Bundaberg Regional Council v Ross & Anor
[2011] QPEC 137
•18 November 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Bundaberg Regional Council v Ross & Anor [2011] QPEC 137
PARTIES:
BUNDABERG REGIONAL COUNCIL
(Applicant)v
WARWICK DOUGLAS ROSS
(First respondent)and
RICHARD DOUGLAS DREW (BURNETT COUNTRY CERTIFIERS)
(Second respondent)FILE NO/S:
2415 of 2011
DIVISION:
Planning and Environment, Original Jurisdiction
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
18 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
10 November 2011
JUDGE:
Robin QC, DCJ
ORDER:
Declarations and orders (subject to limited suspension) to be made: see [1] below
CATCHWORDS:
Building Act 1975 s 33, s 83, s 84
Integrated Planning Act 1997 s 3.2.12, s 3.3.2, s 3.3.3, s 3.3.6, s 3.3.18, s 3.3.20, s 3.5.11
Integrated Planning Regulation 1998 Schedule 2 Table 1
Sustainable Planning Act 2009 s 578, s 580, s 604
Council seeks determination of development offence occurring by construction and use of a large garage/shed without a development permit - whether permit issued by a private certifier ineffective because certifier forbidden from granting it without Council approval of a material change of use or of changes to its earlier, inconsistent development approval(s) for the site - whether Council approvals (not fully implemented) had lapsed - whether Council was a concurrence agency under the Regulation (whose participation was excluded) - whether certifier precluded from approving application because it lapsed
COUNSEL:
Mr M. A. Williamson for the applicant
SOLICITORS:
Connor O’Meara for the applicant
The second respondent was self represented
For reasons set out below, following a hearing on 10 November 2011, it is proposed that at some convenient time after the parties have had an opportunity to submit otherwise, the following order be made:
“UPON the Court being satisfied that development offences have been committed, namely:
1.assessable development has been carried out on land described a Lot 62 on RP847680 and situated at 39 Palm View Drive, Moore Park Beach (“the Land”) in the absence of an effective development permit for a material change of use for a shed;
2.conditions of a development approval granted on 16 May 1996 (as amended on 13 December 1999) (“the 1996 approval”) and a development approval granted on 6 June 2008 (“the 2008 approval”), have been contravened.
AND UPON the Court being satisfied that the Second Respondent was not entitled to grant a building development approval for a Class 10a Garage in respect of the Land, as notified by the Second Respondent’s Decision Notice dated 18 August 2009
IT IS DECLARED THAT the building development approval for a Class 10a Garage in respect of the Land, notified by the Second Respondent’s Decision Notice dated 18 August 2009, is invalid and of no effect.
IT IS ORDERED pursuant to s 604 of the Sustainable Planning Act 2009 that:
1.The First Respondent by himself, his servants or agents be restrained from:
(a)carrying out assessable development, being a material change of use for a shed; and
(b)contravening the conditions of the 1996 approval and the 2008 approval,
save where subsequently lawfully authorised.
2.The First Respondent by himself, his servants or agents remove from the Land, and do not replace, all things in connection with the shed, save where subsequently lawfully authorised.
3.Provided that paragraphs 4 and 5 below are complied with, the operation of paragraphs 1 and 2 above shall be suspended until [12 weeks from date of order].
4.The First Respondent is to:
(a)make a request to the Applicant for a permissible change the 1996 approval and the 2008 approval on or before [4 weeks from date of order];
(b)use his best endeavours to pursue the request for a permissible change to the 1996 approval and the 2008 approval;
(c)obtain an approval for a permissible change to the 1996 approval and the 2008 approval on or before [8 weeks from date of order].
5.After obtaining an effective development approval for a permissible change to the 1996 approval and the 2008 approval, the First Respondent is to obtain an effective development approval for building works on or before [12 weeks from date of order].
6.The orders made by the Court on 3 August 2011, to the extent they remain unperformed, be vacated.
7.There be liberty to apply on the giving of three (3) business days written notice to the other parties.”
