Connolly v Brisbane City Council

[2015] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

Connolly v Brisbane City Council & Ors [2015] QSC 231

PARTIES:

TREVOR JOHN CONNOLLY

(applicant)

v
BRISBANE CITY COUNCIL

(first respondent)
KEN DREW TOWN PLANNING PTY LTD
(second respondent)
CHIEF EXECUTIVE ADMINISTERING THE LAND ACT 1994 (QLD)
(third respondent)

FILE NO:

Supreme Court No 6283 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

14 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2015

JUDGE:

Flanagan J

ORDER:

1.   The originating application filed 25 June 2015 be dismissed.

2.   I will hear the parties as to costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be inconsistent to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – PARTICULAR CASES – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – where the applicant submits a use will be inconsistent with the land’s purpose if it is not incidental to that purpose – whether the land’s use is required to be incidental to its purpose – whether the word inconsistent is to be given its literal and grammatical meaning

REAL PROPERTY – GENERAL PRINCIPLES – CROWN GRANTS – CONSTRUCTION OF GRANTS – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes and for no other purposes whatsoever – where the second respondent applied for and was granted preliminary development approval to facilitate the development of a new gymnasium and swimming pools and ancillary structures – where s 35(1)(a) of the Land Act 1994 (Qld) requires that the way land is used must not be inconsistent with a purpose for which it was granted – where the applicant submits the development approval for a gymnasium is inconsistent with the purpose for which the land was granted – whether the proposed gymnasium would be inconsistent with the purpose for which the land was granted

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT – OTHER CASES – where Crown land was granted in trust to the Brisbane City Council for Local Government (Swimming Pool) purposes – where the second respondent applied for and was granted preliminary development approval to facilitate a new gymnasium and swimming pools and ancillary structures – where the applicant sought a declaration that the development approval purports to approve a use inconsistent with the purpose for which the land was granted by the Crown and that any attempt to use the land in accordance with the permit would breach s 35(1)(a) of the Land Act 1994 (Qld) – where s 35(1)(a) requires an inconsistency in the present tense in the phrase “the way the land is used” – where the preliminary development approval of itself does not authorise redevelopment of the land – where the applicant had lodged an appeal in the Planning and Environment Court against the preliminary development approval – whether a declaration ought to be made

Land Act 1962 (Qld), s 5, s 334, s 350
Land Act 1994 (Qld), s 35(1)(a), s 451

Local Government Act 1936 (Qld) s 30

Down v Attorney-General of Queensland (1905) 2 CLR 639, applied
Randwick Municipal Council v Rutledge (1959) 102 CLR 54, distinguished

University of New South Wales v Moorhouse (1975) 133 CLR 1, cited

COUNSEL:

C L Hughes QC, with D Favell, for the applicant

M A Williamson for the first respondent
S M Whitehouse (sol) for the second respondent

D D Keane for the third respondent

SOLICITORS:

Colwell Wright Solicitors for the applicant

Brisbane City Legal Practice for the first respondent
HWS Lawyers for the second respondent

Crown Law for the third respondent

Introduction

1. On 17 June 1971 the Governor in Council granted in trust to the Brisbane City Council a parcel of land located on Flinders Parade at Sandgate.  The parcel of land granted was 29,317m² (about 7 acres). 

2. The land was granted in trust for “Local Government (Swimming Pool) purposes and for no other purposes whatsoever”. 

3. Since about 1972 the land has been used as a public swimming pool facility.[1]

   [1]     Exhibit “JSW-3” to the affidavit of James Stuart Wright sworn 25 June 2015, 249.

4. The Council leases some of the land to Australian Crawl Pty Ltd which operates the swimming pool facility.  The operator has a registered lease.[2]

   [2]     Exhibit “JSW-1” to the affidavit of James Stuart Wright sworn 25 June 2015, 2.

