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Richardson & Ors v Douglas Shire Council[2021] QPEC 80

Richardson & Ors v Douglas Shire Council[2021] QPEC 80

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Richardson & Ors v Douglas Shire Council & Ors [2021] QPEC 80

PARTIES:

MARGARET MARIA RICHARDSON

VAGG INVESTMENTS PTY LTD

ACN 071352406

RODNEY JAMES KERSHAW & LOU-ELLA MAREE KERSHAW

WINDSONG MANAGEMENT & CONSULTING PTY LTD

ACN 103545366

LLOYD WILLIAM VAGG & JOAN MARY VAGG

REBECCA KATE CHAPMAN

DESMOND JOHN SPRING & ALLAN DAVID SPRING

GRAHAM FRANCIS BOND

JAZ SUPERANNUATION CO PTY LTD

ACN 095680194

(applicants)

v

DOUGLAS SHIRE COUNCIL

(first respondent)

JAKOB MATJAZ SHUBEL

(second respondent)

BODY CORPORATE FOR PORT DOUGLAS PALM VILLAS COMMUNITY TITLES SCHEME 17564

(third respondent)

FILE NO:

46 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court at Cairns

DELIVERED ON:

21 December 2021

DELIVERED AT:

Cairns

HEARING DATE:

5 and 9 August 2021

JUDGE:

Fantin DCJ

ORDER:

  1. Application allowed.
  2. Pursuant to section 78(1) of the Planning Act 2016 (Qld), condition 9 is deleted from the Town Planning Consent Permit (CA7) dated 23 September 1994 and Part B of the order of His Honour Judge Daly of 27 April 1994 in Planning and Environment Court Appeal 45 of 1993.
  3. No order as to costs.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – application to change a development approval – where the change deletes a condition of approval requiring a motel be managed and let by a single operator – whether the change to the development approval is a minor change – whether the change would result in substantially different development – whether the change application should be approved or refused

LEGISLATION:

Planning Act 2016 (Qld) s 78, s 78A, s 79(1A), s 79(2), s 81, s 286(1), s 292(a), Sch 2

Local Government (Planning and Environment) Act 1990 (Qld) s 4.3, s 4.11, s 4.12, s 4.13

Integrated Planning Act 1988 (Qld) s 6.1.23, s 6.1.24

Sustainable Planning Act 2009 (Qld) s 801, s 850

CASES:

Northbrook Corporation Pty Ltd v Noosa Shire Council & Ors [2015] QPELR 664

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LGERA 411 at [26]

Ward & Ors v Tablelands Regional Council [2015] QPELR 339

COUNSEL:

S Marsh for the applicants

The second respondent appeared on his own behalf

SOLICITORS:

Miller Bou-Samra Lawyers for the applicants

No appearance for the first respondent

The second respondent appeared on his own behalf

No appearance for the third respondent

Introduction

  1. [1]
    This is an application to change an historical development approval granted by the court for a motel at 40-42 Warner Street, Port Douglas.
  2. [2]
    The applicants are the owners of the 21 motel units in the motel. All of their units are let, or available for let, as temporary accommodation. They consent to the making of the application. The first respondent (Council) consents to the relief sought, and declined to be an active party in the proceeding.[1] The third respondent is the body corporate for the community management titles scheme for the motel (body corporate). Although the application does not directly affect any of the common property, the body corporate also consents to the application and declined to be an active party in the proceeding.
  3. [3]
    The second respondent (Mr Shubel) is the owner and occupant of the manager’s unit. He opposes the relief sought.  He is also a director of a company Grenat Pty Ltd (Grenat) which has a letting agreement, and a caretaking agreement, with the body corporate. 
  4. [4]
    There is a longstanding dispute between Mr Shubel and the body corporate about the performance of the letting agreement.
  5. [5]
    The applicants seek to change the development approval by deleting condition 9, which requires that each of the motel units must be managed and let by a single operator.
  6. [6]
    The applicants do not seek to change the requirement that the motel units be used only for temporary accommodation.

