year Period); but from and including 4 January 2017 until delivery of my judgment, limiting the combined total of tents, campervans and caravans on Branbid’s land to five at any given time. There was an inevitable arbitrariness to this figure. In the context of a difficult hearing, hampered by the lack of legal representation for Branbid, and the added difficulties of a telephone appearance by Mr Fallon, it represented an attempt at compromise, generous to Branbid, pending the making of a final determination in relation to the application.
- [7]For the reasons I now give, I am satisfied it is appropriate to make the declaration sought by the Council, and to make a final enforcement order under s 604.
Branbid’s use of the land
- [8]Proceedings of this kind are civil in nature, not criminal, and accordingly the civil standard of proof applies, of the balance of probabilities. However, having regard to the nature of the proceedings, that standard is to be applied, having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363.[5]
- [9]In support of its application, the Council relied upon photographs taken of the land, on 9 June and 12, 14 and 19 July 2016, from which it does appear there are a varying number of campervans, tents, and other vehicles, some with trailers, on the land.[6] Mr Fallon did not dispute that.[7] The Council also argued one of the photographs showed a caravan, which was disputed by Mr Fallon, who seemed to suggest this was his home.[8] I accept that one of the photographs annexed to Mr Campbell’s affidavit appears to show a caravan, but otherwise do not place much weight on this, in light of the factual dispute (and the absence of any other evidence of the presence of caravans). What is undisputed is the presence of a number of campervans, tents, and other vehicles, some with trailers, on the land. The circumstances in which that occurs emerged from the evidence given by Mr Fallon, which I turn to now.
- [10]Mr Fallon said that historically the land had been used for the purpose of conducting cattle sales. He gave some confusing evidence about previously purchasing the land, and then having to “repurchase it”. But in any event, I understood Mr Fallon to express an intention to “resurrect” the land as a sale yard in the future. He described the land as needing significant work in order to achieve that, and utilising the assistance of “friends” to carry out that work, who camp on the land in the course of helping Mr Fallon with this work.
- [11]In this context, Mr Fallon seemed to be contending that there was a pre-existing use right, for a cattle sale yard, in relation to the land, with the provision of temporary accommodation being incidental to that. The Council bears the onus of establishing that a development offence has been committed. However, where a respondent such as Branbid asserts that the use being carried out is a continuing pre-existing use, and therefore lawful, the onus of proving that lies on the respondent.[9] There was no evidence of any pre-existing use right before the court, aside from Mr Fallon’s assertions in this regard, and I am not persuaded of that matter by those assertions. Further, and in any event, even if there had been such a pre-existing use right established, I am not satisfied that the temporary accommodation activity described by Mr Fallon (discussed below) can be said to have the necessary connection (in the sense of being incidental to and necessarily associated with the use of the land for a cattle sale yard).[10]
- [12]As it developed during his cross-examination, Mr Fallon’s evidence was to the effect that there are frequent visitors to his property, including drivers of cattle trucks and other passers-by, and “friends” or travellers who may stay for short or long periods of time, who assist with manual work around the property but do not pay any fee, except for any “donation” they may choose to make for meals, etc.[11] There is an expectation that people who stay on the property will work.[12] Mr Fallon said that, since June 2016, “there’s been a couple of hundred people through, easily”,[13] although he “couldn’t put a figure to it”.[14] At the time of hearing this application, Mr Fallon said he had three to four people staying.[15] But he also indicated he was expecting many more people (whom he described as friends and relatives) to visit him over the Christmas and New Year period.[16] It was in relation to this that I adopted a generous approach in formulating the interim enforcement order.
- [13]In terms of how the visitors come to know about his property, Mr Fallon stated that “generally, it’s the word of mouth thing”, but that he is also contacted through Facebook.[17] There was evidence that the property had been posted on an app called WikiCamps, which is a database of backpacking-style accommodation. However, Mr Fallon said that he did not put the property on this app, it was done by one of the guests,[18] and that he had only commented on the WikiCamps listing once, in order to dissuade people from the idea that his property was a caravan park.[19] He insisted that he did not advertise his property as a “paid institution to camp and stay”.[20]
- [14]Mr Fallon described the visitors who stay on his property as “friends” who he knows “long before they get here”, saying he has “friends all over the world”.[21] He insisted that he knows lots of people before they arrive, some for months, some for only days.[22] Some people stay for the night, and some stay for weeks as they assist him with work on the property.[23] Mr Fallon was evasive when questioned about this in cross-examination. He was at pains to describe the seemingly hundreds of people who have been “through” (which I take to mean visited, and stayed at, whether overnight or longer) the property as “friends”, in order to avoid and refute the Council’s complaint, that the land is being used for the purposes of providing temporary accommodation to tourists and travellers.
