Morgan-Phoenix v Gold Coast City Council

[2007] QPEC 31

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Morgan-Phoenix v Gold Coast City Council [2007] QPEC 031
PARTIES:	THAYA MORGAN-PHOENIX
Applicant V
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S:	3107/2006
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING  COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	18 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Application is dismissed
CATCHWORDS:	PLANNING – PLANNING AND ENVIRONMENT – use of helicopter for personal transport – whether incidental to or necessarily associated with existing rural residential use – whether ‘environmentally relevant activity’
Environmental Protection Act 1994 Environment Protection Regulation 1998 Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990
Cases considered: Austexx Developments Pty Ltd v Logan City Council [2003] QPELR 635 Beaudesert Shire Council v Smith [1997] QPELR 358 Beaudesert Shire Council v Smith [1998] QPELR 368 Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31 Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1 Drouyn v Mattingly Pty Ltd [1982] Qd R 311 Educang Ltd v Brisbane City Council [2002] QSC 374 Fox v Brisbane City Council (2003) 127 LGERA 390 Gorrie v Mackay City Council [2003] QPELR 328 Herston Kelvin Grove Residents Action Group v Brisbane City Council [2001] QPELR 382 Koker v City of Port Lincoln (2006) 144 LGERA 418 Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38 Markev Pty Ltd v Sutherland Shire Council (2003) 126 LGERA 299 Maroochy Shire Council v Barnes [2001] QPELR 475 Maroochy Shire Council v Barnes [2001] QCA 273 Project Blue Sky v ABA (1998) 194 CLR 355 Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618 Walsh v Stay & Play Australia Ltd [1992] 1 Qd R 321 Walker v Noosa Shire Council [1985] 1 Qd R 387 Warringah Shire Council v Raffles [1979] 2 NSWLR 299 Woolworths Ltd v Townsville City Council [2005] QPELR 505
COUNSEL:	P Lyons QC and I Erskine for applicant D Gore QC and B Job for respondent
SOLICITORS:	WPS Law for applicant Corrs Chambers Westgarth for respondent

1. This case concerns the right of the occupier of rural residential premises to use a helicopter as a means of personal transport. The applicant’s husband, Mr Craig Gore, has intermittently flown a helicopter to and from their property at 28 Kriedeman Road, Upper Coomera, which is in a rural residential area and contains a large house on 3.71 hectares. The helicopter landed on and took off from a flat grassed area between the house and a nearby road[1].

   [1]            Identifiable in the top middle right of an aerial photo of the property, Ex 4

2. The use commenced in about November 2002. The helicopter is not stored at the property but at an airport, and a pilot employed by one of the group of companies with which Mr Gore is associated would sometimes bring it from that airport to the property, from whence Mr Gore would fly it to airports, project sites, and the like, and for recreational and social purposes.

3. In January 2005 Council notified the applicant that the use of the helicopter was impact assessable development under its 2003 planning scheme: a use that had not been assessed or approved. Flying stopped in April 2005 and, in May, the applicant lodged a development application which, if granted, would allow the use. In June 2006, Council issued a decision notice approving the use, subject to conditions including significant limits on the number of landings, etc. A further, negotiated decision notice was issued on 22 September 2006 under which Council, generally, approved four (4) landings per calendar month[2]. On 18 October 2006, the applicant instituted an appeal against that decision and, almost simultaneously, commenced the present proceedings by Originating Application.

   [2]           Once every three months up to six landings were permitted within a two day period, but the applicant had to letter-drop her neighbours a week before this period

4. The Application seeks declarations that the landing and launching of a helicopter on the Upper Coomera property, as part of the use of the helicopter as a means of transport for a resident of the property, is not assessable development requiring a development permit; and, does not constitute an environmentally relevant activity (ERA) making it a material change of use and triggering a need for local authority approval.

5. The applicant’s case is, in short, that the periodic transit of the helicopter is simply incidental to the residential use of the property; and, that this use was permitted development under Council’s previous, 1995 planning scheme and remained lawful when the new planning scheme was introduced in 2003.

6. Council’s position is that the helicopter use is a ‘development’ for the purposes of the Integrated Planning Act 1997 (IPA); was not an existing, lawful use; and, is assessable development under both of Council’s 1995 and 2003 planning schemes. Council also contends the use involves what is described under the Environmental Protection Act 1994 (EPA) as the operation of a facility for landing helicopters (and is, in fact, a ‘heliport’ as that term is defined in the Environment Protection Regulation 1998 (EPR)).

7. Under IPA, development which is assessable includes ‘… making a material change of use of premises’: s 1.3.2(e). Under s 1.3.5 ‘material change of use of premises’ includes, generally, the start of a new use of those premises. The word ‘use’ is defined in Schedule 10: ‘… in relation to premises, includes any use incidental to and necessarily associated with the use of the premises’. Although the term ‘new use’ is not defined, it would logically include any use which is not incidental to and necessarily associated with the existing use.

