Chong v Logan City Council
[2015] QPEC 12
•7 April 2015
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Chong & Anor v Logan City Council [2015] QPEC 12
PARTIES:
TYAM HEONG CHONG and CHIN-JUI YANG
(Appellants)v
LOGAN CITY COUNCIL
(Respondent)FILE NO/S:
3933 of 2012
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
7 April 2015
DELIVERED AT:
Brisbane
HEARING DATE:
12, 13 and 14 March 2014
JUDGE:
Andrews SC DCJ
ORDER:
The respondent is not liable to pay compensation to the appellants
CATCHWORDS:
PLANNING AND ENVIRONMENT – where claim for compensation under s 705 of the Sustainable Planning Act 2009 – where some code assessable uses are available for the land – whether evidence of prospects of approval of an application for an available use is relevant – whether ‘purpose’ in s 705 is a synonym for the noun ‘use’ – where land could be used for code assessable uses of ‘food outlet’ and ‘restaurant’ if the use for food outlet or restaurant is ‘carried out with but incidental and subordinate to’ public recreation – if a restaurant would occupy a small section of the land and the balance of the 4 hectares would be a public park would the use of the land be for only a public purpose – whether evidence is admissible as to the prospects of success of an application for a use – whether evidence is admissible of intention to acquire the land
Sustainable Planning Act 2009 s 705
Fraser Straits Marina Pty Ltd v Cooloola Shire Council [2008] QPELR 68
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Walker v Noosa Shire Council [1985] 1 Qd R 387
COUNSEL:
Fynes-Clinton for the Appellants
Bain QC with Loos for the Respondent
SOLICITORS:
H Drakos and Co for the Appellants
Corrs Chambers Westgarth for the Respondent
Issues
A change to a planning scheme has affected the way landowners may redevelop land which has been used for a low set dwelling. If the appellant landowners ever had prospects of a reconfiguration of their land into 11 light industrial lots, those prospects wilted with the change. They seek compensation under s 705 of the Sustainable Planning Act 2009. A right to compensation under s 705 is subject to a condition. The right arises if, because of the change, the only purpose[1] for which affected land ‘could’ be used is a ‘public’ purpose.
[1]Other than the purpose for which it was being used
Some code assessable uses are available. Is the preliminary question to be answered by construing the SPA and the planning instruments without regard to evidence? (Not in this case) Is probability of approval of an available use relevant? (Yes) Is evidence of the prospects of approval of an available use relevant and admissible? (It depends)
Is ‘purpose’ in s 705 a synonym for the noun ‘use’? (No)
As the land was being used for a residential dwelling on the date when the change to the planning scheme was made, would a new use for the land being the available code assessable use for ‘Home Business’ be a use for the ‘purpose’ for which it was lawfully being used on that date? (Yes)
Two code assessable uses available for the land are ‘food outlet’ and ‘restaurant’ if the use for food outlet or restaurant is ‘carried out with but incidental and subordinate to’ public recreation, such as a public park. If a small scale restaurant on part of the 4 hectares ‘carried out with but incidental and subordinate to’ the public park on the balance of the land was approved, would the only purpose for which the land could be used be a public purpose? (No)
Are the landowners entitled to compensation under s 705 of the Sustainable Planning Act 2009? (No)
The nature of the proceeding is to determine a preliminary question
A separate question in an appeal 3933 of 2012 is to be determined as a preliminary matter.
The question is ‘whether the Respondent is liable to pay compensation to the Appellant under s 705 of the Sustainable Planning Act 2009’.[2]
[2]Paragraph 11 of the order of 25 July 2013 of Durward SC DCJ: file document 15. T2-2 L28
The respondent in the appeal is the Logan City Council (‘Council’) and the appellants are landowners whose land is affected by a change to the relevant planning scheme. As a result of the change the appellants claimed from the Council compensation under s 705 of the Sustainable Planning Act 2009 (‘SPA’). The Council denies that liability to pay compensation has arisen. The appellants contend that it has.
The land in question is located at 204-210 Park Ridge Road, Park Ridge and is properly described as Lot 9 on RP 97339 (‘subject land’). It is 4.067 hectares. It contains a low set dwelling house.
