Feyer v Jones and Caboolture Shire Council

[2004] QPEC 10

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Feyer & Ors v Jones and Caboolture Shire Council [2004] QPEC 010
PARTIES:	MANFRED FEYER & ORS Applicant v DAVID AND PATRICIA JONES First Respondent And Caboolture Shire Council Second Respondent
FILE NO/S:	5004 of 2002
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	2 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 & 11 November 2003
JUDGE:	Quirk DCJ
ORDER:	I order that the respondents, their servants or agents, be restrained from using the subject land as a gallery for the display of  fine art other than in accordance with the definition of “home occupation” in the Planning Scheme
CATCHWORDS:	-
COUNSEL:	Mr A Skoien for the First Respondent Mr S Ure for the Second Respondent Mrs M Lange (Self-represented) for the Applicants
SOLICITORS:	Hopgood Ganim for the First Respondent King & Company for the Second Respondent Applicants Self-represented

1. This is an application by a group of residents seeking to restrain what is said to be the unlawful use of an Art Gallery trading as “White Patch Gallery” at 164 White Patch Esplanade, Bribie Island.  The subject land is located in an attractive established residential area and is the site of a modern home in which the first

1. In February 1993 David and Patricia Jones, the first respondents, made application for consent to use the land for the purpose of a residence and Art Gallery.  The letter which accompanied the application form explained:-

“The Gallery is intended for the display of fine art …”.

1. On 17 June 1993 the Council issued a Town Planning Consent to the use being carried out in accordance with Plan of Layout No 93420 prepared by Bayside Architectural Services and submitted with the application.  Those plans showed an Art Gallery of some 65m².

1. At this point it must be noted that, at the time the application was decided, the Local Government (Planning and Environment) Act was in force.  In the Table of Zones for the Residential A zone, while “Home Occupation” was a discretionary use, “shop” was a prohibited use.

1. The relevant definitions are:

“Home Occupation

An occupation or profession carried on, in or under a dwelling house or in the case of horticultural nurseries, florist and market gardens within the cartilage of a dwelling house by a person resident therein and in the conduct of which:

(a)no source of power other than one or more single phase electric motors having a total connected load of not more than 2.0 kilowatt is used;

(b)the floor area used (whether temporarily or permanently) does not exceed more than one third of the total floor area of the dwelling house;

(c)not more than two persons are engaged therein;

(d)there is no interference with or injury to the amenity of the neighbourhood by reasons of the emission of noise, vibration, small, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise;

(e)there is no public display of goods on the premises [my emphasis];

(f)no load is imposed on any public utility greater than that which is normally required by other uses permitted in the zone in which the dwelling house is situated;

(g)no sign other than a sign not exceeding point three (0.3) square metres in area, and having only the name of the occupier and of the occupation is displayed;

(h)except in the case of horticultural nurseries, florists and market gardens no part of the cartilage is used in the course of or for the purposes of the home occupation, other than for visitor parking or access; and

(i)at one and the same time they do not carry on more than one home occupation or domestic industry and they do not carry on any home occupation or domestic industry while any other person is carrying on a home occupation or domestic industry in the same dwelling house.”

“Shop” is defined in the Planning Scheme as:

“‘Shop’ – any premises used or intended for use for the purpose of displaying or offering goods for sale to members of the public; the term includes incidental storage of such goods on the same premises but does not include a garden supply centre, hotel, service station or warehouse as herein defined;”

1. Subsequently two applications were made for the required building permits.  One showed the area of the Gallery to be approximately 65m².  A second showed the area to be approximately 128m².  For some reason for which no explanation could be provided, the Certificate of Classification, issued on 29 November 1993, classified the building as dwelling house class 1 – floor area – 300.6m² and shop class 6 – floor area 128.7m².  The Gallery commenced trade at the year.

1. Following a local complaint, two planning applications were lodged in an attempt to regularise the use.  The first sought an extension of the home occupation which the Council refused.  The second was for a use which was described in the IDAS application form as “shop being Art Gallery (maximum floor area 128m²) and caretaker’s residence”.  The Council also refused that application.  Appeals against these decisions by the Council were lodged.  His Honour Judge Skoien heard and determined these appeals, which he dismissed, in November of 2000.

1. In the hearing before me there was really no dispute as to the mode of operation of the premises.  The Gallery involves the sale of paintings by various artists to members of the public who become aware of the existence and operation of the Gallery by advertising (which includes billboard signs, the print media and the internet).  The art displayed does not include that of the respondents but is the work of well known Australian and international artists.  Some of it is quite valuable.

1. While the building on site is residential in appearance, the Gallery area is located at the front of the premises.  A large paved area is provided in the front and side yards.  A notice to the front of the property identifies the Gallery as such and there are flagpoles, one of which carries the Gallery’s logo.  Evidence from the applicants indicated that a good deal of non-residential traffic is drawn into the White Patch community which results in vehicles being parked on the footpath outside the Gallery and adjoining residences during normal opening hours.  At times when exhibitions are held the number of vehicles increases as do problems with on-street parking.

