Brisbane City Council v Calligeros
[1998] QLAC 119
•19 May 1998
|
OF QUEENSLAND VC97-55
BEFORE:
The Honourable Mr Justice Muir (Chairman)
Mr Scott (Member)
Dr Divett (Member)
BETWEEN:
BRISBANE CITY COUNCIL
Appellant
AND:
M.A. & M.F. CALLIGEROS
Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered this Nineteenth day of May 1998
The sole question before the learned member at first instance was, and the sole question before this Court on appeal is, whether the respondents' land (“the land”) falls within Category A or Category B in the differential general rating table (“the table”) contained in a resolution of the appellant passed for the purposes of determining rates, charges and fees to be fixed for the year ended 30 June 1997. In broad terms -
·Category A applies to land where the dominant purpose for which the land is used or intended to be used is residential.
·Category B applies, for present purposes, where such purpose is other than residential.
The appellant contended before the learned member that the respondents' land fell within Category B. The respondents contended that their land fell within Category A and their contentions were upheld by the learned member. The legislative framework under which rates
are set by the appellant is set out in paras.4 to 8 inclusive of the judgment appealed against and it is not desirable to repeat what is there said for the purposes of these reasons. However, in order to define more precisely the issue for determination, it is useful to set out that part of the table which contains Categories A and B.
DIFFERENTIAL GENERAL RATING TABLE
Category
General Intent Criteria
A.
In general terms covers all land where the dominant purpose for which that land is used or intended for use is a residential purpose.
The use of premises for what under the Town Plan is a home activity in this context is to be regarded as part of the residential use of those premises.In the case of land on which there is erected a single unit domestic dwelling, or a single unit domestic dwelling and a granny flat, to the extent that the dominant use of the land is residential, it falls into this category regardless of the zoning of the land. Where the land is used for single unit domestic dwelling purposes and some other purpose, then the dominant purpose for which the land is used or intended for use will be ascertained by reference to the visual, economic and spacious aspects of the uses. Vacant land will only fall within this category where it is wholly residential zoned land.
Land to which codes
01 - vacant urban land,
04 - large homesite - vacant,
...
02 - single unit dwelling
05 - large homesite - dwelling, ...B. In general terms is intended to cover all commercial and industrial properties where the dominant purpose for which the land is used or intended for use is other than residential purposes. The use of premises for what under the Town Plan is a home occupation and for associated residential purposes in this context is to be regarded as a use of those premises only for a home occupation.
In the case of land on which there is erected a building or buildings where the visual economic and spacious aspects are normal to that of a commercial or industrial usage the land falls within this category.Vacant land falls within this category where it is not residential zoned land.
Land to which codes
01 - vacant urban land,
04 - large homesite - vacant,
06 - outbuilding and
94 - vacant rural land
of the Land Use Codes apply where that land is not residential zoned land and land which codes...
The above emphasis does not appear in the original text.
A description of the land
The land has an area of approximately 4,047 square metres. It has a frontage to Gowan road (which runs approximately north-south across its frontage, north being to the left as one faces the property) and adjoins a subdivision of dwelling houses to the south on 32 perch allotments. The residential blocks immediately to the north are generally about 1 acre in area. The improvements on the land include -
·a lowset L shaped brick veneer four bedroom dwelling house of a fairly conventional style. The total floor area of the house is 374.29 square metres.
·On the side of the house nearest Gowan road, a double garage with a tilt-a-door.
·A broad driveway which leads from the road to the house. The driveway has been widened over part of its length to make provision for eight marked out car parking spaces.
·A thickly planted area to the south of the driveway, which provides a screen between the driveway and the adjoining residential allotment.
·A path which leads from the car parking spaces in a northerly direction past a garden area to a long, narrow, rectangular, low-set brick building. The building (“the amenities building”) contains a viewing area for parents of pupils, male and female toilets and a reception area. It is 18.4 metres long and 2.9 metres wide.
·A swimming pool, some five metres long and six metres wide. One side of the amenities building faces the pool.
·Four large signs connected with the swimming school. A report by officers of the appellant dated 27 February 1997 stated, inter alia -
“The first two signs were located at the front of the property adjacent to the Gowan road frontage. These signs stated Learn to Swim Shapland Swim Schools and the phone number. This sign can be easily viewed by passing motorists.
The second sign was located next to the customer car park and this stated swim school entry with an arrow. The third sign was attached to the swim school building and this stated swim school entrance with an arrow.”
The pool and amenities building are located on the Gowan road side of the house (which is roughly in the centre of the land), close to the northern boundary. There is a fairly thick screen of trees and shrubs between the pool area and the northern boundary of the land and also on the Gowan road side of the pool area. The swimming pool complex, including improvements and all the area within the pool fence, occupies some 248 sq. m. The customer car park, including driveway, occupies 258.99 sq. m. The total of these two areas is thus 507.39 sq. m. or approximately 13% of the total area of the land.