8. The phrase ‘incidental to and necessarily associated with’ has, generally speaking, been given a narrow interpretation: Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618, at 630; Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31, at 35-6; Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1, at 3; Fox v Brisbane City Council (2003) 127 LGERA 390 at [59]; and, Austexx Developments Pty Ltd v Logan City Council [2003] QPELR 635, at 639-40. As those cases show, it is necessary to establish some inevitable or unavoidable connection between the new or different activity, and the primary or original use, for the former to be categorised as ‘necessarily associated with’ the latter.

9. The applicant referred to a number of single judge decisions concerning helicopter use in association with a dwelling house and, in particular, that of Waddell J in Warringah Shire Council v Raffles [1979] 2 NSWLR 299, in which the following was said:

   The distinction between the ‘purpose’ for which land is said to be used for the application of planning scheme restricts and the nature of the use made of it, referred to above, is well established by decisions of the courts. In my opinion, it does not depend upon any question of whether the use made is novel or upon its town planning consequences. Where land is used for the purpose of the dwelling house, the use of some part of that land for some means of private transport seems to me necessarily to be use of the land for the purpose of the dwelling house. The very idea of a dwelling house presupposes that the occupants may have some means of private transport kept at hand to travel from the dwelling house to their places of work, shops, social occasions, and other places. In the present case, I do not see any reason to treat the use by Dr Raffles of a helicopter as being, for the purpose of the application of a planning scheme ordinance, different in principle to the use by him of a motor car to travel to his various places of practice and to social occasions. It should be regarded as a use of the land for the purpose of the dwelling house on the land.

10. A not dissimilar approach has been adopted on a number of occasions[3]. However, none of the cases involved the IPA provisions, and addressed different statutory requirements. Warringah Shire v Raffles turned upon the old distinction between ‘purpose’ and ‘use’, but what triggers a need for development approval under IPA is ‘development’[4], while what is protected is ‘use’[5]. It was also said in Raffles that the characterisation did not depend upon town planning consequences, but that is untrue under IPA[6]. The two decisions in one of the Queensland cases, Beaudesert v Smith, also involved the old distinctions between ‘use’ and ‘purpose’ and, again, quite different circumstances. The cases which directly addressed the question, set out in para [8], compel the conclusion that the use of a helicopter cannot fairly be categorised as necessarily, unavoidably, or inevitably, associated with or involved in the primary use, which is residential.

    [3]            Beaudesert Shire Council v Smith [1997] QPELR 358; Beaudesert Shire Council v Smith [1998] QPELR 368; Educang Ltd v Brisbane City Council [2002] QSC 374; Koker v City of Port Lincoln (2006) 144 LGERA 418; Walker v Noosa Shire Council [1985] 1 Qd R 387; Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38; Markev Pty Ltd v Sutherland Shire Council (2003) 126 LGERA 299; and, Drouyn v Mattingly Pty Ltd [1982] Qd R 311.

    [4]            S 3.1.4(1).

    [5]            Chapter 1, Part 4, s 1.4.2.

    [6]            See Herston Kelvin Grove Residents Action Group v Brisbane City Council [2001] QPELR 382, at 397; Maroochy Shire Council v Barnes [2001] QPELR 475, at 482 (and, on appeal, [2001] QCA 273); Gorrie v Mackay City Council [2003] QPELR 328, at 329; and, Fox v Brisbane City Council (2003) 127 LGERA 390.

11. Some protection was afforded to previous uses under IPA Chapter 1, Part 4 but its provisions were replaced in 2003 (ie, after the use of the dwelling house began in 1995, and the helicopter operations commenced in 2002). Under Part 1 Div 2, s 1.4.6, a lawful use was protected so long as there had been no material change of use after the commencement of the provision. No similar protection was afforded a use that was not incidental to and necessarily associated with the use in existence when IPA commenced on 30 March 1998, or any new use which began after that date. For reasons already explored, the use of the helicopter - a use not being incidental to and necessarily associated with the primary, residential use - involved the start of a new use and did not, therefore, attract any protection under this provision.

12. Council also contends that the helicopter operations involved a material change in the intensity or scale of the existing use. This conclusion would, again, take those operations outside any statutory protection under IPA[7]. It was submitted, and I accept as a matter of common knowledge, that helicopter use in association with residential premises is very rare, and different in character and impact from ordinary residential uses. Indeed, the question whether a helicopter is an ordinary residential use need only be asked, to be denied. I have the misfortune to disagree, with respect, with Waddell J’s conclusion that there is no difference, in principle, between helicopters and motor vehicles. One is a universal, popular mode of domestic transport and movement which is usually, or in the most part, quiet and unintrusive; the other is rare and, on any view, noisy and, in a domestic setting, potentially intrusive and disruptive. Adopting the contemporary, purposive approach to statutory interpretation[8], it is highly improbable the legislation was intended to encompass, and protect, it.

