Browning & Sargent v Cairns City Council

[2000] QPEC 25

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT CAIRNS

QUEENSLAND	Application No. 7 of 1998
BETWEEN:	SCOTT CAMERON BROWNING and
THOMAS PATRICK SARGENT

Applicant

AND:  CAIRNS CITY COUNCIL

First Respondent

AND:  ANITA BERNSTROM

Second Respondent

REASONS FOR JUDGMENT

1. This is the second time that I have had to deal with this matter. The land

   owned by the second respondent is in the Rural Zone under the relevant Planning

   Scheme. By an order made in this Court on 11 February, 1997 the second

   respondent obtained consent to use the subject land for the purposes of a camping

   area. That approval was subject to a variety of conditions. It is not necessary to

   analyse the vast amount of evidence that has been put before me in this application.

   It is clear however that the second respondent is making little use of the subject

   land for the purpose for which she obtained consent. The application originally

   came before me because the second respondent had erected a number of permanent

   structures on the subject land upon which there were erected canvas

   accommodation units. The applicants were also concerned that the second respondent had not complied with a number of the substantial conditions attached

   to the consent to use the subject land as a camping ground. In reasons for

   judgment together with certain orders delivered by me on 25 November, 1999 I

   made findings –

   1.       That the second respondent had not complied with significant

   conditions of the consent to use the land as a camping ground.

   2.       That the canvas accommodation units were not tents and therefore were

   not within the scope of the consent which had been earlier granted in

   this Court.

2. On the occasion of the earlier hearing I felt that I displayed some sympathy

   for the second respondent. I was concerned that there were two aspects of

   potential hardship which the second respondent had suffered. The first potential

   hardship had been that the permanent dwelling upon the subject land in which the

   second respondent and members of her family resided had burnt down and,

   although insured, the bulk of the proceeds of the insurance policy had been

   absorbed in payment of the mortgage. Secondly, the second respondent had

   invested considerable funds in constructing the permanent structures upon which

   the canvas accommodation units were erected after obtaining building approval for

   those permanent structures from the first respondent. Prudence suggests she

   should have invested the funds in replacing the dwelling. By reason of my

   sympathy for the position of the second respondent I did not make orders which

   required the second respondent to comply with the town Planning Scheme and by-

   laws of the first respondent in all respects. I was concerned to at least give the

   second respondent the opportunity to make lawful the proposed uses of the subject

   land rather than order that the fixed structures, upon which the canvas accommodation units were normally erected, be demolished and removed. On the

   25 November, 1999 I made some, what I believe were, benign orders to permit the

   second respondent to try to remedy the situation without suffering a substantial

   financial loss.

3. It is now quite clear on the evidence that the second respondent is abusing

   the sympathy which I afforded her. On the 25 November, 1999 I ordered that she

   cease letting the five canvas accommodation units since that was the use to which

   they were being put. However, it was quite clear I would have thought, from the

   reasons for judgment which I published at the time that any use at all of the canvas

   accommodation units was in my view unlawful. I point out that there has been no

   appeal against my decision in that regard. It now emerges that with a view to

   conducting some sort of motor cycle tourist business from the subject site in the

   future, a person who would be likely to conduct such business is using one of the

   canvas accommodation units as a temporary dwelling. Let me make it absolutely

   clear. Such use is unlawful.

4. It is also the case that the use of a converted bus and the use of a number of

   caravans on the site as means of accommodating the second respondent and

   various members of her family and friends is also unlawful. In light of the conduct

   of the second respondent I have much less sympathy for her than I once did.

   However I am still prepared to afford her the opportunity to obtain proper Town

   Planning consent to use the fixed structures and canvas accommodation units

   erected thereon, if she is able. I am no longer prepared to permit the second

   respondent to continue what are clearly unlawful uses of the subject land and in

   respect of which the second respondent has made no serious attempt to regularise.

   I particularly refer to the use of the converted bus and caravans on the subject land as accommodation. In my view it is clear that it is unlawful to use such vehicles as

   accommodation on the subject land. In particular it was an express condition of

   approval for the use of the land as a camping ground –

   “No caravans, camper vans, cabins or the like are to be accommodated on the site and the camping ground is not to be used to provide permanent residency.”

   It is completely irrelevant that the people who use these vehicles for

   accommodation are not paying rent to do so. Local law No.5 (Temporary Homes)

   provides a means for administering the use of such things as caravans and camper

   vans on land as temporary homes. It is possible that approval may be obtained for

   such a use. The second respondent in this case has never bothered to make any

   such application. In spite of my adverse view about the conduct of the second

   respondent in this matter since I made my last order I am prepared to allow her 30

   days to obtain lawful approval for the use of any caravans, vehicles etc. as

   temporary homes after which all such vehicles must be removed from the subject

   land. If the second respondent intends to place a literal interpretation on my orders

   so as to persist with an unlawful use I will make my orders so clear that there will

   be no doubt as to what is required. The canvas accommodation units must be

   dismantled and packed away and remain so unless and until the second respondent

   obtains proper Town Planning approval for their use and before using them

   complies with all relevant conditions imposed in respect of their use. The orders I

   will make are these:-

   1.       That, unless written approval of the Cairns City Council, pursuant to

   Local Law No.5 (temporary Homes) is obtained beforehand, within 30

   days hereof, the second respondent is to remove the bus and all caravans and other vehicles or structures used as temporary

   accommodation from the subject land.

   2.       That the second respondent not use any bus caravan or other mobile or

   temporary structure for dwelling purposes upon the subject land

   without the written approval of the Cairns City Council.

   3.       That the second respondent remove from their bases the canvas

   accommodation units, dismantle them, and pack them away.

   4.      That the second respondent shall not re-erect the canvas

   accommodation units on the subject land until further order of this

   Court.

   5.       That the second respondent shall not use the subject land for the

   purposes of a camping ground until further order of this Court.

5. Let me make the intention of these orders perfectly clear. The second

   respondent may only use this land for purposes which are permitted as of right

   pursuant to the Town Planning Scheme of the Cairns City Council. The consent

   granted by order of this Court on 11 February, 1997 is not to be exercised in any

   way whatsoever until further ordered, which will only be when I am satisfied that

   the conditions of approval have been fulfilled. If the second respondent does

   obtain the consent of the Cairns City Council for an expanded or change of use of

   the subject land in respect of the canvas accommodation units then she must return

   and produce such consent to the Court before the restraining orders will be lifted.