This article considers the Planning and Environment Court decision of Neilsens Concrete Pty Ltd & Anor v Brisbane City Council [2020] QPEC 3 and whether a use right under a development approval can be abandoned.

Key takeouts

  • Ceasing activities does not equate to abandoning a use. Significant periods of inactivity will not necessarily result in a use being abandoned.
  • Whilst the question of whether a use has been abandoned is a question of fact to be determined objectively, the subjective intentions of the owner/occupier, and in particular, an intention to continue the existing use, is relevant.
  • Although each case will turn on its own facts, this article identifies a number of matters that may be relevant when considering whether a use has been abandoned.

Whilst the 'lapsing' of development approvals may be a familiar concept, a less talked about but no less important concept is the potential for a use right under a development approval to be 'abandoned', either by the operation of a condition of the approval, or by operation of law. This article considers this concept, and what practical steps can be taken to avoid a use right being abandoned.

A case in point

The Planning and Environment Court decision of Neilsens Concrete Pty Ltd & Anor v Brisbane City Council [2020] QPEC 3 considered whether a use right for a concrete batching plant had been abandoned.

In that case, the land was used as a concrete batching plant under a development approval given by the Court in 1983. The previous tenant ceased operations in 2012 and removed all plant and equipment in late 2014. The landowner (Orb Holdings Pty Ltd) engaged a real estate agent to secure a new tenant. Following complex and lengthy negotiations, Neilsens Concrete Pty Ltd entered into a contract to purchase the land in December 2018, with the intention of operating a concrete batching plant.

Before the purchase, Neilsens lodged a minor change application to Brisbane City Council. Council asserted that the use of land as a concrete batching plant had been abandoned. Neilsens and Orb then made an originating application seeking declarations from the Court that the use of land as a concrete batching plant had not been abandoned and the use could continue under the development approval.

The Court held that despite the long period of inactivity, the use had not been abandoned.

Ceasing activities does not equate to abandoning a use

The Court ultimately concluded in Neilsens that despite a significant period during which there was no activity on the land, the use had not been abandoned because the owner had advertised for and negotiated the lease or purchase of the land to be used as a concrete batching plant.

In doing so, the Court referred to the Supreme Court of South Australia's decision of Leeming v Port Adelaide City Corporation (1987) 45 SASR 506. In Leeming, the Court said (at p. 512):

'The concept of "use" of land in planning law is not to be equated with activity on the land, nor does a period of inactivity or failure to exercise the use actively necessarily indicate that the use has been terminated, that is to say discontinued.'

The Court in Neilsens also said:

'A period of inactivity on a vacant site for so many years could not be reasonably said to have been a mere “interruption” of the use of the land. That said, even a lengthy period of inactivity need not necessarily be indicative of an intention of abandonment.'

An intention not to abandon the use is relevant

The Court in Neilsens noted that whilst the question of whether a use has been abandoned is a question of fact to be determined objectively, the subjective intentions of the owner/occupier, and in particular, an intention to continue the existing use, is relevant.

In Neilsens, Orb demonstrated an intention to continue using the land as a concrete batching plant by trying to secure a tenant or buyer who would carry out the use. The Court distinguished this from other cases, such as Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGRA 130, where the owner closed down the premises, sold the stock, and resolved to sell the land resulting in an abandonment of use.

What does this mean in practice?

It is an offence to carry out assessable development or use land without all necessary development permits (see Sections 163 and 165 of the Planning Act 2016 (Qld)). As such, carrying out a use that has been abandoned would likely constitute a development offence.

As demonstrated by Neilsens, a cessation of activity associated with the use does not necessarily mean the use has been abandoned. Additionally, although the abandonment of a use is a question of fact to be determined objectively, the subjective intentions of the owner/occupier are relevant.

Although each case will turn on its own facts, the following matters may be relevant when considering whether a use has been abandoned:

  • Equipment, fit out or facilities remaining on the land despite business activities ceasing.
  • Maintaining a business name registration consistent with the use of land.
  • Maintaining any licencing or other registration requirements consistent with the use of land.
  • Stock associated with the use remaining on the land.
  • The owner continuing to pay rates consistent with the use.
  • The owner advertising and attempting to sell/lease the land with an intention to secure a buyer/tenant that will continue the use previously carried out on the land.
  • Unusual circumstances, such as protracted negotiations, lengthy litigation or the COVID-19 pandemic that explain why there has been a suspension in operational activities.

Future developments in this area

Whilst the current position in Queensland appears to be that a use right given under a development approval can be abandoned, there is commentary to suggest that it is not possible to abandon a use right given under a development approval. It will be interesting to see how this point is dealt with by the Courts moving forward.