Issues in dispute

  1. [7]
    Summarising, Mr Shubel’s primary argument is that the proposed change is not a minor change because it would result in a “substantially different development” as it would remove a component integral to the operation of the motel, being the requirement for a single operator for management and letting services, and change the way in which the use operates.  He relied particularly on the interaction between condition 9 and other conditions of the consent permit, as well as the body corporate by-laws and contractual arrangements in the caretaking and management agreements.[2]
  2. [8]
    He had a number of subsidiary arguments, including that the application was not accompanied by owner’s consent as required.
  3. [9]
    In considering the legal issues raised, I was particularly assisted by comprehensive oral submissions from the applicants’ counsel, Ms Marsh.

The development approval and the change sought

  1. [10]
    The planning scheme in effect when the development application was properly made was the 1981 Town-Planning Scheme for the Whole of the Area of the Shire of Douglas (the 1981 scheme).
  2. [11]
    On 29 June 1993, the then owner of the land, Stateland Pty Ltd, lodged with the Douglas Shire Council a combined application under s 4.11 of the Local Government (Planning and Environment) Act 1990 (Qld) (the LGPEA) comprising:
    1. (a)
      a rezoning application under s 4.3 to exclude the land from the Residential Zone and include it in the General Business Zone; and
    2. (b)
      an application under s 4.12 for town planning consent permit authorising the use of the land for “motel (21 strata title motel units + 1 caretaker’s/manager’s unit)”.
  3. [12]
    The land has an area of 2,024m2. The proposed development involved a single building, two storeys in height, positioned towards the rear of the site, with a maximum height of 9.8 metres. With the exception of the manager’s unit, each room comprised a single self-contained one bedroom motel room.
  4. [13]
    The manager’s unit has two bedrooms. The town planning report in support of the development application stated: “This unit shall be occupied for on-site management and maintenance of the motel operation. To facilitate these operations, this unit shall be provided with an office area, opening onto an internal foyer. All bookings, payments, etc shall be handled from this office.” The report further stated that “To facilitate the financing for the development, the proponent intends to strata-title the development and sell individual units to investors. Each unit will then be managed by a central management company, who will then be responsible for the operation and management of the development as a motel.”
  5. [14]
    Council approved the combined application. The applicant lodged an appeal against certain conditions. The appeal was ultimately resolved by consent allowing the appeal on modified conditions.
  6. [15]
    On 27 April 1994 this court made orders by consent approving, subject to conditions, the combined application (the consent order).[3] Part A contained the rezoning conditions and Part B the consent use conditions.
  7. [16]
    Part A, condition 6(a), requires that “with the exception of the manager’s unit, all motel units are to be used for the temporary accommodation of travellers only and no units are permitted to be used for permanent residential accommodation”.
  8. [17]
    Part B of the conditions of approval of the consent order contained the ‘consent use conditions’ governing the use of the land for the purposes of a Motel.
  9. [18]
    Condition 4(a) of the consent use conditions is identical to condition 6(a) of the rezoning conditions, and provides:

“4. All development must comply with the provisions of:-

  1. (a)
    Council’s Town Planning Scheme. In particular, with the exception of the Manager’s Unit, all motel units are to be used for the temporary accommodation of travellers only and no units are permitted to be used for permanent residential accommodation.”
  1. [19]
    Condition 8 of the consent use conditions provides:

“8.At all times a room register shall be maintained by the manager of the motel and this register shall be made available to the Council or its officers free of charge at all times.”

  1. [20]
    Condition 9 of the consent use conditions is the condition sought to be removed. It provides–

“9.Each motel room comprised within the motel development hereby approved is to be managed and let for the temporary accommodation of travellers by a single operator to the satisfaction of the Shire Planner.”

  1. [21]
    On 23 September 1994 Council issued a town planning consent permit giving effect to Part B of the consent order (the consent permit). The approved use was described as “Motel (Twenty-one [21] Units and One [1] Caretaker’s Unit)”. The conditions were the same as those contained in Part B of the consent order.
  2. [22]
    On 12 January 1995, upon registration of the building unit plan, the land was subdivided into 22 lots and common property.