The land belonged to the first respondent, who did not appear at the hearing when his name was called. He has not filed any material, although aware of the Council’s application as appears from a note on the court’s order sheet of his appearance before Judge Searles on 3 August 2011. The second respondent, Mr Drew is a private certifier who granted the building development approval that has been challenged. He represented himself in the proceeding which shares certain common features with Bundaberg Regional Council v Loeskow [2011] QPEC 95, in which he was also a respondent. The above order, proffered by the applicant Council (which is less severe in its immediate effects than the relief claimed in the originating application would have been) is modelled upon Judge Searles’ order in the Loeskow matter, which I understand is the subject of an application for leave to appeal that the Court of Appeal has heard recently. His Honour decided that application in the Council’s favour by reference to the so-called “MCU point” - that, by virtue of s 83(1)(a) of the Building Act 1975, Mr Drew was not permitted to issue the Approval for a shed on vacant land unless and until the Council approved a material change of use. His Honour found it unnecessary to determine the “Referral Point”, namely “that the Building Works Application, the subject of the Approval, was not properly referred to the Council as a Concurrence Agency and thereby lapsed with the consequence there was no Application … to approve” or the so-called “Refusal Point”.
In this proceeding, the Council runs “the referral point”, “the MCU point” and the so-called “inconsistency point” which depends on s 84(1) of the Building Act 1975; it, at relevant times, provided:
“(1) The private certifier must not approve the application if –
(a)the building development application relates to an earlier development approval granted by the local government; and
(b)the earlier approval has not lapsed; and
(c)the application is inconsistent with the earlier approval.
Maximum penalty – 165 penalty units.”
Section 83(1)(a) relevantly provided:
“83 General restrictions on granting building development approval
(1)The private certifier must not grant the building development approval applied for -
(a)if the building development application includes development other than building work – until, under IPA, all necessary development permits are effective for the other development; and …”
Each of ss 83 and 84 applied to render a private certifier’s approval wrongly given and of no effect in Baeveski v Gladstone Regional Council [2009] QPEC 5: see [24]-[25]. Section 83 had similar effect in Loewski and for a “section 84” case see Gold Coast City Council v GMA Certification Group Pty Ltd [2011] QPEC 29. Comparable provisions were considered in Livingstone Shire Council v Brian Hooper & M3 Architecture [2004] QPELR 308; for the “referral point”, see [45] ff.
Where a provision like s 83(1)(a) or s 84(1) enacts that a private certifier “must not decide” a development application or “must not approve” it unless certain conditions exist, the consequence is that “a decision or determination legislation says must not be made cannot withstand challenge by a person with a proper interest, subject to the court’s discretion to refuse or decline to grant relief”: ibid at [70]; see also [30] and [32].
I adhere to the view taken in Livingstone Shire Council that exclusion of a referral agency is a serious matter. Schedule 2 in the Integrated Planning Regulation 1998 establishes “Referral Agencies and their jurisdictions” for s 5 purposes and in Table 1 “for building work assessable against the Building Act 1975”. To establish its status as a concurrence agency, the Council relied on two items:
“Schedule 2 Referral agencies and their jurisdictions
Table 1
Application involving Referral agency and type Referral jurisdiction Amenity and aesthetic impact of particular building work 15 Building work for a building or structure if it is -
(a) a single detached class 1 building or a class 10 building or structure; and
(b) in a locality and of a form for which the local government has, by resolution, declared that the form may -
(i) have an extremely adverse effect on the amenity; or likely amenity, of the locality; or
(ii) be in extreme conflict with the character of the locality
The local government – as a concurrence agency The amenity and aesthetic impact of the building or structure if the building work is carried out Design and siting 18 If
(a) under the Building Act 1975, section 33, an alternative provision applies for the building work; and
(b) under the provision, the proposed building or structure is not of the quantifiable standard for a relevant qualitative statement under the provision”
The local government – as a concurrence agency
Whether the proposed building or structure complies with the qualitative statement
Mr Drew presented an argument which I found difficult to understand that the existing buildings on the site, being six small “accommodation units” in a development already constructed on the land that would satisfy the use definition of “Tourist Park” adopted for the first time in the Council’s 2006 Planning Scheme (“the use of premises for accommodation in caravans, cabins, or tents predominantly for visitor accommodation. The term includes ancillary facilities and a dwelling for a manager or caretaker”) were Class 3 buildings because users of them shared facilities, laundry in particular. He protested that he was rather “caught on the hop” by Mr Williamson’s written submissions, having prepared only to meet the “MCU point”, but declined the opportunity offered by Mr Williamson to make supplementary submissions to meet the other points.