- [15]I was not persuaded by Mr Fallon’s characterisation of the use of Branbid’s land in that respect.
- [16]On the evidence before me, including that given by Mr Fallon, I am satisfied, on the balance of probabilities (and keeping in mind the principles in Briginshaw) that Branbid, by Mr Fallon, is permitting the land to be used for the purpose of providing temporary accommodation for people, including tourists and travellers, in campervans and tents. This use of the land, as depicted in the photographs, and as described by Mr Fallon, is clearly on a much greater scale than the accommodation of ordinary domestic visitors to a person’s residence. I do not accept that there is a pre-existing use right which would permit, as a necessary incident of it, temporary accommodation of the kind described by Mr Fallon. That simply has not been established, on the evidence before me.
Is the use of the land for this purpose “assessable development” that requires a development permit?
- [17]Section 578 of the Planning Act prohibits a person from carrying out “assessable development”, without an effective development permit.
- [18]“Development” is defined in s 7 of the Planning Act as including making a material change of use of premises. A “material change of use” of premises is defined in s 10 to mean the start of a new use of the premises, the re-establishment on the premises of a use that has been abandoned, or a material increase in the intensity or scale of the use of the premises.
- [19]In circumstances where, as I have said, the evidence does not establish any pre-existing use right, I find that the use of the land for the temporary accommodation of people in campervans and/or tents is the start of a new use of the land, therefore is a “material change of use” of the premises, and therefore is “development”.
- [20]The next question is whether it is “assessable development”. As defined in schedule 3 to the Planning Act, assessable development includes development declared under the applicable planning scheme to be assessable development.
- [21]The relevant planning scheme is the Bowen Shire Planning Scheme 2006. The land is included within the rural zone under that planning scheme. Although Mr Fallon disputed that, his position seemed to be on the basis of a belief that the land is not a “rural block”, based on what he asserted was the history of its use; as opposed to the zoning which applies to the land, under the planning scheme.[24] The Council relied upon a certificate under s 251 of the Local Government Act 2009, annexing a zoning map, to establish this fact. On the basis of that evidence, I am satisfied Branbid’s land is within the rural zone.
- [22]
- [23]In the circumstances, under s 238 of the Planning Act, a development permit is necessary for the land to be used in this way.[27]
- [24]It was not disputed that Branbid has not applied for or obtained such a development permit.
- [25]It follows that, in breach of s 578 of the Planning Act, Branbid is, and has been carrying out “assessable development” (namely, use of the land for the purposes of providing temporary accommodation to tourists and travellers) without an effective development permit. That is a development offence.
Are declarations and /or enforcement orders appropriate, in the exercise of the court’s discretion?
- [26]The Court’s power to make the declaration sought under s 456, and the enforcement order under s 604, is discretionary.
- [27]Guidelines for the exercise of a discretion of this kind were considered by Kirby P, as he then was, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341. Amongst other considerations, his Honour emphasised the need to consider the clear legislative intent of planning law to promote integrated and co-ordinated development, observing that if unlawful exceptions and exemptions became condoned by the court’s exercise of discretion not to enforce the law, the equal and orderly enforcement of planning law would be undermined, with a concomitant sense of inequity felt by those who complied with the requirements of the law, or failed to secure similar favourable exercises of discretion.[28] His Honour also observed that where the application for enforcement of the planning law is made by a Council, a court may be less likely to deny equitable relief, than it would in litigation between private citizens, because the Council are seen as the proper guardians of public rights; its interest is deemed to be protective and beneficial, not private or pecuniary.[29]
- [28]Although Mr Fallon expressed frustration about the Council, or the Court for that matter, being able to tell him what he can or cannot do on his (Branbid’s) land,[30] the reality is that the Council is charged with the public duty of managing development, including managing the use of land or premises, within its local government area, in accordance with its planning scheme.[31] This is not particular to Branbid (or Mr Fallon). It is something that all land owners are subject to. Compliance with the applicable planning scheme provisions is a necessary incident of the ownership and occupation of land. In the present context, the Council is understandably concerned to assess the potential impacts of the use of the land as some kind of camping ground – having regard to potential traffic issues; waste disposal; sewage treatment; provision of water and the like.