Statutory regime

  1. [23]
    The change application is made pursuant to s 78(1) of the Planning Act 2016 (Qld) (Planning Act) which provides that a person may make an application to change a “development approval”.
  2. [24]
    Although the legislative regime has changed several times since the consent permit was granted, the consent permit has continuing effect, is a “development approval” for the purposes of s 78(1) of the Planning Act, and its conditions attach to the land and are binding on successors in title.[4]
  3. [25]
    As the consent permit was issued as a consequence of the consent orders and the change application is to remove a condition appearing on both the consent permit and the consent orders, this court is the responsible entity for the application pursuant to s 78A(2) of the Planning Act.
  4. [26]
    Section 81 of the Planning Act sets out the matters that the court must consider, and may give weight to, in assessing an application for a minor change to a development approval. Each of those is dealt with in turn below, to the extent they are relevant.
  5. [27]
    “Minor Change” for a development approval is defined in Schedule 2 of the Planning Act as follows–

“(b) for a development approval—

  1. (i)
    would not result in substantially different development; and
  2. (ii)
    if a development application for the development, including the change, were made when the change application is made would not cause—
  1. (A)
    the inclusion of prohibited development in the application; or
  1. (B)
    referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or
  1. (C)
    referral to extra referral agencies, other than to the chief executive; or
  1. (D)
    a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or
  1. (E)
    public notification if public notification was not required for the development application.”
  1. [28]
    The only part of the definition of ‘minor change’ for a development approval as defined in Schedule 2 in issue is whether the proposed change would result in “substantially different development”.
  2. [29]
    “Substantially different development” is not defined. The applicable principles are well established. The assessment of whether a change would or would not have that effect is a comparative task that involves evaluation which can be both quantitative and qualitative as may be relevant in the circumstances.  Matters of scale and degree are often involved and the particular context and circumstances of the case are important. Whether a proposed change would result in substantially different development is considered broadly and fairly, rather than pedantically.
  3. [30]
    Guidance as to what constitutes substantially different development can be found in Schedule 1 of the Development Assessment Rules, which provides, in part:

“3. In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.

4. A change may be considered to result in a substantially different development if any of the following apply to the proposed change:

  1. (a)
    involves a new use; or
  1. (b)
    results in the application applying to a new parcel of land; or
  1. (c)
    dramatically changes the built form in terms of scale, bulk and appearance; or
  1. (d)
    changes the ability of the proposed development to operate as intended; or
  1. (e)
    removes a component that is integral to the operation of the development; or
  1. (f)
    significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or
  1. (g)
    introduces new impacts or increase the severity of known impacts; or
  1. (h)
    removes an incentive or offset component that would have balanced a negative impact of the development; or
  1. (i)
    impacts on infrastructure provisions.
  1. [31]
    Paragraph 4 does not purport to be a comprehensive list of changes that may result in substantially different development, nor does it provide that something which falls within the sub-paragraphs must necessarily be adjudged to result in substantially different development, although it may be.

Consideration

  1. [32]
    It is uncontroversial that the deletion of condition 9:
    1. (a)
      will not result in a new use. The requirement that the motel units be used only for temporary accommodation and not permanent accommodation as required by the conditions of the consent order and the consent permit will remain. The approved use of ‘Motel’ remains unchanged;
    2. (b)
      will not result in the consent permit applying to a new parcel of land;
    3. (c)
      does not affect the built form or appearance of the existing motel building; and
    4. (d)
      will not result in any increase in impacts on traffic flows or the transport networks, or any impacts on infrastructure provisions, or introduce new impacts or increase the severity of known impacts of the motel use of the land.
  2. [33]
    Mr Shubel contends that the proposed change will remove a component that is integral to the operation of the motel, and change the way in which the motel use operates physically on the land.  He submits that there has always been, and must be, a single operator as a letting agent for a motel use.
  3. [34]
    The applicants reject those contentions. As to the first, they submit that after the deletion of condition 9, there will still remain 21 motel units to be used only for temporary accommodation and one manager’s unit that may be used for permanent accommodation. As to the second, they submit that the manager’s unit will remain as a manager’s unit to be occupied on a permanent basis by a person who carries out caretaking and management duties in respect of the common property.

Section 81(4): statutory instrument in effect when the development application was properly made

  1. [35]
    Under the 1981 planning scheme, the use of the land in the General Business zone for the purposes of a motel required a town planning consent permit. That required public notification so the original development application was impact assessable.
  2. [36]
    The 1981 scheme contained the following definitions:

“‘Accommodation building’ – Any land, building or other structure or any part thereof used or intended for use as a boarding-house, guest-house, hostel, hotel (unlicensed or private) serviced rooms or cabins, but does not include a camping ground, caretaker’s residence, dwelling-house, hospital, hotel, institution, motel or multiple dwelling as herein defined.

