Introduction

There will be a prolonged and costly rebuilding period for the many areas of Queensland affected by the flood and cyclone events of recent months. Questions may arise about what one is entitled to rebuild and what changes can be made to the form of previous use. The intention of this paper is to identify some significant aspects of planning law that are relevant to the process of rebuilding – to give you the law behind the headlines. We have endeavoured to provide examples of how the law is treated in the courts to illustrate the aspects of planning law outlined.

There will be instances where entire buildings and structures have been destroyed or will be demolished as the building is no longer viable for continued use due to contamination or water damage. Some owners may take advantage of the need to rebuild or repair buildings to change how they were previously built or operated. This paper gives some examples of the tolerances given by the Court to these types of changes.

In undertaking or monitoring the rebuilding process, land owners and assessing authorities must have regard to the development approvals or pre-existing use rights relevant to each property. Some uses will have been carried out under development approvals for a material change of use. Others may have been put in place without the need for any approval for a material change of use. A few scenarios can be identified in terms of the planning process a land owner must go through to rebuild and re-establish a use falling into one of these categories.

Where a use was operating under an existing development approval prior to the floods and cyclone Yasi that approval will generally remain current. It could only have lapsed if the use had not commenced within the relevant period stated in the development approval, or if the use had been intentionally abandoned prior to the floods and cyclone. Rebuilding within the conditions of an existing development approval or continuing an existing use right should generally not be controversial. Problems will generally arise where:

  1. In rebuilding or repairing a property, the rebuilt use will no longer be generally in accordance with the development approval given for the property prior to the floods and cyclone, or will constitute a material change of use, or
  2. a use has been operating under lawful pre-existing use rights – i.e. not under a development approval – then a question may arise about whether a re-established use is a material change of use. This scenario will arise where a use has continued on land since being lawfully started under a previous planning scheme or version of a planning scheme or even prior to commencement of the very first planning scheme. Again, a material change of use will trigger the need for assessment.

There are a number of other issues that must also be considered – such as requirements for approval for building works, the impact of heritage listing, the impact of emergency exemptions within the Sustainable Planning Act 2009 (SPA) and the recent announcement of the Queensland Reconstruction Authority.

Some key things to consider

Some key things to consider in going through the planning process for reestablishing uses of premises are:

  • Whether the use that is to be reestablished operates under a development approval. If so, the approved plans will need to be considered and an assessment made about whether what is to be reestablished is generally in accordance with those plans.
  • Whether any changes proposed to an approved plan are significant when judged against relevant planning guidelines in force at the time of the original approval, as well as any new guidelines.
  • A use cannot be reestablished based on existing use rights or based on a development approval if a new use is being introduced or a material change of use will occur.
  • Determine whether existing use rights arose under the repealed Local Government Act 1936 – if so rebuilding structures and buildings will mean existing use rights are lost.
  • A decrease in the intensity or scale from the previous use will not be a material change of use.
  • A material increase in the intensity or scale from the previous use will result in a material change of use.
  • A reestablished use does not need to be reestablished in precisely the same form.
  • Care needs to be taken to ensure all necessary approvals are obtained when undertaking works to heritage places.
  • Some works and uses can be carried out in emergency circumstances – but there is still a process to follow for these.
  • There may be changes to the planning process when the Queensland Reconstruction Authority is established.

Generally in accordance with approved plans

Most development approvals will contain reference to approved plans that dictate the location and form of development that is authorized by the development approval. A development approval will also usually include a condition requiring that development be carried out in accordance with, or generally in accordance with, the approved plans.

The terms “in accordance with” and “generally in accordance with” are the same thing.1 So what do they mean? How much variance from the plans is permitted in a rebuild?

Some of the criteria the Court sees as relevant are:

  •  It is not necessary to examine whether a proposal is a better or worse outcome2
  • Where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the land owner3
  • If a condition is imposed which restricts an approval, it should be expressed fairly4
  • When interpreting a development approval, the interpreter is not looking to find what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended. Instead, the written terms must be interpreted, in context, but having regard to the ongoing function of the approval5
  • Use rights are determined from the approval itself, which may include other material (such as the original development application) by express or necessary implication6
  • The town planning criteria against which proposed changes should be judged include new guidelines and philosophies7
  • The words of an approval should not be construed in an overly technical way, or scrutinised in the same way as words used by the parliamentary drafts-persons8
  • The less detail and precision in an approved plan or document, the more flexibility there is in the phrase “generally in accordance with”.9

Some examples of what the Court has considered in the past to be generally in accordance with an approved plan follow.