- [29]The Council have attempted to encourage Branbid to address this issue, prior to the hearing before me, by issuing a show cause notice on 7 June 2016 and an enforcement notice on 6 July 2016, both of which were ignored. Mr Fallon did not give the impression, at the hearing of this application, that he had any intention of voluntarily complying with any reasonable request by the Council, to cease the use of the land for provision of temporary accommodation, until an effective development permit can be obtained. On the contrary, he argued strongly against the relief sought by the Council, including on the basis that it represented an arbitrary and unreasonable attack on his / Branbid’s freedom to use its land in whatever way he sees fit.
- [30]In circumstances where I am satisfied, on the evidence before me, that Branbid has contravened s 578 of the Planning Act, and where it does not seem that Branbid, by its director Mr Fallon, has any intention of voluntarily cooperating, I am satisfied it is appropriate to make the declaration sought, and make an enforcement order.
- [31]The enforcement order sought by the Council in its application is in terms that Branbid, by its servants or agents, cease carrying out or permitting to be carried out the temporary accommodation of people in caravans, campervans and/or tents on the land without first having obtained an effective development permit authorising the use of the land for that purpose.
- [32]I am not satisfied it is appropriate to make the enforcement order in those terms, without some qualification to allow for ordinary domestic visitors. The question is how to reflect that. One possibility would be to qualify the order by words, so that it excludes a legitimate domestic visitor(s). However, in light of the approach taken by Mr Fallon to this proceeding, and the evidence and submissions made by him, I do not think I could reasonably conclude that he would appropriately and reasonably respect and comply with such a qualification. Another option is to qualify the order by allowing for at least one campervan, tent or caravan (apart from the accommodation Mr Fallon himself resides in) to be on the property at any given time, in order to cater for a legitimate visitor(s) (as distinct from the tourists, travellers and others that are temporarily accommodated on the property at various times). In all the circumstances, I am satisfied that is an appropriate approach to take. Otherwise, if Branbid wishes to continue to provide temporary accommodation on the land, in the manner that it has been up until now, it will be necessary to apply for and obtain a development permit from the Council, authorising the use of the land for that purpose.
- [33]I propose to delay the enforcement order coming into effect for a period of seven days from the date of delivery of this judgment, to allow for a copy of the reasons to reach Branbid / Mr Fallon (given the difficulties previously raised by Mr Fallon in that regard). I will direct that a copy of this judgment be sent by email to Mr Fallon (with the text of the order set out in the body of the email as well) and also posted to 3 Bridge Road, Bowen, Qld 4805, which is the address previously provided by Mr Fallon.
- [34]The substantive declaration and orders will be as follows:
- Pursuant to s 456 of the Sustainable Planning Act 2009, the Court declares that Branbid Pty Ltd’s use of the land located at Miowera Saleyards, Roma Peak Road, Bowen, more particularly described as lot 2 on RP 738974 (the land) for the purpose of providing temporary accommodation of people in campervans and/or tents[32] is a development offence in that it constitutes assessable development for which no effective development permit has been issued.
- Pursuant to s 604 of the Sustainable Planning Act 2009, the Court orders that Branbid Pty Ltd, by its servants or agents, including Mr Brett Fallon, cease providing, or permitting to be provided, temporary accommodation to people in campervans, tents and/or caravans[33] on the land (save for a legitimate visitor to the land, in no more than one (1) campervan, tent or caravan at any one time) without first having obtained an effective development permit authorising the use of the land for that purpose.
- Order 2 takes effect from 15 February 2017.
- [35]To avoid any doubt, as from 15 February 2017, when order 2 takes effect, the interim order which was made on 14 December 2016 is no longer in force. It is replaced by order 2.