It is unnecessary to pronounce on Item 15, and Mr Williamson withdrew reliance on it on discovering that the only “resolution” meeting paragraph (b) which could be pointed to was one (apparently effective thereafter to secure its purpose, in my view) adopted in December 2009, too late to be of present relevance. There was a contest about Item 18 which, in my view, the Council can rely on to establish its status as concurrence agency.
For the purposes of Item 18, there has been included in the Burnett Shire Planning Scheme of 31 May 2006:
“1.12 Planning Scheme Identifies alternative provisions
(1)Under the Standard Building Regulation 1993 a local government may make a planning scheme that identifies or states alternative provisions.
(2)Any alternative provisions in this planning scheme are identified through the following phrase following the provision “SBR alternative provision”.
(3)Any non-compliance with an “SBR alternative provision” is assessed under section 20 of the Standard Building Regulation 1993.”
and specifically in relation to sheds:
“8.4 Siting requirements for sheds and domestic storage
Zone/Precinct Combined GFA of all sheds or domestic storage Urban Residential Zone; and Up to 60m2 (SBR alternative provision)”
The scheme definition of “shed” is:
“Shed” means a Class 10 building or structure wholly or partly enclosed by walls whether fixed or moveable”.
The definition clearly brings in what has been proposed and developed here; a characterization of it as a “garage” which may conform with the dictionary definition or popular understanding, does not serve to take it outside the definition. It is clearly a Class 10 building for relevant purposes, the classification under the Building Code of Australia being:
“Class 10: a non-habitable building or structure –
(a)Class 10a - a non-habitable building being a private garage, carport, shed, or the like; or
(b)Class 10b - a structure being a fence, mast, antenna, retaining or free-standing wall, swimming pool, or the like.”
Finally, from the planning scheme there ought to be noted unsurprising provisions of the Detached Dwelling and Domestic Storage Code whose purpose (8.5.2) includes the following:
“(c) Sheds –
(i)do not preclude the provision of adequate private open space and vehicle parking areas on-site; and
(ii)do not have the appearance of an industrial building when located in the Urban Residential or Hinterland Residential or Hinterland Residential zone; and
(iii)allow the maintenance of adequate solar access to, and privacy of adjoining premises; and
(d)Domestic storage has an appropriate scale, height and area and is appropriately sited so that when viewed from public places or streets are attractive, proportionate to, and visually compatible with the existing or likely future character of the area.”
Associated specific outcomes and acceptable or probable solutions are:
| For Sheds - | |
| SO.262 A shed on the same allotment as a detached dwelling maintains the functionality of the site for car parking and provision of private open space. | PS. 262.1 All sheds on the site have combined maximum GFA, minimum frontage setback, minimum side or rear boundary clearances and maximum wall height as specified in Table 8.4 |
| SO.263 Sheds are to be aesthetically appealing and be complementary to the character and amenity of the locality in regard to the building form and materials. | P.S. 263.1 If shipping containers are converted to Class 10 buildings, the appearance of the container is to be modified to incorporate external colours consistent with the existing dwelling on the site. |
That Code, which the new shed fails to comply with, is called up specifically in certain but not all scenarios covered in:
“Table 3.4 Assessment table – making a material change of use of premises – Urban Residential Zone (Coastal Towns Planning Area)
| Type of development | Assessment Category | Applicable Codes | ||
| Use | Qualifications | Urban Residential Zone | Other | |
| Residential use class - | ||||
| Caretaker’s Residence | Self | Detached Dwelling and Domestic Storage Code (acceptable solutions only) | ||
| If the Detached and Domestic Storage Code, other than an SBR alternative provision, is not complied with | Code | [box is ticked] | Detached Dwelling and Domestic Storage Code” | |
| … | ||||
| Domestic Storage | Self | Detached Dwelling and Domestic Storage Code (acceptable solutions only) | ||
| If the Detached and Domestic Storage Code, other than an SBR alternative provision, is not complied with | Code | Detached Dwelling and Domestic Storage Code” | ||
| … | ||||
| Tourist Park # | Impact | |||
# Inconsistent use refer to Section 3.7.4”
Those provisions apply to Mr Ross’s site.