  • Proceedings arose about a Council’s decision about an approval for a 9 storey building of 32.9 metres. The changes proposed to that were to increase the height by 3.5 metres, reduce the number of residential units, slightly decrease the overall width of the building, increase the number of car parks by one and increase the boundary clearance by one metre. The maximum height of buildings under the relevant planning scheme and the earlier planning scheme, under which the approval was given, were 37.5 metres and 52 metres respectively. The Court considered these changes to be of no real consequence. The height increase was counterbalanced by the reduction in perceived bulk of the building.10
  • The Court was asked to consider a proposal for six new holes in a golf course. Since the relevant approved plan of development, a legal requirement had been introduced to protect a wetland on the property and, as a result, the originally proposed nine holes were no longer feasible or lawful. The Court considered that the approved plan of development envisaged the land would be used for a golf course and the changed plan ensured this, albeit on a lesser scale. The Court found the change to six holes was generally in accordance with the approved plan of development. It said that it would be a strange result if the reduction caused by the legal requirement to protect the wetland was said to be a change that was dramatically different, or strikingly different.

Some examples of what the Court has considered to not be generally in accordance with an approved plan are:

  •  The Court had to consider an increase in height of a building from an approved maximum height of 16.5 metres, to an actually constructed height about 1 metre higher than the approved maximum. The relevant planning scheme provided that development with a maximum height of 16.5 metres would be code assessable, not impact assessable. Development higher than 16.5 metres was not preferred in the planning scheme and was impact assessable. The Court found that it was material that the higher building had avoided impact assessment, which would have meant the development was not preferred and would have allowed for third party rights. It was considered not to be generally in accordance with the relevant approval.11
  • An increase from 12 two-storey townhouses to 24 two-storey townhouses on the highest and most sensitive part of a site, with other changes elsewhere on the site, was not generally in accordance with the approved plan. The town planning context of the site called for a detailed indication of the intensity, positioning and built form proposed on the site. The changes resulted in too great an intensity of built form on a sensitive and more prominent part of the site. This was despite the overall development being less obtrusive.12
  • An approved plan of development allowed for thirty-eight holiday units, with a requirement for car parking spaces in accordance with the Council’s parking policy. The developer proposed that twelve of these be provided as tandem car parking spaces – with one vehicle parking behind the other. The Court considered the important implications in the case related to traffic and parking management. Neither the parking policy nor the original development application contemplated tandem bays. The result of the tandem bays was that at times tenants’ vehicles would be “parked in”. In light of the fact that the parking policy did not contemplate tandem bays and the importance of traffic and parking management, the changes proposed were not generally in accordance with the approved plan of development.
  • An initial, preliminary, approved plan gave rise to the inference that further refinements to the plan would be necessary. However, the changes proposed in this case increased the capacity of villas from having a veranda, living area, one bedroom and one bathroom to a having a dining and living area, three bedrooms, two bathrooms and five decks. The gross floor area of buildings increased by over 1200m2. Car parking spaces had increased from 31 to 41. The Court considered that the layout of the villas was markedly different, with seven villas now proposed within an area shown on the approved plan as central landscaped outdoor recreation area. The Court found that there were some benefits from reconfigured open space and the maintenance of a higher proportion of existing vegetation and a reduction in total “hard space” area. However, it considered that the new proposal was dramatically different from the approved plan. The important planning elements were the size, scale and occupancy numbers. In that context, the proposal was not considered to be generally in accordance with the approved plan.13
  • An approved plan of development for a site showed a building raised above ground level, with grounds including gardens, four pools and a footpath, to produce a general plaza effect. The approved plan sought to maintain views under the building to other heritage buildings and the city and to produce pedestrian movement around the site. A proposed plan brought the building to ground level and replaced the pools and gardens with above ground parking. The Court found that the overall effect was very different from that envisaged in the approved plan. The proposed development adversely affected pedestrian movement throughout the site and also failed to retain heritage characteristics of the site. As a result, the Court found that the changes sought were not in accordance with the approved plan.14
  • An approved plan of development was for a total of fifty two-bedroom and three-bedroom attached or semi-detached dwellings. The developer proposed to develop 135 single bedroom tourist accommodation units, made up of 43 detached units and 92 residential units The Court found that this proposed change was not generally in accordance with the approved plan of development, because it involved two new uses, would trigger new referral agencies, was a significant intensification and involved new assessable development such as a waste water plant.15

Material change of use and lawful existing use rights

Where there is no approval or approved plan against which a proposed change is to be assessed, one should consider whether the change results in a material change of use. The SPA defines a material change of use as:

  • the start of a new use of the premises, or
  •  the re-establishment on the premises of a use that has been abandoned, or
  • a material increase in the intensity or scale of the use of the premises

 A decrease in the intensity or scale of a use is not considered a material change of use.

The introduction of new uses is a material change of use.

Sections 681 to 682 of the SPA protect existing uses and buildings from becoming unlawful as a result of the SPA or changes to planning schemes. Similar provisions were in place in predecessor legislation. Uses protected under these provisions are given lawful existing use rights.