Quantum of compensation is not in issue. Construction of the SPA s 705 is the main issue. A related issue is whether evidence may be relied upon to assist with the determination of the separate question. If the answer to the preliminary question is that the Council is liable to pay compensation under the SPA s 705, there may have to be a further hearing about the quantum of compensation.
Sections 703 and 705 of the SPA relevantly provide:-
703 Definitions for pt3
In this part—
change, for an interest in land, means a change to the planning scheme…705 Compensation for interest in land being changed to public purpose
An owner of an interest in land is entitled to be paid reasonable compensation by a local government if because of a change the only purpose for which the land could be used, other than the purpose for which it was lawfully being used when the change was made, is for a public purpose.
The onus in the appeal and in resolving this question
In an appeal by a person who is dissatisfied with a decision about compensation, it is for the local government that decided the claim to establish that the appeal should be dismissed: s 493(7) of the SPA.
The ‘decision about compensation’ that this appeal concerns, was the decision notified by Council to the appellants by letter dated 11 September 2012 and rejecting the appellants’ written claim under cover of letter dated 18 June 2012.
The appellants’ claim was founded on a development proposal for reconfiguration of the subject land into 11 lots for light industrial uses. The claim identified the particular change of the planning scheme said to have negatively affected the land (Planning Scheme Amendment 2009 No.5 (Park Ridge Structure Plan)).
The Council seeks to establish that the appeal against its decision should be dismissed. The appeal hearing is a hearing anew: s 495(1) of the SPA.
It does not fall to the Council to disprove a wide variety of potential development proposals for the subject land. The Council submits that it bears the onus to demonstrate that after the change, the land could be used for a purpose other than only a public purpose.[3] I accept that submission with a qualification. Council need only demonstrate that after the change, the land could be used for a purpose other than a only a public purpose and other than the purpose for which it was being used when the change was made. The use for which the land was being used before the change was a ‘Residential Dwelling’.
[3]Outline of the respondent’s submissions [11]
What is a ‘purpose’ within the meaning of section 705 of the SPA?
The word ‘purpose’ is not defined within the SPA. It is not defined within the Acts Interpretation Act 1954. The word is used in the SPA at sections 652, 657, 705 and in Schedule 1 at items 10 and 11.
Section 705 employs the word ‘purpose’ in 3 ways: ‘the purpose for which it was lawfully being used’, ‘the only purpose for which the land could be used’ and ‘public purpose’.
The Council argues that ‘purpose’ and the noun ‘use’ are effectively synonymous in s 705[4] and that where the word ‘purpose’ appears in s 705 the word ‘purpose’ is not materially different from ‘use’.[5] The noun ‘use’ does not appear in s 705. The noun ‘use’ is defined in the SPA at Schedule 3 as:
[4]T3-70 L30
[5]T3-71 LL35-3, though not decisively
use, in relation to premises, includes any use incidental to and necessarily associated with the use of the premises
Schedule 3 also defines ‘premises’ as follows:
premises means—
(a) a building or other structure; or(b)land, whether or not a building or other structure is situated on the land.
Under the SPA, a ‘use’ is a central concept. A new development is described as a material change of use. The lawful use of land is protected against legislative change by referring to the continuation of an existing lawful use. The SPA is replete with expressions such as ‘use of land’ and ‘use of premises’. The appellants argue that if the legislature intended that ‘purpose’ in s705 was synonymous with ‘use’ then it would have used the common word ‘use’ so that s 705 would have provided ‘if because of a change the only use for which the land could be used other than the use for which it was lawfully being used when the change was made, is for a public use.’ The appellants argue that the legislature must be taken to have known what it was doing in omitting the word ‘use’ and using the word ‘purpose.’ That submission is logical but not decisive. Statutes often contain inconsistencies.
The appellants argue that the word ‘purpose’ was deliberately selected because of a particular meaning it has in the context of planning law.
