Bucknell v TCC

DISTRICT COURT OF QUEENSLAND

[1]   On the 17th of May 2017, Peter Adrian Wentworth Bucknell and Frances

O’Callaghan, herein after referred to as the Applicants, filed an originating

application, naming the Townsville City Council, herein after referred to as the First Respondent, and Ace Aviation and Engineering Pty Ltd, ACN 113 025 264, herein after referred to as the Second Respondent, as the First and Second Respondents. Therein, they sought orders in these terms;

1. A declaration pursuant to section 456 of the Sustainable Planning

Act 2009 (The SPA) that the Second Respondent’s use of the land,

formally described as Lot 601 on E124 123 (The Land) for the purpose of air services and short term accommodation (as defined in

the First Respondent’s planning scheme, Townsville City Plan 2014)

are uses for which no effective development permit has been issued.

2. A declaration pursuant to section 456 of the SPA, that the Second

Respondent’s use of the land for the purpose of “Outdoor

Entertainment” (as defined in paragraph 8(c) of the grounds) is a use

for which no effective development permit has been issued.

3. An interim enforcement order, pursuant to section 603 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out on the land, air services

and short term accommodation (as defined in the First Respondent’s

planning scheme, Townsville City Plan 2014) save where that use is authorised by an effective development permit.

4. An interim enforcement order to pursuant to section 603 of the SPA that the Second Respondent, by itself, its servants, or agents, cease

carrying out, or permitting to be carried out, on the land “Outdoor

Entertainment” (as defined in paragraph 8(c) of the grounds) save

where that use is authorised by an effective development permit.

5. Enforcement orders pursuant to section 604 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying out, or permitting to be carried out, on the land, air services and short

term accommodation, as defined in the First Respondent’s planning

scheme, Townsville City Plan, save where that use is authorised by an effective development permit.

6. Enforcement orders pursuant to section 604 of the SPA, that the Second Respondent, by itself, its servants, or agents, cease carrying

out, or permitting to be carried out, on the land, “Outdoor

Entertainment” (as defined in paragraph 8(c) of the grounds) save

where that use is authorised by an effective development permit.

7. Orders pursuant to section 505 of the Environmental Protection Act 1994 (the EPA) that the Second Respondent, by itself, its servants, or agents, cease carrying out activities on the land, insofar as those activities constitute and offence pursuant to the EPA;

8.  The Second Respondent pay the applicant’s costs of and incidental

to this proceeding.

9.  Such further declarations or orders as the Court may think appropriate.

2. On the first day of hearing, the 29th of April 2019, an amendment of the originating application was sought and not opposed. Those amendments, through relevant to any final orders that might be made, do not need to be detailed at length here, because as counsel for the Applicants explained:

   “The amendments essentially change slightly the characterisation of

   activities to certain defined uses under the Plan.”

3. Counsel went on to note that the original application previously described uses in an undefined way, but that the amendments now clarify them to be certain uses under the Plan.

[4]   At the commencement of the hearing, there was a document described as an amended statement of agreed facts, also handed up. That amended statement of agreed facts provides a convenient outline of the situation as it stands between the Applicants and the Second Respondent, as well as in respect of the involvement of the First Respondent. The amended statement of agreed facts is in these terms:

1.  The land, the subject of the originating application, is located on the corner of Jones Road and Rowe Road, Woodstock, in the State of Queensland, and is described as Lot 601 on E124 123 (the property).

2.  The Second Respondent, in its capacity as trustee, became the registered owner of the property on, or about, 18 March 2005, which it holds on trust for the McKenzie Family Trust.

3.  On or about 27 May 1996, Peter Adrian Wentworth Bucknell (of the Applicant) became the lessee of perpetual leases over adjoining land, being lot 25 on plan E124 347, Lot 27 on plan EP21, Lot 29 on EP72, and Lot 2 on EP248 (the adjoining land).

4.  On or about 15 February 2019, Peter Adrian Wentworth Bucknell (of the Applicant) became the registered owner of Lot 25 on Plan E124 347, Lot 27 on Plan EP21, and Lot 29 on Plan EP72.

5.  Peter Adrian Wentworth Bucknell (of the Applicant) is the current registered owner of Lot 25 on Plan E124 347, Lot 27 on Plan EP21, and Lot 29 on Plan EP72, and currently holds a perpetual lease over Lot 2 on EP248.

6.  Between July 1996 and September 1999, the Applicant relocated a Queenslander home to the adjoining property, and have lived on the adjoining property since that time.

7. Both the property and the adjoining property:

a.	Were formally located in the city of Thuringowa Local Government Area; and
b.	Are currently located in the Townsville City Council Local Government Area.

8.  From 22 October 1988, the town planning scheme applying to the property was the town planning scheme for the city of Thuringowa, gazetted on 22 October 1988 (the 1988 planning scheme).

9.  Pursuant to the 1988 planning scheme, the property was located in

the “Rural B Zone”.

10.          The 1988 planning scheme including a “division (ii) – Table

of Zones” which identified:

a.	Each zone within the Local Government Area as being

identified within “Column I”;

b.	Purposes with “Column III” were identified as “Purposes for

which buildings or other structures may be erected or used or

for which land may be used without consent of the Council”;

c.	Purposes within “Column IV” were identified as “Purposes

for which buildings or other structures may be erected or used or for which land may be used with the consent of the

Council”; and

d.	Purposes within “Column V” were identified as “Purposes

for which buildings or other structures may not be erected or

used for which land may not be used”.

11.          Under the 1988 planning scheme for the Rural B Zone;

a.	A number of discrete purposes are described as being

“Column III” items;

b.	A number of discrete purposes are described as being

“Column V” items; and

c.	Column IV is described as “Any purposes other than those referred to in Column III or Column IV”

12.          “Private airstrip” was defined in the 1988 planning scheme to

mean:

“Privately owned premises for the landing and departure of aircraft.

The term includes facilities provided at such premises for the housing, servicing and maintenance of aircraft and for passengers

and goods carried by the airstrip”.

13.          “Caravan park” was defined in the 1988 planning scheme to

mean:

“The parking of caravans and the pitching of tents; the term

includes, as an ancillary use, the erection and use of cabins and relocatable homes for providing overnight or holiday accommodation, where such cabins are provided within the caravan

park.”

14.          “Outdoor entertainment” was defined in the 1988 planning

scheme to mean:

“Any activity, purpose or pursuit which affords or is calculated to

afford spectator interest, amusement or entertainment and which is conducted predominantly in the open air. Without limiting the generality of the foregoing, the term includes but is not limited to those activities, purposes and pursuits set out in Appendix VII hereto but does not include a park as herein defined;

APPENDIX (VII)

AMUSEMENT PARK
CIRCUS
DOG RACING TRACK
DRIVE-IN THEATRE
EXHIBITION
GO KART TRACK
GYMKHANA
MOTORCYCLE TRACK
RACECOURSE
RODEO YARD
SHOOTING RANGE (CLAY PIGEON, RIFLE, PISTOL, ETC)
SHOWGROUND
SPEEDWAY
SPORTING ARENA
STADIUM
TRAIL BIKE COURSE
TRAVELLING CIRCUS

TROTTING TRACK

WILD LIFE OR FAUNA PARK”

15. Under the 1988 planning scene, for the Rural B Zone, the following uses were not a Column III or Column V purpose, and were therefore a Column IV purpose:

a.	“Private Air Strip”;
b.	“Caravan park”; and
c.	“Outdoor entertainment”.

16.          On or about 20 March 1991, an application for the consent of

the City of Thuringowa was lodged (‘the town planning consent

application’) seeking issue of a town planning consent permit for:

a.	Use of the property for the purposes of a “private airstrip”;

and

b.	Erection on the property of a “hanger” building.

17. The town planning consent application was lodged and decided pursuant to:

a. The Local Government Act 1936 (“LGA”); and

b. The 1988 Planning Scheme.

18. On or about 15 May 1991, the Thuringowa City Council approved the town planning consent application, subject to

conditions (“the 1991 approval”).

19. Other than the 1991 approval, no development approval exists for the carrying on of any use or the making of any material change of use in respect of the property.

20. Pursuant to the Townsville City Plan 2005, the property was located in the rural precinct.

21. Pursuant to the Townsville City Plan 2014, the property was located in the rural zone.

5. Reference is made in paragraphs 16 to 18 of the amended statement of agreed facts to the application for consent and to the approval of the town planning consent application, subject to conditions. The terms of that consent and the further conditions were as follows: 15th May, 1991.

   Applicant

   : Malboorindi Investments Pty Ltd. on Jones Road, Woodstock

   Land owned by: Malboorindi Investments Pty Ltd.

   Consent use: Private Airstrip – as shown on plan NO’D3013P1

   File no: C5/91

   Schedule of conditions

   1.   The use – Private Airstrip – shall be substantially

   commenced within a period of two (2) years from the date of the approval of the application by the council. Should the use not have been substantially commenced prior to the expiry of such period, or should the land ceased to be used for the purpose of the consent for any continuous period of twelve (12) months thereafter, the council may take action to revoke this consent.

   2.   Plans and specifications for all civil and site works to be constructed as part of this project shall be submitted to and approved by council prior to any development works being commenced.

   3.   The proposed private airstrip shall be constructed in accordance with the provisions of all relevant Acts, regulations, by-laws and adopted policies of the council and shall, in the opinion of the council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.

   4.    The owner of the subject land shall contribute on an annual basis towards the cost incurred by the council on the maintenance of Jones Road. Such contribution shall be payable to the council within thirty (30) days of the issue by council of an invoice for the payment of same and shall be calculated as follows.

   C$ = MC$ X PASTM

   JRTM

   Where “C$” = the contribution to be paid towards the cost

   incurred by council on the maintenance of Jones Road for the financial year concluding on 30/6/92 or for each subsequent financial year, as the case may be

   Where “MC$” = the cost incurred by council on the

   maintenance of the subject road to a reasonable formed and

   gravel sheeted surface for the subject financial year

   Where “PASTM” = the number of vehicle movements

   entering the subject land through the private access, as shown in the information supporting the subject application, as estimated by the City Engineer

   Where “JRTM” = the number of vehicle movements Jones

   Road, as estimated by the city engineer.

   The city engineer shall assess the respective numbers of vehicle movements annually by the use of traffic counters for a minimum period of four (4) weeks prior to the calculation of the contribution payable being invoiced to

   the owner. “PASTM” shall be based on vehicle movements

   at the boundary of the subject land and “JRTM” shall be

   based on vehicle movements at the Woodstock end of Jones
   Road.