In considering if a lawful existing use rights exists and whether a material change has occurred from that use the courts have applied the following principles.

Where a pre-existing use derived its first protection under the Local Government Act 1936 replacing buildings will be a material change of use

In Brisbane City Council –v- Boral Resources (Qld) Pty Ltd16, the Court of Appeal held:

  • The statutory protection provided to existing lawful uses is under the statute which was in effect when the use became an existing lawful use. In this case, the existing lawful use rights were triggered in 1978 when a planning scheme made the use a permissible use. Consequently the statutory protection which applied was that given under section 33(1A) of the now repealed Local Government Act 1936 (repealed LGA).
  • Under section 33(1A) of the repealed LGA, if a part of a building or structure the subject of existing lawful use rights is demolished and rebuilt, then the existing lawful use rights for that part of the building or structure are lost.

 It is unclear whether the Brisbane City Council –v- Boral Resources (Qld) Pty Ltd judgement applies to demolitions and rebuildings in the context of the SPA and this issue has not yet been considered by the Courts. However, it is a Court of Appeal judgment and should be given the appropriate weight.

The key thing for existing lawful uses is to determine whether they arose under the repealed LGA. If so, replacing structures and buildings will mean existing use rights are lost and the use is not protected by sections 681 to 682 of the SPA.

 A pre-existing right of use does not need to continue in precisely the same form to be protected

This test was first outlined in Shire of Perth v O’Keefe17 and has been applied many times since. The court held that:

“… it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of the gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use of that purpose may alone continue but that the use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities or through a precise cataloguing of individual items of goods dealt in but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.”

In this case, the parties agreed that at the time of the publication of the by-laws (at the time the lawful existing use right crystallised), the land was being used for the purpose of pottery making. The court found that changes in the method of pottery manufacturing would be immaterial, but that the use of the premises for anything other than pottery manufacturing would be a substantial and different purpose.

This test was also applied in considering if there had been a material change in the use of a property that provided accommodation for people with intellectual or psychological disabilities. The residence had previously been used to provide accommodation and care for the elderly.

In applying the test outlined in Shire of Perth v O’Keefe the Court found that services provided for the current residents were in fact similar to the services provided for the elderly. The use was found to be substantially the same as the common elements were residence, care and disability. The fact that the clientele had changed did not mean that the use had changed or been abandoned.18

In applying this test, regard must be had to the specific form of the pre-existing use to determine if the use has continued in substantially, although not precisely, the same form. In Esk Shire Council v John Jackson and Ors19 the land in question had been granted consent for “stockpile gravel – screening gravel”. The court was asked to consider if the operations were lawful as their activities included wet screening or washing of gravel. The court found that the activities were not within the description of “screening gravel” as that activity produced an entirely different product to the process of wet screening or washing of gravel.20

 A pre-existing right of use may extend over adjoining parcels of land

This principle was established in Parramatta City Council v Brickworks.21 A brick works had operated for a substantial period of time on a parcel of land prior to the publication of by laws which would have prohibited the use of that land for that purpose. An adjoining parcel of land was purchased after the publication of the by-laws with the intention of holding it for later use as part of the brickworks. Several years later, the brickwork operations were extended onto the new parcel of land.

The court held that the new parcel of land had become part of an entire area which was wholly devoted to the purpose of quarrying and brick making. As a result, the protection of an existing use right extended over the adjoining parcels held by the operator. The operator was entitled to the saving provision.22

A similar finding applied to a large holding of land in McNaught and Keating and Ors v Kingaroy Shire Council and Anor23. A large parcel of land had been subdivided and re-subdivided over a long period of time. The pre-existing use was for a bacon factory situated on a particular section of the land. Effluent and waste from the factory was disposed of on the land. Effluent was dispersed over the ground by spraying and other waste was buried on various sections of the land. Despite the subdivisions, the land owners had always treated the land as one parcel, paying rates for the land as a whole. The court held that the pre-existing use right existed over the adjoining parcels held in the same ownership and for the same purpose.24

A pre-existing use right was also found to extend to a number of adjoining parcels held for the purpose of feeding cattle. The land in question was made up of three separate parcels held by one owner. Cattle feeding originally commenced on one parcel but later extended to other parts of the land held by the same owner. The land was never fenced or operated with reference to the boundaries of the individual parcels. The land was treated and run as one property. The court held therefore that the existing use right extended over all three adjoining parcels.25

 More than one use may be carried out over the same premises

It is not necessary that one use is applied exclusively to premises. In Gatton Shire Council v Toby Lane Pty Ltd26 the land in question had been used for cattle grazing and also lot feeding of cattle. The proportion of the two uses varied over time, depending on the market price for beef cattle. It was held that both uses extended over the entire parcel of land and that two uses could be carried on over the same premises.27

