Fraser Coast Regional Council v Lawton

[2010] QPEC 149

[2010] QPEC 149

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2348 of 2010

FRASER COAST REGIONAL COUNCIL	Appellant
and
MICHAEL LAWTON and HEATHER LAWTON	Respondents

BRISBANE

..DATE 06/12/2010

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 324(1)(b), s 345, s 479, s 493(9), s 519, s 520, s 521, s 522, s 523, s 524, s 525, s 526, s 532, s 533

Appeal by Council against Building and Development Committee decision - that decision allowed an appeal against Council's Decision Notice attaching a condition to a preliminary approval delaying construction of a "shed" until an application was made for building works for a detached house - committee had no jurisdiction to entertain the appeal to it - Council's onus to establish its appeal should succeed despite the respondent developer's withdrawal

HIS HONOUR:  This is an appeal by the Council against a
decision of the Building and Development Committee given on
19 July 2010.  That decision set aside a decision of the
Council made on a development application of the Lawtons by
setting aside the Council's imposition of "Condition 5, which
limits the construction of the class 102 structure (shed)
until an application has been made for building works for a
detached house" on land at 23 Livistonia Drive, Poona, which
is lot 141 on RP 904022.

The court has had the assistance only of Mr Connor, the
Council's solicitor.  The respondents, Mr and Mrs Lawton, in
correspondence from their lawyers, which is collected in
Exhibit 2 tendered today, have intimated that they "do not
oppose the appeal and that they do not intend to file any
material".  See the letter of Catton Roderick Lawyers of
17 November 2010.  That letter advised that in the interests of saving costs, there would be no appearance at the mention of this appeal on the 18th of November 2010 and, indeed, the
letter (addressed to the court) concluded with a "request that
Catton Roderick Lawyers be withdrawn from the record in this
matter".

Judge Jones presided at the mention on the 18th of November
2010 when there was no appearance for the respondent,
although the associate's endorsement may suggest that someone did appear.

MR CONNOR:  There was no appearance by any party other
than me, your Honour.

HIS HONOUR:  The actual endorsement says "Appearances:
appellant, M J Connor, respondent, Lawton."  Mr Connor
acknowledges that he inadvertently misled Judge Jones on the
18th of November by acquiescing in (if he did not propose) intimating that it was the appellant being excused from further participation in the appeal.  The clear intention was that it be the respondents, Mr and Mrs Lawton, excused.  The order as proposed to his Honour and currently endorsed by
the associate was one excusing the appellant and also imposing
an obligation on the "respondent" to provide a copy of the
orders to Catton Roderick Lawyers.  That was a slip of a kind encountered relatively commonly of reversing the roles the parties had in a proceeding.  I had noticed it on perusing the file late last week and asked my associate to alert Mr Connor, who has sent correspondence to the other solicitors indicating that the mistake had been discovered.  Unsurprisingly, there was no appearance for the Lawtons when they were called today when the hearing of the appeal commenced.

Exhibit 1 before Judge Jones was the correspondence as it
existed at the date of the mention before him.

Notwithstanding the lack of interest by the Lawtons in the appeal by the Council, the appeal can be allowed only if the Council, which bears the onus in that regard, establishes that it ought to be allowed.

See section 493(9) of the Sustainable Planning Act 2009 (SPA).

By section 479 appeals to this court from a committees are

available only on the ground of an error or mistake of law or

on the part of the committee.

...

Section 479 is not limited to an error or mistake of law on

the part of the committee as a permissible basis for an

appeal; expressly but also extends to a case where the

committee had no jurisdiction to make the decision or exceeded

its jurisdiction in making the decision: subsection (1)(b).

The two aspects are dealt with in Craig v State of South

Australia (1995) 184 CLR 36 at 177 (jurisdictional error) and

179 (error of law).  As Craig indicates, if cases are made out

on a challenge such as that by the appellant Council here, the

appeal should be allowed and the order challenged set aside.

See page 187.

The Lawtons have had ample notice about a challenge on the

basis of jurisdiction of the committee being missing, as the

Council's leading appeal point.  See paragraphs 9 and 10 of

the Council's Notice of Appeal filed 16 August 2010.