5. On 20 November 2013 the second respondent, Ken Drew Town Planning Pty Ltd, acting on behalf of the operator, made a development application to the Council in which it sought:

   (a)a development permit for a material change of use in order to extend an existing sport and recreational use (for a new clubhouse); and

   (b)preliminary approval under s 241 of the Sustainable Planning Act 2009 (Qld) (“SPA”) for building work to facilitate a “new gymnasium and swim pools and ancillary structures”. 

6. The applicant, Trevor John Connolly, is a local resident.  He and his wife own four properties on the opposite side of Flinders Parade.  They operate a restaurant called “Fish on Flinders” from one of these properties.[3]

   [3] Affidavit of Trevor John Connolly sworn 25 June 2015, [2], [4].

7. On 13 August 2014 Mr Connolly lodged a properly made submission to the Council in respect of the development application.  The primary concern identified in the submission was the proposal to construct a gymnasium.[4]

   [4]     Exhibit “TJC-1” to the affidavit of Trevor John Connolly sworn 25 June 2015, 3-5.

8. On 30 September 2014 the Council approved the development application.  Mr Connolly subsequently lodged an appeal against that approval in the Planning and Environment Court.

9. Prior to incurring further legal costs in respect of the proceedings in the Planning and Environment Court, Mr Connolly seeks a declaration to the effect that any attempt to use the land for the purpose of a gymnasium is unlawful as being inconsistent with the purpose for which the land was granted and therefore in breach of s 35(1) of the Land Act 1994 (Qld).[5]

   [5]     Applicant’s outline of submissions dated 10 July 2015, [7].

   The issues

10. The present proceedings were commenced by originating application filed 25 June 2015.  The parties were desirous of the application being dealt with on its first return date in the Applications’ List.  There are therefore no pleadings to assist in the identification of the issues. 

11. The originating application seeks a declaration which in effect has two limbs. The first limb is that the Council’s decision made 30 September 2014 approving the development application purports to approve a use that is inconsistent with the purpose for which the land was granted. The second limb is that any attempt to use the land in the way provided for in the approval will be in breach of s 35(1)(a) of the Land Act 1994 (Qld) and unlawful. The issues for determination are therefore:

    (a)whether the Council’s decision made on 30 September 2014 purports to approve a use that is inconsistent with the purpose for which the land was granted; and

    (b)whether any attempt to use the land in the way provided for in the approval will be in breach of s 35(1)(a) of the Land Act 1994.

    The Deed of Grant

12. The deed of grant is dated 17 June 1971.  It is a pro forma document with blank spaces for the relevant details to be entered.  The grant of the land is made to the Council “subject to the Trusts, Conditions, Reservations, and Provisoes hereinafter contained”.  The land is held by the Council “Upon Trust for Local Government (Swimming Pool) purposes and for no other purpose whatsoever”.  The words “Upon Trust” and “and for no other purpose whatsoever” are part of the pro forma deed of grant whereas the words “for Local Government (Swimming Pool) purposes” are typed into the blank space provided. 

13. The words “and no other purpose whatsoever” were considered by Griffith CJ in Down v Attorney-General of Queensland.[6] The Chief Justice observed that the form of declaration of trust with the words “and for no other purpose whatsoever” is one commonly used in Queensland in grants of land to trustees for public purposes.[7]  In Down, the Attorney-General of Queensland sought a declaration against the trustees of the Brisbane Cricket Ground that they were not entitled to use or occupy or to permit the use and occupation of the land for the purpose of horse or pony racing or otherwise than as a reserve for cricket and other athletic sports, and that such use or occupation constituted a breach of trust.  The Chief Justice rejected the Attorney-General’s submission that the words “and for no other purpose whatsoever” absolutely forbade the use of the land for any purpose, or at any rate for any sport, other than athletic sport.[8]

    [6] (1905) 2 CLR 639.

    [7]     Down v Attorney-General of Queensland (1905) 2 CLR 639, 646 (Griffith CJ).

