Townsville City Council v Body Corporate for Magnetic International Resort Hotel Community Title Scheme 22894

[2025] QPEC 5

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Townsville City Council v Body Corporate For Magnetic International Resort Hotel Community Title Scheme 22894 & Ors [2025] QPEC 5

PARTIES:

TOWNSVILLE CITY COUNCIL
(Applicant)

v

BODY CORPORATE FOR MAGNETIC INTERNATIONAL RESORT HOTEL COMMUNITY TITLE SCHEME 22894
(First Respondent)

and

ROBERT SHANE LUCAS AND MICHELLE EILEEN FISHER LUCAS
(Second Respondent and Others)

FILE NO/S:

136 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Townsville

DELIVERED ON:

20 March 2025 (ex tempore)

DELIVERED AT:

Townsville

HEARING DATE:

20 March 2025

JUDGE:

Everson DCJ

ORDER:

Order as per draft.  

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – INTERPRETATION – where the local government approved the development of a “Tourist Holiday Resort” – whether permanent or long-term accommodation is a lawful use.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DISCRETION – where the local government previously represented permanent or long-term accommodation is a lawful use and has reached a compromise with all but one respondent permitting existing residents to continue such use – whether the Court ought to give effect to the compromise.  

LEGISLATION:

Planning and Environment Court Act 2016 s 11(1)(c)

Planning Act 2016 ss 165, 180

CASES:

Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

COUNSEL:

Mr Wylie for the Applicant

Mr Stork for the Seventy Eighth Respondent

SOLICITORS:

Townsville City Council Legal Services for the Applicant

HopgoodGanim Lawyers for the Seventy Eighth Respondent

Introduction

1. This is an originating application brought by the Townsville City Council (“the council”) seeking declarations that the use of lots in the Magnetic International Resort Hotel Community Title Scheme 22894 (“the resort”) for permanent or long-term accommodation is not a lawful use. The declarations are sought pursuant to s 11(1)(c) of the Planning and Environment Court Act 2016 (“PECA”), which states that any person may start a declaratory proceeding in this court about “the lawfulness of land use or development under the Planning Act.” It is uncontentious that the jurisdiction of the court is enlivened.

1. Thereafter, enforcement orders are also sought pursuant to s 180 of the Planning Act 2016 (“PA”) to restrain the alleged unlawful use of the resort. The council submits that s 165 of the PA provides that a development offence is committed in circumstances where a person uses premises otherwise than for a lawful use and that s 180 states that an enforcement order is an order which requires a person to, inter alia, refrain from committing a development offence. The relief sought in the originating application pursuant to the PA is therefore a logical and orthodox extension of the declarations that are sought pursuant to the PECA.

2. The hearing of the originating application is complicated by the fact that all the active respondents except for the 78^th respondent, Mr Fishburn, agreed to a compromise and the terms of a final order.  Until he appointed legal representatives within a week of the final hearing, Mr Fishburn opposed both the declarations and the enforcement orders.  Now he is content with a slightly modified order which offers enhanced protection of the current use of his unit at the resort in the event of favourable changes to planning controls in the future.  The extent of the compromise is further clouded by the position of the 12^th respondent, Ms Mills, who has appeared today and argued against the making of any declarations or enforcement orders.  In her affidavit filed on 30 October 2024, she asserts that she is “motivated to pursue the successful continuation of long-term letting as a permissible use for [her] unit” (at paragraph 7). 

3. In the circumstances it is clear that there remains a need to make declarations as to the lawfulness or otherwise of the use of the lots in the resort for permanent or long-term accommodation to quell any remaining controversy in this regard.

   The Resort

4. On 13 November 1975, the council approved a “Tourist Holiday Resort” on lot 1 on RP22964 at Mandalay Avenue, Nelly Bay.  The use was an undefined use and the two pages of the development permit did not clarify precisely what the use entailed.  Although subsequent development permits approved extensions to the resort, they did not clarify the extent of the approved use rights.  Further, there is no basis for contending that the approval of a manager’s residence and 34 additional units on 13 November 1985 changed the approved use.  A rezoning of the land on which the resort is located from the Residential A Zone to the Tourist Facilities Zone which was gazetted on 9 October 1986 is of no consequence in terms of the extent of the approved use rights.  None of the planning schemes which have applied to the site of the resort from 1975 until the present day have conferred a right to use accommodation units at the resort for permanent or long-term accommodation.  On 10 January 1996, the council approved a group title subdivision of the resort but this was conditioned that the premises shall be operated in accordance with the existing planning approvals.

