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

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                 “9      The Council submits that if the Court does not accept the Council’s
                         argument about the stayover area being ancillary to the park use, the
                         Court could make an enforcement order pursuant to section 180 of
                         the PA, with section 180(3) of the PA being potentially satisfied by
                         section 165 of the PA.” (emphasis added)

[89]   This submission is equivocal. To concede that section 165 of the PA is ‘potentially
       satisfied’ admits of ambiguity. The provision is either satisfied, or it is not. This is a
       regrettable submission. Unfortunately, as a consequence, the alleged contravention of
       s.165(a) of the PA needs to be considered as if it remains an issue in dispute between
       the parties.

[90]   Section 165 of the PA states:

                 “165    Unlawful use of premises
                         A person must not use premises unless the use –
                         (a)      is a lawful use; or
                         (b)     for designated premises – complies with any requirements
                                 about the use of the premises in the designation.”

[91]   CPAQ rely only upon subparagraph (a) of s.165. It contends RV accommodation is
       not a lawful use of the land. There are two means by which a use may be a lawful use
       under the PA. The first is where s.290 is engaged. The second is where a use falls
       within the definition of lawful use in Schedule 2. The potential application of each
       provision requires an examination of the history of the RV accommodation use
       against relevant legislation, and planning instruments.

[92]   The RV accommodation use started in late July 2014. At this time, SPA was in force.
       The Rockhampton City Plan 2005 was also in force (2005 Planning Scheme). For
       the purposes of the 2005 Planning Scheme, Kershaw Gardens was included in the
       Public Open Space zone in the North Rockhampton Residential Consolidation Area.
       In that Zone, the making of a material change of use for the purposes of a Park was
       exempt development21. In July 2014, ss.235(1) and (2) of SPA provided that a
       development permit was not necessary to carry out exempt development, nor was it
       necessary for development of this kind to comply with planning instruments, other
       than a State regulatory provision.

[93]   Park was a defined ‘Community/Recreation’ use under the 2005 Planning Scheme.
       The definition was in the following terms:




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       s.3.3.1 of the 2005 Planning Scheme.