   5.    The private airstrip shall be operated in accordance with the requirements of the Civil Aviation Authority.

   6.    The private airstrip shall be fenced to a standard sufficient in the opinion of the council to prevent the entry of livestock onto subject land, details of the proposed fencing to be approved by council before works are commenced.

   7.   All effluent shall be disposed of in the boundaries of the subject land, and adequate provisions shall be made to confine any overflow from the effluent disposal system within the subject land in accordance with standard practices, to the satisfaction of the Chief Environmental Health and Parks Officer. No effluent shall be permitted to be discharged into any water course, gulley or natural storm water drainage without the written approval of the Queensland Water Quality Control Council having first been obtained.

   8.    A supply of potable water shall be available at the private airstrip to the satisfaction of the council at all times.

   9.    Toilet facilities shall be provided on the subject land for the users of the private airstrip in accordance with the provisions of the standard sewerage by-laws, to the satisfaction of council.

   10. In the event that the applicant fails, in the opinion of the council, to comply with these conditions or the requirements of any other Act, regulation or by-law, the council may take action and conclude procedures, under the Local Government Act 1936-1991, for the revocation of the subject town planning consent and, in that event, no compensation shall be payable by the council to the application in respect of such revocation.

[6]   What is clear from that consent is that there was, at least from the 15th of May 1991, an approval pursuant to the Local Government Act 1936 and the Town Planning Scheme 1988 for the city of Thuringowa. What has occurred since that time however is that there have been numerous legislative changes, but all have included necessary transitional clauses to maintain the integrity of previous consents. An appreciation of those transitional provisions and their ultimate outcome is necessary in the determination of this matter.

7. Accordingly, the following should be noted:

   The Consent Application was for:

a)	use of the land as “Private Air Strip”; and
b)	erection of a proposed building, being a hanger with dimensions of 10m x 10m x 5m.

As at the date of lodgement of the Consent Application:

a)	the Local Government Act 1936 (LGA) was in effect.
b)	The town planning scheme for the city of Thuringowa (1988 Scheme) was in effect;
c)	the by-laws of the council of the city of Thuringowa were also in effect (Thuringowa by-laws) which, pursuant to section 33(2c)(c) of the LGA formed a part of the 1988 scheme and
d)	the land:

(i) Fell within the Thuringowa City Council Planning

Scheme area as that term was defined in part 1 of section 1 of
the 1988 scheme; and
(ii) fell within the rural B zone under the 1988 scheme.

It is relevant to note that under the 1988 scheme and the legislative provisions in effect at the time, a clear distinction was drawn between:

a)	The use of land for a purpose; and
b)	The erection or use of buildings or structures for a purpose.

Under the Thuringowa by-laws relevantly in effect:

a)	Chapter 23 section 2(1) provided;

“(1) Any person who desires to obtain the consent of the

council under the town planning scheme in force in the town planning scheme area, shall make application in the form required by the clerk, and shall lodge with such application an application fee of an amount determined in accordance with a scale or scales of fees determined by the council for

resolution…”

b)	Chapter 23 section 2(2) prescribed other requirements for applications for consent of council; and
c)	Chapter 23 sections 2(4) and (5)(a) relevantly provided:

“(4) Every application made pursuant to this by-law shall, if it

complies with the requirements of this chapter, be referred by the clerk of the council and the council shall, subject to the Act, decide the application.

(5) (a) Upon an application for consent, the council may,

subject to the Act –

(i)       give it’s consent; or

(ii)      refuse to give it’s consent; or

(iii) give it’s consent, subject to reasonable and relevant

conditions.”

Council was required to assess the Consent Application pursuant to:

a)	the matters prescribed in chapter 23, section 6(1) of the 1988 scheme; and
b)	section 33(18) of the LGA.

Subsequent to the lodgement of the consent application, but prior to its decision by council, on 15 April 1991, the LGA was repealed and replaced by the local government (Planning and Environment Act 1990 (LG(P&E)Act).

The LG(P&E)Act:

a)	controlled applications for town planning consent in ss 4.12, 4.13 and 4.14;
b)	provided at s 8.10:

“8.10 Savings and transitional

…

(3)(a) each town planning scheme (including the town plan for the city of Brisbane) approved by the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act, is to continue to have force and effect as if it was a planning scheme approved by the Governor in Council pursuant to this Act.

…

(7)(a) each approval, consent or permission (together with any conditions attaching there to) granted by a local authority or the Governor in Council prior to the commencement of this Act, and which is in force immediately prior to the commencement of this Act, is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, made pursuant to this Act.

…

(8)(a) an application of any kind to which this Act refers, and duly made to a local authority prior to the commencement of this Act, is to be dealt with as if this Act had not commenced.

(b) an application referred to in paragraph (a) and approved by a local authority or the Governor in Council, where the case may require, is to be taken, for the purpose of subsection (7)(a), to be an approval granted by a local authority or the Governor in Council, as the case may be, prior to the commencement of this Act and in force immediately prior to the commencement of this Act.

Accordingly, having regard to the transitional provisions described above, notwithstanding the repeal of the LGA:

a)	the 1988 scheme, including the Thuringowa by-laws, was taken to

be a “planning scheme” approved pursuant to the LG(P&E) Act; and

b)	the consent to application was to be assessed and decided as if the LGA had not been repealed.

On or about 17 July 1991, Thuringowa Council decided to approve the consent to

application, and grant consent for use of the land for a “private airstrip” and erection

of a “hangar”, subject to conditions (consent permit).

Having regard to section 8.10 (8)(b) of the LG(P&A) Act, the consent permit was

taken to be a “town planning consent permit” given pursuant to section 4.13 (12)

the LG(P&E) Act. In that context, section 4.13 (16) relevantly provided:

“(16) where a permit is issued pursuant to subsection (12), the right

to use premises and to erect, re-erect or modify any buildings or other structures for the purposes specified in the permit is, subject to conditions contained in the permit or any modifications made there to pursuant to section 4.15, to attach to the land and be binding on

successes in title and continues in force until –

(a) it is revoked pursuant to section 4.14;
(b) it lapses in accordance with subsection (18);

(c) the use ceases to be a lawful use pursuant to section 3.1; or

(d) it is superseded by the commencement of another use.”

[8]   The consent permit included a number of conditions including specifically condition 3 in these terms:

The proposed Private Air strip shall be constructed in accordance with the provisions of all relevant Acts, regulations, by-laws and adopted policies of the council and shall, in the opinion of the council, substantially comply with the proposal as detailed in the information lodged in support of the subject application.

In the context of condition 3, information lodged in support of the subject application included a site plan, which included an indicative layout for the runway and access track, and reference to two structures, described as:

a)	proposed 10 metre by 10 metre hangar building; and
b)	proposed male and female septic toilets.

The two structures referred to above were constructed in a form consistent with the
Site Plan.

Accordingly, in circumstances where condition 3 of the Consent Permit was complied with, any owner or occupier of the land was free to use the land for purposes consistent

with “private air strip”, subject to compliance with other conditions of the permit as

have previously been detailed.

On 30 March 1998, the LG(P&E) Act was repealed and replaced by the Integrated
Planning Act 1997 (IPA).

Within the IPA, transitional provision section 6.1.23 relevantly provided (examples removed):

“Continuing effects of approvals issued before commencement

6.1.23 (1) This section applies to –

…

(b) permits (also “continuing approvals”) issued under section 4.13 (12) of

the repealed Act including modifications of the permits under section 4.15 of the repealed Act, in force immediately before the commencement of this section; and

…

(2) despite the repeal of the repealed Act, each continuing approval and any conditions attaching to the continuing approval have effect as if the approval and the conditions were a preliminary approval or development

permit, as the case may be…

Development permits were a type of development approval and were duly defined.

Approvals under this act

3.1.5

…

(3)A “development permit” authorises assessable development to occur –

…

(a) to the extent stated in the permit; and

(b) subject to –

(i)         the conditions in the permit; and

(ii)        any preliminary approval relating to the development that the permit authorises, including any conditions in the preliminary approval.

Accordingly, as a consequence of section 6.1.23 (1)(2) of the IPA, from 30 March

1998 the consent permit was taken to be a development permit under the IPA.

On 18 December 2009, the IPA was repealed and replaced by the Sustainable Planning

Act 2009 (SPA).

Within the SPA, transitional provisions section 801 relevantly provided:

“801 continuing effect of development approvals

(1) A development approval under repealed IPA that is in force immediately before the commencement continues as a development approval under this Act.

(2) For this Act, a development approval continued in force under subsection (1) is taken to have had effect on the day it had effect

under repealed IPA.”

Accordingly, as a consequence of section 801 of the SPA, from 18 December 2009 the consent permit was taken to be a development permit under the SPA.

On 3 July 2017, the SPA was repealed and replaced by the Planning Act 2016

(Planning Act).

Within the Planning Act transitional provision section 286 relevantly provided:

“286 documents

(1) This section applies to a document under the old Act that is in effect when the old Act is repealed.

(2) Subject to this part, the document continues to have effect according to the terms and conditions of the document even if the terms and conditions could not be imposed under this Act.

(3) This Act applies to the documents as if the document had been made under this Act.

(4) To remove any doubt, it is declared that the document took effect or was made, given or received when the document took effect or was made, given or received under the old Act.

…

(7) In this section –

Document

(a)	Includes –

…

(iii) An approval (a development permit or preliminary approval, for example), including a deemed approval and a decision taken to have been made under the old Act, section

96(5);…”

Accordingly, as a consequence of section 286 of the Planning Act, the consent permit continues to have effect and is taken to be a development permit issued under the Planning Act.

9. There does not seem therefore to be any suggestion on the part of the applicant that this is not the case and that there is in existence a consent to use the private airstrip. What is clearly in dispute, however, is whether the onsite activities, the subject of the application, are activities being undertaken as authorised by the consent permit. The issues, at least from the perspective of the applicant, are detailed below.

[10] The central question as to whether a particular activity conducted on a property is an existing lawful use or involves the carrying on of assessable development without a permit are the following:

(a)	The extent of the lawful existing use rights in existence pursuant to the development approval granted by the former Thuringowa City Council on the 15th of May 1991:
(b)	Whether any lawful existing use rights arising from the carrying on of any exempt or self-assessable uses under each of the relevant planning schemes since the use started; and
(c)	Whether since the introduction of the concept of “a material change

of use” from the commencement of the Integrated Planning Act

1997, there has been a material change in the intensity and scale of the use such as to constitute a new development.