The learned member said in her reasons -
“The pool is built to one end of the Gowan road boundary of the subject land. It and the amenities block occupy, in general terms, one third of the Gowan road frontage. Along the wall screening the pool are planted shrubs and various plants but the wall remains largely visible at this stage of the plants' growth. The amenities block is quite apparent from Gowan road. It is built in the same colour brick as the house and I accept that it is built in a style that matches the house. The wall of the pool is built in a colour that tones in with the colour of the brick. ... The amenities block could be either commercial or residential from its appearance. It does not appear to be an extension of the house for the house is not visible. The lack of visibility of the house, though, does not lead to the conclusion that the amenities block has the appearance of a commercial enterprise.”
Those findings are supported by the evidence.
The swimming school business
The swimming school operates approximately eight and a half months of each year. Mr Calligeros is occupied in the business full time. Mrs Calligeros spends approximately half of each working week in the business and there are two additional coaches who each work about six hours per week. The purpose of the business is the teaching of water survival to babies and toddlers. Classes are held between 8.40 a.m. and 6 p.m. with a break between 2.20 and 3.30 p.m. Classes are 20 minutes in duration and there are generally 3 classes an hour. There is a maximum of three children per class.
The gross takings of the business for the year ended 30 June 1996 were $119,386. An income tax return for that year showed the business to be making a loss of $28,181 but that was after payment of $36,592 in wages to the respondents and after taking into account the following-
interest $12,373
depreciation $12,597
superannuation $1,829
We now turn to a separate consideration of the “visual, economic and spacious aspects of the uses” of the subject land.
Dominant purpose
As the land, at relevant times, was used for “single unit domestic building purposes and some other purpose” the table requires “the dominant purpose for which the land is used or intended to be used” to be “ascertained by reference to the visual, economic and spacious aspects of the uses.” Those three criteria seem to be the sole criteria to be considered in determining “dominant purpose” for the purpose of applying the table in respect of a parcel of land.
The Shorter Oxford English Dictionary defines “dominant” relevantly as-
“1. exercising chief authority or rule; ruling, governing; most influential.”
In Commissioner of Taxation v. Spotless Services Ltd (1996) 71 ALJR 80 at 85, it was said in the joint judgment that -
“In its ordinary meaning, dominant, indicates that purpose which was the ruling, prevailing, or most influential purpose.”
The word “dominant” has that ordinary meaning in the context under consideration. For reasons of clarity and convenience we propose, initially, to give separate consideration to each of the three relevant criteria. However, the task of ascertaining dominant purpose requires an overall assessment by reference to all of the three criteria, attributing such weight to aspects of each criterion as the facts require. c.f. Pickwell v Camden London Borough Council [1983] 1 QB 962 at 990 and Minister for Aboriginal Affairs v Peko-Wallsend (1985-86) 162 CLR 24 at 41 and Rhodes v Mulgrave Shire Council (1981) QPLR 146. As each such assessment is very much dependent on the facts of the case little, if any, assistance can be gained from reference to other cases on the categorisation of land for the purposes of the table.
Spatial aspects
The learned member concluded that the word “spacious” used in the table was intended to be “spatial”. The parties accepted that this was the correct construction of the table. The learned member referred to the New Shorter Oxford English Dictionary definition of spatial which was, relevantly -
“1. having extension in space; occupying space; consisting or characterized by space. m19. 2. of or relating to space; subject to or governed by the conditions of space; ...”
“Spatial” must also be given its ordinary meaning for present purposes. We take that meaning to be synonymous with “relating to the space occupied”. It is clear that, from the spatial viewpoint, the use of the land is predominantly residential. The learned member accepted the calculation of the area occupied by the swimming pool complex customer car park and driveway provided by Mr Denholm, an employee of the appellant, and we see no reason to disagree with it. However, she resisted the submission by the appellant that areas of landscaping, should be added to the land area used for swimming school purposes, and thus treated as non residential. We also can see no reason why the landscaped areas, being consistent with conventional residential use, should be allocated to that part of the land treated as being subjected to commercial use. We can see more merit in treating the landscaped areas adjoining the pool and to the south of the driveway as having a dual function: the functions being that of screening the pool and car park areas from Gowan road and neighbouring properties on the one hand and screening the house from Gowan road and adjoining properties on the other.
Even if these two landscaped areas are treated as having such a dual purpose or use, the bulk of the land nevertheless retains a primarily residential usage. The fact that there are signs which advertise the fact that the land is given over, in part, to commercial use does not, in our view, alter the extent to which the land is in fact used for commercial rather than residential purposes.
Visual aspects
The learned member, in response to the appellant's submission that the most important visual aspect of the land was the Gowan road one, observed -
“There is, however, nothing in the differential general rating table which suggests that the visual aspect from the street frontage of a property is the only aspect to which regard should be had in a visual sense. Regard should be had to the property as a whole.”
