Mac Services Group Limited v Belyando Shire Council
[2008] QPEC 11
•21 February 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mac Services Group Limited v Belyando Shire Council & Ors [2008] QPEC 11
PARTIES:
MAC SERVICES GROUP LIMITED ACN 003 657 510
Applicant
V
BELYANDO SHIRE COUNCIL
First Respondent
And
QR LIMITED ACN 124 649 967
Second Respondent
And
M & P SERVICES (QLD) PTY LTD
Third Respondent
FILE NO/S:
2963/2007
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
21 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
22 November 2007; further written submissions received on various dates up to 6 December 2007
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application dismissed
CATCHWORDS:
PLANNING – PLANNING LAW – CONSTRUCTION OF INTEGRATED PLANNING ACT 1997 – MATERIAL CHANGE OF USE – whether prior use had lapsed – whether new use involves increase in scale or intensity necessitating approval from local authority – meaning and effect of the definition of ‘material change of use’ in Act, s 1.3.5
Government Owned Corporations Act 1995
Government Owned Corporations (Queensland Rail) Regulation 1995
Integrated Planning Act 1997, s 1.3.5
Transport Infrastructure Act 1994, s 245(2)Cases cited:
Ainsworth v Criminal Justice Commission (1991-92) 175 CLR 564
Benter Pty Ltd v Brisbane City Council [2006] QPELR 451
Caloundra City Council v Taper Pty Ltd [2003] QPELR 558
Clayton v Miriam Vale Shire Council [2000] QPELR 320
Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGERA 130Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Ibeneweka v Egbuna [1964] 1 WLR 219
Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council [2001] QPELR 382
KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28
McDonald v Douglas Shire Council [2003] 126 LGERA 96
McNaught & Keating v Kingaroy Shire Council [1996] QPELR 215
Maroochy Shire Council v Barnes [2001] QPELR 475
Nimmo v Land One Solutions [2006] QPELR 645
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGERA 344; (1989) 16 NSWLR 50
Patterson v Redland Shire Council [2003] QPELR 259PMM Brisbane Pty Ltd v Nebo Shire Council [2007] QPEC 075
Renard Partners Pty Ltd v Quinn Villages Pty Ltd [2001] QCA 538
William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGERA 137COUNSEL:
C L Hughes SC and J D Houston for applicant
M Williamson for respondent Council
R A Quirk for second respondent QR LimitedSOLICITORS:
Deacons Lawyers for applicant
King and Company for respondent Council
Hopgood Ganim for second respondent QR Limited
[1] The scale of development in the Bowen Basin has led to the construction of residential ‘camps’ at various places there for persons connected with the mining industry and associated infrastructure, like railways[1]. This case concerns facilities of that kind at Moranbah, a township southwest of Mackay where the applicant Mac Services already operates an ‘accommodation village’ for mine and contract workers with over 800 individual rooms, and extensive associated facilities. The proceedings spring from a concern which Mac Services espouses about plans Queensland Rail (QR) has afoot, in concert with another party, to ‘upgrade and expand’ premises of a similar kind (albeit on a much smaller scale) on QR property in the town[2].
[1] For further discussion of this phenomenon, see PMM Brisbane Pty Ltd v Nebo Shire Council [2007] QPEC 075.
[2] Affidavit William Hyde Dickenson filed 21 November 2007, paragraphs 8 and 9.
[2] Mac Services was in fact interested in undertaking that new development in concert with QR and to that end lodged an ‘expression of interest’ with the rail authority, but its tender was unsuccessful. It is concerned that the development on the QR land, being undertaken by someone else, is wrongly proceeding without proper or necessary local authority approvals and, also, in a way which may have a detrimental impact on Mac’s own large development[3].
[3] Affidavit Christopher Henry Jury filed by leave on 22 November 2007.
[3] The primary issues in the application are the nature and extent of the past use of the land and the question whether any rights associated with it had lapsed, with the result that QR could not now lawfully revive its use as a works camp without seeking and obtaining further approval from the local authority; or, whether the proposed new use is disproportionate to the level of past use, with the same effect.
[4] These issues arise in the context of the definition of a material change of use (MCU) in the Integrated Planning Act 1997 (IPA), s 1.3.5, which specifies, relevantly, that a material change of use of premises means, generally, the re-establishment on the premises of a use that has been abandoned; or, a material change in the intensity or scale of the use of premises. The applicant’s claim that the use was abandoned at some time in the past is referrable to the first of these arms of the definition, the attack on numbers and size to the second.
