Council of the City of Gold Coast v Gold Coast Leisure Services Pty Ltd & Anor [2024] QPEC 10 (2025) QPELR 862

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Council of the City of Gold Coast v Gold Coast Leisure Services Pty Ltd & Anor [2024] QPEC 10 PARTIES: COUNCIL OF THE CITY OF GOLD COAST (Applicant) v GOLD COAST LEISURE SERVICES PTY LTD ACN 050 493 073 (First Respondent) AND SCOTT JONATHAN MENZIES (Second Respondent) FILE NO/S: 688 of 2023 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 21 March 2024 DELIVERED AT: Brisbane HEARING DATE: 12 to 15 February 2024 and further evidence and submissions received on 1 March 2024 JUDGE: Kefford DCJ ORDER: I order that: 1. if the Council persists in its application for costs, it is to file and serve any material that it seeks to rely on and written submissions not exceeding 10 pages in length with respect to its application for costs, by no later than 4 pm on 4 April 2024; and 2. The matter be listed for further hearing at 10 am on 10 April 2024 for the purpose of: (a) hearing any application for costs that the Council persists with; and otherwise, (b) hearing from the parties about any consequential relief or other matters arising. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – -- 1 of 134 -- 2 where the applicant seeks declaratory relief about the lawfulness of a land use – where the respondents say there is no utility to the declarations – whether declarations should be made PROCEDURE – STATE COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – ADVISORY OPINIONS AND HYPOTHETICAL QUESTIONS – where the applicant seeks declaratory relief about the lawfulness of land uses – where the applicant seeks declaration that development offences have been committed – where the applicant also seeks enforcement orders on the same basis – where the reasons must address the substance of the allegations and the lawfulness of use – where the applicant asserts the declarations have utility for the purpose of educating the public – whether granting declaratory relief is of utility – whether the declarations should be made in the exercise of discretion PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders to remedy the commission of development offences – where the applicant alleges that the first respondent is unlawful using premises – whether there are existing lawful use rights – whether the applicant has demonstrated the commission of the alleged development offence PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – ENFORCEMENT PROCEEDING – where the applicant seeks enforcement orders against the second respondent to remedy the commission of development offences – where the applicant alleges that the second respondent has committed an offence under s 227 of the Planning Act 2016 – whether the allegation of commission of that offence is sufficient to alert the second respondent of the commission of a development offence as a party – whether the applicant has demonstrated that the second respondent has committed a development offence PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – ENFORCEMENT PROCEEDING – whether the relief sought should be granted in the exercise of the Court’s discretion LEGISLATION: Administrative Boundaries Terminology Act 1985 (Qld) s 4 Criminal Code (Qld) s 7 Integrated Planning Act 1997 (Qld) ss 1.2.1, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5, 1.4.1, 1.4.6, 2.1.1, 2.1.2, 3.1.2, 3.1.4, 4.3.1, 4.3.5, 4.3.6, 5.7.1, 5.7.2, 5.7.3, 5.7.4, 5.7.5, 5.7.6, 5.7.7, 5.7.8, -- 2 of 134 -- 3 5.7.9, 5.7.10, 5.7.11, 5.7.12, 5.7.13, 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.23, sch 10 Local Government Act 1936 (Qld) ss 30, 31, 32, 33 Local Government Act 1993 (Qld) ss 16, 2, 23, 24, 25, 753, 757, 760, 935, sch 2 Local Government Act 2009 (Qld) ss 8, 9, 99 Local Government (Areas) Regulation 1995 (Qld) s 2, sch Local Government (Areas) Regulation 2008 (Qld) s 3, sch 1 Local Government (Operations) Regulation 2010 (Qld) ss 7, 26, sch 1, sch 6 Local Government (Planning and Environment) Act 1990 (Qld) ss 2.1, 2.2, 2.10, 3.1, 3.3 Local Government Regulation 2012 (Qld) ss 6, 62, sch 8 Penalties and Sentences Act 1992 (Qld) s 181B Penalties and Sentences Regulation 2015 (Qld) s 3 Planning Act 2016 (Qld) ss 3, 4, 6, 43, 44, 161, 163, 165, 167, 180, 181, 227, 260, 264, 265, 284, 290, sch 2 Planning and Environment Court Act 2016 (Qld) ss 10, 11, 55, 61 Planning and Environment Court Rules 2018 (Qld) r 9 Planning Regulation 2017 (Qld) ss 70, 71, sch 22, sch 23 Statutory Instruments Act 1992 (Qld) ss 4, 7, 14, 19, 37, sch 1, sch 2 Survey and Mapping Infrastructure Act 2003 (Qld) ss 3, 5, 57, 140, sch Sustainable Planning Act 2009 (Qld) ss 3, 6, 7, 8, 9, 10, 79, 80, 81, 82, 231, 235, 236, 237, 238, 239, 342, 578, 582, 681, 682, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 778, sch 3 CASES: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395, approved Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, approved -- 3 of 134 -- 4 Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, approved Baxter v Preston & Ors [2022] QCA 146, applied Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613, approved Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, approved Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336, applied Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, approved Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, approved Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, applied Collector of Custons v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, applied Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297, applied Cook v Woollongong City Council (1980) 41 LGRA 154, applied Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, applied Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, applied Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied Gatton Shire Council v Toby Lane Pty Ltd [1997] QPELR 285, approved Gerhardt v Brisbane City Council [2017] QPEC 49; [2017] QPELR 1067, approved Gorrie v Mackay City Council [2002] QPEC 74; [2003] QPELR 328, approved Ipswich City Council v Vaughan (1986) 61 LGRA 34, applied Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, approved -- 4 of 134 -- 5 KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2004] QPEC 31; [2005] QPELR 28, approved Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, cited Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied Maroochy Shire Council v Barnes [2001] QPEC 31; [2001] QPELR 475, approved Maroochy Shire Council v Barnes [2001] QCA 273, applied Marshall v Averay [2006] QDC 356; [2007] QPELR 137, approved McNaught & Keating & Ors v Kingaroy Shire Council & Anor [1996] QPELR 215, approved Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, applied Norman v The Council of the Shire of Gosford & Anor [1975] HCA 15; (1975) 132 CLR 83, applied Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, applied R v Ernst [2020] QCA 150, considered Rosenblum & Anor v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35, applied Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, applied Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, applied SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied Shire of Perth v O’Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529, applied St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, applied Sunshine Coast Regional Council v Flanigan [2009] QPEC 68; [2010] QPELR 97, approved Sydney City Council v Ke-Su Investments Pty Ltd & Ors (No. 2) (1983) 51 LGRA 186, applied Sztal v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, applied -- 5 of 134 -- 6 Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, applied The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, applied Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750; (2021) 66 VR 56, approved Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 3; [2017] QPELR 264, approved Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied COUNSEL: G Gibson KC and K Wylie for the Applicant S Holt KC and D Purcell for the First and Second Respondents SOLICITORS: McInnes Wilson Lawyers for the Applicant MacDonnells Law for the First and Second Respondents TABLE OF CONTENTS Overview .............................................................................................................................. 9 What is the relief sought by the Council? .......................................................................... 14 What is the nature of the proceeding? ................................................................................ 15 What are the relevant legal principles for declaratory proceedings? ................................. 16 Are there fundamental difficulties with the Council’s Originating Application? .............. 18 Is the type of declaratory relief sought appropriate? .......................................................... 19 Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies? ................................................................................ 23 Is there a difficulty with the first form of relief sought with respect to Mr Menzies? ... 23 Is there a difficulty with the second form of relief sought with respect to Mr Menzies? ........................................................................................................................................ 24 Do the particulars matter or can the Council now advance a different case?............. 26 Is there a material defect with the Council’s pleaded case against Mr Menzies in relation to the second form of relief? ......................................................................... 28 Is there a difficulty with the third form of relief sought with respect to Mr Menzies? .. 28 Should the Council be permitted to advance a differently particularised case? ............. 29 Does the case that the Council now seeks to pursue against Mr Menzies warrant the grant of relief? ................................................................................................................ 29 What is the relevant legislative context for enforcement proceedings? ............................. 30 What are the offences in issue? .......................................................................................... 31 What is the alleged offence under s 163 of the Planning Act 2016?.............................. 32 -- 6 of 134 -- 7 What is the alleged offence under s 165 of the Planning Act 2016? .............................. 33 What must the Council demonstrate for the development offences in this proceeding? 36 What are the key issues to be determined? ......................................................................... 36 Key issue 1: Was a new use of the Premises unlawfully started between August and December 1998? ................................................................................................................. 36 What is the relevant legislative context under the Integrated Planning Act 1997? ........ 38 What are the issues in dispute with respect to the first alleged material change of use? 41 Did use of the Premises commence between August and December 1998? .................. 41 Does the evidence adduced by the Council establish the commencement of the use as alleged? ....................................................................................................................... 42 What additional evidence does the Council rely on to discharge the onus? .............. 44 Is there a fundamental flaw in the Council’s case with respect to its first alleged material change of use? .............................................................................................. 46 What does the evidence establish about the use of the Premises between 1988 and December 1998? ......................................................................................................... 49 Was the first alleged material change of use made assessable development under the 1994 Planning Scheme? ................................................................................................. 54 What is assessable development under the Integrated Planning Act 1997? ............... 55 What is the jurisdiction of the Council under the Integrated Planning Act 1997? ..... 56 How was the Council’s local government area defined? ........................................... 56 Are the premises located within the Council’s local government area as shown on area maps LGB58 Edition 3 and LGB58 Edition 4? .................................................. 57 Did the 1994 Planning Scheme make a material change of use of the Premises assessable? .................................................................................................................. 61 Was the use of the Premises a lawful use for s 4.3.5 of the Integrated Planning Act 1997? .............................................................................................................................. 64 What are the relevant legal principles with respect to existing lawful use rights?..... 65 Was there a lawful use at the time that the 1994 Planning Scheme commenced that persisted in 1998? ....................................................................................................... 69 Did the Chapter 36 By-law terminate the existing lawful use rights? ........................ 71 Conclusion about whether the use of the Premises was a lawful use for s 4.3.5 of Integrated Planning Act 1997? ................................................................................... 82 Conclusion regarding the Council’s allegations about the first alleged material change of use .............................................................................................................................. 82 Key issue 2: Was there an unlawful material change in the intensity or scale of the use of the premises between January 2010 and November 2011? ................................................ 82 What is the relevant legislative context under the Sustainable Planning Act 2009?...... 84 What are the issues in dispute with respect to the second alleged material change of use? ................................................................................................................................. 87 Was there a material increase in the intensity or scale of the use of the Premises between January 2010 and November 2011? ................................................................. 88 -- 7 of 134 -- 8 Was the second alleged material change of use made assessable development under the 2003 Planning Scheme? ................................................................................................. 99 What is assessable development under the Sustainable Planning Act 2009? ............ 99 What is the jurisdiction of a local government under the Integrated Planning Act 1997 and the Sustainable Planning Act 2009? ......................................................... 100 How was the Council’s local government area defined? ......................................... 100 Are the premises located within the Council’s local government area as shown on area maps LGRB30 Edition 2 and LGB30 Edition 1? ............................................. 101 Did the 2003 Planning Scheme make a material change of use of the Premises assessable? ................................................................................................................ 105 Was the use of the Premises a lawful use for s 582 of the Sustainable Planning Act 2009? ............................................................................................................................ 106 Conclusion regarding the Council’s allegations about the second alleged material change of use ................................................................................................................ 107 Key issue 3: Was there an unlawful material change in the intensity or scale of the use of the premises between August 2017 and November 2018? ............................................... 107 What is the relevant legislative context under the Planning Act 2016? ....................... 109 What are the issues in dispute with respect to the third alleged material change of use? ...................................................................................................................................... 111 Was there a material increase in the intensity or scale of the use of the Premises between August 2017 and November 2018? ................................................................ 112 Was the third alleged material change of use made assessable development under City Plan 2016? .................................................................................................................... 124 What is assessable development under the Planning Act 2016? .............................. 124 What is the jurisdiction of a local government for the Planning Act 2016? ............ 125 How was the Council’s local government area defined? ......................................... 126 Are the premises located within the Council’s local government area as shown on area maps LGB30 Edition 2? ................................................................................... 127 Did City Plan 2016 make a material change of use of the Premises assessable? ..... 130 Was the use of the Premises a lawful use for s 165 of the Planning Act 2016?........... 130 Conclusion regarding the Council’s allegations about the third alleged material change of use ............................................................................................................................ 131 Key issue 4: Is the current use of the Premises a lawful use? .......................................... 131 Key issue 5: Do the discretionary considerations support, or tell against, the grant of the relief sought? .................................................................................................................... 132 Should Gold Coast Leisure Services Pty Ltd and Mr Menzies pay the Council’s costs? 133 Conclusion ........................................................................................................................ 134 -- 8 of 134 -- 9 Overview [1] This is a proceeding commenced by the Council of the City of Gold Coast (“the Council”). The Council seeks declaratory relief about the lawfulness of a use under s 11 of the Planning and Environment Court Act 2016 (Qld) and enforcement orders restraining a use under s 180 of the Planning Act 2016 (Qld). [2] The proceeding relates to the long-term use of marina berths at Marina Mirage and the adjacent Mariner’s Cove marina by aircraft. The marinas are in the Gold Coast Broadwater near Seaworld Drive, Main Beach. They are owned by the State of Queensland. [3] The area the subject of the proceeding (“the Premises”) comprises: (a) a marina berth in Marina Mirage that is at the south-western part of Lot 5332 on SP 185259 (“Lot 5332”) and that currently contains a pontoon with markings for a single helipad, a building utilised as a helicopter hangar and an additional building (“the Hangar Pontoon”); (b) an area to the immediate west of the Hangar Pontoon, which now forms the south-eastern part of Lot 534 on SP 223393 (“Lot 534”) and that currently contains a pontoon with line markings for two helipads (“the Helipads Pontoon”); and (c) a marina berth in Mariner’s Cove Marina located at the north-western part of Lot 524 on WD 6023 (“Lot 524”), which currently contains a pontoon improved by a two-storey building that serves as a passenger terminal, office and café and that is used for storage and administrative purposes associated with the helicopter use (“the Passenger Terminal Pontoon”); and (d) the jetties and access ways along Lot 5332’s southern boundary and Lot 524’s northern boundary. [4] None of the pontoons are fixed structures. They are all vessels that float with the tide. [5] It is undisputed that aircraft started using part of the Premises in 1988, shortly after Christopher Skase built the Sheraton Mirage Hotel, Marina Mirage and the Hangar Pontoon. [6] When aircraft commenced landing on and taking off from the Hangar Pontoon, Lot 534 had not yet been created. Nevertheless, that part of the Broadwater was used as part of the approach path for seaplanes and helicopters (and hovercraft). Seaplanes also parked in that part of the Broadwater that became Lot 534. [7] At this time, Scott Menzies, the Second Respondent, was a helicopter pilot flying in the area. Mr Menzies first earned a living as a pilot by using his father’s helicopter and by flying helicopters owned by SeaWorld. Initially, aerial photography was a key aspect of Mr Menzies work. One of his notable photography assignments was for World Expo ’88. [8] Additionally, having obtained a turbine endorsement for his pilot’s licence, Mr Menzies conducted charter flights, including airport transfers and joy flights. This allowed him even greater flexibility to earn a living doing what he loves – flying helicopters. -- 9 of 134 -- 10 [9] Some of Mr Menzies’s passengers included Christopher Skase and his wife and guests, Councillors of the Council and Queensland Members of Parliament, and guests of the Sheraton Mirage Hotel. [10] Initially, the flights conducted for Mr Skase were undertaken using a temporary helipad in the car park at Seaworld from which a hovercraft and helicopter service was operated. However, in September 1988, as soon as the Hangar Pontoon was constructed and installed in the berth at Marina Mirage, Mr Skase insisted that Mr Menzies use that helipad for multiple transfer each week between the Hangar Pontoon and each of Coolangatta Airport, Brisbane Airport, and World Expo ’88. [11] Around this same time, development on the Gold Coast was rampant and provided a demand for aerial photography. For example, between 1988 and 1994, Mr Menzies undertook numerous commercial flights from the Hangar Pontoon to obtain aerial photographs of the Royal Pines Resort and Golf Club and the Hope Island Golf Course and residential community. [12] Collectively, the charter flight work (including transfers and scenic flights) and the aerial photography work provided Mr Menzies with a consistent opportunity to fly helicopters, much of which he did using the Premises. [13] Between 1988 and 1994, Mr Menzies was not the only person flying in the Broadwater and using the Hangar Pontoon and the area of the Broadwater to its immediate west for activities associated with aircraft. This was a busy period in the Gold Coast Broadwater. Passenger, tourist and commercial helicopter flights were in high demand due to World Expo ’88 and a boom in tourism that was bringing many visitors from Japan to the Gold Coast. The Hangar Pontoon was being used for commercial helicopter flights by Mr Menzies and many others, including Channel 7, Channel 9, Channel 10, and other commercial helicopter operators and floatplane operators who were conducting joy flights and charter work and providing other services with aircraft. [14] The Council concedes that between 27 March 1982 and 10 February 1994, the Premises was not included in any zone under the City of Gold Coast Planning Scheme 1982 (“the 1982 Planning Scheme”). It accepts that during that period no land use constraints were imposed on the Premises by the 1982 Planning Scheme, the now repealed Local Government Act 1936 (Qld) and the Local Government (Planning and Environment) Act 1990 (Qld). [15] The Council accepts that there were existing lawful use rights for the Premises at the time when the City of Gold Coast Planning Scheme 1994 (“the 1994 Planning Scheme”) commenced on 11 February 1994. Nevertheless, it alleges that Gold Coast Leisure Services Pty Ltd is committing development offences under ss 163 and 165 of the Planning Act 2016. It also alleges that Mr Menzies is committing an offence under s 227 of the Planning Act 2016. [16] The particulars of the Council’s allegations against Gold Coast Leisure Services Pty Ltd are that: (a) between August and December 1998, Gold Coast Leisure Services Pty Ltd commenced use of part of the Premises for the arrival and departure of helicopters and the conduct of a helicopter operations business; -- 10 of 134 -- 11 (b) between January 2010 and November 2011, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by: (i) the construction of a large hangar building on the Hangar Pontoon and the commencement of use of that building to hangar helicopters; (ii) the construction of additional helipads on Lot 534 and the commencement of their use for the arrival and departure of helicopters; and (iii) the operation of four helicopters from the Premises; and (c) between August 2017 and November 2018, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by: (i) the construction of a two-storey building on Lot 524 and the commencement of use of the Passenger Terminal Pontoon for the arrival and departure of helicopters and for a café and passenger terminal; and (ii) the operation of six helicopters from the Premises.1 [17] The particulars of the Council’s case against Mr Menzies are that: (a) since 30 September 1996, Mr Menzies has been the sole director and secretary of Gold Coast Leisure Services Pty Ltd; (b) Mr Menzies knew, or ought reasonably to have known, that Gold Coast Leisure Services Pty Ltd’s conduct constituted an offence against ss 163 and 165 of the Planning Act 2016; (c) Mr Menzies was in a position to influence Gold Coast Leisure Services Pty Ltd’s conduct that constituted the offences against ss 163(1) and 165 of the Planning Act 2016; and (d) Mr Menzies committed commensurate offences against s 227 of the Planning Act 2016. [18] The Council first alerted Gold Coast Leisure Services Pty Ltd of its concerns about the lawfulness of the use of the Premises in a letter dated 31 October 2019. [19] On 19 February 2020, Gold Coast Leisure Services Pty Ltd and Mr Menzies notified the Council that they believed that the Council’s investigations were proceeding on an incorrect basis. The letter explained, in detail, the basis for their belief that: (a) the Premises are not part of the Council’s local government area; and, as such, (b) the use of the Premises is not regulated by the Council’s successive planning schemes. 1 In final oral submissions, the Council abandoned reliance on the allegation that a change in operations was facilitated by the relocation of a one storey building from the berth containing the Passenger Terminal Pontoon to another marina berth in Mariner’s Cove marina to be used for office and storage purposes associated with the helicopter use. -- 11 of 134 -- 12 [20] On 10 August 2020, the Council gave Gold Coast Leisure Services Pty Ltd a show cause notice under s 167 of the Planning Act 2016. The notice invited Gold Coast Leisure Services Pty Ltd to show cause why action should not be taken with respect to the alleged unlawful use of the Premises. [21] By letter dated 22 September 2020, Gold Coast Leisure Services Pty Ltd responded to the show cause notice. The letter notified the Council that Gold Coast Leisure Services Pty Ltd believed that the Council’s investigations were proceeding on an incorrect basis in that: (a) the Premises are not part of the Council’s local government area and, as such, the use of the Premises is not regulated by the Council’s successive planning schemes; and (b) the use of the Premises commenced from late 1988 and is an existing lawful use protected by ss 260 and 290 of the Planning Act 2016. [22] The letter included detail about the nature and extent of the asserted existing lawful use, including that it commenced in 1988. [23] On 20 March 2023, the Council filed its Originating Application commencing this proceeding. [24] Despite the response to its show cause notice, in the intervening two and a half years before the Council commenced this proceeding alleging the use commenced in 1998, the Council appears to have done little to investigate the nature and extent of the use between 1988 and 1998. [25] Prior to the commencement of the hearing, the Council filed the affidavits and evidentiary certificates upon which it intended to rely to prove its case. The only evidence that addressed the scale and intensity of the aircraft activity conducted from the Premises is in two affidavits of Susan Olive Donovan. Ms Donovan’s evidence only attests to her impression of an increase in the intensity in around 2018, coincident with the introduction of a new passenger terminal. She does not identify the baseline that informed her impression of an increase. For example, she does not explain whether the quantum of helicopter movements observed by her were greater than that observed by her in the month prior to the introduction of the new passenger terminal, or greater than the activity at any time since 1988. [26] After receipt of the Council’s evidence, in accordance with an order of this Court, Gold Coast Leisure Services Pty Ltd and Mr Menzies filed a Statement of Facts, Matters and Contentions on 27 July 2023. They subsequently filed the various affidavits on which they rely. [27] As one would expect, the Statement of Facts, Matters and Contentions responds to the case particularised by the Council in its Originating Application. It appears from the structure and content of the evidence filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies that the affidavits were also prepared in response to the Council allegations in its Originating Application. [28] The evidence filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies includes extensive detail about the use conducted on the Premises. Leaving aside the further evidence tendered during the hearing and the oral evidence of Mr Menzies, that -- 12 of 134 -- 13 evidence supports the position consistently maintained by Gold Coast Leisure Services Pty Ltd and Mr Menzies about the commencement of use in 1988 and the absence of an intensification at the times alleged by the Council. [29] Even though the Council had no evidence to counter that filed by Gold Coast Leisure Services Pty Ltd and Mr Menzies about many issues that are fundamental to its case, such as the commencement of use in 1988, the Council did not apply to amend its Originating Application. [30] On 18 December 2023, after most of the evidence had been filed and almost two months prior to the commencement of the hearing, the Council filed written submissions. On 5 February 2024, the Council filed submissions in reply to the Respondents’ submissions. The Council also filed closing written submissions. Through its submissions, the Council attempts to advance a materially differently case. It relies on the evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies to allege differently particularised offences. [31] The Council has the onus of demonstrating that the relief it seeks should be granted. In this case, that is a herculean task given the use in questions spans a period during which the use was governed (or potentially governed) by: (a) five different legislative regimes, namely: (i) the Local Government Act 1936; (ii) the Local Government (Planning and Environment) Act 1990; (iii) the Integrated Planning Act 1997 (Qld); (iv) the Sustainable Planning Act 2009 (Qld); (v) the Planning Act 2016; and (b) four planning schemes, namely: (i) the 1982 Planning Scheme; (ii) the 1994 Planning Scheme; (iii) Gold Coast Planning Scheme 2003 (“the 2003 Planning Scheme”); and (iv) Gold Coast City Plan 2016 (“City Plan 2016”). [32] The task is made even more difficult in circumstances where the Council concedes existing lawful use rights associated with the start of the use about a decade earlier than it alleges the use commenced. [33] Against that background, it must be remembered that the relief sought by the Council is discretionary. Even if the Council establishes all its allegations about unlawful use, the Court must still ask itself whether, in the exercise of the discretion, the declarations and enforcement orders should be made. Here, that question is to be answered in a context where there are compelling discretionary considerations that militate against the grant of the relief. They include the following four considerations. [34] First, the declaratory relief lacks utility. No consequential orders are sought, and the declarations are not a necessary precursor to the enforcement orders sought. The -- 13 of 134 -- 14 power to grant an enforcement order under the Planning Act 2016 is not contingent upon declarations being made. [35] Second, relief in the form of enforcement orders is sought against Mr Menzies who has been named as a respondent to this proceeding even though the Council, by its Originating Application, does not allege Mr Menzies has committed a development offence. [36] Third, there has been considerable delay by the Council in commencing this proceeding. The Council provides no reasonable explanation for the delay between the issue of the show cause notice on 10 August 2020 and the filing of this proceeding on 20 March 2023. Further, it is reasonable to infer, from correspondence dated 13 April 2005, that the Council has been aware of the use for about two decades. In the correspondence, the Council describes the use by Gold Coast Leisure Services Pty Ltd as “a business activity being in operation on or before 1 March 1995”. The evidence also demonstrates that the Council has previously utilised, and continues to utilise to date, the aircraft services offered by Gold Coast Leisure Services Pty Ltd and Mr Menzies. [37] Fourth, Gold Coast Leisure Services Pty Ltd has conducted the use of the Premises for over 35 years. Across that time Gold Coast Leisure Services Pty Ltd and Mr Menzies have demonstrated a commitment to operating lawfully. They have done so by acting in accordance with various types of approvals that they have obtained, such as those authorising environmentally relevant activities and approvals for tidal works when constructing the new passenger terminal. In those circumstances, even if the Council could make out the alleged breaches of the law, it is apparent that any such breaches were not the product of a wilful and contumelious disregard of the law. [38] Ultimately, the Council has failed to discharge its onus in the proceeding in relation to any of the disputed allegations in its Originating Application. The markedly different case advanced by the Council in its submissions does not assist the Council in its quest for relief either. I am not persuaded that the Council should be permitted to advance a different case, nor am I persuaded that such a case has merit in any event. Even if there was merit to the Council’s particularised case, or its more recently manufactured case, there are strong discretionary considerations that militate against the grant of relief it seeks. As such, I am more than comfortably satisfied that the Council’s Originating Application should be dismissed. My reasons follow. What is the relief sought by the Council? [39] The prayer for relief in the Originating Application records that the Council seeks the following declarations and orders in respect of parts of Lot 5332 on SP185259, Lot 534 on SP 223393 and Lot 524 on WD 6023: “1. pursuant to section 11(1) of the Planning and Environment Court Act 2016 (Qld) (P&E Court Act), a declaration that the First Respondent: (a) is committing a development offence contrary to section 165 of the Planning Act 2016 (Planning Act), by using the Premises for the arrival and departure of helicopters, hangaring, servicing, refuelling and maintaining helicopters, passenger terminal, café and -- 14 of 134 -- 15 related aviation facilities (Helicopter Use), which is not a lawful use of the Premises; (b) a development offence contrary to section 163(1) of the Planning Act, in that between August 2017 and November 2018 it carried out assessable development without a development permit in effect, such development comprising a material increase in intensity and scale of the use of the Premises resulting in the Helicopter Use; 2. pursuant to section 11(1) of the P&E Court Act, a declaration that the Second Respondent has committed an offence against section 227 of the Planning Act by not taking all reasonable steps to ensure the First Respondent did not engage in the conduct described in paragraph 1 above; 3. pursuant to section 180 of the Planning Act, an enforcement order requiring the Respondents to cease and not resume using the Premises for ‘Air services’ (including any ancillary uses), as that term is defined in the Applicant’s City Plan 2016, unless and until authorised by a development permit for material change of use; 4. orders pursuant to section 61(1) of the P&E Court Act that the Respondents pay the Applicant’s costs of and incidental to the application, including costs to investigate and gather evidence; and 5. such further declarations and orders the Court deems fit. [40] The grounds of the Originating Application: (a) notify Gold Coast Leisure Services Pty Ltd and Mr Menzies of the particulars of the alleged development offences under ss 163 and 165 of the Planning Act 2016 and the offence under s 227 of the Planning Act 2016; and (b) are critical to ensuring that Gold Coast Leisure Services Pty Ltd and Mr Menzies have reasonable notice about the allegations made against them and inform them of the case that they must gather evidence to meet. [41] During final submissions, the Council tendered a draft order that records the form of orders now sought. It contains some concessions. Of greatest significance is that the Council no longer seeks to immediately restrain further use of the Premises. Rather, the orders contemplate that use of the Premises can continue while attempts are made to regularise the use through a development application made to the Council What is the nature of the proceeding? [42] As would be apparent from the relief sought, set out in paragraph [39] above, the Originating Application incorporates two types of proceeding: a declaratory proceeding and an enforcement proceeding. -- 15 of 134 -- 16 [43] It is convenient to dispose of that part of the proceeding that seeks declaratory relief at the outset. What are the relevant legal principles for declaratory proceedings? [44] Under s 11 of the Planning and Environment Court Act 2016, the Court has express statutory power to hear an application that seeks declaratory orders without any other consequential relief. [45] With respect to the form of any declaration that is sought, in Brassgrove KB Pty Ltd v Brisbane City Council,2 I observed:3 “[19] … the party seeking relief should assist the Court by identifying, with precision, the declaration sought. It is necessary to pay close attention to the form of proposed declarations.4 It is not sufficient to indicate in general terms that a declaration is sought and to avert broadly to aspects of its content. The declaration should reflect the matter in issue in a concise and accurate way to establish conclusively the situation that exists between the parties. The party seeking the declaration needs to persuade the Court that the subject declaration should be made. Relevant to that question is whether the declaration is framed as a conclusive determination based on a concrete and established or agreed situation that quells a controversy and gives rise to a binding decision between the parties.5 Alternatively, the party seeking the declaration might demonstrate that there is some other utility to the grant of a declaration in the terms sought.” [46] The relevant legal principles governing the exercise of this type of statutory power are helpfully set out by Bond J in Nerang Subdivision Pty Ltd v Hutson,6 which analysis I recently adopted in Baxter v Preston & Ors.7 In essence: (a) there must be a real controversy for determination before a declaration should be made; (b) the question must be a real question and not a theoretical question; and (c) in considering whether a declaration should be granted, regard is had to whether its grant would serve any useful purpose. [47] The power to grant declaratory relief is wide and its exercise is discretionary.8 2 [2019] QPEC 42; [2020] QPELR 119. 3 Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42; [2020] QPELR 119, 123-4 [19]. 4 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91]. 5 Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, 355- 7 [45]-[49]. 6 [2020] QSC 225, [40]-[45]. 7 [2021] QPEC 69; [2023] QPELR 244, 269-71 [118]-[127]. 8 Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 20-1. -- 16 of 134 -- 17 [48] Where the relief sought concerns alleged criminal or regulatory conduct, care should be taken in exercising the discretion. [49] In Commonwealth v Sterling Nicholas Duty Free Pty Ltd,9 Menzies J observed:10 “… The court has, I think, a wide discretion in determining whether or not to make declarations and would, of course, take into account, in an appropriate case, the principle that, in general, matters of criminal law should be dealt with at trials for alleged offences.” [50] In Sankey v Whitlam & Ors,11 Gibbs ACJ observed:12 “… The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities: properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. …” [51] In that same case, Stephen J observed:13 “… whether the Court should exercise its discretion to grant declaratory relief in this case gives rise to a more acute problem. In Forster v Jojodex Aust. Pty Ltd,14 Gibbs J, with whose judgment on this point McTiernan and Stephen JJ and I agreed, referred to Lord Radcliffe’s observation in Ibeneweka v Egbuna15 that “the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”.” [52] The reason for caution was expressed well by Forbes J in Thorpe v Head, Transport for Victoria & Ors.16 Forbes J explained that the fundamental reason for caution is that of fairness and justice. The protections afforded to an accused person by criminal procedures are absent in declaratory proceedings.17 [53] The absence of relevant protections afforded to an accused person by criminal procedures is evident in this case. In a criminal trial, it is only after the prosecution has adduced all the evidence it intends to in its case and after it closes its case that the person accused of committing offences is asked if he or she intends to give evidence or call witnesses. There is no obligation to do so. The accused is entitled to insist that the prosecution prove the case against him or her if it can. In contrast to that situation, in this case His Honour Judge Rackemann made orders on 10 May and 23 9 [1972] HCA 19; (1972) 126 CLR 297. 10 Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297, 311. 11 [1978] HCA 43; (1978) 142 CLR 1. 12 Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 25. 13 Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 81. 14 (1972) 127 CLR, at p 438. 15 [1964] 1 WLR, at p 225. 16 [2021] VSC 750; (2021) 66 VR 56. 17 Thorpe v Head, Transport for Victoria & Ors [2021] VSC 750; (2021) 66 VR 56, 71 [44]. -- 17 of 134 -- 18 June 2023 that effectively called on Gold Coast Leisure Services Pty Ltd and Mr Menzies to respond to the Council’s case, even though the Council had not closed its case. Are there fundamental difficulties with the Council’s Originating Application? [54] In paragraphs 1 and 2 of the prayer for relief in the Originating Application, the Council seeks declarations pursuant to s 11(1) of the Planning and Environment Court Act 2016. The declarations sought are set out in paragraph [39] above. [55] In the Originating Application, the Council does not identify, with precision, the nature of the Court’s declaratory jurisdiction that it seeks to invoke. However, in the Applicant’s Outline of Submissions,18 the Council says that the proceeding is sought to be brought under s 11(1)(c) of the Planning and Environment Court Act 2016, which states: “11 General declaratory jurisdiction (1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about— … (c) the lawfulness of land use or development under the Planning Act.” [56] No consequential relief is sought under s 11(4) of the Planning and Environment Court Act 2016. [57] Before turning to the substantive issues in dispute, it is convenient to first dispose of two disputed issues that relate to the nature of the allegations and relief sought, namely: 1. Is the type of declaratory relief sought appropriate? 2. Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies? [58] As I have foreshadowed in paragraph [38] above, the Council has failed to establish a foundation for the relief that it seeks. In those circumstances, it is unnecessary to decide these issues. However, I consider it prudent to deal with them briefly. This is because the issues were pursued with vigour by the Council. Extensive time and resources were dedicated to litigating these issues, including valuable court time. The Council insisted on maintaining the issues, even in the face of my query about whether they were real issues in the proceeding. In addressing these issues, I hope that in future the Council, and others seeking relief for unlawful uses, will reflect carefully on these reasons and consider their obligations under s 10 of the Planning and Environment Court Act 2016. 18 Court Doc. No. 44. -- 18 of 134 -- 19 Is the type of declaratory relief sought appropriate? [59] Gold Coast Leisure Services Pty Ltd and Mr Menzies contend that the declaratory relief sought by the Council lacks utility in that: (a) no consequential orders are sought; and (b) the declarations are unnecessary as the power to grant an enforcement order under the Planning Act 2016 is not contingent upon a declaration being made about the commission, or likely commission, of a development offence. [60] Further, they say that, in any event, the Court should exercise its discretion and refuse to make the declarations. [61] It is uncontroversial that the Council does not seek consequential orders and that the declarations it seeks are not an essential pre-condition for the enforcement orders it seeks. [62] Despite that, the Council pursued the declarations, asserting that they have utility. The Council advances seven reasons to justify the grant of the declaratory relief it seeks. [63] First, the Council submits that the making of declarations in conjunction with enforcement orders is plainly within the contemplation of s 11(1)(c) of the Planning and Environment Court Act 2016. I reject this submission. [64] Declaratory relief and enforcement orders are two separate and distinct types of proceeding. The former is the subject of s 11 of the Planning and Environment Court Act 2016. The latter is the subject of s 180 of the Planning Act 2016. The enforcement order provisions have within them the mechanism for determining unlawfulness. As such, a declaration is wholly unnecessary. [65] The purpose of the two types of proceeding also differs. The purpose of a declaratory proceeding is to quell a legitimate controversy between parties. For example, a declaratory proceeding may be commenced by a person who is being subjected to continual harassment by another person about the legality of their use of land. The purpose of an enforcement proceeding is to obtain enforcement orders that require a person to refrain from committing a development offence or remedy the effect of a development offence in a stated way. [66] In addition, there is a material difference between a determination of the lawfulness of land use and a declaration by a civil court that an offence has been committed. The latter is, as a matter of orthodox legal principle, an exceptional step for a Court to take. [67] Second, the Council submits that the declarations have utility even though they are not necessary to obtain an enforcement order. It says that it has long been recognised at the highest level in Australia that it is appropriate to make declarations concerning the contravention of statutory provisions notwithstanding that penalties are also imposed for the contraventions. -- 19 of 134 -- 20 [68] In support of this submission, the Council observes that in Rural Press Limited & Ors v Australian Competition and Consumer Commission,19 the plurality of Gummow, Hayne and Heydon JJ (with whom Gleeson CJ, Callinan and Kirby JJ agreed in the result) observed:20 “… there is some utility in the particular circumstances of these appeals in making the declarations to which the parties consent. The degree to which the Commission succeeded has changed from stage to stage of these proceedings, and it is convenient to have set out in the declarations not only the basis for the primary liability and accessorial liability found, but also the basis for the penalties ordered as it must now be understood.” (underlining as added by the Council) [69] The Council’s submission overstates the effect of the judgment. The underlining added by the Council reflects its misapprehension about the effect of the observations of the plurality. The High Court did not, as submitted by the Council: (a) recognise, as a matter of principle, that it is appropriate to make declarations concerning the contravention of statutory provisions notwithstanding that penalties are also imposed for the contraventions; or (b) endorse, as a matter of course, the making of declarations as to contraventions of the Trade Practices Act 1974 (Cth) in circumstances where penalty orders are also made, and injunctions are granted by the trial judge for contravention of the Trade Practices Act 1974. [70] Although the High Court made declarations in Rural Press Limited & Ors v Australian Competition and Consumer Commission,21 that was because the declarations had utility in that case. Their utility was in providing clarity about the basis on which the High Court found there was primary liability and accessorial liability and to provide clarity about the basis on which the High Court determined that penalties should be ordered. The reasons for judgment explain that the additional clarity provided by the declarations was of utility because the degree to which the Australian Competition and Consumer Commission had succeeded in the relief it sought varied from stage to stage of the proceedings. That type of consideration does not arise here. This is not an appeal from another Court. [71] This case also differs in that, unlike in Rural Press Limited & Ors v Australian Competition and Consumer Commission,22 the declarations are opposed. In Rural Press Limited & Ors v Australian Competition and Consumer Commission,23 the declarations were not opposed. They replaced earlier declarations that were made by consent and that the plurality regarded as “a bad precedent” and “of a kind which the trial judge should not have agreed to make even if urged to do so by the parties”.24 19 [2003] HCA 75; (2003) 216 CLR 53. 20 Rural Press Limited & Ors v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 92 [95]. 21 [2003] HCA 75; (2003) 216 CLR 53. 22 [2003] HCA 75; (2003) 216 CLR 53. 23 [2003] HCA 75; (2003) 216 CLR 53. 24 Rural Press Limited & Ors v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [93]. -- 20 of 134 -- 21 [72] The other authorities to which the Council refers also provide no material assistance. They only serve to demonstrate that other Courts have made declarations in different circumstances under different legislative regimes. [73] The Council’s third argument is that, in relation to proceedings of a regulatory or public interest nature, declarations serve an important function of informing not only the parties, but also the public, of the type of conduct that has been held by the Court to be a contravention of a statutory provision. [74] In support of this proposition, the Council refers to the decision of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2),25 which the Council says contains a comprehensive review of the relevant authorities. [75] While the Council cites many paragraphs from Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2),26 it did not draw my attention to the fact that declarations of the very kind sought by the Council in this case were specifically deprecated in that decision. Relevantly, Biscoe J said:27 “[216] “It would be wrong in civil proceedings to make a finding, let alone a declaration, that the respondent is “guilty” of an “offence” against planning or environmental legislation. However, the authorities that I have reviewed demonstrate that there is no vice in such civil proceedings in declaring, subject to the usual discretionary considerations, that the respondent has breached such legislation.” [76] Here, the Council seeks declarations that Gold Coast Leisure Services Pty Ltd has committed offences. [77] In any event, even if I were to accept that the New South Wales authorities demonstrate that, in certain cases, there may be utility to declarations by reason of them having a deterrent or educative element, this is not a compelling reason to make the declarations in this case. There is no evidence that the alleged offending is symptomatic of a broader issue about which the public requires education. Further, to the extent that education of the public is required, or the conduct requires public denunciation, that can be achieved by the Court making findings in the reasons for judgment, which is a publicly accessible document. [78] Fourthly, the Council disputes the submissions made by Gold Coast Leisure Services Pty Ltd and Mr Menzies that the courts are ordinarily reticent to grant declaratory relief in respect of alleged criminal or regulatory conduct. The Council notes that such a result was obtained in Sankey v Whitlam & Ors.28 The Council also asserts that the different procedural protections between criminal and civil proceedings is not a significant consideration militating against the granting of declaratory relief in relation to such issues. The Council contests the relevancy of such considerations at all. 25 [2015] NSWLEC 114. 26 [2015] NSWLEC 114. 27 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, [216]. 28 [1978] HCA 43; (1978) 142 CLR 1, -- 21 of 134 -- 22 [79] I do not accept the Council’s submissions. [80] The basis on which the Council contests the relevancy of the different procedural protections between criminal and civil proceedings to the exercise of the discretion is unclear. Their submissions provide no assistance in that regard. [81] In any event, the authorities are replete with references to the reluctance of Courts to make declarations about matters that fall to be determined in a criminal proceeding, including those matters that only touch on considerations that may be live in a criminal case. [82] When granting relief in Sankey v Whitlam & Ors,29 Gibbs ACJ said that in cases seeking a declaration on questions of evidence or procedure that might otherwise fall for determination in a criminal proceeding, “the circumstances must be exceptional to warrant the grant of relief”.30 [83] In Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd,31 Young JA expressed it this way:32 “[135] As a general rule (though there are notable exceptions), courts in their discretion do not make declarations that a person has committed a criminal offence. The cases make it clear that there is jurisdiction to make such a declaration (see eg Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 20). However, time and time again courts have stressed that it is only in exceptional cases that declarations that a person has committed a crime may be made; see eg Crane v Gething [2000] FCA 45; (2000) 97 FCR 9 at 20; X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 esp per Kirby J at 658.” [84] Fifth, the Council submits that there is obvious utility in making declarations to the effect sought if, for whatever reason, the Court is not prepared to make the enforcement orders sought by the Originating Application yet is otherwise satisfied that the alleged development offences have occurred or that the use of the Premises is unlawful. [85] In support of the submission, the Council refers to the observation of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) as follows:33 “[217] … But where remedies other than a declaration are inapplicable or inadequate to address a serious breach of environmental or planning legislation, it would generally be regrettable, I suggest, if the applicant had to leave court without a remedy save for a costs order in establishing a rather barren victory. This echoes the view taken by the High Court in a different context in 29 [1978] HCA 43; (1978) 142 CLR 1, 30 Sankey v Whitlam & Ors [1978] HCA 43; (1978) 142 CLR 1, 26. 31 [2009] NSWCA 160; (2009) 167 LGERA 395. 32 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395, 430 [135]. 33 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114, [217]. -- 22 of 134 -- 23 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ... at 581 - 582, 597.” [86] The Council submits that similar utility would arise in making clear the basis for the making of enforcement orders given two development offences are alleged. It says that declaratory orders would make plain whether one, or both, of the development offences gave rise to the making of any enforcement orders. [87] These submissions are not compelling. Here, there are remedies that would address a serious breach of planning legislation, were it established. They are enforcement orders made under s 180 of the Planning Act 2016. It will be clear from my reasons for judgment what findings inform any enforcement orders that I make. [88] Sixthly, the Council submits that it should be clear beyond debate that the declarations are not sought in this case for any symbolic reason. [89] I do not accept that submission. The grounds on which the enforcement orders are sought against Gold Coast Leisure Services Pty Ltd are the same as those that found declarations. The real purpose of the declarations remains unclear to me. [90] Finally, the Council submits that the authorities demonstrate that there is no persuasive reason why declarations to the effect sought by the Originating Application should not be made. [91] This misstates the question to which I must turn my mind. The relief is discretionary. The onus is on the Council to persuade me that the relief should be granted. The Council has not discharged the onus. Is there a fundamental defect in the Council’s Originating Application insofar as it names, and seeks relief against, Mr Menzies? [92] The prayer for relief in the Originating Application seeks three forms of relief in relation to Mr Menzies. They are: (a) a declaration under s 11(1) of the Planning and Environment Court Act 2016 that Mr Menzies has committed an offence against s 227 of the Planning Act 2016 by not taking all reasonable steps to ensure that Gold Coast Leisure Services Pty Ltd did not commit offences under ss 163 and 165 of the Planning Act 2016; (b) an enforcement order under s 180 of the Planning Act 2016 requiring Mr Menzies to cease and not resume using the Premises for “Air services”, including any ancillary uses, as that term is defined in City Plan 2016, unless and until authorised by a development permit for material change of use; and (c) an order under s 61(1) of the Planning and Environment Court Act 2016 that Mr Menzies pay the Council’s costs of and incidental to the application, including costs to investigate and gather evidence. Is there a difficulty with the first form of relief sought with respect to Mr Menzies? [93] The Council no longer pursues the first form of relief. There is no such declaration against Mr Menzies in the draft form of orders provided by the Council at the end of the hearing. -- 23 of 134 -- 24 [94] Even if the Council were pursuing that relief, I would not be minded to grant it. The declaration framed by the Council is not within the Council’s jurisdiction under s 11(1)(c) of the Planning and Environment Court Act 2016.34 It is not a declaration about “the lawfulness of land use or development under the Planning Act 2016”. It is a declaration about the lawfulness of the conduct of an identified person, namely Mr Menzies, under executive officer liability provisions. Is there a difficulty with the second form of relief sought with respect to Mr Menzies? [95] As is apparent from the grounds of the Originating Application, the particulars of the Council’s case to justify its second form of relief are identified in paragraph [17] above. Those particulars bear repeating here. They are: (a) since 30 September 1996, Mr Menzies has been the sole director and secretary of Gold Coast Leisure Services Pty Ltd; (b) Mr Menzies knew, or ought reasonably to have known, that Gold Coast Leisure Services Pty Ltd’s conduct constituted an offence against ss 163 and 165 of the Planning Act 2016; (c) Mr Menzies was in a position to influence Gold Coast Leisure Services Pty Ltd’s conduct that constituted the offences against ss 163(1) and 165 of the Planning Act 2016; and (d) Mr Menzies committed commensurate offences against s 227 of the Planning Act 2016. [96] Mr Menzies position as the sole director and secretary of Gold Coast Leisure Services Pty Ltd since 30 September 1996 is not disputed. [97] The case against Mr Menzies was clearly set out in paragraph 24 of the Originating Application. The Council does not assert that Mr Menzies committed an offence against ss 163 or 165 of the Planning Act 2016.35 Rather, the Council asserts that Mr Menzies “knew, or ought reasonably to have known, that the First Respondent’s conduct constituted an offence” against each of ss 163 or 165 of the Planning Act 2016 and that he “was in a position to influence the First Respondent’s conduct that constituted the offences against those provisions”. Those phrases are taken directly from s 227(2) of the Planning Act 2016. [98] Section 227 of the Planning Act 2016 states: “227 Executive officer must ensure corporation complies with Act (1) An executive officer of a corporation commits an offence if— (a) the corporation commits an offence against an executive liability provision; and 34 This is the provision that the Council identifies as the applicable provision in the Applicant’s Outline of Submissions: Court Doc. No. 44 [16]. 35 cf. the allegations about Gold Coast Leisure Services Pty Ltd in paragraph 23 of the Originating Application. -- 24 of 134 -- 25 (b) the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence. Maximum penalty—the penalty for a contravention of the executive liability provisions by an individual. (2) When deciding whether things done or omitted to be done by the executive officer constitute reasonable steps for subsection (1)(b), a court must consider— (a) whether the officer knew, or ought reasonably to have known, of the corporation’s conduct constituting the offence against the executive liability provision; and (b) whether the officer was in a position to influence the corporation’s conduct in relation to the offence against the executive liability provision; and (c) any other matter that the court considers relevant. (3) The executive officer may be proceeded against for, and convicted of, an offence against subsection (1) whether or not the corporation has been proceeded against for, or convicted of, the offence against the executive liability provision. (4) This section does not affect— (a) the corporation’s liability for the offence against the executive liability provision; or (b) the liability, under the Criminal Code, chapter 2, of any person for the offence, whether or not the person is an executive officer of the corporation. (5) In this section— executive liability provision means— (a) section 162; or (b) section 163; or (c) section 164; or (d) section 165; or (e) section 166(7); or (f) section 168(5); or (g) section 172; or (h) section 176(5); or (i) section 180(8).” -- 25 of 134 -- 26 [99] The matter is put beyond doubt by paragraph 24(c) of the Originating Application where the allegation is squarely put that Mr Menzies committed an offence against s 227 of the Planning Act 2016. No amendment has been sought, or made, to the Originating Application. [100] The Originating Application does not particularise a case based on the party provisions under s 7 of the Criminal Code, nor does it otherwise allege that Mr Menzies has committed offences under ss 163 and 165 of the Planning Act 2016. Do the particulars matter or can the Council now advance a different case? [101] The particulars provided in the grounds for relief in originating processes are important. This is particularly so where, to grant the relief sought, the Court needs to be satisfied that the development offence has been committed or will be committed unless an order is made. [102] Rule 9 of the Planning and Environment Court Rules 2018 (Qld) requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought. That is how issues in dispute are defined as between the parties. It forms the record of the matters that the Court has been called to decide. It also gives a respondent fair notice of the case that it is to meet, thereby ensuring procedural fairness. That is particularly important where there are allegations about the commission of development offences. [103] A party is not entitled to simply rely upon any evidence that has been admitted in the trial and to seek any relief that may be available in accordance with the evidence without reference to the originating process. This is not an inquisitorial process. [104] An applicant should not ordinarily be permitted to raise allegations for the first time in its written submissions. The issues in a proceeding are not defined by written submissions but by the originating process. Again, this is an adversarial and accusatorial process, not an inquisitorial one. [105] In Baxter v Preston & Ors,36 I made observations about the sufficiency of particulars. My observations are pertinent to this case given the Council’s attempt to use its submissions to advance a case that is materially different to that which it particularised in the Origination Application. In Baxter v Preston & Ors,37 case, I observed:38 “[361] Rule 9 of the Planning and Environment Court Rules 2018 requires an originating process for a proceeding in the Planning and Environment Court to state the orders or other relief sought in the proceeding and the grounds on which the orders or other relief are sought. [362] Where the proceeding seeks an enforcement order on the basis that a development offence has been committed, or a declaration that development has been carried out unlawfully, the 36 [2021] QPEC 69; [2023] QPELR 244. 37 [2021] QPEC 69; [2023] QPELR 244. 38 Baxter v Preston & Ors [2021] QPEC 69; [2023] QPELR 244, 324-5 [361]-[367]. -- 26 of 134 -- 27 originating process should identify the acts that constitute the alleged offence. That a degree of particularity is called for is apparent from four matters of context.39 [363] First, the foundation for the Court’s power to make an enforcement order is its finding that it is satisfied that the alleged offence has been committed or will be committed. As such, where the alleged development offence is that under s 163 of the Planning Act 2016, the Court must be able to identify the development in question to ascertain whether it is (or will be) assessable and whether all necessary approvals have been obtained with respect to it. [364] Second, the particulars of the development offence inform the legitimacy of the relief sought. Under s 180 of the Planning Act 2016, the Court has power to make an order that requires a person to refrain from committing a development offence or to remedy the effect of a development offence. The particulars of the development offence must be sufficient to inform the “effect” of the development offence. [365] Third, under s 180(7) of the Planning Act 2016, the Court must state the period for compliance with the order. The particulars must be sufficient to ascertain a period that is reasonable. For example, to determine a reasonable timeframe to comply with an order to remove unlawful fill will likely require an appreciation of the volume of fill the subject of the allegation. [366] The fourth relevant contextual matter is that the making of an enforcement order can have significant consequences to the rights of landowners to deal with their land.40 Unless the Court orders otherwise, an enforcement order, other than an order to apply for a development permit, attaches to the premises and binds the owner, the owner’s successors in title and any occupier of the premises.41 The order is to be recorded on the register for the premises by the registrar of titles.42 Further, contravention of an enforcement order is a criminal offence for which punishment includes imprisonment.43 [367] Those features of the enforcement order regime support that the development offence which underpins the orders is to be identified with precision in the originating process. The originating process should provide sufficient detail to properly 39 Sztal v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14]. See also SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ). 40 The types of orders that can be made are outlined in s 180(5) of the Planning Act 2016, which is extracted at paragraph [126] above. 41 Planning Act 2016 s 180(9). 42 Planning Act 2016 s 180(10). 43 Planning Act 2016 s 180(8). -- 27 of 134 -- 28 inform any respondent of the essential factual ingredients of the offence alleged to have been committed.44” [106] Those observations were endorsed by Dalton JA (with whom Morrison JJA and Flanagan J agreed) in the Court of Appeal in Baxter v Preston & Ors.45 Her Honour concurred with my observation that particulars of matters said to constitute an offence must be precise and detailed. Further, having extracted those paragraphs to which I refer above, Dalton JA observed that this discussion is a useful framework for analysis, not just in that case but more generally.46 [107] Here, Gold Coast Leisure Services Pty Ltd and Mr Menzies have been called to respond to, and have responded to, the actual offences alleged, and particularised, in the Originating Application. The Court is not on a general search for evidence of the commission of any development offence. Rather, it is called upon to assess the actual development offence alleged in the way that it is actually alleged to have been committed. The evidence has now closed, and no application has been made to amend the Originating Application. The Council is bound by the case it has put in its Originating Application and that it has never sought to amend. [108] With those observations in mind, I return to the case with respect to Mr Menzies particularised in the Originating Application. Is there a material defect with the Council’s pleaded case against Mr Menzies in relation to the second form of relief? [109] An enforcement order may only be made under s 180 of the Planning Act 2016 in relation to a development offence. An offence under s 227 of the Planning Act 2016 is not a development offence. [110] Development offences are those offences created in chp 5, pt 2 of the Planning Act 2016.47 The offence in s 227 of the Planning Act 2016 is created in chp 5, pt 9 of the Planning Act 2016. [111] As such, even if the Council establishes the offence under s 227 of the Planning Act 2016, that is not sufficient to found relief against Mr Menzies. [112] The Council’s case in this respect is fundamentally flawed. Is there a difficulty with the third form of relief sought with respect to Mr Menzies? [113] The third form of relief sought with respect to Mr Menzies is an order for costs under s 61(1) of the Planning and Environment Court Act 2016, which states: “61 Orders for costs for particular proceedings (1) If, for an enforcement proceeding, the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person.” 44 Benfer v Sunshine Coast Regional Council [2019] QPEC 6; [2019] QPELR 613. 45 [2022] QCA 146. 46 Baxter v Preston & Ors [2022] QCA 146, [64] and [65]. 47 Planning Act 2016 s 161. -- 28 of 134 -- 29 [114] A finding or declaration that Mr Menzies has committed an offence under s 227 of the Planning Act 2016 is insufficient to empower the Court to make a costs order against Mr Menzies under s 61(1) of the Planning and Environment Court Act 2016. [115] The Council’s case in this respect is fundamentally flawed. Should the Council be permitted to advance a differently particularised case? [116] Gold Coast Leisure Services Pty Ltd and Mr Menzies put the Council on notice about the difficulties with its case against Mr Menzies prior to the commencement of the hearing and at least as early as 22 January 2024.48 The Council elected not to amend its Originating Application, nor did it abandon that part of the proceeding that related to Mr Menzies. [117] In its written submissions the Council impermissibly tries to expand its case against Mr Menzies. It asserts that Mr Menzies has committed and continues to commit offences under ss 163 and 165 of the Planning Act 2016 as a principal offender under s 7(1)(d) of the Criminal Code (Qld). The Council claims that Mr Menzies “counselled or procured” the commission of offences by Gold Coast Leisure Services Pty Ltd. This is not the case that the Council particularised in the Originating Application. [118] I do not accept the Council’s submission that it is entitled to now pursue a materially different case against Mr Menzies. In any event, the case against Mr Menzies can be disposed of in short measure. Does the case that the Council now seeks to pursue against Mr Menzies warrant the grant of relief? [119] In the exercise of my discretion, I am not prepared to countenance making a finding that Mr Menzies has committed an offence against ss 163 or 165 of the Planning Act 2016 in circumstances where: (a) the first time the Council suggested the commission of such an offence was in its written submissions; (b) the Originating Application contains no allegation that Mr Menzies has committed an offence against ss 163 or 165 of the Planning Act 2016; (c) the Council has not sought to amend the Originating Application, despite being notified of its defects; (d) the evidence has closed; (e) the Council’s allegation was first made after Mr Menzies elected to file evidence about a different allegation; and (f) the Council now appears to be using the evidence adduced by Mr Menzies in response to the Council’s pleaded case to reframe a case that has, as its central feature, an allegation of criminal offending that has never previously been made. 48 Court Doc. No. 47. -- 29 of 134 -- 30 [120] Collectively these circumstances provide a compelling discretionary basis to refuse the relief sought against Mr Menzies. [121] Further, and in any event, the Council has not demonstrated that Mr Menzies is a principal offender for the offences under ss 163 and 165 of the Planning Act 2016. For reasons that I will come to, they have not established the commission of the offences at all. There is also no evidence of a “counselling” or a “procuring” of the relevant offence with the required state of mind for that mode of criminal liability. [122] As the Supreme and District Court Benchbook explains, “procuring” in s 7(1)(d) of the Criminal Code involves “more than mere encouragement; it entails successful persuasion”. As a mode of accessorial liability, s 7(1)(d) of the Criminal Code also requires proof of a positive desire to see the offence committed. Plainly, “counselling” involves convincing or persuading. There is no evidence of Mr Menzies counselling or persuading Gold Coast Leisure Services Pty Ltd to do anything. I am not prepared to infer such conduct, as urged by the Council, from the evidence that he is the sole director and secretary of Gold Coast Leisure Services Pty Ltd. The Council’s reliance on s 7(1)(d) of the Criminal Code is flawed and no offence can be proved against Mr Menzies on that basis. [123] The Council has not discharged its onus with respect to Mr Menzies. It has not persuaded me that any enforcement orders or declarations should be made against Mr Menzies. No costs order should be made against him either. What is the relevant legislative context for enforcement proceedings? [124] Section 180(1) of the Planning Act 2016 confers a right to start proceedings in this Court for an enforcement order. “Enforcement order” is an order that requires a person to do either or both of the following: (a) refrain from committing a development offence; and (b) remedy the effect of a development offence in a stated way.49 [125] The Court’s power to make an enforcement order is enlivened if the Court considers a development offence has been committed; or will be committed unless the order is made.50 [126] In deciding whether to make an enforcement order, the Court has a broad discretion. [127] An enforcement order may, amongst other things, direct a person: (a) to stop an activity that constitutes a development offence; or (b) to do anything required to stop committing a development offence; or (c) to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or (d) to do anything to comply with the Planning Act 2016.51 49 Planning Act 2016 s 180(2). 50 Planning Act 2016 s 180(3). 51 Planning Act 2016 s 180(5). -- 30 of 134 -- 31 [128] An enforcement order may be in terms that the Court considers appropriate to secure compliance with the Planning Act 2016.52 [129] The Court may make an enforcement order regardless of whether the development offence has been prosecuted.53 [130] The Council carries the onus of proving the commission of the offences alleged. The Council also carries the onus of proving the matters necessary to make good the enforcement orders it seeks and of persuading the Court that the orders should be made.54 [131] The making of an enforcement order has material consequences. A person who contravenes an enforcement order commits an offence punishable by up to 4,500 penalty units, or five times that for a corporation,55 or two years imprisonment.56 An enforcement order also attaches to the premises and is required to be registered on title within 10 business days of the order being made.57 It can only be removed upon notice given to the Registrar of Titles that the enforcement order has been complied with.58 For these reasons, the onus of proof is to be discharged according to the Briginshaw59 standard informed by the gravity of the issues involved.60 What are the offences in issue? [132] The case advanced by the Council in its Originating Application is that three offences have been committed. The Council did not plead a case that offences will be committed unless the order is made. [133] The Council alleges that Gold Coast Leisure Services Pty Ltd has committed offences under ss 163 and 165 of the Planning Act 2016. Each of these is a development offence under the Planning Act 2016.61 [134] The Council also alleges that Mr Menzies has committed an offence under s 227 of the Planning Act 2016. This is not a development offence under the Planning Act 2016.62 As such, a finding of the commission of that offence cannot found an enforcement order. 52 Planning Act 2016 s 180(6). 53 Planning Act 2016 s 181. 54 Kin Kin Community Group Inc v Sunshine Coast Regional Council & Ors [2010] QPEC 144; [2011] QPELR 349, 353 [22]. 55 Penalties and Sentences Act 1992 (Qld) s 181B. Presently, a penalty unit is $154.80: Penalties and Sentences Regulation 2015 (Qld) s 3. As such, the maximum penalty is $696,600 for an individual and $3,483,000 for a corporation. 56 Planning Act 2016 s 180(8). 57 Planning Act 2016 ss 180(9) and (10). 58 Planning Act 2016 ss 180(11) and (12). 59 Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336. 60 Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336; Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558, 561-2 [14]. 61 Planning Act 2016 s 161. 62 Planning Act 2016 s 161. -- 31 of 134 -- 32 What is the alleged offence under s 163 of the Planning Act 2016? [135] The Council alleges that Gold Coast Leisure Services Pty Ltd has committed a development offence under s 163 of the Planning Act 2016, which states: “163 Carrying out assessable development without permit (1) A person must not carry out assessable development, unless all necessary development permits are in effect for the development. Maximum penalty— (a) if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or (b) otherwise—4,500 penalty units. (2) However, subsection (1) does not apply to development carried out— (a) under section 29(10)(a); or (b) in accordance with an exemption certificate under section 46; or (c) under section 88(3).” [136] For this development offence, the Council must prove that: (a) Gold Coast Leisure Services Pty Ltd carried out development; (b) the development was assessable development; (c) there was no development permit authorising the development; and (d) the development was not carried out: (i) under s 29(10)(a) of the Planning Act 2016; or (ii) in accordance with an exemption certificate under s 46 of the Planning Act 2016; or (iii) under s 88(3) of the Planning Act 2016. [137] The real issues in dispute between the parties about the alleged commission of an offence under s 163 of the Planning Act 2016 relate to: (a) the development that is said to have been carried out; and (b) whether the development was assessable development. [138] There is no controversy about the other elements of the offence. They have been established. [139] The particulars of the development that the Council alleges was carried out by Gold Coast Leisure Services Pty Ltd are set out in the Originating Application. The Council alleges that between August 2017 and November 2018, there was a material -- 32 of 134 -- 33 intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by: (a) the construction of a two-storey building on Lot 524 and the commencement of use of the Passenger Terminal Pontoon for the arrival and departure of helicopters and for a café and passenger terminal; and (b) the operation of six helicopters from the Premises.63 [140] Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute that there has been a material intensification in the intensity or scale of the use of the Premises. [141] With respect to whether the development was assessable development, Gold Coast Leisure Services Pty Ltd and Mr Menzies do not dispute that City Plan 2016 purports to make the alleged material change of use of the Premises assessable development. However, Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute the application of City Plan 2016 to the Premises. As such, the Council must prove that the Premises are in the Council’s local government area for the purposes of the Planning Act 2016 and, as such, within the Council’s regulatory jurisdiction for City Plan 2016. What is the alleged offence under s 165 of the Planning Act 2016? [142] The Council alleges that Gold Coast Leisure Services Pty Ltd has committed a development offence under s 165 of the Planning Act 2016, which states: “165 Unalwful use of premises (1) A person must not use premises unless the use— (a) is a lawful use; or (b) for designated premises—complies with any requirements about the use of the premises in the designation. Maximum penalty—4,500 penalty units.” [143] For this development offence, the Council must prove that: (a) Gold Coast Leisure Services Pty Ltd is using the Premises in the manner alleged; and (b) the use is not lawful. [144] The real issue in dispute between the parties about the alleged commission of an offence under s 165 of the Planning Act 2016 relates to whether the use is lawful. 63 In final oral submissions, the Council abandoned reliance on the allegation that a change in operations was facilitated by the relocation of a one storey building from the berth containing the Passenger Terminal Pontoon to another marina berth in Mariner’s Cove marina to be used for office and storage purposes associated with the helicopter use. -- 33 of 134 -- 34 [145] The Council’s pleaded case that the use is not lawful is premised on it establishing that: (a) there was a material change of use of the Premises between August and December 1998 (“the first alleged material change of use”) that was assessable development under the 1994 Planning Scheme for which there was no development permit and, as such, the use was unlawful as it was contrary to ss 4.3.1 and 4.3.5 of the Integrated Planning Act 1997; or, alternatively (b) there was a material change of use of the Premises between January 2010 and November 2011 (“the second alleged material change of use”) that was assessable development under the 2003 Planning Scheme for which there was no development permit and, as such, the use was unlawful as it was contrary to ss 578 and 582 of the Sustainable Planning Act 2009; or, alternatively (c) there was a material change of use of the Premises between August 2017 and November 2018 (“the third alleged material change of use”) that was assessable development under City Plan 2016 for which there was no development permit and, as such, the use was unlawful as it was contrary to ss 163 and 165 of the Planning Act 2016; and (d) the Premises is continuing to be used for the arrival and departure of helicopters, hangaring, servicing, refuelling and maintaining helicopters, passenger terminal, café and related aviation facilities. [146] The particulars of the Council’s case with respect to each of the alleged material changes of use are set out in paragraph [16] above. They bear repeating here. [147] The particulars of the first alleged material change of use are that, between August and December 1998 Gold Coast Leisure Services Pty Ltd commenced use of part of the Premises for the arrival and departure of helicopters and the conduct of a helicopter operations business. [148] The particulars of the second alleged material change of use are that, between January 2010 and November 2011, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by: (a) the construction of a large hangar building on the Hangar Pontoon and the commencement of use of that building to hangar helicopters; (b) the construction of additional helipads on Lot 534 and the commencement of their use for the arrival and departure of helicopters; and (c) the operation of four helicopters from the Premises. [149] The particulars of the third alleged material change of use are that, between August 2017 and November 2018, there was a material intensification in the intensity or scale of the use of the Premises because of a change in operations facilitated by: (a) the construction of a two-storey building on Lot 524 and the commencement of use of the Passenger Terminal Pontoon for the arrival and departure of helicopters and for a café and passenger terminal; and (b) the operation of six helicopters from the Premises. -- 34 of 134 -- 35 [150] Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute that the use commenced in 1998. They also dispute that there has been a material intensification in the intensity or scale of the use of the Premises. The Council has the onus of proof with respect to each of those matters. [151] Gold Coast Leisure Services Pty Ltd and Mr Menzies also contend that the use is lawful by reason of existing lawful use rights. They say that: (a) the use commenced prior to 1998; (b) the use was lawfully undertaken having regard to the statutory regime for planning in effect immediately prior to 30 March 1998; (c) either: (i) the use has continued without a material change to the intensity or scale of the use; or, alternatively (ii) the second alleged material change of use and the third alleged material change of use are not assessable development as the Premises was not in the Council’s local government area and, as such, it is not regulated by the 2003 Planning Scheme or City Plan 2016; and (d) the existing lawful use is afforded protection under the respective successive statutory regimes for planning, namely under s 3.1 of the Local Government (Planning and Environment) Act 1990, ss 1.4.1 and 1.4.6 of the Integrated Planning Act 1997,64 ss 681 and 682 of the Sustainable Planning Act 2009 and ss 260 and 290 of the Planning Act 2016. [152] Given the proceeding was commenced by the Council and seeks findings with respect to criminal offences, Gold Coast Leisure Services Pty Ltd and Mr Menzies only carry the onus of demonstrating existing lawful use rights. They must demonstrate, on the balance of probabilities, that there has been no assessable development, namely a material change of use of the Premises under the successive regulatory regimes. [153] In the context of this case, Gold Coast Leisure Services Pty Ltd and Mr Menzies have the onus of proving that the use: (a) commenced in 1988; (b) was lawfully undertaken prior to March 1998; and (c) has continued unabandoned since inception. [154] Once that onus is satisfied, the Council carries the legal onus to negative that position to the requisite standard. Here, the Council’s pleaded case on this issue is that there were one or more material changes of use, any of which, if proved by the Council, severs the existing lawful use rights. [155] If the Council does not establish any of its alleged material changes of use, it follows that the use of the Premises for aircraft operations is an existing lawful use. It gains that protection by operation of ss 1.4.1 and 1.4.6 of the Integrated Planning Act 64 Formerly ss 1.4.2 and 1.4.6 of the Integrated Planning Act 1997 as in force prior to the amendment by the Integrated Planning and Other Legislation Amendment Act 2003 (Qld). -- 35 of 134 -- 36 1997,65 ss 681 and 682 of the Sustainable Planning Act 2009 and ss 260 and 290 of the Planning Act 2016. What must the Council demonstrate for the development offences in this proceeding? [156] With respect to the alleged offence under s 163 of the Planning Act 2016, the Council is required to demonstrate, to the requisite standard, that development (in the form of a material increase in the scale or intensity of the use) has occurred. Assessment of a material change of use requires a comparison of the use of the Premises occurring after the alleged change to that use that was occurring before the alleged change. Absent an assertion of existing lawful use rights, the Council would be required to establish both comparators on the evidence in discharging its onus that the development offence had occurred. [157] Similarly, with respect to the alleged offence under s 165 of the Planning Act 2016, the Council is required to prove, to the requisite standard, that the use is not a lawful use. The definition of lawful use has two parts. First, it involves the identification of a use of premises that is a natural and ordinary consequence of making of a material change of use. Second, it requires the material change of use of premises identified to be in compliance with the Planning Act 2016. What are the key issues to be determined? [158] I have identified the key allegations made by the Council in support of the relief it seeks in paragraphs [16] and [17] above. The allegations raise the following five key questions for consideration: 1. Was a new use of the Premises unlawfully started between August and December 1998? 