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

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[112]   I am satisfied the RV accommodation use is properly characterised as a Tourist park
        under the 2015 Planning Scheme. It involves the use of premises to provide for
        accommodation in caravans for the public for short term holiday purposes. It is
        uncontroversial that, in the Open space zone, the making of a material change of use
        for a Tourist park is assessable development for which a development permit is
        required. The development application for such a permit is impact assessable23.

[113]   The RV accommodation use was not a lawful use when the 2015 Planning Scheme
        took effect. The 2015 Planning Scheme did not convert the use from unlawful to
        lawful. The continuation of the use at the time the 2015 Planning Scheme was
        introduced involved the commission of a development offence. The offence was
        against s.582 of SPA for the reasons given in paragraph [105] above.

[114]   Turning to the PA, it took effect on 3 July 2017. At this time, the 2015 Planning
        Scheme was in force, and was amended to align with changes in terminology in the
        PA. One alignment amendment involved changing the categorisation of the making
        of a material change of use for a Park in the Open space zone. It was changed from
        self-assessable development to accepted development. Section 44(4) of the PA
        defines ‘accepted development’ as development for which a development approval is
        not required.

[115]   A review of the 2015 Planning Scheme reveals that no material amendments were
        made with respect to the planning controls applicable to the RV accommodation use.
        The making of a material change of use for Tourist park in the Open space zone
        remained assessable development after 3 July 2017.

[116]   On 3 July 2017, the offence under s.165(a) of the PA was created. To engage this
        provision, CPAQ must establish the use of the land was not a lawful use on and from
        this date.

[117]   Section 20C of the Acts Interpretation Act 1954 (Qld) mandates the act that is made
        an offence by s.165 of the PA must be committed after 3 July 2017. It is admitted,
        and established on the evidence, that the Council used premises for the purposes of
        the RV accommodation use, and the use was a continuing use on and from 3 July
        2017. The question is whether the use carried out after 3 July 2017 was a lawful use
        for the purposes of the PA.

[118]   As I have already said, there are two provisions of the PA that determine whether the
        RV accommodation use was a lawful use on and from 3 July 2017. The first provision
        is s.290. The second provision is the definition of lawful use in Schedule 2. I am
        satisfied that neither of these provisions are engaged on and from 3 July 2017. This
        is so for the following reasons.

[119]   First, section 290 of the PA states:

                  “290   Lawful uses of premises

                         To the extent an existing use of premises is lawful when the old Act
                         is repealed, the use is taken to be a lawful use on the commencement.”




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        Table 5.4.3.2.