Daniels v Brisbane City Council
[2005] QPEC 47
•8 June 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Daniels v Brisbane City Council [2005] QPEC 047
PARTIES:
LESLIE WILLIAM DANIELS
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
TERI ROBERTS, COLIN THOMPSON & AUDREY SCHAFERS
Co-Respondents
LESLIE WILLIAM DANIELS
Appellant
v
BRISBANE CITY COUNCIL
Respondent
LESLIE WILLIAM DANIELS
Appellant
v
BRISBANE CITY COUNCIL
RespondentFILE NO/S:
BD 1830 of 2003
BD 619 of 2004
BD 620 of 2004DIVISION:
Appellate
PROCEEDING:
Appeals by developer against refusal of development applications for material change of use
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
8 June 2005
DELIVERED AT:
Brisbane
HEARING DATE:
11, 12 April 2005, written submissions and additional documentary evidence to 3 May 2005
JUDGE:
Robin QC,DCJ
ORDER:
Appeals dismissed
CATCHWORDS:
Appellant made material change of use applications to satisfy the conditions for suspension of a restraining order made by consent in the Magistrates Court in prosecutions for unlawfully using the land – he contended in the appeals that the applications were unnecessary, because the activities of storage (and some maintenance) of a large collection of “classic English motor vehicles” were part of ordinary residential use – whether an estoppel arose – appellant’s contention rejected – the applications were necessary, and should be rejected on the merits – whether or not the appellant had a right to construct a large shed on each property – the material change of use (to regularise longstanding intolerable adverse impact on neighbours) should not be approved – appellant's professed intentions at variance with which his planning advisor envisages – what may be a home based hobby considered.
Integrated Planning Act s 4.1.21, s 4.3.20, Sch 10 (definition of “use”)
Cases cited:
Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31; (1996) 91 LGERA
City of Mitcham v Fusco (2001) 115 LGERA 356
City of Noarlunga v Usher [1981] 48 LGERA
Greet v Logan City Council [2003] QPEC 045
Kilmister v Gold Coast City Council [2002] QPELR 264
Kouflidis v City of Salisbury (1982) 49 LGRA 17
Magee v City of Springvale (1987) 30 APA 52
Mount Gravatt Bus Service Pty Ltd v Brisbane City Council [2002] QPELR 35, 36
Noarlunga v Fusco(1986) 61 LGRA
Partland v City of St Kilda (1989) 41 APA 178
Redland Shire Council v Girling [2004] QPEC 076
Reedman v Rockdale Municipal Council (1985) 19 APA 349
Reynolds v Redland Shire Council [2001] QPELR 184
Simon v Logan City Council [2002] QPELR 53
T Wrafter and Sons Pty Ltd v Brisbane City Council [1999[ QPELR 440
Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 015COUNSEL:
Mr A Vasta QC for the Applicant
Mr T Trotter for the Respondent
SOLICITORS:
Winchester, Young & Maddern for the Appellant
Brisbane City Legal Practice for the Respondent
The main issue in these appeals is whether a “use of backyard shed for a home-based hobby (storing and maintaining motor vehicles)” is part of the residential use of detached dwellings in Hunter Street, Greenslopes. Potentially, that might be the case given the definition of “use” in Sch 10 of the Integrated Planning Act 1997 (IPA) as including “any use incidental to and necessarily associated with the use of the premises”; potentially, relevant planning scheme provisions might authorise a wider range of uses as “ancillary”, say, which may extend beyond some use or activity “necessarily” associated with a residential use. The Appellant’s contention was that his “hobby” activity is part and parcel of residential use.
The use described in para [1] was applied for in his Form 1 Development Application IDAS lodged with the Council on 17 October 2002 in respect of 51 Hunter Street, Lots 101 and 102 on RP 12905, having a site area of 809m2. The Council’s refusal of the development application is the subject of Appeal 1830 of 2003. The three named co-respondents were adverse submitters (the Council having maintained that the application was impact assessable); they were not represented in the appeal but Mrs Roberts gave evidence in the Council’s case. It is reasonable to take her concerns as representative of those of other residents of Hunter Street, also of those who are “back fence” neighbours of Mr Daniels. Mrs Roberts and her family have been residing at 11 Hunter Street for the last 10 years, as downhill neighbours of 7-9 Hunter Street, another 809m2 property comprising Lots 78 and 79 on RP 12905, owned by Mr Daniels, but the residence of his wife. The Form 1 Development Application IDAS in this instance was lodged on 4 August 2003, proposing a use of “home-based hobby in rear shed”. The accompanying report of Mr Craven, a town planner who assisted in preparation of all the development applications, indeed is shown as a co-applicant in them, describes the proposal in terms of a “Development Permit for a Material Change of Use to permit the use of a soon to be constructed backyard shed for storing a collection of classic English motor vehicles.”
Mr Craven’s report to the Council expanded the description of the proposal as follows:
“The applicant proposes to use a 90m2 (15 x 6m) shed that is soon to be erected in the backyard of 9 Hunter Street for the purpose of storing some 20 classic English motor cars. Many of the vehicles are retained for spare parts; those vehicles, and parts from them, are proposed to be stored in racks above ground level, leaving the ground space clear for storing up to 7 mobile or potentially mobile vehicles.
Although the application over no 51 Hunter Street involved a repair and maintenance component, this is not the case with this application. The proposal is for storage only - all repair and maintenance work will be carried out off the site.
Mr Daniels is an avid collector; he has over 30 years assembled a formidable collection. As I understand it, while maintenance and some mechanical repairs are planned, these activities are for maintaining and restoring the collection, not for financial reward, and realistically, such activities occupy very little time - perhaps 2-3 hours per week. I also understand that Mr Daniels has not sold a single vehicle from the collection in that period. He is not therefore a man making a living from restoring and selling vehicles from the property.
Although plans of the shed form part of this application, neither a preliminary approval nor development permit for building works is sought. Its construction can be facilitated by approval of a building application.
By accommodating the vehicles in a shed, Mr Daniels seeks to address the fundamental concerns voiced for some years by some residents and Council officers that keeping vehicles under the house and in the yard is allegedly unsightly and potentially unhealthy. Inside a shed, the erection of which is self-assessable, the vehicles will not be visible to neighbours or from the street. Similarly, as no repairs or servicing are proposed, there will be no associated noise or other amenity impacts.”
Also lodged with the Council on 4 August 2003 was a very similar application in respect of 52 Hunter Street, Lot 248 on RP 12906 and Lot 2 on RP 42150. Although a number of documents show the area as 809m2, the court was told, and it would seem to be the fact that the area is 607m2. The shed proposed is 56m2 only, to store 15 “classic English motor cars.” The 2004 appeals are about the two 2003 development applications by Mr Daniels, also rejected by the Council, relating to 9 Hunter Street, and to Mr Daniels’ third residential property in the area, which is 52 Hunter Street. The appeals contain his complaint that the Council assessed excessive fees in respect of his development applications.
Number 52 has been Mr Daniels’ home since his birth in 1939. He inherited from his father, who died in January 1972. That was not a good year for the family. In August he suffered an industrial accident which left him with back problems. While working, he had accumulated various trades, fitter and turner, motor mechanic, heavy equipment fitter and diesel fitter; he also got experience in air conditioning refrigeration. From his father he learned French polishing. As a boy he was interested in maintaining and rebuilding bicycles. He graduated to motorcycles, then cars, beginning with a Wolesley 680 in 1959. His new life circumstances, after his injury, led him to realise he would not be able to work fulltime again. Wishing to remain active, he saw an opportunity to acquire cheaply English cars of the period in which he had “specialised” (the Wolesley 680 was replaced by a Mark VII Jaguar):
“I decided that I had to hop in then and buy the ones I wanted for restoration. And then, of course, when you buy any old car and you’re over 10 years old, you have to buy one or two wrecks of the same model for parts.”
The “collection” grew quickly. It spilled over from 52 Hunter Street to 7-9 Hunter Street by the mid 80s when that property became available for purchase by Mr Daniels. A particular benefit here was that the family, which had broken up some time after his injury, could be brought closer together by Mrs Daniels and their son moving in. Mr Daniels used some of his compensation arising from his injury for the purchase. 51 Hunter Street was acquired in December 1995 in the joint names of Mr and Mrs Daniels. It was said to have become the residence of their son.
About 1995 No 51 Hunter Street became available for purchase. Mr Daniels had already in place arrangements with the elderly lady who owned it to store some vehicles underneath the house. The purchase was made by Mr and Mrs Daniels jointly; she gave the necessary consent to the IDAS development application. The shed proposed for this site is the biggest – a two-storey structure with a footprint of 120m2. The shed proper would be some 77m2 of floor space on each level, the balance of the footprint being made up by an attached car port. Mr Craven’s outline of the proposal for the Council became the template adopted in the later applications, except that, for those, the following statement was deleted:
“Any associated repairs or servicing are relatively innocuous activities, the visual impacts of which would also be addressed by their occurring in a shed.”
As to the use of this shed, Mr Craven contemplated:
“Storing some 20 classic English motor cars. Many of the vehicles are retained for spare parts; those vehicles, and parts from them, are proposed to be stored in racks above ground level, leaving the ground space clear for storing and working on up to eight mobile or potentially mobile vehicles.”
A short history of the Council prosecutions
Mr Craven has done an impressive job for Mr Daniels. He was brought in as Mr Daniels got into deeper and deeper trouble with the Council because of his activities. Exhibit 10 contains documents assembled by the Council relevant to prosecutions successfully instituted by it. The first documents adoption of the Health Committee’s recommendation of 29 May 1984 calling for notice in writing requiring removal of goods and materials within 30 days in respect of “an unsightly collection of goods and materials consisting of a collection of unregistered vehicles, motors, motor pieces, scrap metal, bicycles, old hosing, and other miscellaneous items” at 52 Hunter Street. Whether or not complaints from neighbours led to the Council’s becoming interested, the submissions from residents of Hunter Street, Denman Street (the next parallel street to the north) and Headfort Street (the next parallel street to the south) indicate the distress occasioned to our neighbours from the 1970s on by the state of Mr Daniels’ properties.