[11] Thereafter, the applicant details the nature of the approval given within the consent, specifically relying upon clause 3 of that consent, which refers to the requirement that the private airstrip shall:

Substantially comply with the proposal as detailed in the information lodged in support of the subject application.

The information lodged in support of the development application identified the applicant emphasises the following:

	one airstrip;
	one hangar (12 x 12 metres);
	one amenity block;
	one access track to the south;
	one tank and stand.

[12] In his report of the 27th of July 2018, Stephen Motti acknowledged that there was clear evidence of additional facilities built onsite to:

Accommodate the housing, servicing and maintenance of aircraft and for passengers and goods carried by the aircraft within the times of the defined use.

[13] Mr Motti also went on to note that building approvals had been sought in relation to some of those additional facilities and he identified a number of approvals that had previously been given, including approvals given on the 10th of December 1992, the 4th of May 1999, the 8th of November 2002 and the 11th of April 2011. Additionally, Mr Motti noted the existence of a number of buildings that clearly do not have current building approvals, which would be required to be obtained either for those additional structures or for modifications that had been made to any existing structures.

[14] What is abundantly clear is that there has been continued use of the private airstrip since the consent was given in 1991, and evidence that was given also would suggest that it was used in that capacity prior to any consent having actually been obtained. What is argued by the applicant is that the protections afforded by the transition provisions of the various Acts, as I have referred to them, provided for existing lawful use but did not extend to a material change of use of the premises, and what is apparent, says the applicant, is that there has been a material change of use of the premises from that which was sought and approved in 1991.

[15] The applicant further argues that whilst the original use was clearly protected, if there was a material change in the intensity or scale of the use, then there could be regulation of the use to the extent of the change. That was emphasised by counsel for the applicant in his final submissions, where Mr Morzone of counsel said the following:

MR MORZONE: Thank you, your Honour. Your Honour, the primary issue in this case seems to come from this concept that this use approval is unlimited. And with respect to my learned friends, that is a novel and extraordinary thing to say because the use is described in the approval very

clearly in a limited way. If it wasn’t intended to be limited, it would have been described simply as private airstrip, and it wasn’t. And that’s not

unsurprising because it is – it is and it was common practice to have uses

constrained by the way in which plans attached to the approval showed
them.

[16] The contrary argument that the approval contemplated variation in the level of use over time is encapsulated in the report of Mr Motti at point 3.01.1 through to 3.03.5. There Mr Motti says the following:

Air Services

The applicants seek a declaration that the second respondent’s use

of the land for air services is being carried on without an effective development permit because the current use of the land by the second respondent for air services exceeds the scale and intensity authorised by any existing lawful use rights and the second

respondent’s use constitutes a material increase in the scale and

intensity of the use authorised by the existing lawful use rights

because:

(a)	The development application makes reference to only one hangar;
(b)	Additional structures have been erected since the commencement of the use, with or without development approvals (and these structures are all maintained in the carrying out of the use);
(c)	There has been an increase in the number of take offs on the premises since the commencement of the use;
(d)	There has been an increase in the number of landings on the premises since the commencement of the use;
(e)	There has been an increase in the number of structures on the premises since the commencement of the use;
(f)	The second respondent’s current use of the premises now also

consists of the operation of a flight training school.

3.01.2 In my view, the approval contemplated variation in the level of use of the private airstrip over time.

3.01.3 I am of this view as the approval did not seek to specify the type, number or purpose of flights. In my experience, council typically impose conditions should they wish to expressly direct outcomes with respect to frequency, thresholds, hours of operation, etcetera. Such conditions were not imposed in this instance.

3.01.4 Condition 4 of the approval is also relevant in informing my view. It established a requirement that the periodic assessment of the number of vehicles using Jones Road in order to ensure contributions are commensurate to the level of activity being undertaken.

3.01.5 In my experience, the conditions such as condition 4 are used to accommodate change in the levels of use over time. The condition would be redundant had council otherwise expected further applications to be required for the private airstrip use.

3.01.6 In this regard, I note the city planner’s comment included in the

report to council under agenda item 7 of the 15th of May 1991.

(Attachment F, refer to page 61.)

…

The issue arises as to requirements for the maintenance and upgrading of Jones Road. The road is currently a good standard gravel road and as it is anticipated, the proposal will not create a significant increase in the level of traffic. Initially it may be considered adequate. The use has the potential to develop in the future and therefore may cause problems. Consideration is needed to be given to maintenance or contribution requirements in this regard.

…

3.01.7While in my view variation in the level of activity is accommodated by the approval, I note that does not mean it is unfettered. Operations are to be in accordance with the requirements of the Civil Aviation Authority (condition 5) and are to observe other relevant legislative requirements (condition 10).

Short-term accommodation

3.02.1The applicant seeks a declaration that the second respondent’s use

of the land for short-term accommodation is being carried on without an effective development permit because the second respondent does not have an existing right to lawfully use the land for short-term accommodation because:

(a)	Users of the airfield stay overnight on the airfield prior to early morning flights; and
(b)	The “American barn building” at the airfield is used by a person for

accommodation purposes;

(c)	The use of the land for the purposes identified in paragraphs 3.02.1(a) and 3.02.1(b) are not authorised by any existing lawful use right or affected development permit; and
(d)	The use of the land for the purposes identified in paragraphs 3.02.1(a) and 3.02.1(b) constitute a material increase in the scale and intensity of the use authorised by the existing lawful use right.
3.02.2	I have read the affidavit of Mr Robert McKenzie dated the 20th of July 2018 and note Mr McKenzie’s advice at paragraph 48 of this

affidavit that:

(a)	Users of the airfield sometimes pitch a tarp over the wing of the aircraft and camp at the airfield;
(b)	On a few occasions, pilots have brought a caravan onto the property and stayed in the caravan overnight or for the weekend;
(c)	When there was a flying instructor providing flying instructions from the property, the instructor would camp in an overnight caravan and on occasions pilots would camp at the site overnight during the week;
(d)	The second respondent has never charged a fee for allowing the users of the premises to camp or park their caravan on the site;
(e)	The American-style barn located on the property is not used for accommodation purposes.
3.02.3	In my view, allowing users of the airfield to infrequently camp at the airfield for a short period of time at no charge:
(a)	Does not amount to providing short-term accommodation as that term is defined in the first respondent planning scheme; or
(b)	Amount to a material increase in the intensity or scale of the use of the land being ancillary to the approved use.

Outdoor entertainment

3.03.1

The applicant seeks a declaration that the second respondent’s

use of the land for the purpose of publicly advertised fly-ins, entertainment, the sale of food and beverages, the use of showers and toilet facilities, and paid accommodation for caravans and campsites (outdoor entertainment) is a use for which no effective development permit has been issued and:

(a)	Is the start of a new use of the land;
(b)	Is a use not authorised by any existing lawful use rights;
(c)	Is a use that constitutes a material increase to the scale and intensity of the use authorised by the existing lawful use right;
(d)	Is a use that is not permitted as a right under the relevant planning instruments;
(e)	The outdoor entertainment use is not ancillary to any lawful use of the premises.
3.03.2	The applicant further maintains that the second respondent’s

use of the land for outdoor entertainment constitutes the making of

a material change of use and that the use constitutes:

(a)	A start of the new use of the land; and/or
(b)	A material increase in the intensity or scale of the use of the land.
3.03.3	I have read the affidavit of Mr Robert McKenzie dated 20 July 2018 and note that:

(a)	The second respondent has accommodated two fly-in events at the private airstrip in the 13 years that he has operated the airfield. Those events utilised the private airstrip over the Easter long

(weekend – sic) and brought together pilots and passengers of

private aircraft;

(b)	At the two Easter fly-ins accommodated by the second respondent, entertainment was provided for the airstrip users by way of a live band which operated from the main hangar between the hours of 7 pm and 10 pm on the Easter Saturday night;
(c)	Before both of the fly-in events the second respondent spoke with the Townsville City Council and was advised that he did not require any permit to provide the live band entertainment and also contacted the Stuart Police Station, who advised him that they had no requirements for the entertainment;
(d)	The only food sold at the fly-in events was frozen barbecue packs and eggs and bacon for breakfast, which were issued to patrons at cost price;
(e)	The patrons provided their own beverages and no beverages were sold at the event, other than soft drinks that were sold for a gold coin donation;
(f)	Campsites, swag sites and caravans were made available free of charge to the private airstrip users; and
(g)	The fly-in events were promoted to the owners of private aircraft around the North Queensland region and not to the general public.

3.03.4 In my view, it is common practice for sporting and community groups to hold events for the purpose of gathering and for fundraising. The two fly-ins that have been accommodated by the second respondent had been attended by owners and passengers of private aircraft only and have not been offered for public spectacle. Spectators are not invited to the fly-in events and they are not promoted or allowed to advertise outside of the fly-in community. Similarly, camping at the airfield is infrequent and only owners and passengers of private aircraft are permitted to camp at the site and camping is not offered to the general public.

3.03.5 In my opinion, these activities are within the bounds of the approved

land use, namely:

Privately-owned premises for the landing and departure of aircraft. The term includes facilities provided at such premises of the housing, servicing and maintenance of aircraft and for passengers or goods carried by aircraft using the airstrip.

[17] The two positions referred to herein reflect the two contrary views held with regard to the current use of the land and whether it falls within the contemplation of the current consent. The principles applying to the interpretation of such permission has been the subject of commentary. What seems clear is that there are three specifically established principles. They are:

(a)	The requirement to interpret permits on their face with limited regard being had to extrinsic materials;
(b)	The consequence of ambiguity in permits; and
(c)	The fact that interpretation of conditions in permits is a question of law.

[18] As to the first of those principles, the starting point in relation to any consideration of the scope of development that might be authorised by development permits is that they must be construed on their face and wherever possible without regard to extrinsic material. Counsel for the first respondent emphasised in their outline that such matters had been the subject of prior consideration by the Planning and Environment Court.

[19] Reference was made to Hawkins and Izzard v Permarig Pty Ltd v Brisbane City Council (No. 1) (2001) QPELR 414 where his Honour Judge Brabazon QC considered the role of extrinsic material in the interpretation of development approvals. There his Honour said:

“The principles about interpreting local authority approvals must be kept

in mind. As a general rule, development consents are public documents which operate for the benefit of successive owners of the land and they should be construed without reference to extrinsic evidence.

The basic principle is that reference may be properly made to those documents which are either actually incorporated in the approval or are incorporated by reference into it. Generally speaking, apart from such documents which are incorporated, it is not possible to go outside the approval document in considering its meaning. Even an application should not be referred to unless it has in whole or in part, expressly or by necessary

implication, been incorporated in that consent.”