‘Dwelling unit’ – Habitable rooms and other spaces used or intended for use as a self-contained domicile; the term includes self-contained units within a multiple dwelling or group housing.

‘Motel’ – Any land, building or other structure or any part thereof used or intended for use for temporary accommodation of travellers and the vehicles used by them; the term includes the use of the land, building or other structure or any part thereof as a restaurant for such travellers and/or the general public. [emphasis added]

‘Multiple dwelling’ – Any land, building or other structure or any part thereof comprising or intended to comprise of two or more dwelling units on a single allotment or units which are pursuant to the provisions of the Building Units and Group Titles Act 1980 whether or not the units are held in the same ownership.”

  1. [37]
    The land was subject to two development control plans: Development Control Plan 1 – Height of Buildings and Multiple Unit Development in Port Douglas and Four Mile Beach (DCP1), and Development Control Plan 2 – Port Douglas Tourism Development (DCP2).  DCP1 applied to all “multiple unit development” which term expressly comprised “all forms of residential accommodation both for permanent residents and visitors”: clause 3. For the purposes of DCP1, “multiple unit development” was defined to mean “a residential or accommodation development which provides for more than one dwelling-unit … on a site and includes an accommodation building, …  hotel (residential section only), motel and multiple dwelling”.   In DCP2 “tourism development” was defined to include “all development of an accommodation, retail or commercial nature relying directly upon tourism for its operation”: clause 2. 
  2. [38]
    The 1981 scheme provisions differentiate between land intended for use by permanent residents and that intended for use by travellers. The deletion of condition 9 does not seek to remove the requirement that the motel may only be used for the temporary accommodation of travellers. Deletion of the condition would not affect the level of assessment of the development application, nor the physical characteristics of the land.
  3. [39]
    The 1981 scheme does not contain any provision that prohibits a motel from being self contained or strata titled. The definition of “Motel” in the 1981 scheme does not refer to the tenure or titling of the premises.  The definition of “multiple unit development” in DCP1 incorporates residential accommodation used by visitors and includes a motel.
  4. [40]
    There is no requirement, or planning policy, in the 1981 scheme that a Motel (whether strata titled or not) be “managed and let by a single operator”.  There is nothing in the 1981 scheme nor DCPs that expressly or impliedly requires a Motel use to have an exclusive letting agent.
  5. [41]
    The applicants relied upon affidavit evidence from a town planner, Ms Huddy. She was not required for cross examination.
  6. [42]
    Ms Huddy expressed the opinion that this seems to reflect a “first principles” town planning approach which regulates the ultimate use by class of user, and not by form of development. I agree. 
  7. [43]
    I also accept Ms Huddy’s evidence that the removal of condition 9 will not have an adverse town planning consequence nor would it result in a form of development not in compliance with the 1981 Scheme.
  8. [44]
    Ms Huddy stated:

“In my opinion, while there is a planning purpose for a motel to be physically managed by an appointed person for that purpose (to ensure that the amenity of both the occupants and neighbours are not adversely impacted upon by ensuring that the admission of visitors to the units occurs smoothly, by ensuring that noise levels are maintained at appropriate level and by the performance of maintenance tasks on the units and premises), I am unable to discern a planning purpose for a condition that regulates the commercial arrangement between the individual unit owners and commercial letting agents. The removal of condition 9 will not in my opinion impact on the ability for the motel to be effectively managed as I have described because the consent permit also approves one of the units to be permanently occupied by a caretaker and the removal of condition 9 does not alter this part of the consent.”[5]

I accept that opinion evidence.

  1. [45]
    The development approval was granted in 1994, before the advent of internet accommodation booking services. Although at that time it may have been a common practice to have a single operator for the letting and management of motel units, when considered against the 1981 Scheme there was no express requirement for that. In 2021, when online accommodation booking services are ubiquitous, there is no obvious planning purpose for such a condition. It is not reasonably required by the motel use.
  2. [46]
    It is unnecessary to decide whether such a condition would be oppressive and contrary to fair practice and is an improper fetter on the proprietary rights of the owners of the motel units (as the applicants submit). I am satisfied that condition 9 is not necessary to ensure that the motel units are let for temporary accommodation only. The requirement that the motel units be used only for temporary accommodation will remain by virtue of other conditions of the development approval.

