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Savage v Cairns Regional Council

Savage v Cairns Regional Council

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Case Copied 22 April 2016 42 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Savage & Anor v Cairns Regional Council [2016] QCA 103

PARTIES:

WARREN GEORGE SAVAGE
(first applicant)
SAVAGE RESORTS PTY LTD ACN 150 197 256 AS TRUSTEE FOR THE ETERNITY TRUST UNDER INSTRUMENT 714445096
(second applicant)
v
CAIRNS REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 9279 of 2015
P & E Appeal No 54 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Cairns – [2015] QPEC 37

DELIVERED ON:

22 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1. The application for leave to appeal is refused.

2. The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:
ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – OTHER MATTERS – where the first applicant is the caretaker of a block of 39 strata title units – where the first applicant owns the second applicant company, which holds the management rights, and is licensed to conduct a letting business for the units – where the units have been used as predominantly holiday accommodation since they were constructed in 1995 – where in 2014 at least one of the units was used as a permanent residence, leading to the respondent issuing notices to compel the use of the units as holiday accommodation only – where 24 of the unit owners applied to the respondent in 2014 for a material change of use from “Holiday Accommodation” to “Holiday Accommodation/Multiple Dwelling” – where the change of use was approved – where the applicants challenged the approvals in the Planning and Environment Court on the bases that i. the respondent had unlawfully approved the applications for material use, ii. the applications were made in a piecemeal way in the sense described in Pioneer Concrete v Brisbane City Council, iii. the applications were not properly made within the meaning of s 261(1)(a)(ii) of the Sustainable Planning Act 2009 (Qld), and iv. there was modification by the respondent of the original approval given in 1994, limiting the use of the units to short term accommodation for tourists and travellers – where the learned primary judge dismissed the application – where the applicants contend that the primary judge erred in law and failed to give adequate reasons – whether the primary judge erred

Sustainable Planning Act 2009 (Qld), s 260, s 261(1)(a)(ii), s 263(1)(a), s 498(1)(a), s 498(2)

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, cited
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639; (1983) 50 LGRA 309, cited
Bartlett v Brisbane City Council [2004] 1 Qd R 610; [2003] QCA 494, cited
Drew v Makita (Australia)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 103
Decision Date: 22 April 2016

CaseChat Overview and Summary

In Savage v Cairns Regional Council, the applicants, caretakers and owners of strata title units within the Il Centro complex in Cairns, challenged the council's approval of a change in the use of the units from holiday accommodation to holiday accommodation/multiple dwelling. The applicants argued that the council had unlawfully approved the applications for material use, that the applications were made in a piecemeal way, that they were not properly made within the meaning of the Sustainable Planning Act 2009 (Qld), and that the council had modified the original approval given in 1994. The primary judge dismissed the application, and the applicants sought leave to appeal, arguing that the primary judge had erred in law and failed to give adequate reasons.

The legal issues the court was required to decide related to the effect of the original approval given in 1994 and the validity of the 2015 approvals. The applicants argued that the use of the units was limited to holiday makers, tourists, and travellers, while the council had approved a change in use to allow for longer-term accommodation. The court considered the arguments as to the original approval and the 2015 approvals. The court concluded that the 2015 approvals were effective, but in case that was incorrect, it considered the arguments as to the original approval.