2. Was there an unlawful material change in the intensity or scale of the use of the premises between January 2010 and November 2011? 3. Was there an unlawful material change in the intensity or scale of the use of the premises between August 2017 and November 2018? 4. Is the current use of the Premises a lawful use? 5. Do the discretionary considerations support, or tell against, the grant of the relief sought? Key issue 1: Was a new use of the Premises unlawfully started between August and December 1998? [159] In its Originating Application, the Council alleges that Gold Coast Leisure Services Pty Ltd unlawfully commenced use of the Premises between August and December 65 Formerly ss 1.4.2 and 1.4.6 of the Integrated Planning Act 1997 as in force prior to the amendment by the Integrated Planning and Other Legislation Amendment Act 2003 (Qld). -- 36 of 134 -- 37 1998. The foundation for its allegation is set out in the grounds at paragraphs 12, 13 and 14 of the Originating Application, which state: “12. Between August and December 1998, the First Respondent commenced use of part of the Premises for: (a) the arrival and departure of helicopters and (b) the conduct of a helicopter operations business; in circumstances where: (a) in August 1998, the First Respondent became the registered operator of helicopter VH-HTY; (b) in December 1998, the First Respondent’s principal place of business was changed to Arm Mariners Cove, Seaworld Drive, Main Beach; and (c) the helicopters operations involved the use of part of the Premises that is now [a helipad, helicopter hanger and secondary building which is located in the southwestern corner of Lot 5332 on SP185259 (Area 1)]. (First Helicopter MCU) 13. When the First Respondent commenced the First Helicopter MCU: (a) the Integrated Planning Act 1997 (IPA) was in effect; (b) there was no development permit in effect authorising the First Helicopter MCU; (c) the Applicant’s City of Gold Coast Planning Scheme – 1994 (1994 Scheme) was in effect; and (d) under the 1994 Scheme: (i) the Premises was not included in any zone and, pursuant to Part 2.1, was taken to be ‘unzoned land’; (ii) within Part 14, Provision 14.2.1.1 provided that “Development, other than park, public utilities and special uses approved by the Council, shall not be carried out in any unzoned land”; and (iii) the helicopter operations did not fall within the meaning of the term ‘park’, ‘public utility’ or ‘special use’. 14. In the premises of the matters set out in the previous paragraph, the commencement of the First Helicopter MCU: (a) was contrary to section 4.3.1(1) of the IPA, in that the First Respondent started assessable development without a development permit, and none of the matters set out in -- 37 of 134 -- 38 section 4.3.1(2)(b) were applicable; further, or in the alternative, (b) was contrary to section 4.3.5 of the IPA, in that the First Respondent used premises in circumstances where the use was not a lawful use, and none of the matters set out in section 4.3.5(b) were applicable.” [160] The Council’s case about the commencement of the use for arrival and departure of helicopters and the conduct of a helicopter operations business is circumstantial. The allegations made by the Council, and the evidence filed by the Council in support of its case, focus on the ownership of helicopters and the content of business records. The Council did not adduce any evidence directed to observations about arrival and departure of helicopters between August and December 1998, or at any time prior to that period. What is the relevant legislative context under the Integrated Planning Act 1997? [161] The Council’s allegations raise issues about the regulation of uses under ss 4.3.1 and 4.3.5 of the Integrated Planning Act 1997, which state: “Carrying out assessable development without a permit 4.3.1.(1) A person must not start assessable development without a development permit for the development. Maximum penalty—1 665 penalty units. (2) Subsection (1) applies subject to section 4.3.6. (3) Despite subsection (1), if the assessable development is the demolition of a building identified in a planning scheme as a building of heritage significance the maximum penalty is 17 000 penalty units. Carrying on unlawful use of premises 4.3.5.(1) A person must not use premises if the use is not a lawful use. Maximum penalty—1 665 penalty units. (2) Subsection (1) applies subject to section 4.3.6.”66 [162] Section 4.3.6 of the Integrated Planning Act 1996 relates to development or use carried out in an emergency. It has no relevance in this case. [163] When considering these offence provisions, it is relevant to note that under the Integrated Planning Act 1997:67 (a) “premises” is defined as a building or land (whether or not a building is situated on the land);68 and 66 Integrated Planning Act 1997 Reprints 1A and 2, being the reprints in force at the time of the alleged first material change of use. 67 Integrated Planning Act 1997 Reprints 1A and 2, being the reprints in force at the time of the alleged first material change of use. 68 Integrated Planning Act 1997 s 1.3.1 and sch 10 (Reprints 1A and 2). -- 38 of 134 -- 39 (b) “land” is defined to include: “(a) any estate in, on, over or under land; and (b) the airspace above the surface of land and any estate in the airspace; and (c) the subsoil of land and any estate in the subsoil.”69 [164] Under the Integrated Planning Act 1997, there are three categories of “development”, namely exempt development, assessable development, and self-assessable development.70 All development is exempt development unless it is assessable development or self-assessable development.71 [165] A development permit is necessary for assessable development but is not necessary for self-assessable development or exempt development.72 [166] The Council contends that the first alleged material change of use of the Premises constitutes “assessable development” for the purposes of the Integrated Planning Act 1997. It says it was made assessable development under the 1994 Planning Scheme. [167] Relevantly for this case: (a) “development” is defined to include the making of a material change of use of premises;73 and (b) “material change of use” is defined to mean: (i) the start of a new use of the premises; or (ii) the re-establishment on the premises of a use that has been abandoned; or (iii) a material change in the intensity or scale of the use of the premises;74 and (c) “use”, in relation to premises, is defined to include any use incidental to and necessarily associated with the use of the premises.75 [168] In considering the ambit of the offences, it is also relevant that: (a) with respect to “lawful use”, s 1.3.4 of the Integrated Planning Act 1997 states: “A use of premises is a “lawful use” of the premises if— (a) the use is a natural and ordinary consequence of making a material change of use of the premises; and 69 Integrated Planning Act 1997 s 1.3.1 and sch 10 (Reprints 1A and 2). 70 Integrated Planning Act 1997 s 3.1.2 (Reprints 1A and 2). 71 Integrated Planning Act 1997 s 3.1.2 (Reprints 1A and 2). 72 Integrated Planning Act 1997 s 3.1.4 (Reprints 1A and 2). 73 Integrated Planning Act 1997 s 1.3.2 (Reprints 1A and 2). 74 Integrated Planning Act 1997 s 1.3.5 (Reprints 1A and 2). 75 Integrated Planning Act 1997 s 1.3.1 and sch 10 (Reprints 1A and 2). -- 39 of 134 -- 40 (b) the making of the material change of use was in accordance with this Act.”76 (b) ss 1.4.1 and 1.4.6 protect existing lawful use rights and state: “˙Lawful uses of premises protected 1.4.1.(1) If immediately before the commencement of a planning instrument or an amendment of a planning instrument the use of premises was a lawful use of the premises and there has been no material change of the use since the commencement of the instrument or the amendment, neither the instrument nor the amendment can— (a) stop the use from continuing; or (b) further regulate the use; or (c) require the use to be changed. (2) If there has been a material change of the use of premises since the commencement of a planning instrument or an amendment of a planning instrument, any lawful use of the premises immediately before the commencement is taken to be a lawful use of the premises after the commencement— (a) for as long as the use continues; but (b) only to the extent the lawful use of the premises immediately before the commencement continues. (3) Subsection (2) applies whether or not the material change of use was authorised under a development permit. … Lawful uses of premises protected 1.4.6. If immediately before the commencement of this section the use of premises was a lawful use under the repealed Act and there has been no material change of the use since the commencement— (a) the use is taken to be a lawful use under this Act; and (b) neither a planning instrument nor an amendment of a planning instrument can— (i) stop the use from continuing; or (ii) further regulate the use; or (iii) require the use to be changed. 76 Integrated Planning Act 1997 (Reprints 1A and 2). -- 40 of 134 -- 41 (2) If there has been a material change of the use of premises since the commencement of this section, any lawful use of the premises immediately before the commencement is taken to be a lawful use of the premises after the commencement— (a) for as long as the use continues; but (b) only to the extent the lawful use of the premises immediately before the commencement continues. (3) Subsection (2) applies whether or not the material change of use was authorised under a development permit.”77 What are the issues in dispute with respect to the first alleged material change of use? [169] Here, the Council’s case is that the first alleged material change of use was the start of a new use of the Premises. The Council contends that the start of the use was not lawful as it was assessable development requiring a development permit and no development permit was obtained. [170] Gold Coast Leisure Services Pty Ltd concedes that it did not obtain a development permit under the Integrated Planning Act 1997. Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute the balance of the Council’s allegations on the basis that: (a) the evidence does not establish that the use of the Premises (or part thereof) commenced between August and December 1998; and, in any event (b) between August and December 1998, the Premises was not in the Council’s local government area and, as such: (i) was not within the Council’s planning scheme area; and (ii) was not regulated by the 1994 Planning Scheme. [171] There are three questions to be answered to resolve the issues in dispute, namely: 1. Did use of the Premises commence between August and December 1998? 2. Was the first alleged material change of use made assessable development under the 1994 Planning Scheme? 3. Was the use of the Premises a lawful use for s 4.3.5 of the Integrated Planning Act 1997? Did use of the Premises commence between August and December 1998? [172] With respect to the Council’s pleaded case, the Council submits that Gold Coast Leisure Services Pty Ltd established a permanent, dedicated business that was based at the Hangar Pontoon in late 1998. It says the business used buildings and structures on and around the Hangar Pontoon. According to the Council, that was the start of a new use of the Hangar Pontoon. 77 Integrated Planning Act 1997 (Reprints 1A and 2). These provisions were later amended, but the legislative protection afforded to existing uses was not altered. -- 41 of 134 -- 42 Does the evidence adduced by the Council establish the commencement of the use as alleged? [173] The evidence adduced by the Council establishes that: (a) in August 1998, Gold Coast Leisure Services Pty Ltd became the registered operator of helicopter VH-HTY; and (b) in December 1998, Gold Coast Leisure Services Pty Ltd’s principal place of business was changed to Arm Mariners Cove, Seaworld Drive, Main Beach. [174] Having regard to the evidence filed by the Council before Gold Coast Leisure Services Pty Ltd and Mr Menzies filed their evidence, it is difficult to understand how the Council had a sufficient basis to allege78 that, between August and December 1998, Gold Coast Leisure Services Pty Ltd commenced use of part of the Premises for the arrival and departure of helicopters and for the conduct of a helicopter operations business that involved the use of the Hangar Pontoon. [175] It is open for the Court to draw inferences from facts that the Court finds to be proved. However, the Court may only draw reasonable inferences, and the inferences must be based on facts that the Court finds proved by the evidence. There must be a logical and rational connection between the facts found and the deductions or conclusions. [176] When drawing inferences, it is important to keep in mind that, where a criminal offence is explicitly alleged, as it is here, the standard of proof is towards the top of the Briginshaw79 sliding scale. Discharging a burden of this kind is no easy task. Part of the way in which a Court may be satisfied to the requisite standard is by having confidence that the investigation has been conducted thoroughly and expertly, and that all relevant material, exculpatory or inculpatory, has been made available for proper scrutiny. [177] The following comments made by the Queensland Court of Appeal (Sofronoff P, Mullins JA and Davis J) in the context of a criminal trial in R v Ernst80 are apposite:81 “[35] The administration of criminal justice depends heavily upon the work of police. In this sphere, the investigative work of police culminates in the evidence led at a criminal trial because it is the function of police, not the Director of Public Prosecutions, to investigate an alleged offence and to collect and assemble relevant evidence. Judges and juries depend utterly upon the integrity of that process. To a great degree, that integrity depends upon the assumption that police investigators have been objective and have attempted to uncover all relevant evidence that can reasonably be assembled, whether it is inculpatory or exculpatory. Indeed, sometimes a prosecution case can gain unassailable strength in the eyes of a jury if it is evident that the evidence that has been put forward has been the result of an utterly objective investigation and one in which, 78 as it does in the Originating Application. 79 Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336. 80 [2020] QCA 150. 81 R v Ernst [2020] QCA 150, [35]. -- 42 of 134 -- 43 having regard to the truth of the Crown case, the investigators did not fear to find and put forward evidence that might exculpate an accused person.” [178] Although this is not a criminal prosecution, the observations have force. If the Court cannot have confidence in an investigative process, then it is more difficult to have confidence in the conclusions that are sought to be drawn from the results of the process. [179] The only conclusion that I am satisfied can be drawn from the Council’s evidence in this case is that the investigation was substandard. I have no confidence that the Court, or Gold Coast Leisure Services Pty Ltd and Mr Menzies, have been furnished with the fruits of the investigation, whether positive or negative. That is so for the following four reasons. [180] First, it transpired during cross-examination of the Council’s witness Ms Hansen, that despite being the current investigator allocated to the case, she has not read the whole of the investigation file that was handed over to her. That has three consequences. Firstly, it bespeaks a wholly unsatisfactory and unprofessional approach to investigation. Secondly, no proper state of mind as to the commission of a development offence can conceivably have been formed in a proper way. Thirdly, no one knows what was on the investigation file that was not properly read. [181] Second, this case involves more than three decades of history. It seems that the investigators took no meaningful steps to obtain evidence about the use over that period beyond obtaining some historical records from the Council. There is no evidence that the Council sought to: (a) find and speak to relevant witnesses; or (b) follow up on any documents that may be missing from the record; or (c) speak with any current or former staff of the Council who the records indicate have been involved with Gold Coast Leisure Services Pty Ltd and Mr Menzies at important points in the history of the impugned use. [182] Third, there are clear examples of inquiries being made, but no disclosure to the Court or to Gold Coast Leisure Services Pty Ltd and Mr Menzies of the results of those inquiries. Most notably, during Ms Hansen’s evidence she made it known that a private investigator had been retained. The Council has not placed any evidence before the Court about the inquiries made by the private investigator, or the fruits of their investigation. [183] Fourth, there are several letters from representatives of the Council, dated between 2001 and 2013, that relate to the issuing of approvals to conduct environmentally relevant activities at the Premises. The approvals referred to in the correspondence are not development permits that authorise the use in question. Nevertheless, the content of the letters indicates that the Council had knowledge of the use of the Premises and of a history of approvals on the Premises. [184] For example, on 13 April 2005, the Council wrote to Gold Coast Leisure Services Pty Ltd requiring an application to be made for a development approval for -- 43 of 134 -- 44 environmentally relevant activities, namely ERA 11(a) – Crude Oil or Petroleum Storing and ERA 70 – Heliport. In that letter, the Council said: “Due to your business activity being in operation on or before 1 March 1995 (the commencement day for the Environmental Protection (Interim) Regulation 1995) the activity was then deemed to hold approval”. [185] Another example of evidence of relevant knowledge is the correspondence dated 22 November 2011. On that date, the Council wrote to Gold Coast Leisure Services Pty Ltd requiring an application to be made for a development permit in relation to an environmentally relevant activity, namely ERA 8 chemical storage. That letter notes: “A check of Council’s records indicates that a valid Development Permit is held for the activity on the site”. [186] No inquiries were made by the Council about the existing “business activity”, including about the period over which it had been conducted. Nor were there any inquiries about the “valid Development Permit … held for activity on the site”. [187] It is reasonable to infer from the correspondence that, at the very least, the Council has been aware of the “business activity” comprising the environmentally relevant activities of heliport and petroleum storage for many years. [188] Considering these circumstances, even if it were open to me to draw an inference about the alleged commencement of the use based on the Council’s evidence about helicopter ownership and the registered business address for Gold Coast Leisure Services Pty Ltd, the Council has not persuaded me, to the requisite standard, that I should do so. The matters to which I have referred above give me considerable doubt that the inferences invited by the Council are appropriate. [189] As such, the evidence adduced by the Council is insufficient, on its own, to establish the commencement of the use as alleged. [190] Of course, given Gold Coast Leisure Services Pty Ltd and Mr Menzies elected to adduce evidence, I accept that I must reach my decision on all the evidence, not only that evidence adduced by the Council. I now turn to that other evidence. What additional evidence does the Council rely on to discharge the onus? [191] The Council submits that there was a change of situation arising from Gold Coast Leisure Services Pty Ltd taking over the lease for the Hangar Pontoon. The Council submits that Mr Menzies described the previous use of the pad as being “intermittent” and relies on the following exchange during his cross-examination: “That was the initial lease. Now, until then, you had been landing and taking off your helicopter or helicopters from that pad from time to time?---Yes. Quite frequently, actually. You didn’t have a contractual relationship or arrangement with Mr Gash or his company which entitled you to use the pad for your helicopter operations, did you?---No, I didn’t. -- 44 of 134 -- 45 You did so with his – if I may put it this way – good grace?---Yes. That’s - - - Because you obviously had a personal relationship with him?---That’s correct. And you say that others also used the pad on a similar basis?---Yes, that’s correct. But the primary use to which the pad was put was Mr Gash’s seaplane business?---Yes, that’s correct. And the pad was used for him – the seaplanes were able to taxi up to and then taxi onto the ramp – the pad, rather?---That’s correct. They were lifted out by means of a trolley. By a trolley. And then turned around so that they could taxi off?--- That’s correct. And they were kept - - - HER HONOUR: Sorry, could I just – when you say “primary,” can I just understand what you mean by primary? Do you mean the primary use in terms of he had first right or he was the main in terms of volume or – I don’t know what you mean by primary?---Your Honour, he was obviously the lease holder for the pad, and I was established next door to him. The pad was very, very useful for me for landing helicopters on it. He knew that. And so we – I coordinated with him and with his acknowledgement to land and utilise the pad while his float planes were out, which they used to take off and fly out to Tipplers and do joy flights and Sanctuary Cove and all that sort of stuff. So it was just an arrangement that I had. So, yes, primary he was the seaplane operator there, and I could utilise the pad intermittently or whenever the planes were off the pad.” (underlining reflects the emphasis added by the Council) [192] The Council submits that, by way of contrast, after obtaining control of the Hangar Pontoon, Mr Menzies confirmed that he was no longer acting based on Mr Gash’s good grace and was entitled to operate helicopters as and when he wished to. The Council also relies on Mr Menzies acceptance that operating from the Hangar Pontoon provided a great opportunity to coordinate the operation not just from the hut that was on the Hangar Pontoon, but from the terminal that had been established on the adjoining marina berth in Lot 524. [193] In addition, the Council relies on evidence of Mr Menzies, which it submits is a description by Mr Menzies of the operation of the Gold Coast Leisure Services Pty Ltd fleet prior to the establishment of its business permanently at the Hangar Pontoon. The evidence relied on is as follows: “But for all practical purposes, by around 2003, let’s – if it’s easier for you to think 2005, it was helicopters that were mainly using that pad?- --Yes, that’s correct. And they were mainly your helicopters?---Yes. -- 45 of 134 -- 46 And this is an example of the way the business evolved over the years?---That’s correct. I think the business had always had the helicopters; we just had them in all different places and we utilised the best landing and take-off places we could at the time.” (underlining reflects the emphasis added by the Council) [194] Next, the Council relies on the evidence of Mr Menzies that by 2009, most of Gold Coast Leisure Services Pty Ltd’s joy flight operations were conducted from the Hangar Pontoon. [195] Finally, the Council submits that it is relevant that a consequence of securing the lease rights over the Hangar Pontoon in 1998 was the capacity to store one helicopter undercover in the “donga” at the northern part of the pontoon, as well as being able to enjoy exclusive use of the terminal building on the southern part of the Hangar Pontoon. [196] Based on the evidence identified in paragraphs [191] to [195] above, the Council submits that the establishment by Gold Coast Leisure Services Pty Ltd of its helicopter use from the Hangar Pontoon, in conjunction with the adjoining floating terminal at the marina berth on Lot 524, was a material change of use for which a development permit was required, and not obtained. It also submits that because there was never a lawful right to use the passenger terminal in the marina berth on adjoining Lot 524, the absence of a development permit for the use of the passenger terminal renders the collective use of Lot 524 and the Hangar Pontoon unlawful. Is there a fundamental flaw in the Council’s case with respect to its first alleged material change of use? [197] I do not accept the Council’s submissions for three reasons. [198] First, the Council’s reliance on the evidence identified in paragraphs [191] to [195] above, to the exclusion of other evidence about the decade-long use of the Premises between September 1988 and December 1998, presents a false impression of the evidence about the extent of the use of the Premises. [199] The evidence referred to by the Council has been taken out of context. It does not truly reflect the overall effect of the evidence of Mr Menzies, nor the other evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies that was unchallenged. [200] The Council’s submissions do not assist me to understand why the evidence identified in paragraphs [191] to [195] above should be accepted to the exclusion of the balance of the evidence of Mr Menzies and the other evidence about the use of the Premises. The Council does not explain why the evidence it relies on should be viewed in isolation nor why it should be preferred to the evidence of the other witnesses who gave affidavit evidence and who were not cross-examined. [201] I am not persuaded that I should only have regard to the evidence relied on by the Council, nor am I persuaded to make the findings that the Council invites me to make. I deal with what the evidence establishes later in these reasons. -- 46 of 134 -- 47 [202] Second, the Council relies on evidence about the continued operation in 2009, referred to in paragraph [194] above, to prove that the use commenced in 1998. That evidence is not capable of proving commencement in 1998. [203] Third, the Council’s reliance on the evidence identified in paragraphs [191] to [195] above reflects an approach to the issue that is fundamentally flawed. In its approach, the Council effectively invites me to characterise the use between 1988 and 1998: (a) as having more than one purpose because there was either, or both, of: (i) two or more types of occupation, such as a lease to Mr Gash and an occupation by invitation by Mr Menzies and others; and (ii) two or more persons, or corporate entities, using the Premises; and (b) by ignoring all the activity at the Premises that was not undertaken by Gold Coast Leisure Services Pty Ltd or Mr Menzies. [204] This approach ignores two important, and related, planning concepts that are relevant to whether there is evidence of a material change of use of the Premises. [205] The first planning concept relates to the characterisation of the use of a relevant planning unit. It has long been recognised in town planning law that there is a close correlation between the identification of the relevant planning unit and the characterisation of its use.82 The identification and delineation of a planning unit and its use are questions of fact. It is determined by undertaking an evaluative exercise that calls for consideration of the circumstances of the case, the applicable legislative regime and the planning context.83 [206] Relevant general principles include: (a) a planning unit is the entire physical area that is used for a particular purpose, including any part of that area where a use is incidental, or ancillary, to the achievement of that purpose;84 (b) where a single unit of occupation contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, each area that is used for a different main purpose (together with its incidental and ancillary activities) should be considered as a separate planning unit;85 82 See, for example, Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38]-[40]. 83 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160 and 161; Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 217; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, 409; Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 291 [40]; Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, 227-8 [14]. 84 Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244. 85 Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244. -- 47 of 134 -- 48 (c) where the whole premises is used for two or more purposes, none of which is subservient to the others, it is irrelevant to inquire which of the multiple purposes is dominant;86 (d) where premises are used for two or more purposes, one of which is described as the dominant purpose, and the others described as ancillary to the dominant purpose, the ancillary purpose or purposes take their colour from the dominant purpose;87 (e) consideration of an entire unit of occupation might reveal a composite or mixed use in circumstances where the occupier carries on a variety of activities that are not confined within separate and physically distinct areas of land, the component activities fluctuate in their intensity from time to time, and it is not possible to say that one is incidental or ancillary to another;88 (f) although considering the intended use of premises by reference to the activities, processes and transactions to be undertaken will be useful in casting light on the purpose of the proposed use, it is inappropriate to determine the relevant purpose by doing no more than identifying activities, processes or transactions and then fitting them to one or more uses as defined in a planning scheme or into the definition that provides the best fit;89 and (g) where a planning scheme does not purport to cover every possible use to which land or buildings might be put, such as where it refers to a use for “any other purposes” or innominate uses, a planning authority need not regard a proposed use as necessarily coming within any of the definitions in the planning scheme if such placement is inappropriate in terms of the planning scheme and the definitions. To treat the planning scheme definitions as all-encompassing would render provision for an innominate use otiose.90 [207] For the reasons explained below, I am comfortably satisfied that the evidence establishes that by January 1994, and at all times since then: (a) the relevant planning unit was not just Lot 5332 as asserted by the Council: it was the entire Premises; and (b) the use of the Premises is properly characterised as a use for a single purpose that comprises the arrival and departure of aircraft, the housing and refuelling of aircraft, the assembly and dispersal of passengers on and from aircraft and ancillary activities that are incidental to and necessarily associated with such use, such as office, reception and lounge facilities, pre-flight briefing facilities, and pre and post flight departure terminal facilities. For convenience, I will describe the use as “Aircraft Services”. 86 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 161. 87 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160; Cook v Woollongong City Council (1980) 41 LGRA 154, 159. 88 Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] and [39], citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244 and Fidler v First Secretary of State [2005] 1 P & CR 169, 175. 89 Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37], 13 [44]-[49], and 18-9 [72]-[73]. 90 St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, 392; Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381. -- 48 of 134 -- 49 [208] The second planning concept is that planning law is concerned with the development and use of land, not the identity of the user. It is not concerned with regulating matters such as trespass, property occupation rights, corporate structure or asset ownership. Given the allegation that I am presently addressing is that there was a material change of use under the Integrated Planning Act 1997, it is sufficient to observe that this planning concept is apparent when one considers the entirety of that legislation. This includes those provisions identified in paragraphs [161] to [168] above, as well as the long title which describes the Act as: “An Act for a framework to integrate planning and development assessment so that development and its effects are managed in a way that is ecologically sustainable, and for related purposes.” [209] Focussing on the use of the Premises, rather than only those activities conducted by Gold Coast Leisure Services Pty Ltd and Mr Menzies, I am comfortably satisfied that the evidence establishes that prior to January 1994, the use of the Premises for Aircraft Services was not an intermittent use as asserted by the Council. [210] With those matters in mind, I now turn to what is established on the evidence. What does the evidence establish about the use of the Premises between 1988 and December 1998? [211] When considering the Council’s allegation that the use of the Premises commenced between August and December 1998, it is useful to keep in mind that: (a) the Council concedes that between 27 March 1982 and 10 February 1994 the Premises was not included in any zone under the 1982 Planning Scheme; (b) the Council accepts that between 27 March 1982 and 10 February 1994 no land use constraints were imposed on the Premises by the 1982 Planning Scheme, the now repealed Local Government Act 1936 and the Local Government (Planning and Environment) Act 1990; and (c) if the use commenced prior to 1994 and continued without abandonment until after December 1998, the Council cannot succeed on its allegation that there was a material change of use by reason of commencement of use of the Premises between August and December 1998. [212] In determining the nature and extent of use of the Premises between 1988 and 1998, I have had the benefit of evidence that includes: (a) affidavit evidence and oral testimony of Mr Menzies, who gave direct evidence about activities that he undertook on the Premises and his personal observations of the activities of others at the Premises; (b) affidavit evidence of Mr Frederick Merrett, Mr Gabriel Jose, Dr Trevor Long, Mr Murray Waite, and Mr Brett Calcino; and (c) various photographs and aerial photographs. [213] The Council did not require Mr Merrett, Mr Jose, Dr Long, Mr Waite, or Mr Calcino for cross-examination. Mr Menzies was the only of the witnesses whose evidence was adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies that the Council cross-examined. Having observed Mr Menzies’ evidence, particularly -- 49 of 134 -- 50 during cross-examination when his evidence was being tested, my impression is that he is unwaveringly honest. I also regard his evidence about the activities undertaken and the timing of them to be reliable. He was frank about those occasions where he could not be precise and did not attempt to guess. I had a very clear impression that he only volunteered details about which he was certain. [214] I regard the evidence of Mr Menzies, and the other supporting evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, to be credible and reliable evidence about the use of the Premises. The evidence of Mr Menzies, and the other witnesses who had direct knowledge about the use of the Premises, is consistent with other evidence that I accept, such as the photographs and aerial photographs. [215] I have already briefly outlined several key facts that are established on the evidence in paragraphs [5] to [13] above. In addition to those facts, the evidence comfortably persuades me of the following facts. [216] The Hangar Pontoon was berthed at Lot 5332 in September 1988. At that time, there was a refuelling facility containing diesel. The Hangar Pontoon was used for arrival and departure of aircraft, refuelling of aircraft, the assembly and dispersal of passengers on and from aircraft, and ancillary activities that are incidental to and necessarily associated with such use, including the washing down of aircraft and pre and post flight checks. [217] On 17 December 1991, the Council issued a letter giving notice of its approval of, amongst other things, the storage of aircraft and the erection of a structure to provide for a passenger terminal. [218] In 1992, the first terminal building was erected on the Hangar Pontoon. It is a building that is six metres in length and six metres in width. It facilitated activities that were incidental to and necessarily associated with the aircraft services use, such as use for an office, reception and lounge, and pre-flight briefing. [219] Around this same time, Avgas was available as part of the refuelling facility. Although Mr Menzies’ Squirrel Helicopter did not use Avgas (and so was refueled elsewhere), other helicopters did and were refueled at the Hangar Pontoon after 1992. [220] Also at this time, the Hangar Pontoon was leased by Seair Pacific, which was a seaplane business operated by Mr Peter Gash. Although Mr Gash had the lease of the Hangar Pontoon, and used it for his seaplane business, he also permitted its concurrent occupation and use by several commercial helicopter operators. Those operators included, but were not limited to, Mr Menzies. The Hangar Pontoon was also regularly used by others, such as those flying helicopters for television news channels. Mr Gash permitted those other operators to use the Hangar Pontoon for arrival and departure of helicopters and for other activities that were incidental to and necessarily associated with that use, including the assembly and dispersal of passengers on and from the aircraft. Mr Gash also permitted others, such as Mr Menzies, to use the passenger terminal for activities associated with their aircraft services. The use of the Hangar Pontoon by multiple aircraft, including seaplanes and helicopters, continued for many years. [221] As I have already mentioned, 1988 to 1994 was a busy time in the Gold Coast Broadwater for aircraft activity. Passenger, tourist and commercial helicopter flights -- 50 of 134 -- 51 were in high demand due to World Expo ’88, a boom in tourism brought many visitors from Japan to the Gold Coast, and rampant development was being photographed from the air. [222] The types of services provided by the various aircraft operators using the Hangar Pontoon were many and varied. Mr Gash operated seaplanes for joy flights and charter flights for transfers. Mr Menzies undertook charter flights for transfers, joy flights, aerial photography work and work flying promotional banners. Some helicopter operators were capturing footage for television news channels. [223] There was adequate space for both seaplanes and helicopters to use the pad concurrently due to nuances in their respective operation. The seaplanes would dock at the end of the Hangar Pontoon, in the area that later became Lot 534. The seaplanes would pick up passengers from that location at the end of the Hangar Pontoon and would go out into the Broadwater for take-off. At night, the seaplanes were stored on the Hangar Pontoon. These features of the operation of seaplanes left the main landing area on the Hangar Pontoon free during the day for use by helicopters, except for the limited periods when the seaplanes were on the pontoon for refuelling. [224] During the hearing, Mr Menzies gave evidence that in January 1994, the one-storey terminal was floated into place at the marina berth on Lot 524 and became operational. [225] The Council attacks Mr Menzies’ credibility with respect to this testimony. It submits that I should reject that evidence. It says that the evidence is inconsistent with paragraph 108 of Mr Menzies’ affidavit sworn on 13 October 2023. [226] The Council submits that the affidavit was prepared at Mr Menzies’ leisure when he had access to whatever documents he might have wished to access and when he was not under a pressure of time to recall dates. The Council says this can be contrasted with the one question that he was asked during re-examination. The Council also relies on the fact that Mr Menzies prefaced the answer he gave during re-examination with a statement that he found it difficult to remember and then, when pressed by his own Counsel, he gave a date but did not further explain how his recollection had changed. The Council submits that there is no reasonable basis upon which to accept Mr Menzies’ oral testimony on this issue and for preferring that evidence to the evidence in paragraph 108 of Mr Menzies’ affidavit. [227] I do not accept the Council’s submissions for each of the following three reasons. [228] First, it is not clear to me that there is an inconsistency between Mr Menzies’ oral testimony and the evidence in his affidavit given the differences in the language used. [229] The relevant exchange during the hearing was as follows: “Please tell me if you don’t know because it’s such a long time ago, but you were being asked about the lease of that berth next to the marina pad. Was that a formal lease or was it a different kind of lease from the one for the marina [indistinct] itself?