Pursuant to directions of the court, the Lawtons had the

opportunity and obligation to participate in preparation of an

Appeal Book containing relevant documents.  That was filed on

29 September 2010.  It includes an outline of submissions

which Mr Connor tells the court on his instructions was

provided to the committee for purposes of its hearing.  In the

circumstances surrounding the way in which the appeal book was

to be provided, there's no basis for this court not to proceed

on the assumption that the committee and the Lawtons had that

nine page outline of submissions.  It is above the name of

Mr Michael Ellery, the Council's Executive Manager Development

Assessment.  Mr Connor confirms he had something to do with

the preparation of that document.  Mr Ellery was the Council's

representative at the hearing before the committee.

Mr Ellery's outline has as its first section, "Background",

setting out the history of the development application and

decision.  The following section is headed, in bold type,

"Preliminary Jurisdiction Issue".  It precedes an analysis

very similar to, but not quite as complete as the one included

in Mr Connor's outline of argument today which he was given

leave to read and file.

The structure of Mr Ellery's paragraph was to itemise in

paragraphs 8.1 to 8.8 inclusive  the jurisdiction of the

committee which was acknowledged to be broader than that of

its counterpart under the Integrated Planning Act 1997. It

might be observed that the name ascribed to such committees

has changed with some regularity.  Nothing seems to turn on

that.  Although the submission does not spell out a contention

that the committee lacked jurisdiction, there was absolutely

no point in that material being included in the outline of

submissions unless the point as to jurisdiction was being

taken.  There is no reference to it direct or indirect or any

acknowledgment of it in the committee's reasons which are at

page number 78 of the Appeal Book.

Those reasons contain a section which appears to identify what

"correspondence and documentation was reviewed and taken into

consideration".  It does not include any reference to

Mr Ellery's outline, but does include an "owners’ statement of

the reasons for the shed and amenity and aesthetics

description, plans attached".

The application considered by the Council was made in the

familiar IDAS Form 1 format.  It identified the nature of the

development proposed as building work, type of approval sought

as preliminary approval.  The area of the site which was

identified was shown as 4,000 square metres and the proposal

as "new residential garage".  Form 6 was included.  It is a

form required to be completed for development applications for

building works or operational work assessable against a

planning scheme.  Once again, the nature of the work was

identified as building work, type of approval sought as

preliminary approval.  The dollar value of proposed building

work was given as $20,000.  The development application

appears to have been accompanied by a statutory declaration of

the Lawtons to the effect that "We have no intention of

living in the shed at 23 Livistonia Drive, Poona, Queensland,

4650."  That assertion was accompanied by a letter dated 11

March 2010 larding the discreet presentation of the proposal

and confirming a lack of intention to live in the shed which

it was said intended to be constructed "at this time for
mowing and yard maintenance and equipment". The intentions of the Lawtons are beside the point. Their development approval runs with the land. Subsequent owners of the site may have different intentions and seeks to exploit the approval more fully. There is justification for fearing that the “shed” may be utilised in ways that constitute a development offence cf. per Atkinson J (dissenting) in Hy-mix Industries Pty Ltd v Alberton Investments Ltd [2001] QCA 334 at [22].

The proposal was accompanied by plans which show a structure

of handsome proportions whose area is put at 110 square

metres, whose internal height is 2.914 metres, corresponding

with 17 courses of block work.  The end (short) elevation

indicates a wall with two windows, the long elevation shows on

another wall, as well as large doors suitable for garages, a

door of standard domestic proportions at one end alongside

another window.

The court accepts from Mr Connor (responding to the court’s

inquiry) that the council has a concern about the uses that

might be made of sheds of that kind.  It is of a size which

would permit use for accommodation, although there's no

provision for anything such as toilet or bathroom.  The plans

indicate a long term vision for a house, closer to Livistonia

Drive and on-site treatment of effluent.

It is, perhaps, an oddity and a fortunate circumstance for the

Council that in the relevant designation in the applicable

planning scheme which is that of one of the constituent

Councils of the appellant, specifically the Maryborough City

Plan, January 2007, the Council had to be brought in.

The site is in Local area 7, Coastal Townships and Rural.  For

this Coastal designation the relevant level of assessment

tables at page 3-65 show that in the rural residential

precinct, a material change of use for a detached house is

code assessable, and so is any building work or operational

work.

Other uses, such as park, are exempt and grazing in certain

circumstances is also favoured and self-assessable.  It might

be noted that other material changes of use are categorised as

impact assessable, which would cover the case perhaps if you

are using a garage for certain activities.

This authorises the Council to impose conditions that under

s 324(1)(b) of SPA satisfy the s 345 tests of relevance and

reasonableness.  The Council submits that in this appeal, the

court doesn't get to the point of considering such matters.