Section 81(2)(b): properly made submissions to original development application

  1. [47]
    During public notification of the development application, there were two properly made submissions received by Council. One raised concerns about the description of the use sought and whether it was properly characterised as a motel or rather as permanent accommodation units. The other raised concerns about impacts on residential amenity, traffic, carparking, drainage, and use of the motel for permanent accommodation.
  2. [48]
    I am satisfied from my review of those submissions and the town planning evidence of Ms Huddy that the removal of condition 9 will not affect the effective management of the motel for travellers, nor give rise to any additional concerns relevant to the issues raised in the submissions.

Section 81(5): statutory instrument in effect when change application made

  1. [49]
    The court may give such weight as it considers appropriate to the statutory instrument in effect when the change application is made.
  2. [50]
    The current planning scheme is the Douglas Shire Planning Scheme 2018 Version 1.0. I have considered the proposed change against that scheme. I am satisfied on the basis of the evidence[6] and submissions that the removal of condition 9 of the consent permit will not result in:
    1. (a)
      non-compliance with the relevant assessment benchmarks that may apply to use of a motel (which now falls within the defined use “short-term accommodation”);
    2. (b)
      public notification of the changed development;
    3. (c)
      prohibited development; or
    4. (d)
      referral to referral agencies (other than the chief executive).

Substantially different development?