The court found that the applicants had failed to demonstrate any error of law that would warrant the grant of leave to appeal. The court concluded that the primary judge had not erred in law and had given adequate reasons for his decision. The application for leave to appeal was refused, and the applicants were ordered to pay the respondent's costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 9 fails.Conclusion and orders For the reasons given above, no error of law has been demonstrated that would warrant the grant of leave to appeal. I would propose the following orders:1.The application for leave to appeal is refused.2.The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis. PHILIP McMURDO JA: The applicants sought declaratory and injunctive relief in the Planning and Environment Court. Their case was dismissed in its entirety.[57] They apply for leave to appeal, arguing that the primary judge made several legal errors.[58] The court has heard full argument on the merits of the proposed appeal. For the reasons that follow the application for leave to appeal should be refused.[57]Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPEC 37.[58]Leave being required and an appeal being limited to errors of law: s 498 of the Sustainable Planning Act 2009 (Qld). The issues relate to the use which may be made of the units within the “Il Centro” complex in central Cairns. The council’s approval for its erection and use was given by a permit issued on 8 February 1994, which I will call the original approval. One of the issues is the effect of that approval. The applicants say that the use of the units, according to the original approval, was only for holiday makers, tourists and travellers. For many years the council seemed to agree with that view and this litigation has its genesis in demands by the council, against some unit owners, that their units not be used for accommodation of a different kind, such as a permanent or long-term residence. The ultimate response of many of those owners was to seek another development approval. Seven owners made an application in June 2014 and another 17 made a relevantly identical application in December 2014. The evident intent of the applicants was to obtain a development approval which would not limit the use of their units to tourist and travellers but would permit a use also for longer term accommodation. The council issued the approvals as sought. I will refer to these as the 2015 approvals. In the proceeding in the Planning and Environment Court, the applicants joined the 24 owners. However they took no active part in the proceeding and nor were they represented in this court. Some of the declaratory relief which was and is sought by the applicants concerns the effect of the original approval. But if the applicants’ challenges to the effect of the 2015 approvals are not to succeed, as they did not before the primary judge, that relief would seem to have no utility: the permitted use or uses of the 24 units would be according to the 2015 approvals. I have concluded that the 2015 approvals are effective. But in case that is incorrect, I have considered the arguments as to the original approval and it is convenient to go to them first.The original approval Two declarations are sought by the proposed appeal. They are in identical terms and are distinguished only according to the identity of the unit owners. In effect a declaration is sought that:“The use of each of [the 24 lots] within Il Centro that was approved under Town Planning Consent Permit 3902/93 issued by the Cairns City Council on 8 February 1994…was for ‘accommodation units’ - holiday apartments, short term accommodation for tourists and travellers.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Savage & Anor v Cairns Regional Council [2016] QCA 103
PARTIES:	WARREN GEORGE SAVAGE (first applicant) SAVAGE RESORTS PTY LTD ACN 150 197 256 AS TRUSTEE FOR THE ETERNITY TRUST UNDER INSTRUMENT 714445096 (second applicant) v CAIRNS REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 9279 of 2015 P & E Appeal No 54 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	Planning and Environment Court at Cairns – [2015] QPEC 37
DELIVERED ON:	22 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2016
JUDGES:	Fraser and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is refused. 2. The first and second applicants pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – OTHER MATTERS – where the first applicant is the caretaker of a block of 39 strata title units – where the first applicant owns the second applicant company, which holds the management rights, and is licensed to conduct a letting business for the units – where the units have been used as predominantly holiday accommodation since they were constructed in 1995 – where in 2014 at least one of the units was used as a permanent residence, leading to the respondent issuing notices to compel the use of the units as holiday accommodation only – where 24 of the unit owners applied to the respondent in 2014 for a material change of use from “Holiday Accommodation” to “Holiday Accommodation/Multiple Dwelling” – where the change of use was approved – where the applicants challenged the approvals in the Planning and Environment Court on the bases that i. the respondent had unlawfully approved the applications for material use, ii. the applications were made in a piecemeal way in the sense described in Pioneer Concrete v Brisbane City Council, iii. the applications were not properly made within the meaning of s 261(1)(a)(ii) of the Sustainable Planning Act 2009 (Qld), and iv. there was modification by the respondent of the original approval given in 1994, limiting the use of the units to short term accommodation for tourists and travellers – where the learned primary judge dismissed the application – where the applicants contend that the primary judge erred in law and failed to give adequate reasons – whether the primary judge erred Sustainable Planning Act 2009 (Qld), s 260, s 261(1)(a)(ii), s 263(1)(a), s 498(1)(a), s 498(2) AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, cited Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639; (1983) 50 LGRA 309, cited Bartlett v Brisbane City Council [2004] 1 Qd R 610; [2003] QCA 494, cited Drew v Makita (Australia)…