Court finds use of no-fee public park to accommodate passing RVs is unlawful

WHO SHOULD READ THIS

• Planners, Councils, land owners and occupiers.

THINGS YOU NEED TO KNOW

• For a secondary use to be ‘ancillary’, it needs to be subservient to the primary use and serve the purpose of the primary use.
• Section 163 of the Planning Act is not open to offences involving the carrying out of assessable development which occurred before 3 July 2017 (prior to the commencement of the Act).
• Councils are bound by planning laws like any other land owner or occupier in respect of development which occurs on land under its ownership or control.

WHAT YOU NEED TO DO

• For Councils – review the form and scale of overnight RV parking that is occurring and consider whether this is permitted by the planning controls applying to the relevant land.

On 15 November 2018, the Planning and Environment Court ruled that Rockhampton Regional Council’s use of a city park to accommodate passing caravans, campervans and recreational vehicles was unlawful, because it was not ancillary to the primary use of the park.

In so finding, the Court clarified the meaning of ‘use’ under the Planning Act 2016 (Qld) (PA) and the operation of the transitional provisions in that Act.

Background

Kershaw Gardens is a significant public parkland, with wetlands, play equipment and gardens located in the centre of Rockhampton. Since 2014, Kershaw Garden’s northern carpark has also been used as a Council sanctioned, no-fee overnight rest stop for self-contained caravans, campervans and recreational vehicles.

McCullough Robertson acted for the Caravan Parks Association of Queensland Limited (CPAQ), which is the peak body representing caravan park owners and operators in Queensland. On 11 December 2017, CPAQ commenced proceedings in the Planning and Environment Court (P&E Court), alleging that the use of Kershaw Gardens for recreational vehicle (RV) accommodation was unlawful under the PA.

CPAQ alleged that:

• using a part of Kershaw Gardens to allow overnight RV accommodation was a different use to the primary use of Kershaw Gardens, being for a park and recreational use; and
• that no development permit was ever in existence to authorise that use.

CPAQ alleged breaches of both section 163 (carrying out assessable development without an effective development permit) and 165 (unlawful use of premises) of the PA.

Council conceded that no development permit for the RV accommodation use was ever issued, but argued that the RV accommodation use was not a separate use to the general park and recreation use of Kershaw Gardens, because the RV accommodation was ‘ancillary’ to the park. An ‘ancillary’ use is a component of the definition of ‘use’ in the PA.

In his 27 page judgment, his Honour Judge Williamson QC identified the following five issues as key to resolving the case:

• What is an ancillary use?
• Is RV accommodation an ancillary use of Kershaw Gardens?
• Has section 163 of the PA been contravened?
• Has section 165 of the PA been contravened? and
• If either section 163 or 165 were contravened, what relief should be granted by the Court?^_[1]

Issues

Was the RV accommodation ancillary?

The definition of ‘use’ in Schedule 2 of the PA provides that ‘use, for premises, includes an ancillary use of the premises.’ Under the previous legislation_^[2] a secondary use had to be ‘incidental to, and necessarily associated with’ the primary use to be categorised as one use.

The new test, being ‘ancillary’ to the primary use, is a much lower threshold.  Unfortunately, despite the legislative change in definition being ‘an important shift in the law,’ ‘ancillary’ itself is not defined in the PA.
After considering the ordinary dictionary definition of ‘ancillary’, his Honour emphasised that the inclusion of ‘ancillary’ into the meaning of ‘use’ recognises that the same premises may be treated as a single planning unit with multiple purposes, but it must be only one dominant purpose with the other purposes being ancillary.

His Honour concluded that: ‘an ancillary use is, by definition, one that is subservient to the principal use.  The very nature of the subservient and dominant relationship requires the former to serve, or take its colour from the latter. This is not the case with the RV accommodation use.  It does not take its colour from the park.  Nor does it serve the park. There is no relationship of dominance and subservience.’

Simply put, the ancillary use must exist to assist or serve the primary use. The RV accommodation use, while providing an indirect contribution to the local economy, lacked a functional relationship to the park use. The RV accommodation was a standalone activity that happened to be in Kershaw Gardens, rather than a use that served the overall use of park recreation.

On this basis, the RV accommodation use was not ancillary to the primary use of Kershaw Gardens.

Was section 163 of the PA contravened?

After establishing that the RV accommodation use was not ancillary to the primary use of Kershaw Gardens, the Court had to consider whether a development offence had occurred, given that Council had carried out assessable development (a material change of use when the RV accommodation use began) without an effective development permit.

Section 163 of the PA provides that:
‘a person must not carry out assessable development, unless all necessary development permits are in effect for the development.’  

A material change of use is defined in the PA to be, relevantly, the ‘start of a new use of the premises.’  The start of the use of Kershaw Gardens for RV accommodation occurred in 2014, three years before the PA commenced. As set out in the Acts Interpretation Act 1954 (Qld), (and as a presumption of law), an act or omission can only be an offence if that act or omission is committed after the commencement of the law which makes the act or omission illegal.

CPAQ was not able to overcome the presumption against retrospectivity. Therefore an offence under section 163 of the PA was not successfully established by CPAQ, because the conduct constituting the alleged offence occurred before the commencement of the section. Curiously, carrying out assessable development without the necessary permits was an offence at the time under the repealed Sustainable Planning Act 2009 (Qld), but the transitional provisions in the PA did not effectively carry across the offence to the PA.

Was section 165 of the PA contravened?

Section 165 of the PA prohibits the unlawful use of premises. Retrospectivity it did not turn out to be a problem for CPAQ in relation to section 165 of the PA because the unlawful use of premises is a continuing offence – it happens every day the premises are illegally used.

To ascertain whether an offence under section 165 of the PA had occurred (and was occurring), the Court undertook a historical review of the use of Kershaw Gardens and confirmed that the continued use was unlawful under the relevant planning schemes and based on the evidence of the experts. Accordingly, an offence under section 165 of the PA had occurred and was occurring.

The Court ordered Council to cease the use of Kershaw Gardens for RV accommodation by 15 February 2019.

On 12 December 2018, the Court also ordered that Council pay the CPAQ’s costs of the matter, after concluding that CPAQ was substantially successful, and that: ‘The position adopted by council [not to cease the unlawful use] prior to, and during the proceeding, meant that CPAQ had no option but to commence this proceeding and prosecute it to achieve the result it has.  This has come at a cost that would not have been incurred had the council acted in accordance with the planning law it has a duty to uphold in its local government area.’ _^[3]

Final points

The following key points can be taken away from the judgment:

• For a use of premises to be ancillary, it must be subservient to the primary use of the premises and serve the purpose of the primary use;
• Section 163 of the PA is only available for offences involving the carrying out of assessable development committed after 3 July 2017; and
• Whilst created by Councils, planning schemes are public documents which have been held to reflect the public interest. Councils are bound by planning schemes and laws in respect of development which occurs on land under its ownership or control.

For further information on any of the issues raised in this alert please contact below Authors. 

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.