The court did not hear what was the outcome of the Notice of 13 June 1984 given by the Council under Ch 12 Pt 2 Div 7 of its Ordinances. Exhibit 10 shows the first complaint and summons against Mr Daniels issued in April 1990, following a visit and warnings to No 52 Hunter Street and to No 9 Hunter Street on 15 February 1990. Mr Daniels wrote a letter of 27 July 1990 pleading ill health, bad weather, lack of understanding on the part of Council officers, filling carried out by a neighbour (“which turned my backyard into a quagmire in which no work could be done”) and various emergencies. He wanted a single Council officer designated “with the necessary sympathetic understanding, with whom (he) might discuss a realistic timeframe in which this problem can be solved without further unpleasantness, bearing in mind that a collection of cars put together over 17 years can not be put into storage in a few weeks as storage at affordable cost takes time to locate.” The next complaint and summons (relative to the same two properties) was issued on 26 August 1996. These related to carrying out development for a prohibited purpose by using land included in a Residential “B” Zone for the purpose of a storage yard, contrary to s 28 of the Town Plan and to s 3.1 of the Local Government (Planning and Environment) Act 1990. The planner’s request for an order pursuant to s 3.23(5) and (6) of that Act appears to have been successful, as the next complaint and summons issued 20 February 1998 relate to failure to comply with a restraining order said to have been made on 2 October 1996.
Next comes a trio of complaints and summonses issued 3 November 2000, (although only one is dated), one relating to each property. Each alleges the carrying on of an unlawful use of the relevant premises (Storage Yard in a Residential B Zone). On the day when the matters were listed for hearing, 5 July 2001, Mr Daniels pleaded guilty. He was fined $9,000, and ordered to pay costs of $4,500. In addition, in respect of each property, the Magistrate made a “prevention order” under s 4.3.20(1) of the IPA, requiring cessation of any use for the purpose of storage of motor vehicles, parts, etc in the open without a development permit “… where that storage is not ancillary to the residential use of the premises”, what was ancillary being specifically limited to three vehicles; subject to that, Mr Daniels was ordered to remove all motor vehicles, parts etc. Pursuant to sub-s (4) the final date set for compliance was 5 October 2001. Council compliance officers visiting Mr Daniels on 15 November 2001 established there had been no compliance. According to their report, Mr Daniels said “a couple (vehicles) have gone, I’ve got three more almost ready to go”; he said he was doing the best he could: “I can’t find a yard.” Another trio of complaints and summonses (16 January 2002) followed, charging contravention of the orders of 5 July 2001. The new proceedings were to come on on 18 July 2002. The upshot of them is indicated by the final document in Ex 10; it is a Magistrate’s order which –
· recited the conviction and fining of Mr Daniels on that day in respect of three offences pursuant to s 4.3.20(5) of the IPA on 15 November 2001 at each of the addresses
· recited the Council officer’s application for further orders under s 4.3.20(1)
and ordered as follows:
“1) that LESLIE WILLIAM DANIELS, subject to the matters referred to below:
a)cease to carry on upon the (sic) each of the subject lands any use for the purpose of the storage of motor vehicles or any or all of (without limitation) motor vehicle parts, accessories, components and other miscellaneous items of machinery and equipment, in the open without a development permit and in contravention of the planning scheme for the City of Brisbane where that storage is not ancillary to the residential use of the premises. (For the purpose of this Order the number of vehicles considered to be ancillary to the residential use of each of the premises shall be limited to three vehicles);
b)remove from each of the subject lands all motor vehicles or any or all of (without limitation) motor vehicle parts, accessories, components and other miscellaneous items of machinery and equipment, currently stored in the open that are not ancillary to the residential use of the premises and that constitute a contravention of the Planning Scheme for the City of Brisbane;
c)unless LESLIE WILLIAM DANIELS removes from each of the subject lands all motor vehicles or any or all of (without limitation) motor vehicle parts, accessories, components and other miscellaneous items of machinery and equipment currently stored in the open that are not ancillary to the residential use of the premises (including as specified in subparagraph a) above) and that constitute a contravention of the planning scheme for the City of Brisbane within 60 days from the date of the commencement of this order pursuant to paragraph 3 hereof, the BRISBANE CITY COUNCIL shall be at liberty:
i)upon not less than 7 days written notice forwarded by registered post to LESLIE WILLIAM DANIELS at 52 Hunter Street, Greenslopes or such other change of address as is notified in writing to the manager of the Brisbane City Legal Practice, to exercise its powers pursuant to s.1066(1) of the Local Government Act 1993 and enter each of the subject lands and perform such work as is required to remove such items from each of the subject lands;
ii)failing notification in writing by LESLIE WILLIAM DANIELS to the manager of the Brisbane City Legal Practice of the Brisbane City Council (given not less than 24 hours prior to the entry referred to in subparagraph i) above) of a lawful place of storage to which the items removed may be lawfully stored on his behalf and at his cost, to have the goods appraised by a person nominated by the Executive Director at the time of the Motor Trades Association of Queensland (such person so nominated hereinafter referred to as “the nominee”) for their commercial saleability and thereafter to dispose of the goods:
(1)as regards those items which it is advised are commercially saleable by the nominee by selling or attempting to sell such items, divided into such lots as it is advised by the nominee or agreed between the parties is appropriate, at a public auction held at such place and at such time as it thinks fit;
(2)as regards those items which it is advised are not commercially saleable or which, in the event of their public auction as aforesaid are not sold, by destroying or otherwise disposing of such items in such manner as advised by the nominee or as agreed between the parties;
iii)to disburse the proceeds of any sale of such items in priority as follows:
(1)in discharge of the amount properly and reasonably incurred for costs or outlays incurred by the Council of the removal and sale of such items;
(2)in discharge of the amount of any outstanding legal costs (if any) ordered to be paid by LESLIE WILLIAM DANIELS upon conviction of the above offence; and
(3)if any excess remains, to LESLIE WILLIAM DANIELS;
iv) to recover any amount properly and reasonably incurred for costs or outlays incurred by the Council for the removal and sale of such items or any part thereof that is not discharged by the proceeds of any sale of the items in accordance with paragraph (c) above by exercise of any of its powers under ss. 1066, 1067 and 1068 of the Local Government Act 1993 and for such purposes the amount of such costs or outlays shall be deemed to be equally apportioned between each of the subject lands;
2) that LESLIE WILLIAM DANIELS may make any further application in respect of any of the subject lands pursuant to the Integrated Planning Act 1997 to remedy the unlawful use on each of the subject lands within 28 days from the date hereof;
3) that provided LESLIE WILLIAM DANIELS uses his best endeavours to prosecute or pursue the development application dated 17 October 2002 made in respect of the 51 Hunter Street land and any other application made pursuant to paragraph 2 above and any appeals therefrom to finalisation in an expeditious manner, the operation and commencement of the Order in paragraphs 1a), b) and c) above shall be:
a)suspended until the date of the final decision or order on appeal therefrom made in respect of each of such development applications; and
b)subject to the express terms of any such final decision or order on appeal therefrom whereby the unlawful use of the subject lands for the purpose of the storage of motor vehicles or any or all (without limitation) motor vehicle parts, accessories, components and other miscellaneous items of machinery and equipment is approved in whole or in part;
4) the Order in paragraph 2 shall commence on the date hereof.
5) that the parties have liberty to apply.”
Exhibits 8A, 8B and 8C consist of photographs, whose reliability as at the dates ascribed to them was confirmed by Mr Daniels from the witness box, depicting aspects of what could be observed by way of motor vehicles, parts and other items (such as sheets of corrugated iron) on (and in some cases parked outside) No 51, No 52 and No 7-9 respectively. The earliest dates in each case are 8 February 1997, 9 December 1986 and 7 December 1990 respectively. What is depicted is consistent with what could be observed from outside the premises when a view was undertaken with counsel on 12 April 2005, the second day of the hearing of the appeals.
The Magistrate’s order set out above was the outcome of negotiations between the Council’s and Mr Daniels’ legal representatives. The development application referred to in para 3) of the order was already before the Council. It determined to proceed with further enforcement in respect of No 52 and No 9, which were not the subject of any development application. In respect of No 51, following refusal of the development application of 17 October 2002, Appeal 1830 of 2003 was filed on 6 June 2003. Mr Daniels then started Claim 2330 of 2003 in the District Court on 14 July 2003 seeking:
“1.A declaration that on the proper interpretation of an agreement in the form of a consent order made in the Magistrates Court at Brisbane on 18 October 2002:
a. the operation and commencement of Clauses la), b) and c) of the agreement/consent order are suspended because the Plaintiff has complied with the proviso to Clause 3 thereof;
b. the Defendant by itself or its servants or agents or otherwise has no right to take action pursuant to clauses la), b) and c) of the agreement/consent order or otherwise to give notices to the Plaintiff and/or remove any of the Plaintiff's motor vehicles or motor vehicle components from the subject lands referred to in the statement of claim for sale or otherwise.
2.An injunction, interim and/or permanent or until further order, restraining the Defendant by itself or its servants or agents or otherwise from taking action pursuant to Clauses la), b) and c) of the agreement/consent order or otherwise and from giving notices to the Plaintiff and/or from removing any of the Plaintiff's motor vehicle components from the subject lands referred to in the statement of claim for sale or otherwise.”
The court had the District Court file brought up in light of the tendering in the appeals as Ex 14 of Judge Brabazon QC’s order made in the Claim on 28 July 2003, presumably by consent, as follows
“(1)The time within which the appellant. Leslie William Daniels. may make further application under paragraph 2 of the order made 18 October 2002, be extended to 4 August 2003.
(2)Any notice of compliance under s3.4.7 of the IPA be given within 7 days after, the notification period has ended.