    [7]            S 1.3.5(a)(iii) – definition of ‘material change of use’

    [8] Acts Interpretation Act 1954, s 14A(1); Project Blue Sky v ABA (1998) 194 CLR 355, at 381-2.

13. The 1995 Planning Scheme is a transitional scheme under IPA. The term ‘assessable development’ had a meaning under IPA’s predecessor, the Local Government (Planning and Environment) Act 1990 (P&E Act), which attracted a necessity for either consent from a local authority, or rezoning.[9] The relevant property was included in the rural zone in the 1995 scheme and a ‘dwelling house’ was permitted. Development for any other purposes was categorised, however, as prohibited.

    [9]            IPA, s 6.1.1.

14. The 1995 Scheme contained no definitions relevant to helipads or heliports, whether private or commercial. However, s 3.4.3 provided, relevantly:

    Where any premises is used or intended for use for more than one purpose, it shall be deemed, for the purposes of this planning scheme, to be used or intended for use for each of those purposes, unless in the opinion of Council, one or more of those purposes are considered to be ancillary development.

15. The word ‘ancillary’ was defined in s 19.2 to mean ‘… associated with but incidental and subordinate to the predominant development’.

16. Because, however, the 1995 Scheme does not effectively define ‘use’, it will have the meaning assigned to it in s 1.4 of the P&E Act which brings in the ‘… incidental to and necessarily associated with’ restriction: Settlers Cove Development v Noosa Shire Council.[10]

    [10]           Supra, at 630-1.

17. For reasons already discussed, it would be illogical to construe the helicopter use as an ordinary part of the predominant development (the dwelling house use), or one ancillary to it. As the evidence showed, the primary connection between the helicopter flights and the land is the commercial and social activities of the applicant’s husband; and, again, the analogy put forward by the applicant – with a family car – strains credulity. The ‘best fit’ for the use is arguably as ‘development for (another) purpose’ or an innominate purpose[11]. It becomes, then, something which would have required a rezoning under the former legislation and, therefore, ‘assessable development’ under IPA.

    [11]           See, eg, Woolworths Ltd v Townsville City Council [2005] QPELR 505 at [51].

18. The later, 2003 planning scheme specifically defines a ‘helipad’ as ‘any premises used or intended for use for the landing, storage (temporary or otherwise) and/or take off of helicopters …’. In the rural domain, where this land is situated, a helipad is impact assessable and, under s 4.6.1 is categorised as ‘undesirable or inappropriate’. The definition fits the activities undertaken by the applicant’s husband on the property: the helicopter lands, and takes off from it and it is used for that purpose.

19. The Environmental Protection Regulation 1998 (EPR) has a different definition for a ‘heliport’ which involves the operation of ‘… a facility for landing helicopters (other than a facility forming part of an aerodrome used for general aviation …)’[12]. The word ‘facility’ generally means something which makes easy, or easier, the performance of an activity and does not require that there be some tangible, physical facility[13].

    [12]           EPR, Schedule 1, item 70

    [13]           Walsh v Stay & Play Australia Ltd [1992] 1 Qd R 321, at 328; and, see the definition of ‘facilities’ in the EPR.

20. It is also submitted by Council that the definition of ‘environmental harm’ in the EPA[14] is sufficiently wide to include even temporary adverse affects and that the use of a helicopter in a rural or rural-residential area has the potential to cause environmental harm, through noise.

    [14]           S 14.

21. Against that, the word ‘operating’ usually connotes controlling a facility and keeping[15] or maintaining[16] it in a functional state. The Explanatory Notes for the ERA description say that ‘… heliport refers to a facility for landing and take off operations. This item may also include a mown, grassed area maintained with a marking and a windsock’. Although the evidence shows the applicant’s land has nothing like markings, or a windsock or other navigational aids, the Note points to the conclusion that a facility used, as here, for landing and taking off on (as the evidence also shows) a regular basis might properly qualify as a ‘facility’, notwithstanding no other special amenities have been provided.

    [15]           Australian Oxford Dictionary, 2nd edition.

    [16]           Macquarie Dictionary, 3rd edition.

22. In the first Beaudesert v Smith decision, it was held that a private helipad was a ‘facility for the arrival and departure of helicopters’[17]. Again, the adoption of a purposive approach to the interpretation of the EPR points to the conclusion that an area like that revealed in the photographic evidence which is used as a facility for landing, and the launching of helicopters, falls within the definition.

    [17]           [1997] QPELR, at 360.

23. The activity is, then, an ERA and, therefore, a material change of use and an assessable development under IPA[18].

    [18]           IPA s 6.1.1, and Schedule 10.

24. For these reasons, the application will be dismissed.