[20] His Honour went on, however, in that judgment to note a little later as follows:

There is some room for extrinsic evidence, as the cases show. Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition. That would be particularly so where the purpose of the approval is evident. If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval.

[21] In considering those comments, Judge Rackemann in Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637 noted in paragraph 7 of that judgment the following:

Each approval must speak according to its written terms, construed in context, but having regard to its enduring function.

[22] Similarly, when considering the principles relevant to the construction of an approval, the thoughts of District Court Judge Wilson SC, as he then was, in Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPELR 334 are instructive. There his Honour relevantly observed as follows:

a.	Where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the landowner;
b.	If a condition is imposed which restricts an approval, it should be expressed fairly;
c.	In construing an approval, the search is not for what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended; each approval must speak according to its written terms construed in context but having regard to its enduring function;
d.	It has long been recognised that use rights are determined from the approval itself, which may include other material by express or necessary implication;
e.	The nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council;
f.	In construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary drafts-persons;
g.	Extrinsic evidence in the form of expert evidence may be admissible to explain technical terms. This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood; and
h.	Extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval. This may include identification of things like existing vegetation and specific features referred to by the conditions.

[23] It would seem clear, therefore, that the nature and scope of the use permitted by a development approval must be determined broadly. In the same vein, any ambiguity should be construed in favour of the permit holder, as was submitted on the part of the first respondent. Justice Connolly, with whom Justice of Appeal Matthews agreed, explained in Matijesevic v Logan City Council [1984] 1 Qd 599:

Planning decisions are apt to have considerable effects on the value of property and, in my judgment, it would accord with principle where planning approvals are ambiguous to construe them in a way which places the least burden on the landowner.

[24] Similarly, in Hawkins and Izzard (supra), Judge Brabazon QC opined:

In Queensland the Court of Appeal has held that because planning decisions are apt to have considerable effects on the value of property, it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the landowner at the time. Putting the matter another way, according to the usual principles of construction, the contra proferentum rule might be applied if there is an ambiguity.

Also, in construing the consent, those who are likely to read such a consent should be kept in mind. For example, in a simple case, it has been held

that a local authority’s documents should be read not with an excessive

regard to any technical words and phrases found in it, but as a communication between laymen; the authority on the one hand and the householder/ratepayer on the other.

[25] In other words, the principle is that ambiguous conditions should be read in favour of the person subject to the approval and that has certainly been confirmed.

[26] Thirdly, and it is significant in this matter, it is clear that the decision is one for the court and is not to be taken on some other basis, such as upon the acceptance of the evidence of one expert witness over another. Assistance might certainly be gathered from an expert, such as a town planner, as to the meaning of a technical term or phrase, but that does not extend to their assessment of the meaning or scope of an approval, though, again, assistance can be provided in that regard.

[27] Here the applicant says that the evidence establishes that activities go far beyond the scope of the original consent and that such activities continue to be carried on. These activities include the following:

(a)	The landing and departure of more than one aircraft;
(b)	The use of the five hangars for the housing of more than one aircraft,

including in:

(i)       The hangar approved in 1991 but extended in size; and

(ii)      Four additional hangars;

(c)	Housing, service and maintenance of more than one aircraft;

(d) An aircraft flying school or training facility conducted by an
independent flying instructor or instructors and students;

(e) Recreational flying events or fly-ins whereby people are invited or

permitted to fly into the property and additional aircraft are housed on the
property for a weekend or a number of days;

(f) Short-term accommodation with outdoor entertainment, including live entertainment, provision of barbecue facilities and packs, breakfasts and camping sites, use of shower and toilet facilities, and the provision of food and drinks;

(g)	Accommodation with guests being provided with:

(i) Overnight or short-term accommodation on the
property;

(ii)      Camping or caravan sites on the property;

(iii) Food and drinks, including barbecue packs and
breakfast;

(iv)     Shower and toilet facilities on the property;

(v)      Storage and refuelling of aircraft;

(h) Entertainment, including by way of live entertainment, provision of

barbecue facilities and packs, breakfasts and camping sites, use of shower
and toilet facilities, and the provision of food and drinks;

(i) Caravan and camping sites and facilities;

(j) Use of buildings or caravans or camping for overnight
accommodation;

(k) The erection and use of an additional number of structures erected on the property since the commencement of the use for aircraft services;

(l)	The hire of aircraft;
(m)	The sale of new and pre-loved aircraft or ultralights;
(n)	Private aircraft use in excess of daytime hours;
(o)	Performance of aerobatics.

[28] The applicant says that none of these activities are activities that were permitted pursuant to the original consent given and that the carrying on therefore of such activities constitutes the use of the property for purposes other than those for which permission has been granted. The use of the property for purposes not contemplated in the consent are said by the applicant to include very specifically the following:

(a)	Air services;
(b)	Short-term accommodation;
(c)	Outdoor sport and recreational activities;
(d)	Tourist attraction; and/or
(e)	A tourist park.

[29] Insofar as air services are concerned, the argument seems to be centred upon the terms of the consent given in 1991 and that what occurs at the private airstrip is greater in scale and intensity than what was approved originally. This greater scale or intensity is suggested to be exampled by the more significant numbers of landings and departures, the increase in the number of facilities for the housing, servicing and maintaining of aircraft, and the greater abundance of facilities available for passengers or goods, carried by aircraft into the airstrip.

[30] It is argued that what is now occurring is greater in scale and intensity than what was detailed in the information that was contained within the application for consent. What is therefore argued is that the greater scale or intensity constitutes a material change of use and that it is a fresh, assessable development.

[31] The other purposes, to which I have made reference and are detailed as (b) to (e) above, are said to be without a lawful right of use and were each of themselves new and distinct from what was contemplated in the original consent that was given.

[32] The position of the second respondent is to say that considering particularly the decision in Serenity Lakes (supra), the approval in this case does not include any restrictions on the hours of operation or limits upon the scale of use available for the airstrip. They argue, therefore, that the applicants cannot read in restrictions that do not appear on the face of the approval, and insofar as the ancillary matters relating to the use of a private airfield is concerned, the proper approach is as detailed in the letter by the first respondent to the Queensland Ombudsman of the 11th of September 2000. There the council specifically says the following:

Following the receipt of a letter from Nehmer McKee and Partners and having noted the advice contained in the letter, Council considered the

“fly-ins” as an

ancillary use of the airstrip which was approved in 1991.

The reasons Council dismissed the events as an outdoor entertainment are as follows:

(1)	The fly-ins involve the use of aircraft which are permitted by

the approval.

(2) The scale and frequency of the activities are such that Council would not normally regard as an outdoor entertainment.

(3) The events as stated by Nehmer McKee and Partners are considered to be social gatherings with minor organised activities. There is some level of participation by family and friends of the pilots but this is ancillary to the approved use.

(4) Council is advised and accepts that these particular events draw limited numbers of spectators and are focused upon only those

persons immediately involved in participation of the “fly-ins”.

[33] The first respondent is therefore supporting the position of the second respondent. The argument of both is detailed in the outline of the first respondent and is as follows:

44.     Whilst the application refers to “an affected area approximately

41,212 square metres”, matters that would tend against the approval

applying to only a part of the land comprise:

(a) The fact that the consent permit does not include any such limitation relevantly providing on its face:

Land described as: Lot 601 on E.124123, Parish of Wyoming, and situated on Jones Road, Woodstock.

(b) The site plan does not depict any boundary or demarcation, and on the left-hand side of the plan the following text is included:

Property description, lot 601 on plan E.124123, site area 64.75 hectares.

(c) There are no other matters in the conditions that would indicate a requirement to refer to specific parts or areas of the land.

45.     In this context, it is simply impossible to determine with any level of

certainty which part of the land is the “affected area” referred to in the

consent application, such that it would be inappropriate to attempt to subsequently apply a restriction to the consent permit that does not plainly appear on its face.

[34] The argument goes on as follows:

49. It is this context that condition 3 must be considered in. In

circumstances where the airstrip was described on the site plan as “existing

airstrip”, the only onsite works described in the consent application was

the 10 by 10 metre hangar, such that, to the extent that there is any implied reference in condition 3 to hangars, either by reference to their

“construction”, or by them being in “substantial compliance” with the

application material (including the site plan), such reference must be construed as being associated with the hangar approval and would not otherwise prohibit or fetter the land use approval component of the consent permit.

50. Accordingly, if, during the life of the LG (P&E) Act, the owner of the land wished to erect a second hangar, that would be regulated by that

Act and the 1988 scheme as comprising the “erection or use of building or

structure” for a purpose such that a second consent permit may have been

required. However, and critically, a “combined” application for the “use

of land” also would not be required because the land already benefitted

from the land use approval component of the consent permit.

51. However, the requirement was obviated upon the repeal of the LG (P&E) Act, and the induction of the IPA.

52. Under the IPA, the planning schemes no longer regulated the

“erection or use of buildings for specific purposes”, and instead introduced

the concept of planning schemes regulating, through the use of

development permits, “development”.

53.     Development comprised:

(a)	Carrying out of building work;
(b)	Carrying out plumbing and drainage work;
(c)	Carrying out operational work;
(d)	Reconfiguring a lot; and
(e)	Making a material change of premises, with “premises” being

defined as:

Premises means –

(a)	A building; or
(b)	Land whether or not a building is situated on the land.

54. Development has been defined and controlled in a similar manner under the SPA and Planning Act.

55. The consequence of this change is that, following repeal of the LG (P&E) Act, even if the then owner of the land wished to apply for consent to erect or use an additional hangar on the site, he or she would be incapable of doing so.

56. Accordingly, following the introduction of the IPA and under the SPA and Planning Act, the land use approval component of the consent

permit continues to operate as a “development permit”, such that the land

could continue to be lawfully used for purposes consistent with private airstrip, which includes the use of facilities for the housing, servicing and maintenance of aircraft, and for passengers, subject to any new buildings being subject to appropriate development permits to authorised development in the form of the carrying out of building work.

57. As to this latter issue, Mr Motti in his affidavit exhibits development permits issued under the IPA for building work for hangars and sheds dated

4 May 1999 and 8 November 2002. Further, the land’s standard planning

and development certificate shows a further development permit for

building work given under the SPA for another onsite shed.