- [36]In so far as costs of the proceeding are concerned, I am inclined to the view that there should be no order as to costs, given that the outcome of the proceeding was in no small way affected by the evidence given by Mr Fallon himself, as opposed to the limited photograph evidence relied upon by the Council. However, in case a different order is sought by the Council, I will direct that any application by the Council for costs, with brief submissions in support, be filed and served within 14 days. In the event an application is made, I will invite submissions from Branbid in response, before deciding the application.
Footnotes
[1] See exhibit BC-1 to Mr Campbell’s affidavit, at pp 2 and 5 (identifying the area of the land as 5.97 hectares, which equates to roughly 14 acres). The transcript records Mr Fallon describing the land as having an area of 40 acres; but having regard to the plans, I proceed on the basis that this is an error in the transcript, and that what Mr Fallon said was 14 acres (transcript at p 1-65 to 1-66).
[2] Contained in affidavits of Daniel Morton, James McEvoy-Bowe, William McKenzie and Brett Campbell, copies of which are included in the annexure to the affidavit of service of Peta Vernon filed on 1 December 2016. In circumstances where there had been a history of difficulties serving documents on Branbid / Mr Fallon, at the hearing I referred to the material annexed to Ms Vernon’s affidavit, which had been placed in the letterbox of an address nominated by Mr Fallon at 3 Bridge Road, Bowen, and which Mr Fallon confirmed he had received. The Council also relied on a certificate under s 251 of the Local Government Act 2009 (exhibit 1).
[3] The submissions were sent to my Associate and Mr Fallon, both in the form of an attachment to the email, and reproduced in the body of the email, given Mr Fallon’s earlier indications that he had difficulty opening attachments.
[4] I have marked this email correspondence exhibit 2.
[5] See Caloundra City Council v Taper Pty Ltd [2003] QPELR 558 at [14]; Philips v Wareham [2015] QPELR 413 at [11]-[14].
[6] Affidavit of Mr McEvoy-Bowe, Council officer, at exhibit ‘JMB-1’. See also affidavit of Mr Campbell, surveyor, in particular at [6] and pp 14-16 of the exhibits to his affidavit.
[7] Transcript at pp 1-26 to 1-28.
[8] Transcript at p 1-29.
[9] Marshall v Averay [2007] QPELR 137 at [47].
[10] See the definition of “use” in schedule 3 to the Planning Act; see also Thaya Morgan-Phoenix v Gold Coast City Council [2007] QPELR 470 at [8].
[11] Transcript at p 1-52.
[12] Transcript at p 1-54.
[13] Transcript at p 1-48, line 43.
[14] Transcript at p 1-48, line 32.
[15] Transcript at p 1-48, line 37.
[16] Transcript at pp 1-60, 1-63 and 1-66.
[17] Transcript at p 1-49, lines 10 and 42.
[18] Transcript at p 1-48, lines 1-2.
[19] Transcript at pp 1-43, 1-44 and 1-48.
[20] Transcript at p 1-51, line 22.
[21] Transcript at p 1-49, line 19.
[22] Transcript at p 1-51.
[23] Transcript at p 1-49, line 5.
[24] See transcript at pp 1-8 to 1-10.
[25] See schedule 1, division 1 (dictionary of defined uses). There is a definition of “caravan park”, being premises for the parking and/or siting of two or more caravans (with or without fixed annexes) and/or relocatable homes for the purpose of providing accommodation for fee or reward. The evidence did not support a finding that the land was being used for a “caravan park” as defined.
[26] See section 1.10(1) and (2), and division 2, section 3.2, table 3A (material change of use, for land in the rural zone), section 2(b)(ii).
[27] Sections 238, 243 and 578 of the Planning Act.
[28] At 339-340; see also Council of the City of Gold Coast v Thi Hoa Dam [2015] QPELR 1029 at [75].
[29] At 340.
[30] Transcript at pp 1-13,
[31] See generally ss 3-4 of the Planning Act; see also part 1, division 1 and part 2, division 1 of the Bowen Shire Planning Scheme 2006.
[32] I have not included reference to caravans in this declaration, because I am not satisfied on the evidence before me that temporary accommodation of people in caravans has been provided.
[33] I have included reference to caravans in this order, because it is a prospective order, and caravans are another form of temporary accommodation similar to campervans and tents.