(3)Any appeal from any decision made by the Council on the applications under paragraph 1, be lodged within 5 business days of the notification of the decision
(4)Subject to direction of the Court, all appeals be heard together
(5)The issue relating to the quantum of fees payable in respect of the making of the application already under appeal and any further application be reserved to the Planning & Environment Court hearing
(6)Any remaining questions the subject of these proceedings be reserved to the same Judge
(7)In the event any step in paragraph 1,2 or 3 'above is not taken within the time stipulated, my suspension of the orders made 18 October 2002 in respect of that parcel of land in respect of which there has been default shall cease”
Two weeks earlier, the Council had given the District Court an undertaking “not to act on the Magistrate’s Court Order of 11 July 2003”; the implications of this were not gone into – what was ordered on 11 July 2003 has not been established. The undertaking is noted on the Order Sheet in 2330 of 2003.
Mr Vasta QC, for the Appellant noted the element of “compulsion” in the situation and submitted that:
“1.5The application which was lodged in these circumstances and those lodged subsequently pursuant to the order of Brabazon DCJ on 14 July 2003, do not have the effect of the making of a concession that the essential nature of what the Appellant seeks to undertake requires the making of an application for approval of “a material change of use” of the premises. Moreover, the lodging of the three applications cannot have the effect of conceding that the Appellant seeks to construct three “warehouses” – one on each of the nominated premises.”
Both the sheds and the Appellant’s “hobby of restoring vehicles (see s 2) are asserted to be part and parcel of ordinary residential use.
The Appellant’s evidence and intentions
Mr Daniels gave the court his own account of the numbers of vehicles on his properties. At 37, this appears during his cross-examination:
“…9 and 52, I think there were a total of 63 cars on the two properties. A number of those were registered cars. Nearly all of them were on wheels. There was a couple of partly stripped bodies
…
… That was about mid 1990 or later … .
…
… but by the time the council came in November I had removed at least a dozen cars and another 6 at least had been cut up and removed.
How many do you have now in total on the three properties?--
I've never had time to count them actually.
Would it still be something like 50-odd?-- It could be on the three properties, yes. … .
In fact, when the council officers came out in either 2001 or 2002 a count was carried out and there were about 53 over the three properties then; would that seem right to you?-- That would be about right.
Mr Daniels, on the 17th of August 1990 you gave an undertaking, did you not, with respect to the removal of the vehicles?
…
You undertook to remove a very substantial number of cars from the site in that document?-- Yes.
And not to replace them; correct?-- Except for the ones specified in the agreement.
There are about 7 or 10 that are specified there?-- Yeah.
But a year later you had 63 vehicles on the property; is that correct? That's what you told me?-- It wasn't quite a year later but …
…
… apart from 10 or 15 cars, all the other cars were to be removed; correct?-- Yes.
You didn't do that, did you?-- No.”
The Council took strong action, which Mr Daniels has keenly resented, removing some of his vehicles to storage at Pinkenba. He told the court (T p 32) that “they’re the subject of a Supreme Court action” (see also T p 57). At p 58 Mr Daniels complained of the tow truck driver engaged by the Council allegedly stripping some parts from the Mark IX Jaguar without authorisation and of the Council’s denying him access, even the opportunity of discussion. In cross-examination he revealed his wish to retrieve the cars at Pinkenba:
“… are you saying you want to bring more cars back to
these properties?-- I want to put the cars - the cars that
are listed in that agreement that I was allowed to keep on the
property, most of them are down at Pinkenba deteriorating or
being vandalised.… I intend to bring the cars that should not have been taken back to there and the cars on the property - some of the cars on the property will go to the paddock.
…
How many in number went to Pinkenba?-- I think they totalled it at 35, but two of them were stripped bodies ready to go to the wreckers, and I think they dumped them.
You have 35 at Pinkenba which you intend to bring back to Hunter Street?-- No, not at all once, no. The idea is that some of those cars there are parts cars also and put them to a paddock.
You have 35 cars at Pinkenba that you intend, not all at once, but you intend to bring those additional 35 cars back on top of the 50-odd that you have at Hunter street now?-- There's - actually it's not 35 that were taken to Pinkenba. There was a couple of them that were dumped, different body shells which I intended to dump and they dumped them. So slightly less than 35 at Pinkenba, but some of them are registered.
Can we agree on 30 at Pinkenba?-- At least 30, yes.
At least 30. You're bringing those 30 back to Hunter Street?-- No.
Not all in one go, but you intend to bring them back?-- I intend to bring back the classic restoration cars as soon as possible and put them undercover, and then find storage for the other places, other cars. As I have explained store the parts cars in a rendered paddock and bring them home one at a time to be dismantled and the surplus body parts disposed of.
All I want to know is a simple question and I will try and ask it clearly. How many cars do you intend to bring back from Pinkenba?-- Well, immediately there's about 8 immediately I'd
like to bring back.Look, I'm not interested in whether you say you're going to do it immediately, or next week or the week after. How many cars do you intend to bring back from Pinkenba?-- Well, not all them to the properties, no. I can't give a number on it.”
Re-examination included the following:
“.. Mr Daniels, talking about Pinkenba, you said that
there were some registered vehicles that were taken by the
council and they're at Pinkenba. Are you continuing to pay
the registration on those?-- Yes.What cars are they?-- There's the Mark 9 Jaguar which has
been mentioned, there's the Humber Snipe and there's the
Humber Hawke.They were taken, what year was that, roughly? Was that '93?--
It was on 31 October and 1 November 1991, the Thursday and
Friday.…
… which ones do you have in mind to be – to bring back from Pinkenba for the purposes of restoration? Which are your priorities?-- Well, the priority is the Mark Nine Jaguar, the Humber Snipe and the Humber Hawk.”
The foregoing quotations give a good idea of the flavour of Mr Daniels’ evidence. I think his evidence was honestly given, one indication of which is his repeatedly foregoing opportunities to downplay the possible extent of his activities in the future. I would say that he was honest in his statements to Council officers recorded in Ex 10. There he acknowledges the impact of his activities on neighbours, the effect on the values of their properties, and the like. One lady wrote in her submission to the Council:
“… his yard has always been packed with old cars. Never have I seen him tinkering with them as you would expect, were it a hobby. They have just been left there to rust amidst the overgrown grass. I therefore question that this will be a real hobby.
If the proposed storage were to be erected, it would house very few of his cars, and I am quite sure the overflow would just remain in the yard as an eyesore, along with all the useless rubbish that is scattered over the property, or be transferred to his other properties in the area, which are similarly used for his obsession.
I believe that this man is not sincere in his proposal to clean-up, but is rather dodging authorities, as there have been previous attempts to have him clear his property, all to no avail.
Greenslopes is really an attractive suburb in which to live, but such unhealthy and ugly impositions on the community, has in the past been a reason for some people to move …
If I felt that his proposal would be a step in the right direction, and that it would solve all the problems, I would not have a strong objection, but knowing the habits of this man over the years, I have no reason to believe that he would “clean” and make amends, but rather fail to comply, and make the Council a laughing stock.”
The foregoing should not be treated as evidence of its truth. For one thing, the writer was not called. Nevertheless, in broad terms it expresses views that the court reaches on the evidence generally. I think it would be unfair to assess Mr Daniels as dishonestly setting out to “string along” the Council or the court. That said, it seems to me the conclusion cannot be escaped that Mr Daniels is completely unrealistic in formulating his plans and that there is not the slightest prospect of their coming to fruition. If he has achieved restoration of any car(s) over the last two decades or more (over which he has been the subject of Council attention), it would not be more than one or two out of the scores he has had. Assuming that passing years will exact their toll on him as they do on all of us, the prospects of anything much being achieved in the future are slight. Perhaps fortunately, nothing came of the project Inspector Ross was apparently told of on 15 February 1990 in response to his asking whether Mr Daniels’ activities were fair to the neighbours:
“H.S.: “I suppose not, but I’m going to put a fence up.”
I.S.:”You’d have to put a very high fence up to shut out their view of your yard.” (both adjoining houses were high-set dwellings).
H.S.: “I’ve bought a load of iron to put one up.”
Inspector Ross said:
“You’re going to use this secondhand, rusty, corrugated iron to put a fence up?”
H.S.:“I can cut the rust out and paint the fence. It would look alright.”
Inspector Ross said:
“Your workload seems to me to be massive, how will you find time to restore the cars?”
H.S.: “I’ll get to it.”
H.S. and I.S. no doubt indicate he said – I said. This author (who may be Mr Reason) located 30 vehicles at No 52, described as follows:
“Three unregistered Jaguars; Five unregistered Morris 1100 sedans; Nine unregistered Humbers; One unregistered Hillman; One unregistered Mini-Van; Six unregistered Marinas; a grey Humber, NTK 440; a beige Mini, PHE 751; a white Morris 1100, PKC 353; a blue Humber, NWS 000 and under the house, a white Jaguar, NOB 699.”
No fence went up. Nor did Mr Daniels comply with the undertaking he signed on 17 August 1990:
“I Leslie William Daniels undertake to the Court to remove from my properties at No 9 and 52 Hunter Street Greenslopes all cars, car parts, and CAR Bodies with the exception of 7 spare engines, the vehicle owned by my wife six vehicles owned by my son and five vehicles owned by myself by 30/11/90 and I undertake not to bring on to the properties any other cars car parts or car bodies with the exception of replacements for the above described vehicles, if any of same are removed and also undertake to stack the seven replacement engines under the house at no 52 Hunter Street.
Signed L.W. Daniels
17/8/90
Mr Daniels spoke of his intention to build a shed at 51 Hunter Street “and store everything in it, the tree will have to go” on 14 March 2000 according to the record of a conversation which supposedly occurred on that day in Ex 10. That may have had some influence upon the limitations to storage “in the open” contained in the order made when matters relating to that date finally came before the Magistrates Court on 5 July 2001. No shed has yet eventuated, although Mr Daniels’ advice from Mr Craven is that (subject to standard setback and height requirements and so on, and a building permit which a private building certifier could give) Mr Daniels is entitled to construct sheds and store his property in them.
