Browning v Cairns City Council

[2000] QDC 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.

1. 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.