The site has the benefit of two planning approvals which are of continuing relevance in the Council’s submissions, in the sense that should any further development occur on the site it must not be inconsistent. Inconsistency is capable of being addressed by changes which it, as the original decision maker or its proper successor, may agree to.
The earlier approval is dated 1 August 1996, a town planning consent permit to use the site at 62 Palmview Drive, Moore Park for Accommodation Units, eight being proposed – four on either side of a driveway bisecting the site front to rear. The development had to be “in accordance with the proposal plans received at the Shire Office on 19 April 1996 and subsequent modified site plan received at the Shire Office on 29 May 1996 subject to” conditions numbering 41. The development was to be staged; details of the staging appear to have been changed with the Council’s agreement in ensuing years. The accommodation units were of modest proportions, only some 80 square metres including front decks. By 2007 only six had been built, three on each side including the rearmost proposed for the southern side, designated Unit 6, which was not originally, but in the recent past has been occupied the first respondent. The proposed accommodation unit opposite, designated Unit 8 or Unit 2G has never been built. It was to present to its neighbour, the residence on Lot 60 as a residence of 73.5 square metres finished in chamferboard, 4.5 metres in height and 7.5 metres wide - the presenting façade particularly being a balcony, window and sliding door, the whole set back 2.8 metres. What has been approved by the second respondent and now presents to Lot 60 is a 72 square metre shed constructed of “colourbond”; the height is 3.5 metres and the length along the boundary 12 metres, half blank wall, half open roofed carport. The setback is said by the Council’s planner, Miss Grayson to be “2 metres east and 1.5 metres north”. The Lot 60 neighbour, Mr Plesko, appears to have provided a consent in general terms for the shed, it not being shown on what information he acted. The Council take the view that the appearance and location of the structure create issues in the circumstances and that it ought to have the opportunity to consider the proposal and require imposition of appropriate conditions to protect the amenity of the area.
In 2007 the first respondent and Ms Hatherly, his co-owner at the time, applied for a material change of use in reliance on “the superseded Planning Scheme Burnett Northern Area (Old Gooburrum Shire Area) August 1996 for Material Change of Use for the Construction of an Additional one (1) Accommodation Unit and Swimming Pool on the Premises. The nature of the material change of use was given as “A material change in the intensity or scale of the use of the premises”, the intensity and scale of the current use being given as 6 x Accommodation Units TFA 378 square metres”. The extent of change of intensity and scale was stipulated to be one additional unit TFA 72 square metres and swimming pool. It was asserted that no new uses on the premises were proposed. See the IDAS Form 1 Development Application Exhibit 7 to Ms Grayson’s affidavit. The enclosed report and proposal identified the site area as 3765 square metres. The proposed additional unit (Unit 7) roughly corresponds with the originally approved neighbour of Unit 6 (designated 1E) which was never built. The swimming pool was proposed for the space allotted to Unit 2G. the Report confirms that parking requirements of 1 space per accommodation unit and a further four visitor parking spaces were met by provision of two visitor parking spaces at the front of the site and two at the rear, corresponding with what the 1996 approval required. The report confirmed that “the existing and proposed use is for holiday accommodation and is consistent with” the Moore Park Development Control Plan. The Council’s Decision Notice of 10 June 2008 advised approval, the approved plans including 1996 plans for the new “cabin”. The development permit was for Material Change of Use – Accommodation Unit, as sought, the accommodation unit to “be developed generally in accordance with the submitted Site Plan”. The conditions refer to the swimming pool as follows:
“LANDSCAPING
14.Landscaping works are to be designed and constructed in accordance with the Landscaping Code of the Burnett Shire Planning Scheme 2006. Landscaping is to incorporate advanced trees and shrubs planted to soften the bulk of the building and screen the swimming pool area. Landscaping works are to incorporate specific treatments to the property boundary adjoining proposed Unit 7 and the property boundary adjoining the identified swimming pool area.
15.Landscape works are to be completed prior to occupation of
the additional unit.
19.For the purpose of a future building application for the swimming pool component of the proposal, it is advised that Council’s Planning and Development Department has undertaken an assessment of the proposed building works against the Burnett Shire Council’s Planning Scheme 2006 – Natural Features and Resources Overlay Code. The proposal is considered to comply with the code and an additional referral to Council is not required.”