---All – all the leases were – were a month-to-month lease, which they still are today, and it was just done a marina lease that was done via the marina manager and – and then signed month to month. -- 51 of 134 -- 52 All right. In terms of that, you indicated 1994; I know it’s a long time ago. As best as you can recall on the many limitations you need to give, when in 1994 do you think that the – you took that lease and that one-storey building went in?---That’s a – a long time ago, but it would – certainly would have been earlier in the year. I would say around January. Can you be any more specific than that?---Not really. Early in the year. [230] In paragraphs 107 and 108 of his affidavit Mr Menzies says: “107. Given we already had a good working relationship with Seair Pacific and Peter Gash to share the Marina Aircraft Pad, when a berth next to the pad became available in 1994 we took up that lease. We initially shared this berth with John Anderson who operated a parasailing company that was also chasing cruise boats at this time. 108. By late 1994, we established a floating terminal in our berth next to the Marina Aircraft Pad. This berth had room in front to park the MV Helitours boat. …” [231] When I read paragraph 108 in conjunction with paragraph 107, it seems to me that Mr Menzies’ reference to when the floating terminal was “established” is a reference to it being moved into its current position after he had the marina berth to himself, that is, after he stopped sharing it with John Anderson. [232] Second, in assessing Mr Menzies’ reliability and credibility, it is relevant to consider the chronology. [233] On 20 March 2023, the Council filed its Originating Application in which it alleged that the use of the Premises commenced between August and December 1998. [234] On 13 October 2023, Mr Menzies swore his affidavit containing paragraphs 107 and 108. At that time, the focus of the Council’s allegation was that Gold Coast Leisure Services Pty Ltd had started the use in 1998. His affidavit was prepared in response to that allegation. His affidavit was prepared in circumstances where the precise time in 1994 that the passenger terminal was floated into place in Lot 524 was not a matter of particular importance. [235] On 18 December 2023, even though it had made no application to amend its Originating Application, the Council filed written submissions in which it asserts, for the first time, that the use materially intensified in 1998. I will return to the Council’s attempt to completely reframe its case about the first material change of use later. For present purposes, it is sufficient to observe that the Council’s attempt to shift its case brought a need for particularity about time frames of activities between 1988 and 1998 into sharper focus. [236] On 8 February 2024, Mr Menzies swore a further affidavit. In that affidavit, Mr Menzies refers to a report prepared by Mr Mewing, the town planner retained by the Council to respond to the case advanced by Gold Coast Leisure Services Pty Ltd and Mr Menzies. In the report, Mr Mewing comments on various elements that comprise the business and compares those elements at points in time to form -- 52 of 134 -- 53 conclusions about intensity and scale. Mr Menzies says that Mr Mewing’s analysis appears to ignore the pontoons that were in the berth next to the Hangar Pontoon before they were eventually replaced by the two-storey terminal pontoon in 2018, being the berth in Lot 524. Mr Menzies goes on to provide further photographs that he has of the terminal in place at that berth. [237] From these facts, I infer that after preparing his original affidavit and prior to the hearing, Mr Menzies had cause to further consider the timing of commencement of the use of Lot 524. He took time to source further documents that would assist him with his recollections about the timing of the events. This, of itself, satisfies me that his later testimony, being that given during the hearing, was credible and reliable. It provides a credible explanation for any inconsistency, be it real or perceived. [238] Third, having had the benefit of observing Mr Menzies oral testimony, I am persuaded that his answer in this respect is credible and reliable. [239] The Council’s attack on Mr Menzies credibility and reliability on this issue serves to further highlight the importance of particulars and the unfairness that may arise if an authority prosecuting an allegation of an offence is permitted to shift the case in a material way. [240] The one-storey terminal served essentially the same function as the terminal that later replaced it between August 2017 and November 2018. It served as an office, reception, lounge, pre-flight briefing facility, and pre and post flight departure terminal for Gold Coast Leisure Services Pty Ltd. It was augmented with an elevated “perch” that housed a helicopter for promotional purposes. [241] During the period leading up to January 1994, Mr Menzies had other floating pontoons that operated as helipads that he would use in conjunction with the Hangar Pontoon. He would secure the pontoons to the western end of the Hangar Pontoon, in an area that later became Lot 534, and in the berth in that part of Lot 524 that forms the Premises. [242] Overall, I am satisfied that throughout the period from 1988 to January 1994, several aircraft operations (seaplane and helicopter) were using the Hangar Pontoon and the area to its immediate west that was later created as Lot 534 on 29 March 1996. Further, I am satisfied that by January 1994, the first terminal pontoon had been established on Lot 524 and was being used in conjunction with the aircraft activities on Lot 5332 and Lot 534. Accordingly, at this time, the relevant planning unit included the whole of the Premises that was being used for a single purpose, namely Aircraft Services.91 [243] Although the Premises was used by more than one operator conducting flights for different reasons, there were not physically separate and distinct areas of occupation. Nor were the operators occupying the Premises for substantially different and unrelated purposes. The use is properly characterised as for a single purpose, namely Aircraft Services. 91 As I have already identified, Aircraft Services comprises a use for the arrival and departure of aircraft (including seaplanes and helicopters), the housing and refuelling of aircraft, the assembly and dispersal of passengers on and from aircraft and ancillary activities that are incidental to and necessarily associated with such use, such as office, reception and lounge facilities, pre-flight briefing facilities, and pre and post flight departure terminal facilities. -- 53 of 134 -- 54 [244] From 1994 until 1998 (and beyond), the use of the Premises for Aircraft Services in the manner outlined above continued. Although there were market fluctuations, the demand for Aircraft Services remained relatively consistent. [245] For the reasons outlined above, I am comfortably satisfied that the use of the Premises for Aircraft Services commenced prior to the commencement of the 1994 Planning Scheme. The Council has not satisfied me, to the requisite standard, that there was a material change of use of the Premises between August and December 1998 by reason of the commencement of a new use. [246] As I mentioned earlier, the Council, through its written submissions, attempted to annex an allegation that there was a material increase in the intensity or scale of the use. That allegation is inconsistent with the case advanced by the Council in the Originating Application. For the reasons provided in paragraphs [101] to [106] above, it is not appropriate for the Council to now advance a case that is substantially different to that pleaded in its Originating Application. Further, and in any event, the Council has not satisfied me, to the requisite standard, that there was a material change of use of the Premises between August and December 1998 by reason of a change in the intensity or scale of the use, let alone a material change. Was the first alleged material change of use made assessable development under the 1994 Planning Scheme? [247] The Council alleges that, for the purposes of the Integrated Planning Act 1997, the first alleged material change of use is assessable development under the 1994 Planning Scheme. [248] Considering my findings above, it is unnecessary for me to determine that allegation to dispose of the Council’s case that Gold Coast Leisure Services Pty Ltd started assessable development without a development permit and, as such, breached s 4.3.1 of the Integrated Planning Act 1997. That said, whether a material change of use of the Premises was assessable under the 1994 Planning Scheme has potential relevance to the broader question of lawfulness of the use. As such, I deal with it below. [249] This allegation calls for consideration of the following questions for the period between August and December 1998: 1. What is assessable development under the Integrated Planning Act 1997? 2. What is the jurisdiction of a local government for the Integrated Planning Act 1997? 3. How was the Council’s local government area defined? 4. Are the premises located within the Council’s local government area as shown on area maps LGB58 Edition 3 and LGB58 Edition 4? 5. Did the 1994 Planning Scheme make a material change of use of the Premises assessable? -- 54 of 134 -- 55 What is assessable development under the Integrated Planning Act 1997? [250] The Council contends that the material change of use of the Premises between August and December 1998 constitutes “assessable development” for the purposes of the Integrated Planning Act 1997. [251] For the Integrated Planning Act 1997, “assessable development” is defined as: “(a) development specified in schedule 8, part 1; or (b) for a planning scheme area—development that is not specified in schedule 8, part 1 but is declared under the planning scheme for the area to be assessable development.”92 [252] In addition, under the transitional provisions of the Integrated Planning Act 1997: (a) “assessable development” is defined as: “(a) development specified in schedule 8, part 1; or (b) development, not inconsistent with schedule 8 or schedule 9, that— (i) under the repealed Act, would have required an application to be made— (A) for a continuing approval; or (B) under section 4.3(1) of the repealed Act; or (ii) because of an amendment to, or the commencement of, a transitional planning scheme, requires an application for development approval; or (c) development to which paragraph (b)(i) would apply if, under the repealed Act, the development had not been carried out on State land.”93 (b) “continuing approval” is defined as a condition, certificate, permit or approval mentioned in s 6.1.23(1) of the Integrated Planning Act 1997, being approvals for rezoning, town planning consent, subdivision, amalgamation of land, access easement and other approvals given under a former planning scheme, other than approvals given pursuant to a requirement for an action to be carried out to the satisfaction of a nominated person.94 [253] There is no suggestion that sch 8 of the Integrated Planning Act 1997 is relevant in this case. Rather, the Council contends that the first alleged material change of use was assessable as it was declared under the 1994 Planning Scheme to be assessable development. [254] This requires consideration of the jurisdiction of a local government under the Integrated Planning Act 1997. 92 Integrated Planning Act 1997 s 1.3.1 and sch 10. 93 Integrated Planning Act 1997 s 6.1.1. 94 Integrated Planning Act 1997 ss 6.1.1 and 6.1.23. -- 55 of 134 -- 56 What is the jurisdiction of the Council under the Integrated Planning Act 1997? [255] For the purposes of the Integrated Planning Act 1997, development is made assessable development pursuant to: (a) a planning scheme made under the Integrated Planning Act 1997; or (b) a transitional planning scheme, which are those provisions of a former planning scheme that are not inconsistent with chp 3 of the Integrated Planning Act 1997.95 [256] Under the Integrated Planning Act 1997, a former planning scheme is a planning scheme made under the Local Government (Planning and Environment) Act 1990 that was in force immediately before 30 March 1998.96 The 1994 Planning Scheme is a former planning scheme and parts of it are a transitional planning scheme. [257] The 1994 Planning Scheme continued to have effect for the local government area for which it was made and was taken to be a planning scheme under the Integrated Planning Act 1997 until it was replaced.97 [258] All powers of local government derive from the State. The legislative mechanism by which the State conferred powers on local governments at the relevant time was the under the Local Government (Planning and Environment) Act 1990 and the Local Government Act 1993. [259] Under the Local Government (Planning and Environment) Act 1990, a local government was empowered to prepare a planning scheme for its area.98 That act did not define local government areas. At the time, local government areas were defined under the Local Government Act 1993 as that part of the State declared by regulation to be a local government area.99 As such, the power to define the boundaries of a local government area resides with the Governor in Council. [260] Under the Integrated Planning Act 1997, the jurisdictional reach of a local government’s power is geographically confined by reference to its local government area. As such, if the Premises does not fall within the Council’s local government area, there is nothing for the Council to regulate under the 1994 Planning Scheme. How was the Council’s local government area defined? [261] A central issue in this case is whether the Premises are within the Council’s local government area between August and December 1998. [262] At the relevant times, the boundaries of local government areas were defined in the Local Government (Areas) Regulation 1995 by reference to the area shown on the local government’s area map. Each area map is identified by a map number marked 95 Integrated Planning Act 1997 ss 6.1.1 and 6.1.3. 96 Integrated Planning Act 1997 s 6.1.1. 97 Integrated Planning Act 1997 s 6.1.1, 6.1.2, 6.1.3, and 6.1.4. 98 Local Government (Planning and Environment) 1990 s 2.10. See also Integrated Planning Act 1997 s 2.1.2 and definition of “local government area” in s 1.3.1 and sch 10. 99 Local Government Act 1993 s 16. -- 56 of 134 -- 57 on the map.100 The relevant area maps for each local government are declared in a schedule to the Local Government (Areas) Regulation 1995. [263] There are two relevant maps for the period between August and December 1998. Between 29 August 1997 and 3 September 1998, the Council’s local government area was defined by reference to map “LGB58 Edition 3”.101 From 4 September 1998 to 17 August 2000, the Council’s local government area was defined by reference to map “LGB58 Edition 4”.102 Are the premises located within the Council’s local government area as shown on area maps LGB58 Edition 3 and LGB58 Edition 4? [264] Area maps LGB58 Edition 3 and LGB58 Edition 4 both include a red line that encloses a particular area. It is uncontroversial that the Premises are located within the red line on each map. [265] The maps both also contain a notation that states: “THE LOCAL GOVERNMENT AREA COMPRISES THE MAINLAND AND ALL ISLANDS ABOVE THEIR RESPECTIVE SEA-SHORES WITHIN THE ENCOMPASSED AREA” (emphasis added) [266] In addition, at various locations on the maps, proximate to the red line, both maps contain notations in red italics such as “by the river” and “by a line West from the North Corner of lot 1 on RP139811”. There is a red, dotted arrow between the red italicised writing and various points of the red line. [267] Relevantly, the maps each identify that they are: “[p]roduced to delineate the boundaries of the Local Government Area under the provisions of the Local Government Act and the Administrative Boundaries Terminology Act”. [268] The Council’s primary contention is that the Premises is within its local government area because there is reference in the 1994 Planning Scheme to the Broadwater.103 It also submits that the location of the Premises within the red line is sufficient to establish that fact.104 100 Local Government (Areas) Regulation 1995 s 2. 101 Local Government (Areas) Regulation 1995 Reprint No. 1B. This reprint incorporates the amendments made by the Local Government (Areas) Amendment Regulation (No. 2) 1997 Subordinate Legislation 1997 No. 279, which commenced on 29 August 1997. 102 Local Government (Areas) Regulation 1995 Reprint No. 1C. This reprint incorporates the amendments made by the Local Government (Limited Reviewable Local Government Matters) Regulation 1998 Subordinate Legislation 1998 No. 248, which commenced on 4 September 1998. Map LGB58 edition 5 relaced Map LGB58 edition 4 on 18 August 2000: see Local Government (Areas) Regulation 1995 Reprint No. 3. This reprint incorporates the amendments made by Local Government Legislation Amendment Regulation (No. 2) 2000 Subordinate Legislation 2000 No. 212, which commenced on 18 August 2000. 103 Applicant’s Outline of Submissions dated 18 December 2023 p 27 [65] – [66]. 104 Applicant’s Response to the Respondent’s Written Submissions dated 5 February 2024. -- 57 of 134 -- 58 [269] I do not accept the Council’s submission for three reasons. [270] First, the Council’s primary contention does not proceed on a sound foundation. Although each of the Local Government (Planning and Environment) Act 1990 and the Integrated Planning Act 1997 permitted a local government to adopt a planning scheme to regulate development, they only permitted this to occur in relation to the local government’s local government area. As such, it is necessary to consider how the Council’s local government area is defined. This requires consideration of the Local Government Act 1993, the Local Government (Areas) Regulation 1995 and the relevant area maps, not the 1994 Planning Scheme. [271] Second, as is indicated on the maps, the area maps were produced to delineate the boundaries of the local government area under the provisions of the Local Government Act 1993 and the Administrative Boundaries Terminology Act 1985 (Qld). That legislation provides important context that assist in construing the maps. [272] Section 16 of the Local Government Act 1993 provides that a regulation may declare a part of the State to be a local government area. Relevantly, s 2 of the Local Government (Areas) Regulation 1995 provides that the boundaries of a local government area are “shown” on its area map. [273] What is “shown” on a map is not limited to the visual depiction of a line. The visual depiction of a line must itself be read in the context of the annotations. What a line “shows” cannot be understood in isolation from the text that explains what it shows. Further, and in any event, the word “show” is not limited to visual depictions. The Macquarie dictionary definition of the verb for example includes “to point out”, “to make clear; make known; explain” and “to indicate”.105 [274] Turning then to the Administrative Boundaries Terminology Act 1985. That legislation was in force from 20 September 1985 until it was repealed by the Survey and Mapping Infrastructure Act 2003 (Qld) on 1 August 2004.106 [275] Pursuant to s 140 of the Survey and Mapping Infrastructure Act 2003, a reference in an Act or document to the Administrative Boundaries Terminology Act 1985 is, if the context permits, taken to be a reference to the Survey and Mapping Infrastructure Act 2003. [276] The purpose of the Survey and Mapping Infrastructure Act 2003 includes, amongst other things, to provide for defining administrative areas, and describing and working out administrative area boundaries.107 [277] Under the Survey and Mapping Infrastructure Act 2003, “administrative area” is: “an area established for a purpose under an Act before or after the commencement of this Act.”108 105 Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au. 106 There is one reprint, but the reprint reflects differences in style due to the conversion of a software program. 107 Survey and Mapping Infrastructure Act 2003 s 3. This is similar to the purpose of the Administrative Boundaries Terminology Act 1985, as is apparent from that Act’s long title. 108 Survey and Mapping Infrastructure Act 2003 s 5 and sch. -- 58 of 134 -- 59 [278] Like s 4 of the Administrative Boundaries Terminology Act 1985, s 57 of the Survey and Mapping Infrastructure Act 2003 provides that an administrative area is to be defined by using any one or combination of identified methods, which relevantly include: (a) delineating the boundaries of the district on a plan by distinctive symbols, colouring, hachuring, or other appropriate means; and (b) describing the boundaries of the district by reference to one or more of the following: (i) lines described by length and bearing referenced to a stated datum; (ii) a natural or other suitable feature; (iii) the real property description of land adjoining the area; (iv) parish, county or locality boundaries; (v) boundaries shown on a plan of survey lodged under the Land Act 1994 or Land Title Act 1994; (vi) the coordinates, taken from the State digital cadastral dataset, of the corners and bends of the area; (vii) metes and bounds; and (viii) the area or boundary of another administrative area defined under this subsection. [279] Several of these methods are employed in the production of area maps LGB58 Edition 3 and LGB58 Edition 4. I describe some of them in paragraphs [264] to [266] above. [280] To construe area maps LGB58 Edition 3 and LGB58 Edition 4 with reference to both the delineation of the local area boundary and the notation is entirely consistent with the Local Government Act 1993, the Local Government (Areas) Regulation 1995 and the Administrative Boundaries Terminology Act 1985, under which the maps were prepared, and the Survey and Mapping Infrastructure Act 2003. [281] Third, the Council’s submission is contrary to orthodox principles of statutory construction. [282] Area maps LGB58 Edition 3 and LGB58 Edition 4 are statutory instruments.109 Therefore, they must be construed in accordance with the Statutory Instruments Act 1992 (Qld), applicable provisions of the Acts Interpretation Act 1954 (Qld)110 and common law principles of statutory construction.111 [283] Statutory instruments, like Acts, are to be read as a whole. Words may be read out of a provision or a statutory instrument if they can be given no sensible meaning, or if they would defeat the clear purpose of the provision. But legislation should not be re-written absent compelling circumstances. 109 Statutory Instruments Act 1992 (Qld) s 7. 110 Statutory Instruments Act 1992 ss 14 and 19 and sch 1 and 2. 111 Collector of Custons v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398. -- 59 of 134 -- 60 [284] As the High Court observed in Taylor v Owners - Strata Plan 11564 & Ors:112 “The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature.” [285] The construction contended for by the Council gives no meaning to the notation that the local government area comprises the mainland and all islands above their respective sea-shores within the encompassed area. [286] The word “comprises” in this context is clearly intended to be exhaustive; that is, to signify “consist of” rather than “includes”.113 An inclusive reading of the term would be superfluous. The area delineated by the red line is the “encompassed area”. It includes the mainland and islands. [287] The text of the notation is conveying words of limitation, namely that the local government area is limited to those lands above the seashores within the encompassed area. That is the reading that gives meaning to the words and, as such, it is the construction that is to be preferred.114 [288] It follows that to accurately identify the specific areas covered by area maps LGB58 Edition 3 and LGB58 Edition 4, it is necessary to begin with the meaning of “above their respective sea-shores”. [289] Pursuant to ss 4 and 37 of the Statutory Instruments Act 1992, unless the contrary intention appears, words in a statutory instrument have the same meanings as they have, from time to time, in the authorising law. [290] The authorising laws for area maps LGB58 Edition 3 and LGB58 Edition 4 are the Local Government Act 1993 and the Local Government (Areas) Regulation 1995. [291] They do not contain a definition of seashore, other than in s 935 of the Local Government Act 1993, which, for the purpose of that section, defines “seashore” as: “(a) foreshore; or (b) State land above high-water mark at ordinary spring tides that is ordinarily covered by sand or shingle. State land does not include land that is subject to a licence, permit or other authority granted under an Act by the State.” 112 [2014] HCA 9; (2014) 253 CLR 531, 548 [38] (footnotes omitted). 113 It is acknowledged that the word also has an inclusive usage, thought that is far less common. It is clearly not its intended meaning in context here. 114 The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414; Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, 382 [71]. -- 60 of 134 -- 61 [292] “Foreshore” is defined in the dictionary in sch 2 of the Local Government Act 1993 to mean “the land lying between high-water mark and low-water mark at ordinary spring tides.” [293] Although s 935 of the Local Government Act 1993 defines seashore for the purpose of that section alone, the definition accords with the ordinary meaning of the word, namely:115 “1. land along the sea or ocean. 2. Law the ground between the ordinary high-water mark and low- water marks.” [294] It is uncontroversial that the Premises are below the high-water mark. They are not “above the sea-shores”. [295] Here, the State, by regulation, chose to define the local government area by reference to area maps LGB58 Edition 3 and LGB58 Edition 4. The State adopted a combination of the methods permitted under the Administrative Boundaries Terminology Act 1985 and s 57 of the Survey and Mapping Infrastructure Act 2003 to define the Council’s local government area.116 They included the use of annotations describing natural features, including the notation limiting the local government area to “the mainland and all islands about their respective sea-shores”. [296] The Council has not satisfied me, to the requisite standard, that there is a sound basis to re-write the maps by deleting the text. To do so would not be to correct a grammatical or drafting error. It would fundamentally alter the meaning of the maps and, in doing so, confer additional jurisdiction on the Council. [297] For the reasons provided above, the Council has not persuaded me, to the requisite standard, that: (a) the Premises is in the local government area of the Council; and (b) the 1994 Planning Scheme applied to the Premises at the times that the local government area was defined by area maps LGB58 Edition 3 and LGB58 Edition 4. Did the 1994 Planning Scheme make a material change of use of the Premises assessable? [298] As I have found, the Council has not discharged its onus to demonstrate that the Premises is in the Council’s local government area and that the 1994 Planning Scheme applies. As such, it is unnecessary for me to address in detail whether the first alleged material change of use was made assessable development under the 1994 Planning Scheme. It is sufficient to make a few brief observations about the 1994 Planning Scheme and the Council’s case. 115 Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au. 116 And its predecessor, s 4 of the Administrative Boundaries Terminology Act 1985. -- 61 of 134 -- 62 [299] The Council’s case that the 1994 Planning Scheme required a development permit for the first alleged material change of use is premised on five matters,117 namely: (a) the Premises was not included in any zone for the 1994 Planning Scheme; (b) in Part 2, the 1994 Planning Scheme defined unzoned land as: “Any land not included in a zone under this Planning Scheme including any land which has been reclaimed and areas of accretion or natural deposition whether or not such land is an allotment or part of an allotment.” (c) the Premises was unzoned land for the 1994 Planning Scheme; (d) clause 14.2. of the 1994 Planning Scheme states: “14.2 SPECIAL PROVISIONS IN RESPECT OF UNZONED LAND The provisions of Clause 14.2.1 are special provisions in respect of unzoned land. 14.2.1 General Provisions Purpose: To ensure the orderly planning and development of the City. Provisions: 14.2.1 Development, other than park, public utilities and special uses approved by the Council, shall not be carried out on any unzoned land.” (e) the helicopter operations use did not fall within the meaning of the term “park”, “public utility” or “special use”. [300] Assuming for present purposes that the 1994 Planning Scheme applied, each of these matters has been established, other than the Council’s allegation that the Premises was unzoned land for the 1994 Planning Scheme. Even in if the Premises were within the 1994 Planning Scheme, the Council has not demonstrated that it was unzoned land. It has not persuaded me that the Premises is “land” for the reasons that follow. [301] The 1994 Planning Scheme did not define “land”, nor was there a definition of land in the Local Government (Planning and Environment) Act 1990, being the legislation under which the 1994 Planning Scheme was prepared. [302] The ordinary meaning of “land” is: “1. the solid substance of the earth’s surface. 2. the exposed part of the earth’s surface, as distinguished from the submerged part: to travel by land. 117 As set out in paragraph 13 of the Originating Application extracted at paragraph [159] above. -- 62 of 134 -- 63 3. ground, especially with reference to quality, character, or use: forest land. 4. Law an area of ground together with any trees, crops or permanently attached buildings and including the air above and the soil beneath.”118 [303] The 1994 Planning Scheme provides several contextual indicators that support that the reference to “land” in the definition of “unzoned land” did not extend to the tidal waters of the Broadwater. They include: (a) the introduction to the 1994 Planning Scheme, which states: “The definitions in Part 2 apply to the whole of this Planning Scheme including the Strategic Plan and wherever possible the terms used accord with the common usage” (b) the objectives for areas designated as Open Space in clause 1.3 of the Strategic Plan, which, in relation to the Broadwater, indicates that the Council did not control use of the Broadwater, as compared to Broadwater foreshore areas in that objective (d) states: “The Council will oppose the development of marinas or piers adjacent to foreshore parks and will seek to limit such development in other parts of the Broadwater. Additionally, the Council will not allow any further structures other than basic public amenities to be erected on the Broadwater foreshore areas.” (c) the reference to “any land that has been reclaimed and areas of accretion or natural deposition” in the definition of unzoned land, which words would be otiose should land be construed as including tidal waters; and (d) Development Control Plan – No. 14 The Spit, including The Spit Development Control Plan Area Map, which depicts the cadastral boundaries of Lot 5332 and Lot 524 and other tidal waters yet depicts the development control plan as applying only to areas that are not tidal waters.119 [304] Further, even if the Premises was unzoned land, the Council’s case cannot succeed120 because: (a) it concedes that, prior to the commencement of the 1994 Planning Scheme, the use of the premises for helicopter operations was not the subject of land use constraints under the 1982 Planning Scheme, the Local Government Act 1936 and the Local Government (Planning and Environment) Act 1990; and 118 Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au. 119 The Council submits that to construe its various planning schemes as not regulating the Broadwater would result in an unintended consequence. However, the Council’s submissions fail to mention the various other legislative regimes that have, over time, governed the use of the Broadwater such as the Harbours Act 1955 (Qld), the Gold Coast Waterways Authority Act 1979, the Transport Infrastructure Act 1994, and the Coastal Protection and Management Act 1995, to name but a few. 120 Subject to a determination that the commencement of a by-law titled “Chapter 36 – Take off and landing of aircraft other than at licensed aerodromes” terminated the lawful use rights. -- 63 of 134 -- 64 (b) clause 15.1.1 of the 1994 Planning Scheme states: “A lawful use made of premises, immediately prior to the day when the Planning Scheme or an amendment to the Planning Scheme commences to apply to the premises, shall continue to be a lawful use of premises for so long as the premises are so used, notwithstanding: (i) any provision of the Planning Scheme or amendment of the Planning Scheme to the contrary; or (ii) that the use is a prohibited development.” [305] For the reasons provided above, the Council has not discharged its onus with respect to this aspect of its case either. Was the use of the Premises a lawful use for s 4.3.5 of the Integrated Planning Act 1997? [306] The Council alleges that the use of the Premises was not a lawful use for the purpose of s 4.3.5 of the Integrated Planning Act 1997. [307] As I have already mentioned, the Council concedes that between 27 March 1982 and 10 February 1994: (a) the Premises was not included in any zone under the 1982 Planning Scheme; and (b) no land use constraints were imposed on the Premises by the 1982 Planning Scheme, the now repealed Local Government Act 1936 (Qld) and the Local Government (Planning and Environment) Act 1990 (Qld). [308] Despite that, the Council contends that the existing lawful use rights associated with the Premises ceased on 21 January 1989 on the basis that: (a) on 21 January 1989, the by-laws of the Council published in the Government Gazette on 4 November 1946, as amended from time to time, were further amended by inserting the by-law titled “Chapter 36 – Take off and landing of aircraft other than at licensed aerodromes” (“the Chapter 36 By-law”); (b) s 3(a) of the Chapter 36 By-law states: “3(a) No person shall, without the approval in writing of the Council previously obtained, use any land or building or other structure within the City other than a licenced aerodrome or authorised helipad for the landing or departure of any aircraft.” (Emphasis reflects that added by the Council) (c) the Hangar Pontoon was never declared by a resolution of the Council to be an authorised helipad for the purpose of By-law Chapter 36. -- 64 of 134 -- 65 [309] This issue calls for consideration of the following questions: 1. What are the relevant legal principles with respect to existing lawful use rights? 2. Was there a lawful use at the time that the 1994 Planning Scheme commenced that persisted in 1998? 3. Did the Chapter 36 By-law terminate the existing lawful use rights? What are the relevant legal principles with respect to existing lawful use rights? [310] There are nine principles about existing lawful uses that appear to be of importance in this case. [311] First, successive legislative regimes for planning in Queensland provide protection to existing lawful uses.121 Each of the successive legislative regimes afforded ongoing protection to uses that were existing lawful uses immediately before: (a) the commencement of a new planning scheme, or an amendment to a planning scheme; and (b) the commencement of new planning legislation. [312] The protection was provided to use of premises for the purpose for which the premises was used during the period immediately before the commencement of the relevant changes to the regulatory regime for planning. [313] Relevantly, in this case, if the use of the whole of the Premises for Aircraft Services was lawful on 10 February 1994, being the day before the 1994 Planning Scheme took effect, it follows that, unless there was a material change of use or the use was abandoned, it was an existing lawful use: (a) on 11 February 1994, when the 1994 Scheme commenced; (b) on 30 March 1998, when the Integrated Planning Act 1997 commenced; (c) on 18 August 2003, when the 2003 Planning Scheme commenced; (d) on 18 December 2009, when the Sustainable Planning Act 2009 commenced; (e) on 2 February 2016, when City Plan 2016 commenced; and (f) on 3 July 2017, when the Planning Act 2016 commenced. [314] Neither the purpose of the acquisition or lease of the premises nor the purpose for which the premises has been used before or since the relevant period is definitive, although both may be of evidentiary value in determining the purpose of the use during the particular period.122 [315] Second, the use must not merely be a contemplated or intended use. It is not sufficient that unused land is held for future business use. For example, there is not a “use” in 121 See Local Government Act 1936 s 33(1A); Local Government (Planning and Environment) Act 1990 s 3.1; Integrated Planning Act 1997 ss 1.4.1 and 1.4.6; Sustainable Planning Act 2009 ss 681 and 682; Planning Act 2016 ss 260 and 290. 122 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 285. -- 65 of 134 -- 66 the relevant sense when no business has yet been commenced or an existing business has not yet increased sufficiently to justify expansion onto an extended site.123 [316] Third, “use” is not limited to actual physical use or defined by the existence of infrastructure. There may be passive use as well as active use.124 Land kept as a buffer or to give room for the expansion of activities may, in certain cases, be regarded as part of land used for a particular purpose. Often this will be a question of fact and degree.125 If premises is properly regarded as a single planning unit, and if it is found that part of its area was physically used for the purpose in question, it follows that the premises was used for that purpose.126 The absence of activity on parts of a premises does not always equate to the absence of use of that part of the premises. It will not always be appropriate to classify that as reflecting nothing more than an intention to use those parts of the premises in the future. Much will depend on the extent of the integration of the relevant area with that area in actual physical use and the nature of the business being conducted. All the relevant facts need to be known and interrelated before a conclusion as to existing use (as distinct from intended use) in the relevant sense is drawn.127 [317] Fourth, when identifying the relevant planning unit, notions of title boundaries or lot boundaries will not necessarily be definitive. The identification of the relevant premises that constitutes the planning unit to which use for a purpose is to be assigned may disregard such artificial delineations.128 [318] Fifth, the particular use claimed will be relevant in determining whether apparently unused land is in fact being used.129 [319] Sixth, the nature of an existing lawful use is also not to be ascertained by an enquiry limited to the physical activities or infrastructure present on one day. A use need not be continuous in the sense of there being daily activity in all aspects of the use, or the same level of activity daily, provided that the use has not been abandoned or, after the commencement of the Integrated Planning Act 1997, materially increased in its scale or intensity.130 Most forms of use of land or buildings involve recurring activities, not continuous activity. What may appear at first sight to be only an infrequent and intermittent use immediately before the relevant day, may, once the purpose of the use is properly identified and understood, be seen to be a continuous 123 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 285; Rosenblum & Anor v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35. 124 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 274 and 286; Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, 21-2; Ipswich City Council v Vaughan (1986) 61 LGRA 34, 36; McNaught & Keating & Ors v Kingaroy Shire Council & Anor [1996] QPELR 215, 217-220. 125 Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, 21-2; Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 274; McNaught & Keating & Ors v Kingaroy Shire Council & Anor [1996] QPELR 215, 217-220. 126 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 281. 127 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 274. 128 Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, 23; Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 288. 129 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 287. 130 The introduction, in the Integrated Planning Act 1997, of the concept of material change of use constituted by a material change in the intensity or scale of the use displaces the principle in Norman v The Council of the Shire of Gosford & Anor [1975] HCA 15; (1975) 132 CLR 83 that the nature of a use is not altered by reason of an expansion of the use or an increase in its scale or intensity. -- 66 of 134 -- 67 use. Examples include use for the purpose of the seasonal storage of primary products, and the use of land for the purpose of a racecourse having a sporadic programme. A particular type of business may have inherently fluctuating levels of activity or demands for space and may only occasionally physically use the whole of its premises for the purposes of its business. Yet it cannot be doubted that in that state of facts, the whole premises is always used for the purpose of that business.131 [320] Seventh, the focus of the relevant enquiry is the purpose for which the premises is being used at the relevant time, not the identity of the owner or occupant of the premises or the nature of their occupations right.132 [321] Eighth, for an existing use to be lawful, it is not necessary that the use continue in precisely the same form or manner.133 In Shire of Perth v O’Keefe & Anor,134 Kitto J said:135 “First, it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of the gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that the use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities or through a precise cataloguing of individual items of goods dealt in but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree. … If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be averted to by a person speaking in a town-planning context.” [322] Ninth, prior to the commencement of the Integrated Planning Act 1997 on 30 March 1998, an expansion of the scale or intensity of the use was not necessarily an alteration to the nature of a use that would otherwise be afforded protection as an existing lawful use.136 From 30 March 1998, the protection afforded to existing lawful uses in Queensland does not extend to any material increase in the intensity or scale of the use. This is because of the introduction of the concept of a material increase in the 131 Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 277- 8; Rosenblum & Anor v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35, 45-6; Ipswich City Council v Vaughan (1986) 61 LGRA 34, 36. 132 Rosenblum & Anor v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35. 133 Gatton Shire Council v Toby Lane Pty Ltd [1997] QPELR 285, 290. 134 [1964] HCA 37; (1964) 110 CLR 529. 135 Shire of Perth v O’Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529, 535. 