Continuity of use

The pre-existing use must be continuous over the life of the holding. In McNaught and Keating and Ors v Kingaroy Shire Council and Anor, the dominant pre-existing use of the land was for the purposes of a bacon factory. At various times, small parcels of the land holding were let to share croppers whilst the operations of the bacon factory continued on other parts of the land. In some cases, this arrangement continued over a long period of time. The court held that despite the use of parts of the land holding for functions other than the dominant use, the dominant use was found to be continuous and applied to the entire holding. The parcels of land on which share cropping took place, were not severed from the benefit of the existing use right.28

It may be possible to show that a use has been abandoned and this is a question of fact to be determined with regard to the circumstances of the case, and in particular, with regard to the nature of the use in question. It is possible that a use may be recurring or intermittent. The physical cessation of the use during the intervening periods does not necessarily constitute abandonment.29 A failure to use to capacity is also not evidence of abandonment.30

In Mac Services Group Limited v Belyando Shire Council & Ors31 the court considered if a pre-existing use right over land used for a works camp had been abandoned. The court considered carefully the nature of a ‘works camp’ and found that such a camp may be “characterised by inconsistent use patterns in terms of both time and scale” as the camp provided accommodation for itinerant workers. Evidence that the facilities and services were retained (although at varying levels) over a long period of time enabled the court to find that the use had not been abandoned despite being physically discontinued at various times.

The intensity of an activity may vary over time but if the activity is continuous, the pre-existing use right will not be inhibited. The varying intensity of lot feeding on the property of Toby Lane32 did not prevent the court from finding that the pre-existing use right continued and had not been abandoned.

The cessation of a use solely as a result of the floods or cyclone will not be considered abandonment.

Any change in intensity or scale must be material

This is a question of fact and degree as to the change in intensity or scale of the use.33 Regard must also be had for relevant legislation and planning instruments to determine if a change will require re-assessment as a new or changed use.34 The court has considered that an increase in provision of accommodation for 40-50 workers to 72 workers at a work camp was not significant enough to constitute material change.35

It seemed very easy for the court to conclude that a material change in intensity or scale had occurred in the case of Sunshine Coast Regional Council v Flanigan & Ors.36 The evidence that the floor area of the premises had been doubled by an extension; that the number of on-site car-park spaces and computer work stations had substantially increased; and that consequently the profits of the business had also increased was, in the words of the court, “overwhelming”.37

In the case of Maroochy Shire Council v James Barns38 the court reviewed the scale or intensity of forestry over a long period of time to determine if there had been a material change. The evidence demonstrated that the cutting in question was twice as heavy as logging on any earlier occasion. In addition, species of trees which had not previously been logged were felled on this occasion. This harvesting of trees was intended to continue at the same intensity. The court found that such a substantial increase did in fact, constitute a material change in scale or intensity necessitating an assessment by the relevant authorities.

Building works and heritage buildings

Structural work or rebuilding of buildings will require a building approval to be obtained (generally from a private certifier). In some instances, local governments may also have specific requirements for building approvals.

The Brisbane City Plan provides that building work is exempt development (not requiring any development application to the Council) if it is for the restoration of a building to its original condition, where that building has been accidentally damaged or destroyed. This would apply to buildings that have been adversely affected by the floods. There are also some aspects of filling or excavation, in the Brisbane City area, that are exempt from assessment against the planning scheme. There are no equivalent provisions in the Toowoomba, Ipswich, Johnston or Cardwell Planning Schemes.

Things are a bit more complicated where heritage listed buildings have been damaged, but not completely demolished, by the floods or cyclone. In those instances, a development application may be required to demolish or repair the buildings. If the buildings are listed on a heritage register, works to them will need to be assessed by the relevant local government, Department of Environment and Resource Management and the Queensland Heritage Council, depending on whether they are on the state heritage register or the local government heritage register.

Emergency works

The SPA contains offence provisions for carrying out development or a use without the appropriate development approval, or not in accordance with a development approval. However, in emergency circumstances a person or corporation is exempt from these offence provisions. Section 584 provides that the exemption applies (as a general rule) if the development is carried out because of an emergency endangering the life or health of a person or the structural safety of a building. The person carrying out the development or use must notify the relevant assessing authority as soon as practicable after starting the development or use.

The general rule is slightly different for tidal works or building works on a local or Queensland heritage place. In those situations, emergency work can be carried out, but a few extra steps must be taken before it is carried out – such as, for tidal works, preparing a safety management plan with advice from a registered professional engineer and, in both cases, making a development application for the works once completed.

Minister Hinchliffe, for the Department of Infrastructure and Planning, has already issued a media statement advising that it considered the repair of fire safety equipment to fall under the emergency works provisions of the SPA.39  

Queensland Reconstruction Authority here