RFI - Appendix 2 - Caravan Parks v Rockhampton Regional Council Anor 2018 QPEC 52 · MCU19/0117

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Has s.163 of the PA been contravened and a development offence committed?

[76]   Section 163(1) of the PA is in the following terms:

                 “(1)    A person must not carry out assessable development, unless all
                         necessary development permits are in effect for the development.”

[77]   CPAQ contends assessable development has been carried out in the absence of an
       effective development permit. The assessable development alleged to have been
       carried out is a material change of use of the land for RV accommodation. To succeed,
       CPAQ must prove (on the balance of probabilities18) the following elements of the
       development offence:

       (a)     development, as defined in the PA, has been carried out on the land; and

       (b)     the development carried out for the purposes of (a) is assessable development
               as defined in the PA; and

       (c)     the assessable development identified in (b) has been carried out in the absence
               of all effective and necessary development permits.

[78]   CPAQ did not prove the first of the three cumulative elements of the offence created
       by s.163 of the PA. It has therefore failed to establish that a development offence has
       been committed under s.163 of the PA. This is so for the following reasons.

[79]   Development for the purposes of the PA is defined to include, inter alia, ‘making a
       material change of use of premises’. Schedule 2 of the PA defines ‘material change
       of use’ in the following terms:

                 “material change of use, of premises, means any of the following that a
                 regulation made under section 284(2)(a) does not prescribe to be a minor
                 change of use –

                 (a)     start of a new use of the premises;

                 (b)     the re-establishment on the premises of a use that has been
                         abandoned;

                 (c)     a material increase in the intensity or scale of the use of the
                         premises.”

[80]   The relevant aspect of the definition for this case is subparagraph (a). It will be
       satisfied where the ‘start’ of a new use of premises is identified. The ordinary
       meaning of ‘start is ‘to commence’. The plain meaning of ‘start’ does not encompass
       the continuation of a use19.

[81]   The evidence establishes the RV accommodation use started in late July 2014. This
       predates the PA and raises the following issue: Can an offence be committed under
       s.163 of the PA if the act relied upon to establish the offence occurred prior to the
       date the PA took effect (and the offence was created)20?

18
       At the upper end of the sliding scale recognised in Briginshaw v Briginshaw (1938) 60 CLR 336.
19
       For example, see Woolworths Ltd v Maryborough City Council & Anor [2005] QCA 62, [18] and
       [19].
20
       As is confirmed by ss.160(2) and 161 of the PA.