Subsections 652(2) and 657(2) of the SPA are each expressed in identical terms as follows:
(2)Subsection (3) applies if the Planning Scheme indicates the premises is part of an area intended for future development for –
(a)residential purposes, other than rural residential purposes; or
(b)retail or commercial purposes; or
(c)industrial purposes; or
(d)community or government purposes related to a purpose mentioned in paragraph (a), (b) or (c).
In the SPA at Schedule 1, items 10 and 11 each suggest that an activity may be carried out ‘for specified works, residential complexes, or another commercial, industrial or residential purpose in a designated urban area’.
Thus the SPA expressly contemplates purposes which are residential, rural residential, retail or commercial and industrial and community or government purposes related to those purposes and, by s 705, it also contemplates ‘public’ purposes.
Why do the parties debate whether ‘purpose’ means ‘use’? I infer that each party regards the meaning for which it contends as promoting its prospects; that each party apprehends a finding that the subject land could probably be used predominantly for a park and partly for a kiosk or small restaurant ‘carried out with but incidental and subordinate to’ a public recreation or nature based activity. If the appellant’s premise is correct that ‘purpose’ invites a search for a single, overall purpose[6]in spite of the fact that some ‘use’ on the land, if looked at in isolation, has a non-public nature then, then the kiosk might be classified as part of a public purpose. The Council’s contention that ‘purpose’ means ‘use’ would improve Council’s submission that if there could be two uses on the subject land such as park and kiosk then there would be two purposes.
[6]T3-57
Nothing in s 705 suggests that land which has a public purpose cannot have another purpose too. The appellants do not expressly contend otherwise. They argue that if there are two purposes but a public purpose is the dominant purpose for which land can be used and where the other purpose is a lesser purpose subservient to the public purpose it can be appropriate to characterise the land’s purpose as only public and they argue that it is appropriate to categorise the use of the land as only public in this particular case.
I accept that s 705 uses ‘purpose’ deliberately and so as to distinguish ‘purpose’ from the noun ‘use’. Whatever its meaning, ‘purpose’ in s 705 of the SPA is intended to be distinguishable from the noun ‘use’ in the SPA.
If it is appropriate to interpret the SPA against the background of authorities concerned with planning law, the distinction between the nature of a purpose and the nature of a use has been regularly drawn.[7]
[7]Warringah SC v Raffles [1979] 2 NSWLR 299 at 301-303 cited with approval in Walker v Noosa Shire Council [1985] 1 Qd R 387 at 394 line 15
What was the change which affected the land and when was it?
On 17 March 2006 the Logan City Council Planning Scheme 2006 (‘Planning Scheme’) commenced.
In June 2007, the Council began preparation of the Park Ridge Structure Plan, which was to inform amendments to the Planning Scheme that would provide for the development of the Park Ridge area over the following 10-15 years. The preparation of that plan included the advertisement of options for the development of the area, with the opportunity for the public to comment on which option should be preferred.
On 25 January 2011, the Council endorsed the Park Ridge Structure Plan by resolution. That action did not amend the Planning Scheme. It prescribed a framework for the preparation of a formal Planning Scheme amendment.
On 11 November 2011, an amendment to the Planning Scheme formally described as the Planning Scheme Amendment 2009 No.5 (Park Ridge Structure Plan) (‘2009 Amendment’) was promulgated. A change for the appellants’ interest in the subject land was effected on 11 November 2011 by the 2009 Amendment.
What was the purpose for which the land was lawfully being used when the change was made on 11 November 2011?
The subject land presently contains a single low set dwelling and the existing use at all material times has been ‘Residential Dwelling’. I am satisfied that use for a ‘Residential Dwelling’ was use for a purpose which was not a public purpose. That does not appear to have been in dispute.
