(Andrews SC DCJ - 3 July 2015)
Allen & Anor v Cairns Regional Council & Anor  QPEC 28
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 house.
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 approval.
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 status.
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 growing.
- 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 1996.
- There had been no material intensification of the use.
- The evidence was inconsistent with the use having been abandoned.
- 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 sought.
- In respect of costs it was appropriate to give liberty to each party to apply.