Speaking generally, Mr Daniels does not get around to doing those things he declares he intends to do, whether they be cutting up vehicles, removing them, storing them in or under buildings, locating other premises where vehicles may be stored, or other projects. Assuming that the requisite permit(s) for construction of a shed or sheds were to be obtained, there is really not the slightest justification for contemplating that Mr Daniels would get any shed constructed, still less use it to store the unsightly items still in the open. The substantial exercise of clearing space to permit the construction of any shed would exceed Mr Daniels’ capacities as demonstrated to date. There is no reason to hope for any improvement in them. It ought to be said that such reasons as Mr Daniels has advanced for his lack of progress in fulfilling his own stated intentions to this time – essentially, he blames the Council for frustrating him, or distracting him – are totally unconvincing.
No order the court is asked to or might make could, with any confidence, be anticipated to result in the outcomes Mr Craven has designed for Mr Daniels’ properties. Approved sheds might or might not go up. Mr Daniels’ evidence made it quite plain that Mr Craven’s carefully devised scheme for getting everything (both chattels and activities) out of sight inside sheds is not embraced by Mr Daniels. He has no intention to strip vehicles in anything like the number envisaged by Mr Craven – who expected that useable parts would be stored with considerable economy, the “carcasses” disposed of.
In the ordinary case, this court is ready, perhaps too ready, to take developer/applicants at their word, proceeding on the basis that what they say they intend will happen. That usually accords with the outcomes envisaged by their planning consultants. Mr Daniels makes it clear he does not intend to be restricted in the ways Mr Craven envisages. Further, he has a proven track record of unreliability. It would be irresponsible of the court to disregard those matters – to disregard the actual history of decades of experience of Mr Daniels’ activities and their impacts on his various sets of neighbours. It is the neighbours who will have to live with the consequences of the court’s orders in these appeals, as well as the Appellant and his family.
The Notices of Appeal
What the Appellant seeks, and the grounds relied on may be found in the Notice of Appeal filed on 6 June 2003:
“LESLIE WILLIAM DANIELS of 52 Hunter Street, Greenslopes, Brisbane in the State of Queensland appeals to the Planning and Environment Court at Brisbane against the Decision Notice of the Respondent set forth in the Decision Notice dated 9 May 2003 and seeks the following Orders or Judgment:
(a) This appeal be allowed.
(b) The Decision Notice be set aside and
(c) The Appellant’s development application be approved.
(d)That the Respondent's decision to categorize the proposed development as being minor rather than domestic be set aside and the higher development assessment fee paid for the consideration of the Appellant's application be refunded
(e)Such further or other Order as this Honourable Court deems fit.
(f)The Appellant’s costs of the appeal be paid by the Respondent.
The grounds of appeal are:
1.The Appellants are the registered proprietors of property situated at 52 Hunter Street, Greeenslopes, Brisbane in the State of Queensland ("the Land").
2.The Appellants have applied to the Respondent for approval of a development application for construction of a shed upon the Land and the use of the shed for the purposes of the Appellants hobby.
3. The Land is situate in a residential locality.
4.The purpose of the construction of the shed is to enable storage of vintage cars and working upon those cars.
5.The Appellants were notified of the Respondent's decision on the 12 May 2003.
6.The Respondent's refusal ought to be set aside on the following grounds:
a)The construction of the shed does not require approval by the Respondent therefore visual issues are not relevant;
b)Issues of buffering and screening can be handled by a condition imposed for landscaping and submission of a landscape plan and it is not ground for a refusal;
c)The issues of visual compatibility, buffering and screening are concerns which ought to have been raised in an information request and the Respondent failed to do so;
d)Any noise and environmental impacts especially those associated with run off, cleaning and disposal of used fluids can be dealt with by an imposed condition;
e)The Respondent's concerns regarding the environmental impacts and pollution control ought to have been raised in an information request and the Respondent failed to do so;
f)The level of activity intended by the Appellant and the consequential issues with noise, environmental impacts and pollution will be minimal and can be handled with minimum impact on the environment;
g)The Appellant has used the subject land and other properties particularly number 51 Hunter Street and number 9 Hunter Street to store and work on his car collection since 1960 and did so in accordance with the permitted use of the land under the existing town plans until 1989 at which time the Respondent commenced a series of proceedings to prevent the Appellant's use of his land for the storage of his car collection and working on his car collection. The Appellant has had the expectation of being able to use his land for the purposes of car collection and the use is not incompatible with the surrounding residential use. The Appellant does not conduct a commercial activity upon the Land;
h)The Appellant does not conduct any commercial activities upon the land. The Appellant resides in the premises upon the land with his son and the only vehicles brought onto the land are vehicles owned by the Appellant, his son or his wife who resides at 9 Hunter Street, Greenslopes;
i) The Appellant’s intended intensity of use does not constitute a industrial use and there is no requirement for industrial levels of servicing;
j)Any noise impacts can be the subject of conditions imposed by Council as to the hours during which work can be performed;
k) The Appellant’s level of intensity of use means that one or two vehicles will be the subject of work at any one time and vehicle maneuvering will not be an issue.”
The above is representative of all appeals. Only it seeks order (d). Also, d), j) and k) are replaced in the other appeals by the contention that:
“d)The Appellant’s proposal is for “storage of motor vehicles and the environmental impacts (if any) can be dealt with by an imposed condition.”
Sheds
The court is concerned with development applications for a material change of use, and not with any application to authorise the building of a shed or sheds. Backyard sheds are a common feature of residential uses, as Mr Craven says. The Council argues that the use intended for a shed will determine what permits or approvals are necessary: approval of a new of more intensive use might be required. In practical terms, there may be a presumption that an unremarkable shed forms part of the residential use – if it is to be used for storing wheelbarrows and garden tools, motor mowers, leaf blowers, furniture not currently needed in the house, and that sort of thing. There may be circumstances in which sheds applied for are so unusual that appropriate enquiry would reveal that approval of a material change of use was needed. See for example Kilmister v Gold Coast City Council [2002] QPELR 264. It is quite conceivable that a person might wish to have a shed for the sake of having one, or to emulate neighbours, without any intention as to what it will be used for. I would think that, in Brisbane, given the state of current planning scheme arrangements, there would be no use issues in relation to a backyard shed to be erected behind a detached dwelling house. The local government may regulate construction of sheds, as was the case in Greet v Logan City Council [2003] QPEC 045, where an amenity and aesthetics assessment by the Council was required where the floor area exceeded 60m2. Brisbane has not done so.
Mr Craven identified (and the court saw on the view) in the vicinity of Hunter Street a number of large sheds, which he estimated ranged up to about 110m2. Some were as tall as the proposal here for No 51 (which has the advantage from the point of view of visibility from Hunter Street that on the falling site it may be concealed by the house in front). The tallest sheds were of corrugated iron, and of some antiquity. Minds might differ as to whether that factor endowed them with some charm or historical interest that would not attach to something newer. Of more recent date were large “garages”, including one with three tilter doors and a fourth smaller door alongside. Mr Craven did not rely on a large two-storey structure in Headfort Street backing on to the line of the rear boundary of No 52 Hunter Street, on the basis that the upper level appeared to be a granny flat. It could be seen that the lower level, which has a quite high ceiling, and its environs were being used to store large quantities of building materials. Mr Daniels’ photographs in Ex 12 confirm that the valued pre-war residential character of Hunter Street and surrounding streets, which Brisbane’s planning arrangements take so much trouble to preserve, has been compromised by the letting through of some large multi-unit residential buildings whose effect is to detract from the visual enjoyment to be derived from the streetscapes. Speaking generally, that is considerable as vegetation flourishes and owners improve their pre-war dwellings or maintain them in good condition (it is not possible to make that observation of any of Mr Daniels’ properties: his energies and attention have obviously been devoted elsewhere).
The submitters in many cases expressed concern about the appearance of the proposed sheds, which will be of zinc-alume or similar, although the bottom part of the two-storey shed will use some chamferboard. Mrs Roberts was concerned about the blocking and blighting of her presently pleasant outlook from her rear balcony. It seems doubtful that anything can be done to alleviate those concerns, except by way of conditions as suggested in the Notices of Appeal. Such conditions can be imposed only if there is approval of a material change of use. If no such approval eventuates, it may be that Mr Daniels loses interest in proceeding to have sheds erected. Only time will tell.
What consequences might follow success of the appeals?
The court is conscious that granting all or any of the approvals sought in the appeals may work mischievously. It appears that Mr Daniels would be in a position to assert that the Magistrate’s order of 17 October 2002 no longer had any effect. Yet nothing might eventuate to ameliorate the totally unsatisfactory situation in Hunter Street. Sadly, that is the strong probability.
Another consideration militating against the court’s granting any approval is that, unless extraordinary qualifications were attached – and there has been no suggestion from the Appellant that this ought to happen – any approval of a material change of use would run with the land, indeed with the whole of the land, so that residential use might cease altogether. The court might be approving the establishment in Hunter Street of three separate car storage yards or “warehouses”, not to mention an industrial-type activity on No 51. Each site has its own coterie of neighbours, side and rear. The sad impacts of what presently exists next door to them (clearly indefensible in terms of what is neighbourly) may well be exacerbated. On the evidence in the appeal, Mr Daniels is essentially inactive in pursuing his “hobby”. I accept from him that the complaints he gets are about unsightliness, that there are none about noise. There was some evidence about spillage of grease and oils from vehicles, or the potential for that, which may have an odour aspect and a pollution aspect. The evidence does not show any history of actual problems. Indeed, this is a respect in which Mr Daniels has described means which he says he employs, to collect and dispose of such waste, grease and oils as his limited activities generate. Future owners of the sites, free to exploit any new permitted use, may choose to do so at a much greater scale, to the detriment of everyone else and the amenity of the area.