A code assessable use to which the subject land can be put without a development permit under the 2009 Amendment is ‘home business’. Council submitted that its availability for code assessment (and the availability of the other two relevant code-assessable uses) made it unnecessary for Council to consider whether the availability of impact assessable uses satisfies s 705.[8] That submission implies that a code-assessable ‘Home business’ is a use which would disqualify the appellants from obtaining compensation. The submission about the ‘home business’ use was not further developed by Council. The appellants submit:
A home business is a residential use (LPS page S1-79), and must be “subordinate” to residential use of the premises by a person who is permanently residing in the dwelling unit (LPS, page S1-87). It includes holding a “garage sale” (LPS, p S1-64). On the proper interpretation of s 705, a “use” for home business is a component or aspect of residential use (“associated residential use” - LPS, page S1-79). Starting a home business involves no change to the purpose for which a dwelling house is used, that is, as a residence including use for some or all of the activities, primary or “subordinate”, which fall within the range of uses comprehended by that purpose.
[8]Outline of the respondent’s submissions [53]
As the land was being used for a residential dwelling, would a new use for the land being the theoretically available code assessable use for ‘Home Business’ be a use for the ‘purpose’ for which it was lawfully being used? Council made no submission on this specific issue. I am not satisfied that use for a ‘home business’ on the subject land would be use for a purpose other than the purpose for which it was being used when the change was made. It does not affect the right to compensation.
Because of the change affecting the land, what are the uses for which the land could be used? What does ‘could’ mean? Is evidence admissible?
It is undisputed that the subject land may continue to be used as it was on 11 November 2011 for a ‘Residential Dwelling’ and that the capacity to use the subject land for a ‘Residential Dwelling’ does not prejudice the appellants’ right to claim compensation.
Reference to section 705 suggests that there is an obvious question which needs answering: What are the purposes for which the subject land could be used because of the change?
The parties are in dispute about what that question means because they submit different meanings for ‘purpose’ and for ‘could’.
The Council submits that the question is answered as a matter of the construction of the SPA and the Planning Scheme to determine if there is any exempt, self-assessable or code-assessable use, other than a ‘public purpose’ use, made available in the Planning Scheme after the 2009 Amendment.[9] Council submits this construction of s 705 is, in all respects, consistent with the plain meaning of the words of the section and with its evident purpose having regard to its relationship with s 704. As Council did not suggest that impact assessable uses need to be considered I have not considered any.
[9]Respondents’ Submissions [46]
A consequence of the Council’s submission is that the prospects of obtaining approval for the use would be irrelevant for answering that question. Council submits that evidence is not admissible in the resolution of the preliminary question. I infer that Council would accept that evidence is admissible as to the lawful use of the subject land at the time of the change and the land’s position and dimensions so that one may determine which parts of the planning scheme apply to it.
The appellants accept that the question is answered by examining the SPA and the Planning Scheme to determine what use could be approved but submit it is proper to examine the facts as well to determine whether a use would be approved.
As the Council and the appellants are in dispute as to whether the word ‘purpose’ in s 705 means the noun ‘use’ or something more, and are in dispute as to whether the word ‘could’ in s 705 means ‘possibly’ or ‘probably’ it is sensible to identify firstly, some code assessable ‘uses’ which are available for the subject land, before considering secondly, whether they are uses which would be approved and thirdly whether use of the land for such uses would mean the land could be used for a purpose other than for only a public purpose.
What code assessable uses are available for the subject land?
Changes affecting the subject land, brought about by the 2009 Amendment can be summarised as follows:
(a)before the 2009 Amendment, the land:
(i) was partly in the ‘Non Urban and Conservation Locality’ and partly in the ‘Investigation Locality’;
(ii)was partly in the ‘Non Urban Zone’ and partly in the ‘Investigation Zone; and
(iii)was capable of being used for particular defined uses. For example ‘agriculture’ and ‘animal husbandry’ were available as self assessable uses,[10] with ‘home business’ and ‘restaurant’ available as code assessable uses;
(b) after the 2009 Amendment, the land:
(i)was in the ‘Non Urban and Conservation Locality’;
(ii)was partly in the ‘Non Urban Zone’ and partly in the ‘Conservation Zone’; and
(iii)continued to be capable of being used for particular defined uses. For example, ‘home business’, ‘agriculture’ and ‘restaurant’. Food outlet and restaurant were available as code assessable uses if ‘carried out with but incidental and subordinate to’ a public recreation or nature based recreation activity.
[10]subject to certain provisos specified in the Planning Scheme.