    [8] Ibid.

14. The Chief Justice stated:[9]

    “…I am of the opinion that the appellants are entitled to permit the use of the reserve in question for any lawful purpose not inconsistent with its use, when required, as a place for holding athletic sports, and in particular for any purpose which, while not interfering with such use, is conducive to the main object of the trust, for instance, for raising funds by a way of rent, which may be applied to make the land more useful for carrying out that main object.  In view of the Statutes I cannot think that the words ‘and for no other purposes’ ought to be construed as prohibiting the use of any part of the land for any purpose other than athletic sports.  Such a construction would be contrary to the general law applicable to such trusts.  Nor can I see any sound basis for the conclusion that those words exclude from what would otherwise be legitimate uses the holding of sports which are not athletic.”

    [9]     Down v Attorney-General of Queensland (1905) 2 CLR 639, 652 (Griffith CJ).

15. In the present case therefore the words in the deed of grant, “and for no other purpose whatsoever” do not forbid the use of the land for a purpose other than just swimming pools. The deed of grant was made pursuant to s 334 of the Land Act 1962 (Qld). Section 334(1) relevantly provided that the Governor in Council may from time to time grant in trust any Crown land which, in the opinion of the Governor in Council, is or may be required for any public purpose. Section 5 of the Land Act 1962 defined “public purposes”. This definition included “local government functions or purposes”. As originally enacted, s 5 also included as a public purpose “Baths”. This purpose was omitted by s 2 of the Land Acts Amendment Act 1968 (No. 2). The “public purposes” for which the land was granted pursuant to s 334 was therefore for “local government functions or purposes”. The Land Act 1962 did not define this term.  Section 30 of the Local Government Act 1936 (Qld) however identified the functions of local government as including having authority in relation to baths and bathing places.  It may therefore be accepted that, as at the date of the land being granted in trust to the Council, a relevant local government purpose was the provision of public swimming pool facilities.  The land was granted in trust not simply for swimming pool purposes but “for Local Government (Swimming Pool) purposes”.  The reference to “local government purposes”, in my view, identifies the specific purpose, namely “Swimming Pool”, as constituting part of the Council’s wider function also identified in s 30 of the Local Government Act namely being charged “with the good rule and government” of the relevant Council area. 

16. The reference to “Swimming Pool” in the deed of grant is bracketed.  This may denote or further define the actual local government purpose for which the grant was made.  The “public purpose” however, (as defined by s 5 of the Land Act 1962 (Qld)) for which the grant was required was “local government functions or purposes”.

17. Section 350 of the Land Act 1962 contained a provision not dissimilar to s 35 of the Land Act 1994 (Qld):

    “350. Use of land contrary to trust prohibited.  The trustees of land granted in trust or of a reserve shall not permit or allow any person or body corporate to occupy the whole or any part of the land so granted or reserved, for any purpose contrary to or inconsistent with the purpose for which the land was so granted or reserved:

    Provided that, except with the prior consent in writing of the Minister, the trustees shall not in any circumstances permit a person to occupy the land or any part of the land so granted or reserved for a period longer than one month, and whether continuously or intermittently.”

    Section 35 of the Land Act 1994

18. Under the Land Act 1994, “public purposes” has been replaced with “community purposes” but dedications made prior to the commencement of the Land Act 1994 are continued.[10]

    [10] Pursuant to s 451 of the Land Act 1994 (Qld) the deed of grant in trust made pursuant to s 334 of the Land Act 1994 (Qld) is taken to be a “deed of grant in trust” for the purposes of the 1994 Act.

19. Section 35 provides:

    “35    Use of land granted in trust

    (1)The way land granted in trust by the Governor in Council is used must not be inconsistent with—

    (a)a purpose for which it was granted; or

    Note—

    The power of the Governor in Council to grant land in trust is in section 14(2) (Governor in Council may grant land).

    (b)an additional community purpose notified under subsection (2).

