In the case of Connolly v Brisbane City Council [2015] QSC 231, the Queensland Supreme Court provides guidance to local governments as to the permitted use of Crown land held on trust under the Land Act 1994 or its predecessor. In making this ruling, the Court has opened up the possibility of development of trust land outside of the express terms of the grant.

The Facts

This case concerned a development application for a 7 acre parcel of Crown land held by the Brisbane City Council on trust. Pursuant to section 334 of the Land Act 1962 (now repealed), land may be granted by the Governor in Council for a 'public purpose'. In this case, the land had been granted to Council for "Local Government (Swimming Pool) purposes and for no other purposes whatsoever". The use of this type of land is now governed by the Land Act 1994.

In accordance with the terms of the grant, the site had been developed and used as a public aquatic centre for some 40 years. In November 2013, the operator of the aquatic centre successfully obtained preliminary development approval for a number of refurbishments, chiefly a new gymnasium, swimming pool and ancillary structures. A concerned local citizen appealed Council's approval for construction of the gymnasium, and sought a declaration from the Supreme Court that any attempt to build a gymnasium on the land would be inconsistent with the terms of the grant.

The Decision

At the interim, the Court rejected the argument that the words "and for no other purposes whatsoever" restricted the use of the land to swimming pools alone. The phrase had been part of the pro forma deed, and would have brought about a result contrary to the legislation under which the land was granted.

Section 35(1) of the Land Act 1994 prescribes that land granted on trust by the Governor in Council must not be used in a manner "inconsistent with a purpose for which it was granted". Therefore, the Court was required to consider whether the building of a gymnasium was inconsistent with the purpose specified in the deed of grant, namely the use of a swimming pool.

The Court rejected the applicant's submission that an inconsistency arises purely because a gymnasium is not a place where one swims. The ordinary and natural meaning of "consistent" does not equate to it being "incidental", and therefore the gymnasium needn't be incidental to the use of a swimming pool. Rather, "inconsistency" requires some form of incompatibility or disharmony with the purpose of the grant.

The Court looked to the facts of the proposal and ultimately determined that the development of a gymnasium would not breach the trust under which the land was granted. Chiefly, the Court looked to the following factors as evidence that the proposed gymnasium would not be inconsistent with the terms of the grant of land:

  • That the proposed gymnasium would make up less that 1% of the total area of the Crown land;
  • That the approval for construction of a gymnasium contained an express provision requiring the gymnasium use to be subordinate and ancillary to the swimming pool, such as by being limited in hours of operation to when the pool was open;
  • There was no evidence the gymnasium and swimming pool would compete for the use of the amenities on site. For example, there was no evidence that cark parking spaces would be occupied by exclusive-gymnasium patrons, as users of the gymnasium would also be using the swimming pool.

Comment

This decision provides local governments with some assurance in their dealings with trust land outside of the express terms of the grant. The Court has adopted a wide view, confirming that the only restriction imposed by the grant is that the land not be used in a manner incompatible with the purpose of the grant. Nonetheless, caution should be exercised in applying the Court's logic too widely. In this case, the Court was asked to examine a use which clearly was not incompatible or disharmonious with the purpose of the grant.

How then will the Court define the fine line between a use that is compatible and one that is incompatible? This decision reinforces for Crown land held on trust to be used by a private entity for a commercial business, given a private enterprise is by nature incompatible with any "community purpose" or "public purpose" for which a grant could be made.

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