Whether one accepts Council’s submission or the appellants’, there are at least three code assessable uses which are available for the subject land. Those three code assessable uses are relevant whether a court is confined to interpreting the SPA and the planning scheme to determine what could possibly[11] be approved or whether a court may admit evidence as to what applications would be approved.
[11]Or in the words of the Council’s submission: if there is any exempt, self-assessable or code-assessable use, other than a ‘public purpose’ use, made available in the Planning Scheme after the 2009 Amendment
Council relied on three particular code assessable uses available after the change: ‘home business’, ‘food outlet’ and ‘restaurant’.[12]
[12]Respondents’ Submissions [54]
Use as a ‘food outlet’ and use as a ‘restaurant’ subject to being ‘carried out with but incidental and subordinate to’ a public recreation are code assessable uses for the subject land. So too is a ‘home business’ use.[13]
[13]Report G Ovenden AB vol 1 tab 2 pg13
Council did not concern itself with reference to any particular impact assessable use and led no direct evidence about the prospect of obtaining approval for one. Consistently with its submission that prospects of approval are irrelevant, Council lead evidence from Mr Ovenden about the availability of code assessable uses but not whether they were likely to be approved.
Evidence about three available code-assessable uses
The Council permitted evidence to be put before the court while maintaining its position that it should be ruled inadmissible at the end of the hearing. The appellants led evidence from Mr Ovenden in cross examination that there was a likelihood of approval of the low-key uses he nominated.[14] If the court may admit and rely upon expert town planning evidence, I would accept the evidence of Mr Ovenden that a very limited range of low key uses would be approved by Council, including home business or restaurant. For the restaurant ‘use’ Mr Ovenden had in mind a kiosk or small scale restaurant which operated on a part of the subject land leaving the remainder of the subject land available for a recreation activity such as a public park. I would accept that evidence too as evidence that such a use would conform to the description of a ‘food outlet’ or ‘restaurant’ which would be ‘carried out with but incidental and subordinate to’ public recreation activity.
[14]T3-20 L10-14
Council submitted that it was effectively conceded by the appellants that such uses as a kiosk or small restaurant would be approved on the subject land. That is a fair submission as Mr Ovenden was not challenged on this opinion that there was a likelihood of approval of the low-key uses. It was not clear whether Mr Ovenden expressed his opinion as a matter of pure construction of the SPA and the planning scheme and taking account only the position and dimensions of the subject land or whether he took into account other facts too.
It follows that whether the submission of the Council is correct or the submission of the appellants, I must consider whether a use of part of the land for a ‘food outlet’ or ‘restaurant’ which would be ‘carried out with but incidental and subordinate to’ public recreation activity such as a park would mean the land would be used for only a ‘public purpose’. Such a code assessable use is both available for the land and likely to be approved, if applied for.
Is evidence of the prospects of approval of a code assessable use admissible?
Is evidence of the prospects of approval of a code assessable use admissible for this hearing? It may be a dispute without a purpose.
To determine whether evidence is admissible one first identifies the issue to which the evidence would be relevant. Are prospects of approval of an application an issue in this proceeding? Council submits that if any one of 3 code assessable uses is applied for, the application must be approved because there is no discretion to refuse it. It is only the three code assessable uses which are in issue in this case. The appellants do not contest that they would be approved.
I will decide the dispute about admissibility of evidence in case it has a consequence for the proceeding
On this issue Council submits ‘The critical word in section 705 is the word “could”. It is not qualified. It is simple, clear and reflects deliberate legislative choice. The phrase “could be used” should, in the Council’s submission, be interpreted as presenting this question – are there any exempt, self-assessable or code-assessable uses, other than ‘public purpose’ uses, made available in the Planning Scheme after the 2009 Amendment?’ That submission focuses on the availability in a planning scheme of a self-assessable or code-assessable use. Acceptance of that submission does not mean the prospect of approval of a use is irrelevant.