Mr Daniels’ plans
The court cannot be fairer to Mr Daniels than to acknowledge and proceed on the basis of his own account from the witness box of his intentions. That evidence explodes the whole basis of Mr Craven’s clever planning solution of concealing in sheds everything that is unsightly, and a blight on the visual amenity of the neighbourhood. It will be recalled that he envisaged that many of the cars in his counts would not remain intact but the broken up, with useful components retained and stored, the rest (most likely bulky carcasses) disposed of. It is clear that Mr Daniels is extremely reluctant to dispose of any car, and that he intends to do a good deal of storage, even work outside the sheds on each of his properties. Mr Trotter (for the Council) asked him about No 7-9 at T p 42:
“Do you think that it's fair to suggest that there is absolutely no prospect whatsoever of storing 20 classic English cars in the 90 square metre shed? Do you agree with me?-- Yes. That was a minor error because I didn't have direct communication with Mr Craven at the time and it's probably taken from notes between the solicitor and I and in transcribing it's possibly that the actual intention was not clearly transposed.
It's-----?-- The intention is it is possible to fit 20 cars on the property with some of them under cover.
But it's your intention, is it not, to keep 20 cars on the property?-- Up to 20 cars, yes.
If you keep up to 20 cars at number 9 Hunter Street, Greenslopes, it's perfectly clear, is it not, that you will not be able to fit them in the shed?-- Quite clear.
You may be able to fit four or five in the shed but the other-----?-- It was intended to add a carport at some later stage which would take at least another two cars and by rearranging the stumps, et cetera, under the house there's room to fit two or three more there. At present there's only room for one under the house.
I understand what you are saying. But as far as the shed that is proposed for number 9, you may get four or five cars in it, perhaps a few more?-- Yes.
The rest of the cars, the other 20, they will remain much in the same way as they are on the site now; is that correct?-- I would expect to have a maximum of five cars somewhere in the yard, probably two of them in a carport, and the rest could be fitted under the house-----
I want to-----?-- -----when that rearranging is done.
Sorry, I didn't mean to cut you off. If I did, please finish?-- When certain rearranging is done by rearranging certain stumps and putting girders across it would be possible to fit about four cars under the house instead of one.
I just want to make sure that I understand it completely. It is not now and it has never been your intention to store all the cars on number 9 Hunter Street in the new shed?-- No.
You intend to use the new shed, under the house, any parts of the driveway or other yards that's necessary for the storage of these cars?-- I don't expect it to be necessary to block the driveway, except I always like to keep a car, one that's mobile and registered, in the driveway because it deters burglars.
…
The cars for restoration would be put in the shed or under the house for storage and the only ones in the yard would be the registered cars in use and perhaps there might be one that’s being worked on would be in the carport or somewhere being worked on.
So you do intend to work on vehicles at number seven to 9 Hunter Street?-- Not the major restoration but mainly - mainly just running maintenance on whatever car is kept there.”
Attention was then turned to No 51 at T p 46:
You wouldn't come within cooee of getting 20 in the shed, would you?-- Well, actually, as I've said, with the upper part of the shed six to eight small cars would fit in the upper part and three large cars and two small/medium size cars would fit in the lower part, that's with the storage, and then the carport adjoining would store some cars which are mobile-----
…
… you're going to need some sort of lifting equipment to get cars or heavy parts up to the high racks, aren't you?-- Well I already have a - an electric hoist which I purchased from another place which could be mounted in the up thing for hoisting heavy parts to the up part, and the purpose - the proposal is to make a demountable ramp which bolts onto the end of the carport-----
..
… the smaller cars can be driven up the ramp, across the roof of the carport into this - the two tilter doors at the end of the shed, the upper part of the shed.
It says, "Many of the vehicles are retained for spare parts. Those vehicles and parts from them are proposed to be stored in racks aboveground level leaving the ground space clear for storing and working on up to eight mobile or potentially mobile vehicles."?-- That's right.
Sp you would expect at number 51 to be working on eight mobile or potentially mobile vehicles at any one time; is that correct?-- Not eight at any one time I would expect to have work going on under the house, like mechanical rebuilding, and minor work or body repairs done in the carport area.
…
… you do intend to keep 20 cars on the site?-- Yes.
…
From the ground level of the shed there would be five cars there, three large ones and two medium size fitted between them-----
… and there would be up to eight small to medium cars in the upper section-----
But you mean whole cars or parts?-- No, complete cars would fit in that other area. If they're lined up like soldiers and neatly fitted in they would fit.
So you'd have to get a lifting device to lift a whole car to get it up onto the top deck?-- No, I've explained already that the roof of the carport is to be reinforced to carry the weight of small cars and a demountable ramp will bolt onto end of the carport so the cars can be driven up onto the roof of the carport and manoeuvred in through the two tilter doors on the end of the upper part of the shed.
Where is the reference on those drawings to the demountable ramp?-- I haven't drawn it in the drawing but it's - it's an easy access to - I haven't designed it yet.
…
Just so that everyone is absolutely clear, it is not your intention that all of the cars will be stored in this new shed. There will be some in the shed, there will be some upstairs in the shed, there will be some under the house and there will be some stored in various other places round the premises, as there will be other parts stored around the
premises; that's correct, isn't it?-- In - well, the way I proposed it there would there would be eight in - 18 under cover-----Yeah, but not all in the shed?-- No, it's four or five under the house and 13 - up to 13 in the shed with the two levels-----
…
Yeah?-- -----so that's leaves only two cars that - that's not mentioning the carport space.
… Which would take two very large cars or four small ones.
And it doesn't mention the space that you need to store the wrecks that you're taking parts from?-- No, it's not intended to store, they're intended to be disposed of and the intention is to store the parts cars or wrecked, whatever you call them, at a paddock and retrieve them from the paddock one at a time and dismantle them one at a time in the carport area and then dispose of what's - surplus body panels, what's not required, so that there would never be more than one of the wrecks or parts cars in the yard at any one time.
And where is this paddock? Have you bought it?-- I'm negotiating.”
At p 53 of the transcript the intentions for No 52 were discussed:
“It's simply fanciful to suggest that you could fit 15 classic English cars in a 9 by 6 metre shed?-- Yes-----
You'd be lucky - you'd be lucky to get three in there?-- it depends how you arrange them. You could fit three large ones in there and perhaps one small one or five small ones, it depends how they're arranged.
…
If it was three of your Humber Supersnipes, you'd fit three of them in there?-- But there'd still be adequate room around them for shelf space for part storage.
The other 15 (sic) classic cars, they'll be kept on the balance of the land at 52; some under the house, some in the driveway, some in the carport; correct?-- Well, there'd be up to five cars in the yard perhaps at a maximum.”
…
… it's likely that it will be roughly the same numbers of cars at 52 Hunter Street as there is now, correct?-- There might be something similar to the number, but they won't be in the open, they will be undercover. They'll be in the shed or under the house, except for a couple in the carport.
Well, you're only going to get two or three, maybe four at the best in the shed, aren't you?-- Depends. Up to five, possibly three large ones and parts, or five - up to five small ones.
And the other 10 will be kept at various other places at 52 Hunter Street, including under the house and anywhere you can find to put them?-- About five under the house and-----
That leaves another five somewhere else?-- Yes, well, a couple in the carport, and at least three of those would be registered cars which would be mobile in the driveway or wherever.”
The different understanding of Mr Craven is clear. In his response report (Ex 4) for example, dealing with Mr Brown’s concern “that if approvals were granted, they could be exploited by storing the vehicles in the open” he says in 5.2.2 that:
“… application documents specified that the storage would take place in the sheds for which drawings were submitted with each application. There can have been no doubt in the minds of any person interested in the applications that storage was and is planned within a shed within each case.
5.2.3 In the second instance, if there is a concern about this potential exploitation, an approval could be made subject to a condition requiring that all vehicles and parts be stored wholly within a building.”
There is little utility in an approval containing conditions that the Appellant clearly does not want. Exhibit 4 goes on:
“6.1.1. In para 90, Mr Brown refers to material being placed in the open. This is not the proposal as presented in the application.”
Dealing with Mr Brown’s contention that proposed activities cannot be designed, managed and operated to suitably mitigate impacts, he says:
“6.2.2In my view, the principal potential impact is a visual one - the unsightly appearance of motor vehicles and parts, in various stages of repair, lying in the open, as exists now. Stored inside a shed, with the doors closed, there is no visual impact apart from the sheds themselves.
6.2.3I detail and discuss the consequences of other potential impacts in Section 7.5 in each of the original reports.
6.2.4To deal with these, the appellant need only
· Keep the doors closed and, ideally, orientate the doors toward his house;
· Store the vehicles inside a shed to prevent vermin;
· Create a sump or bund inside each the shed to contain spills; and
· Refrain from carrying out repairs in the early mornings and evenings and in the open,”
and says in conclusion:
“7. CONCLUSION 7.1.1In paragraph D, Mr Brown states that storage and related activities will take place in the open, but he does not explain why he holds this view, when this is not the proposal.
7.1.2The proposal is for storage only on two of the three properties and storage and related activities on the other, which is an entirely plausible and practical intention. Once vehicles are stored in the sheds, it is unlikely that they will be moved into the open - for maintenance reasons for instance as there would be some difficulty in doing so (most of the vehicles are not self-propelled) and it makes little sense to work on motor vehicles in the open when an alternative is available.”
Mr Daniels has made clear his intention not to proceed in that manner.
Planning Issues: nature of the proposed use
The Council’s planning expert Mr Brown (DB) and the Appellant’s, Mr Craven (SC) met in conclave for the purpose of refining issues on 10 March 2005 and produced a succinct report:
“1. DEFINED USE
DB says that in each case the proposed development is best described as comprising use for warehouse purposes.
With respect to 51-51A Hunter Street, DB says that the repair and maintenance component of this application is best described as comprising some use for industry purposes.
SC says that the proposed activity in each case is the use of a self-assessable building only, and that the proposed activities do not fit neatly into the definition of either "house" or "warehouse", leaving them to be undefined activities described as hobbies.
DB and SC agree that the proposal does not constitute a "home business".
DB and SC agree that the activity proposed for 51 Hunter Street comprises both storage and maintenance and repair of motor vehicles and component parts.
SC and DB agree that the activities proposed at both 9 and 52 Hunter Street comprise storage of motor vehicles.
