Council of the Shire of Beaudesert v Trustees of the De La Salle Brothers [1992] QPEC 23

) ) ( ) IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE Application 1 of 1992 BETWEEN: AND: BETWEEN AND: BETWEEN: AND: AND: COUNCIL OF THE SHIRE OF BEAUDESERT Applicant TRUSTEES OF THE DE LA SALLE BROTHERS Respondent Application 3 of 1992 TRUSTEES OF THE DE LA SALLE BROTHERS COLIN WEBSTER, JENNY WEBSTER, GORDON LEAR, JOHN SWANN, JOHN FORD, CAROL COOK, GARTH CARY, LUCY KENSLEY AND EDNA SPENCE Applicant Respondents Application 4 of 1992 COLIN WEBSTER, JENNY WEBSTER, GORDON LEAR, JOHN SWANN, JOHN FORD, CAROLE COOK, GARTH CAREY, LUCY KEMSLEY AND EDNA SPENCE COUNCIL OF THE SHIRE OF BEAUDESERT THE TRUSTEES OF THE DE LA SALLE BROTHERS Applicants Respondent Respondent -- 1 of 14 -- 2 REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. -~1lZ.MARCH, 1992 This hearing involves three Applications: Application 1 of 1992, Application 3 of 1992 and Application 4 of 1992. In Application 1 of 1992 the Council of the Shire of Beaudesert ("the Council") is the Applicant and the Trustees of the De La Salle Brothers are the Respondent. The Applicant seeks a Declaration that the use of the land described as Lot 2 on Registered Plan 52057 Parish of Tabragalba ("Lot 2") and Lot 11 on W311465 Parish of Tabragalba, situated at Biddaddaba Creek Road, Biddaddaba ("Lot 11") and the use of buildings erected or proposed to be erected thereon as described in an application dated 9 September 1991 and as described in a letter and attached schedule dated 9 September 1991 from Jack Lacey & Associates ("the proposed use") is not a use of that land and buildings for the purpose of an institution within the meaning of the definition of "institution" in the Town Planning Scheme for the Respondent gazetted on 9 February 1985 ("The Scheme"). It seeks a further Declaration that the proposed use is not a use of the land and buildings for: (a) all or any of the purposes of "agriculture", "animal husbandry", "caretakers' residence", "commercial stables", "domestic uses", "dwelling house", "forestry", "host farm" or "rural use" within the meaning of the definition of those terms in The Scheme; {b) the purposes permitted by the Town Planning Permit No. 762 issued by the Applicant on the 5th September 1990. Appendix I to Town Planning Permit 762 dated 5 September 1990, which relates to Lot 11, is in the following terms: -- 2 of 14 -- 3 ''(1) The erection of buildings and structures for the purposes of a Riding School and Equestrian Centre with associated mobile accommodation on land described as Lot 11 W 311465, Parish of Tabragalba. (2) The use of the abovementioned land, buildings and structures for the purpose of a Riding School and Equestrian Centre with associated mobile accommodation, following the issue of a Certificate of Completion by the Shire Planner stating that the Applicant has satisfactorily implemented all of the Council's conditions as detailed in the attached schedule." Appendix II to the Permit listed a Conditions (a) to (n). Condition (k) states that "Accommodation is to be provided only in association with the Stud, Riding School and Equestrian activities." In the alternative, the Applicant seeks a Declaration that the proposed use is a use of land and buildings for a purpose for which the consent of the Applicant is required under the provisions of The Scheme. In Application 3 of 1992 the Applicant i~ the Trustees of the De La Salle Brothers, The Council is the Respondent and Colin Webster, Jenny Webster, Gordon Lear, John Swann,John Ford, Carol Cook, Garth Cary, Lucy Kensley and Edna Spence are Respondents. It seeks a Declaration that the proposed use is not a use for the purpose of an "institution" within the meaning of that definition in The Scheme, and is in similar terms to the Declaration sought by the Council in Application 1 of 1992. It further seeks a Declaration that the proposed use is a use for the purpose of an "organisation and society" for which the consent of the Council is required under The Scheme. -- 3 of 14 -- 4 In Application 4 of 1992 the Applicants are Colin Webster · and other individuals, being the same parties who are Respondents in Application 3 of 1992. The Council is the First Respondent, the Trustees of the De La Salle Brothers is the Second Respondent. It seeks a Declaration that the proposed use is an institution within the meaning of the definition of "institution" in The Scheme. Having regard to conflicting views it had received, on 20 December 1991 the Council resolved to seek a determination from this Court. The questions for determination may be summarized as follows: 1. Is the proposed use a use for the purpose of an "institution" as defined in The Scheme? 2. Is the proposed use a use for the purpose of an "organisation and society" ( thus requiring the consent of the Council)? 