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

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[120]   Given the findings in paragraphs [92] to [113] above, I am satisfied CPAQ has
        established the RV accommodation use was not a lawful use of premises under the
        repealed SPA. The making of the material change of use contravened s.578 of SPA.
        The continuation of the use contravened s.582 of SPA. Accordingly, s.290 of the PA
        is not engaged here.

[121]   Second, a lawful use is defined in Schedule 2 of the PA as:

                  “lawful use, of premises, means a use of premises that is a natural and
                  ordinary consequence of making a material change of use of the premises in
                  compliance with this Act”

[122]   The definition of lawful use has two parts. First, it involves the identification of a use
        of premises that is a natural and ordinary consequence of making of a material change
        of use. Second, it requires the material change of use of premises identified to be in
        compliance with the PA.

[123]   The evidence establishes the RV accommodation use constituted a new use of the
        premises when started. By definition, this was a material change of use under SPA.
        The continuation of the use in those circumstances is the natural and ordinary
        consequence of the making of that material change of use, thereby satisfying the first
        part of the definition of lawful use.

[124]   The second aspect of the definition requires an examination of whether the identified
        material change of use is in compliance with the PA. I am satisfied the making of a
        material change of use of the land for the RV accommodation use has at no time been
        lawful. No development approval has ever been obtained by the Council to authorise
        the start of the use, let alone an approval to regularise it. The start of the new use
        constitutes assessable development for which the current laws in force require
        necessary development approvals. Those approvals do not exist. Compliance with the
        PA cannot be demonstrated.

[125]   Accordingly, the continuation of the RV accommodation use is not a lawful use as
        defined in Schedule 2 of the PA. I am, as a consequence, satisfied the Council has
        used the land in contravention of s.165(a) of the PA.

 What relief should be granted?

[126]   I am satisfied CPAQ has demonstrated a development offence (as defined in the PA)
        has been committed. The offence is a contravention of s.165(a). The power to make
        enforcement orders under s.180 of the PA is therefore enlivened.

[127]   The power to grant enforcement orders is discretionary in nature. Discretionary
        considerations do not play a part in the outcome of these proceedings. There are no
        discretionary reasons that militate against granting the enforcement orders sought.
        The Council did not plead, or persist with any submission to the contrary.

[128]   I will grant enforcement orders to bring the identified development offence to an end.
        The terms of the orders will be as follows24:



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        The final order will, in addition, need to include the note required by rule 665(3) of the UCPR.