This 2008 approval has never been acted on. It is unknown whether the reason for making the 2007 application was a view that the 1996 approval, while implemented for the most part, had ceased to have effect or that it was considered the new proposal departed from the 1996 approved plans. The “new” accommodation unit proposed was to be located further from Unit 6 by reason of its private driveway and carpark now being located on the Unit 6 side.
Ms Grayson’s analysis shows inconsistency between the approval under challenge in this proceeding and the 2008 approval (6 June 2008) Condition 2 of which confirms the continued validity of the original Town Planning Consent Permit Conditions for “the ongoing operation of the Moore Park Beach Huts (6 units)” except as expressly modified: Condition 2. If the 2008 approval were to hold sway, from the point of view of those occupying Lot 60 (and indeed the western neighbour too) what would otherwise be landscaped open space of the swimming pool area is now occupied by a dull building close to the boundary. Mr Drew submitted this would be a preferable situation for neighbours to a swimming pool full of children enjoying themselves; no doubt that is a subject about which minds might differ. More important, access to the new structure which amounts to a double closed garage with two roller doors in the west and a double open carport to the east precludes provision of the two visitor car spaces required at the rear of the site as parking provision that can be relied on as being always available. Recent photographs established that the visitor carspaces have not been marked in any way, so that those whose parking requirements were intended to be met in this way would have no idea that they were being invited to park in that location.
Mr Drew was engaged on 10 July 2009 by Mr Ross’s agent, Creative Building Group. The Engagement of Private Building Certifier Agreement is dated 10 July 2009. The document indicates Ms Hatherly as a co-owner. On 22 July 2009 the Council received from Mr Ross and Ms Hatherly a completed standard form document bearing its logo entitled “Request for Concurrency Agency Assessment – Building” referring to the Integrated Planning Regulation 1998 Schedule 2 Table 1, Items 15, 17 and 23. The document was signed by Ms Hatherly and dated 21 July 2009. At the top of the form a box marked “Amenity & Aesthetics” has been checked, a box marked “Security Assessment” has been left unchecked. It is unclear from the photocopy provided whether any indication was given against “Design & Siting”. Reference is made to what is “attached” as the “Description of and Justification for Relaxation Sought”. Boxes are checked to indicate that information submitted with the application included a site plan (including existing buildings on site), building plans (“e.g. floor plans, existing floor plans, elevations”) and “Additional details of relaxation/justification to further support your request”. The box on the form seeking “Building Certfier details (only if application has already been lodged – include copy of engagement notice)” is left blank, which may seem inappropriate, given that Mr Drew had been engaged on 10 July. One would assume he had the relevant “development approval application” which he refers to in the information request he issued dated 14 August 2009 close to the time of his engagement. The box indicating provision of the building application was left unchecked.
The justification presented to the Council was in the following terms:
“From: WD Ross & AD Hatherly
Re – Proposal to build a garage/shed at 39 Palm View Rd Moore Park Beach
It has been brought to our attention that under the Burnett Shire Town Plan there is a limit of 60m2 under the residential zone for our property for garages/sheds.
The site area is 3765m2 and we have discussed the proposal with our nearest neighbour who has provided his written acceptance of our proposal. (attached)
We believe the proposed garage/shed with a total area of 84m2 is suitable for the site and would not cause any disturbance to the amenity of aesthetics of the area.
The proposed garage/shed only has an area of 42m2 fully enclosed with the remaining 42m2 being an open carport area.
Our requirement is to provide a secure storage area and additional carpark spaces to avoid overcrowding within the site which is known as the Moore Park Beach Huts.
Should you have any further questions please contact David Southgate at Creative Building Group on 4153 4891.”
84m² seems to be an overstatement of the true area, 72m².
The attachments included a site plan apparently bearing the Council’s stamp showing it as part of the 1996 approval.
