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

                                                       8

[16]   The Explanatory Notes purport to identify the characteristics a use should have to
       qualify as an ancillary use. To the extent this is intended to state a test for ancillary
       uses, it has not been incorporated in the PA by the legislature. It has no statutory
       force. This aspect of the Explanatory Notes is therefore of limited assistance in the
       determination of this case. In my view, this is supported by s.14B(1) of the Acts
       Interpretation Act 1954.

[17]   For the purposes of s.14B(1), the definition of ‘use’ in the PA is not ambiguous or
       obscure, nor does the ordinary meaning of the definition lead to a result that is
       manifestly absurd or unreasonable17. Accordingly, the assistance the Explanatory
       Notes can provide is limited to confirming the interpretation of the definition of use.
       It confirms, consistently with paragraph [9] of these reasons, the definition, and the
       term ancillary, are to be given their plain meaning. The correct test to consider is
       whether a use falls within the plain meaning of ‘ancillary’.

The RV Accommodation use

[18]   It is necessary to set out some relevant background about Kershaw Gardens, and the
       RV Accommodation use before dealing with the issues to be determined.

[19]   Kershaw Gardens is a regional park located at Moores Creek Road, Park Avenue in
       Rockhampton. It comprises two contiguous lots, namely Lot 230 on SP143262 and
       Lot 1 on RP619483 (the land). Lot 230 is 26.1 hectares in size, and is dedicated as
       reserve for park and recreation purposes. The Council has control of Lot 230 as
       trustee, and must manage and maintain this land in a way which is consistent with the
       purpose of the reserve. Lot 1 is 0.2836 hectares and located in the north-eastern
       corner of Kershaw Gardens. It is owned by the Council in fee simple.

[20]   The land is irregular in shape and, as an amalgam, is approximately 26.4 hectares in
       size. It is bounded by Moores Creek to the east, Moores Creek Road to the west,
       Dowling Street to the south, and High Street to the north.

[21]   Council’s internal planning for Kershaw Gardens divides it into three precincts,
       namely the South, Central and North Precincts. The Central precinct was recently
       upgraded and improved with playground facilities, public amenities, barbeques and
       sheltered seating areas. A network of paths (of which an expansion is planned) is
       provided for pedestrians to navigate their way through the precincts. The Park is not
       improved to facilitate use during the night time hours. For example, there is no
       floodlighting for the network of internal pedestrian paths to be safely traversed at
       night.

[22]   The use of Kershaw Gardens as a large public park has been interrupted in recent
       years. Cyclone Marcia caused significant flooding in late February 2015 and, as a
       consequence, the park was closed. Prior to re-opening the park, the Council
       undertook, and continues to undertake, work to enhance the park facilities for the
       public benefit. An example of the works undertaken include those referred to in
       paragraph [21] above.




17
       s.14B(1) of the Acts Interpretation Act 1954.