  1. [51]
    I have already found that there was no requirement in the 1981 scheme that a motel use have a single operator as letting agent.
  2. [52]
    The starting point for the assessment of whether the change results in a substantially different development is the relevant statutory provision. “Substantial” is defined in the Macquarie dictionary as, inter alia, “essential, material or important”. The question for determination is whether the proposed change falls within that definition in the context of the development approval.[7]
  3. [53]
    Ms Huddy’s evidence was based upon her examination of the relevant documents as well as a site inspection conducted while staying in one of the motel units as a paying guest. She observed that there was a reception area but when she was present it was not open between 4:45pm and 9:15am the next day. There was a telephone by which guests could contact the site manager. There was a COVID sign in sheet. There was a digital keypad for each room, so room keys were not required. The code was provided by the owner or letting agent to the guest on the day of check in. There was a communal laundry.
  4. [54]
    Ms Huddy’s evidence was that the removal of condition 9 will not affect the effective management of the motel for travellers. She referred in particular[8] to the fact that modern accommodation management utilises a range of management mechanisms and technologies to manage amenity and length of stay, including online booking and payment systems, electronic key safes for pick up and return of keys, keyless room entry via digital codes, direct mobile numbers to call if owners or managers are not on site, and online websites which provide booking systems and reviews.  Bookings for motel units, including self contained units, may now be made online. A motel does not need to have a letting agent physically present on site to provide guests access to rooms.  I accept that evidence.
  5. [55]
    The approved use in the consent permit is “Motel (Twenty-one [21] Units and One [1] Caretaker’s Unit)”. Thus the approved use includes a caretaker’s unit, which is to be permanently occupied by a caretaker. Removal of condition 9 does not alter that.  Condition 4(a) uses different terminology, “manager’s unit”, to distinguish the caretaker’s/manager’s unit from the 21 motel units.  The manager in conditions 4(a) and 8 need not be the same person as the “single operator” for letting in condition 9.  That is, even if the requirement for a single operator to take bookings is removed, that does not, of itself, affect the conditions of the approval that provide for an onsite manager and caretaker.
  6. [56]
    In the consent orders, part B - consent use conditions, condition 4(a) is in identical terms to part A, rezoning conditions, condition 6(a). That is, it requires that, with the exception of the manager’s unit, all motel units are to be used for the temporary accommodation of travellers only and no units are permitted to be used for permanent residential accommodation.  The Motel use will remain the same, even if it will be administered differently.
  7. [57]
    At my request, the applicants’ counsel located other decisions involving a motel use, but none were determinative or relevant to the particular facts and statutory context of this application.
  8. [58]
    Mr Shubel submitted that if there was no longer a single letting agent and manager for the motel, the conditions prohibiting permanent residential accommodation could not be complied with. I do not accept that submission. The prohibition on use of the motel units for permanent residential accommodation remains a separate and distinct requirement of the consent orders and consent permit. The court proceeds on the premise that the conditions of a development approval will be complied with, and does not assume that a party will act in breach of a condition.[9] It is, pursuant to the legislative framework for the enforcement of development approvals, the role in this case of the local government to ensure compliance with the conditions of approval.
  9. [59]
    I accept the applicants’ submission that at the heart of Mr Shubel’s complaint about the removal of condition 9 are his commercial interests arising from the separate commercial arrangements between Grenat and the body corporate: the letting agreement for the motel.
  10. [60]
    The planning purpose of a manager/caretaker’s residence is quite distinct from a commercial relationship for the marketing and letting of a unit. The caretaking agreement deals with the control, management and administration of the common property. It is separate to the letting agreement.
  11. [61]
    Mr Shubel sought to rely upon a number of other documents in construing the development approval. A development approval is to be construed without reference to extrinsic materials; even material accompanying a development application can only be considered where it has been incorporated in the development approval, either expressly or by necessary implication.[10] A development approval is a formal document that operates in accordance with its own terms. Generally, reference to other documents is not permissible. The documents Mr Shubel refers to may not be relied upon to construe the development approval. But even when regard is had to those documents, there is nothing in them which affects the findings I have reached above.
  12. [62]
    The by-laws of the body corporate reflect the relevant conditions of the development approval.  Clause 12.1 of the relevant by-laws requires each lot to be used for temporary accommodation purposes only. Clause 14 of the by-laws deals with the letting service and privileges attached. Subclause 14.1 provides that the body corporate may enter into an agreement with the owner of the manager’s unit (or entity controlled by the owner) –
    1. (a)
      a Caretaker’s Agreement to provide services for the control, management and administration of the common property; and/or
    2. (b)
      a Letting Agreement to provide letting and ancillary services to such of the proprietors or occupiers of lots who wish to avail themselves of such services.
  13. [63]
    The by-laws create a permissive regime in which it is possible for the body corporate to enter a caretaker’s agreement with the owner of the manager’s unit without also entering a letting agreement with that entity/person, or an exclusive letting agreement. The documents distinguish between the manager/caretaker and the letting agent. Those arrangements are separate to the requirement in condition 9. 
  14. [64]
    Clauses 14.2, 14.3 and 14.4 of the by-laws restrict the body corporate from competing with or allowing another to provide those services from within the Plan, while those agreements are on foot.  The Caretaker’s Agreement sets out the caretaker’s daily, monthly and quarterly duties. They include carrying out inspections of the property to ensure there is no security breach or property damage, rubbish collection, cleaning and maintenance of common property, swimming pool, and carpark, gardening, minor building repairs and maintenance, obtaining quotes for repairs, maintaining logbooks and schedules, signage, and reporting to the body corporate.  The Letting Agreement is a separate agreement for letting the lots of the unit owners. It is not contingent upon condition 9 of the consent permit.
  15. [65]
    Mr Shubel sought to rely upon definitions of “manager” in other legislation, such as that governing body corporate managements schemes and travellers accommodation providers liability. Those definitions are not relevant for the purposes of this application. 
  16. [66]
    Mr Shubel submitted that if the court were minded to delete condition 9, it should also delete condition 8, which requires that a room register be maintained by the manager of the motel and made available to the Council, because the conditions were inextricably linked. I do not accept that submission because the conditions are capable of operating sensibly without each other. Condition 9 of the consent orders can be deleted without affecting conditions 4(a) and 8 because it is still possible to have a manager/caretaker with certain duties, but they will no longer be the single or sole operator with responsibility for letting the rooms. Even if condition 9 is deleted, the manager’s unit will remain the permanent residence of the caretaker, as part of the approved use. It is possible for a manager to maintain a room register without being the letting agent. No doubt the unit owners will have to co-operate with the manager to ensure compliance with this condition.
  17. [67]
    The matters raised by Mr Shubel do not have a bearing on the town planning consequences of the removal of condition 9.  To the extent Mr Shubel may have concerns about his contractual rights vis a vis the body corporate pursuant to any relevant letting agreement, they are matters for him to pursue in another forum. This proceeding is not the appropriate vehicle to ventilate them.
  18. [68]
    I am satisfied that when considered broadly and fairly, the removal of condition 9 constitutes a ‘minor change’ that will not affect the use of the land for the purposes of a motel.  I am satisfied that deletion of condition 9 does not affect the coherence of the consent permit.