136 Norman v The Council of the Shire of Gosford & Anor [1975] HCA 15; (1975) 132 CLR 83. -- 67 of 134 -- 68 intensity or scale of the use of the premises as an element of a material change of use under the Integrated Planning Act 1997, and maintenance of that concept in successive planning legislation since that time. [323] A mere increase of the scale or intensity of the use does not, of itself, take a use outside of the protection afforded to existing lawful uses. The increase must be material. [324] The term “material” is not defined in the Integrated Planning Act 1997 nor its statutory successors. Its meaning must be ascertained by its ordinary meaning viewed within its statutory context. [325] In that respect, in Gerhardt v Brisbane City Council,137 I observed:138 “[25] It is the third limb of the definition for either Act that is of importance to this proceeding (i.e. whether there has been a material increase in the intensity or scale of the use of the premises). In this respect, the relevant comparison for determining whether there has been “a material increase in the intensity or scale of the use of the premises” is between the use of the subject land that involved the house that previously improved the subject land and the use that involves the house now proposed by the owner of the subject land. The comparison is not to the presently vacant state of the land, as the use of the land for residential purposes has not been abandoned: KT Corporation Pty Ltd v Queensland Government Department of Main Roads [2005] QPELR 28; [2004] QPEC 31. [26] Whether there has been a material increase in intensity or scale of the use is a question of fact and degree, the materiality of which will be informed by the planning legislation and relevant planning instruments: Maroochy Shire Council v Barnes [2001] QPELR 475, 482 [47]; [2001] QPEC 31; Maroochy Shire Council v Barnes [2001] QCA 273. [27] A measure of common sense is called for in determining whether a change is material: Gorrie v Mackay City Council [2003] QPELR 328, 329 [7]; [2002] QPEC 74. [28] The test does not require there to be significant impacts on local amenity or on other planning matters such as parking or traffic for the court to conclude that there has been a material increase in the intensity or scale of the use: Sunshine Coast Regional Council v Flanigan [2010] QPELR 97, 100 [25]; [2009] QPEC 68. The presence of impacts may, in some cases, be indicative that there has been a material increase in intensity or scale of the use: Sunshine Coast Regional Council v Flanigan [2010] QPELR 97, 100 [27]; [2009] QPEC 68.” 137 [2017] QPEC 49; [2017] QPELR 1067. 138 Gerhardt v Brisbane City Council [2017] QPEC 49; [2017] QPELR 1067, 1071-2 [25]-[28]. -- 68 of 134 -- 69 [326] In that case, I also observed that an increase in the scale of built form is a relevant consideration. That said, an increase in size, in a numerical sense, is not of itself determinative, nor will an increase in the built form always constitute a material increase in the intensity or scale of the use.139 [327] The materiality of something will depend on the context in which it is being examined. The question arises: material for what purposes? The planning regime is concerned, in this context, with achieving a balance that integrates the protection of ecological processes and natural systems, economic development, and the maintenance of the cultural, economic, physical, and social wellbeing of people and communities.140 In that context, the word material must mean material for planning purposes. [328] Ultimately, it is the use that is the focus of consideration, not simply the built form or infrastructure that is present on the premises. [329] With those principles in mind, I turn to the evidence in this case and: (a) the identification of the relevant planning unit and the purpose for which the Premises was used immediately prior to the commencement of the 1994 Planning Scheme; and (b) whether the Chapter 36 By-law terminated the existing lawful use rights. Was there a lawful use at the time that the 1994 Planning Scheme commenced that persisted in 1998? [330] A useful starting point for consideration of this issue is the Council’s concession to which I refer in paragraph [306] above. It bears repeating here. The Council concedes that between 27 March 1982 and 10 February 1994: (a) the Premises was not included in any zone under the 1982 Planning Scheme; and (b) no land use constraints were imposed on the Premises by the 1982 Planning Scheme, the now repealed Local Government Act 1936 (Qld) and the Local Government (Planning and Environment) Act 1990 (Qld). [331] On 11 February 1994, the 1994 Planning Scheme took effect. [332] At that time, s 3.1 of the Local Government (Planning and Environment) Act 1990 relevantly provided: “3.1 Existing lawful uses. (1) (a) A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are so used notwithstanding- 139 Gerhardt v Brisbane City Council [2017] QPEC 49; [2017] QPELR 1067, 1073 [40], [41] and [43]. 140 Integrated Planning Act 1997 ss 1.2.1 and 1.3.3; Sustainable Planning Act 2009 ss 3 and 8; Planning Act 2016 s 3. -- 69 of 134 -- 70 (i) any provision of the planning scheme or amendment of the planning scheme to the contrary (other than a provision to which paragraph (b) applies); or (ii) that the use is a prohibited use.”141 [333] This begs the question: immediately prior to 11 February 1994, what was the relevant use, and the planning unit or premises put to that use? [334] Having regard to my findings above, including those in paragraphs [212] to [245], I am comfortably persuaded that, immediately before the 1994 Planning Scheme commenced: (a) the relevant planning unit was the whole of the Premises; (b) there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to 1994. [335] As such, when the 1994 Planning Scheme commenced, the use of the Premises for Aircraft Services was afforded protection under s 3.1 of the Local Government (Planning and Environment) Act 1990. [336] There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between 11 February 1994 and 30 March 1998. [337] On 30 March 1998, the Local Government (Planning and Environment) Act 1990 was repealed and replaced by the Integrated Planning Act 1997. [338] From 30 March 1998, the protection that had previously been afforded under s 3.1 of the Local Government (Planning and Environment) Act 1990 was continued by operation of ss 1.4.1 and 1.4.6 of the Integrated Planning Act 1997 (which I have extracted at paragraph [168] above). [339] This begs the question: after 30 March 1998, was there a material change of the use of the Premises that is not in compliance with the Integrated Planning Act 1997 such that the use was not a lawful use by December 1998 for the purposes of s 4.3.5 of the Integrated Planning Act 1997. [340] The answer to that question is no. That is so for each of the following four reasons. [341] First, there is no allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between 30 March 1998 and August 1998. [342] Second, for reasons already provided, there was no commencement of a new use between August and December 1998 as alleged by the Council. [343] Third, there was no change in the scale or intensity of the use of the Premises between 1994 and December 1998, let alone a material one. From 1994 until December 1998: (a) the use of the Premises that existed prior to the commencement of the 1994 Planning Scheme continued without abandonment; 141 There was no material change to the terms of this provision over its life. -- 70 of 134 -- 71 (b) the relevant planning unit continued to be the whole of the Premises; (c) there was a continuation of the existing lawful use of the whole of the Premises for Aircraft Services, which use fluctuated in its scale and intensity from time to time but which had a generally consistent trend from 1988 to December 1998. [344] Fourth, even if the Council had established that there was a material change of use of the Premises, no development permit was required to make such a change lawful because, for reasons already provided,142 it was not made assessable development under the 1994 Planning Scheme. As such, even with a material change to the use, the use was in compliance with the Integrated Planning Act 1997. [345] I now turn to the Council’s allegation that the existing lawful use rights associated with the Premises ceased on 21 January 1989 because they were terminated by the Chapter 36 By-law. Did the Chapter 36 By-law terminate the existing lawful use rights? [346] The Council’s Outline of Submissions provided before the hearing did not explain the basis on which the Council asserts that the Chapter 36 By-law terminated the existing lawful use right under s 3.1 of the Local Government (Planning and Environment) Act 1990. However, the Council’s closing submissions addressed this issue. It is convenient to set out the Council’s submissions in full. The Council submits: “12. The respondents do not assert that they, or any other entity, secured appropriate Council authorisation or recognition of the Premises being an “Authorised Helipad” for the purpose of the Chapter 36 Take Off and Landing of Aircraft other than at Licenced Aerodromes by-law. The evidence confirms no record of any permits issued with respect to this by-law.143 13. This resulted in offences being carried out by any person seeking to operate a helicopter business from the Premises, those offences comprising:144 (a) breach of by-law 3(a), which proscribes the use of any land or building or other structure other than a licenced aerodrome or authorised helipad for the landing and departure of any aircraft;145 and (b) breach of by-law 5(c), which proscribes the operation of an aerodrome or helipad within the City without a current permit in force pursuant to Chapter 36 for the operation of that aerodrome or helipad.146 14. At this time in 1989, the Local Government Act 1936 did not recognise or utilise the concept of the lawful or unlawful use of 142 See paragraphs [247] to [305] above. 143 Third s.251 Certificate, CD #39, para 5. 144 Ibid, Exhibit p.36. 145 Noting that the offence is prescribed by s.3(b). 146 Ibid. -- 71 of 134 -- 72 land in the same manner as subsequent legislative regimes, nor did it set out any offences relating to such uses. One infers that this task was devolved to local authorities by means of by-laws such as Chapter 36. 15. When the Local Government (Planning and Environment) Act 1990 (the 1990 Act) came into force on 18 September 1990, it similarly did not set out specific offences relating to the unlawful use of land. However, the impact of new planning schemes on the otherwise lawful use of premises was confirmed in s.3.1 in the following way: “3.1 Existing lawful uses. (1) (a) A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are so used notwithstanding- (i) any provision of the planning scheme or amendment of the planning scheme to the contrary (other than a provision to which paragraph (b) applies); or (ii) that the use is a prohibited use.” 16. What comprised a “lawful use” of premises is not defined in the 1990 Act, such that it must be given its ordinary meaning. In that context, it follows that when the 1994 Planning Scheme came into effect, which did purport to regulate development of the Premises, given the failure to obtain the necessary approvals under the Chapter 36 bylaw for the use of any part of the Premises to take off and land helicopters, or to operate a helipad, s.3.1 of the 1990 Act was not engaged. 17. Similar language was contained within the 1994 Planning Scheme Part 15, which provided as follows:147 “15.1.1 A lawful use made of premises, immediately prior to the day when the Planning Scheme or an amendment to the Planning Scheme commences to apply to the premises, shall continue to be a lawful use of the premises for so long as the premises are used, notwithstanding: (i) any provision of the Planning Scheme or amendment of the Planning Scheme to the contrary; or (ii) that the use is a prohibited development.” 18. Like the 1990 Act, “lawful use” was not a term defined in Part 2 of the 1994 Planning Scheme, and must therefore be given its ordinary meaning, such that the unlawful ongoing use of any 147 CEO Certificate, CD #56, Exhibit p.1. -- 72 of 134 -- 73 part of the Premises for helicopter operations was not recognised by the scheme either. 19. In consequence, the use of part of the Premises for helicopter operations was inconsistent with the requirement of 1994 Scheme s.14.2.1.1, which provided that “Development, other than park, public utilities and special uses approved by the Council, shall not be carried out in any unzoned land”,148 and was therefore unlawful under the Scheme.149 20. Further, when the IPA came into effect on 30 March 1998, s.1.4.6 relevantly provided: “Lawful use of premises protected 1.4.6. If immediately before the commencement of this section the use of premises was a lawful use under the repealed Act and there has been no material change of the use since the commencement— (a) the use is taken to be a lawful use under this Act; and (b) neither a planning instrument nor an amendment of a planning instrument can— (i) stop the use from continuing; or (ii) further regulate the use; or (iii) require the use to be changed.” 21. Given the failure to obtain the necessary approvals under the Chapter 36 by-law, and the fact that s.3.1(1)(a) of the 1990 Act was not engaged to make the use of Premises lawful notwithstanding the regulation of the Premises by 1994 Planning Scheme, any use of premises for the taking off and landing of helicopters, or the conduct of a helipad or heliport from the premises, was not a ‘lawful use’ under the IPA either. 22. From this, it follows that, notwithstanding submissions from the respondents to the contrary, the failure to obtain approval pursuant to the 1989 Chapter 36 by-law had the effect of precluding recognition of any post-1994 existing lawful use rights that may otherwise have accrued with respect to the part of the Premises comprising the First Pontoon.” (original footnotes) [347] I do not accept the Council’s submissions for six reasons. 148 First s.55 CEO Certificate, Volume 1, CD #11, Exhibit p.57. 149 Noting that s 17.22.1 within the 1994 Scheme established the offence of doing anything contrary to the planning scheme: Ibid, p.89. -- 73 of 134 -- 74 [348] First, the Council’s submission that, at the time when the Chapter 36 By-law commenced in 1989, the Local Government Act 1936 did not afford protection to existing lawful uses is wrong.150 [349] The Local Government Act 1936-1990 is an Act that consolidates the effect of amendments up to Local Government Act Amendment Act 1990, No. 24. Section 33(1A) of the Local Government Act 1936-1990 states: “(1A) (a) Except as hereinafter provided, a lawful use made of land or of a building or other structure— (i) immediately before the date when a town planning scheme or an amendment of such a scheme becomes applicable to such land, building or other structure shall; or (ii) immediately before the date when a town planning scheme or an amendment of such a scheme became applicable to such land, building or other structure (where the scheme or amendment came into operation before the commencement of the Local Government Act Amendment Act 1977) always did, continue to be a lawful use of the land, building or other structure for so long as the land, building or other structure continues or continued to be so used notwithstanding any provision of the scheme or amended scheme to the contrary.” [350] On my review of the amending Acts, this wording was in effect from 21 April 1977, after s 33(1A) of the Local Government Act 1936-1976 was amended by the Local Government Act Amendment Act 1977 No. 23. Protection to existing lawful uses was also provided prior to the amendment.151 [351] In those circumstances, I am not prepared to infer, as invited by the Council, that the task of addressing lawfulness of uses was devolved to local authorities to be dealt with by means of by-laws such as Chapter 36. [352] Second, the Council’s submission that, at the time when the Chapter 36 By-law commenced in 1989, the Local Government Act 1936 did not provide for offences in relation to the failure to obtain necessary town planning permissions is wrong. [353] Section 33(20) of the Local Government Act 1936-1990 relevantly states: “(20) Offences. A person who in any respect contravenes or fails to comply with the provisions of a town planning scheme shall be guilty of an offence under this Act and liable to a penalty not exceeding $100 for each and every day on which the offence is continued.” [354] Apart from an amendment to the amount of the penalty, this wording is the same as that inserted on 21 December 1966 by the Local Government Acts Amendment Act 1966 No. 30. 150 See paragraph 14 of their submissions, extracted above. 151 See, for example, the Local Government Act Amendment Act 1975 No. 16 s 17. -- 74 of 134 -- 75 [355] As such, I am not prepared to infer the task of addressing lawfulness of uses was devolved to local authorities to be dealt with by means of by-laws such as Chapter 36 from the absence of offence provisions in the Local Government Act 1936. [356] Third, I do not accept the Council’s submission that, by reason of the absence of a definition of “lawful use” and offence provisions in the Local Government (Planning and Environment) Act 1990 that it follows that the failure to obtain the necessary approvals under the Chapter 36 By-law means that s 3.1 of the Local Government (Planning and Environment) Act 1990 is not engaged. [357] The submission ignores the relevant legislative context and evidence, namely: (a) s 33(1A) of the Local Government Act 1936-1990, which I have extracted at paragraph [349], and the timing of its commencement as noted in paragraph [350] above; (b) s 33(20) of the Local Government Act 1936-1990, which I have extracted at paragraph [353] above, and the timing of its commencement as noted in paragraph [354] above; (c) ss 33(21)(a) and (b) of the Local Government Act 1936-1990, which, apart for the reference to “the subdivision”, were inserted on 21 December 1966 by the Local Government Acts Amendment Act 1966 No. 30 and state: “(21) By-laws. (a) The power of the Local Authority to make by-laws shall include power to make all such by-laws as are necessary or convenient to implement the scheme and to provide for, regulate and control the administration and execution of the scheme. (b) Without in any way limiting the power to make by-laws pursuant to this subsection, the Local Authority may by by-laws made pursuant to this subsection regulate and control the subdivision and the use of land and the erection or use of buildings or other structures on land in the Area or part of the Area to be included within a town planning scheme pending the coming into force of the scheme.” (d) s 33(2C) of the Local Government Act 1936-1990, which was inserted on 1 July 1980 by the Local Government and Another Act Amendment Act 1980 No. 19, provides that a town planning scheme consists of, amongst other things, by laws made under s 33(21); (e) at the time of the adoption of the Chapter 36 By-law, there was a planning scheme in force, namely the 1982 Planning Scheme; -- 75 of 134 -- 76 (f) the 1982 Planning Scheme included by-laws made under s 33(21) of the Local Government Act 1936, which by-laws were titled “Chapter 28 Town Planning” (“the Chapter 28 By-law”) and: (i) in Part 2, required the Council to keep a record of all consent, permissions and approvals granted by the Council, all orders and decisions made by the Council, under the 1982 Planning Scheme;152 (ii) in Part 3, created offences for s 33(20) of the Local Government Act 1936; (g) on 23 November 1985, the 1982 Planning Scheme was amended to insert Part IIIA, which afforded protection to existing lawful uses;153 (h) the Certificate of the Chief Executive Officer given pursuant to s 55 of the Planning and Environment Court Act 2016 dated 9 November 2023: (i) provided a true copy of the 1982 Planning Scheme and each of the amendments to the 1982 Planning Scheme; and (ii) evidences that the 1982 Planning Scheme included the Chapter 28 By- law but did not include the Chapter 36 By-law; (i) although the Local Government (Planning and Environment) Act 1990 did not contain a definition of lawful use or offence provisions: (i) s 2.1 of the Local Government (Planning and Environment) Act 1990 provides that a planning scheme is to consist of, amongst other things, planning scheme provisions for the regulation, implementation and administration of the planning scheme; (ii) s 2.2 of the Local Government (Planning and Environment) Act 1990 provides that provisions for the regulation, implementation and administration of a planning scheme are to include, amongst other things, requirements for the use of premises and administrative requirements for matters relating to offences; (j) the Certificate of the Chief Executive Officer given pursuant to s 55 of the Planning and Environment Court Act 2016 dated 17 May 2023: (i) provides a true copy of extracts from the 1994 Planning Scheme; and (ii) evidences that the 1994 Planning Scheme created offences in relation to failure to comply with the 1994 Planning Scheme in s 17.22 of the 1994 Planning Scheme; (k) the Certificate of the Chief Executive Officer given pursuant to s 55 of the Planning and Environment Act 2016 dated 13 February 2024: (i) provided a true copy of further extracts from the 1994 Planning Scheme, and 152 Chapter 28 By-law Part 2 By-law (10). 153 See also Part VIII of the 1982 Planning Scheme. -- 76 of 134 -- 77 (ii) evidences that the 1994 Planning Scheme provided protection for existing lawful uses in part 15, and that protection included, under s 15.2.1 of the 1994 Planning Scheme, that: “An existing lawful use shall be subject to the relevant provisions of any Town Planning Scheme applicable at the time of its establishment together with any conditions attached to any approval, consent or permission granted in respect of such use.” [358] Fourth, it is true that the Statement of Facts, Matters and Contentions does not assert that an authorisation was obtained under the Chapter 36 By-law. Nor do Gold Coast Leisure Services Pty Ltd and Mr Menzies provide evidence of a permit under the Chapter 36 By-law. That is explained by: (a) the absence of any relevant allegation to that effect in the Council’s Originating Application – the allegation appears to have first surfaced in the Council’s Outline of Submissions dated 18 December 2023; and (b) Gold Coast Leisure Services Pty Ltd and Mr Menzies’ position that the Chapter 36 By-law did not affect the existing lawful use rights. [359] In those circumstances, I am not prepared to infer that there was no such authorisation from the fact that Gold Coast Leisure Services Pty Ltd and Mr Menzies do not assert that there was an authorisation and do not produce evidence of one. [360] Fifth, the Council relies on its allegations about the Chapter 36 By-law to negate asserted existing lawful use rights. As such, it has an evidential burden. It must show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. [361] The Council seeks to discharge the evidential burden by reference to a Certificate of the Chief Executive Officer provided under s 251 of the Local Government Act 1936, wherein the Chief Executive Officer states: “5. Council has no record of: a. the Premises being declared by Council by resolution to be an authorised helipad for the purpose of Chapter 36 of the By-laws; and b. any permit given pursuant to Chapter 36 of the By-laws for the operation of any helipad at the Premises.” [362] The Council has not persuaded me, to the requisite standard that, by itself, this is sufficient to put the existence of a permit or authorisation in issue such that Gold Coast Leisure Services Pty Ltd and Mr Menzies assume responsibility of proving its existence. That is because there is no indication that such records are maintained by the Council and, if so, the period for which they are maintained. The position with respect to permits given under the Chapter 36 By-law can be contrasted with permits and approvals provided under the planning laws. Under successive planning legislation, the Council has been obliged to maintain information about planning -- 77 of 134 -- 78 permits and approvals and, if requested, to provide such information in a town planning certificate or planning and development certificate.154 [363] Sixth, the Chapter 36 By-law does not render the existing use of the Premises not a “lawful” use of the Premises for the purposes of the Local Government Act 1936 nor the Local Government (Planning and Environment) Act 1990 for the reasons that follow. [364] To engage the protection of s 3.1 of the Local Government (Planning and Environment) Act 1990 the use of the Premises must be lawful. The Council asserts that the commencement of the Chapter 36 By-law on 21 January 1989 terminated any existing lawful use rights because non-compliance with the Chapter 36 By-law rendered the use not lawful. I have dealt with the Council’s submissions above. [365] Nevertheless, the question remains, what does lawful use mean in this context? Does “lawful” mean lawful under the general law or, more restrictively, lawful under planning law? [366] In its context, consistent with the conventional purposive approach to statutory construction, the term “lawful use” must mean lawful by reference to the planning regime. The contrary construction would lead to an absurd practical consequence in that demonstrating lawfulness would a burdensome and onerous task almost incapable of performance. That is so for two reasons. [367] First, recalling that the party asserting existing lawful use rights carries the onus with respect to it, that party would need to demonstrate compliance with all laws, including the common law, regulating the lawfulness of that use at each successive point in time in which a new planning instrument, and Act, commences. At any point in time there will be a myriad of statutory provisions, at State, Federal and local government level, and at common law, that operate to regulate the lawful use of land in a general sense.155 That task would create an evidential burden nigh on impossible for the party asserting existing use rights to discharge. [368] The second reason why this would have an absurd practical consequence is that existing lawful use rights attach to the land, not the person. Consequently, the above task is made even more difficult if there were successive owners or operators carrying out the use of the premises. For instance, where a use had been conducted for decades but by different operators, the current owner or operator could not hope to discharge that onus given it could not possibly depose to the conduct of the operations by the 154 See, for example, Local Government Act 1936-1990 s 33(9) and the Chapter 28 By-Law that formed part of the 1982 Planning Scheme; Local Government (Planning and Environment) Act 1990 s 3.3; Integrated Planning Act 1997 ss 5.7.1, 5.7.2, 5.7.3, 5.7.4, 5.7.5, 5.7.6, 5.7.7, 5.7.8, 5.7.9, 5.7.10, 5.7.11, 5.7.12, 5.7.13; Sustainable Planning Act 2009 ss 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742; Planning Act 2016 ss 264 and 265; Planning Regulation 2017 ss 70, 71, sch 22 and sch 23. 155 For example, including but not limited to, Environmental Protection Act 1994 (Qld), Biosecurity Act 2014 (Qld), Work Health and Safety Act 2011 (Qld), Child Employment Act 2006 (Qld), Anti- Discrimination Act 1991 (Qld), Chemical Usage (Agricultural and Veterinary) Control Act 1988 (Qld), Fair Trading Act 1989 (Qld), Food Act 2006 (Qld), Food Production (Safety) Act 2000 (Qld), Local Government Act 2009 (Qld), Invasion of Privacy Act 1971 (Qld), Plumbing and Drainage Act 2018 (Qld), Soil Conservation Act 1986 (Qld), The Disability Discrimination Act 1992 (Cth); Environment Protection and Biodiversity Conservation Act 1999 (Cth) and common law nuisance. -- 78 of 134 -- 79 previous owners or operators. This would render the purported statutory protections ineffectual. [369] By way of contrast, if the lawfulness is concerned with lawfulness of the planning regime, important information about that can be obtained by searching the records that local governments and other government entities are obliged to maintain pursuant to the successive legislative regimes for planning.156 [370] A similar issue arose for consideration in the New South Wales Land and Environment Court in Sydney City Council v Ke-Su Investments Pty Ltd & Ors (No. 2).157 Although the case related to a different statutory regime, it was one in which the planning legislation required an existing use of a building to be for a lawful purpose. [371] In that case, it was an agreed fact that the premises had previously been used for a brothel and that it had no equivalent to a development permit or consent. A change in law meant that a previous summary offence with respect to the use of premises for the purposes of prostitution had been repealed, however that use may still have constituted a common law misdemeanor. In considering various authorities, including those which themselves considered various High Court and New South Wales decisions,158 McClelland CJ, in an apparent application of the mischief rule of statutory construction, held:159 “It is no part of the task allocated to this Court by the legislature, in considering whether an existing use is “lawful” for the purposes of the Environmental Planning and Assessment Act, to inquire or determine whether such use infringes any of those other Acts or, for example, the common law governing nuisance. If an attempt were made to incorporate into the oversight of planning law exercised by the court the regulatory effects of all other laws affecting land use its work would be in danger of being impossible of performance.” [372] Although this is not authority for the contention that the term “lawful use” must mean lawful by reference to the planning regime, the principles set out are apt to be applied here. Such a conclusion is consonant with the fact that this Court’s jurisdiction does not ordinarily extend to determination of the multiple legal issues that might otherwise fall within an assessment of lawfulness at general law. [373] The question then arises as to whether the Chapter 36 By-law formed, in effect, part of the planning regime or part of the general administrative powers and functions of the local government. 156 See, for example, Local Government Act 1936-1990 s 33(9) and the Chapter 28 By-Law that formed part of the 1982 Planning Scheme; Local Government (Planning and Environment) Act 1990 s 3.3; Integrated Planning Act 1997 ss 5.7.1, 5.7.2, 5.7.3, 5.7.4, 5.7.5, 5.7.6, 5.7.7, 5.7.8, 5.7.9, 5.7.10, 5.7.11, 5.7.12, 5.7.13; Sustainable Planning Act 2009 ss 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742; Planning Act 2016 ss 264 and 265; Planning Regulation 2017 ss 70, 71, sch 22 and sch 23. 157 (1983) 51 LGRA 186. 158 Sydney City Council v Ke-Su Investments Pty Ltd & Ors (No. 2) (1983) 51 LGRA 186, 203-4. 159 Sydney City Council v Ke-Su Investments Pty Ltd & Ors (No. 2) (1983) 51 LGRA 186, 204-5. -- 79 of 134 -- 80 [374] That question is easily resolved with respect to the legislative regimes after the commencement of the Integrated Planning Act 1997 and the Local Government Act 1993, which separated the administrative functions of the local government from the planning regime. [375] The task is more difficult when dealing with the regime before the commencement of the Local Government Act 1993, where the planning regime and the making of by- laws were regulated under the same Act. Here, the relevant regimes are the Local Government Act 1936, under which the Chapter 36 By-law was made, and then the Local Government (Planning and Environment) Act 1990. Although more complicated under the combined form of the statutory regime, the answer is the same. [376] The Council’s functions and powers with respect to the good rule and government of its local government area and town planning matters are both found in Part XI of the Local Government Act 1936. However, their form and function are quite distinct. [377] Section 30 of the Local Government Act 1936 charges the Council with the exercise and performance of functions of local government. In doing do, it relevantly provides that: “The Local Authority shall have delegated to it the functions of local government. The Local Authority shall be charged with the good rule and government of the whole or any part of the Area and shall have the control of the working and business of such good rule and government. The Local Authority shall have full power to make by-laws for promoting and maintaining the peace, comfort, culture, education, health, morals, welfare, safety, convenience, food supply, housing, trade, commerce, and manufactures of the Area and its inhabitants, and for the planning, development, and embellishment of the Area, and for general good rule and government of the Area and its inhabitants, and for the direction, administration, and control of the working and business of the government of the Area, and shall cause all such bylaws to be duly carried into effect”. [378] Section 31 of the Local Government Act 1936 provides the general powers as to by- laws. Section 32 provides for miscellaneous general powers and duties. Section 33 provides specific powers and duties with respect to town planning. [379] As I have noted in paragraph [357](c) above, s 33(21)(a) and (b) of the Local Government Act 1936 specifically provides the Council with the power to make by- laws: (a) as are necessary or convenient to implement the scheme and to provide for, regulate and control the administration and execution of the scheme; and (b) pending the coming into force of a planning scheme, to regulate and control the use of land where the land is in an area or part of an area that is to be included within a town planning scheme. [380] Of note, contextually that provision is in the same part of the Local Government Act 1936 as s 33(1A)(a), which provides protection to existing lawful use rights despite -- 80 of 134 -- 81 the commencement of a town planning scheme, or an amendment to a town planning scheme, that becomes applicable to such land, building or other structure. [381] If the Chapter 36 By-law was made for the purposes of s 33(21)(a) of the Local Government Act 1936, it could fairly be said that it goes to the lawful use of land, building or other structure as part of the planning regime. If not, it would form part of the general law. Properly construed, the Chapter 36 By-law forms part of the latter, for three reasons. [382] First, on its face, the Chapter 36 By-law was not made pursuant to s 33(21)(a) of the Local Government Act 1936. Rather it was made under ss 31 and 32 of the Local Government Act 1936, in that it states that it is a by-law: “… for the general good rule and government of the area and its inhabitants, and which the council hereby determines are necessary for the proper exercise and performance of the functions of local government and the powers and duties of the council.” [383] By way of contrast, with respect to the Chapter 28 By-law, the Queensland Government Gazette records: “WHEREAS by the Local Government Act 1936-1981 a Local Authority is empowered to make By-laws for all or any of the purposes in the said Act mentioned, and whereas by section 33 of the said Act mentioned a Local Authority is empowered to make such By-laws as are necessary or convenient to implement a Town-Planning Scheme and to provide for, regulate and control the administration and execution of a Town-Planning Scheme, and it is further provided that a By-law may be amended or repealed at any time by the Local Authority: It is hereby resolved by the Council of the City of Gold Coast, with the approval of the Deputy Governor, for and on behalf of His Excellency the Governor in Council, that the following By-laws for the general good rule and government of the Area and its inhabitants, and which the Council hereby determines are necessary for the proper exercise and performance of the functions of Local Government and the powers and duties of the Council and to implement and provide for, regulate and control the administration and execution of any Town-Planning Scheme in force in the area shall be in force from the date of publication hereof in the Gazette.” [384] Second, the Chapter 36 By-law does not purport to implement the 1982 Scheme, nor could it be said that it provides for, regulates, or controls the administration and execution of the 1982 Scheme. [385] Third, the legislative context and evidence referred to in paragraphs [357](d) to [357](h) above demonstrate that the Chapter 36 By-law is not part of the planning regime. [386] The Chapter 36 By-law provides an additional layer of regulatory control under a separate system for the take-off and landing of aircraft other than at licensed aerodromes.160 That is, a development can have been fully approved under the 1982 160 That is, assuming it applies. The Council did not establish that the Premises is land within the City. -- 81 of 134 -- 82 Planning Scheme but not be able to be put into effect until a permit was obtained. An analogy can be drawn with by-laws requiring a food safety licence before a café can open. The absence of such a licence has no impact on the lawfulness of the use of the premises as a café from a planning perspective. So too with this by-law. [387] For the reasons provided above, I am satisfied that the Chapter 36 By-law does not terminate the existing lawful use rights. Conclusion about whether the use of the Premises was a lawful use for s 4.3.5 of Integrated Planning Act 1997? [388] For the reasons provided above, I am comfortably satisfied that the use of the Premises was a lawful use for s 4.3.5 of Integrated Planning Act 1997. Conclusion regarding the Council’s allegations about the first alleged material change of use [389] Overall in relation to the first key issue, the Council has not satisfied me, to the requisite standard, that Gold Coast Leisure Services Pty Ltd: (a) started assessable development without a development permit and, as such, breached s 4.3.1 of the Integrated Planning Act 1997; or (b) used the Premises in circumstances where the use was not a lawful use and, as such, breached s 4.3.5 of the Integrated Planning Act 1997.161 Key issue 2: Was there an unlawful material change in the intensity or scale of the use of the premises between January 2010 and November 2011? [390] In its Originating Application, the Council alleges that Gold Coast Leisure Services Pty Ltd unlawfully intensified helicopter operations on the Premises between January 2010 and November 2011. The foundation for its allegation is set out at paragraphs 15, 16, 17 and 18 of the Originating Application, which state: “15. Between January 2010 and November 2011, the First Respondent: (a) constructed the large hanger building on [Lot 5332], and commenced using that building to hangar helicopters; (b) constructed the additional helipads in [Lot 534], and commenced using them for the arrival and departure of helicopters; and (c) operated four (4) helicopters from the Premises. 16. The matters set out in the previous paragraph, in conjunction with the change in operations facilitated by those changes, resulted in a material change in the intensity or scale of the use of the Premises, and thereby comprised a material change of use, as that term is defined in the Sustainable Planning Act 2009 (SPA) (Second Helicopter MCU). 161 In forming my conclusions on this issue, I am mindful that the onus was on Gold Coast Leisure Services Pty Ltd and Mr Menzies to establish existing lawful use rights. -- 82 of 134 -- 83 17. When the First Respondent commenced the Second Helicopter MCU: (a) the SPA was in effect; (b) there was no development permit in effect authorising the Second Helicopter MCU; (c) the Applicant’s Gold Coast Planning Scheme 2003 (2003 Scheme) was in effect; and (d) under the 2003 Scheme: (i) the Second Helicopter MCU comprised a ‘helipad’, as that term was defined in Part 4, Division 1, Chapter 1; (ii) the Premises was ‘Land Shown Uncoloured’, because it was not included in a domain or a local area plan; (iii) because of Part 5, Division 1, Chapter 2, section 8.0, the Premises’ development status was taken to be consistent with land in the Community Purposes Domain; and (iii) the Second Helicopter MCU was prescribed as assessable development – impact assessable as a consequence of Part 5, Division 1, Chapter 2, section 4.6.1, because ‘helipad’ was not listed in section A of Part 5, Division 2, Chapter 14 Community Purposes Table of Development; (e) the use was not carried out pursuant to section 342(3) of the SPA; and (f) the use did not fall within any of the exceptions set out in Chapter 7, Part 3, Division 1, Subdivision 2 of the SPA. 18. In the premises of the matters set out in the previous paragraph, the commencement of the Second Helicopter MCU: (a) was contrary to section 578 of the SPA, in that the First Respondent carried out assessable development without an effective development permit for the development; further, or in the alternative, (b) was contrary to section 582(a) of the SPA, in that the First Respondent used premises in circumstances where the use was not a lawful use, and none of the matters set out in section 582(b) were applicable.” [391] The Council did not particularise the change in operations that it alleges were facilitated by the construction of the hanger building on Lot 5332, the commencement of use of that building to hangar helicopters, the construction of helipads on Lot 534 -- 83 of 134 -- 84 and the commencement of use of the helipads on Lot 534 for the arrival and departure of helicopters, and the operation of four helicopters from the Premises. [392] The Council’s case about the material change in the intensity or scale of the use of the Premises is largely circumstantial. The allegations made and evidence filed by the Council focus on an increase in built form and the number of helicopters owned by Gold Coast Leisure Services Pty Ltd to establish a change in operations that materially increased the scale and intensity of the use. The Council did not adduce any evidence directed to observations about arrival and departure of helicopters between January 2010 and November 2011, or at any time prior to that period. What is the relevant legislative context under the Sustainable Planning Act 2009? [393] The Council’s allegations raise issues about the regulation of uses under ss 578 and 582 of the Sustainable Planning Act 2009, which state: “578 Carrying out assessable development without permit (1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty—1 665 penalty units. (2) Subsection (1)— (a) applies subject to subdivision 2; and (b) does not apply to development carried out under section 342(3). (3) Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place. 