[5] The particular relief Mac Services seeks is, firstly, a declaration that upon the proper construction of the Belyando Shire planning scheme the proposed use is properly defined as a ‘works camp’ within that scheme; a further declaration that using the site for that purpose would constitute a material change of use under IPA; another declaration that the use of the site for the purpose of a works camp constitutes assessable development under the legislation and the planning scheme (and, hence, an MCU) for which a development permit from the local authority is necessary; and, finally, an Order restraining QR from carrying out development work associated with the works camp until such time as a development permit for an MCU for that purpose comes into effect[4].
[4] The third respondent was excused under the order of 31 October 2007
[6] The Shire scheme defines a ‘works camp’ as:
Any land on which any moveable dwelling is situated or on which are erected any structures or shelters as temporary abodes for persons and their families engaged on public or private works in the locality. The term includes any land on which other temporary structures, temporary installations, vehicles, plant and equipment used in connection with such works are kept, stored or maintained on a temporary basis.
[7] The QR land is Lot 1 on CP 860074 containing 3,455m², and Lot 48 on GV 814693 containing 800m². The land is at Acacia Street Moranbah (as is Mac Services’ land, which has common boundaries with Lot 1 and contains 6.712 hectares). All this land is within the local authority area of Belyando Shire Council. Council’s current, operative planning scheme commenced around September 1993. It is a ‘transitional’ scheme for the purposes of IPA. Under it, Lot 1 is zoned Special Purpose and Lot 48 is zoned Industrial.
[8] The application was brought to a hearing quickly. Those issues alone attracted lengthy affidavit material. Three weeks before the hearing the parties were directed[5] to exchange Statements of the facts, matters and contentions (in effect, pleadings) upon which each relied; and, opening statements. At the end of the hearing on 22 November 2007 a timetable was set for the exchange and delivery of written submissions. Those post-trial submissions raised a number of matters not specifically ventilated in the pre-trial Statements or openings; in particular, a number of technical legal arguments arose. It is appropriate to deal with some of them before moving to the substantive issues.
[9] The first concerns the respondent Council’s contention that the various declarations sought by Mac Services in the proceedings lacked a proper contradictor and sought relief which was hypothetical, and not real. QR joined in some parts of this argument. While it is clear the Court should not attempt to answer theoretical questions or those which lack parties with different, opposing interests[6], the cases show there is an overriding question – whether there is, in reality, sufficient utility to justify the making of orders[7].
[5] Order Robin QC, DCJ 31 October 2007.
[6] Ainsworth v Criminal Justice Commission (1991-92) 175 CLR 564, at 572; Forster v Jododex AustraliaPty Ltd (1972) 127 CLR 421.
[7]Renard Partners Pty Ltd v Quinn Villages Pty Ltd [2001] QCA 538.
That question must plainly be answered in the affirmative here. Save in respect of the first declaration sought by Mac Services, the conduct of the case for both respondents who appeared cannot be described as evincing anything other than rejection of and a contest about what was always, obviously, the primary relief sought by the applicant. (As the case came to be conducted there was no contest about that first claim for declaratory relief, concerning the question whether QR’s use was in truth a ‘works camp’, but that did not extinguish, or affect, the ‘utility’ of the other relief sought.)
The respondents also complained that the case ultimately argued by the applicant differed from its pre-trial Statement of facts, etc. While it is true that the issues (and the evidence) ultimately went some way beyond the matters originally raised in the parties’ Statements, it would be facile for the Court to ignore all that is contained in the many affidavits which address issues of substance of which the parties were plainly well aware when the hearing began. There is an obvious point to considering and determining the substantive matters the applicant has raised, and doing so in the context of the relevant evidence ultimately adduced for all parties.
It was also said, for the respondents, that the applicant’s use of the word ‘would’ in the second declaration sought relates to hypothetical future events and, therefore, precludes relief. The point is arid and involves pure semantics. The primary questions for determination were always apparent and there can be no suggestion the respondents did not know what the applicant sought, and why – nor, significantly, that they did not actively oppose it, and adduce evidence for that purpose. The essential question is whether declaratory relief should be granted. That involves considering whether there are circumstances that call for the making of any of the orders sought, or something of similar ilk of which the respondents have fairly had notice[8]. It is, I think, incontrovertible that the welter of evidence and the lively legal debate which surrounded the central issues in this case involved a true contest about real, and not hypothetical questions.
[8]Ibeneweka v Egbuna [1964] 1 WLR 219 at 255 per Lord Radcliffe.