58. In short compass, the Council’s position is that, since the

introduction of the IPA the consent permit did not prohibit or preclude

erection of additional hangars, in circumstances where:

(a)	The consent permit authorised the use of the entirety of the land for

“private airstrip”, which was relevantly defined as “privately-owned

premises for the landing and departure of aircraft. The term includes facilities provided at such premises for the housing, servicing and maintenance of aircraft, and for passengers or goods carried by aircraft

using the airstrip”, which is sufficiently broad to authorise use of the land

for the airstrip and hangars and other structures associated with the onsite

activities;

(b)	The consent permit did not contain any express fetters, such as:

(i)       A condition precluding the erection or use of other hangars on the

land;

(ii) Constraints associated with hours of operation, type of aircraft use (training or otherwise), or aircraft movement numbers; or

(iii) An express requirement that the land be maintained in exact conformance with the layout described on the site plan. In this latter context, ongoing compliance with that site plan could not be envisaged as being practicable, as it would preclude the erection or use of the balance part of the land for other uses, such as private dwelling house, or other rural associated buildings and structures;

(c)	The IPA and SPA introduced the concept of a “use” as “including

any use incidental to and necessarily associated with the use of the

premises”, such that the use of the hangars would be said to be incidental

to and “necessarily associated” with the use of the land as a private airstrip;

and

(d) Having regard to the principles of construing permits described above, and the fact that from the IPA onwards the construction of buildings was regulated by development permits for building work, an implied fetter against ongoing use of the land for its approved use (including the use of additional hangars), ought not be found unless it is clear and unambiguous on the face of the permit, which is not the case in this instance.

[35] The first respondent then goes on specifically to note:

59. In a similar context, in Transpacific Industries Group v Ipswich City Council [2013] QPELR 70, Robin QC DCJ considered an application by a quarry development permit holder who sought a declaration that in circumstances where the permit was silent on the matter of tonnage, there was no annual limit on the amount of waste that could be received by the land per year. In granting the declaration sought, Robin QC DCJ held at (24):

Even if things stood otherwise, the Council failed to employ the simple and obvious device of including in the development permit, if did issue a provision controlling and restricting the new use in that way. True it is that Transpacific cannot present a convincing case that it came in expecting the benefit of a development permit devoid of annual tonnages caps. That is what it got. It would be mischievous for the Court to read into a development permit, running with the land, a restriction neither express nor necessarily incorporated by a reference to something else or implied.

60.     Finally, in any event, condition 3 requires that the private airstrip be

construed in a manner that “substantially complies” with the information

lodged in support of the subject application.

61.        The term “substantially complies” is similar to the term “generally in

accordance with”, which is a commonly used phrase utilised in town

planning. It was judicially considered in Grace Brothers Pty Ltd v Willoughby Municipal Council [1980] 44 LGRA 400, where the New South Wales Supreme Court had to determine whether changes to the configuration of a David Jones store from that approved by a development consent, such changes comprising building setbacks that differed from those required by the development consent, were nonetheless generally in accordance with that approval. In finding that the changes to the design

were “generally in accordance with” the consent, Wootten J held at 406;

The use of the words “generally in accordance with” are obviously

intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend upon the criteria by which it is judged. In this case, we are concerned with town planning. From that point of view, it seems to me that the alterations required by condition (ix) are not such that the consent is for a development not generally in accordance with the relevant plans.

The alterations required to the outlines of the building are minor. They have some impact on the internal space available but it is not, in my view, significant in the overall context of the development. Only the north- eastern corner of the development is affected.

62.        Grace Brothers has been applied numerous times in Queensland:

(a)	In Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200, Quirk DCJ considered whether a proposed plan of development was

“generally in accordance with” the approved plan of development for the

site. The differences in plan included a reduction from 330 dwelling units to 268 dwelling units, including an increase from 12 to 24 townhouses in the highest and most prominent part of the site, and other alterations in road layout. After also applying Grace Brothers, the court confirmed;

“The need for some level of flexibility in a comparison of an

approved plan with a finally settled design needs no explanation. As his Honour emphasised, where there is any deviation, its importance

in determining whether it makes a proposal that is not, ‘Generally in accordance with’, an approved plan, must be judged by the town

planning consequences of that deviation.”

After noting the change would result in a visible increase in intensity of

the development in the site’s most sensitive location from off-site, it was determined the change was not “in accordance with” the original approval;

and

(b)	In Development Watch Inc v Maroochy SC and Ors [2007] QPELR 488, the court considered a development consent for a nine-hole golf course, and whether construction of a six-hole golf course was generally in accordance with that original development consent. After finding that the

proposed development was not “dramatically different” or “strikingly

different” from the approved plan, and that the use of the land as a golf

course would remain unchanged, the court found the variation to be

nonetheless “generally in accordance with” the original approval.

63. In this context, no adverse “town planning consequences” have been

identified by the applicant that would result from the use of the existing number of hangars as opposed to the original hangar. This is particularly cogent in circumstances where there is no constraint on the hours of operation or the number of aircraft movements otherwise permitted on the land. In the context of Development Watch Inc (supra), it cannot be said

that the current stark field is “dramatically different” or “strikingly

different” from the development otherwise described in the exhibit 3 site

plan.

64. For the above reasons it is council’s submission that the construction

of additional hangars after the introduction of the IPA is consistent with the consent permit.

[36] The outline by the first respondent also deals with issues in relation to the training school, as well as with matters that are suggested as being precluded because they constitute fly-ins or barbecues. At paragraphs 66, 67 and 69 the following is said:

66. As explained by Ms Relf, “Actual flight training, in and of itself, still falls within taking off and landing on the – on the strip, which are things that are permitted under that definition”.

67. In this context, in AAD Design Pty Ltd v Brisbane City Council [2013]

1 Qd R 1, Chesterman JA strongly criticised the “best fit” test, which

hitherto applied when activities could be said to fall within multiple

defined uses in a scheme, explaining:

“If a proposed development satisfies two definitions, the rights and

obligations which would follow from the conclusion that both definitions apply, are not to be abrogated because the judge has a preference for one result over another, or thinks that the local authority which drafted the planning scheme might have preferred the other. If two or more definitions are satisfied, then the legal consequence set out in the planning scheme for a proposal which meets those definitions will all apply and the developer may follow

the path which suits its purpose best.”

[37] And finally:

69. Whilst it could be said that a flying training school may be said to fall

within the scope of “educational establishment” under the 1988 scheme,

in circumstances where the activities required to be undertaken to operate a flying training school fall within the activities authorised by a private airstrip a separate permit is not required.

[38] In relation to the use of the private airstrip for fly-ins or barbecues, the following is noted:

71. In the amended originating application the applicant contends that the

use of the land for activities described as, “outdoor sport and recreation,

tourist attraction and/or tourist park” are being undertaken unlawfully on

the basis that the second respondent has no existing right to lawfully use

the land for those activities.

72. In the applicant’s response to the second respondent’s request for

further and better particulars, it explained its complaint with respect to

those associated on-site activities is as follows:

“(1) The applicant maintains that the second respondent uses the land for

short-term accommodation and ‘outdoor entertainment’ because of the

existence of the following facts and circumstances.
(a) Users of the airfield stay overnight at the airfield prior to early morning
flights;

(b) Separate to the instances of short-term accommodation described in

paragraph (a) above, the ‘American barn building’ is used by a person for

accommodation purposes;

(c) The outdoor entertainment aspect of the second respondent’s use of

the land is publicly advertised. Those advertisements include the

following activities:

(i) The sale of food and beverages.

(ii) Live entertainment.

(iii) The use of showers and toilet facilities; and

(iv) Paid accommodation for caravan and camper sites.”

73. The evidence indicates that those activities are modest, in that:

(a) Of the fly-ins, of which there have been two, they result in the arrival

of some 20 aircraft and some 60 people;

(b) The “live music” comprises a few pilots playing their own instruments

on the site;

(c) The barbecues which are conducted on a weekend have only around

five or six people attending; and

(d) Caravans that have been bought on site have been used by pilots

operating from the airfield.

74. Council contends that the activities described above are being

undertaken lawfully, on the following bases:

(a) Such activities are authorised by the consent permit; further or in the

alternative,

(b) The undertaking of such activities are of so little moment that they do

not amount to the “commencement of a new use”, such that they do not

comprise a material change of use.

75. As to the first issue, such uses bear a fundamental nexus with the use of the land for private airstrip, such that they are authorised by it. Indeed, the essence of the fly-in is the arrival and departure of aircraft and the use of on-site facilities or the passengers of those aircraft.

76. As to the second issue, such uses are of such an impermanent and de minimis nature that it could not be said to give rise to the commencement of a new use.

77. Of relevance in this context is the decision of Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd [1991] 1 Qd R 125, in which the Full Court was required to consider whether a food van selling

products from vacant lots had commenced a “use” under council’s then

Town Planning Scheme as a result of undertaking a “catering business”

without proper town planning consent. In finding that it had not, Connolly

J, with whom Kelly SPJ and Dowsett J agreed, confirmed that:

“In this context and in the wider context of the Town Planning Scheme as

a whole there is much to be said for the contention of the appellant that clause 7(1) is concerned with uses which are of some substance and permanence and to which the land is in some sense committed, rather than some transitory act which occurs briefly on the land, albeit repeated with

some degree of regularity.”

78. Kwiksnax was followed in Eames v Brisbane City Council and Anor

[2010] QPELR 504, where Rackemann DCJ held at 507:

“It may be noted that the extended definition (of ‘use’ under the IPA) does

not refer to any and every activity which might in some way be associated

with a use. It refers only to an incidental ‘use’. Not every activity on land,

even one which is carried out repetitively, will constitute a use, incidental or otherwise (see Moore v Kwiksnax Mobile, Industrial and General Caterers Pty Ltd: ex parte Kwiksnax Mobile Industrial and General

Caterers Pty Ltd [1991] 1 Queensland Reports 125).”

79. For the above reasons it is submitted that none of those uses fall outside the scope of the consent permit or, alternatively, they do not

comprise a separate material change of use being the “start of a new use”,

due to the modest and impermanent nature of the activities.

[39] Having noted the differing arguments put, I note, as is necessary, the evidence of the various witnesses that have been called. Firstly, one of the applicants, Frances

Anne O’Callaghan, gave evidence confirming matters contained in her two

affidavits, though noting that since their swearing she and Mr Bucknell had ceased the operation of a horse-riding school, as well as a bed and breakfast.

[40] Ms O’Callaghan acknowledged in cross-examination that the current use of the

airstrip is less than was the case in 2015 when Ms Adams carried out noise

monitoring. Ms O’Callaghan also acknowledged having made complaints to

various authorities and investigations having been conducted by those authorities.