582 Offences about the use of premises Subject to subdivision 2, a person must not use premises— (a) if the use is not a lawful use; or (b) unless the use is in accordance with— (i) for premises that have not been designated—a planning scheme or temporary local planning instrument that regulates the use of the premises; or Note— See sections 80 (Status of planning scheme) and 102 (Status of temporary local planning instrument) (ii) for premises that have been designated—any requirements about the use of land that are part of the designation. -- 84 of 134 -- 85 Note— See section 202 (What designations may include). Maximum penalty—1 665 penalty units.”162 [394] Subdivision 2 of the Sustainable Planning Act 2009 relates to development or use carried out in an emergency or under an exemption. Section 342 relates to the situation where development has been started but not completed before a development approval lapses. Neither subdivision 2 nor s 342 have relevance in this case. [395] When considering these offence provisions, it is relevant to note that under the Sustainable Planning Act 2009:163 (a) “premises” is defined as a building or other structure or land, whether or not a building is situated on the land;164 and (b) “land” is defined to include: “(a) any estate in, on, over or under land; and (b) the airspace above the surface of land and any estate in the airspace; and (c) the subsoil of land and any estate in the subsoil.”165 [396] Under the Sustainable Planning Act 2009, there are five categories of “development”, namely exempt development, self-assessable development, development requiring compliance assessment, assessable development and prohibited development.166 All development is exempt development unless it is self-assessable development, development requiring compliance assessment, assessable development or prohibited development.167 [397] A development permit is necessary for assessable development but is not necessary for exempt development, self-assessable development, or development requiring compliance assessment.168 An application for a development permit or a request for compliance assessment cannot be made for development that is categorised as prohibited development.169 [398] The Council contends that the second alleged material change of use of the Premises constitutes “assessable development” for the purposes of the Sustainable Planning Act 2009. It says it was made assessable development under the 2003 Planning Scheme. 162 Sustainable Planning Act 2009 Reprints 1A through to 1K, being the reprints in force at the time of the alleged second material change of use. 163 Sustainable Planning Act 2009 Reprints 1A through to 1K, being the reprints in force at the time of the alleged second material change of use. 164 Sustainable Planning Act 2009 s 6 and sch 3 (Reprints 1A through to 1K). 165 Sustainable Planning Act 2009 s 6 and sch 3 (Reprints 1A through to 1K). 166 Sustainable Planning Act 2009 s 231 (Reprints 1A through to 1K). 167 Sustainable Planning Act 2009 s 231 (Reprints 1A through to 1K). 168 Sustainable Planning Act 2009 ss 235, 236, 237 and 238 (Reprints 1A through to 1K). 169 Sustainable Planning Act 2009 s 239 (Reprints 1A through to 1K). -- 85 of 134 -- 86 [399] Relevantly for this case: (a) “development” is defined to include the making of a material change of use of premises;170 and (b) “material change of use” is defined to mean: (i) the start of a new use of the premises; or (ii) the re-establishment on the premises of a use that has been abandoned; or (iii) a material increase in the intensity or scale of the use of the premises;171 and (c) “use”, in relation to premises, is defined to include any use incidental to and necessarily associated with the use of the premises.172 [400] In considering the ambit of the offences, it is also relevant that: (a) with respect to “lawful use”, s 9 of the Sustainable Planning Act 2009 states: “A use of premises is a lawful use of the premises if— (a) the use is a natural and ordinary consequence of making a material change of use of the premises; and (b) the making of the material change of use was in compliance with this Act.”173 (b) ss 681 and 682 of the Sustainable Planning Act 2009 protect existing lawful use rights and state: “681 Lawful uses of premises on commencement (1) To the extent an existing use of premises was lawful immediately before the commencement of this Act, the use is taken to be a lawful use under this Act on the commencement. (2) To remove any doubt, it is declared that subsection (1) does not, and has never, affected or otherwise limited a requirement under another Act to obtain an approval for the existing use. Example of an approval— an environmental authority under the Environmental Protection Act 170 Sustainable Planning Act 2009 s 7 (Reprints 1A through to 1K). 171 Sustainable Planning Act 2009 s 10 (Reprints 1A through to 1K). 172 Sustainable Planning Act 2009 s 6 and sch 3 (Reprints 1A through to 1K). 173 Sustainable Planning Act 2009 s 9 (Reprints 1A through to 1K). -- 86 of 134 -- 87 682 Lawful uses of premises protected (1) Subsection (2) applies if— (a) immediately before the commencement of a planning instrument or an amendment of a planning instrument, the use of premises was a lawful use of the premises; or (b) immediately before an existing planning instrument starts applying to land, the use of premises was a lawful use of the premises. (2) Neither the instrument nor the amendment can— (a) stop the use from continuing; or (b) further regulate the use; or (c) require the use to be changed.”174 What are the issues in dispute with respect to the second alleged material change of use? [401] Here, the Council’s case is that the second alleged material change of use was the material increase in the intensity or scale of the helicopter operation use of the Premises. The Council contends that the material change of the use was not lawful as it was assessable development requiring a development permit and no development permit was obtained. [402] Gold Coast Leisure Services Pty Ltd concedes that it did not obtain a development permit under the Sustainable Planning Act 2009. Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute the balance of the Council’s allegations on the basis that: (a) the evidence does not establish that there was a material increase in the intensity or scale of the use of the Premises between January 2010 and November 2011; and, in any event (b) between January 2010 and November 2011, the Premises was not in the Council’s local government area and, as such: (i) was not within the Council’s planning scheme area; and (ii) was not regulated by the 2003 Planning Scheme. [403] There are three questions to be answered to resolve the issues in dispute, namely: 1. Was there a material increase in the intensity or scale of the use of the Premises between January 2010 and November 2011? 2. Was the second alleged material change of use made assessable development under the 2003 Planning Scheme? 3. Was the use of the Premises a lawful use for s 582 of the Sustainable Planning Act 2009? 174 Sustainable Planning Act 2009 ss 681 and 682 (Reprints 1A through to 1K). -- 87 of 134 -- 88 Was there a material increase in the intensity or scale of the use of the Premises between January 2010 and November 2011? [404] The relevant allegations made by the Council are those in paragraphs 15 and 16 of the Originating Application, which are set out in paragraph [390] above. [405] The Council’s submissions on this issue were slightly different. The Council submits that between January 2010 and November 2011, by reason of: (a) the establishment of a hangar with an area of 272 square metres; (b) the establishment of a second pontoon with an area of 312 square metres on Lot 534; and (c) the increase in the number of helipads from one helipad on the Hangar Pontoon to three, including an additional two helipads located on the Helipad Pontoon, Gold Coast Leisure Services Pty Ltd materially increased: (d) the scale of the use of the Premises; and (e) the intensity of the use of the Premises, having regard to the increased number of helicopters capable of operating from the Premises, and either or both of being stored and maintained under cover. [406] The submissions made no reference to the operation of four helicopters from the Premises. [407] For the reasons that follow, the evidence adduced by the Council does not satisfy me, to the requisite standard, that there was a material change of use of the type: (a) alleged in paragraphs 15 and 16 of the Originating Application; or otherwise (b) asserted in the Council’s submissions. [408] The aerial photography evidence adduced by the Council demonstrates that between 30 April 2009 and 12 August 2011: (a) a hangar was constructed on the Hangar Pontoon; and (b) a second pontoon, being the Helipad Pontoon containing markings for two helipads was moored in the marina berth on Lot 534. [409] The evidence of Ms Hansen demonstrates that the hangar has an area of approximately 272 square metre and the Helipad Pontoon has an area of approximately 312 square metres. [410] The Council did not direct my attention to any evidence adduced by it that supports its allegation in paragraph 15(c) of the Originating Application, namely that between January 2010 and November 2011 Gold Coast Leisure Services Pty Ltd operated four helicopters from the Premises. The Council’s submissions were silent on that allegation. [411] With respect to the allegation that there was a change in operation facilitated by those changes, the Council relies on the evidence of Mr Humphreys, a qualified helicopter pilot and aviation manager retained by the Council. Before turning to those parts of -- 88 of 134 -- 89 the evidence of Mr Humphreys that the Council invites me to accept, it is important to note that the Council’s proceeding is founded on an allegation that an offence has been committed, not an allegation that an offence will be committed unless an enforcement order is made. [412] In his affidavit, Mr Humphreys does not give any evidence of any changes to the operation observed by him. Rather, he expresses opinions about the limitations to a helicopter operation presented by the built form on the Premises as shown in an aerial image in 1988. He also expresses opinions about the operational capacity presented by the introduction of the hangar and the Helipad Pontoon. [413] The evidence of Mr Humphreys on which the Council relies is as follows: “7. Paragraph 48 of the Affidavit of Scott Jonathan Menzies (Menzies Affidavit) shows an aerial image of the original Marina Aircraft Pad in 1988. The image shows a basic pontoon ramp construction that does not include any buildings or improvements. There also appears to be no designated helipad markings in this image. 8. The types of helicopter operations that could be carried out from this site would be quite limited, and limited to take off and landings, and parking for short periods of time. Constraints to the use of this type of pontoon for tourism aviation purposes would include: (a) the absence of a dedicated (and covered) area for passengers to wait before they embark or disembark the aircraft. This would be more important for very hot sunny days or during inclement weather, when passengers sometimes would need to wait for long periods of time; (b) the fact that only one or two aircraft could use the pontoon at any given time; (c) the absence of any fencing means that passenger control would be difficult, which is important for helicopter tourism operations. This is important, because many passengers are not familiar with helicopters (and which parts to avoid such as the tail rotor or engine exhaust), and so the use of fences and gates can ensure that passengers can be more efficiently and safely controlled; (d) the fact that refuelling cannot be carried out on the pontoon, and the addition of a refuelling capability would result in a greater capacity to take tourists on flights because there would not need to be breaks while aircraft fly to another location to take fuel; and (e) it would be unsuitable for parking aircraft overnight, due to a lack of security for the aircraft from members of the public. -- 89 of 134 -- 90 9. Paragraph 14 of the Menzies Affidavit discusses the addition of a fully enclosed hangar on the Premises. The inclusion of a hangar increases the scope and flexibility for helicopter operations to be carried out from the Premises. In particular: (a) the hangar permits storage of aircraft for longer periods of time; (b) the hangar permits greater numbers of helicopters to be operated from the Premises, because helicopters not in use can be stored in the hanger (and not take up space in the take off and landing areas); (c) parts, fittings and equipment (such as additional seats) can be stored in the hangar, and aircraft can be reconfigured at the Premises. For example, seats and side doors may be removed from a helicopter for a photography task, and then re-fitted at the end of that task for use for tourism operations; (d) the hangar would allow for all weather access to aircraft for minor maintenance and reconfigurations, and the storage of some associated items required for these purposes; (e) an office facility and bathroom can be established in the hangar which is of real convenience to aircrew, passengers and maintenance personnel. Further, the co- location of an office in the hanger near the aircraft and the take off and landing area allows greater flexibility to be able to respond to increased customer demands with aircraft co-located to point of sales. 10. Paragraph 15 of the Menzies Affidavit discusses the addition of the floating helipads. I understand that these are relocatable structures and can be moved on the water to other areas for operations at special events. 11. In my view, the addition of these extra landing options at the Premises would increase the scope of operations that can be carried out from the site, because: (a) more aircraft could operate simultaneously at the Premises from the different helipads; (b) the additional landing positions would permit flexibility of operating different aircraft at different times, because there would be no need for ground repositioning. For example, if an operator was operating three aircraft from the original pontoon, then one of them would need to be stored in the hangar, and any change in aircraft operations would require one aircraft to be moved to the hangar and another moved out, which takes time and effort. With a greater number of helipads, different helicopters can be parked at each of them, and utilised as -- 90 of 134 -- 91 and when they are needed without the ground movement of aircraft; and (c) a further advantage of these additional landing areas arises when refuelling takes place. The Premises configuration including the floating additional landing areas would permit the part of the pontoon closer to the hangar to be dedicated to refuelling, while the outer pads are kept free for normal operations.” [414] If I assume for the moment that the Council has satisfied me of its allegations in paragraph 15 of the Originating Application, those matters taken in conjunction with the evidence of Mr Humphreys does not persuade me, to the requisite standard, that between January 2010 and November 2011 there was an increase in the intensity or the scale of the use. That is so for each of the following seven reasons. [415] First, Mr Humphreys’ evidence does not demonstrate actual activities carried out on the Premises. Rather, Mr Humphreys expresses opinions about how certain physical changes to the helipad infrastructure or built form at the Premises over the years has permitted (as opposed to has resulted in) changes to the operational aspect of the use. He also considers how the increase in the size of the aircraft fleet may lead (as opposed to has led) to increased helicopter activity at the Premises. Given the Council’s allegation is that an offence has been committed, not that it will be committed, Mr Humphreys’ evidence in this respect is of limited assistance. [416] Second, Mr Humphreys’ opinions about the potential for increased scope of operations are founded on a comparison between: (a) the scope of operations that he opines could be undertaken from a basic pontoon ramp construction with no buildings or improvements, including no refuelling facility and no designated helipad markings, as depicted in an aerial image from 1988; and (b) the scope of operations that he opines could be undertaken with the addition of the hangar to the Hangar Pontoon and the addition of the Helipad pontoon. [417] The comparison is of limited assistance. The Council’s allegation is that the material increase in intensity or scale occurred between January 2010 and November 2011. As such, the relevant comparison that is called for is one based on the scope of the operations undertaken up to January 2010. [418] Third, Mr Humphreys’ assumptions are not supported by proven facts. Contrary to the assumptions made by Mr Humphreys, the evidence175 satisfies me that, prior to January 2010 the use of the Premises included: (a) a dedicated, and covered, area for passengers to wait before they embark or disembark the aircraft, namely: (i) between 1992 and 1994, the first terminal building on the Hangar Pontoon; and 175 This includes the evidence of Mr Menzies, the evidence of other witnesses whose evidence was adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, the myriad of photographs and aerial photographs and reasonable inferences available from the facts proved by the direct evidence. -- 91 of 134 -- 92 (ii) from January 1994, the one-storey terminal in the marina berth on Lot 524; (b) arrival and departure by multiple aircraft, sometimes with more than one at any one time, including: (i) initially, by a combination of seaplanes and helicopters as the seaplanes used the position at the end of the Hangar Pontoon while helicopters used the surface of the Hangar Pontoon; and later, (ii) before 1994 and in the period from 1994 to the time that the Helipad Pontoon was floated into place in Lot 534, use by multiple helicopters facilitated by multiple floating pontoons and, at times, the MV Helitours boat. Those additional pontoons and boat were secured at the western end of the Hangar Pontoon in an area that later became Lot 534 and in the berth in Lot 524 that forms part of the Premises; (c) a refuelling facility supplying diesel from 1988 and Avgas from 1992; (d) the use of the Hangar Pontoon to store aircraft, including: (i) initially, the storage of seaplanes; and later (ii) before the construction of the hangar, storage of one helicopter under the awning on the donga on the Hangar Pontoon and, for many months at a time over many years, the storage of additional helicopters in a position exposed to the elements on that part of the pad of the Hangar Pontoon that later was covered by the hangar; (e) the use of the first terminal building and the donga, which are still in place but are now under the sail that forms part of the hanger, for storing parts, fittings and equipment, such as additional seats; and (f) office and other ancillary facilities for use by aircrew and passengers. [419] Fourth, during cross-examination Mr Humphreys conceded that the constraints to the use that he identified in paragraph 8 of his report (extracted at paragraph [413] above) were not, in fact, impediments having regard to the fact that: (a) the terminal building constructed on the pad in 1991 addressed those concerns; and (b) the activities, such as refuelling and the storage of helicopters on the pad were, or could be, carried out on the pad regardless. [420] With respect to the latter, Mr Humphreys was not able to suggest to the contrary – he just did not know. [421] Fifth, with respect to the construction of the hangar on the pad, Mr Humphreys’ evidence as to an increase in scope and flexibility for helicopter operations from the pad is based on observations about the built form and assumptions about what the built form might permit. Quite properly, Mr Humphreys does not say they resulted in more helicopter flights. Further, Mr Humphreys accepted that his assumptions were not premised on any knowledge about the nature of the operations, nor any experience in owning, operating or working in a tourism-based helicopter operation. -- 92 of 134 -- 93 [422] Sixth, each of the practical implications referred to by Mr Humphreys are not material to the nature and scope of the operations given that the limitations could be overcome by means other than the construction of the hangar and addition of the Helipad Pontoon and new terminal building. For example, as Mr Humphreys accepted, absent the existence of a hangar: (a) the storage of helicopters at the back of the Hangar Pontoon in the same position that they might otherwise be when enclosed by the hangar; (b) parts, fittings and equipment could be stored in a donga or in a passenger terminal building, each of which were built form elements of the use in the early 1990s; (c) office and bathroom facilities could otherwise be facilitated in the terminal facility that was on the Hangar Pontoon from the early 1990s; and (d) the pre-flight and post flights checks and wash downs could be carried out on the pad of the Hangar Pontoon irrespective of the existence of a hangar, and otherwise any more substantial maintenance works could be undertaken at Southport, which is a sensible way of operating. [423] Having regard to that evidence, the hangar might, or it might not, increase the scope or flexibility for helicopter operations to be carried out from the Premises. Mr Humphreys evidence takes the Council nowhere in that respect, particularly in terms of materiality. [424] Seventh, Mr Humphreys’ opined that the addition of the floating helipads would increase the scope of operations that can be carried out from the Premises. Again Mr Humphreys’ does not suggest more flights happened as a result, only that they could. Mr Humphreys’ accepted that floating helipads and the MV Helitours boat could be configured in different ways at different points in time to achieve the same result as that provided by the Helipad Pontoon. As such, the evidence of Mr Humphreys about the Helipad Pontoon does not assist the Council. [425] Next, the Council also relies on selective parts of the oral testimony of each of Mr Menzies and Mr Humphreys that it submits supports a conclusion that the establishment of the hangar on the Hangar Pontoon, in conjunction with the establishment of the adjoining Helipad Pontoon on Lot 534, comprised a material change of use. [426] The Council relies on evidence of Mr Menzies in which the Council says Mr Menzies explains the rationale behind the Helipad Pontoon. The relevant exchange during Mr Menzies cross-examination was as follows: “Yeah. It facilitates, by virtue of the installation of these two additional pads – helipads on the pontoon, it facilitates the efficient operation of your business?---That’s true. There’d be no point in having it otherwise?---Well, to tell you the truth, it was put there as a safety measure. In the marina we have large, large boats that are moored to the north. At the moment – which you can actually see in that page 32, there’s a boat – there’s 160-foot boat sitting on the northern side, there. Of course, we can’t control the marina and what the marina does and, of course, that boat was -- 93 of 134 -- 94 positioned in there, which obscured our take off and landing approaches to the aircraft – marina aircraft pad. So the only way that we could actually make it safer was to put a pontoon out the front. But this isn’t just any pontoon. This is a pontoon with two helipads marked on it?- --I – I don’t think it cares what markings have got on. It’s a pontoon. It actually makes the aircraft approach safer.” [427] With respect to this evidence, the Council submits that it is significant that the Helipad Pontoon is required to achieve an appropriate level of flight safety for aircraft operations. The Council submits that this confirms that the addition of the Helipad Pontoon resulted in a material increase in the scale and intensity of the use of the Premises for Gold Coast Leisure Services Pty Ltd’s helicopter use. The Council says that, but for the establishment of the Helipad Pontoon, the helicopter use could not have safely continued. [428] The Council submits that the materiality of that change should be considered in the context of the planning laws and instruments which applied at the time. It makes specific reference to the fact that safety of the built environment for the public benefit was a purpose of the Sustainable Planning Act 2009. [429] I do not accept the Council’s submission. It misstates the full effect of the evidence of Mr Menzies. The Council also fails to confront how it can maintain its submission in the face of Mr Menzies evidence that immediately followed the exchange to which the Council refers. That evidence was as follows: “But this isn’t just any pontoon. This is a pontoon with two helipads marked on it?---I – I don’t think it cares what markings have got on. It’s a pontoon. It actually makes 15 the aircraft approach safer. Well, it may, but you – it – it facilitates the use of this pad and pontoon by three helicopters, if so desired?---It – it could. Yeah. And you have used it for – by two helicopters at the one time?- --We’ve parked helicopters on there at the one time. Well, you might have parked them, but they had to fly in there to get there, didn’t they?---Yes, but we don’t fly - - - HER HONOUR: Well, I think what – sorry. In terms of phrases “at one time” and the like, I don’t know whether you mean “two helicopters flying in simultaneously,” or “one is parked there and one flies in,” or “two are parked there.” MR GIBSON: Yeah. HER HONOUR: And I think the witness and you, Mr Gibson, seem to be, potentially, at cross-purposes. MR GIBSON: All right. HER HONOUR: I certainly don’t know what’s meant by either of you in answering these questions without the - - - MR GIBSON: It was – it was giving – it was giving the witness the opportunity to – to explain. -- 94 of 134 -- 95 HER HONOUR: Yes. MR GIBSON: And put – the question was deliberately put in the broadest of terms. HER HONOUR: Okay. MR GIBSON: So that it could be – we’ll break it up. The separation distance between the two marked pads would permit two helicopters to simultaneously land or take off; correct?---It’s possible, yes, but that’s not what we do. But that’s what the dimensions are there for?---Well, it’s not. That – it’s just – so it – the pontoon is that size, because it – it fronts the front of the – the pad. But it certainly can do that, yes. And the – you have used the pontoon by two helicopters operating in a coordinated way, maybe only one on the pontoon at any one time, but nevertheless two operating the pontoon?---That’s correct. And you’ve parked two helicopters on that pontoon from time to time?---That’s correct. And this was a facility that was not previously available, was it?-- -Well, it was, because we had the vessel, MV Helitours, and the other pontoon there. Yeah. They were – they were genuinely mobile pontoons, weren’t they?---Well, a pontoon’s a pontoon. Yes. It’s – they were mobile, and so was this. Mr Menzies, MV Helitours did not stay parked up to this pad for 12 years, did it?---No. It – it – it definitely was sat176 in front of the pad for a long, long time. MV Heli – MV Helitours is not there now?---No, it’s – no, it’s - - - Where is it?---Excuse me? Where is it?---Where is it? Yeah?---It’s parked on the end of the pad. You saw it at – on your inspection, I believe. Parked at what end of the pad?---Next to the yellow pontoon there. … Yes. All right. So to summarise this, the pontoon at the western end permits more helicopters to be landed and taking – land and take off than was previously able to be done when the pontoon was not in place?---No, I disagree. 176 The transcript contains an error in that it records this answer as “wasn’t” rather than “was sat”. The transcript neither accords with my recollection and notes of the evidence, nor with my review of the audio recording. -- 95 of 134 -- 96 You disagree?---I disagree.” (emphasis added) [430] The Council’s submissions also fail to confront the further evidence of Mr Menzies given during cross-examination when Mr Gibson KC again returned to the use of the Helipad Pontoon. The relevant exchange was as follows: “So there’s a finite number of passengers you can put on the helicopters at any one time obviously?---Yes. But the question is what you have managed to do is to provide additional helipads both on the roof of the new terminal and by virtue of the pontoon that were not there previously?---I don’t understand. I think the rooftop level helipad is exactly the same as our old terminal which had the perch sitting behind it. Nothing’s changed. Was that perch there permanently?---Yes. Yes. All right. In any event, putting that to one side, there’s still a pontoon. We’ve been talking about it for a long time. It creates an opportunity to operate more helicopters simultaneously than previously existed without the pontoon; that must surely be correct. HER HONOUR: Well, can we just be clear about what pontoon. Are you talking about the new pontoon or the old pontoons - - - MR GIBSON: Yes. No, no. HER HONOUR: - - - that he said he attached there? MR GIBSON: No, no. The pontoon we’ve been talking about that was installed in 2010, 2011?---The pontoon is a more professional pontoon than having our MV Helitours or – and the other pontoon out the front. It did exactly the same job.” [431] The Council provides no basis for: (a) accepting the evidence of Mr Menzies to which they refer; and, at the same time (b) rejecting this evidence of Mr Menzies. [432] I accept this evidence of Mr Menzies. It is supported by photographs that pre-date 2010 that show multiple pontoons secured in Lot 534 in the same position as the Helipad Pontoon that, combined, have similar dimensions to the Helipad Pontoon and that appear to offer the same functionality in terms of parking helicopters and providing a safe approach. [433] Next, the Council relies on the oral testimony of Mr Menzies in which he: (a) confirmed that there was nothing stopping one helicopter from using the Hangar Pontoon while other helicopters operated from the Helipad Pontoon, and that GC Leisure Services Pty Ltd’s aircraft frequently landed on both; (b) confirmed that GC Leisure Services Pty Ltd regularly used the two helipads on the Helipad Pontoon; -- 96 of 134 -- 97 (c) agreed that, as a general proposition, the inclusion of the hangar increased the scope and flexibility of the helicopter operations to be carried out from the Premises; and (d) acknowledged that, because of the inclusion of the hangar, the number of aircraft that could be stored out of the elements increased from one to four, and that there was real utility to a hangar being able to shelter aircraft from the prevailing salt environment. [434] The Council also relies on the fact that Mr Humphreys gave similar oral evidence about the use of the hangar to shelter aircraft from the elements, and confirmed the additional benefit of the Helicopter Pontoon in that aircraft may continue to operate from those pads while another aircraft is being refuelled on the Hangar Pontoon. [435] Once again, the Council has failed to accurately represent the effect of Mr Menzies evidence on these issues or confront why this evidence should be viewed in isolation from the balance of his evidence. [436] I accept that Mr Menzies readily accepted that having the hangar improved the efficiency of his operations. However, he also made it clear, and it is patent from the photographic evidence, that the true effect of the hangar was to allow undercover storage of helicopters. In that sense, I can comfortably infer that the addition of the hangar is an improvement to the operations as it provides protection to the assets. That said, when there was no hangar, helicopters had been stored on the pad in the same location as now occupied by the hangar. That storage occurred for many years. The donga on the Hangar Pontoon provided undercover storage for one helicopter, but others were stored in a position that was exposed to the elements. Contrary to Mr Humphreys’ assumption, the addition of the Hangar did not result in any change to how maintenance was, and was not, undertaken. [437] With respect to the addition of the Helipad Pontoon in about 2010, Mr Menzies explained that the Helipad Pontoon did not create any additional capacity to fly more helicopters. It provided the same capacity that was previously provided by the MV Helitours boat and other floating pontoons that he used. [438] In combination, having regard to the evidence of Mr Menzies, the evidence of the other witnesses adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, the myriad of photographs and aerial photographs, and reasonable inferences available from that evidence, I am comfortably satisfied that: (a) the Helipad Pontoon operated in the same manner, and to the same extent, as the floating pontoons that preceded it; (b) the previous floating pontoons were replaced with the Helipad Pontoon as the Helipad Pontoon gave a more professional appearance; (c) although, as a general proposition, the inclusion of the hangar increased the scope and flexibility of the helicopter operations to be carried out from the Premises, there were no practical differences to the nature and extent of the use that GC Leisure Services Pty Ltd conducted on the Premises; and (d) although the inclusion of the hangar had benefits in terms of providing protection to helicopters, it did not cause a change to the use of the Premises as, prior to the erection of the sail, numerous helicopters were stored on the -- 97 of 134 -- 98 Premises in the location now occupied by the hangar. Helicopters were stored in that position for months at a time despite their exposure to the elements. [439] Turning then to the additional evidence of Mr Humphreys on which the Council relies. The Council does not explain why the evidence of Mr Humphreys should be accepted in preference to all the contrary evidence of Mr Menzies about the nature and extent of the use of the Premises, and all the other contrary evidence such as photographs. Further, the Council does not address why his evidence would be persuasive given: (a) the relevant allegation is that an offence has been committed; (b) Mr Humphreys has no knowledge of the actual use of the Premises; and (c) Mr Humphreys’ evidence assumes that prior to the introduction of the Helipad Pontoon, there was no opportunity to land helicopters on the Premises other than proximate to the refuelling station, which assumption is not supported on the evidence. [440] I am not persuaded to accept the evidence of Mr Humphreys. [441] Finally, the Council submits that because there was never a lawful right to use the Helicopter Pontoon on adjoining Lot 534, the absence of a development permit for the use of the Second Pontoon rendered the collective use of Lot 524, Lot 534 and the Hangar Pontoon unlawful. For reasons already provided above, I do not accept that there is not an existing lawful use right associated with Lot 534. [442] Even if I were to assume that the Council had demonstrated that between January 2010 and November 2011, Gold Coast Leisure Services Pty Ltd: (a) constructed the hanger building on the Hangar Pontoon and commenced using that building to hangar helicopters; (b) constructed the two helipads on the Helipad Pontoon and commenced using them for the arrival and departure of helicopters; and (c) operated four helicopters from the Premises, the Council has not demonstrated to the requisite standard that there was a change in operations facilitated by those changes, let alone a material one. [443] The Council has not satisfied me to the requisite standard that there was an increase in the scale or intensity of the use of the Premises between January 2010 and November 2011. Having regard to all aspects of the use of the Premises, the Council has not persuaded me that the increase in the extent of the built form equates to, or otherwise demonstrates, an increase in the scale or intensity of the use. [444] In paragraphs [212] to [245] above I set out my findings about the nature and extent of the use up to 1994. With respect to the use between 1994 and November 2011, I have had the benefit of the evidence of Mr Menzies, the evidence of other witnesses adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, and a myriad of photographs and aerial photographs. Having regard to all that evidence, and the reasonable inferences that can be drawn from a consideration of all that evidence, I am comfortably satisfied that between 1994 and November 2011, there was no change to the use of the Premises, let alone a material one. -- 98 of 134 -- 99 Was the second alleged material change of use made assessable development under the 2003 Planning Scheme? [445] The Council alleges that, for the purposes of the Sustainable Planning Act 2009, the second alleged material change of use is assessable development under the 2003 Planning Scheme. [446] Considering my findings above, it is unnecessary for me to determine that allegation to dispose of the Council’s case that Gold Coast Leisure Services Pty Ltd carried out assessable development without an effective development permit and, as such, breached s 578 of the Sustainable Planning Act 2009. That said, whether a material change of use of the Premises was assessable under the 2003 Planning Scheme has potential relevance to the broader question of lawfulness of the use. As such, I deal with it below. [447] This allegation calls for consideration of the following questions for the period between January 2010 and November 2011: 1. What is assessable development under the Sustainable Planning Act 2009? 2. What is the jurisdiction of a local government for the Sustainable Planning Act 2009? 3. How was the Council’s local government area defined? 4. Are the premises located within the Council’s local government area as shown on area maps LGRB30 Edition 2 and LGB30 Edition 1? 5. Did the 2003 Planning Scheme make a material change of use of the Premises assessable? What is assessable development under the Sustainable Planning Act 2009? [448] The Council contends that the second alleged material change of use of the Premises between January 2010 and November 2011 constitutes “assessable development” for the purposes of the Sustainable Planning Act 2009. [449] Under the Sustainable Planning Act 2009, “assessable development” is defined as follows: “1 Generally, assessable development means development prescribed under section 232(1)(c) to be assessable development. 2 The term also includes development declared under a State planning regulatory provision to be assessable development. 3 For a planning scheme area, the term also includes other development not prescribed under a regulation to be assessable development but declared to be assessable development under any of the following that applies to the area— (a) the planning scheme for the area; (b) a temporary local planning instrument; -- 99 of 134 -- 100 (c) a master plan for a declared master planned area; (d) a preliminary approval to which section 242 applies.”177 [450] The only basis on which the Council alleges that the second alleged material change of use was assessable development was on the basis that it was made assessable development under the 2003 Planning Scheme. [451] Pursuant to s 778 of the Sustainable Planning Act 2009, the 2003 Planning Scheme continued to have effect after the repeal of the Integrated Planning Act 1997 and is taken to be the planning scheme for the Council’s local government area made under the Sustainable Planning Act 2009. [452] As such, it is necessary to consider the jurisdiction of a local government under the Sustainable Planning Act 2009. What is the jurisdiction of a local government under the Integrated Planning Act 1997 and the Sustainable Planning Act 2009? [453] As I have already mentioned, all powers of local government derive from the State. The legislative mechanism by which the State conferred powers on local governments at the relevant time was the Integrated Planning Act 1997 (with respect to the preparation of the 2003 Planning Scheme), and the Sustainable Planning Act 2009, and the Local Government Act 1993 and the Local Government Act 2009. [454] Under the Integrated Planning Act 1997, a local government was empowered to prepare a planning scheme for its area.178 At the time of the second alleged material change of use, version 1.2 of the 2003 Planning Scheme applied. It was adopted prior to the commencement of the Sustainable Planning Act 2009. [455] Under the Local Government Act 1993 and the Local Government Act 2009, a local government’s local government area was that part of the State declared by regulation to be a local government area.179 As such, the power to define the boundaries of a local government area resides with the Governor in Council. [456] Under the Integrated Planning Act 1997 and the Sustainable Planning Act 2009, the jurisdictional reach of a local government’s power is geographically confined by reference to its local government area except in very limited circumstances not applicable here.180 As such, if the Premises does not fall within the Council’s local government area, then there is nothing for the Council to regulate under the 2003 Planning Scheme. How was the Council’s local government area defined? [457] A central issue in this case is whether the Premises are within the Council’s local government area between January 2010 to November 2011. 177 Sustainable Planning Act 2009 s 6 and sch 3 (Reprint 1A revised edition through to 1K). 178 Integrated Planning Act 1997 ss 2.1.1 and 2.1.2 and definition of “local government area” in s 1.3.1 and sch 10. See also Sustainable Planning Act 2009 ss 79, 80, 81 and 82. 179 Local Government Act 1993 s 16. 180 Local Government Act 1993 ss 22 and 23; Local Government Act 2009 ss 8 and 9 -- 100 of 134 -- 101 [458] At the relevant times, the boundaries of local government areas were defined by reference to the Local Government Act 1993 and the Local Government Act 2009. The Local Government Act 1993 permitted a regulation to declare a part of the State to be a local government area.181 To similar effect, the Local Government Act 2009 defines the concept of a “local government area” and provides that the boundaries of a local government area may be described by regulation.182 As such, the power to define the boundaries of a local government area resides with the Governor in Council. [459] Subject to specified exception, a local government may only exercise its powers within its local government area.183 There is no suggestion that an exception is relevant in this proceeding. [460] At the relevant time, the boundaries of local government areas were set by operation of the Local Government (Areas) Regulation 2008 and the Local Government (Operations) Regulation 2010. Each regulation defined local government areas by reference to the area shown on the local government’s area map. Each area map is identified by a map number marked on the map.184 The relevant area maps for each local government are declared in sch 1 to the Local Government (Areas) Regulation 2008 and the Local Government (Operations) Regulation 2010. [461] There are two relevant maps for the period between January 2010 and November 2011. Between 15 March 2008 and 2 September 2011, the Council’s local government area was defined by reference to “LGRB30 Edition 2”.185 From 23 September 2011 to 26 January 2012, the Council’s local government area was defined by reference to map “LGB30 Edition 1”.186 Are the premises located within the Council’s local government area as shown on area maps LGRB30 Edition 2 and LGB30 Edition 1? [462] Area maps LGRB30 Edition 2 and LGB30 Edition 1 both include a red line that encloses a particular area. It is uncontroversial that the Premises are located within the red line on each map. [463] The two maps contain different notations. Given the Council is unable to establish which of the two maps was in effect at the time that the second alleged material change of use occurred, to establish the commission of an offence under s 578 of the Sustainable Planning Act 2009, it must establish that the Premises was within the Council’s local government area under both area map LGRB30 Edition 2 and area map LGB30 Edition 1. 181 Local Government Act 1993 s 16. 182 Local Government Act 2009 s 8. 183 Local Government Act 1993 ss 23, 24, and 25; Local Government Act 2009 s 9. 184 Local Government (Areas) Regulation 2008 s 3; Local Government (Operations) Regulation 2010 s 7. 185 Local Government (Areas) Regulation 2008. This regulation commenced on 15 March 2008. See also Local Government (Operations) Regulation 2010, which commenced on 1 July 2010. 