    (2)The Governor in Council may, by gazette notice, notify an additional community purpose for land granted in trust.

    (3)The Governor in Council may notify an additional community purpose without receiving an application under section 38A(1)(a).

    (4)An additional community purpose for land granted in trust is registered by registering an adjustment notice.

    (5)The adjustment notice under subsection (4) must state—

    (a)the particulars of the gazette notice notifying an additional community purpose; and

    (b)the additional community purpose for the deed of grant in trust.

    (6)The additional community purpose for land granted in trust takes effect on the day the adjustment notice is registered.”

20. Section 35(1)(a) falls within Chapter 3, Part 1, Division 3 of the Land Act 1994. Chapter 3, Part 1 deals with reserves and deeds of grant in trust. The objects of Part 1 are stated in s 30. These objects include enabling unallocated State land to be granted in fee simple in trust for community purposes.[11] “Community purposes” is defined in Schedule 6 to mean a purpose in Schedule 1.  Schedule 1 identifies 34 community purposes.

    [11]    Land Act 1994 (Qld) s 30(a).

21. It was common ground between the parties that no additional purposes have been gazetted pursuant to s 35(2) nor has the Council sought approval pursuant to s 52(5) of the Land Act 1994 for any action inconsistent with the purpose for which the land was granted.

22. The inconsistency identified in s 35(1)(a) is between the way the land is used and the purpose for which the land is granted. Both the Council and the second respondent submitted that the word “inconsistent” in s 35(1) should be given its ordinary meaning. The Macquarie Dictionary (Revised 3^rd Edition) defines “inconsistent” as meaning “lacking in harmony between the different parts or elements; self-contradictory…lacking agreement; as one thing with another, or two or more things in relation to each other; at variance…not consistent in principles, conduct, etc. …”.  The ordinary meaning of the word “consistent” is “compatible with or in harmony with”.  The second respondent therefore submits that the applicant needs to demonstrate that use of the land in accordance with the approval is not compatible with or is not in harmony with the purpose for which the land was granted.  The applicant, however, by reference to the decision of the High Court in Randwick Municipal Council v Rutledge,[12] submits that a use will be inconsistent with the purpose if it is not incidental to that purpose. 

    [12] (1959) 102 CLR 54.

23. This submission should be rejected on two basis. First, it does not accord with the ordinary and natural meaning of the word “inconsistent” in s 35(1). The word “consistent” does not mean “incidental”. Secondly, when properly analysed, the decision of the High Court in Rutledge does not support the applicant’s submission. 

24. The issue in Rutledge was whether Randwick Racecourse was rateable.  The critical question was whether the racecourse was “used as public reserve” within the meaning of the Local Government Act 1919 (NSW).

25. Windeyer J, with whom Dixon CJ, Fullagar and Kitto JJ agreed, identified that the case was not concerned with any inconsistent use but rather with whether the relevant land fell within the rating exemption:[13]

    “…presumably the trustees do not suggest that it has ever been used in a manner inconsistent with the grant, for that would be to say there had been a breach by the trustees and by the club of the terms of the grant…”.

    [13]    Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 91.

26. His Honour continued:[14]

    “The words ‘exclusively’ and ‘solely’ are familiar in fiscal and rating law.  Where an exemption from rating depends upon the use of land exclusively for a particular stated purpose, then the use must be for that purpose only…”.

    [14]    Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 93-94.

27. The particular passage from the judgment of Windeyer J relied upon by the applicant is as follows:[15]

    “The presence of ‘exclusively’, ‘solely’, or ‘only’ always adds emphasis; and is not to be disregarded.  When such words are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose.  As Kitto J said in Lloyd v Federal Commissioner of Taxation, such words confine the use of the property to the purpose stipulated and prevent any use of it for any purpose, however minor in importance, which is collateral or independent, as distinguished from incidental to the stipulated use.  Even without such words, an exemption from rating based upon use or occupation for a particular purpose or in a particular manner can only apply when the property is so used that it can properly be described as used for that purpose or in that manner, any other user being merely incidental, or at least not inconsistent with such main user.” (footnotes omitted)

    [15]    Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 94.