3. Is the proposed use a use for some other purpose, and if so does it require the consent of the Council? The relevant definitions in The Scheme are as follows: "institution": "Any premises used wholly or principally for - (a) a home or other establishment for mentally or physically handicapped persons; (b) a mental hospital; (c) a penal or reformatory establishment; or -- 4 of 14 -- ) ) ) ) (d) an orphanage," "Organisation and society": 5 "Any premises used or intended to be used for any activity which is- (a) included in Appendix VII hereto; or (b) in the opinion of the Council, consistent with the activities so listed:- APPENDIX VII Club - social and general (including senior citizens club) Drug addiction counselling and rehabilitation Family planning Friendly society Information service Mission (church) Organisation - animal welfare Organisation - benevolent and/or welfare Organisation - business and professional Organisation - church and religious Organisation - civic Organisation - civil rights Organisation - conservation Organisation - cultural, educational and historical Organisation - ex-service and service Organisation - family welfare Organisation - handicapped services Organisation - international relations Organisation - local government Organisation - lodge - fraternal Organisation - migrant Organisation - miscellaneous Organisation - political Organisation - primary production and rural Organisation - women Organisation - youth Society - general Union - general Union - industrial Youth centre (office)." Drawing 910910-A 1 which accompanied the Application is entitled "Site of Youth Training Facility at Biddaddaba." rt shows the physical location of Lot 2, containing 123.834 hectares, and Lot 11, containing 181 .967 hectares. "Boys Town Lodge" is located on Lot 2 and "Goodspell Park" -- 5 of 14 -- 6 ("Goodspell") is located on Lot 11. Goodspell has been declared an institution pursuant to Section 69 of the Corrective Services Act (1988), and will be gazetted as a Community Corrections Centre pursuant to section 12 of that Act. Section 69 ( 1 ) of Corrective Services Act ( 1988) is as follows: "69. Transfer of prisoners. (1) In this section "institution" means any of the following:- (a) a prison; (b} a community corrections centre; (c) a hospital (including a security patients' hospital within the meaning of the Mental Health Services Act 19740-1978); (d) a place for medical examination or treatment; (e) a place for psychological or psychiatric examination or treatment; ( f) a place for the examination or treatment of alcoholics or drug dependent persons; (g) a place prescribed by rule or a place belonging to a class of place prescribed by rule." Sub-section ( 2) refers to the Commission ordering "the transfer of a prisoner from one institution to another." I accept the submission that the declaration pursuant to section 69 of the Corrective Services Act (1988) does not of itself determine whether Goodspell is an "institution" within that definition in The Scheme. A perusal of sub-section 69 (1) makes it clear that a wide range of places may be so declared, some of which are obviously not penal or reformatory establishments; for example, II (d) a place for medical examination or treatment." The contract ("the contract") between the Queensland Corrective Services Commission ("the Commission" and Boystown) provides that prisoners may be released to Goodspell on leave of absence pursuant to Section 61 of the Corrective Services Act -- 6 of 14 -- ) ) 7 ( 1988), as well as pursuant to Section 69. Brother Paul explained in his oral evidence that these prisoners are no different than the prisoners who may be dealt with under Section 69 - the relevant difference as he saw it is that leave of absence requires a formal grant of leave, which may take up to 3 months, and thus it may not be practicable for prisoners to come to Goodspell by this means. The purposes set out in sub- section 61 (1) for which leave of absence may be granted are: II (a) ( b) (c) ( d) (e) (f) (g) ( h) to participate in an approved program; to engage in employment: to seek employment to be undertaken while he is a prisoner or upon being discharged or released on parole; to attend any place for educational or training purposes; to prepare the prisoner for community resettlement; to attend any place for medical, dental or optical treatment; compassionate purposes; any other purpose approved by the Commission." Section 61 does not require that Goodspell be classified in any particular way and the provisions of the contract could be ) fulfilled without any consents from the Council. ) A letter from the Director of Community Corrections Operations Support dated 15 November to Mrs J Webster refers to Goodspell as having been declared an "institution" under Section 69 of the Corrective Services Act. It states that:.".the staff are not required to have a Degree in Behaviourial Science as is the case with Community Correctional Officers but nevertheless they are Correctional Officers under the provisions of the Act with authority specific to the management of a Community Corrections Centre." A letter from the Director of Community Corrections Operations Support to Mr & Mrs C Webster dated 15 November 1991 -- 