In all three cases, the storage component is substantial.
2. AMENITY ISSUES
SC says that the duration of repair, maintenance and servicing activities is an important element in determining the severity of impacts associated with the proposed use of 51 Hunter Street.
DB says that it is the nature of the activity that generates the impact.
3. RELEVANT PLANNING INSTRUMENTS
SC & DB agree that the site is in the Low Medium Density Residential Area, Demolition Control Precinct, and Precinct 8 - Hillside Character, in the Holland Park and Tarragindi Local Plan.
4. LEVEL OF ASSESSMENT ISSUES
SC says that the erection of a shed is self-assessable development by virtue of being development for the purpose of a house that is exempted from assessment against the Residential Design/Character Code. Specifically the code states that it does not apply to building work involving ... carports, garages, sheds and other outbuildings at the rear of the building.
DB says that the development for the shed cannot be distinguished from the totality of the proposed use which is for warehouse purposes.”
As to the nature of the use, in Brisbane City Plan 2000 Vol 1 Ch 3 at p 75 Warehouse is defined as “a use of premises for the storage of goods, whether or not in a building, including self-storage facilities or storage yards.” The words “whether or not in a building” were added as from 1 July 2004. While one’s expectation would be that a warehouse must involve a building, based on general experience, defined terms in the planning instruments need not be in harmony with such expectations. I am inclined to think that with or without the amendment, there is no requirement of a building. In City Plan 2000, there is no longer a definition of storage yard. That in the superseded 1987 Planning Scheme read:
“ “STORAGE YARD” means-
(a) any builder’s yard, construction contractor’s yard, landscape supply depot, truck depot or vehicle depot which is not warehouse premises;
(b) any other place used or intended for use for the storage of goods of whatever description in the open, whether or not any of those goods are sold by wholesale thereat where that other place –
(i)is not, or is not part of, a place or premises elsewhere defined in this section; and
(ii)is not a place the use of which is, or is part of, a use for a purpose elsewhere defined in this section:
The term includes –
(A)any ancillary use of the premises by way of the use of an office for work of administration or accounting in connexion with the conduct of the storage yard; and
(B)the use of any facilities provided thereat for the garaging and routine servicing of vehicles associated with the conduct of the premises:
For the purposes of this definition goods shall be taken to be stored in the open if they are stored in covered stacks or in enclosed structures not being a building but being in the nature of silos, bins or tanks;”
This was the definition relied upon by the Council in its successful prosecution of Mr Daniels. No point was raised that the underlying complaint was by a Council officer as opposed to the Council itself. In my opinion, an estoppel is created by those convictions, which, given that the former and new definitions are indistinguishable, establishes that a use of “warehouse” is being carried out on all three properties, just as a use of “storage yard” by reference to the superseded planning scheme was. If that view is erroneous, and Mr Daniels is at liberty to contend to the contrary, there is no escaping the conclusion that the definition of “warehouse” is satisfied (it’s not suggested there has been any change in the nature of activities of Mr Daniels), unless Mr Craven is correct that a characterisation in terms of a hobby is open, in which case it would be open to the court to choose that characterisation. I do not think it matters that “home based hobby” is not a use/activity specifically acknowledged in City Plan 2000. In fairness to the Appellant I will take as the basis for discussion his planner’s comments in Ex 4 about scale and intensity:
“4.1.1.In paragraph 33, Mr Brown states that the "goods stored on each of the premises go well beyond any ancillary activity for residential purposes and are not related to the use of each respective Site for residential purposes".
4.1.2In paragraph 35, he reinforces his opinion, stating that "the storage use, whether within a shed or outside a shed (or both) on each Site, goes well beyond anything that could be described as a sparetime activity".
4.1.3In paragraph 40, he contends that the whole of the development is development for a "warehouse" as defined in the City Plan.
4.1.4In essence, it appears that Mr Brown considers the sheds too large and the intensity of their use too great to be reasonably associated with a house (though he does not express an opinion about what may constitute a suitable size or intensity). In his view, this leaves them to be defined as "warehouse", a default description.
4.1.5Firstly, I do not agree that the proposals can be described as warehouses. In the City Plan definition's words, a warehouse potentially encapsulates any storage activity, but despite that wording, it is clear that the definition is not intended to cover a residential storage facility, like a garden shed. Even with respect to larger than average sheds like those proposed, it is misleading to suggest that they are warehouses. In my view, a warehouse connotes a very large facility, generally in an industrial area used for storing large portions of goods.
4.1.6If one were to apply the term warehouse to a domestic activity, one would at the very least need to consider a scale or intensity at which that term may become appropriate. Mr Brown does not do that and nor, for that matter, does the City Plan. Section 7.1 of my original reports address this in detail.
4.1.7The City Plan definitions cannot cover every possible activity. On that basis, it is my view that the proposed activity is not specifically defined and is best described as an activity related to a house, albeit a larger than average one. It is for this reason that the term "home-based hobby" was chosen as the activity for which approval was sought in the development application.
4.1.8Secondly, I do not agree that the storage use cannot be described as a spare-time activity. A spare time activity is not necessarily a function of scale in this case, the collection of motor vehicles is, to the applicant, akin to a collection of stamps or coins. Appreciating a large number of motor vehicles is certainly an activity that can be enjoyed in spare time.
4.1.9Thirdly, and in my view this is the essence of this appeal, the Court is being asked to decide at what scale and/or intensity a hobby [is] no longer part of a residential activity.”
I agree with second sentence of 4.1.5 and with the first sentence of 4.1.7 otherwise, of course, Mr Craven’s comments are argumentative. The nub of the matter is set out in 4.1.9. There is a developing jurisprudence in the court with respect to home based hobbies and the like. In Simon v Logan City Council [2002] QPELR 53, the head note is:
“This was both an appeal against the issue of an Enforcement Notice by the Respondent and an application by the Council for declarations and consequential orders.
The subject land was contained within the Residential (Residential Density R2) Zone in which a salvage yard and a vehicle repair station were prohibited uses. A "salvage yard" was defined as "premises used for the collection, dismantling, storage. . ., recycling. . . of. . . motor vehicles. . .". A "vehicle repair station" was defined as premises". . . used for the servicing of or the carrying out of repairs to motor vehicles. . .".
Mr Simon, the registered proprietor and occupant of the land was a car enthusiast who collected, maintained and improved cars. Inspections by Council officers on various occasions revealed numerous unregistered vehicles parked in the yard together with a large quantity of car parts and body panels. Council subsequently issued a Show Cause Notice followed by an Enforcement Notice. Mr Simon filed a Notice of Appeal against the Enforcement Notice.
The Council subsequently filed an Application for Declarations.
Mr Simon argued that he was merely indulging in his hobby of restoring motor vehicles, and that the Planning Scheme did not forbid that.Held, that:
1. The Court did not accept that Mr Simon was engaging in a hobby. A hobby was within the definition of "home occupation" and was a permissible use in the zone. Council's permission to indulge in the hobby had not been obtained, and so the use for that hobby was unlawful.
2. Whatever the actual number and description of vehicles on the premises may be at the moment, they had regularly exceeded what may properly be tolerated by a responsible Council and there was an identifiable risk that that situation would recur unless restrained.
3. The Court was satisfied that at the material time, especially when the enforcement notice issued, Mr Simon was using the premises as a salvage yard so that the notice was properly issued. Accordingly, Mr Simon's appeal was dismissed.
4. The Court was satisfied that the use of the premises for the storage of motor vehicles and motor vehicle parts was unlawful.
5. What Mr Simon had been doing on the land could properly be described as "restoring" of motor vehicles, and that concept was covered by the combination of "repairs" (in the prohibition of the vehicle repair station use) and "recycling" (in the prohibition of the salvage yard use).”
Inspectors’ various inspections before the appeal revealed on a 1050m2 house block up to three apparently registered vehicles and eleven apparently unregistered ones together with a large quantity of car parts and body panels. Mr Simon contended he got the numbers of vehicles down to four registered and two unregistered.
Then comes Redland Shire Council v Girling [2004] QPEC 076. The Redland Shire Council succeeded in obtaining a declaration that Mr Girling used his residential premises for an “Industry Class III” unlawfully, in that no development approval had been obtained, and a restraining order, but failed to get a declaration that it was a “junk yard”. Judge McLauchlan QC said at [5] ff:
“The respondent’s primary contention is that engaging in his “hobby” upon the land is a use ancillary to the use of the premises for residential purposes. The expression “ancillary” is defined in the Scheme to mean “incidental and subordinate”. It seems to me to be clear that the nature and extent of the activities in which the respondent has engaged with respect to motor vehicles upon his land could not reasonably be regarded as incidental and subordinate to his use of the premises as a dwelling house. In that connection I have been referred to a decision of the South Australian Supreme Court in City of Noarlunga v Usher [1981] 48 LGERA at 36. At p.40 of the judgment the learned judge observed:
“There are many uses which, as a matter of fact, are part of (such) ordinary residential use. Those which easily come to mind are the more passive recreations such as sewing, reading, watching television and the like. Others have more active hobbies, such as, for example, pottery, handiwork of various kinds, gardening or such sports as swimming or tennis. Some of these activities involve erection of structures, for example, a television aerial – quite high in some areas, the potter’s kiln, the carpenter’s shed, trellising, swimming pools and tennis courts, with or without electric lights. Yet no one would suggest that such uses were other than part of the ordinary residential use. As such, some building consent may be necessary, but in normal circumstances if the use is the type of residential hobby that one associates with ordinary living, no planning consent would be suggested. It is, however, possible that some extreme cases, even in that range of ‘hobby’ use may need planning consent, if for example, the particular use, although of the same nature as the norm, is so out of line with that usually practiced as to be considered abnormal and unusual. We have in mind the extraordinarily large kiln for pottery purposes, perhaps the high diving board associated with the swimming pool, something quite out of line with what even the enthusiasts for the hobby would expect. Given that a ‘hobby’ is part of the ordinary use for a residence, it becomes a question of fact and degree as to whether the particular example under consideration is so far out of line with the manner in which the hobby is normally practiced that it should not be considered as being part of the ordinary residential use.”
