Gage v Maroochy Shire Council

[2000] QPEC 18

IN THE PLANNING AND ENVIRONMENT COURT
HELD AT MAROOCHYDORE
QUEENSLAND

[Gage v. Maroochy Shire Council] [2000] QPE 018

[Before Dodds DCJ]

Planning and Environment Appeal No. 29 of 1999

BETWEEN:

MICHAEL GAGE

Appellant

AND:

MAROOCHY SHIRE COUNCIL

Respondent

Judgment

Judgment delivered:  11 February 2000

Counsel:  In person for the appellant
  A.N. Skoien for the respondent

Solicitors:  In person for the appellant
  J. Hall for the respondent

Hearing date:  7 February 2000

IN THE PLANNING AND ENVIRONMENT COURT
HELD AT MAROOCHYDORE
QUEENSLAND

[Before Dodds DCJ]

[Gage v. Maroochy Shire Council]

Planning and Environment Appeal No. 29 of 1999

BETWEEN:

MICHAEL GAGE

Appellant

AND:

MAROOCHY SHIRE COUNCIL

Respondent

Reasons for Judgment
Delivered on 11 February 2000

On 19 October 1999, the appellant appealed to the Planning and Environment Court against the decision of the respondent to approve an application for a material change of use (boundary relaxation) for the building of a carport (apparently a Class 10a building) on land at 10 Grandview Drive, Coolum Beach. The application appears to have been regarded as one seeking both the material change of use and preliminary approval for building works (carport).
The decision notice issued on 4 June 1999.  It permitted inter alia a relaxation of the front boundary carport set back to 100 millimetres.

The appeal sought that the decision be reversed and that all buildings and structures on the allotment be required to have at least a six metre road boundary clearance as required by section 36 of the Standard Building Regulation 1993. The allotment the subject of the application is elevated. The appellant is a neighbour. His concern about the relaxation of the boundary set back, is that the carport to be constructed will intrude upon the outlook he presently enjoys.

These reasons for judgment concern two applications; an application by the appellant for disclosure of documents by the respondent and an application by the respondent that the appeal be struck out.  It is convenient to deal with the latter application first.  In the view I have taken it is not necessary to deal with the other application.  I have already ordered the appeal be struck out.

Pursuant to section 3.1.2 of the Integrated Planning Act 1997 (the Act) all development is exempt development unless it assessable development or self-assessable development.

Assuming for the purposes of the application that the application is for assessable development, the assessment may be code or impact assessment or both.  Section 3.1.3(1) of the Act provides that a regulation, a planning scheme or a temporary local planning instrument may require impact or code assessment or both for assessable development. 

Section 4(2) of the Building Act 1975 requires that all building work must comply with the Standard Building Regulation. Section 4(1) provides that a regulation (the Standard Building Regulation) may be made under the Act about inter alia, building work, the certification of building work and the occupation of buildings.  The Standard Building Regulation is the Standard Building Regulation 1993 (the Regulation).

Section 2 of the Regulation provides that it is a code for IDAS (Integrative Development Assessment System) under the Act. Section 4(1) of the Regulation provides that subject to subsections (2) and (3) the carrying out of all building work is assessable against the Regulation.

Section 3 of the Integrated Planning Regulation together with Schedule 1 thereof provides that for section 3.1.3(1) of the Act the type of assessment required for assessable development being building work was code assessment.

Part 3 of the Standard Building Regulation headed “Siting Requirements” applies to classes of buildings.  Division 2 thereof provides for boundary clearances.

Carrying on building work is development so is making a material change of use of premises: see s1.3.2 of the Act.  Building work is defined in s1.3.5 of the Act to mean a number of things.  The only meaning relevant here is “building a building or other structure”.  A “material change of use” of premises means inter alia “the start of a new use of the premises”.  For present purposes I take it that the siting of a proposed building to be built is building work.

The appellant contends that the respondent is in breach of the Standard Building Regulation. His contention is based upon section 48 of the Standard Building Regulation (part of Part 3) which provides:

(1)this section applies if a development application for an allotment does not comply with Division 2 and the applicant seeks to vary the application of Division 2.

(2)after considering the matters mentioned in subsection 3 and being satisfied of the matters mentioned in subsection 4 the local government may vary how Division 2 applies to the application.

(3)The local government must consider the following –

…

[a number of matters are set out in subparagraphs (a) – (e)]

(f)any other matter it considers relevant.

(4)the local government must be satisfied that a building or structure built on the allotment in the way proposed would not unduly…

…

(d)obstruct the outlook from adjoining allotments.

…

The appellant contends that section 48 applies because the application made to the respondent was not one which complied with Division 2 and the applicant sought to vary the application of Division 2 and further that the respondent could not have been satisfied of the matter mentioned in subparagraph (d) of subsection (4).

The Act provides for who may appeal to the court: see Chapter 4 Part 1 Divisions 8 and 9 of the Act.  The appellant is not any of the persons referred to therein.  In particular he is not a submitter: see the definition of ‘submitter’ in Schedule 10 to the Act.  He is not a submitter because as I am advised the application was not one for which a regulation, a planning scheme or a temporary local planning instrument required impact assessment.  Whatever the rights or wrongs of the appellant’s contention and the way the respondent conducted itself, the appellant is not a person who has a right of appeal to the court pursuant to the Act.