Ms O’Callaghan also was asked about the current location of her residence upon

her property and she explained that the location of the residence, established after

the land was purchased, was placed where it was to facilitate she and her husband’s

proposed operation of the property as both a horse-riding school and a bed and breakfast.

[41] Ms O’Callaghan’s evidence was basically supportive of the position taken by she

and her husband in respect of the application before the court.

[42] Also called on behalf of the applicants were an acoustic engineer, Ms Gillian Adams, to whom I have made reference, as well as a town planner, George Edward

Milford. Mr Milford’s evidence was contained within two affidavits filed by him,

but particularly in his affidavit of the 16th of March 2018. That affidavit includes the following:

10. I understand that for the purposes of this proceeding one of the matters that the court must consider is whether the land is used for the provision of paid accommodation, including caravan sites and camp sites.

11. While such matters are ultimately to be determined by this honourable court, it is my professional opinion that these uses and activities are not contemplated by the development application or the development approval.

12. There is a declaration on the development application that reads:

The information given is true and correct in all particulars and that the plans and documents accompanying this application fully and truly describe the matter of which the application is made.

As a town planner, this indicates to me that if the proposal (at the time the development application was lodged) was intended to involve:

(i) The substantial number of hangar/shed structures that now exist
on the property;
(ii) Accommodation facilities.

This would have been detailed in the development application. The inclusion of this material in the development application would have also enabled the council to consider the impacts of the proposed use at the proposed scale and intensity.

13. A private airfield is expressly identified as an example of an “air

services” use in the Townsville City Plan 2014.

….

14. Part 5 of the Townsville City Council 2014 dealing with the levels of assessment of the material change of use in the rural zone, does not list air services. This means that any air services uses are impact assessable development and would require an effective development permit to lawfully operate.

15. As a town planner it is my professional opinion that the use of the land for the purposes of paid accommodation to be outside of that which is an ancillary activity for the use of the land pursuant to the development approval.

16. I do not consider it a reasonable expectation that one hangar and single airstrip would generate the direct need for paid accommodation on the land. Therefore it is my opinion as a town planner that the accommodation aspect of the current use of the land represents a new and different use of the land.

17. In my opinion the accommodation activity alleged to be taking place

could be defined as either “short-term accommodation” or a “tourist park”.

….

18. Part 5 of the Townsville City Plan 2014 dealing with the levels of assessment for a material change of use in the rural zone does not list these uses. This means that both short-term accommodation and tourist park uses are impact assessable development and would require an effective development permit to lawfully operate.

19. In my view the introduction of new activities and the intensification and change in scale of the development constitutes assessable development. In my professional opinion the activities and uses on the land that are presently occurring are not authorised by the development approval previously obtained.

[43] Whilst not directly challenged in respect of much of what was said in that affidavit,

I was not much assisted, noting as I did that Mr Milford’s evidence was broadly

given and was accompanied by bold or bald assertions that the uses were outside what was permitted.

[44] The evidence of Ms Adams was detailed again in two affidavits filed by her. Her evidence related specifically to the relief that was sought pursuant to the provisions of the Environmental Protection Act. In particular, her affidavit of the 16th of March 2018 notes that in 2015 she supervised the production of a noise impact

assessment with respect to the second respondent’s use of a private airstrip. She

concluded, following the production of that noise impact assessment, as follows:

5. That assessment concludes that:

a.	The background creep criterion set out in the Environmental Protection (Noise) Policy 2008 is exceeded, on occasion significantly by the private airstrip noise;
b.	Acoustic noise quality objectives criterion from Environmental Protection (Noise) Policy 2008 are exceeded by aircraft take-off noise;
c.	Internal criteria, set out in Australian Standard AS 2021-2000

entitled ‘Acoustics – Aircraft Noise Intrusion – Building Siting

and Construction’ is exceeded by aircraft events.

d.	The majority of aircraft take-off events are likely to cause conversation interference in outdoor areas;
e.	It is understood that flights often begin before 7 am during the night period and measured take-off events prior to 7 am exceeded the 45 dBA sleep disturbance limits set out by the World Health Organisation;
f.	The majority of aircraft take-off events exceeded the comparison of like parameters criteria.

6. Having regard to the conclusions in paragraph 5, in my view, if someone proposed to build a residence in a location that experienced the

level of aircraft noise measured at the applicant’s residence, they would be

required to provide glazing and mechanical ventilation to support windows

and doors to be closed to achieve acceptable internal noise levels.

In his conclusions at paragraphs 6.1 through 6.10, he says the following:

6.1. From the results of the analysis presented above, the following

conclusions can be drawn: –

6.2. In my view, the noise generated by aircraft operating at the air strip does not cause material environmental harm, nor does it cause serious environmental harm. It does not contravene any of the default noise standards at division 3 of the EPA. In the event that it is considered to be a relevant after for any other reason, the noise is authorised under a development condition of the development approval, specifically, development permit file number C5-91, issued on 15 May 1991 over Lot 601 on E124123.

6.3. In the event that the expression “noise from aircraft movement”

applies to the movement of aircraft from the land, then by application of the exemption applying under schedule 1 of the EPA, the noise generated by the movement of aircraft from the land would not result in the offence of causing environmental nuisance.

6.4. Any adverse effect on the amenity enjoyed by the applicants arising from the noise of aircraft operating at the airfield would have existed prior to the applicants purchasing their property and relocating the dwelling to their site. Notwithstanding, if it were to be judged that action to attenuate aircraft noise intrusion into the residence is warranted, then prudently, such remedial action should have been undertaken by the applicants at the time of placement and construction of their dwelling. Further, any costs incurred would need to have been incurred by the applicants at that time.

6.5. Any interference with the applicant’s horse-riding and bed and

breakfast enterprises arising from the noise of aircraft operating at the airfield would have existed prior to the applicants seeking approvals and prior to the granting of such approvals for their horse-riding activity and bed and breakfast enterprise. Notwithstanding, if it were to be judged that action is warranted to ameliorate the impact of aircraft noise on the

applicant’s horse-riding and bed and breakfast enterprises, then prudently,

such remedial actions should have been undertaken by the applicants when contemplating the horse-riding and bed and breakfast enterprises. Further, any costs incurred in undertaking such remedial action would need to have been incurred by the Applicants at that time.

6.6. Adopting Ms Adams contention regarding the inappropriateness of the requirement to close all windows and doors of the building, which was relocated onto the Applicants land and subsequently modified the Applicants bed and breakfast enterprise, in order to achieve an appropriate level of acoustic amenity within the Applicants residence, it can be reasonably concluded that because the aircrafts movements and associated noise generation activities existed prior to the relocation of the dwelling and upgrading of the bed and breakfast enterprise, (i) the choice of location for the dwelling was ill-founded and (ii) the choice to establish the bed and breakfast enterprise within the building was ill-considered.

6.7. Of the six noise level metrics identified by Ms Adams, and to which Ms Adams ascribes noise level exceedances, each can be placed into one of two groups: (i) those based on maximum noise levels and (ii) those based on energy average noise levels. Of these, four are of no utility. The remaining two metrics, either (i) result in noise levels which are reasonable or (ii) results in objectives, not limits, against which the quantifies exceedances are trivial and of negligible significance.

6.8. Specifically, it is not reasonable to apply the noise level limit of clause 10, controlling background creep, of Environmental Protection (Noise) Policy 2008 to noise from aircraft movements. The noise generated by light aircraft transiting the site, and regular public transport aircraft overflying the site, would be expected to generate well in excess of the limits set under clause 10. Such a limit would be unnecessarily stringent. It would be an unjustified impost on aviation operations.

6.9. Further, the exceedances of the EPP (Noise) – Acoustic Quality

Objective (ie, not limits) are trivial and of negligible significance.

6.10. Whether the degree of aircraft noise intrusion into the applicants land is viewed in the context of the pattern of aircraft movements that occurred prior to, or after, the construction of the dwelling of that Applicants land, neither result could in any way be considered to be material environment harm.

[56] Further, in evidence-in-chief, Mr Brown noted the following matters:

Now the Planning and Environment Court?---Correct.

And I take it your experience has included, both in court matters and non-

court matters, dealing with aviation activities?---Yes, that’s correct.

You flew up from Brisbane this morning, so you weren’t here for the

evidence-in-chief of Ms O’Callaghan yesterday, but during that evidence-

in-chief, we learnt that the bed and breakfast and horse riding activities that were referred to in her affidavit are no longer occurring on the land?---Yes, I understand that.

And we know from her evidence that they’re no longer occurring for

reasons related to public liability insurance and food licensing
requirements?---Yes, I understand that.

As an acoustic engineer, does the cessation of those two activities have any bearing or any relevance to you in considering the matters relevant to determination by this court?---Yes, they do.

And what’s that?---Well, specifically that the cessation of the horse riding

activity, if there were to be disturbance generated by aircraft which were

– such disturbance was sufficient to cause issues with horses, then, of

course, the horses aren’t there, that issues disappears. Similarly, if there

were to be problems with noise generated to the bed and breakfast activity,

without – without the bed and breakfast activity functioning, then that

issue also disappears.

And I take it – you use the word “if” in those answers?---Yes.

I take it from your report that you have formed the view that there is no environmental harm or environmental nuisance being caused by the noise created by the aircraft and you maintain that view?---Yes, I do.

We also learnt yesterday during the evidence-in-chief of Ms O’Callaghan – or, actually, it was in cross-examination, that their home has both ducted

air-conditioning and ceiling fans?---Yes, I understand.

Is that relevant to you as an acoustic engineer?---Yes, it is.

And why is that?---Again, if there were to be a problem with noise intrusion into the dwelling, then the presence of ducted air-conditioning would permit the premises to be operated with the windows and doors closed quite satisfactorily without causing any issues with ventilation, and

in doing so, that would generate a – a significant reduction in the level of

any noise intrusion.

I think there was also wall units mentioned by her, and I take it you’ve got

the same view having regard to air-conditioning wall units?---Yes, that’s

correct.

We also learnt yesterday that Ms Adams, the acoustic engineer called by the applicants, was not aware, when she wrote her first report, that the airfield existed prior to the home which the applicants relocated onto their land. Is the fact that the airfield was in use prior to the home being relocated relevant to you as an acoustic engineer?---Yes, it is.

Why is that?---Because the use existed prior to that, which raises an issue of reverse amenity.

And could you just assist the court, explain what you mean by the

expression “reverse amenity”?---Because there is an existing use, and

because it’s a legal matter, not an acoustical matter, but because there is

an existing use, then there is an obligation on the new use coming to the

existing use to ameliorate the impact to the degree that it’s possible in the

circumstances.

