In the case of Connolly v Brisbane City Council
 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
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repealed), land may be granted by the Governor in Council for a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.
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
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
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.
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A lessee will need to demonstrate that the genuine interests of the lessor will be protected if relief is granted.
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