Mr Drew’s information request described as required to satisfactorily assess the development approval application he was considering “Concession Approval From Bundaberg Regional Council.” Mr Drew’s request for that approval was followed by a decision notice only four days later, dated 18 August 2009. The approved plan he used for the purposes of endorsing his approval was the one forming part of the Council’s approval of 6 June 2008, the Council’s stamp incorporating reference to the relevant application before it appearing permanently on the document. Mr Drew must have known there was a 1996 approval. Also, he must have known that the Council approval referred to in his information request had not been forthcoming. Indeed, the Council had intimated that it would not be forthcoming in its letter to Mr Ross and Ms Hatherly of 10 August 2009:
“Council’s Planning and Development Department wish to advise that the submitted application can not be accepted in the submitted form as this criteria is for general residential properties and not relevant to the existing land use of the aforementioned site as it was established through an existing development approval. Therefore the use of the site is to be generally in accordance with the existing approvals. As the proposed structure was not part of any of the existing development approvals, a change to the existing development approval would be required (if the change can be deemed to be a minor change) to amend the existing approval. If it can not be deemed to be a minor change then a new development application may be required.”
In my opinion, the Council was correct in taking the approach it did in that letter. The 1996 approval, even if it had been fully implemented, has continuing effect, consistently with the analysis adopted in Gold Coast City Council v GMA Certification Group Pty Ltd [2011] QPEC 29, for example and has to be respected unless superseded by some other development approval. The 2008 approval might have had that effect, if acted upon, but can probably be disregarded, as nothing has occurred in reliance upon it. In my view, the owners of the land are entitled to decide, with respect to each approval, whether to implement it or not. Mr Williamson expressed the view, with which I am inclined to agree, that the 1996 consent has been implemented to such an extent that, notwithstanding the effluxion of time, it is open to Mr Ross or another owner of the site to complete development in accordance with it – which is not what he has done. This brings us to an uncertain area of law, as illustrated by the discussion in Gifford and Gifford’s Town Planning Law and Practice [58-118] and [58-119].
Fortunately, it is not necessary to make any definite pronouncement here. There is another basis created by the inaccurate statement made to the Council in the Ross-Hatherly request dated 21 July 2009: the inquiry “Building application lodged?” was answered No, when the true situation must have been the contrary. What the Council was told would inevitably lead to its taking itself to be a referral agency asked to give a response on the matter within its jurisdiction about a development before any application for the development was made to the assessment manager, as dealt with in s 3.3.2 of the Integrated Planning Act 1997 (IPA). Subsection (2) confirms that a referral agency in that situation is not obliged to give a referral agency response before the application is made. From this point, the Council was excluded until advised in due course of Mr Drew’s approval. If Council is a referral agency, as events unfolded, the IPA requirements were ignored. Section 3.3.3 required that the Council be given the development application , in particular. This it never had. A concurrence agency can require conditions to be imposed (s 3.3.16) and its requirements must be respected by the assessment manager (here Mr Drew): s 3.5.11.
Mr Drew says that on 14 August 2009 he commenced the assessment of the building application. On that same Friday he sent out his information request requiring a Council “concession as the floor area was in excess of 60 square metres” as permitted in the planning scheme. On Tuesday, 18 August 2009 he carried out the assessment and issued a decision notice to favourable effect. The chronology given in his affidavit suggests his decision was based on actual judgments that two potential stumbling blocks did not stand in his way. Firstly, he relies on the Council’s letter of 10 August 2009 as advice “that a concession application was not required”. In my opinion, that is a reading of the document which is simply not open. The second consideration was Mr Drew satisfying himself that there was no requirement for any further approvals from the Council as set out in his affidavit:
“7.On 18 August 2009 I carried out the assessment of the application. By reference to Section 10 of the Sustainable Planning Act 2009 (SPA) I was able to confirm that there was no requirement for any further approvals from the BRC as the development was not –
(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
and as such was NOT an MCU. Exhibit “RDD 6” is a true copy of Section 10 of the SPA.”
It is difficult to accept that account, given that the SPA was not passed until 22 September 2009, when it received Royal Assent and did not come into effect until 18 December 2009. This makes no difference to the definition of material change of use to be applied. The relevant one is found in s 1.3.5 of the IPA.