We agree with that conclusion. The appearance which the land presents to adjoining and nearby properties must be of some significance. In this case the evidence suggests the parts of the land and improvements most visible to members of the general public not actually setting foot on the land are the improvements and landscaped areas closest to Gowan road. Mr Fletcher, a town planner who gave evidence on behalf of the respondents, conceded that the Gowan road aspect was the most important visual aspect for this property.
In a statement of evidence, Mr Fletcher said -
“The property is little different from typical residential premises commonly observed on the one acre residential blocks to the north and east, many of which are improved with large homes with tennis courts or swimming pools, and in some cases both.
The main feature that distinguishes the property from surrounding properties is the small sign at the front. The sign does not create a sufficient visual impact to warrant regarding the premises as being predominantly commercial.
The landscaping and general nature of development of the site essentially maintains a residential character.”
Having regard to Mr Fletcher's highly anomalous position as both advocate and expert witness, his evidence should be approached with considerable caution. However, the photographic evidence offered considerable support for his view, shared by the learned member, that, even from Gowan road, an observer's overall impression would not be of any particular commercial use of the subject property. What an attentive observer would sees from Gowan road or looking across Gowan road from Palatine Street, and depending on the vantage point, would be-
a fence entirely consistent with normal residential use of the land;
a considerable expanse of trees and shrubs, also consistent with normal residential use;
cars parked in what is obviously a car park larger than required for domestic purposes;
part of a building compatible with the residential buildings on the land, which building is not particularly obtrusive or commercial in appearance; and
a number of signs.
It is submitted for the appellant that the signs, as well as being a substantial commercial feature in themselves, have another significance. The argument is that although the amenities building and associated landscaped area may not, viewed on their own, have a particularly commercial appearance, the signs (which reveal that a swimming school in located on the land) give a commercial complexion to these features. In our view, this approach overstates the significance of the signs. Clearly, a sign may help to identify an improvement as being of a commercial rather than residential character when its nature would otherwise be unclear to an observer but the signs do not, in fact, change that which is on the land and able to be observed. For example, it was conceded in argument that the land was heavily and effectively landscaped so that the improvements associated with commercial use, at least for the most part, had little visual impact from outside the boundaries of the land. The fact that there are signs which alert one to a commercial use of part of the land do not alter that visual impact. From the street, and from adjoining properties, an uninformed observer remains unable to identify any structure on the land as one erected and/or used for a commercial purpose.
In assessing the relevant character of improvements on the land, one cannot ignore the neighbourhood in which it is located and the fact that pool sheds, tennis pavilions, or tool sheds for that matter, would not be incongruous or unexpected sights on “acreage” properties.
Mr Fletcher's evidence, in effect, that the land and improvements have a generally similar appearance to other larger residential home sites in the Stretton area is supported by the evidence of Mr Shultz, a valuer called by the respondents.
Economic aspects
The appellant's argument gave particular emphasis to the conduct of the business and its revenue. As noted earlier, the gross annual takings of the business were in excess of $119,000. That is certainly substantial. It is also of significance that one person works in the business full time and three part time. However, in any case in which a business is conducted on or from land also used for residential purposes it can be expected that revenue will be produced as a result of the commercial use only. That comment though is not intended to suggest that the matters pointed to by the appellant are irrelevant considerations. It is merely to highlight the fact that there are other matters which cannot be ignored.
The disparity between the capital value of land and improvements and revenue generated by the swimming school means the swimming school would not be a viable enterprise or use of the land unless combined with residential usage. The capital value of the improvements on the land relating to residential use are greatly in excess of the value of those relating to non residential use.
Mr Calligeros gave evidence that the purchase price of land (with the dwelling house on it) was $335,000 and that the subsequently incurred cost of establishing the swimming school with its related facilities was to the order of $90,000. Mr Shultz gave evidence that the highest and best use of the land was residential.
These considerations, in our view, are significant. The swimming school business, having regard to its income and outgoings, appears to be viable only as an adjunct to the respondent's residential use of the land. It was submitted on behalf of the respondents that the business was “a lifestyle thing”. Whether or not that is so is hardly determinative of whether the economic aspect of the use of the land can be said to be dominant but it is not without some relevance on the facts of this case. The business here may truly be seen as an adjunct to the respondents' residential use of their large suburban property by way of contrast, for example, with a farmer's use of the farmhouse (and its curtilage) on a farm. In that case, the use of the farmhouse and curtilage remains, overall, a farming one. The house is there to enable the farmer to reside on the farm so as to be able to work it most effectively and because the making of land within the farm available for a home site will not materially detract from the economic use of the farm overall.
Conclusion
Looking at the question for determination in a composite way and taking into account the considerations expressed above, we conclude that the dominant purpose for which the land was used and was intended to be used at relevant times was residential. The appeal is dismissed.
Muir J
Justice of the Supreme CourtRP Scott
Member of the Land CourtNG Divett
Member of the Land Court
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