(Morzone QC DCJ - 6 August 2015)
Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council  QPEC 37
Planning and environment – application – declaratory and consequential relief pursuant to s 456 Sustainable Planning Act 2009 (Qld) – characterisation of use approved by the original development approval and whether modified – whether applications for a material change of use to “Multiple Dwelling/Holiday Accommodation” code assessable or impact assessable – whether applications properly made in the absence of body corporate consent – whether applications properly assessed.
Facts: This was an application about the lawfulness of the use of 24 of the total 39 units in a strata titled unit complex in Cairns.
The applicants disputed two decisions made by the Cairns Regional Council to grant development approvals in favour of unit owners for a material change of use of their 24 units to “Holiday Accommodation” and “Multiple Dwellings”. The applications were the subject of code assessment.
The unit block contained 38 one bedroom units and one two bedroom unit. The original development permit was issued on 8 February 1994 under a 1971 planning scheme and granted approval for “Accommodation Units”. By a letter dated 22 April 1994, the developer’s architects wrote to the Council about a car parking condition imposed on the approval in the context of the proposed market of “Holiday Accommodation” as defined in the newly commenced planning scheme. The Council considered the correspondence and affirmed the minimum car parking requirement by letter dated 18 May 1994.
The applicant owned the two bedroom unit in the complex and was the director of the second applicant and was licensed to conduct a letting business in relation to the unit block.
The one bedroom units had been predominantly used for holiday accommodation, whether as part of the managed letting pool or otherwise.
The questions for determination for the court were:
- What was the use approved by the original approval?
- Were the two material change of use applications for “Multiple Dwelling / Holiday Accommodation” code assessable or impact assessable?
- Was the consent of the body corporate required for the applications?
- Were the applications properly assessed and decided?
The applicants asserted that the use rights granted under the 1994 consent permit for “accommodation units” were modified by the letter dated 22 April 1994 to “holiday apartments” to be used for short term accommodation by tourists and travellers.
Council said that the approved use was not so modified, limited or confined in any way to short term holiday accommodation.
In relation to the development applications, the applicants argued that the description of the proposed use as “Multiple Dwellings and Holiday Units” was an undefined use which was impact assessable.
Decision: The Court held:
- The rights to use land deriving from a development approval are to be determined from the terms of the approval itself, construed in context but having regard to its enduring function, which may include expressly or by necessary implication, other material.
- The subjective intention of the Council or developer was irrelevant. It was irrelevant that the Council officers issued show cause notices based on a characterisation of the use. Similarly, nothing turned on the unit owner’s subjective characterisation of “holiday accommodation” as the pre-existing use in their recent development applications.
- Any limitations or restrictions should appear plainly in the approval itself, and an overly technical approach was not called for, unlike construing legislation.
- Extrinsic material may be used in construing an approval in limited circumstances, for example, to understand context, resolve ambiguity, construe technical terms, and identify the particular purpose to meet particular site characteristics and impacts. If the approval is ambiguous it should be construed in a manner which places the least burden on the landowner.
- The original approval did not discriminate between the one and two-bedroom units. It made no distinction between permanent residential accommodation and short term holiday accommodation. It did not restrict the mode of accommodation to short term holiday accommodation. Therefore, the original approval was for “Accommodation Units (High Density)” as defined in the 1971 planning scheme, which included both permanent and holiday accommodation.
- The architect’s letter did not seek any variation or modification of the condition either in form or substance. The architects merely sought to rationalise the car park calculation to justify the already conditioned minimum of 39 spaces. Their reliance on the virtues of holiday style accommodation, rather than permanent living, was of no consequence because the promoted holiday use fell within the approved use of “accommodation units” in any event.
- It was trite law that two uses may be carried out upon the same premises and that the owners may exercise those rights at the same time or not at all.
- The material change of use applications were for two distinct uses, being “Multiple Dwelling” and “Holiday Accommodation”. Both of those uses were code assessable.
- The consent of the Il Centro body corporate was only required if the proposal involved the use of the common property for particular purposes other than the ordinary right of access to and from the lots. The use of the common property for its established function of providing access did not require its inclusion as part of the land.
- The proposals in the applications only involved the use of common property for access purposes and therefore the consent of the Body Corporate as owner of the common property was not required.