Additionally is cross-examination, the following should be noted:

That’s a convenient summary, is it not, of the criteria that Ms Adams has

used and which you then make comments about, including the one we

heard about a moment ago?---Yes, that’s correct.

Okay. And I think you yourself acknowledged that or – I withdraw that.

Can I ask you this first of all. They are not made up criteria, obviously.

They come from relevant sources?---Yes, that’s correct.

Okay. It’s fair to summarise your opinion as being that you don’t agree

with those being necessarily applicable or directly applicable?---I have

some doubts about the utility of many of those metrics, yes.

And further:

Now, can I ask you – I know you have said to me a moment ago that you don’t really believe any of the criteria are particularly relevant – well, I

shouldn’t say relevant, but particularly apply?---Well, they’re relevant,

inasmuch as they do provide some bounds to make some judgments. It’s

a matter of whether - - -

Okay?--- - - - judgments that you derive from that result in nuisance or material harm.

You don’t – there’s no quibble, I take it with you – from you that the three

maximum criteria, if I can call them that, the LS max criteria and Ms

Adams’ assessment of the flights and how many exceed that, you don’t

dispute that, do you?---No, I take Ms Adams’ data on – on its – on face

value and accept it for what it is.

Okay. Your main criticism of the use of that and, indeed, perhaps also the other criteria, is that the airport was there first and the house came second.

Is that a fair summary?---Well, certainly, that’s prime – prime – prime importance that if there were to have been an issue beforehand, then that – that – sorry, if there were to be an issue now, that issue existed prior to the relocation of the – the – the residence on that property.

And further:

And so forth. And I don’t take it you make any criticism about the location

of the house site, but your criticism is that it should have been dealt with,

the noise, more effectively. Is that a fair statement?---Well, it’s simply a

matter of making prudent decisions at the time and weighing up the pros and cons of a decision to locate a house in a particular position on the property.

And further:

Yes. If the provisions of the Environmental Protection Act and these

heightening standards or expectations have the outcome that – or they can have – they have the outcome, I should say, that these activities, which

may have been going on in the same way for many, many years, but with these expectations and these controls heightening, they may need to be carried out differently in order to meet the relevant standards?---Well, if

there’s a lawful use operating under development approval one would

think there’d need to be a trigger for making a change, but, again, that’s a

legal question, rather than an acoustical question.

But I’m not talking about a change. What I’m talking about if you’ve got

an option – if you were carrying out an activity which is noise

producing - - -?---Yes.

- - - and you’ve done it for a long time and you’ve done it in a certain way for a long time, that doesn’t mean that today, in 2019, that you necessarily

are able to continue to carry it out in the same way given the changed and

heightened standards which have been introduced by the matters we’ve

talked about?---There’s another dynamic to this there and that’s the – the – if you put it in its broadest terms, the encroachment by the new use on

the existing use which creates a problem which, hitherto, wasn’t there

previously.

I accept what you’re saying, but that doesn’t relieve the operator of

someone who is – of the responsibility of complying with modern standards?---I’m not sure that I agree. I can see the point you’re – you’re

driving at. If there were to be an agreement reached between neighbours

which sits quite apart from the regulatory process, then that’s an entirely

different matter. If there’s an existing regulatory process and there is no

breaching of the undertakings – undertakings given within the conditions

that attach to the development approval, that’s a different matter again.

And in re-examination, he noted:

MR LYONS: Just very briefly, Mr Brown. I take it from the evidence

you’ve given today orally, you maintain the view that there’s no

environmental harm or environmental nuisance being caused by the

airfield? That’s correct.

And one of the answers you gave to Mr Morzone, you said you had some doubts about the utility of many of the metrics used by Ms Adams? Yes.

By “metrics”, were you referring to the limits or noise criteria that she had

put in her statement attached to the affidavit? Yes, I was.

And can you just elaborate on the – what you meant by you had some doubts about the utility of using some of those metrics? It’s covered in

my affidavit, but, perhaps, I can take you to the relevant section.

I think it’s on page 12? Yes.

And over on page 13? So if we start with paragraph 5.2.3 at the bottom of page 12, I state that:

Of the six noise level metrics, the following four metrics are based on the measurement of either individual maximum sound levels, ie, LS max values, the arithmetic average of the maximum sound levels, or in the case of the comparison of like parameter metric, the L1 15-minute noise level metric as well.

And then I list those four as being AS 021, the DTRS and WHO guideline for conversation interference, the WHO guideline for sleep disturbance and the comparison of like parameters, and then I state at paragraph 5.2.4:

Because it can be concluded that the maximum sound pressure level of the aircraft noise intrusion, measured as the range of maximum sound pressure levels or as the average of the set of maximum sound pressure levels has

not altered, and that’s altered in the pre to post situation with respect to the

relocation and first occupancy of the dwelling on the O’Callaghan

property. There is no utility in using metrics for determining limits for acceptable levels of noise intrusion which address only the sound pressure level of the aircraft noise intrusion. Any exceedance of the noise level targets set by Ms Adams against any of these metrics would have prevailed

prior to and at the time of relocation of the applicants’ dwelling onto the

land.

I then go on to discuss the L1 15-minute parameter which, in essence, is a surrogate for the maximum sound pressure level when you unpick the mathematics behind it:

That leaves two remaining metrics, the EPP noise background creep –

and I’m reading here from paragraph 5.2.6 –

and the EPP noise acoustic quality objectives as those based on the energy is at the bottom of page 14 over the page, and at 5.2.17:

average noise levels.

In both cases, the exceedance of the objectives –

This is the acoustic quality objectives, not limits –

are trivial and of negligible significance.

And then following at 5.2.18:

I cannot support Ms Adams’ contentions at paragraph 9 whether this

degree of aircraft noise intrusion is viewed in the context of the pattern of aircraft movements that occurred prior to or after the construction of the

dwelling on the applicants’ land. Neither result could, in any way, be

considered to be material environmental harm.

And I think you said elsewhere in this report that you don’t consider it to

be environmental nuisance under the Environmental Protection Act

either?---No, I don’t.

[57] As I indicated, the sole director of the second respondent, Robert Bruce McKenzie, was also called. Mr McKenzie has filed a number of affidavits in these proceedings, but his affidavit filed 31 July 2018 is the most relevant here. It provides details of his purchase of the property, details of the buildings on the property, and the steps taken by him in relation to the approval of buildings in place at the time of purchase, as well as answering many of the matters in the affidavits

of Ms O’Callaghan.

[58] Mr McKenzie was cross-examined by counsel for the Applicants in relation to the property, as well as regarding certain structures on the property and their age. He was also questioned about the various activities on the property, including the operation of a flight school and fly-in/ fly-out activities. His answers were frank and honest, but not necessarily relevant to the determination, in respect of this application. For clarification as to uses, however, the following should be noted;

MR LYONS: Mr McKenzie, you were asked a number of questions about the use of the airfield for a flight training school, and we understand from your evidence that the building identified as number 4, which has since been demolished, was used previously?---Correct.

I take it the airstrip itself would also be used for the purposes of a flight school?---Of flight training, yes.

Flight training?---Yep.

And that would be for the purposes of taking on and off?---Yes.

I take it that people can’t learn how to fly without taking on or

off?---Correct. Correct. It’s part of the airfield, yes.

In terms of fly-ins, just so I’m clear, how many times would there be a fly-

in from other airfields to your airfield per year other than the Easter fly- in?---There will be small groups of one or two planes or something like that throughout the year, now and again, once a month or whatever.

Depends on who’s at the airstrip, if they want to fly in to meet someone to

– to chat.

You gave some evidence and some answers to my learned friend Mr Morzone where you made some comparisons between what occurs at the airfield and a car club, and you also talked about bikies. Just as a matter

of clarification, I take it when you were using the expression “bikie”, you

were referring to recreational motorcycle enthusiasts, rather than outlaw

motorcycle gangs?---Yes. Yes. Most definitely, yes.

Just in the District Court and the Supreme Court, the word “bikie” may

have connotations different to the one that you intended when you gave

those answers?---True. Yes. Yes.

In terms of camping and caravan use on the land, just so we’re clear, is it

your evidence that anyone who camps or caravans – or uses caravans on

the land has to have some nexus or relationship with the use of the airstrip?

They’re not tourists just coming to - - -?---No.

- - - have a weekend away?---No. We’ve never advertised it for tourism or anything like that. It’s always been people that have been associated to

the airstrip.

You were asked a number of questions about some scenarios in which you were asked whether you would undertake not to do certain things. I understand from your evidence that when you were giving those answers, it was on the basis of two primary reasons. Firstly, some of the buildings that you were referring to are in a state of disrepair and you want to tear them down?---Correct, yes.

And, secondly, you’ll do things if the council requires you to do things, for

example, get certain approvals or the like?---Yes, if the council says,

“You’ve got to take that down,” we will take it down.

[59] Finally, the second respondent called a town planner, Stephen Robert Motti. I have

already made reference to Mr Motti’s affidavit and reports, but note that he was

the subject of cross-examination in respect of his conclusions and opinions. In evidence-in-chief, he noted the following;

Ultimately, it’s obviously a matter for his Honour as to the area of land

that is the subject of this approval, but assuming it relates only to 41,212 square metres, is it relevant to you as a town planner that the area referenced is an approximation?---It is, and not unusual, in my experience, for consent applications to provide, conceptually, location criteria.

And when you say “conceptually”, what do you mean?---Typically

provides some direction in terms of location, site situation, access. Conditions of approval normally look to seek to refine and direct delivery through subservient application processes, whether it be building work or works approvals.

And it’s not uncommon, in your experience, is there, to be a degree of

variation between a conceptual approval and then detailed

design?---That’s correct. In my experience, most approvals contemplate

that through the construction of conditions.

And in cross examination, the following matters were dealt with in evidence:

Okay. Now, I want to ask you about the development permit which we

see as attachment C to your affidavit. It’s at page 19. That permit

describes the consent use, on about the sixth line down, as:

Private airstrip – as shown on plan number 3013P1.

And that is a reference to exhibit 3? That’s correct.

Okay. So this – the consent use itself, in this particular case, is constrained,

I suggest to you, or immediately qualified by being as shown on this plan- --That reference, in my view, is a descriptor. It, in itself, is not the control device. The permit itself is defined by the use itself in terms of the definition of private airstrip. The concept plan is a descriptor, and the conditions of approval which direct outcomes relevant to the land.

The permit itself describes the use? Of private airstrip, correct.