1. Windeyer J was not addressing any issue concerning inconsistency but rather a question of whether for the purposes of the relevant rating Act, the racecourse was used as a public reserve. Therefore, in the current context, I accept (contrary to the applicant’s submission) that the word “inconsistent” in s 35(1)(a) should be given its ordinary and natural meaning.

2. There are two further aspects of s 35(1) which require consideration. The first is whether the reference in s 35(1)(a) to “a purpose” should be understood as a reference to a “community purpose” or as a reference to the purpose specified in the deed of grant. Whilst community purposes have replaced public purposes under the Land Act 1962, dedications made prior to the commencement of the Land Act 1994 continue. The relevant “public purpose” under the Land Act 1962 was “local government functions or purposes”. The issue is whether any question of inconsistency should be determined by reference to the public purpose for which the land was granted rather than the more specific “swimming pool” purpose identified in the deed of grant. The correct construction is that the reference in s 35(1)(a) to “a purpose” should be understood as a reference to the purpose identified in the deed of grant. This conclusion is supported by two considerations. The first is that s 35 itself distinguishes between “a purpose” and “community purpose”. The term “community purpose” is used in s 35(1)(b), (2), (3), (4), (5) and (6). If the term “a purpose” in s 35(1)(a) was to mean “community purpose” then the legislature would have used the same language. The second consideration is the legislative history of s 35. Section 35 when first enacted provided as follows:

   “Granting land in trust to be used for community purpose

   35. Land granted in trust by the Governor in Council must be used in a way consistent with the community purpose for which it was granted.”

3. The Explanatory Memorandum to s 35 as originally enacted stated:

   “This clause ensures that land granted in trust is used for the community purpose for which it was granted.”

4. The original legislative intention therefore was that for the purposes of determining consistency one compared the use of the land to the community purpose for which the land was granted. Section 35 was further amended in 1997[16] to provide:

   [16]    Natural Resources and Other Legislation Amendment Act 1997 (Qld) s 36.

   “Use for community purposes of land granted in trust

   35.(1)The way land granted in trust by the Governor in Council is used must not be inconsistent with–

   (a)   a community purpose for which it was granted; or

   (b)an additional community purpose notified under subsection (2).

   (2)  The Governor in Council may, by gazette notice, notify an additional community purpose for land granted in trust.”

5. The question of inconsistency therefore was still to be determined by reference to the community purpose for which the land was granted rather than the purpose identified in the deed of grant. However, in 2009, s 35(1)(a) was further amended to remove the reference to “community”.[17]  The Explanatory Memorandum for this amendment explained that the word “community” was removed to clarify that a deed of grant in trust must be used for the purpose for which it was granted.  This purpose might not necessarily be a community purpose. 

   [17]    Acquisition of Land and Other Legislation Amendment Act 2009 (Qld) s 27.

6. It follows that under s 35(1)(a) the question of inconsistency is determined by reference to the actual purpose identified in the deed of trust rather than more generally to the “public purpose” for which the land was granted.

7. The second aspect is that s 35(1)(a) uses the present tense when it refers to the way in which the land is used. The declaratory relief is sought in the context of an approval which is the subject of a merits appeal in the Land and Environment Court. The use is one that is only contemplated. If the Land and Environment Court was to allow the appeal and remove the proposed gymnasium from the approval, then the alleged inconsistency may never arise.[18] The inconsistency does not presently arise. In the context of the declaratory relief sought in the present case, the use of the present tense in s 35(1)(a) may inform discretionary considerations for example in relation to utility.

   Whether the Council’s decision made on 30 September 2014 purports to approve a use that is inconsistent with the purpose for which the land was granted

   [18]    University of New South Wales v Moorhouse (1975) 133 CLR 1, 10 (Gibbs J).