5. The resort currently comprises 98 units, of which two are self-contained to be used for permanent manager accommodation.  These are not the subject of the relief currently sought by the council in the originating application.  There are 96 units designed to be used for short-term accommodation which are the subject of the relief sought.  They have a gross floor area of either 30m² or 50m², a kitchenette comprising a fridge, microwave oven, toaster, kettle and a sink, and a small bathroom.  There is a small patio outside each unit.  The units are not separately metered for water and electricity.  There are no storage spaces, no means to cook food, and no laundry facilities within each unit.  The resort includes communal laundry facilities, a restaurant and a bar, a swimming pool, a tennis court, a gymnasium and a playground.  It also includes a reception space and function and conference rooms.  It is managed by a company which employs 12 full-time equivalent staff.

6. The council bears the onus of establishing the unlawful use of the resort on the higher Briginshaw standard and the relevant principles of statutory construction apply to development approvals as they do when interpreting planning schemes (Cordwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 51 at [12]). As a “Tourist Holiday Resort” is not and never has been a defined term pursuant to the council’s planning regime, it is necessary to look at the meaning of its constituent parts. According to the Macquarie Dictionary Online, a Tourist is “someone who tours, especially for pleasure”. Holiday means, inter alia, “a vacation”, and Resort includes “a large hotel with special facilities offered”.

7. When the meaning of these terms is considered in the context of the small size and limited facilities offered by the units, coupled with the presence of the amenities offered beyond the units themselves, I am satisfied that the use of the units for permanent or long-term accommodation is not a lawful use.

   Discretion

8. I accept evidence before me that limited storage available within the units has resulted in long-term and permanent residents storing belongings on the patios which is not appropriate to achieve the desired amenity of a resort.  I also accept evidence that the absence of laundry facilities in the units has led to the utilisation of common property to dry the washing of long-term or permanent residents, with similar adverse amenity outcomes.  I do not accept that congregating on patios or playing guitars and the like are features of long-term residents as opposed to short-term holiday activity, however. 

9. Regrettably, over the years the council has made a number of representations that long-term or permanent occupation of units at the resort is lawful.  It has also collected rates on this basis.  The affidavit of Mr Fishburn filed on 17 March 2025 exhibits correspondence from council employees stating that permanent or long-term occupation of the residential units at the resort is lawful.  In a letter to a firm of solicitors dated 29 September 2003, the Director of Planning and Development responds to a query in the following terms:

   In reply I wish to advise that Council has no objections to the occupation of the resort unit on a permanent basis subject to the units continuing to be used and functioning as part of the subject Resort Hotel.

   There is also a bizarre response to an inquiry from another firm of solicitors in a letter from the Executive Manager, Development Assessment dated 17 July 2009 that long-term letting is a permissible use, but that rooms must not be self-contained and therefore the units are “not permitted to have any laundry facilities of any description associated with individual units”.  After Mr Fishburn sought clarification of “the long-term letting rights of the units”, he received an email from a planning officer on 14 June 2019 that “long-term letting of the rooms is permissible under the relevant planning approvals for the site, to the extent the rooms are not self-contained”.

10. The discretionary nature of the relief sought in this proceeding is well established.  A number of guidelines applicable to the exercise of the court’s discretion in a case such as this are set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339–341. It is broad. Relevantly, it concerns the enforcement of a public duty in circumstances where there is a legislative purpose in upholding “the integrated and co-ordinated nature of planning law”, and “a court may be less likely to deny equitable relief than it would in litigation between private citizens”.

11. The council submits that the units are unsuitable for permanent or long-term accommodation given their size and characteristics.  Further, it is submitted the use of them in this way adversely impacts upon the operation of the resort.  The breaches of the conditions of approval are not merely technical and the unlawful use of the units does not provide a benefit to the community according to the council.  Conversely, Ms Mills submits that the council’s knowledge of the continued long-term occupation of the units, which in the correspondence before me dates back to at least 2003, its failure to do anything about it, and the adoption of a position in correspondence which is supportive of it, together with the fact that only one lot owner has filed evidence in support of the council’s position, are such that it is not appropriate to make any enforcement orders.

12. In my view the compromise reached between the council and all the other respondents (with the exception of Mr Fishburn) will result in an outcome which appropriately protects the interests of people who have either entered into tenancy agreements or purchased units and decided to reside in them on a long-term or permanent basis.  This is consistent with previous representations made by council officers that this was lawful, whereas I have found that it was not.  Notably, the order agreed exempts from the prohibition of the units being used for permanent or long-term accommodation, those units subject to a lease for up to 12 months.  It also exempts those units owned by respondents who personally reside in them, for as long as they continue to do so.  Amendments to this order have been negotiated between the council and Mr Fishburn which extend the exemption to cover circumstances where changes to the planning regime in the future, make the residential uses of the units which are the subject of this proceeding, lawful.  I am satisfied that the changes negotiated by Mr Fishburn place each of the respondents in a better position than they were pursuant to the terms of the order they originally negotiated with the council.

13. Accordingly, I am of the view that the order negotiated between the council and Mr Fishburn adequately protects the interests of all the respondents and that the making of such an order is appropriate in the exercise of my discretion.

14. I therefore make an order in the terms of the draft prepared by the council.