Temporary accommodation gone bad!

The Planning and Environment Court delivered a decision in the case of Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 3 which involved an application made by the Whitsunday Regional Council to the Court seeking:

• a declaration under section 456 of the Sustainable Planning Act 2009 that the use of the land for temporary accommodation is a development offence under section 578 of the Sustainable Planning Act 2009, as the use constituted assessable development for which no effective development permit had been obtained;
• an enforcement order, on an interim basis under section 603 of the Sustainable Planning Act 2009 and on a permanent basis under section 604 of the Sustainable Planning Act 2009, requiring the use to no longer be carried out.

The representative of the respondent Mr Brett Fallon who was the sole director of Branbid Pty Ltd contended that historically the land had been used for the purpose of a cattle sales yard and the temporary accommodation was incidental to and necessarily associated with the use of the land and therefore, no development permit was required.

The Court was required to determine whether any such pre-existing use right existed, and if not, whether the Council was entitled to the declaration and enforcement orders it was seeking.

The Court had regard to the evidence put forward by Mr Fallon and was not satisfied that the temporary accommodation activity could be described as having the necessary connection to the use of the land as a cattle sales yard. The Court also determined that the Council was entitled to the declaration and enforcement orders as the temporary accommodation activity was assessable development for which no development permit existed.

Snapshot of Court’s consideration

Pre-existing use right

Mr Fallon asserted that historically the land had been used for the purpose of conducting cattle sales. After apparently selling and then repurchasing the land, Mr Fallon sought to resurrect the land use however significant work to the land was required for that to occur. Mr Fallon then enlisted the assistance of drivers of cattle trucks, passers-by and friends, who came to know about his property by word of mouth and Facebook, to assist him in carrying out the work, and in turn they would stay on the land and if appropriate make a financial donation for meals. There was no other evidence put before the Court by Mr Fallon. The Council put forward photographs taken of the land during the period of June and July 2016 which showed the intensity at which the activity was being carried out.

Based on the evidence put forward by Mr Fallon, the Court was not satisfied that there was a pre-existing use right for a cattle sales yard or that the temporary accommodation activity was incidental to and necessarily associated with the cattle sales yard.

Declaration and enforcement orders

As the temporary accommodation activity did not attract any pre-existing use rights, the carrying out of the activity involved a material change of use to the land which was classified as development under the Sustainable Planning Act 2009. Schedule 3 of the Sustainable Planning Act 2009 provided that a planning scheme may prescribe assessable development, and under the Council’s planning scheme, the carrying out of the activity on the land was assessable development requiring impact assessment and therefore a development permit was required in order to carry out the activity on the land. It followed that Branbid had committed a development offence under section 578 of the Sustainable Planning Act 2009 and the Court was satisfied a declaration could be made to that effect.

The Court’s power to make a declaration or enforcement order is discretionary. Guidelines for the exercise of discretion was considered in the case of Warringah Shire Council v Sedevcic (1987) 10 NSWLR. In making the decision to make the declaration and enforcement orders sought by the Council, the Court had regard to the following matters:

• the Council is charged with the public duty of managing development, including managing the use of land or premises within its local government area;
• Council is concerned with the potential impacts of the use such as waste disposal and sewerage treatment;
• Branbid has committed a development offence;
• Mr Fallon on behalf of Branbid gave no indication during the hearing that he intended on voluntarily complying with the Council’s request to stop carrying out the activity until a development permit was obtained.

The Court made the enforcement orders with the qualification that at least one campervan, tent or caravan may be on the land at any point of time in order to cater for legitimate visitors.

Points worth noting

The Court’s power to make a declaration or enforcement order is discretionary, and matters which the Court may consider when determining whether to make the order include the impacts which may arise from the unregulated activity and the conduct of the offending party to rectify the development offence being committed.