In particular circumstances, like those in this case, where code-assessable uses are available, the Council submits that a properly made application must be approved. The Council submits: ‘In respect of the submission that an assessment manager retains some overall discretion to refuse a code assessable development application that otherwise complies with applicable codes – the Appellants are unable to point to a legislative provision that permits such a discretion. In fact, the SPA affords an assessment manager a discretion only in respect of approving an application that does not comply with the applicable codes (see section 326). That discretion works one way only – for approvals, not for refusals.’
Section 705 deals with more than code-assessable uses. I do not accept that the mere availability of a use is the issue in all cases. Instead, the issue seems to be the possibility of a use for the land. Availability in a planning scheme of a use and possibility of a use for the land are different concepts, and the difference has a practical consequence when considering whether firstly, prospects of approval of an application for a use is an issue and secondly whether evidence is admissible on the issue.
A ‘purpose for which the land could be used’ is, consistently with Council’s submission a ‘purpose for which the land could be used’ and consistently with the appellants’ submission a ‘purpose for which the land could be used’ as determined on the balance of probabilities.
The appellants submit that if Council’s argument is correct then the condition precedent for compensation under s 705 must be that the only available use is for a public purpose. The appellants submit that, in effect, requires a prohibition on all but public uses; that that would be rare, that the section would say that was intended and yet the section does not express that.
It does seem unlikely that the section intends that compensation will be payable in only the case of a prohibition of all uses but those for a public purpose. I need not decide that.
What does ‘could be used’ mean in s 705?
The Macquarie Dictionary Online provides several meanings for ‘could’. Its most apt meaning is: ‘referring to a potential event or situation): you could do it if you tried; her health could be better; they could take a day's leave.’ The word ‘could’ in s 705 seems to me to mean possible purposes rather than probable purposes. That does not favour either party’s argument. A purpose for which land could be used cannot convert from a mere possibility until an application for approval is made and approved. Two uses one of which would be certain to be approved and the other of which would be certain to be refused would each be capable of being accurately described in s 705 by the words as a ‘purpose for which the land could be used’ because ‘could’ takes into account the fact that the use must first be applied for and approved and remains hypothetical until approved.
The section’s concern with possibilities does not mean that evidence of whether an application would be approved cannot become relevant. Such evidence would be relevant to whether a possibility is illusory. Whether land ‘could be used’ for a use may involve more than a construction of the planning scheme and the SPA. At least in the case of a hypothetical impact-assessable use, evidence tending to show that an application for the use would be refused would be directly relevant to the issue of whether the land ‘could be used’ for that use. It might disprove the prima facie possibility apparent from a mere construction of the planning scheme and the SPA.
Evidence tending to prove that the possibility of a use as discerned from a construction of SPA and the planning scheme is illusory because it would not be approved, is evidence which would be relevant to the issue of whether a use was possible and whether land ‘could be used’ for a use. In considering the issues raised in s 705 I accept that evidence that a use would not be approved is relevant to the issue of whether there is a purpose for which the subject land could possibly be used.
But in the case before me there are only three code-assessable uses which are in consideration. Council submits that a consequence is that expert evidence of prospects of approval is irrelevant in this case. The Council submits that evidence of prospects of approval is inadmissible as the uses are code-assessable because, it submits, assessment managers have no discretion to refuse applications for such uses where the code-assessable development application complies with applicable codes. The implication from the submission is that such evidence must be irrelevant if an application for approval for a use cannot be refused. The value and relevance for me of the evidence from Mr Ovenden is that it assisted me to understand what kind of use, if applied for would comply with the codes and the prescription that the use for a ‘food outlet’ or for a ‘restaurant’ be subject to being ‘carried out with but incidental and subordinate to’ a public recreation. His evidence was not merely that three code-assessable uses were available for approval and would be approved. It was evidence that a small scale restaurant would be approved in the park. Evidence about the use which would comply with the code-assessable definition assists in the factual inquiry of whether a hypothetical code-assessable use on the land has the consequence that the land would be used for a purpose other than only a public purpose.
I allow Mr Ovenden’s opinion evidence of the particular uses which he regarded as likely to conform with the planning scheme and be approved.