I am inclined to the view that, on the basis of a one-sixth increase in built form on the site, there is “a material change in the intensity or scale of the use of the premises”. That is the view taken by Mr Ross in 2007 (I am inclined to think correctly); there is, of course, no basis for holding him (and Mr Drew) bound to take the same view now. It may represent a wrong or arguable position. Further, the addition of a seventh accommodation unit could be seen as increasing by one-sixth the business and activity associated with persons wanting to stay in units on the site. Whether the shed/garage would have a similar effect is an open question. It is capable of accommodating not only motor vehicles and trailers but a boat, caravan and the like as well as items such as a lawnmower and tools and accessories that might be useful in maintaining the accommodation units. If the shed is made available for use of patrons, different kinds of patrons may come along, such as caravaners or campervan travellers.
If the view be taken that the shed/garage substantially conforms with the 1996 approval so far as built form is concerned (as to which minds may differ, as the parties’ do), I think there is a question as to whether the shed/garage represents “the start of a new use of the premises” and accordingly, a material change of use, contrary to Mr Drew’s view. Looking at the matter in a practical way, the addition of a new structure of the same proportions as each of the otherwise approved or existing ones (being one bedroom cabins of modest size lacking some ordinary domestic facilities such as laundry) for storage has the appearance of being a new use. This aspect may not matter, but it rather appears that the new facility is not for general use, rather is effectively part of the curtilege of Mr Ross’ residence, Unit 6. The evidence, including photographs, shows it is actually used for storage of large chattels on wheels. Mr Drew’s argument is that all of this is ancillary to a use of tourist park, and perhaps in particular to the caretaker’s residence, which may be part of a tourist park. I am not at all persuaded that in such a context a caretaker’s residence would be expected to have associated with it such grandiose storage facilities. There never has been any approval for a caretaker’s residence, and in the 2007 development application in Part D the number of employees was shown as zero. One would expect a manager/caretaker to count. It may be a material change of use to bring in a caretaker as a permanent resident to premises which have been presented and used for temporary occupation by transient people. I reject the argument that, just because a long-established use of premises pursuant to a development approval comes within a new planning scheme definition of tourist park, that authorizes use of the premises for anything coming within the new definition, obviating the need for a new approval. My view is that, one way or another, there is a material change of use here, in other words the “MCU point” is good.
That conclusion may be open to challenge. Setting it aside, I have concluded that the Council’s other “points” demand acceptance anyway. The “referral point depends on Item 18 in the IPR Regulation Schedule 2 applying (assuming that Item 15 cannot). Section 33 of the Building Act 1975 provides:
“33 Alternative planning scheme provisions to QDC boundary clearance and site cover provisions for particular buildings
(1)This section applies for work (relevant work) that -
(a)is building assessment work or self-assessable building work; and
(b)is for a single detached class 1 building or a class 10 building or structure located on the same allotment as a single detached class 1 building.
(2)A planning scheme may include provisions (alternative provisions) that, for relevant work, are alternative or different to the QDC boundary clearance and site cover provisions.
(3)However, a planning scheme may include alternative provisions only if the provisions are a qualitative statement or quantifiable standard.
(4)If there are alternative provisions for relevant work, the QDC boundary clearance and site cover provisions only apply to the extent the alternative provisions do not apply to the work.
(5)Alternative provisions can not be made other than under a planning scheme.
(6)In this section -
qualitative statement means a statement about a performance or outcome sought to be achieved when applicable buildings or structures are completed.
quantifiable standard means a standard that achieves a performance or outcome sought under a qualitative statement.”
In my opinion, the planning scheme does include alternative provisions satisfying subsection (3). As I understood Mr Drew’s argument, it is that his approval for a Class 10 building is not for a Class 10 building “located on the same allotment as a single detached Class 1 building” because the accommodation units are all Class 3. See subsection (12)(b).
What is on the allotment already appears to me to comprise at least one single detached Class 1 building rather than Class 3 buildings as defined in the BCA. Mr Drew said he would supply to the court the parts of the BCA that take the accommodation units out of Class 1, which he intimated was to do with a lack of laundry facilities. Nothing has been forthcoming at the time of writing. The classifications in the BCA are:
“Buildings are classified as follows:
Class 1: one or more buildings which in association constitute-
(a) Class 1a - a single dwelling being-
(i) a detached house; or
(ii) one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or
(b) Class 1b - a boarding house, guest house, hostel or the like-
(i) with a total area of all floors not exceeding 300 m² measured over the enclosing walls of the Class 1b; and
(ii) in which not more than 12 persons would ordinarily be resident,
which is not located above or below another dwelling or another Class of building other than a private garage.