1. The evidence is all one way that this is an undertaking where art is presented for sale in premises which are open to all comers.  I am well satisfied that what is being done amounts to the “public display of goods on the premises” and is not a “home occupation” within the meaning of the Scheme but a “shop”.  Such a use could not, as a matter of law, have been a component of the approval given by the Council in 1993.

1. The respondent sought to argue that what happens did not amount to the “public display of goods” in that this concept really involves a display of goods in a manner which makes those goods visible from public areas.  I reject that suggestion.  The definition must be understood in its context.  The exception to the prohibition upon non-residential use in residential areas which is allowed by a “home occupation” requires appropriate co-existence of the use and the area’s residential amenity.  To disallow the public display of goods is intended to prevent the attraction of non-residents to the area.  The tension with residential amenity to which this may lead needs little explanation and is demonstrated by the evidence given in this case.  I am satisfied that the “public display of goods” means simply the display of goods in a way that allows those goods to be inspected by members of the public (without any restriction upon right of entry) during normal business hours.  This is what is happening.

1. It was further suggested by the respondent to allow this application would, in effect, amount to a ruling that the consent originally given was invalid.  I do not see this to be necessarily so.  The application as allowed was for a gallery intended for the display of fine art.  I agree that commonsense might suggest that such an undertaking would not be purely altruistic.  However it is not inconceivable that one might display fine art in premises in a way that remained within the ambit of a home occupation.  It could be done without any open invitation to the pubic.  Access could be restricted to those to whom an invitation had been specifically extended or with whom an appointment has been made. 

1. It is not necessary or desirable however to make a particular ruling in that regard.  It would depend on what the arrangements were in any given case.  What is important here is that the premises are in reality, open to the public during business hours and any interested persons have an open invitation to visit the Gallery to view art.  I am satisfied that to rule that the public display of art in the premises should cease does not necessarily involve a ruling that the consent given by the Council was void.

1. Some other matters were raised by the respondents.  It was argued that the court lacked jurisdiction in the matter.  It was pointed out that the power to give the consequential relief contemplated by s 4.1.22 required firstly the making of a declaration and that none was specifically sought in the originating application.  I find such a suggestion tenuous.  The relief sought by the applicants and the basis upon which it was claimed made it plain that a ruling that the current use of the subject premises was contrary to law was called for.  If such a ruling was not a declaration it was certainly equivalent to it as a matter of commonsense.

1. This jurisdiction is, I believe, intended to provide the opportunity for members of the community to seek relief of this kind from the court.  The applicants here are lay persons and to see them defeated by some intricacy of pleading would not be at all appropriate in this case nor consistent with the legislation’s purpose

1. Finally the matter of discretion must be dealt with.  It is well known that relief of this kind is discretionary (Warringah Shire Council v Sedevecic (1987) 10 NSWLR 335 NRMCA (Qld) Ltd v Andrew (1993) 2 Qd R 706 and Mudie v Gain River Pty Ltd (2002) 2 Qd R 53.

1. It is difficult to see any basis for declining to grant the relief sought here on discretionary grounds.  The operation of the Gallery amounts to a serious breach of the provisions of the Planning Scheme intended to protect residential amenity.  The residential amenity here is a particularly attractive and relatively secluded one.  The impact upon it by the attraction of non-residential traffic to it is not at all inconsequential.

1. Notwithstanding a painstaking attempt in cross-examination to analyse and dissect the complaints made by the applicants with a view to showing that the public display of goods was not at the centre of their concerns, I was amply satisfied that a broader and sensible understanding of this evidence indicates that it is the impact upon the area’s amenity that the operation of the Gallery (as a commercial and non residential enterprise) has that worries the applicants most. It is the feature of “public display of goods” that distinguishes (in the scheme) a home occupation from a public accessible commercial activity.

1. It is true that the scope of the permitted use might have been made clearer with the original consent but it is equally true that existing difficulties with the consent were recognised when the subsequent applications for planning consent were made.  The decision of His Honour Judge Skoien in November of 2000 made it clear enough that the mode of operation of the Gallery was considered by him to be contrary to law.  He went further to find that it would not be appropriate to give such planning consents as were necessary to regularise the use.  The operation of the Gallery has continued in the face of these indications.  In the circumstances I find that my discretion should not be exercised to decline appropriate relief in the case.

1. On the evidence given I find that the current operation of the Gallery involves a public display of art on the premises.  Consequently is not a “home occupation” within the meaning of the Planning Scheme.  The consent of the Council given in June of 1993 did not (and could not) allow the use of the premises for the display of fine art beyond what was allowed by the definition “home occupation”.

1. I order that the respondents, their servants or agents, be restrained from using the subject land as a gallery for the display of  fine art other than in accordance with the definition of “home occupation” in the Planning Scheme.