The appellants led evidence of Council’s intention that the subject land should be acquired. I was asked to rule upon the admissibility of such evidence after the hearing. The appellants submitted that as a matter of law, the Council’s alleged manifest intention to acquire the land is a relevant matter for an assessment manager to take into account when assessing a development application for the subject land. The appellants did not point to a provision in the SPA that supports the proposition that such a matter can be taken into account. Sections 313 and 314 of the SPA identify the mandatory matters for consideration by an assessment manager for applications requiring code assessment and impact assessment. No part of either of those provisions includes a consideration of a ‘manifest intention to acquire the land’ or a possibility of acquisition. For code assessable applications the assessment manager must not assess the application against, or having regard to, anything other than a matter or thing mentioned in section 313. Evidence of Council’s intention to acquire the subject land is irrelevant and inadmissible to the issues in this proceeding.
If the land could be used for a park and restaurant in the park would it be used for only a public purpose?
The appellants submit:
There is a settled line of authority drawing a distinction between a use of land (as such), and use of land for a purpose. The distinction is identified (by reference to authority) and explained by Brabazon QC DCJ in Fraser Straits Marina Pty Ltd v Cooloola Shire Council [2008] QPELR 68, at [21] to [26].
The submission continued in a way which I do not entirely accept:
The concept involves identifying the end to which the land as a whole is being put or directed, recognising that the overall purpose may involve or be supported by activities which, if looked at in isolation, might be characterised in a different way.
The submission tends to suggest that as a matter of principle land can have only one purpose being the purpose best fitting the description of ‘overall purpose’ and despite its different activities. That is not necessarily so. Whether land has a single ‘purpose’ will depend upon the facts of the case and the meaning of ‘purpose’ in the statute or planning scheme in which the word ‘purpose’ appears.
In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 the issue before the Court of Appeal in New South Wales was about the ‘purpose’ for which premises were used. Planning scheme ordinances prohibited in light industrial zones the use of buildings for ‘shops …’. ‘Shop’ was defined in the ordinances to mean ‘a building … used … for the purpose of selling… or offering for sale by retail, goods …’. ‘Warehouse’ was defined to mean ‘a building … used … for the storage of goods … pending their sale and distribution to persons engaged in the retail trade.’ A warehouse was not prohibited in light industrial zones. Two buildings were used for the sale of food stuffs. The business at each building was similar to that of an ordinary supermarket. In each building emphasis was placed on supplying the wholesale trade but retail customers were also encouraged. Glass JA, with whom Samuels JA and Hutley JA agreed, observed:[15]
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. … Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed.
[15]At 161
Significantly, the Court in Foodbarn regarded it as a question of fact whether premises were used for one purpose or more than one purpose. The trial judge had specifically found that sales by retail were not ancillary to other purposes. With respect, on the facts in that case the finding was clearly correct. The selling of goods by retail within the premises did not subserve the storage of goods pending their sale to persons engaged in the retail trade.
The appellants referred to Fraser Straits Marina Pty Ltd v Cooloola Shire Council [2008] QPELR 68 at [21] to [26]. I note that at paragraph [21] in Fraser Straits there appears the observation that:
It follows that, where land is used for more than one purpose, it is normal to treat the dominant purpose as that for which the whole is being used. That is particularly so if the lesser purpose serves the greater. See Food Barn Pty Ltd v Solicitor-General 32 LGRA 157.
With respect, the observation does not reconcile precisely with the statement of the appellate court in Foodbarn and is inconsistent with the result in Foodbarn. The Court of Appeal in Foodbarn observed that it was ‘legitimate’ to treat the dominant purpose as that for which the whole is being used but did not observe that it was ‘normal’ to do so. I accept that there are many cases where that has been done. The court went on to confirm that on the facts before it there were two purposes and the dominant purpose was not treated as that for which the whole was being used. Accepting, as I do, the proposition set out above from Foodbarn it follows that it may lead one into error to assume that where premises have two or more purposes that the premises are accurately to be treated as used for the dominant purpose or that where one purpose ‘overshadows’ the other that it has the consequence that the ‘overshadowed’ purpose serves the overshadowing purpose. The Court in the Foodbarn case considered that there may be two purposes, one of which overshadows the other in terms of income generated, space occupied or ratio of staff engaged and yet not be ‘dominant’ if that overshadowing purpose is not served by the other. In such a case, though one purpose overshadows the other, the two purposes operate in a way which is independent and the lesser is not merely incidental to the other.