Despite the number of affidavits filed (including ten on the day of the hearing itself) only four deponents were required for cross-examination. While some historical aspects of the use of this land are, unsurprisingly, lost in time the weight of the large amount of evidence adduced via the affidavits and in cross-examination ultimately enables some findings of fact to be made with a fairly high degree of confidence – albeit that some involve nothing more than a conclusion that it is impossible to know precisely what was going on with the subject parcels at certain times within the last quarter-century.
QR is now the owner of both parcels and both are within the first respondent’s local government planning area. The parcels were Crown land until the mid-nineties. At an earlier time, during the 1980s, the land began to be used by railway staff for temporary accommodation and office purposes under a Department of Lands Permit to Occupy, cancelled on 30 June 1988. The use of the land by QR’s predecessor for accommodation for staff at various times, perhaps continuously from the early 1980s until 1993, was not disputed. After 30 June 1995 both Lots ceased to be Crown land and became subject to the respondent’s planning scheme. I am satisfied that at that time there was an existing use involving accommodation units on the site for a number of railway workers which cannot be preciously determined, but was probably around 40 or 50.
Lot 48 was, from some time not later than about April 1994, used to house a non-commercial club for QR’s (and its predecessor’s) personnel, and that use continued on that Lot until around the end of 2002. Otherwise, upon the expiration of the Permit to Occupy in 1988 and until mid-1995 Lot 1 was used by railway construction staff in what was called the ‘QR camp’.
In the period between 1995 and the new millennium accommodation units remained on the land. They were still there in the year 2000 but were, probably, largely unused and quite run down after 1998. In 2001 the remaining units were removed, although associated services like water and power were still connected to the site, but capped. There were no facilities for accommodation on the land between 2001 and 2004. However, facilities for a 50-man camp were constructed in late 2005 and used in 2006.
By arrangement with QR the applicant Mac Services operated the accommodation facilities on QR’s land between January 2006 and February 2007. In 2007, however, QR called for expressions of interest for the provision of accommodation facilities on the land. In the result an arrangement was entered into with a third party to provide accommodation for persons including QR employees, and up to 30 have moved into accommodation units already on the land.
It is in these circumstances that Mac Services alleges that to the extent the land was ever used for the purpose of a ‘work camp’ that use was abandoned in the past, with the result that it could not be used again for that purpose without a new development permit from the local authority. Alternatively it is alleged that, if the use did not lapse, the second respondent has commenced development on the land from and after July 2007 for a purpose of providing temporary accommodation for at least 72 workers, and that is an MCU requiring local authority approval because it exceeds the level and scale of past usage.
Ultimately the applicant’s focus in respect of its allegation that use rights lapsed was upon the period in the late 1990s and I did not understand it to maintain its submission, or seek relief on the basis that there was no relevant use of the land around mid-1995. If that is not correct then it is to be observed that the evidence tells against a finding to that effect: the applicant did not lead any evidence about use prior to 1996, and there was unchallenged evidence that the site was being used for temporary accommodation in 1993 and 1996.
Questions of abandonment and the like were helpfully considered by Rackemann DCJ in Benter Pty Ltd v Brisbane City Council [2006] QPELR 451 and elsewhere in this Court in KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28. Those decisions show that the question as to whether or not an abandonment has occurred is one of fact to be determined having regard to all the circumstances of the case, considered from the stance of a reasonable person with knowledge of all of those circumstances; and also that, importantly, those circumstances will include the subjective intention of the relevant person (and that subjective intention must involve an intention not to abandon the use, and not merely to preserve existing rights if that is possible)[9].
[9] And see William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGERA 137; Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGERA 130; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGERA 344; [1989] 16 NSWLR 50; Herston Kelvin Grove Residents Action Group Inc v Brisbane City Council [2001] QPELR 382; and, Maroochy Shire Council v Barnes [2001] QPELR 475.
Also importantly, the mere physical cessation of a use does not necessarily connote its abandonment (and neither does a failure to use to capacity); and, the fact that a use is recurring but only happens when the actual use is required or necessary does not mean that during intervening periods, including periods of lapse, it has necessarily or automatically been abandoned[10].
[10]McNaught & Keating v Kingaroy Shire Council [1996] QPELR 215.
It has also been said that, in considering the nature of what is said to be the past and present use, what the Court is required to determine is the general genus which best describes the activities in question, including the purpose of the use in a town-planning sense. This proposition is unsurprising when it is remembered the whole question of use is ordinarily one that is to be considered in the context of particular impacts, in a neighbourhood or locale, and involves matters integral to planning law and principles.