7 of 14 -- 8 refers to the establishment of "Goodspell Park Community Corrections Centre." It states that the Centre· is managed in an overall way by Brother Paul Smith. It also states that compliance with the operational standards set down in the contract will be "closely monitored." A letter from the Minister for Justice and Corrective Services to C & J Webster dated 13 December 1991 refers to male offenders being "carefully selected by the Assessment Unit within the relevant Correctional Centre and as well as Centre staff." This is consistent with the oral evidence of Brother Paul. It also refers to The Commission's Contract Auditor regularly checking on compliance with rigid operational standards. Brother Paul Smith, the Director of Boystown, filed an Affidavit in Application 3 of 1992. He also gave oral evidence, and was cross-examined, during the hearing of the Applications. The public notice advertisements described the proposed use as "youth training facility." This is consistent with Brother Paul's oral evidence that it is the intention of the De La Salle Brothers to conduct a youth training centre. Details concerning the proposed use are available from the documents exhibited to Affidavits which have been filed in the Applications and evidence tendered and given during the hearing. These include: Letters from Jack Lacey and Associates Pty. Ltd. to The Shire Clerk of the Council dated 9 September 1991 and 10 December 1991; The contract between The Commission and Boystown; Site Plans under cover of letter from Jack Lacey and Associates -- 8 of 14 -- ) ) ) 9 Pty. Ltd. to The Shire Clerk dated 11 October, 1991; File Notes of a meeting of Brother Paul, John Redmond, Clr. Geoff Sharp and Shire Planner Greg Vann on 23 August 1991; A File Note on discussions between Greg Vann and Mr Drew, Regional Manager of The Commission on 4 December 1991; Schedules outlining the Link-Up programme and document entitled "Link -Up program document 1991"; The oral evidence of Brother Paul Smith. I have considered all the details included in these various documents and oral evidence. I do not propose to set them out in full in this Judgment. They include the following: 1. Goodspell is a working horse stud, spelling stable and agistment farm. Improvements are a dwelling house, bunk-house, stables and other associated farm outbuildings. Photographs of the accommodation were tendered in evidence. 2. The proposed use is part of the "Link-Up" programme for males 17-21 years old, in prison and subsequently. It attempts ) to set up a support network for their life back in the community and to reduce the 're offending' rate. 3. Six to twelve male prisoners would reside for 3-4 months. They would generally go to their own homes on weekends. 4. Residents would have a work programme, based on the farm work, and a personal development programme tailored to their needs. Brother Paul referred to "two strands." The residents would be engaged daily in farm management and animal husbandry duties. Each young person is involved in educational and self -- 9 of 14 -- 10 development courses for 20 hours per week. Each young person is regularly involved in normal daily community activities i. e shopping, library visits, S.E.S. training. 5. Selections of prisoners are made by the Section 69 Transfer Committee pursuant to Rule 75 of The Commission Rules. This Committee is comprised of the General Manager and Manager (Programs) of the prison, the Regional Manager of the region and the Manager of the prescribed place. This Rule, comprising 7 pages, was tendered in evidence. It includes details of purpose of transfer,assessment, procedures, eligibility and management. Brother Paul said that assessment includes excluding those with a psychiatric or violent history and anyone with drug or alcohol dependency. 6. Residents are still under sentence while on-site. Under Rule 75, residents must participate in an approved compulsory program as well as abiding by the rules specific to the Centre. 7. Residents would be under supervision at all times, and are subject to discipline. Goods pell is responsible for the security, supervision, custody and welfare of the residents (refer clause 2.2.1 and Mandatory Standards 5.0 - 5.17 of the contract). 8. There is no physical security, but residents cannot leave the property without the permission of the co-ordinator. They may be returned to prison (refer clause 15.2 of the contract). If they leave Goodspell without permission, their absence will be reported to the Police and must be reported by Goodspell to the Commission (refer clause 15.3 of the contract). 9. Residents enter the Link-up programme voluntarily. Approximately 680 prisoners are eligible - from these 6 are -- 10 of 14 -- ) ,, selected. 10. • Goodspell is part of one overall combined unit (a cattle farm) with the adjacent cattle grazing property on which Boys Town Lodge is located, but is run independently. 