Class 2: a building containing 2 or more sole-occupancy units each being a separate dwelling.
Class 3: a residential building, other than a building of Class 1 or 2, which is a common place for long term or transient living for a number of unrelated persons, including-
(a) a boarding-house, guest house, hostel, lodging-house or backpackers accommodation; or
(b) a residential part of a hotel of motel; or
(c) a residential part of a school; or
(d) accommodation for the aged, children or people with disabilities; or
(e) a residential part of a health-care building which accommodates members of staff; or
(f) a residential part of a detention centre.”
Apropos 1(b)(ii), the documents show that occupancy was envisaged not to exceed 1.5 persons per accommodation unit.
In any event, I do not accept his argument that, because of the absence of ticks in the assessment table set out above, the detached dwelling and domestic storage code is not applicable to a tourist park. Such a use requires impact assessment, leaving the assessment manager at large as to impacts considered and in the matter of formulating and imposing conditions satisfying tests of reasonableness and relevance. I think it inconceivable that conditions effectively requiring compliance with the Code would not pass relevant tests and would expect conditions to such effect to be imposed. Approaching the matter sensibly, I cannot accept that the planning history encountered here has produced a lacuna which gives the owner of the site open slather in respect of the introduction of a structure like the one we are concerned with, whether as ancillary to a caretaker’s dwelling or otherwise.
It is s 3.2.12(1) of the IPA that effects lapsing of the building development application which Mr Drew purported to approve. Section 3.3 mandated that the Council (assuming it to be a referral agency) be given a copy of the application. This never occurred, still less occurred within the 3 months allowed by s 3.3.3(2) if lapsing was to be avoided. Section 3.3.20 precluded Mr Drew from deciding the application before relevant events regarding the Council happened. It is well known that relief from the draconian consequences of s 3.3.12(1) is granted by the court from time to time, in most cases with the consent of all parties affected. There must be an application made to the court in that regard (for example under s 4.1.5A of the IPA) and Mr Ross, in particular, might have applied. In this instance there is no such application on which the court might act.
If for some reason the Council should be held to fail in respect of the “referral point” (say, because there is no Class 1 building on the site, even Mr Ross’s residence), there remains the “inconsistency point” under s 84 of the Building Act 1975. This point is perhaps the most straightforward in the Council’s favour. Mr Drew did not really put up any answer to it. Running through the paragraphs of s 83(1), in my view the building development application does relate to an earlier development approval granted by the Council, it being presented as ancillary to the use approved in 1996. Yet it puts a large/shed where the 1996 approval stipulated an accommodation unit (and the 2008 approval stipulated a swimming pool with landscaping) and compromises the visitor parking required. What has been said, in my view, establishes inconsistency with the earlier approval(s). Neither the 1996 approval nor the 2008 one has lapsed. For the latter the four year period applicable is still running. As to the former not having lapsed, see GMA Certification
Group Pty Ltd (supra).
The Council here seeks enforcement orders under s 604 of the SPA. A pre-condition of the court making such orders is the establishment of a development offence. The Council has established the carrying out of assessable development in the absence of an effective development permit in respect of the construction of the garage/shed and its persisting use in the absence of necessary and effective development permits, constituting a development offence under s 578(1). Also, for purposes of s 580, the Council has established the contravention of a development approval.
Getting so far, the Council does not necessarily obtain any relief, because the court has a discretion to decline to grant relief. A dramatic example of the court’s exercising a discretion of this kind to grant a stay of an enforcement notice notwithstanding established illegality in the operation of a shop (a development offence) is Di Domenico v Hervey Bay City Council [2000] QPEC 021. There are no corresponding special features here. It is not a case of a situation that has gone on for a long time, without apparent ill-effects. Mr Ross went ahead knowing the Council’s attitude as communicated in its letter of 10 August 2009 full well. Although the court’s order, if it comes into operation, may require removal of constructed works, something a court would usually be extremely cautious to do, in the interests of avoiding waste, the structure of present concern is a pre-fabricated metal shed which is presumably easily removed and capable of being used effectively somewhere else. it may be that the indulgence offered by the Council to provide Mr Ross with an opportunity to “regularize” matters results in the order ultimately working less harshly than it otherwise might.
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