It is common sense and, I think, inescapable that a ‘works camp’ is by definition something which will be characterised by inconsistent use patterns in terms of both time and scale. When a use is of that intermittent and irregular kind the question of intention during periods of quietude, so far as the ordinary genus of use is concerned, may loom large. That QR never lost or abandoned an intention to re-use this site from time to time, if and when that was necessary, is apparent from the evidence of its witnesses and strongly corroborated by a letter it sent to Council on 19 April 2002[11] in which the following appears:
… it is also envisaged that the site will only be used on an irregular basis, that is possibly several times in a year and/or possibly not for several years. As this is the nature of the use (itinerant accommodation) Council should never consider the use to be abandoned without consulting QR.
[11] Affidavit Scott Riley filed 20 November 2007, Exhibit SR6.
All of the evidence about the history of the use points to the conclusion that QR never abandoned rights to use this land for the purpose of providing temporary accommodation in the nature of a works camp, or ever manifested an intention to do so. This evidence includes in particular the evidence of the nature of the use itself – to provide intermittent accommodation for workers; the absence of any evidence suggesting a lapse or waning of QR’s apparent intention at all material times to continue the use; and, here, an obvious explanation for times when the use was suspended (even when that suspension involved things that, by themselves, might suggest abandonment – like the removal of old accommodation units). That plausible explanation is, as QR witnesses said, that the previous facilities on the land from the 1990s were, by the new millennium, no longer seen as adequate to meet the legitimate expectations of QR staff.
There is also other evidence which, in particular, reveals that the intention subsisted during the period 1998 – 2001: namely, the retention of the facilities on the land until late 2001; the fact that services remained connected to and in situ on the land after that time and were capped, but not removed; the continued payment of rates by QR; and, representations made by QR to Council in the latter part of the first half of 2002 which illustrated a continuing interest in an ongoing use.
In summary, the evidence points inexorably to the conclusion that the use was never abandoned, and did not lapse; and, hence, that what has occurred in the past year or so is not a‘re-establishment’ but, rather, a continuation.
The applicant’s next point concerns what is said to be a significant increase in numbers, so that the use presently proposed will eventually involve temporary accommodation for at least 72 workers and, hence, an increase in the intensity or scale of the use constituting an MCU. Although the evidence about this aspect of the matter is less than precise, I am satisfied that, on the balance of probabilities, QR has entered into an agreement with Morris Corporation which may ultimately involve accommodation for up to 72 persons. What the applicant’s case lacks, however, is evidence which establishes that any material change in intensity or scale has actually occurred. At the highest, evidence about the numbers involved in past use is imprecise – it appears to be approximately 40 to 50 – and any increase, if it did occur, may not actually involve numbers which would offend the provision in the sense that no material increase in intensity or scale actually will occur. Nor, the cases show, is it sufficient for the purposes of the provision that the new use is one which is within contemplation. It must have actually commenced[12]. The evidence does not go so far.
[12] McDonald v Douglas Shire Council [2003] 126 LGERA 96 at 100; Nimmo v Land One Solutions [2006] QPELR 645 at 650.
The parties’ submissions also involved a lively debate about the nature of the onus resting upon an applicant who seeks declaratory relief and consequential orders of the kind pursued here, and the IPA provisions touching those matters. Initially, some confusion arose because it was thought the applicant was seeking declaratory relief under s 4.1.21, but consequential relief under s 4.3.25. As the applicant’s submissions in reply made clear, however, it did not rely at all upon the latter and it looked instead to s 4.1.22 for the additional relief it pursued – a restraining order against QR.
Section 4.1.21 allows any person to bring proceedings in the Court for a declaration about (among other things) the lawfulness of land use or development. A declaration of the kind suggested in s 4.1.21 can be made even if no consequential relief is sought or the grounds for it are not made out;[13] and, the cases show, relief under those provisions is discretionary[14].
[13]Clayton v Miriam Vale Shire Council [2000] QPELR 320 per McLauchlan QC, DCJ at 324.
[14]Caloundra City Council v Taper Pty Ltd (supra) at 585-586.
Section 4.1.22 simply permits the Court to make an order about a declaration made under s 4.1.21. In contrast, s 4.3.25 is much more specific and allows the Court to make ‘enforcement orders’ if satisfied that an offence has been or will be committed unless a party is restrained.
In Caloundra City Council v Taper Pty Ltd [2003] QPELR 558, Robertson DCJ held (at 562) that relief sought under s 4.1.21 is ‘…classically civil in nature’ and did not appear to doubt his power to make consequential orders under s 4.1.22 (although, in that case, relief was also sought under s 4.3.22 and 4.3.25 and it is unclear, with respect, whether his Honour actually distinguished between them). It is not necessary to decide the point here, for reasons which follow.