I do not accept that when one considers the application of s 705 of the SPA that one should begin by assuming that land has one overall purpose being the purpose best fitting the description of dominant purpose and to proceed from there to disregard any other purpose. Whatever the meaning of ‘purpose’ may be in s 705, the section itself contemplates that land may have more than one purpose. While there may be instances where land has an overall purpose which amounts to its sole purpose, whether that is so will depend upon the facts of the case.
The fact that the subject land was capable of use for ‘home business’ was relied upon by the Council for showing that the land could be used for a purpose other than the purpose for which it was lawfully being used when the change was made.[16] That submission is consistent with the Council’s submission that ‘use’ and ‘purpose’ are synonymous. It seems to be undisputed that it was not being used for a home business at the time of the change.
[16]Respondent’s outline [60] and [61].
The appellants submit: ‘home business’ use is a residential use (LPS page S1-79), and must be ‘subordinate’ to residential use of the premises by a person who is permanently residing in the dwelling unit (LPS, page S1-87). It includes holding a ‘garage sale’ (LPS, p S1-64). On the proper interpretation of s 705, a ‘use’ for home business is a component or aspect of residential use (‘associated residential use’ - LPS, page S1-79). Starting a home business involves no change to the purpose for which a dwelling house is used, that is, as a residence including use for some or all of the activities, primary or ‘subordinate’, which fall within the range of uses comprehended by that purpose. The Council made no specific submission in reply. I accept the appellants’ submission.
I am not satisfied by Council that use for ‘home business’ would be a use of the subject land for other than the purpose for which it was being used when the change was made. It does not affect the right to compensation.
Cases will vary depending on the facts of the case and the applicable planning scheme or statute under consideration. There are occasions concerning different statutes and planning schemes where courts have determined that in spite of land having two different uses each consistent with a different purpose that the land has had one purpose.
One example was Walker v Noosa Shire Council [1985] 1 Qd R 387. The issue was whether a ramp structure was for the purpose of a dwelling house or the purpose of providing vehicular access. McPherson J in the Full Court noted that its dominant, if not sole purpose was to serve the dwelling house and that that purpose was determinative.
The issue is in this case whether a use for a ‘food outlet’ or for a ‘restaurant’ subject to being ‘carried out with but incidental and subordinate to’ a public recreation is a use for a public purpose.
‘Subordinate’ and ‘incidental’ are words defining the code assessable use. They are also words used by the court in the passage set out at [64] above from Foodbarn. The words were used in Foodbarn as the kind of descriptors appropriate for a purpose which would justify ignoring the purpose and treating the land as having only the purpose of the other and dominant purpose.
The fact that a restaurant or kiosk must be ‘carried out with but incidental and subordinate to’ a public recreation is relevant. The words ‘carried out with but incidental and subordinate to’ help define and limit the available restaurant use. But those descriptors in the definition of the restaurant use do not inevitably mean that on the facts some form of restaurant use cannot become a commercial purpose of the land distinct from the public purpose arising from public recreation.
‘Subordinate’ and ‘incidental’ in the context of a restaurant in a park suggest that the use for a restaurant should not interfere with the public recreation. It does not suggest that the restaurant use may not be of such significance as to amount to a separate purpose for which the land would be used. A restaurant may attract custom from persons who are not park users. Use for a restaurant incidental to and occupying a small section of a park would have the consequence that a public purpose was not the only purpose for which the land could be used. The restaurant and the park are appropriately described as two complementary uses and two complementary purposes. If the purpose of such a restaurant or such a kiosk needs to be described by one of the ‘purposes’ found in the SPA then ‘commercial’ appears most appropriate. What matters is not the name for the purpose but that Council has satisfied its onus of proof that the subject land could be used for a purpose other than only a public purpose and other than the purpose for which it was being used when the change was made.
It follows that the answer to the preliminary question is “No”.
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