I regard this authority as pertinent to the matter under consideration, although the issue there was whether or not a particular hobby was “part of” the ordinary residential use rather than whether it was ancillary and subordinate to a residential use. The activities of the respondent may be considered a hobby - certainly there was no commercial aspect to them - but the scale and effect upon neighbouring properties of those activities is such that it could not, in my opinion, be regarded as ancillary and subordinate to the use of the land as a dwelling house.”
Further authorities collected by Mr Trotter included City of Mitcham v Fusco (2001) 115 LGERA 356, City of Noarlunga v Fusco (1986) 61 LGRA at 336 and Reedman v Rockdale Municipal Council (1985) APA 349 (tall radio tower approved in residential zone).
While Mr Trotter took the approach that the nature and scale of the alleged hobby activity were the matters for consideration (see for example p 148 of the transcript), it appears to me that one must also look at the context in which the activities are carried on, a notion which I think Judge McLauchlan recognised in referring to the effect upon neighbouring properties. It is difficult to avoid the conclusion that the acceptability of exactly the same combination of numbers of cars and parts and what is done in relation to them from time to time may depend on whether it occurs in suburbia, as here, or in the bush or on hobby farms relatively removed from boundaries. Mr Daniels’ activities qualify as a hobby in the sense that he does not make or set out to make any money from them. I confess to serious reservations as to whether Mr Daniels is sufficiently active and successful (in the sense of achieving some results) in relation to the cars to qualify as genuinely pursuing a hobby. Setting that quibble aside, Mr Brown and Mr Trotter have not persuaded me that the hobby is not “home based”, if that matters in any respect. Their view is that the “home” must be the residence occupied by the person pursuing the hobby as his or her home. I can see no reason why more ought to be required than that the “hobby activities” are conducted in somebody’s home. Mr Daniels conducts his, not only where he lays down his own head, but also at his son’s place and at his wife’s. Why should there be a family relationship? It makes sense to me that a home based hobby could be pursued by A in B’s home, if the premises were made available to A to pursue some interest such as gardening or raising a few chickens, even – to adopt one of Mr Trotter’s examples – to build a small boat (rather than a yacht). Similar reasoning would suggest that the mere fact that a genuine hobby is pursued from or on more than a single residential location does not disqualify it from being a home-based hobby.
In the end, it is impossible to regard Mr Daniels’ past or proposed activities as “part of the ordinary residential use”. There must be some aspect of compatibility with ordinary residential use of the surrounding properties that is missing here. It would still be missing if Mr Daniels proceeded as he said he wishes to.
I agree with the Council’s argument that it is not really helpful to seek some single, dominant use, particularly in light of the importance placed on the word “necessarily” (see [1] above) in Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R31; (1996) 91 LGERA 323. There may be multiple uses of a site, each of which requires steps to be taken to render it lawful under planning law. See also Magee v City of Springvale (1987) 30 APA 52 and Partland v City of St Kilda (1989) 41 APA 178. The Appellant’s argument is set out in [16] above. Essentially, the same considerations overcome the Appellant’s argument against the estoppel raised by the Council:
“2.1It is submitted on behalf of the Respondent that there were findings that the Appellant’s use of premises was “storage yard”, (see paragraph 25 – Respondent’s Submissions).
Reference is made to the definition of “storage yard”. It is clear that the exceptions contained in (i) and (ii) of that definition indicate quite clearly that “any other place used” must mean “any other place used (exclusively for that purpose)”. That is because if there is a “detached house” on the place, the place does not conform to the definition of “storage yard”
This, in turn, would lead one to conclude that the convictions for these offences may have been wrongfully entered despite the fact that they followed pleas of “guilty”.”
There is no reason to imply the word “exclusively”. (I reject the following argument that Mr Daniels’ proposed activities differ relevantly from those the Magistrates Court proceeding dealt with.)
Mr Brown’s view that on No 51 there is proposed some use for industry purposes refers to Sch 1 in City Plan Vol 1 Ch 3 p 42 under 6 Industrial Areas where can be found identified “Material Changes of Use for Industry that are Code Assessable”. The items pointed to are:
“Metal Surface Coating: Commercial Spray Painting (including spray painting motor vehicles) and powder coating in works having an annual throughput of metal products of less than 10,000 tonnes.
and
Metal recovery: commercially operating a scrap metal yard or dismantling automotive or mechanical equipment, including deponding brake or clutch components.”
Mr Daniels said he would apply only the first coat of paint at No 51, then get finishing painting work done elsewhere. There are uncertainties about what is intended by the items last quoted, particularly as to the scope of what is qualified by “commercially” and “commercial” and by the annual throughput identified. One would be reluctant to conclude that an industrial use was being pursued by a person (even by a whole household of persons each with their own vehicle) who liked to do a lot of work on his or her vehicle at home. Mr Brown is not persuasive that Mr Daniels would be pursuing an “industry” other than in a technical sense, but his concern that Mr Daniels’ successor may exploit an approval allowing repair and maintenance of cars remains. Activity might happen then that indubitably was industrial. It has not been shown that it is feasible to limit any proposed use.
In practical terms, Mr Brown is correct that policing such situations is troublesome and expensive for the Council. The contents of Ex 10 establish that a great amount of attention has been devoted to Mr Daniels’ activities over the years, and that, although from time to time co-operative with Council staff who visited, from the point of view of dealing with circumstances on the sites, he has, essentially, done nothing. Compliance by him with court orders cannot be relied on.
It should be made clear, and the Council accepted that Mr Daniels’ record does not have the effect of disqualifying him from making or succeeding in development applications. Nevertheless, it may be information relevant to the court’s assessment of what can be expected to happen if an approval is granted. That may be so particularly where the context is a residential area, and the lives and amenity of neighbours stand to be affected. Compare Reynolds v Redland Shire Council [2001] QPELR 184.
The Council argued that the applications gain no support from being presented as a means of overcoming or ameliorating an unlawful use; the Appellant ought not to get any kind of advantage from unlawful conduct. While that principle surely is a sound one, I do not think it should be applied universally in its full rigour. Compare T Wrafter and Sons Pty Ltd v Brisbane City Council [1999] QPELR 440, where an existing non-conforming use that had lawfully been conducted on three lots had been extended to two adjoining lots. In respect of the subject matter of the preceding paragraph and this one, the authorities relied on by the Council included Kouflidis v City of Salisbury (1982) 49 LGRA 17, Mount Gravatt Bus Service Pty Ltd v Brisbane City Council [2002] QPELR 35, 36 and Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 015 at [21] - [22] and cases cited in them.
The contention that Mr Daniels’ past and proposed activities amount to a home based hobby cannot be accepted. The “hobby’s” impacts have been and will be unusually widespread, given that it extends over three residential properties.
The “hobby” has had dreadful impacts on visual amenity (ignoring other impacts to do with encouraging snakes, vermin and mosquitoes), which tend to become worse as old cars left in the open deteriorate; it has no saving graces, such as rewarding neighbours and passers-by with the sight of attractively restored classic cars. Associated with that, the “hobby” has not really been pursued; it consists more of Mr Daniels’ expectations than of productive activity towards fulfilling them – indeed, it is close to being a hobby of storage; the satisfaction he would derive from the hobby must be limited, in that he admits the unsightliness of his collection as presently accommodated. The visual impacts would be alleviated to a reasonable extent if Mr Craven’s proposals were conscientiously implemented; the improvement would be far less if the Appellant were to do what he says he now intends.
Merits of the development applications
In the circumstances, the nature and scale of the proposed use, in their context of Hunter Street cannot be accepted as a home-based hobby, as an aspect of a residential use. Nor is Mr Craven’s description of the use applied for, in terms of a home-based hobby of storing, etc “a collection of classic English motor vehicles”, when explained by the evidence, a use that the court should approve as a material change of use.
The considerations in that regard are the same, whether Mr Craven’s description is adopted or Mr Brown’s of “warehouse”. The proposal is undoubtedly within “any other material change of use” for purposes of Brisbane City Plan 2000 in 5.2.3 Levels of Assessment which provides that in the Low-medium Density Residential Area (among others) it is therefore “inappropriate development” and impact assessment is required. See Vol 1 Ch 3 p 32. At pp 5-6 one finds:
“2.5.2 Impact assessment
Development subject to Impact Assessment:
· requires an application and development permit before development can start
· is assessed against the whole planning scheme, including relevant Codes in Chapter 5, and any relevant Local Plan Code in Chapter 4. Whether or not the level of assessment is varied by a Local Plan, impact assessable development within a Local Plan area will automatically be subject to the relevant parts of the Local Plan Code.
· cannot be approved if it compromises the achievement of the DEOs for the Area in which the site is located”
…
“Generally inappropriate impact assessable development
Other impact assessable development under this heading is not specifically envisaged in the Area. The appropriateness of a proposal in any particular circumstance will be dependent on its location. design and impacts.
In assessing generally inappropriate impact assessable development. or generally appropriate impact assessable development for which there is no specific Code, the proposal will need to demonstrate that:
· the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified
· the proposal has a positive impact on the landscape, scenic quality and streetscape of the locality
· the proposal does not detract from the appearance, environment or amenity of the locality. These effects may relate to issues such as hours of operation, display of goods or release of any contaminant
…
· noise generated by the proposal is within levels expected for the Area in which the land is classified the proposal does not result in unreasonable risk or hazard on site or to adjoining lands
· the proposal does not result in unreasonable risk or hazard on site or to adjoining lands
…
the disposal or storage of wastes and other materials will not result in visual blight, environmental degradation or nuisance
· negative community impacts are not generated, including impacts on:
- community identity, cohesion and cultural practices
- community health and wellbeing”
With most of the above the proposal is in conflict. Mr Brown’s conclusions are:
“A. The separate Applications each propose the erection of a storage shed, and in each case propose storage of motor vehicles on the land in question.
