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

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           COUNSEL:                  M Batty for the Applicant
                                     N Loos for the First Respondent

           SOLICITORS:               McCullough Robertson for the Applicant
                                     Holding Redlich for the First Respondent

Introduction

    [1]   Caravan Parks Association of Queensland Limited (CPAQ) represent the interests of
          caravan park owners and operators in Queensland. In that capacity, it filed an
          Originating Application in this Court seeking a declaration under the Planning &
          Environment Court Act 2016 (Qld) (PECA) and enforcement orders under the
          Planning Act 2016 (Qld) (PA). The relief is sought in relation to a decision by the
          Rockhampton Regional Council to permit self-contained recreational vehicles to
          camp for a period up to 48 hours, for no fee, on public parkland known as Kershaw
          Gardens (RV accommodation). This use started in late 20141, and is a continuing
          use.

    [2]   While it accepts there is doubt about the utility of the declaratory relief sought in the
          Originating Application, CPAQ presses for enforcement orders against the Council
          under s.180 of the PA. The power to grant this relief is enlivened where the court is
          satisfied a development offence created by the PA has been committed, or will be
          committed unless restrained. The central issue to be determined in this proceeding is
          whether a development offence created by the PA has been committed.

    [3]   In this regard, CPAQ alleges RV accommodation commenced, and has continued,
          unlawfully in the absence of an effective development approval authorising the
          making of a material change of use. This is said to constitute a development offence.
          Two specific offences are alleged, namely, contraventions of ss.163 and 165(a) of the
          PA.

    [4]   The Council accepts it does not have an effective development approval to authorise
          the making of a material change of use for RV accommodation, but opposes the relief
          sought by CPAQ. It does so on a limited basis. The Council’s case focuses on the law
          in force at the time the Originating Application was heard. It contends no
          development approval is required to regularise the use because it is ‘accepted
          development’ under the PA2.

    [5]   The definition of ‘use’ in the PA is central to the Council’s case. In reliance upon this
          definition, it contends the existing use of Kershaw Gardens, as a whole, is a single
          planning unit. It is submitted by the Council that RV accommodation is an ancillary
          use of Kershaw Gardens, forming part of a single planning unit. The single planning
          unit is said to be properly characterised by its dominant purpose, namely, a park. This
          is a defined use in the Council’s current planning scheme, Rockhampton Regional
          Planning Scheme (the 2015 Planning Scheme).



1
          The use appears to have been interrupted for an undefined period as a consequence of Cyclone Marcia
          in late February 2015. Neither party contended the interruption to the use was material to the
          determination of the proceeding.
2
          Exhibit 2, p.735, paragraph 15.