8. In Down, the issue was whether the use of the land for horse and pony racing was inconsistent with its use for athletic sports.  Griffiths CJ considered that the determination of this issue must depend on circumstances.[19]  The circumstances in the present case are that the land is presently developed and used as a public aquatic centre.  The centre is known as the Sandgate Aquatic Centre.  The existing improvements on the land include:[20]

   (a)a 50 metre Olympic swimming pool;

   (b)a wading pool;

   (c)a kiosk;

   (d)amenities;

   (e)shade structures;

   (f)administration and staff facilities; and

   (g)off street parking.

   [19]    Down v Attorney-General of Queensland (1905) 2 CLR 639, 652 (Griffiths CJ).

   [20]    First respondent’s outline of submissions dated 10 July 2015, [12]; exhibit “JAL-2” to the affidavit of James Alexander Langham affirmed 8 July 2015, 21.

9. The applicant accepts that the present uses including the kiosk and off street parking are not inconsistent with the trust purpose.[21]  The proposed refurbishment and expansion project has the following features:[22]

   [21]    Applicant’s outline of submissions dated 10 July 2015, [30].

   [22]    First respondent’s outline of submissions dated 10 July 2015, [15]; exhibit “JAL-2” to the affidavit of James Alexander Langham affirmed 8 July 2015, 21.

   (a)a new shade structure will be provided to the existing 50 metre Olympic pool;

   (b)a new 25 metre pool with a shade structure, windbreaker and amenities block;

   (c)a new splash pool playground;

   (d)a new indoor learn to swim pool and amenities;

   (e)gymnasium;

   (f)refurbishments to existing amenities;

   (g)conversion of an existing plant room to a caretaker’s room;

   (h)augmentation to the number of off street car parking spaces provided; and

   (i)a new kiosk.

10. The primary focus of the applicant’s submission as to inconsistency is in relation to the gymnasium.  The size of the proposed gymnasium is 331m².  It will comprise slightly more than 1% of the total area of the land.  The Council and the second respondent have agreed in the planning appeal that any approval, if granted, should include a further condition:[23]

    “Use of gymnasium

    The area nominated for the gymnasium use is to be subordinate and ancillary to the use of the swimming pools and is not to be conducted as a separate and independent use.

    The gymnasium operation is to be limited to the operating hours of the swimming pools.”

    [23]    Exhibit “JAL-4” to the affidavit of James Alexander Langham affirmed 9 July 2015, 12-13.

11. The applicant relies on the dictionary definitions of “swimming pool” and “gymnasium”.  A swimming pool is defined as “an indoor or outdoor pool built for swimming in”.  “Swim” is defined as “propel the body through water while afloat by working the limbs”.[24]  “Gymnasium” is defined as “a place, room or building equipped for gymnastics, indoor sports, and other physical exercise”.[25] Relying on these dictionary definitions the applicant submits that a gymnasium could not be described as being incidental to a swimming pool. As discussed above, this is not the correct test. The test identified in s 35(1) is whether the use of the land is inconsistent with the purpose. The issue is therefore whether the gymnasium is incompatible with the purpose for which the land was granted. This inquiry is not answered by the submission that a gymnasium is not a place where one swims.[26] 

    [24]    Applicant’s outline of submissions dated 10 July 2015, [29] citing the Shorter Oxford English Dictionary, 3138.

    [25]    Applicant’s outline of submissions dated 10 July 2015, [32] citing the Shorter Oxford English Dictionary, 1182.

    [26]    Transcript of proceedings, 10 July 2015, 1-12, lines 5-8.