That is because even if the findings of fact relevant to the declaratory relief sought by the applicant had been different I would still be disinclined, in the exercise of the discretion arising under s 4.1.21, to grant the relief it seeks. There are several elements in the case pointing to that conclusion. One is delay: it is tolerably clear the applicant knew that QR was operating the premises intermittently after 1995 but, apparently, did nothing. Secondly, on its own admission, the applicant has from time to time operated its own facility unlawfully and has also been a party to conducting the use on QR’s land (and received financial benefit) – again, without complaint. Finally, the relief sought is of a serious nature with serious consequences including potential hardship to QR and its employees, a consequence which is disturbing in the context of a dispute about a works camp in a remote, small country town where, by dint of the nature of intensive local development, residential facilities are plainly at something of a premium.
That conclusion is even more compelling when the order sought under s 4.1.22 is considered. The nominated remedy bears a close similarity to what would ordinarily be expected by way of relief under s 4.3.25 – i.e., something in the nature of an enforcement order. Again, in light of the conclusions I have reached about the absence of any basis for declaratory relief it is unnecessary to express a concluded view about this matter; but even if a contrary view had been reached, I would be disinclined to make an order of the kind sought, for several reasons.
While as earlier remarked it is unnecessary to decide the point there must nevertheless be some uncertainty whether such draconian relief is actually available under s 4.1.22. As the submissions for Council point out, if what is effectively a form of enforcement order can be made under that provision, what is the necessity for s 4.3.25[15] and what work is left for it to do? Importantly, of course, the latter only allows an enforcement order to be made when the Court has been persuaded that a ‘development offence’ has occurred – something which would ordinarily require the application of quite a high standard of proof, more stringent than that arising under s 4.1.21.
[15] See the decision of Britton SC DCJ in Patterson v Redland Shire Council [2003] QPELR 259 at [4].
It is material, too, that the local authority sees no need for steps of the kind the applicant pursues. The restraining order the applicant seeks – ‘… from carrying out development associated with a Works Camp on the subject site until such time as a development permit for a material change of use for that purpose has effect’ – involves something which initially lies within the purview of the local authority, whose position has been made very clear in the present proceedings, in circumstances where the proceedings themselves have necessitated a close examination of the issues by Council and, on any view, a decision on its part which is, now, made on a highly informed basis.
The parties found other sources for argument. QR’s predecessor Queensland Railways was dissolved by the Government Owned Corporations (Queensland Rail) Regulation 1995 which established QR as a ‘government owned corporation (GOC)’. Under s 176 of the Government Owned Corporations Act 1995, a GOC does not represent the State. The parties disputed the effect of IPA s 6.1.40 which provided government bodies with some immunity from planning schemes, but only until 31 March 2000 when that provision was repealed. Lengthy submissions by QR seeking to establish that in terms of the section it was an entity acting ‘for or on behalf of the State’ and therefore exempt are, I think, unsustainable in light of s 176(1), which unequivocally excludes GOCs from the benefit of the exemption.
QR’s submissions also purported to raise a shield against the relief sought in the application under s 245(2) of the Transport Infrastructure Act 1994. That section provides as follows:
If, immediately before the commencement, the previous rail corporation’s activities were lawfully carried out on the land, they may still be carried out on the land despite any change to the zoning.
It is said by QR that the subsection protects and continues to protect its activities on the land. The protection offered by the subsection is not dissimilar to that arising under s 1.4.2 of IPA which provides that if, immediately before the commencement of a planning instrument of the amendment of a planning instrument, the use of premises was lawful then neither the instrument nor the amendment can stop the use from continuing. The provision is, however, irrelevant in the present circumstances because there has not been any change to the zoning of the land.
Finally, it is necessary to say something particular about Lot 48. During the hearing the applicant claimed for the first time that the history and use of that parcel involved different issues from Lot 1 and, indeed, evidence from QR itself showed it had for some years been used, separately from the accommodation facilities on Lot 1, for the purposes of a recreation club. The evidence about its use in more recent times is otherwise imprecise but it appears that it has been used as a car park for vehicles associated with the accommodation on Lot 1, and that some of the buildings on that lot protrude to a small degree onto it. On any view any change of use concerning this small parcel – if that is, in truth, what has happened – is minimal, and does not warrant the severe relief the applicant seeks.
For these reasons the application is refused.
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