186 Local Government (Operations) Regulation 2010 Reprint No. 1E. This reprint incorporates the amendments made by the Local Government (Operations) Amendment Regulation (No. 3) 2011 Subordinate Legislation 2011 No. 186, which commenced on 23 September 2011. Map LGB 30 edition 1 relaced Map LGRB 30 edition 2 on that date. -- 101 of 134 -- 102 [464] It is convenient to consider the notations on area map LGB30 Edition 1 first. This is because, even if the Premises was within the Council’s local government area between 15 March 2008 and 2 September 2011, if it was not within the Council’s local government area from 23 September 2011 to 26 January 2012, then: (a) a material change of use during that period was not assessable development; and, as such (b) Gold Coast Leisure Services Pty Ltd could have lawfully increased its operations within that period without the need for a development permit. [465] Area map LGB30 Edition 1 contains a notation that states: “THE LOCAL GOVERNMENT AREA COMPRISES THE MAINLAND AND ALL ISLANDS ABOVE THE RESPECTIVE SEASHORES WITHIN THE ENCOMPASSED AREA” (emphasis added) [466] In addition, at various locations on area map LGB30 Edition 1, proximate to the red line, the map contain notations in red such as “by the river” and “by the NE bdy of Lot”. There is a red arrow between the red font and various points of the red line. [467] Relevantly, area map LGB30 Edition 1 identifies that it is: “[p]roduced to delineate the boundaries of the Local Government Area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act”. [468] The Council’s primary contention is that the Premises is within its local government area because there is reference in the 2003 Planning Scheme to the Broadwater.187 It also submits that the location of the Premises within the red line is sufficient to establish that fact.188 [469] I do not accept the Council’s submission for four reasons. [470] First, the Council’s primary contention does not proceed on a sound foundation. Although each of the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 permitted a local government to adopt a planning scheme to regulate development, they only permitted this to occur in relation to the local government’s local government area. As such, it is necessary to consider how the Council’s local government area is defined. This requires consideration of the Local Government Act 1993, the Local Government Act 2009, the Local Government (Areas) Regulation 2008, the Local Government (Operations) Regulation 2010 and the relevant areas map, not the 2003 Planning Scheme. [471] Second, as is indicated on area map LGB30 Edition 1, the area map was produced to delineate the boundaries of the local government area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act 2003. That legislation provides important context that assist in construing the map. 187 Applicant’s Outline of Submissions dated 18 December 2023 pp 28-9 [67] – [68]. 188 Applicant’s Response to the Respondent’s Written Submissions dated 5 February 2024. -- 102 of 134 -- 103 [472] Section 8 of the Local Government Act 2009 provides that a regulation may describe the boundaries of a local government area. [473] Relevantly, s 7 of the Local Government (Operations) Regulation 2010 states: “(1) The boundaries of each local government area, and any divisions of the area, are shown on its area map mentioned in schedule 1, column 3. (2) To remove any doubt, it is declared that any part of a watercourse, including the land below the high-water mark of the watercourse, that is within the boundary of a local government area is part of the local government area. (3) A watercourse includes a canal, lake or river.” [474] The Survey and Mapping Infrastructure Act 2003 also provides relevant context and guidance. [475] My observations in paragraphs [273] and [276] to [279] apply with equal force here except that some of the methods employed in the production of area map LGB30 Edition 1 are described in paragraphs [465] to [467] above. [476] To construe area map LGB30 Edition 1 with reference to both the delineation of the local area boundary and the notation is entirely consistent with the Local Government Act 2009 and the Local Government (Operations) Regulation 2010. The notation provides relevant information for defining the boundary of the Council’s local government area. [477] Third, the Council’s approach is contrary to orthodox principles of statutory construction. My observations in paragraphs [282] to [295] above are equally apposite for area map LGB30 Edition 1, save that: (a) the authorising laws for area map LGB30 Edition 1 are the Local Government Act 2009 and the Local Government (Operations) Regulation 2010; (b) the authorising laws do not contain a definition of seashore, other than in s 26 of the Local Government (Operations) Regulation 2010, which, for the purpose of that section, defines “seashore” as: “(a) the foreshore; or (b) State land that— (i) is above high-water mark at ordinary spring tides; and (ii) is ordinarily covered by sand or shingle; and (iii) is not subject to a licence, permit or other authority granted by the State under an Act.” (c) “foreshore” is defined in the dictionary in sch 6 of the Local Government (Operations) Regulation 2010 to mean “land between the high-water mark and low-water mark during ordinary spring tides”; -- 103 of 134 -- 104 (d) “high-water mark” is defined in s 99 of the Local Government Act 2009 to mean “the ordinary high-water mark at spring tides”; (e) the definition of seashore in the Local Government (Operations) Regulation 2010 accords with the ordinary meaning of the word; and (f) for part of the period in issue for the second alleged material change of use, the State, by regulation, chose to define the local government area by reference to area map LGB30 Edition 1. The State adopted a combination of the methods permitted under s 57 of the Survey and Mapping Infrastructure Act 2003 to define the Council’s local government area. They included the use of annotations describing natural features, including the notation limiting the local government area to “the mainland and all islands about the respective seashores”. [478] The terms “seashore”, “foreshore” and “high-water mark” are necessarily referential to areas of tidal influence; as opposed to areas that may not be such as lakes, and parts of canals and rivers. It is uncontroversial that the Premises are below the high-water mark. [479] Having regard to those matters, the Council has not satisfied me, to the requisite standard, that there is a sound basis to re-write area map LGB30 Edition 1 by deleting the text. To do so would not be to correct a grammatical or drafting error. It would fundamentally alter the meaning of the maps and, in doing so, confer additional jurisdiction on the Council. [480] As such, the Council has not persuaded me, to the requisite standard, that the local government area includes land that is not “above the seashore”. [481] Fourth, the Council has not persuaded me that the Premises is within the Council’s local government area by operation of ss 7(2) and (3) of the Local Government (Operations) Regulation 2010. For the reasons provided above, it has not persuaded me that the Premises is “within the boundary of a local government area” for s 7(2). [482] Further, and in any event, whether the Broadwater, and the Premises, is part of a watercourse is a question of fact. It is a fact that Gold Coast Leisure Services Pty Ltd put in issue in the proceeding. The Council bears the onus of demonstrating that the Broadwater, and the Premises, form part of a watercourse. The Council adduced no evidence to that end. [483] The Council submits that I can take judicial notice that the Broadwater is part of the lower course of the Nerang River. It says that to suggest otherwise is “so contrary to commonsense that it couldn’t possibly be accepted”. [484] I am generally unfamiliar with the Broadwater. I do not accept that it is commonsense that the Broadwater is part of the lower course of the Nerang River. It does not strike me as a fact that is so notorious that I can take judicial notice of it. To the contrary, the evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies on this issue indicates that the Broadwater is not part of the Nerang River, nor part of a watercourse. -- 104 of 134 -- 105 [485] For the reasons provided above, the Council has not persuaded me, to the requisite standard, that: (a) the Premises was in the local government area of the Council for the whole of the period within which the Council alleges the second material change of use was carried out; and (b) the 2003 Planning Scheme applied to the Premises at the times that the local government area was defined by area map LGB30 Edition 1. [486] In those circumstances, and for the reasons provided in paragraph [464] above, it is unnecessary to consider area map LGRB30 Edition 2 in any detail. It is sufficient to observe that, having regard to the submissions by Gold Coast Leisure Services Pty Ltd and Mr Menzies,189 the Council has not persuaded me to the requisite standard that the Premises was in the Council’s local government area when that area was defined by reference to the Local Government (Operations) Regulation 2010 and area map LGRB30 Edition 2, being a period from 1 July 2010 to 22 September 2011. Did the 2003 Planning Scheme make a material change of use of the Premises assessable? [487] As I have already found, the Council has not discharged its onus to demonstrate that the Premises was, at all relevant times, in the Council’s local government area and that, consequently, the 2003 Planning Scheme applies. As such, it is unnecessary for me to address in detail whether the second alleged material change of use was made assessable development under the 2003 Planning Scheme. It is sufficient to make a few brief observations about the 2003 Planning Scheme and the Council’s case. [488] The Council’s case that the 2003 Planning Scheme required a development permit for the second alleged material change of use is premised on four matters, namely: (a) the second alleged material change of use comprised a “helipad” as that term is defined in Part 4, Division 1, Chapter 1 of the 2003 Planning Scheme; (b) Part 5, Division 1, Chapter 2, section 8.0 of the 2003 Planning Scheme provides: “8.0 Land Shown Uncoloured on the Domain Maps Where land is not included in one of the 18 domains and it is not included within a LAP, it is to be known as Land Shown Uncoloured. All land in the City with development potential is intended to be included within a domain or LAP. The major exceptions are those areas of land included in roadways and land covered by waterways. There may also be other lots that are inadvertently left unassigned to any domain or LAP. Where a lot is Land Shown Uncoloured, its development status is considered to be consistent with that of land contained within the Community Purposes Domain.” 189 See the submissions about ss 6(2) and (3) of the Local Government Regulation 2012 (Qld), which are in the same terms as ss 7(2) and (3) of the Local Government (Operations) Regulation 2010. -- 105 of 134 -- 106 (c) by operation of Part 5, Division 1, Chapter 2, section 8.0 of the 2003 Planning Scheme, the development status of the Premises is considered to be consistent with that of land contained within the Community Purposes Domain; and (d) a helipad is assessable development in the Community Purposes Domain. [489] Assuming for present purposes that the 2003 Planning Scheme applied, each of the matters referred to in paragraphs [488](a), [488](b) and [488](d) has been established. However, the Council has not satisfied me, to the requisite standard, of the matter in paragraph [488](c). Even if the Premises were within the local government area governed by the 2003 Planning Scheme, the Council has not persuaded me, to the requisite standard, that it was “land” and that it was not a “waterway”. [490] For the reasons provided above, the Council has not discharged its onus with respect to this aspect of its case either. Was the use of the Premises a lawful use for s 582 of the Sustainable Planning Act 2009? [491] The Council alleges that the use was not a lawful use for s 582 of the Sustainable Planning Act 2009. Fundamental to the Council’s case is its allegation that between January 2010 and November 2011, Gold Coast Leisure Services Pty Ltd carried out assessable development, being the second alleged material change of use, without an effective development permit. For reasons provided above, it has not discharged its onus with respect to that allegation. [492] Further, and in any event, the evidence adduced by Gold Coast Leisure Services Pty Ltd comfortably persuades me that the use of the premises between January 2010 and November 2011 was a lawful use for the reasons that follow. [493] There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between December 1998 and 17 August 2003. As such, having regard to my findings above, I am satisfied that immediately before the 2003 Planning Scheme took effect: (a) the relevant planning unit was the whole of the Premises; and (b) there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time but which had a generally consistent trend from 1988 to 2003. [494] On 18 August 2003, the 2003 Planning Scheme took effect. At that time, the lawful use of the Premises was afforded protection under s 1.4.6 of the Integrated Planning Act 1997. [495] On 18 December 2009, the Integrated Planning Act 1997 was repealed and replaced by the Sustainable Planning Act 2009. [496] From 18 December 2009, the protection that had previously been afforded ss 1.4.1 and 1.4.6 of the Integrated Planning Act 1997 was continued by operation s 681 of the Sustainable Planning Act 2009. -- 106 of 134 -- 107 [497] Having regard to my findings above, I am satisfied that, immediately before the Sustainable Planning Act 2009 commenced: (a) the relevant planning unit was the whole of the Premises; and (b) there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time but which had a generally consistent trend from 1988 to 2009. [498] I am also satisfied that there was no change to the intensity or scale of the use, as distinct to the built form or infrastructure utilised as part of the use, between 18 December 2009 and November 2011. [499] As such, I am comfortably satisfied that the use of the Premises was a lawful use for s 582 of the Sustainable Planning Act 2009. Conclusion regarding the Council’s allegations about the second alleged material change of use [500] Overall with respect to the second key issue, the Council has not satisfied me, to the requisite standard, that Gold Coast Leisure Services Pty Ltd: (a) carried out assessable development without an effective development permit and, as such, breached s 578 of the Sustainable Planning Act 2009; or (b) used the Premises in circumstances where the use was not a lawful use and, as such, breached s 582 of the Sustainable Planning Act 2009.190 Key issue 3: Was there an unlawful material change in the intensity or scale of the use of the premises between August 2017 and November 2018? [501] In its Originating Application, the Council alleges that Gold Coast Leisure Services Pty Ltd unlawfully intensified helicopter operations on the Premises between August 2017 and November 2018. The foundation for its allegation is set out in the grounds at paragraphs 19, 20, 21 and 22 of the Originating Application, which state: “19. On dates between August 2017 and November 2018, the First Respondent: (a) constructed the Two Storey Building in [Lot 524], and commenced the use of [Lot 524] for the arrival and departure of helicopters as well as establishment of a café and passenger terminal; (b) relocated the One Storey Building from [Lot 524] to Area 4 to be used for office and storage purposes associated with the Helicopter Use; and (c) operated six (6) helicopters from the Premises. 20. The matters set out in the previous paragraph, in conjunction with the change in operations facilitated by those changes, resulted in a material change in the intensity or scale of the use 190 In forming my conclusions on this issue, I am mindful that the onus was on Gold Coast Leisure Services Pty Ltd and Mr Menzies to establish existing lawful use rights. -- 107 of 134 -- 108 of the Premises, and comprised a material change of use as that term is defined in the Planning Act (Third Helicopter MCU). 21. When the First Respondent commenced the Third Helicopter MCU: (a) the Planning Act was in effect; (b) there was no development permit in effect authorising the Third Helicopter MCU; (c) the Applicant’s City Plan 2016 (2016 Scheme) was in effect; (d) under the 2016 Scheme: (i) the Third Helicopter MCU comprised a ‘Air Services, as that term is defined in Table SC1.1.2 Use definitions; (ii) the Premises: (A) was identified as a ‘Major waterway’ in the Environmental significance – wetlands and waterways overlay map 9; and (B) as a consequence of Part 1, section 1.2.4(b), the Premises is taken to be within the Centre zone; and (iii) the Third Helicopter MCU was prescribed as assessable development – impact assessable, because of Part 5, Table 5.5.4; and (e) the use did not fall within any of the matters set out in sections 163(2), 165(b) or 166 of the Planning Act. 22. In the premises of the matters set out in the previous paragraph, the commencement of the Third Helicopter MCU: (a) was contrary to section 163(1) of the Planning Act, in that the First Respondent carried out assessable development without an effective development permit for the development; further, or in the alternative, (b) was contrary to section 165 of the Planning Act, in that the First Respondent used premises in circumstances where the use was not a lawful use.” [502] At the hearing, the Council abandoned the allegation in paragraph 19(b) of its Originating Application. [503] The Council did not particularise the change in operations that it alleges were facilitated by the construction of the two-storey building of Lot 524, the commencement of use of that building for the arrival and departure of helicopters and the establishment of a café’ and passenger terminal, and the operation of six helicopters from the Premises. -- 108 of 134 -- 109 [504] The Council’s case about the material change in the intensity or scale of the use of the Premises is largely circumstantial. The allegations made and evidence filed by the Council focus on increases in built form and the number of helicopters owned by Gold Coast Leisure Services Pty Ltd. The Council seeks to use those matters to establish a change in operations that materially increased its intensity. The Council only adduced very limited evidence about the arrival and departure of helicopters. It was the evidence of Ms Susan Donovan about her observations around 2017 and 2018. What is the relevant legislative context under the Planning Act 2016? [505] The Council’s allegations raise issues about the regulation of uses under ss 163 and 165 of the Planning Act 2016. I have set them out in paragraphs [135] and [142] above. [506] As I observed in paragraph [137] above, the real issues in dispute between the parties about the alleged commission of an offence under s 163 of the Planning Act 2016 relate to: (a) the development that is said to have been carried out; and (b) whether the development was assessable development. [507] In paragraph [144] above, I have identified that the real issue in dispute between the parties about the alleged commission of an offence under s 165 of the Planning Act 2016 relates to whether the use is lawful. There is also a dispute about the extent of the use insofar as the Council alleges that the use includes service and maintenance. As I have already mentioned, the resolution of that dispute is of little consequence to the outcome in the proceeding. [508] When considering ss 163 and 165 of the Planning Act 2016, it is relevant to note that under the Planning Act 2016:191 (a) “premises” is defined as a building or other structure; or land, whether or not a building or other structure is on the land;192 and (b) “land” is defined to include: “(a) an estate in, on, over or under land; and (b) the airspace above the land and any estate in the airspace; and (c) the subsoil of land and any estate in the subsoil.”193 [509] Under the Planning Act 2016, there are three categories of “development”, namely prohibited development, assessable development, and accepted development.194 If development is not categorised, it is accepted development.195 191 Planning Act 2016 Reprints effective 3 July 2017, 13 September 2017, 1 January 2018, 8 March 2018, and 9 May 2018, being the reprints in force at the time of the alleged third material change of use. 192 Planning Act 2016 s 6 and sch 2. 193 Planning Act 2016 s 6 and sch 2. 194 Planning Act 2016 ss 43 and 44. 195 Planning Act 2016 s 44. -- 109 of 134 -- 110 [510] A development permit is necessary for assessable development but is not necessary for accepted development.196 A development application may not be made for development that is categorised as prohibited development.197 [511] The Council contends that the third material change of use of the Premises constitutes “assessable development” for the purposes of the Planning Act 2016. It says it was made assessable development under City Plan 2016. [512] Relevantly for this case: (a) “development” is defined to include making a material change of use of premises;198 and (b) “material change of use, of premises” is defined to mean any of the following that a regulation made under section 284(2)(a) does not prescribe to be minor change of use: (i) the start of a new use of the premises; or (ii) the re-establishment on the premises of a use that has been abandoned; or (iii) a material increase in the intensity or scale of the use of the premises;199 and (c) “use”, for premises, is defined to include an ancillary use of the premises.200 [513] In considering the ambit of the offences, it is also relevant that: (a) “lawful use, of premises” is defined to mean a use of premises that is a natural and ordinary consequence of making a material change of use of the premises in compliance with the Planning Act 2016;201 (b) ss 260 and 290 protect existing lawful use rights and state: “260 Existing lawful uses, works and approvals (1) If, immediately before a planning instrument change, a use of premises was a lawful use of premises, the change does not— (a) stop the use from continuing; or (b) further regulate the use; or (c) require the use to be changed. (2) If a planning instrument change happens after building or other works have been lawfully constructed or effected, the change does not 196 Planning Act 2016 s 44. 197 Planning Act 2016 s 44. 198 Planning Act 2016 s 6 and sch 2. 199 Planning Act 2016 s 6 and sch 2. 200 Planning Act 2016 s 6 and sch 2. 201 Planning Act 2016 s 6 and sch 2. -- 110 of 134 -- 111 require the building or works to be altered or removed. (3) If a planning instrument change happens after a development approval is given, the change does not— (a) stop or further regulate the development; or (b) otherwise affect the approval to any extent to which the approval remains in effect. 290 Lawful uses of premises To the extent an existing use of premises is lawful when the old Act is repealed, the use is taken to be a lawful use on the commencement.”202 What are the issues in dispute with respect to the third alleged material change of use? [514] Here, the Council’s case is that the third alleged material change of use was the material increase in the intensity or scale of the helicopter operation use of the Premises. The Council contends that the material change of the use was not lawful as it was assessable development requiring a development permit and no development permit was obtained. [515] Gold Coast Leisure Services Pty Ltd concedes that it did not obtain a development permit under the Planning Act 2016. Gold Coast Leisure Services Pty Ltd and Mr Menzies dispute the balance of the Council’s allegations on the basis that: (a) the evidence does not establish that there was a material increase in the intensity or scale of the use of the Premises between August 2017 and November 2018; and, in any event (b) between August 2017 and November 2018, the Premises was not in the Council’s local government area and, as such: (i) was not within the Council’s planning scheme area; and (ii) was not regulated by City Plan 2016. [516] Gold Coast Leisure Services Pty Ltd and Mr Menzies first put the Council on notice that it disputed these matters in the Statement of Facts, Matters and Contentions filed on 27 July 2023.203 [517] There are three questions to be answered to resolve the issues in dispute, namely: 1. Was there a material increase in the intensity or scale of the use of the Premises between August 2017 and November 2018? 2. Was the third alleged material change of use made assessable development under City Plan 2016? 202 The “old Act” is defined as the Sustainable Planning Act 2009. 203 Gold Coast Leisure Services Pty Ltd and Mr Menzies had also notified the Council of their position in that regard in correspondence as early as 22 September 2022. -- 111 of 134 -- 112 3. Was the use of the Premises a lawful use for s 165 of the Planning Act 2016? Was there a material increase in the intensity or scale of the use of the Premises between August 2017 and November 2018? [518] The relevant allegations made by the Council are those in paragraphs 19 and 20 of the Originating Application, which are set out in paragraph [501] above. [519] The Council’s submissions on this issue were slightly different. The Council submits that between August 2017 and November 2018, Gold Coast Leisure Services Pty Ltd established a two-storey passenger terminal on Lot 524. The Council says the passenger terminal has an area of 230 square metres and comprises: (a) a ground level with a reception area, passenger locker area, seating area and viewing room (for showing safety videos to passengers); (b) a first level with a main entrance, booking counter, reception, waiting area, café and boardroom; and (c) a third level with a rooftop helipad and associated access to and from the helipad. [520] According to the Council, the establishment of that passenger terminal made a material increase in the scale and intensity of the use of the Premises. [521] The submissions made no reference to the operation of six helicopters from the Premises. [522] At one point, the Council also submitted that the establishment of the new passenger terminal was the start of a new use of Lot 524. No such allegation is made in its Originating Application, nor is that submission developed in any meaningful way by the Council in its written outline, or its written or oral submissions. Even so, the submission can readily be disposed of. [523] There are three aspects of the definition of a material change of use. One aspect is the “start of a new use”. As was observed by His Honour Judge Williamson KC in Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor,204 where the aspect in issue is the start of a new use of premises, one must identify when the use is said to have started, i.e., what constitutes the “start” of a new use of premises. The “start” of a new use does not encompass the continuation of a use.205 Nor does it encompass a material increase in the intensity or scale of the use of the premises. [524] His Honour Judge Williamson KC went on to identify that, by reason of s 20C(2) of the Acts Interpretation Act 1954, an act or omission of the kind prescribed, namely the start of a new use, under s 163 of the Planning Act 2016 will only be an offence if committed after 3 July 2017. 204 [2018] QPEC 52; [2018] QPELR 221. 205 Caravan Parks Association of Queensland Limited v Rockhampton Regional Council & Anor [2018] QPEC 52; [2018] QPELR 221, 238 [80]. -- 112 of 134 -- 113 [525] Here, the evidence establishes that the use of Lot 524 for the helicopter operations, namely as a single storey passenger terminal, started in 1994. The use predated the Planning Act 2016. [526] The Council has not demonstrated the use of Lot 524 commenced between January 2010 and November 2011. The use was already entrenched on Lot 524 by that time. As such, to the extent that the Council submits that the offence involves the start of a new use on Lot 524, that has not been established. [527] I return now to the Council’s primary case. For the reasons that follow, the evidence adduced by the Council does not satisfy me, to the requisite standard, that there was a material change of use of the type: (a) alleged in paragraphs 19 and 20 of the Originating Application; or otherwise (b) asserted in the Council’s submissions. [528] The aerial photography evidence adduced by the Council demonstrates that between 14 July 2017 and 15 July 2018 the two-storey passenger terminal was introduced to Lot 524. [529] The evidence of Ms Hansen demonstrates that the passenger terminal has an overall area of approximately 231 square metres and contains those areas described at paragraph [518]by the Council in its submissions. [530] The Council did not direct my attention to any evidence adduced by it that supports its allegation in paragraph 19(c) of the Originating Application, namely that between January 2010 and November 2011 Gold Coast Leisure Services Pty Ltd operated six helicopters from the Premises. The Council’s submissions were silent on that allegation. [531] With respect to the allegation that there was a change in operation facilitated by those changes, the Council relies on the evidence of Mr Humphreys, Mr Mewing, and Ms Donovan. Before turning to those parts of the evidence of Mr Humphreys, Mr Mewing and Ms Donovan that the Council invites me to accept, it is important to again note that the Council’s proceeding is founded on an allegation that an offence has been committed, not an allegation that an offence will be committed unless an enforcement order is made. [532] In his affidavit, Mr Humphreys does not give any evidence of any changes to the operation observed by him in the relevant period. Rather, he expresses opinions about the limitations to a helicopter operation presented by the built form on the Premises as shown in an aerial image in 1988. He also expresses opinions about the operational capacity presented by the introduction of the new passenger terminal. The same is true of the evidence of Mr Mewing. [533] The evidence of Mr Humphreys on which the Council relies is as follows: “13. Paragraph 16 of the Menzies Affidavit discusses the addition of the two storey terminal ‘vessel’ (New Terminal) in 2017. In my view, the inclusion of this improvement significantly -- 113 of 134 -- 114 increases the scope of helicopter operation that could be carried out from the Premises for the following reasons: (a) the New Terminal appears to operate as a dedicated heliport. It provides for a large dedicated area for the administration of passengers and associated safety briefings, as well as back of house business offices. This area is under cover, and removes passengers from areas that would be subject to rotor downwash (rotor- generated wind effects), noise and the elements until they are ready to embark the aircraft. This means that the facility has the capacity to provide aviation services to larger number of passengers, and in a better quality environment; (b) the size and location of the New Terminal functions as a barrier to control access to the helipads. This would make the control of larger passenger numbers easier to manage by fewer staff. It would also serve to reduce the effect of rotor downwash to the adjoining berths when aircraft are landing on the main helipad area; and (c) the New Terminal incorporates an additional roof top helipad. This helipad allows another landing and aircraft positioning location. An advantage of the addition of this additional helipad on top of the New Terminal would be further operational flexibility for simultaneous multiple aircraft operations. 14. Having regard to the cumulative differences between the original basic pontoon ramp and the current operation on the Premises, the capacity for helicopter operations has significantly evolved from the operation of one or two aircraft from the pontoon during daylight hours, and being able to operate only a limited range of helicopter operations, to a facility that can simultaneously operate up to five passenger carrying aircraft at any given time, and with the capacity to operate at both day and night, and to permit much larger numbers of passenger movements due to the efficiencies associated with the use of the Terminal, the Hangar, the on-site refuelling facility and the larger number of helicopter landing areas.” [534] The Council also relies on the evidence of Mr Humphreys about the maintenance that he says would need to be carried out at the Premises. The relevant evidence on which the Council relies in that respect is as follows: “24. Helicopters are maintenance intensive aircraft, and this is even more problematic when operated in a hostile environment like the Premises. Proximity to a saltwater environment has a significant increase in minor maintenance tasks and husbandry like aircraft washes. -- 114 of 134 -- 115 25. In my opinion, minor maintenance activities would likely be required to be carried out at the Premises, such as: (a) washing aircraft at the end of each day before being placed in the hangar. This is both a wash of the inside of the turbine engine, which is done by running water through the compressor blades of the engine while being driven by the starter motor, as well as an external wash of the airframe and rotor blades. This is particularly important for a saltwater environment such as the Premises, and I do not think it would be practicable to undertake this activity at the Southport Flying Club, because the aircraft would need to fly back to the Premises for hangaring and.be exposed to saltwater during that process; (b) ad hoc minor maintenance such as fluid replenishment (oil and lubricant top-ups), cockpit cleaning and internal configuration and role equipment changes. Also, there are some malfunctions that must be repaired or attended to before the aircraft can be flown. By way of one example, if the pilot on landing receives a cockpit indication of metal chips or fragments in a gearbox, the gearbox oil must be sampled and tested for metal fragments, followed by a engine ground run or hover test, before the aircraft can fly again; and (c) repair of minor repairs such as broken radio leads, instrument and radio repairs and seat belt changes. 26. The Hangar provides an ideal location for these minor activities to be carried out, and this is another indicator of the increased scale of operations possible from the Premises because of the Hangar.” [535] In addition to the evidence in Mr Humphreys’ report, the Council invites me to place weight on the oral evidence of Mr Humphreys. He gave evidence of two differences between the new passenger terminal and the original single-storey passenger terminal. He says that the latter did not have the same capacity to move the amount of people. The other difference was that the new passenger terminal permits control of persons in a much more professional way. [536] The Council notes that Mr Menzies gave similar evidence on that point. He fairly conceded that placing 50 persons in the original terminal was “a very tight squeeze” and that the new passenger terminal could hold and process many more passengers than the old one. [537] I am not persuaded to accept the evidence of Mr Humphreys for the following three reasons. [538] First, Mr Humphreys’ evidence does not demonstrate actual activities carried out on the Premises. Rather, Mr Humphreys’ opinion is that the inclusion of the new -- 115 of 134 -- 116 passenger terminal significantly increases the scope of helicopter operations that could be carried out. Again, not that is has, but that it could. [539] Second, Mr Humphreys is a pilot who has never owned, operated or had any experience in a helicopter operation of the type conducted by Gold Coast Leisure Services Pty Ltd. His evidence is little more than speculation. That was apparent from the evidence that he gave during cross-examination, which revealed that Mr Humphreys: (a) either could not say or did not know whether the new two-storey passenger terminal operated in the same way as its predecessor – his assumptions were premised only on the fact that it was bigger; (b) accepted that the new passenger terminal provides the same functions and benefits as a barrier that controls access to the helipads as that which would have been provided by the previous single-storey terminal, but presumes that because the new passenger terminal is bigger, it must be better; and (c) incorrectly assumed that the rooftop helipad was an additional helipad. During cross-examination he accepted that it replaces the perch that previously sat proud of and adjacent to the predecessor single-level passenger terminal and that, to the extent that the old perch was visible in aerial photographs in another marina berth, at the other location it would not be advisable to use it as a helipad because of the boats that surround it. [540] In those circumstances, Mr Humphreys’ conclusion, in paragraph 14, about the evolution of the capacity for helicopter operations, which was premised on cumulative differences between the original basic pontoon ramp and his presumptions about current operations of the Premises, are not of meaningful assistance. [541] Third, Mr Humphreys’ assumptions are not supported by proven facts. Contrary to the assumptions made by Mr Humphreys, the evidence206 satisfies me that: (a) although the new passenger terminal is larger, it does not follow that it results in an increase in operational capacity; (b) the size and presentation of the new passenger terminal reflects an intention to present a more modernised operation and provide increased comfort; (c) the increased size of the passenger terminal has not facilitated a greater number of flights as the constraints on flights is a factor of the limited number of seats in helicopters and the limitations on simultaneous flights; (d) the new passenger terminal serves the same purpose as the original passenger terminal on Lot 5332 and the single-storey passenger terminal that was introduced to the marina berth on Lot 524 in January 1994; and (e) maintenance does not occur at the Premises. [542] As for the former “perch” for a helicopter that was on Lot 524, the Council submits that the Court would be satisfied that it was of a materially different scale to the 206 This includes the evidence of Mr Menzies, the evidence of other witnesses whose evidence was adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, the myriad of photographs and aerial photographs and reasonable inferences available from the facts proven by the direct evidence. -- 116 of 134 -- 117 helipad currently sitting atop the new passenger terminal. The Council did not elaborate on this submission, nor reference any evidence in support of it. [543] I next turn to the evidence of Mr Mewing. The Council says that Mr Mewing considered the town planning consequences of the various improvements that have been made by Gold Coast Leisure Services Pty Ltd to the Premises over the years, including those that the Council alleges constitute the second material change of use and the third material change of use. [544] Mr Mewing identifies ten aspects of the use of the Premises that he says may be relevant to a determination about whether a material increase in the intensity of the use has occurred from the original establishment of the use to now. [545] First, Mr Mewing says that there are a range of physical changes that have occurred to the facility over time, which provide either or both of an increased built form intensity and an ability for increased operational intensity. He says that the more substantive built form changes are: (a) the creation of a hangar in 2010 or 2011, which, according to Mr Mewing: (i) has a greater physical presence than the structures that preceded it; (ii) occupies 265 square metres compared to the 120 square metres occupied by the built form over which the hangar was erected; and (iii) has a greater height than the earlier structures; (b) the addition in 2011 of the Helipad Pontoon with an area of approximately 340 square metres in place of the stored floating pontoons and MV Helitours boat, which Mr Mewing estimates had an area of 165 square metres; (c) the addition in 2017 of the new passenger terminal, which Mr Mewing says: (i) has an increased scale and prominence; and (ii) has a significantly greater gross floor area such that it is a material change of use of itself. [546] Second, Mr Mewing says that the physical changes result in a greater amount of gross floor area. He says that an increase in gross floor area, combined with consideration of the nature of operations within that gross floor area, is one way of reviewing the increased scale or intensity of a use. He estimates that the original structures had a gross floor area of 36 square metres. He says that is substantially less than the gross area of the subsequent structures, which ultimately had a gross floor area of approximately 576 square metres. [547] Based on his review of aerial photography, Mr Mewing provided a table identifying his estimates of gross floor area and use area at various times. His table records as follows: Date Gross Floor Area Use Area 15 July 1991 36m2 1,000m2 11 November 2009 222m2 1,386m2 -- 117 of 134 -- 118 9 November 2011 338m2 1,697m2 17 September 2023 576m2 1,855m2 [548] Third, Mr Mewing says that the physical changes also result in a much more prominent facility within the marina. He says that the new passenger terminal is conspicuous amongst a context of surrounding boats. In his view, the helicopter sitting proudly on the top of the passenger terminal adds to this prominence. According to Mr Mewing, the Premises can be seen from a number of public viewpoints including locations on the Spit, the Broadwater Parklands, the Broadwater, and other locations in Southport. [549] Fourth, Mr Mewing opines that the physical changes have allowed for either or both of a change to the types of activities provided on the Premises site and an increase in the intensity of the activities provided on the Premises. He says that this includes the provision of a cafe that advertises sale to the public together with extra internal floorspace for the helicopter use. [550] Fifth, Mr Mewing says that there has been an increase in either or both of the number of helicopter landing pads and the space to allow for manoeuvring of helicopters. In his opinion, the additional space may allow for more helicopters to be used, and greater efficiency, thereby providing the opportunity for a greater number or frequency of flights. He says that more flights and a greater efficiency of flights, due to more professional practices in the new facilities, has the potential to result in a greater intensity of operations, and greater flight impacts in terms of noise. [551] Sixth, Mr Mewing opines that the helicopters result in greater noise as compared to a use with seaplanes. This is because the seaplanes travelled along the water from the pads to their ultimate take-off point on the Broadwater as compared to the focussed noise source caused by multiple helicopters taking off directly from the pads. [552] Seventh, Mr Mewing says that he expects that the additional helicopters and flights, and the more sophisticated reception operation with greater component parts in terms of office, check in, storage, cafe, and so forth, will result in an increased number of staff. In his view, the increase in helicopters and increase in staff is also an indication of a likely increase in guests. He opines that these increases have consequences in terms of parking. [553] Eighth, Mr Mewing opines that there appears to be some potential