12. The applicant submits that a swimming pool and a gymnasium are entirely separate purposes.  Neither is necessary for the other to operate or exist.  The presence of the gymnasium on the land is therefore said to constitute a use that is inconsistent with the swimming pool purpose for the following reasons:[27]

    (a)the construction of the gymnasium represents a permanent removal of part of the land from any swimming pool purpose or use ancillary to that purpose;

    (b)the gymnasium will attract patrons that will not necessarily use the swimming facilities; and

    (c)gymnasium and swimming pool patrons will compete for the use of the amenities on site, particularly change rooms and car parking.

    [27] Applicant’s outline of submissions dated 10 July 2015, [33], [37].

13. As to any inconsistency arising because of competition in relation to car parks, the applicant referred to the assessment report of the second respondent.[28]  That report states that the parking requirements for the gymnasium and pools and ancillary structures combined is 309 bays.  The total available parking will only be 131 bays.  The report continues:

    “However, there will be considerable overlapping, as the busiest times would be during the week for the gymnasium and on the weekend for the pools and playground areas.  Also, the gymnasium is also most busy early in the early morning and late evening and the pools during the daytime.  A traffic report can be provided if requested.”

    [28]    Exhibit “JSW-3” to the affidavit of James Stuart Wright sworn 25 June 2015, 62.

14. It is not readily apparent what use one should make of this evidence for the purposes of determining inconsistency.  The applicant accepts that car parking facilities constitutes a consistent use with the purpose for which the land was granted.  Rather than assisting in any determination of inconsistency this evidence is more relevant to planning considerations as to the sufficiency of car parking facilities.  There is no evidence before the Court that gymnasium and swimming pool patrons will actually complete for car parks.  There is, for example, no evidence that the same patrons will not be using both the gymnasium and the swimming pools.

15. It must be accepted that both before and after the proposed redevelopment that the swimming pool facility will continue to operate as a swimming pool facility.  So much is obvious from the fact that an additional two swimming pools, namely a 10 lane 25 metre pool and a new learn to swim pool is proposed.  The mere presence of a 331m² gymnasium on the land cannot be said to be incompatible, nor unharmonious with, the purpose for which the land was granted.  The dominant part of the facility is, and will continue to be, a swimming pool facility.

16. There is simply no evidence that the way the land is proposed to be used with a gymnasium will either hinder, restrict or prevent the purpose for which the land was granted being fulfilled or would otherwise be contrary to that purpose.

17. As to the applicant’s submission that the construction of the gymnasium would represent a permanent removal of part of the land for any swimming pool purpose, reference was made to the words in the deed of grant that the land was granted upon trust “Subject Nevertheless to the several Conditions and Reservations contained in and declared by ‘The Land Acts, 1962 to 1971”.  Section 350 of the Land Act 1962  prohibited the Council from permitting “the whole or any part of” the land from being occupied “for any purpose contrary to or inconsistent with the purpose for which the land was so granted”.  The applicant submits that the prohibition contained in s 350 insists on the whole of the land being used (or at least being made available) for the stipulated purpose or ancillary uses.[29]  Thus a gymnasium on any part of the land will be inconsistent with the purpose for which the land was granted.  This submission must be rejected.  The Land Act 1962  has been repealed.  The deed of grant is taken to be a deed of grant in trust under the Land Act 1994 for the relevant purpose.[30] Any issue of inconsistency must therefore be determined by reference to s 35(1)(a) of the Land Act 1994 and not by reference to s 350 of the repealed Act. In any event, even applying s 350 of the Land Act 1962, it cannot be said a gymnasium on any part of the land is contrary to or inconsistent with the purpose for which the land was granted.

    Whether any attempt to use the land in the way provided for in the approval will be in breach of s 35(1)(a) of the Land Act 1994

    [29]    Applicant’s outline of submissions dated 10 July 2015, [39].

    [30]    Land Act 1994 (Qld) s 451.

18. For the reasons given above, on the material before the Court it cannot be said that any attempt to use the subject land in accordance with the approval would be in breach of s 35(1)(a) of the Land Act 1994.