Section 3.8 of the planning scheme sets out the vision for the

coastal townships of Maryborough city described as a series of

discrete coastal villages with a quiet, peaceful and

distinctive character, supported by the rural attributes of

the area, including Great Sandy Strait.  The townships

are intended to be attractive to both residents and tourists.

The site is located in a sizable swathe of rural residential

area coloured dark green in map 3.7, sheet 4 of 4.  It lies

immediately behind a more extensive area closer to the Great

Sandy Strait, which is designated residential and the subject

of, or earmarked for, what appears to be small lot residential

development.  The swathe of rural residential is served by

Livistonia Drive which traverses its spine and can be seen as

an extension of the road system of the residential area.

Council, in its Decision Notice of 30 March 2010, which

described the proposal as "Building Works - Outbuilding

Ancillary to a Detached House" included the following

condition:  "Do not commence construction of the outbuilding

prior to obtaining building works approval for a detached

house on site".  Mr Connor has presented the Council’s

view as one of considerable concern at the proliferation of

large sheds of the kind proposed here which it considers do

not satisfy its vision for the residential development, and

are said to be unwelcome to residents of conventional detached

dwellings.  As he says, the proposed condition may be seen as

deficient because it provides no assurance that a detached

house will be constructed on the site; however, it may instil

some confidence by committing the developers to the work and

cost involved in obtaining building works approval for a

detached house.  There is at least a serious intention of

proceeding in that way held by the present owners of the site.

The Decision Notice informed the Lawtons of their appeal

rights in conventional terms, advising the possibility of an

appeal to this court against, inter alia, "any condition of a

development approval".  The last part of the relevant section

of the Decision Notice indicates that applicants "may also

have a right of appeal to the Building and Development Dispute

Resolution Committee.  For more details, see SPA chapter 7,

part 2."  This clearly left the Lawtons to make their own

judgment about the appropriate appeal venue.  There's no doubt

that, though having had a right to appeal to this court, they

chose the other potential option.

The committee's focus, as noted, was on what they saw as the

merits issues - any to do with jurisdiction that there might

have been escaping notice.  Reasons for the decision were

given as follows:

"(1) The shed does not impact on the neighbourhood as its

intent is for the storage of maintenance equipment for the

site, not for habitation.  It has been shown on the site plan

to be located to the rear of the site and amenity and

aesthetics description indicates the intent of the applicant

to build it of the standard, materials and manner which is

consistent with the area and planning scheme requirements.

(2) The existing planning scheme does not appear to address

the issue of when a shed can or can't be constructed and

whether it is a requirement that a building works application

is required to be made for a detached house prior to a

construction being permitted.  As such, to include

condition 5, as it stands, can be viewed as unnecessary and

onerous.

(3) It appears that there are a number of sheds of similar

size and location already in existence within the immediate

neighbourhood and that these have received building approval.

(4) Based on the above facts, it is considered that the appeal

is upheld.  The decision held in this application is separate

to any other applications which may be made over the property

at this time or in the future.

(5) In assessing the criteria in relation to the building

structure (shed) as being separate and distinct from an

additional detached house on the site, the committee found

that there were grounds to allow the proposed structure to be

constructed without requiring a building application to be

made for a detached house on the site."

In what seems an unavoidable exercise, if jurisdiction is to

be challenged, Mr Connor has gone item by item through the

provisions located by him which confer jurisdiction on the

committee.  The first of them in his paragraph 6(a) appears in

section 519(1) of SPA relating to appeals for a development

application, "if the application is only for a material change

of use of premises that involves the use of a prescribed

building".  Such a building is defined as one classified under

the Building Code of Australia (BCA) as a Class 1 Building or

a Class 10 Building with certain exceptions.  Exhibit 3 is the

relevant classification summary of buildings and structures

defined in the Building Code of Australia which has, as class

10, "a private garage, carport, shed or the like".  While the

"prescribed building" aspect of section 519(1) is satisfied,

the application was not presented as one "only for a material

change of use of premises".

Next in the listing of matters as to which there may have been

an appeal to the committee comes a decision relating to

"Extension for a Development Approval", to note the heading of

section 520.

The obvious answer to an assertion that the appeal comes under

section 520 is that there's no indication anywhere that this

has to do with an extension or a development approval.  That

section 520 requires that is not expressed in s 520, it does

appear if one follows up the reference in section 520(2) to

section 386 and section 389. 