As shown on the plan? And qualified further, then, through conditions in terms of delivery.

Yes, but the use itself is very much described in a qualified and limited

way. It’s not any private airstrip. It’s one as shown on the plan? In the

context of definition and conditions of approval.

Of course? So the conditions of approval do contemplate variation.

You might look to the condition to see what is meant by a private airstrip,

but in terms of it being – or in terms of its scale, it is the scale as shown on this plan? In terms of situation, it – it – it is shown per the plan that there’s a relationship to the land area. In terms of the activity, it is defined,

in my view, by reference to the definition as prescribed by the scheme, but
also within the terms developed by the conditions themselves.
Just forget the conditions for a moment, okay, completely? Mmm.

We’re talking about what is the use that’s being approved? Yes.

And the use that’s being approved is the use which the planning scheme

describes as a private airfield or airstrip, but that the consent – the consent use that’s been given is one which is constrained by the scale shown on

this plan, I suggest to you? I don’t accept that.

You disagree with that. Okay. And that is not untypically, certainly, for approvals that existed pre-IPA? Could you rephrase the question, sorry?

That was not untypical for plans – permits, I should say, that existed pre-

IPA? Nor any approval. My experience has always been approvals typically do provide connection to plans that provide description of how the site may be used, in conjunction with conditions to direct delivery.

Most often, in at least current approvals, the plans are referred to in the

conditions. Do you agree with that? That’s correct.

In this particular case, the plan is referred to in the descriptor of the use

itself? That’s – that’s correct.

And that, I suggest, is a difference that is very important in this case because it constrained the use that was being approved to a scale as shown

on that plan? I don’t accept that. Again, by reference to the conditions,

the conditions themselves do contemplate variation. In fact, condition 3

recognises that there’s an ability for substantial compliance with that plan

in council’s opinion.

And further:

Okay. And that detail refers to one hangar. And my suggestion to you is that that condition is making it clear that this permit is not unconstrained; or unqualified; or variable, like you like to have said in your report. It is very much limited by the information in this proposal and, in particular,

one building?---I – I don’t agree, in terms of the one building. I don’t recall identifying the application as being – land use – being a variable

approval. My report seems to identify that the development is fettered and there are conditions that do look to constrain. And they are with respect to requirements and obligations of response to the Act and, also, requirements in response to CASA requirements. With respect to the application, it identifies a land use of private airstrip over an area of 4.1

hectares. That’s important to me, in terms of understanding the context of

the development and its utility over the site.

And further:

Now, can I – well, just before I leave that, for completeness, I’ll make sure

I make this clear to you. Can I suggest to you that the consent use, as it was described and as constrained by condition 3, does not permit use of any of the other buildings that we see on the site for the purposes of private

airstrip?---I don’t accept that.

Okay. Well, I gathered that. So if I could ask you, then, to look at the definition. And you see, there, that the definition refers to, obviously, the landing and taking off of planes?---Yes.

And then it refers to facilities provided at such premises. And, again, we

see it’s divided by the use of the word “four”. Do you see that?---I’m

sorry. Yeah.

It says “four”?---Yes.

Divided into two, first for the housing, servicing and maintenance of air craft. Do you see that?---Yes.

And, secondly, for passengers or goods carried by aircraft using the airstrip?---Yes.

So would you agree with me that the housing, servicing and maintenance

– well, the words “the housing, servicing and maintenance” – does not

qualify for passengers, does it? It’s not for housing passengers?---I don’t

agree with that. The definition identifies provision of facilities. I – I – I

don’t agree.

But it’s a matter of plain English. There’s two flaws there. You don’t read

what comes after the first four as qualifying the second four, do you?---I

think you – you read it as a whole. So, to me, the term includes facilities

that are provided for, yes, the aircraft, themselves, and then provided for

passengers and goods used by the aircraft.

But the terminology when we come to look at passengers is:

Facilities provided for passengers or goods.

?---Yes.

Okay. I think that’s what I was trying to get to you. So my first proposition

to you is that a flight school or training flights is not encompassed within

that definition?---I don’t accept that.

And further:

Okay. Now, in terms of accommodation buildings, using actual buildings, again, can I suggest to you that the approval that was granted, particularly since there was no building shown on this plan, did not include using 4000

– or the four hectares for an accommodation building. You agree with

that?---I don’t agree with that. Accommodation building in its own right,

if it was to be an independent activity external to the private airstrip, I see the accommodation element being connected to the use of the airstrip. And

certainly in the way it’s been operating, to my understanding, it’s pilots

and passengers who are accommodated on-site.

[60] There were a considerable number of exchanges of this character between Mr Motti and Mr Morzone counsel for the applicants, all of which came down, ultimately, to Mr Morzone attempting to have Mr Motti accept that certain of the activities said to be occurring on the property were outside the scope of what was permitted. It was followed, invariably, by Mr Motti disagreeing with those proposals, and outlining why that was the case.

[61] Whilst the determination is one for the Court, I would certainly acknowledge the

assistance I gained from Mr Motti’s report and the evidence that fell.

[62] Ultimately, however, I am required to determine whether development offences under the Sustainable Planning Act have been committed in respect of the use of the land at Jones Road, Woodstock. Declarations and enforcement orders are sought, pursuant to orders 1 through 6 of the amended application. Additionally, there are the orders sought pursuant to section 505 of the EPA relating to offences arising, it is said, from activities carried out on the property.

[63] As far as the Sustainable Planning Act is concerned, the determination comes down to an assessment of whether the second respondent has carried out assessable development without an effective permit, or whether the consent of 1991 authorises what has occurred on the land as being for purposes related to the

“private airstrip”.

[64] The evidence of the three town planners called in this matter is of considerable assistance in that regard, though I note the different conclusions reached by Ms Relf and Mr Motti, as opposed to that of Mr Milford.

[65] The 1991 consent permit authorised the use of the land at Jones Road, Woodstock

in its entirety, not just the 4.1 hectares for a “private airstrip”. This is relevantly

defined as:

“Privately owned premises for the landing and departure of aircraft.”

[66] The term “private airstrip” includes facilities provided at the premises for the

housing, servicing, and maintenance of aircraft, and for passengers or goods carried by aircraft using the airstrip. This, in my assessment, can and should be considered broadly, and as such authorises the use of the land for the airstrip and hangers, as well as other structures associated with such on-site activities.

[67] This is even more obviously the case when it is noted that the consent permit did not place any constraints on the hours of operation, though obviously the airstrip, not having lights, is only able to operate from dawn to dusk, as well there being no constraints on the type of aircraft used, or upon movement and numbers. Accordingly, I am satisfied that the use currently made of the land is for aircraft related activities, and is entirely consistent with the rights granted by the 1991 consent permit.

[68] There was no suggestion, in the consent permit, of any restrictions related to the scale of use, or intensity of use, of the private airstrip and to seek to now impose such restrictions flies in the face of proper practice. In that regard, I am particularly mindful of the obvious consideration of the Thuringowa council, as it then was, in relation to the possible requirement for additional payments to be made by the owners of the land in relation to increased road usage. With that in mind, it could not be other than considered that the granting of the permit was based upon an expectation, at least, that there was a possibility of an increase in use, and therefore the possibility of greater road traffic associated with the use of the private airstrip.

[69] The conditions relevant to the consent permit and, in particular, condition 3 require associated buildings and structures to be undertaken substantially in accordance with the material that accompanied the consent application. Again, I am satisfied that all works that have followed the granting of that permit have related appropriately to the operation of the private airstrip. Condition 3 does not preclude other building upon the land but rather required that it be substantially in accordance with what was required to operate the private airstrip. The use of the land by the second respondent for aircraft related purposes is undertaken lawfully and is consistent with the use permitted and authorised by the consent permit of 1991.

[70] Similarly, the consent permit authorises the provision of various facilities for passengers and goods, and the activities complained of by the applicants, such as the provision of short-term accommodation and outdoor entertainment, is no more than what is contemplated and authorised. It is limited in the extreme, and the provision of such limited facilities is clearly contemplated by the consent permit.

[71] Accordingly, the orders 1 through 6 sought within the amended originating application are dismissed.

[72] Insofar as the relief sought pursuant to order 7 of the amended originating application is concerned, the relief is of an injunctive character, and as such, the Court must be satisfied that an offence has been committed. Here, the applicants rely upon section 437 of the Environmental Protection Act to the effect that the

second respondent has through the use of the land caused “serious environmental

harm” by way of noise.

[73] The applicant’s amended originating application refers in paragraph 12 of the grounds relied on to, “material environmental harm”, which is described in section 16 of the Environmental Protection Act as, more generally, “environmental harm”.

Section 14(1) of the Environmental Protection Act describes “material environmental harm” as “comprising environmental harm” which is further

prescribed as comprising “any adverse effect on an environmental value”. That

term is further prescribed by section 9(a) of the Environmental Protection Act as

comprising “a quality or physical characteristic of the environment that is

conducive to ecological health or public amenity or safety”.

[74] As is argued by the first and second respondents, there is no evidence that the noise associated with the operation of a private airstrip adversely impacts upon ecological health or safety. The issue, therefore, is whether there is an effect upon public amenity. The first respondent argues that the noise generated from a lawful and existing airstrip could not be found to comprise an adverse effect on public amenity. In a similar vein, the second respondent, relying upon the decision of District Court Judge Wilson SC in Crowther v State of Queensland [2009] QPELR 216, which noted the decision of McGill SC DCJ in Fletcher v May [2001] QDC

81, noted the fact that, “environment is defined in fairly broad terms” and went on

to specifically comment that:

“The key consideration here is the word “unreasonable” as with public

nuisance at common law.”

[75] Subsequently, Judge McGill SC noted that:

”What is unreasonable is obviously a matter which can only be decided by

reference to a particular case involving all of the factors relevant in the

circumstances.”

[76] There, his Honour concluded that:

“A feedlot located in a rural area where there were few people living close

enough ever to notice the odour and where the odour would be no more than an occasional inconvenience could probably produce large quantities

of odour without constituting an environmental nuisance.”

[77] Similar considerations arise here, and it falls clearly upon the applicants to demonstrate the impacts upon them of limited and irregular use of the private airstrip. The evidence of Mr Brown in that regard is compelling, and, as such, I am not satisfied that the applicants have made out their case that noise from the operation of the airstrip constitutes environmental harm.

[78] Accordingly, the relief sought in order 7 of the amended originating application is also dismissed, and the orders of the Court will be that the application be dismissed and that each party have liberty within 28 days of the delivery of this judgment to provide written submissions as to costs.