B. In addition, the proposed use for 51 - 51 A Hunter Street also involves the maintenance and repair of motor vehicles
C. The nature of the proposed uses involves some transference of vehicles (or component parts) between the different sites.
D. The proposed uses not only involve storage within each proposed building but also mean that storage and related activities will take place in the open.
E. These activities are likely to result in a number of unfortunate consequences for residential neighbours and to severely adversely impact upon residential amenity.
F. In each case the proposed development constitutes a "warehouse" under City Plan.
G. For the reasons outlined in this report the proposals are entirely inconsistent with
(a) relevant Strategic Plan DEO's;
(b)the intent for Residential Neighbourhoods in the Strategic Plan;
(c) the DEO's for Residential Areas;
(d) the DEO's for the Low-medium Density Residential Area;(e)and the provisions of the Local Plan applying to the subject land.
H. To entrench these uses in what is otherwise a pleasant residential neighbourhood which is being developed in accordance with City Plan, would be contrary to the reasonable expectations of residents in this locality.
I. The proposal conflicts with the Planning Scheme and compromises the achievement of relevant DEO's including DEO's relating to the Low-medium Density Residential Area in which the land is located.”
In his report Ex 5 he sets out the DEOs (Desired Environmental Outcomes) he refers to. It is unnecessary to go to them. Inconsistency of the proposal with current ideas about sound planning for residential areas could hardly be denied.
The Holland Park – Tarragindi District Local Plan represents the planning arrangements at their most detailed level and is entitled to special respect. It is in City Plan Vol 1 Ch 4 at p 70a. Mr Brown identified the pertinent provisions:
“Section 2 states that
"This Local Plan contains specific additional local planning requirements. Where it conflicts with the requirements of City Plan, this Local Plan prevails.”
and contains development principles which relevantly include the following
"Development principles
"2.1The locality is to maintain a vibrant, diverse and safe living environment through the provision of a variety of housing types, employment opportunities, and recreational and community facilities.
2.2A mix of housing densities and types are to be provided to serve the needs of the community, especially the District's young adult and elderly populations. Groupings of pre-1945 character housing will be protected and higher density development in proximity to major employment nodes and public transport will be encouraged.
2.3New development is to be sympathetic to the existing streetscapes and/or traditional character of the District. Development should contribute to the distinctive and identifiable character and sense of place of both local neighbourhoods and the District as a whole.
……”
The intent for the Hillside Character Precinct at Section 3.8 is as follows
"3.8 Hillside Character Precinct
This precinct indicates the presence of steeper residential areas containing traditional character housing and significant ridge lines. Hillside character is derived from the relationship of buildings to their physical setting. Traditional character housing built following an historic subdivision pattern and located on well-treed hillsides results in a unique character of important visual significance in the local context. This hillside character is to be retained and enhanced through sympathetic development that minimises visual impact within its visual catchment.
Residential development in particular, is to provide and/or incorporate:
§the appearance of traditional character houses uniformly spaced and stepped across well-treed hillsides
§compatible building height, bulk and proportions
§construction methods, such as posts or piers that minimise, the amount of alteration to site topography
§design and siting that responds to the physical setting and minimises impacts to existing vegetation and sufficient area between buildings for the provision of trees and landscape requirements.
Developments along major ridgelines in the precinct should contribute to the consistent rhythm and sense of scale along the ridgeline when viewed from the surrounding visual catchment. " ”
Mr Craven took a rather more dismal view than Mr Brown of the existing amenity of Hunter Street, which he says does not form part of a ridge line; he says it is in no way distinctive among many “relatively intact pre-war streets” in Brisbane. Both men note the impact on amenity of on-street parking associated with the Greenslopes Hospital, which is located at the western end of the street. I agree with Mr Brown that the amenity of the street (from which Mr Daniels’ properties detract significantly) is of a relatively high level, with a strongly residential character.
The Appellant’s proposals are clearly in conflict with the relevant planning provisions and there are no planning grounds to recommend it. There is no need for the court to pronounce upon Mr Craven’s view that all proposals for sheds are self-assessable in Brisbane. Mr Brown appears to be in agreement, unless, as here, the sheds are part of an unacceptable proposal for a material change of use. Mr Craven’s view that there is, on analysis, no material change of use as the proposal is part of a lawful residential use (whose impacts would be “concealed” in sheds) I do not accept in the circumstances. The appeals are about the acceptability of the material change of use proposed by the Appellant, and should be dismissed.
Development assessment fees issue
The development assessment fee issue was not the subject of any evidence or submissions at the hearing of the appeal. Counsel provided written submissions, and a folder of documents relevant to the first development application (for 51 Hunter Street) said to be an agreed list was provided to the court under cover of a letter of the Council’s solicitor dated 3 May 2005. I take it that if there are any issues to do with the later applications the court’s decision about the first one would indicate the outcome.
The pertinent part of the Council’s fee structure recognises the following development types:
Minor development
· Minor building work (eg. deck, pergola, carport, shed)
· Minor demolition work
· Rearranging boundaries to resolve encroachments
Domestic development
· House or house extension
· Display home
· Home business
· Access easement associated with a single dwelling
· Landing associated with a single dwelling
· Demolition or removal associated with a single dwelling
· Preliminary approval for operational works for filling or excavation associated with a single dwelling
Non-domestic development (small)
· Reconfiguration of a lot(s) resulting in up to seven lots
· Multi-unit dwelling of up to nine dwellings
· Subdivision under the Body Corporate and Community Management Act (BCCM) of up to nine dwellings
· Other development with less than 2500m² gross floor area (GRA) or less than 2500m² site area if no GFA is proposed
Non-domestic development (large)
· Reconfiguration of a lot(s) resulting in eight or more lots
· Multi-unit dwelling of ten or more dwellings
· Subdivision under the BCCM of ten or more dwellings
· Other development with 2500m² GFA or more, or 2500m² or more site area if no GFA is proposed
Fees for code assessment are lower than those where the requirement is for impact assessment, the latter being relevant as things have turned out:
Application for preliminary approval/development permit
| ASSESSMENT TYPE | COMPLIANCE WITH CITY PLAN/CODES | ||
| Acceptable solution | Performance solution | ||
| Code/Notifiable Code … | … | … | |
| … | … | ||
| … | … | ||
| … | … | ||
| Impact | Minor development | $400 | $600 |
| Domestic development | $1,200 | $1,800 | |
| Non-domestic development (small) | $3,000 | $4,500 | |
| Non-domestic development (large) | $7,000 | $10,500 | |
(For “Major projects” the fee is $15,000 minimum to $100,000 maximum, to be calculated in accordance with a formula set out.)
The fee tendered by Mr Daniels, presumably on Mr Craven’s advice, was $1,800; the assumption was that domestic development was the appropriate category, even though none of the apposite dot points describes the situation. It may be seen as analogous to home business. Mr Vasta’s submissions of 22 April 2005 conclude as follows:
“9.4The Appellant seeks a further declaration that the applications were “minor development” and not “industrial” and that the appropriate fee for the applications should have been –
· at 51 Hunter Street, $600 (not $4500 as charged); and
· at 9 and 52 Hunter Street, $650 (not $2000 as charged in each case).
9.5The Appellant seeks a further order that the Respondent repay to the Appellant the sum of $6600 being the difference between the fees paid and the fees payable.”
The idea seems to be that the proposal is for ordinary residential/domestic use, which is the idea underlying the appeals, one that did not convince the court. It will be seen that Mr Daniels is resiling from the original approach, in hopes of reducing the fees he is liable for.
The Council wrote on 28 October 2002 to Mr Craven:
“Further to our telephone discussion on the 21 October 2002 regarding the above-mentioned development application, we advise as follows:
1.In accordance with Section 3.2.1(7) of the Integrated Planning Act 1997 (IPA), Council refuses to receive the application as it is not a properly made application. The application does not comply with Section 3.2.1 (4)(a), as the correct application fee has not been paid. The application is for non-domestic development (small) being other development with less than 2,500sqm gross floor area (GFA) or less than 2,500sqm site area if no GFA is proposed. Accordingly, the correct fee for an impact assessable development is $4,500.
…
2.The existing use is considered to fall within the definition of a warehouse – self-storage facility under chapter 3 of City Plan. The primary use is that of vehicle storage. Any maintenance or repairing of vehicles is considered minor.”
One can understand Mr Daniels’ bridling at the fee assessed, which he had no real option but to pay. In my opinion, the Council’s argument is correct. Some confusion is created by the same officer’s letter to Mr Daniels’ solicitor of 5 December 2002:
“I refer to your letter dated 1 November 2002 whereby you requested Council reconsider its position with respect to the categorisation of the proposed development as being Minor rather than Domestic which attracts a higher development assessment fee and further reconsider its view with respect to the characterisation of the proposed use as a Warehouse.
Council remains of the view that the use is a Warehouse but at the very least it is an undefined use properly characterised along the following lines: Storage Shed (Storage, Maintenance and Repair of Motor Vehicles and Component Parts).
It is Council’s contention that should the use be advertised as a Home Based Hobby, it may mislead any potential objectors and as such may vitiate the public notification stage.
Your client’s development application was lodged together with the fees for a Domestic development.
Having regard to the nature and intensity of the proposed use, Council is of the view that it is appropriate to categorise for the purposes of calculating the development assessment fee, the development as Minor as opposed to Domestic. The fees for Minor development are higher than those for Domestic. As the application was accompanied by the incorrect fee, the application is not properly made and accordingly, Council may refuse to receive it.
If your client maintains his view regarding this point, Council suggests he seek a declaration from the Planning & Environment Court.”
The references to “Minor” are a mistake, which did not confuse the solicitors, who responded the next day to report their understanding that a further $2,700 was being demanded. The Council’s letter should (and was understood to) have referred to “Non-domestic development (small)”.
Mr Trotter’s submissions in reply, somewhat inconsistently with the last paragraph of the letter of 5 December 2002, assert that the declaration(s) sought would not be a matter within s 4.1.21 of the IPA. Whether or not that be so, the Appellant has not shown that any such declaration should be made.
Orders
Each of the appeals is dismissed.
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