Next, section 521 provides for appeals about decisions

relating to permissible changes.  No aspect of permissible

change is involved here. 

Section 522 appears, at first blush, useful to the Lawtons, to

provide for an appeal by the applicant in relation to a

“condition of a particular development approval,” quoting the

heading.  However, there's a limitation in subsection (1)(a)

that the building be classified under the BCA as a Class 2

Building which is a building containing two or more sole

occupancy units, each being a separate dwelling, according to

Exhibit 3.  That's not this case.

Sections 523, 524 and 525 provide for appeals about compliance

notices and related decisions.  Again, not this case. 

Section 526(a) provides for matters under the SPA relating to

the Building Act. The Building Act would not appear to be

involved here.  Some searching has been necessary to fill out

section 526(b), permitting appeals about matters that under

another Act may be appealed to a committee.  Mr Connor's

approach to this possibility has been to conduct a search of

the committee website which purports to list the Acts

conferring jurisdiction to decide appeals.  Those are the SPA,

the Building Act 1975, the Plumbing and Drainage Act 2002 -

which is referred to in SPA in various places.  The next Act

referred to is the Residential Services (Accreditation) Act

2002, highly unlikely to be of relevance here.

Finally, to identify any "matters prescribed under a

regulation" referred to in s 526(1), searching as necessary.

Mr Connor has, the court accepts, searched those Acts referred

to on the website and found nothing which would authorise the

present appeal. The Plumbing and Drainage Act is dealt with

as a specific source of authority for appeals in section

526(a) of SPA.  I don't find any relevant plumbing and

drainage aspects of the present situation.

As far as section 526(c) and matters prescribed by regulation

are concerned, the only matter prescribed by regulation to

date, so far as can be discovered, is in the Sustainable

Planning Regulation 2009, section 25 in particular.  It deals

with a decision about a part of a building development

application for which the Local Government is the concurrence

agency.

The next category is a range of matters under the Building Act

1975 (sections 245S, 246AO and 250) and the Plumbing and

Drainage Act (section 169(2)) brought in by section 532 of

SPA.  Those aren't helpful to the Lawtons here.

Next comes appeals about enforcement notices referred to in

section 533 of SPA. There is no enforcement notice involved

here nor has this anything to do with an infrastructure charge

about which an appeal may be brought under section 535.

It is possible that something has been overlooked in the

circumstances.  The court and Mr Connor labour under the

difficulty of having nothing from the respondents or from the

committee asserting that any provision exists which makes the

appeal to the committee maintainable.

The pro forma application for appeal/declaration, a building

and development dispute resolution committee form completed by

the Lawtons and lodged on 27 April 2010, has ticked from the

available boxes to indicate the nature of the appeal that the

appeal is a building related one "about a building development

application".  That's the way in which the Lawtons chose to

characterise their appeal.

The form may have deficiencies in it.  For example, there are

boxes for appeals about enforcement notices under the Building

Act and enforcement notices given under the Plumbing and

Drainage Act 2002, but no box for appeals about enforcement

notices that might be given under SPA a possibility under


section 533 of SPA which refers to appeals against enforcement

notices, in general.  SPA provides for the issuing of

enforcement notices in section 590. 

In an attempt to elucidate further, Mr Connor took the

court through the explanatory notes for the SPA which contain

their own detailed description of the jurisdiction of the

Building and Development Committee as it was to be called.

The expansion in the jurisdiction of such committees was noted

and also the arrangements referred to above permitting appeals

to this court.  Even if the explanatory notes are regarded as

identifying available jurisdiction, I don't find anything

them that supports the contention that the Lawtons appeal

to the committee fell within its jurisdiction.

The court is in a position of having to make the best decision

it can.  It has been emphasised that the nonparticipation of

the Lawtons doesn't make the Council's or the court's task

today any easier.  In fact, it makes it more difficult.  It

might have been of considerable assistance to have contentions

on the other side.  As things stand there is no basis

emerging on which the court might take issue with Mr Connor's

submission which is essentially that he's identified the full

extent of the committee's appeal jurisdiction which leads to

the conclusion that it doesn't extend so far as to letting the

Lawtons' appeal.

So the order ought to be that this appeal by the Council is

allowed, and that the committee's determination is set aside.

In the circumstances it is unnecessary to explore the notion

that the Decision Notice remains in full effect on the basis

of the committee’s purported determination about it was a

nullity.

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