    Discretionary considerations (utility)

19. The applicant submits that it is appropriate for the Court to determine the originating application prior to the hearing of the planning appeal for three reasons:[31]

    (a)the point raised by the applicant is a narrow question of construction, which can be dealt with relatively quickly without the need for a trial;

    (b)all parties will expend significant trial costs if the applicant is forced to proceed with its planning appeal first, and the proceedings in the Planning and Environment Court may well be a waste of time, money and court resources; and

    (c)if the applicant is successful in this proceeding, there will be no utility in the planning appeal being heard or the second respondent pursuing the development in the form currently proposed (that is, with the inclusion of a gymnasium).

    [31]    Applicant’s outline of submissions dated 10 July 2015, [15].

20. The difficulty I have with this submission is that the declaratory relief sought focuses on the Council’s decision made on 30 September 2014 to approve a development application. The notice of appeal to the Planning and Environment Court seeks an order that the development application be refused. The effect of the applicant lodging an appeal to the Planning and Environment Court is that the second respondent cannot commence the redevelopment whilst the appeal is pending. It is an offence to carry out assessable development under the SPA absent an effective development permit.[32] As submitted by the Council where an appeal has been commenced, the SPA specifically provides that a development approval does not take effect until the appeal to the Planning and Environment Court is decided or withdrawn.[33]  The Council therefore submits that the relief sought by the applicant lacks utility because the development approval:[34]

    (a)has not taken effect under the SPA;

    (b)cannot be relied upon to authorise the lawful development of the land;

    (c)is at risk of being set aside in its entirety at the insistence of the applicant’s appeal to the Planning and Environment Court; and

    (d)alternatively, the approval will be replaced with an order of the Planning and Environment Court, which may contain the agreed condition referred to above. [35]  

    [32]    Sustainable Planning Act 2009 (Qld) s 578; first respondent’s outline of submissions dated 10 July 2015, [19].

    [33]    Sustainable Planning Act 2009 (Qld) s 339; first respondent’s outline of submissions dated 10 July 2015, [20].

    [34]    First respondent’s outline of submissions dated 10 July 2015, [24].

    [35]    This condition is set out in [37] above.

21. It is not clear whether the grant of the declaratory relief would actually resolve the proceedings in the Planning and Environment Court.  An examination of the applicant’s notice of appeal reveals that the applicant relies on numerous planning grounds for the purposes of seeking to have the approval refused.[36]  The applicant, for example, seeks to have the development application refused because it conflicts with a number of instruments including the Sandgate District Local Plan, the Outdoor Sport and Recreation Code and the Heritage Place Code.[37]

    [36]    Exhibit “TJC-3” to the affidavit of Trevor John Connolly sworn 25 June 2015, 28-33.

    [37]    All instruments are of a repealed Planning Scheme of the Brisbane City Council being the “Brisbane City Plan 2000”.

22. Unlike the situation in Down, the applicant has not sought a declaration that the proposed use would constitute a breach of trust. Rather, the declaratory relief is in terms of the proposed use being in breach of s 35(1)(a) of the Land Act 1994. Section 35(1)(a) uses the present tense in referring to “the way the land is used”. The approval granted on 30 September 2014 does not authorise any redevelopment of the land. No part of the land is presently being used for a gymnasium nor is it presently clear what conditions will ultimately attached to the approval. This difficulty is not overcome by the applicant’s use of the word “purports” in the declaratory relief sought.

23. It follows that had I determined the question of construction in favour of the applicant, I would otherwise have exercised my discretion to refuse the relief on the basis that I could not be satisfied that the construction point would either resolve the proceedings in the Planning and Environment Court or result in a significant saving in costs. Nor is there utility in deciding the construction point when the approval of 30 September 2014 does not determine the actual way in which the land is used for the purpose of determining inconsistency in accordance with s 35(1)(a).

    Disposition

24. I would therefore dismiss the originating application filed 25 June 2015.  I will hear the parties as to costs.