for increased operations arising from lighting of the pad at some time, in circumstances where he has seen no indication that there was lighting to the original pad. [554] Ninth, Mr Mewing assumes that fuel storage has been introduced over time. According to Mr Mewing, this is a fundamental shift in the nature of the activities on the Premises as it generates a need for different potential impacts to be considered and managed, including fuel spills into the ecologically sensitive areas of the Broadwater. Mr Mewing also opines that the fuel storage allows for helicopters to be hangered on the pad rather than simply landed with a more permanent base located elsewhere, which he surmises was the original operational approach. -- 118 of 134 -- 119 [555] Tenth, Mr Mewing says that there appear to be other portable floating landing pads form time to time, which he opines provide the potential to further expand the operational capacity of the facility in some form. [556] Having regard to those ten aspects of the use, Mr Mewing says that it appears to him that there is an increase in the scale and intensification of the use and activities over time. He says that there is a planning consequence arising from any potential intensification of a helicopter use in this location. He says that a greater number of flights, guests, staff, and built form has potential for impacts on amenity, ecology, visual outcomes and operational matters, including parking and access. [557] Mr Mewing concludes that that there have been changes over time that indicate a series of material increases in the scale and intensity of the helicopter use, including perceptible physical expansions occurring in 2010 or 2011 and 2017. He says that there are also physical expansions in an ad hoc and progressive way which culminate in a facility and operation that contrasts with that which may have been originally on the Premises in 1991. [558] In Mr Mewing’s view, without ongoing regulation of the facility by way of a town planning approval, many of the operational features of the facility that could have the potential to create impacts, either now or into the future depending on the changing nature of operations, would be left unable to be managed and balanced in the context of the growing Gold Coast area. [559] The Council submits that, considering this evidence from Mr Mewing, it was critical for Gold Coast Leisure Services Pty Ltd and Mr Menzies to adduce evidence about: (a) the types and number of helicopters that have been based at the Premises over the years instead of only giving evidence about helicopters operated by him from a number of locations and for a number of purposes beyond tourism operations; (b) the number of persons employed by Gold Coast Leisure Services Pty Ltd, how the number of employees has changed over the years, and which of the employees worked on the Premises; (c) information about the volumes of Avgas or Avtur used by helicopters from the fuel facility on the Premises; and (d) the numbers of flight movements per day (or flight hours) that operated from the Premises and how that has changed over the years. [560] The Council says that such evidence is critical to counter the otherwise irresistible inference that a marked increase in the scale of the built form resulted in a corresponding increase in business conducted from that enlarged operation. It submits that Mr Menzies evidence is insufficient to demonstrate an existing lawful use right. [561] I am prepared to assume that Mr Mewing’s calculations about the gross floor area and use area are accurate and to accept them. His evidence about the physical changes that have occurred, including by reference to dimensions, are relevant to a consideration of whether there has been a material change of use of the Premises. However, they are not, in isolation, determinative of the issue. -- 119 of 134 -- 120 [562] Whether there is a material change of use is a question of fact and degree that must be determined having regard to all the relevant facts and circumstances. I am cognisant that the issue calls for a determination about whether there is a material increase in the intensity and scale of the use, not just a material increase in the scale of the built form or infrastructure associated with the use. Unsurprisingly, this was accepted by Mr Mewing during cross-examination. [563] With that in mind, I turn to Mr Mewing’s conclusion that there have been changes over time that indicate a series of material increases in the scale and intensity of the helicopter use. That opinion is of little utility for six reasons. [564] First, Mr Mewing does not provide cogent explanations in support of his conclusions. His summary about the “series” of material increases in the scale and intensity of the helicopter use over time, including at the relevant periods in 2010 or 2011 and 2017, is divorced from his preceding analysis. [565] Second, it is apparent that, in assessing whether a material increase in the intensity of the use has occurred, Mr Mewing compared the built form in 1991 to that of the present. Mr Mewing adopted a baseline of 1991. He did so because, on 17 December 1991, the Council wrote a letter saying it was supportive of the use of the hovercraft pad off Marina Mirage for a seaplane passenger terminal. The Council’s support was subject to, amongst other things, the Council receiving written confirmation that the proposed structure is in accordance with the requirements of the relevant authorities having jurisdiction over this area.207 [566] At no point does Mr Mewing conclude that each of the physical expansions in 2010 or 2011 and 2017 separately constituted a material change in the scale and intensity of the use of the premises. [567] Third, although Mr Mewing accepted that the assessment necessarily called for consideration of the activity conducted on the Premises, not just the built form or infrastructure, his conclusions were founded entirely on his observations about the extent of built form. This is because he did not have sufficient information to do anything otherwise. Notwithstanding that knowledge, Mr Mewing fails to identify any basis to suggest that the subject use is necessarily defined by built form such that his conclusions about material intensification could be regarded as reliable. [568] Fourth, much of the evidence of Mr Mewing involves him identifying the potential for intensification and how changes to the built form and infrastructure on the Premises result in increased capacity for activity associated with the operational aspects of the use of the Premises. I am not persuaded that Mr Mewing is appropriately qualified to express those opinions. The Council did not demonstrate that Mr Mewing had any level of expertise about helicopter operations such as would enable him to draw conclusions about the nexus between built form and operational capacity. [569] Fifth, Mr Mewing’s opinions about materiality are founded on the potential for impacts on matters that are contemporary town planning concerns. It is upon those potential impacts from the potential intensification of the use that Mr Mewing bases 207 This letter supports that the Council was not the relevant authority with jurisdiction over the Broadwater. -- 120 of 134 -- 121 his opinion as to materiality of the change to the Premises over time. Mr Mewing does not address the question of materiality separately with respect to each of the alleged periods of material change of use. [570] Mr Mewing’s opinion about materiality lacks any evidential foundation other than a comparison of built form. Mr Mewing merely asserts that there may be a planning consequence of changes to the built form. He provides no analysis at any level of detail beyond the broad identification of matters as being relevant for contemporary town planning purposes. There is no evidence of the realisation of the potential impacts on any of the identified matters from appropriately qualified experts (for example in acoustics, visual amenity or traffic) or otherwise. [571] The highest Mr Mewing’s evidence reaches is that the change in built form permits potential intensification of the use that has the potential for impacts of a kind that are relevant features of contemporary town planning considerations. The Council has not persuaded me, to the requisite standard, that this is a sound basis upon which to assess materiality. [572] Sixth, in several respects Mr Mewing’s evidence is founded on assumptions that are not established by proven facts. Contrary to the assumptions made by Mr Mewing, the evidence208 satisfies me that: (a) although the hangar was established in 2010 or 2011, prior to its construction helicopters were stored on that part of the Premises and, as such, the erection of a cover did not increase the use area; (b) the Helipad Pontoon did not increase operational capacity, rather it replaced floating pontoons and the MV Helitours boat that provided that same capacity; (c) the two-storey passenger terminal structure with a helipad on the roof did not increase operational capacity. Rather, it replaced the existing single-storey passenger terminal and adjacent perch, albeit with a modern form and structure that provides greater comfort to the users of the facility; (d) fuel storage was present from 1988; and (e) lighting on the pad occurred in 1993, and there is no evidence of a change to lighting or the timing of flights since 30 March 1998. [573] In the circumstances, the Council has not persuaded me that it was critical for Gold Coast Leisure Services Pty Ltd and Mr Menzies to adduce quantitative evidence about the use of the Premises over the last three decades to counter an otherwise irresistible inference that a marked increase in the scale of the built form resulted in a corresponding increase in business conducted from that enlarged operation. The Council has not persuaded me, to the requisite standard, that such an inference is reasonable, let alone irresistible. I do not accept the Council’s submission that the potential for a greater intensity of helicopter operations is the natural and ordinary consequence of the increase in the built form on the Premises. The evidence of Mr Menzies persuades me to the contrary. 208 This includes the evidence of Mr Menzies, the evidence of other witnesses whose evidence was adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, the myriad of photographs and aerial photographs and reasonable inferences available from the facts proven by the direct evidence. -- 121 of 134 -- 122 [574] What then do I make of the Council’s evidence about the level of activity associated with the use? [575] The Council submits that the establishment of the new passenger terminal, and the capacity for increased operations associated with that facility, is consistent with the evidence of Ms Donovan, a local resident and President of the Main Beach Association. [576] Ms Donovan says that she and her husband have owned a unit in Main Beach since 1989 and that she has been a resident of the area for a long time. She claims that she recalls that in around 2018 there were construction works at the Premises to construct a new building that includes a rooftop helipad. According to Ms Donovan, after that building was constructed, the number and frequency of helicopter flights from the Premises increased dramatically. [577] Ms Donovan says that during parts of December 2022 and January 2023 she spent days watching Helitours’ daily flights. She says that the most Helitours flights that she saw in one day during that period was about 35 flights on 31 December 2022. She says that she observed four Helitours helicopters flying on that day. [578] Ms Donovan says that the frequency of the flights that she observed on 31 December 2022 was about half of what she recalls was the daily frequency of flights in 2018, 2019 and early 2020. She says that during those years, flights occurred seven days a week and between 10 am and 4 pm, with four or five helicopters operating concurrently. She estimates that there were several hundred, and likely more than 500, flights per week during that time. Ms Donovan says that, as a conservative estimate, she observed a five-fold increase in the number of daily flights from Helitours from 2017 until the beginning of Covid-19 pandemic in March 2020. [579] According to the Council, this evidence from Ms Donovan is supported by Mr Menzies acceptance that there was a marked increase in flight movements at the same time but estimated the increase to be in the order of 50 to 100 per cent. [580] The Council submits that this evidence from Ms Donovan and Mr Menzies would, by itself and in conjunction with the introduction of the new passenger terminal, found a conclusion that there was a material increase in both the scale and the intensity of the use of the Premises. [581] Ms Donovan’s evidence does not advance the Council’s case to any meaningful degree. It simply confirms a matter that is not in dispute, namely that there was a Chinese tourism boom on the Gold Coast from around 2017 through to the beginning of the Covid-19 pandemic. As Mr Menzies explains, this was one of several periods that collectively represent the booms and busts (or ebbs and flows) of business over the last 30 plus years. [582] To the extent that Ms Donovan seeks to establish a connection between the increase in helicopter flights and the installation of the floating two-storey terminal in late 2017 or early 2018, I am not persuaded to accept her evidence. Her evidence is not admissible as opinion evidence. It amounts to no more than speculation by her given, unlike Mr Menzies, she is not privy to information that might enable her to draw an informed inference about the basis for the increase. -- 122 of 134 -- 123 [583] I am not otherwise persuaded to accept the evidence of Ms Donovan on which the Council relies. I have serious reservations about Ms Donovan’s credibility and reliability as a witness. There are many matters that cause me concern. They include the following five reasons. [584] First, Ms Donovan says that in 2018 there were construction works at the Premises to construct a new building that includes a rooftop helipad. This is contradicted by the evidence of Mr Menzies and photographic evidence that demonstrates that part of the new passenger terminal was constructed on a site next to Seaworld, lifted on a pontoon and pushed by a boat down the Broadwater, while the balance of the structure, including the pontoon, was constructed in a grassed area next to Mariner’s Cove. [585] Second, I have serious reservations about Ms Donovan’s opportunity to observe matters that she claims to have witnessed, such as the racial profile and identity of individuals visiting the Premises. [586] Third, it was evident from Ms Donovan’s oral testimony that she has a clear animus towards Mr Menzies’ business, yet in her affidavits she portrayed herself as objective observer. She has repeatedly expressed views about the legality, from a town planning perspective, of the use of the Premises by Gold Coast Leisure Services Pty Ltd. [587] Fourth, to the extent that Ms Donovan attests to noise impacts, I am not persuaded that the impacts of which she speaks are based on personal experience given the extent to which she expressed difficulty hearing while giving her evidence. She persistently indicated that she had difficulty hearing the questions asked of her, even at times where the volume of the speaker was deliberately elevated to assist her and when there were no distracting noises within the courtroom to which the difficulty might otherwise be attributed. [588] Fifth, and in any event, Ms Donovan’s survey evidence is entirely unscientific. She ultimately gave evidence of a single day of observations among ten. She chose only to report the busiest of those days and provided no data at all on the other days. Ultimately, her evidence about her observations of flights on New Years’ Eve takes matters in issue in this case essentially nowhere. [589] For the reasons provided above, even if I were to assume that the Council had demonstrated that between August 2017 and November 2018, Gold Coast Leisure Services Pty Ltd: (a) constructed the two-storey passenger terminal in Lot 524 and used it for the arrival and departure of helicopters, the establishment of a café and a passenger terminal; and (b) operated six helicopters from the Premises, the Council has not demonstrated to the requisite standard that there was a change in operations facilitated by those changes, let alone a material one. [590] The Council has not satisfied me to the requisite standard that there was an increase in the scale or intensity of the use of the Premises between August 2017 and November 2018. Having regard to all aspects of the use of the Premises, the Council -- 123 of 134 -- 124 has not persuaded me that the increase in the extent of the built form equates to, or otherwise demonstrates, an increase in the scale or intensity of the use. [591] In paragraphs [212] to [245] above I set out my findings about the nature and extent of the use up to 1994. With respect to the use between 1994 and November 2018, I have had the benefit of the evidence of Mr Menzies, the evidence of other witnesses adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies, and a myriad of photographs and aerial photographs. Having regard to all that evidence, and the reasonable inferences that can be drawn from a consideration of all that evidence, I am comfortably satisfied that between 1994 and November 2018, there was no change to the use of the Premises, let alone a material one. Was the third alleged material change of use made assessable development under City Plan 2016? [592] The Council alleges that, for the purposes of the Planning Act 2016, the third alleged material change of use is assessable development under City Plan 2016. [593] Considering my findings above, it is unnecessary for me to determine that allegation to dispose of the Council’s case that Gold Coast Leisure Services Pty Ltd carried out assessable development without an effective development permit and, as such, breached s 163 of the Planning Act 2016. That said, whether a material change of use of the Premises was assessable under City Plan 2016 has potential relevance to the broader question of lawfulness of the use. As such, I deal with it below. [594] This allegation calls for consideration of the following questions for the period between August 2017 and November 2018: 1. What is assessable development under the Planning Act 2016? 2. What is the jurisdiction of a local government for the Planning Act 2016? 3. How was the Council’s local government area defined? 4. Are the premises located within the Council’s local government area as shown on area map LGB30 Edition 2? 5. Did City Plan 2016 make a material change of use of the Premises assessable? What is assessable development under the Planning Act 2016? [595] The Council contends that the third alleged material change of use of the Premises between August 2017 and November 2018 constitutes “assessable development” for the purposes of the Planning Act 2016. [596] A categorising instrument may categorise development.209 [597] A categorising instrument is a regulation or local categorising instrument that: (a) categorises development as prohibited, assessable or accepted development; (b) specifies the categories of assessment required for different types of assessable development; and 209 Planning Act 2016 s 44. -- 124 of 134 -- 125 (c) sets out the matters, known as assessment benchmarks, that an assessment manager must assess assessable development against, or that does any of those things.210 [598] Relevantly, a local categorising instrument includes a planning scheme.211 The Council does not allege that any other categorising instrument, other than City Plan 2016, categorises the use as assessable development in this case. [599] A planning scheme is a planning instrument that sets out integrated State, regional and local planning and development assessment policies for all or part of a local government area.212 A planning instrument includes a planning scheme made by a local government which sets out policies for planning or development assessment.213 [600] City Plan 2016 came into effect on 2 February 2016. Pursuant to s 286 of the Planning Act 2016, City Plan 2016 continued to have effect after the repeal of the Sustainable Planning Act 2009 and is taken to be a planning scheme for the Council’s local government area made under the Planning Act 2016. [601] As such, it is necessary to consider the jurisdiction of a local government for the Planning Act 2016. What is the jurisdiction of a local government for the Planning Act 2016? [602] As I have already mentioned, all powers of local government derive from the State. The legislative mechanism by which the State conferred powers on local governments at the relevant time was the Sustainable Planning Act 2009 (with respect to the preparation of City Plan 2016), the Planning Act 2016, and the Local Government Act 2009. [603] The Planning Act 2016 does not define “local government” or “local government area”. The Acts Interpretation Act 1954 defines: (a) “local government” to mean a local government under the Local Government Act 2009; and (b) “local government area” to mean a local government area under the Local Government Act 2009. [604] It follows that the planning scheme made by a local government under the Local Government Act 2009 can categorise development as assessable development only for its local government area under the Local Government Act 2009. [605] Under the Local Government Act 2009, a local government’s local government area is that part of the State described by regulation to be a local government area.214 As such, the power to define the boundaries of a local government area resides with the Governor in Council. 210 Planning Act 2016 s 43. 211 Planning Act 2016 s 43(3). 212 Planning Act 2016 sch 2 definition and s 4. See also Integrated Planning Act 1997 s 2.1.1, 2.1.2 and sch 10; Sustainable Planning Act 2009 ss 79, 82 and sch 3. 213 Planning Act 2016 s 8 and sch 2 definition. 214 Local Government Act 1993 s 16. -- 125 of 134 -- 126 [606] The concept of a planning scheme under the Planning Act 2016 is expressly tethered to “local government areas”.215 Under the Planning Act 2016, the jurisdictional reach of a local government’s power is geographically confined by reference to its local government area except in very limited circumstances not applicable here.216 As such, if the Premises does not fall within the Council’s local government area, then there is nothing for the Council to regulate under City Plan 2016. How was the Council’s local government area defined? [607] A central issue in this case is whether the Premises are within the Council’s local government area between August 2017 and November 2018. [608] At the relevant time, the Local Government Act 2009 defined the concept of a “local government area” and provided that the boundaries of a local government area may be described by regulation.217 As such, the power to define the boundaries of a local government area resides with the Governor in Council. [609] Subject to two exceptions, a local government may only exercise its powers within its local government area.218 There is no suggestion that either of those exceptions are relevant in this proceeding. [610] At the relevant time,219 the boundaries of local government areas were defined in the Local Government Regulation 2012 (Qld).220 Section 6 of the Local Government Regulation 2012 relevantly provides: (a) the boundaries of each local government area, and any divisions of the area, are shown on its area map mentioned in sch 1, column 3; (b) to remove any doubt, it is declared that any part of a watercourse, including the land below the high-water mark of the watercourse, that is within the boundary of a local government area is part of the local government area; and (c) a watercourse includes a canal, lake or river. 215 Planning Act 2016 s 4. 216 Local Government Act 2009 ss 8 and 9. 217 Local Government Act 2009 s 8. 218 Local Government Act 2009 s 9. 219 The Local Government Regulation 2012 commenced on 14 December 2012. 220 Section 16 of the Local Government Act 1993 (as passed) provided that a regulation may declare a part of the State to be a local government area. The Local Government Regulation 1994 (Qld) did not prescribe the local government area. However, pursuant to ss 753 and 757 of the Local Government Act 1993 (as passed), on the commencement day (being 26 March 1994), an area under the repealed Local Government Act 1936 as in force immediately before it was repealed (on 26 March 1994) became a local government area with the same name and class. See then the Local Government (Local Government Areas) Regulation 1995 (Qld) made under s 760 of the Local Government Act 1993 (as passed), which regulation commenced on 24 March 1995. It was amended on 20 September 1996. The amendments renamed the regulation as the Local Government (Areas) Regulation 1995 (Qld). On 1 September 2005, the Local Government (Areas) Regulation 2005 (Qld) commenced, repealing the Local Government (Areas) Regulation 1995. On 15 March 2008, the Local Government (Areas) Regulation 2008 (Qld) commenced repealing the Local Government (Areas) Regulation 2005. -- 126 of 134 -- 127 [611] Between 27 January 2012 and 27 March 2020, the Council’s local government area was defined by reference to area map “LGB30 Edition 2”.221 This was the map that defined the Council’s local government area in the relevant period. Are the premises located within the Council’s local government area as shown on area maps LGB30 Edition 2? [612] Area map LGB30 Edition 2 includes a red line that encloses a particular area. It is uncontroversial that the Premises are located within the red line on the map. [613] Area map LGB30 Edition 2 contains a notation that states: “THE LOCAL GOVERNMENT AREA COMPRISES THE MAINLAND AND ALL ISLANDS ABOVE THE RESPECTIVE SEASHORES WITHIN THE ENCOMPASSED AREA” (emphasis added) [614] In addition, at various locations on area map LGB30 Edition 2, proximate to the red line, the maps contain notations in red such as “by the river” and “by the E bdy of Lot”. There is a red arrow between the red font and various points of the red line. [615] Relevantly, area map LGB30 Edition 2 identifies that it is: “[p]roduced to delineate the boundaries of the Local Government Area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act”. [616] The Council’s primary contention is that the Premises is within its local government area because there is reference in the 2016 Planning Scheme to the Broadwater.222 It also submits that the location of the Premises within the red line is sufficient to establish that fact.223 [617] I do not accept the Council’s submission for four reasons. [618] First, I do not accept the legitimacy of the Council’s approach. It misses the point. The Council cannot create its own jurisdiction. It can only operate within the powers given to it by the State. Although each of the Sustainable Planning Act 2009 and the Planning Act 2016 permitted a local government to adopt a planning scheme to regulate development, they only permitted this to occur in relation to the local government’s local government area. As such, it is necessary to consider how the Council’s local government area is defined. This requires consideration of the Local Government Act 2009, the Local Government (Operations) Regulation 2010, the Local Government Regulation 2012 and the relevant area map, not City Plan 2016. 221 Local Government (Operations) Regulation 2010 (Qld) Reprint No. 2C. This reprint incorporates the amendments made by Local Government (Operations) Amendment Regulation (No. 1) 2012 Subordinate Legislation 2012 No. 9, which commenced on 27 January 2012. Map LBG 30 edition 2 replaced LGB 30 edition 1 on that date. The Local Government (Operations) Regulation 2010 was repealed on 14 December 2012 and replaced by Local Government Regulation 2012 (Qld). 222 Applicant’s Outline of Submissions dated 18 December 2023 pp 28-9 [67] – [68]. 223 Applicant’s Response to the Respondent’s Written Submissions dated 5 February 2024. -- 127 of 134 -- 128 [619] Second, as is indicated on area map LGB30 Edition 2, the area map was produced to delineate the boundaries of the local government area under the provisions of the Local Government Act 2009 and the Survey and Mapping Infrastructure Act 2003. That legislation provides important context that assists in construing the map. My observations in paragraphs [472] to [476] above apply with equal force here. [620] Like s 7 of the Local Government (Operations) Regulation 2010, s 6 of the Local Government Regulation 2012 states: “(1) The boundaries of each local government area, and any divisions of the area, are shown on its area map mentioned in schedule 1, column 3. (2) To remove any doubt, it is declared that any part of a watercourse, including the land below the high-water mark of the watercourse, that is within the boundary of a local government area is part of the local government area. (3) A watercourse includes a canal, lake or river.” [621] Some of the methods employed in the production of area map LGB30 Edition 2 are described in paragraphs [612] to [614] above. [622] To construe area map LGB30 Edition 2 with reference to both the delineation of the local area boundary and the notation is entirely consistent with the Local Government Act 2009, the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012. The notation provides relevant information for defining the boundary of the Council’s local government area. [623] Third, the Council’s approach is contrary to orthodox principles of statutory construction. My observations in paragraph [477] above are equally apposite for area map LGB30 Edition 2, save that: (a) the authorising laws for area map LGB30 Edition 2 are the Local Government Act 2009, the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012; (b) the authorising laws do not contain a definition of seashore, other than in s 26 of the Local Government (Operations) Regulation 2010 and s 62 of the Local Government Regulation 2012, which, for the purpose of those sections, define “seashore” as: “(a) the foreshore; or (b) State land that— (i) is above high-water mark at ordinary spring tides; and (ii) is ordinarily covered by sand or shingle; and (iii) is not subject to a licence, permit or other authority granted by the State under an Act.” (c) “foreshore” is defined in the dictionary in sch 6 of the Local Government (Operations) Regulation 2010 and the dictionary in sch 8 of the Local -- 128 of 134 -- 129 Government Regulation 2012 to mean “land between the high-water mark and low-water mark during ordinary spring tides”; (d) “high-water mark” is defined in s 99 of the Local Government Act 2009 to mean “the ordinary high-water mark at spring tides”; (e) the definition of seashore in the Local Government (Operations) Regulation 2010 and the Local Government Regulation 2012 accords with the ordinary meaning of the word; and (f) for part of the period in issue for the third alleged material change of use, the State, by regulation, chose to define the local government area by reference to area map LGB30 Edition 2. The State adopted a combination of the methods permitted under s 57 of the Survey and Mapping Infrastructure Act 2003 to define the Council’s local government area. They included the use of annotations describing natural features, including the notation limiting the local government area to “the mainland and all islands about the respective seashores”. [624] The terms “seashore”, “foreshore” and “high-water mark” are necessarily referential to areas of tidal influence; as opposed to areas that may not be such as lakes, and parts of canals and rivers. It is uncontroversial that the Premises are below the high-water mark. [625] Having regard to those matters, the Council has not satisfied me, to the requisite standard, that there is a sound basis to re-write area map LGB30 Edition 2 by deleting the text. To do so would not be to correct a grammatical or drafting error. It would fundamentally alter the meaning of the maps and, in doing so, confer additional jurisdiction on the Council. [626] As such, the Council has not persuaded me, to the requisite standard, that the local government area includes land that is not “above the seashore”. [627] Fourth, the Council has not persuaded me that the Premises is within the Council’s local government area by operation of ss 7(2) and (3) of the Local Government (Operations) Regulation 2010 and ss 6(2) and (3) of the Local Government Regulation 2012. [628] Further, and in any event, whether the Broadwater, and the Premises, is part of a watercourse is a question of fact. My observations in paragraphs [482] to [484] above are equally apposite here. [629] For the reasons provided above, the Council has not persuaded me, to the requisite standard, that: (a) the Premises was in the local government area of the Council for the period within which the Council alleges the third material change of use was carried out; and (b) City Plan 2016 applied to the Premises at the times that the local government area was defined by area map LGB30 Edition 2. -- 129 of 134 -- 130 Did City Plan 2016 make a material change of use of the Premises assessable? [630] As I have already found, the Council has not discharged its onus to demonstrate that the Premises was, at all relevant times, in the Council’s local government area for City Plan 2016. As such, it is unnecessary for me to address whether the third alleged material change of use was made assessable development under City Plan 2016. Was the use of the Premises a lawful use for s 165 of the Planning Act 2016? [631] The Council alleges that the use of the Premises was not a lawful use for s 165 of the Planning Act 2016. Fundamental to the Council’s case are its allegations that: (a) between August and December 1998, Gold Coast Leisure Services Pty Ltd started assessable development, being the first alleged material change of use, without a development permit; (b) between January 2010 and November 2011, Gold Coast Leisure Services Pty Ltd carried out assessable development, being the second alleged material change of use, without an effective development permit; and (c) between August 2017 and November 2018, Gold Coast Leisure Services Pty Ltd carried out assessable development, being the third alleged material change of use, without an effective development permit. [632] For reasons provided above, the Council has not discharged its onus with respect to any of those allegations. [633] Further, and in any event, the evidence adduced by Gold Coast Leisure Services Pty Ltd comfortably persuades me that, at all relevant times, the use of the Premises was a lawful use. In that respect, I rely on my findings above and the following reasons. [634] There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between November 2011 and 1 February 2016. [635] On 2 February 2016, City Plan 2016 took effect. [636] Having regard to my findings above, I am satisfied that immediately before City Plan 2016 took effect: (a) the relevant planning unit was the whole of the Premises; and (b) there was an existing lawful use of the whole of the Premises for Aircraft Services,224 which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to 1 February 2016. [637] As such, when City Plan 2016 took effect, the lawful use of the Premises was afforded protection under s 682 of the Sustainable Planning Act 1997. [638] There is no relevant allegation that the use of the Premises for Aircraft Services was abandoned or materially changed between 2 February 2016 and 3 July 2017. 224 The lounge facilities in the new passenger terminal includes a café. It is unclear whether there was a café in its predecessor. That is of no consequence as the café is not a separate use. It is part of the Aircraft Services use. -- 130 of 134 -- 131 [639] On 3 July 2017, the Sustainable Planning Act 2009 was repealed and replaced by the Planning Act 2016. [640] From 3 July 2017, the protection that had previously been afforded under ss 681 and 682 was continued by operation of s 290 of the Planning Act 2016 (which I have extracted at paragraph [168] above). [641] Having regard to my findings above, I am satisfied that, immediately before the Planning Act 2016 commenced: (a) the relevant planning unit was the whole of the Premises; and (b) there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to 2 July 2017. [642] That existing lawful use continued to be protected with respect to each change to City Plan 2016 made after 3 July 2017 by operation of s 260 of the Planning Act 2016. [643] I am also satisfied that there was no change to the intensity or scale of the use, as distinct to the built form or infrastructure utilised as part of the use, between August 2017 and November 2018. Nothing in the evidence causes me to doubt that the existing lawful use has continued, without abandonment, until now. [644] As such, I am comfortably satisfied that the use of the Premises was a lawful use for s 165 of the Planning Act 2016. Conclusion regarding the Council’s allegations about the third alleged material change of use [645] Overall in relation to the third key issue, the Council has not satisfied me, to the requisite standard, that Gold Coast Leisure Services Pty Ltd: (a) carried out assessable development without an effective development permit and, as such, breached s 163 of the Planning Act 2016; or (b) used the Premises in circumstances where the use was not a lawful use and, as such, breached s 165 of the Planning Act 2016.225 Key issue 4: Is the current use of the Premises a lawful use? [646] The Council’s case with respect to unlawful use of the Premises is particularised in the grounds at paragraph 23 of the Originating Application, which state: “23. In the circumstances of: (a) the First Helicopter MCU, and the failure to obtain a development approval for that development; (b) the Second Helicopter MCU, and the failure to obtain a development approval for that development;and 225 In forming my conclusions on this issue, I am mindful that the onus was on Gold Coast Leisure Services Pty Ltd and Mr Menzies to establish existing lawful use rights. -- 131 of 134 -- 132 (c) the Third Helicopter MCU, and the failure to obtain a development approval for that development; (d) the Helicopter Use continuing on the Premises; or any of those circumstances, the First Respondent has: (e) committed a development offence under section 165 of the Planning Act; and (f) will continue to commit that development offence unless enforcement orders are made.” [647] Having regard to my findings above, I am satisfied at all relevant times from January 1994 to now: (a) the relevant planning unit was the whole of the Premises; (b) there was an existing lawful use of the whole of the Premises for Aircraft Services, which fluctuated in its scale and intensity from time to time, but which had a generally consistent trend from 1988 to now; and (c) the use of the Premises has never been abandoned, nor has there been a material change to the use. [648] I am comfortably persuaded that the use of the Premises is a lawful use. Key issue 5: Do the discretionary considerations support, or tell against, the grant of the relief sought? [649] In light of my findings above, it is not necessary to dwell on discretionary considerations. It is sufficient to make the following observations. [650] First, I accept that the relevant principles are those outlined in the written outlines and submissions provided by the Council and Gold Coast Leisure Services Pty Ltd and Mr Menzies. [651] Second, the discretionary considerations in paragraphs [34] to [37] above tell against the grant of relief. [652] Third, the evidence adduced by Gold Coast Leisure Services Pty Ltd and Mr Menzies persuade me of their good character and (corporate) citizenship. They have with strong ties to the community and, over the years, have regularly provided public and community services, without regulatory or safety incident. To the benefit of the community, these include police services, search and rescue, flood and fire emergency work, the rescue of sick and injured animals and the promotion of tourism on the Gold Coast. [653] Fourth, even though the use of the Premises has persisted for over three decades, no complaint was made about it until March 2019. The organized campaign of complaints, encouraged by Ms Donovan, appears to have spurred the Council to action. Even then, the Council did little to properly investigate the relevant issues. Its conduct was also dilatory. I am not persuaded that the explanation provided by the Council for the decades long delay in investigating this matter is adequate in this case given its level of awareness about the use. There is also no adequate explanation -- 132 of 134 -- 133 for the delay between the Council’s decision to give a show cause notice in 2020 and its commencement of this proceeding in 2023. [654] Fifth, although the Council catastrophises about a lack of regulation of the operation: (a) there is no evidence of any problem with the operation; and (b) it is wrong to suggest that the activities on the Premises are unregulated as: (i) the fuel component is subject to the requirements of an environmental authority. (ii) Gold Coast Leisure Services Pty Ltd must comply with the commands under the Environmental Protection Act 1994 (Qld) not to cause environmental harm or environmental nuisance (including that caused by noise or light pollution); (iii) the pilots and aircraft are subject to regulation by the Civil Aviation Safety Authority; and (iv) safety on the Premises is governed by the Work Health and Safety Act 2011 (Qld), which places stringent obligations on Gold Coast Leisure Services Pty Ltd to manage risk for its workers and anyone impacted by the operations of the business. [655] Sixth, the evidence demonstrates that Gold Coast Leisure Services Pty Ltd and Mr Menzies take care in determining the flight paths to avoid built up residential areas. [656] In the circumstances, I am comfortably persuaded that this is one of those rare cases where the discretionary factors powerfully compel the conclusion that, even if the Council had demonstrated that the use of the Premises was unlawful, the relief sought should not be granted. Should Gold Coast Leisure Services Pty Ltd and Mr Menzies pay the Council’s costs? [657] In paragraph 4 of the prayer for relief in the Originating Application, the Council seeks the following relief: “4. orders pursuant to section 61(1) of the P&E Court Act that the Respondents pay the Applicant’s costs of and incidental to the application, including costs to investigate and gather evidence.” [658] The grounds of the Originating Application do not further particularise the Council’s application for costs. The Council did not address its application for costs in its submissions. [659] It seems reasonable to infer that the Council’s application for costs is founded on an assumption that it will enjoy a level of success. It has not. [660] Nevertheless, I will hear from the Council about this aspect of its application. -- 133 of 134 -- 134 [661] If the Council persists in its application for costs, it is to file and serve any material that it seeks to rely on and written submissions not exceeding 10 pages in length with respect to its application for costs, by no later than 4 pm on 4 April 2024. Conclusion [662] The Council has not discharged its onus with respect to the relief it seeks. In the circumstances, its application should be dismissed. [663] The matter will be listed for further hearing at 10 am on 10 April 2024 for the purpose of: (a) hearing any application for costs that the Council persists with; and otherwise, (b) hearing from the parties about any consequential relief or other matters arising. -- 134 of 134 --