11 • A minimum of 2 and a maximum of 6 Community Correction Officers are on site at all hours to supervise and retrain the residents. These persons are specially trained, and accredited by the Commission. The powers of these Officers are set out in clause 2.3 of the contract. 1 2. Details of the activities and buildings ( existing and r- proposed) are contained in Schedule 1 to the letter from Jack ) Lacey and Associates Pty. Ltd. to the Shire Clerk dated 9 September 1991 . Paragraph (a) of that Schedule relates to activities, and includes training in "rural pursuits" and intensive support service .. including short term accommodation, employment, educational and training." ) 13. The Link-up Schedule contains details of the two-stream approach in the programme; formal and informal. The formal course consists of 5 units - self awareness and management; ) relationship awareness and management; employment and education awareness management; money awareness - management; and response to individual needs. The informal programme includes pastoral and animal husbandry duties and skills. They will also participate in Wilderness programmes. 14. Goodspell is to be operated and managed by Boystown (refer Recitals to the contract). 15. No employee of The Commission will be actually engaged or employed at Goodspell. -- 11 of 14 -- 12 The definition of "institution" in The Scheme necessitates consideration of "penal" and "reformatory." "Penal": Definitions of "penal" from the Shorter Oxford Dictionary and the Macquarie Dictionary were tendered. I do not propose to quote them in full. The word" punishment" occurs frequently in both definitions. "Reformatory" Definitions of "reformatory" from the Shorter Oxford Dictionary and the Macquarie Dictionary were tendered. I do not propose to quote them in full. The former includes "an institution to which juvenile incorrigibles or offenders against the law are sent with a view to their reformation." The latter includes "a penal institution for the reformation of young offenders." I have applied these definitions to the proposed use as disclosed by the evidence as a whole. I am unable to reach the view that it falls within either "penal" or "reformatory." I agree with the submission that the boys residing at Goodspell have been taken out of the penal system. As Brother Paul said, the boys will benefit from not being in the harshness and brutality of a prison system. He explained the ways in which Goodspell is different from prison farms such as Palen Creek. I agree with the submission that the system of assessment, and the element of voluntariness, and indeed the overall Link-Up programme mean that Goodspell is not a reformatory. It is therefore unnecessary for me to decide whether Goodspell is used "wholly or principally" for penal or -- 12 of 14 -- ) 13 reformatory purposes. If I am wrong in this, and the proposed use is for the purpose of a penal or reformatory establishment, then I consider that the premises are not used wholly or principally for that purpose, adopting the meanings of "principally" contained in Canterbury Municipal Council v. Philip Morris Ltd. (1985) 58 LGRA 178, 185; Parker Pen (Aust.) Pty. Ltd. v. Export Development Grants Board (1983) 46 ALR 612, 619 and SSAU Nominees Pty. Ltd. v. Federal Commissioner of Taxation (1988) VR 355, 367. The "Shire of Beaudesert Town Planning Section Guide to identifying land use activities" was tendered. ) essentially a compilation of Yellow Pages entries. obtain assistance from this source. This Ls I do not ) It is clear from the evidence as a whole that part of the activities at Goodspell relate to pastoral skills and animal husbandry. Another part of the activities relates to training and personal development. I find that the proposed use is a use for the purpose of a youth training facility, comprising these ) activities. In Blackwell v Beaudesert Shire Council and anor ( 1987) QPLR 29, the Court held that a proposed development of a drug addiction and counselling rehabilitation centre was within "Drug addiction counselling and rehabilitation" in Appendix VII within the definition of "organisation and society" in The Scheme. I am unable to identify an item within Appendix VII which could be said to appropriately describe the proposed use for Goodspell. I find that the proposed use is not a use for the purpose -- 13 of 14 -- 14 of an "institution" as defined in The Scheme. I find that the proposed use is not a use for the purpose of an "organisation and society" as defined in The Scheme. I find that the proposed use is a use for the purpose of a youth training facility, being a use or purpose other than one of the purposes referred to in Columns IIIA or V, whereby the consent of the Council is required for the proposed use (Column IV). It follows from this finding that the proposed use is not a use for the purposes set out in paragraph 2 (a) of Application 1 of 1992 ( which refers to "agriculture" and other purposes). I find that the proposed use is not a use for the purposes permitted by Town Planning Permit No. 762. I accordingly make the Declarations sought in paragraphs 1, 2 and 3 of Application 1 of 1992. -- 14 of 14 --