Section 79(1A): owner’s consent

  1. [69]
    Mr Shubel has not provided owner’s consent to the application. He is the owner of the manager’s unit.
  2. [70]
    Section 79(1A) of the Planning Act requires a change application to be accompanied by the written consent of the owner of “the premises the subject of the application – to the extent the applicant is not the owner” and the premises are not “excluded premises”. For a change application, premises will be “excluded premises” where the change application does not materially affect the premises and, given the nature of the change, the owner has unreasonably withheld consent: Schedule 2. “Premises” means a building or land, whether or not a building is on the land. The responsible entity must be satisfied of compliance with that subsection: s 79(2).
  3. [71]
    Condition 9 only relates to management and letting of the motel units and not the manager’s unit per se. I accept the applicants’ submission that, properly construed in the context of the consent permit, the removal of condition 9 does not materially affect the use or operation of the manager’s unit or the common property.  
  4. [72]
    Given that removal of condition 9 does not seek to alter the approved use as a Motel, and will not materially affect the use of common property, or the use of the manager’s unit, I am satisfied that Mr Shubel has unreasonably withheld consent to the application. It follows that the manager’s lot is ‘excluded premises’ and Mr Shubel’s consent is not required.  I am satisfied that s 79(1A) has been complied with.

Conclusion and orders

  1. [73]
    The application is allowed. I will make orders in terms of the draft order sought by the applicants.
  2. [74]
    The applicants do not seek costs against Mr Shubel. I make no order as to costs.

Footnotes

[1] Although Council did not appear, certified extracts of the relevant planning instruments and development approval documents were before the court.

[2] The applicants objected to some of Mr Shubel’s affidavit evidence on the basis, variously, that it was irrelevant, privileged, and inadmissible. To the extent his affidavit exhibited inadmissible material (for example, documents subject to legal professional privilege of the body corporate) I have not had regard to those documents.

[3] Affidavit of Huddy, exhibit 1, pages 53 - 57.

[4] The consent permit was given pursuant to s 4.13(12) of the LGPEA. Upon commencement of the Integrated Planning Act 1998 (Qld) (the IPA), the consent permit had continuing effect as a ‘continuing approval’ (s 6.1.23 IPA), the conditions attached to the land (s 6.1.24 IPA) and were binding on successors in title.  Upon commencement of the Sustainable Planning Act 2009 (Qld) (SPA), the consent permit, having continuing effect under IPA, had continuing effect under s 801 SPA. On and from the commencement of SPA, the conditions attaching to land under s 6.1.24 IPA, continued to attach to the land and bind successors in title (s 850 SPA). On commencement of the Planning Act, the consent permit, having continuing effect under the IPA and the SPA, has continuing effect under s 286(1) of the Planning Act. Section 292(a) of the Planning Act has the effect that any conditions saved under s 850 SPA continue to have effect despite the commencement of the Planning Act. See Applicants’ Outline of Submissions at [21].

[5] Affidavit of Huddy at paragraph 34(c).

[6] Affidavit of Huddy paragraphs 38 – 48 inclusive.

[7] Northbrook Corporation Pty Ltd v Noosa Shire Council & Ors [2015] QPELR 664 at 669 [13]. 

[8] Affidavit of Huddy at paragraph 37.

[9] Eg. See Ward & Ors v Tablelands Regional Council [2015] QPELR 339.

[10] Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd (2016) 212 LGERA 411 at [26]; [2016] QCA 19.

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Editorial Notes

  • Published Case Name:

    Richardson & Ors v Douglas Shire Council & Ors

  • Shortened Case Name:

    Richardson & Ors v Douglas Shire Council

  • MNC:

    [2021] QPEC 80

  • Court:

    QPEC

  • Judge(s):

    Fantin DCJ

  • Date:

    21 Dec 2021

Appeal Status

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

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