Planning and environment – whether a wholesale nursery
use was an existing use on 29 November 1996 – whether the use
was then lawful "Agriculture" or unlawful "Rural
Industry" – whether the use was abandoned –
whether there was a material change of use by intensification since
30 March 1998 – whether a shade house used for the wholesale
nursery was unlawful – whether use of an unlawful shade house
was a public policy basis to refuse declarations
Facts: This was a proceeding about the
lawfulness of a wholesale nursery being operated on land outside
Cairns by the applicant (Edgewill).
The proceeding arose from a Show Cause Notice issued by Council
in relation to the nursery use.
After receiving the Show Cause Notice, an application was made
for a development permit. The application was approved and was the
subject of an appeal by a submitter (Barnes). Council subsequently
advised the applicant that it did not believe the development
application was required because Edgewill had the benefit of
existing lawful use rights.
Dracaena plant stock were first grown on the land in 1990. The
evidence showed that palms were also propagated and sold from the
site in 1991. Potted dracaenas propagated on the land were first
sold at the end of 1993. Palms ceased being sold from the site from
1994. In 1994 or 1995, a business partner joined the operation.
This continued until the end of 1996, at which time the business
was mainly the sale of dracaenas.
From about 1998 a truck began to call at the site to collect
stock once per week. In about August 2002 a new shade house was
built on the eastern boundary to replace a shade house on the
western boundary. No approval had been obtained for that shade
The first question for the Court was whether the wholesale
nursery use began before 29 November 1996. If it commenced after
that date, various planning schemes would have prohibited its
commencement and it would now be unlawful without development
If it commenced before that date, the second question was
whether it was either lawful "Agriculture" or unlawful
"Rural Industry" under the relevant planning scheme at
the time. The Barnes submitted that the dominant use was the
propagation process after dracaena canes were cut from the
motherstock. They submitted that propagating canes cut from
dracaenas was not incidential to or necessarily associated with
growing mother stock because the canes could be imported from
elsewhere. The applicants submitted that the principal use was the
growth of the mother stock draecana.
If it was lawful "Agriculture", the third question was
whether it had been temporarily abandoned so as to lose its lawful
If it had not been abandoned, the fourth question was whether it
had materially changed since 30 March 1998 (the date from which the
notion of "material change of use" was introduced by the
Integrated Planning Act 1997).
The last question was whether the applicants were precluded from
obtaining a declaration as a matter of public policy because their
use of the premises had included activity in a shade house which
may not have had building approval.
Council supported the application for declarations. Edgewill
submitted that this was significant.
If Edgewill failed to obtain the declarations sought, it had the
benefit of the approval that had been issued and the Barnes would
be at liberty to continue their appeal.
Decision: The Court held:
The lawfulness or otherwise of the use was not affected by
Council's support for the application.
The plan for a wholesale nursery on the site was the basis for
numerous activities up to 29 November 1996. Those activities were
satisfactory to show that the wholesale nursery use had begun
before 29 November 1996.
The fact that crops grown on a farm were eventually cut on the
farm when harvested and handled or processed on the farm to a small
extent necessary to prepare the crops for transport would not
ordinarily suggest that the use of the land is industrial as
opposed to agricultural. This was primarily because the major
component of the process of producing the crop was sowing and
On the proper construction of the relevant scheme, the primary
use of the land was for growing in ground stock for its canes and
potted canes for marketable dracaenas. That use was
"Agriculture". Thus the use was lawful in November
There had been no material intensification of the use.
The evidence was inconsistent with the use having been
The past use of a shade house built without approval was not a
sufficient reason to refuse declarations in this case.
The applicants were entitled to the declarations they
In respect of costs it was appropriate to give liberty to each
party to apply.
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