Grosser & Anor t/a Australian Ikebana Centre v Gold Coast City Council

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION: Grosser & Anor v Council of City of Gold Coast
And Grosser v Council of City of Gold Coast [2000] QPE 047

PARTIES: Dr David Grosser & Ruth Grosser T/A
Australian Ikebana Centre
(Appellants)

v
Council of City of Gold Coast
(Respondent)
and
Ruth Grosser
(Appellant)
v
Gold Coast City Council
(Respondent)

FILE NO/S:               862 of 1999
  and
  1009 of 1999

PROCEEDING: APPEALS

COURT: PLANNING AND ENVIRONMENT COURT SOUTHPORT

DELIVERED ON: 18 August 2000

HEARING DATES: 29, 30 & 31 May 2000

JUDGE: NEWTON DCJ

CATCHWORDS: APPEAL NO 862 of 1999 – appeal against refusal to allow application for material change of use for an Ikebana Centre – conflict with Residential Dwelling House Zone – conflict with detached housing designation of Strategic Plan – conflict with Local Planning Policy No.1 – off street vehicle parking requirements – no adverse impact on amenity of surrounding residential area – issues raised by submitters accorded disproportionate weight.

APPEAL NO 1009 of 1999 – show cause notice – enforcement notice – alleged breach of town planning consent resulting in unlawful use – appeal against enforcement notice – whether enforcement notice should issue before determination of Material Change of Use application – whether exceptional circumstances exist to deny relief to local authority once a breach of the planning scheme has been found – whether show cause notice complied with section 4.3.10 of the Integrated Planning Act 1997.

COUNSEL:Mr C C Hughes for the Appellants
Mr R S Litster for the Respondent

SOLICITORS: Phillips Fox for the Appellants
McDonald Balanda & Associates for the Respondent

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND

P&E APPEAL No 862 of 1999

BETWEEN
DR DAVID GROSSER and RUTH GROSSER
Trading as AUSTRALIAN IKEBANA CENTRE

Appellant

AND
COUNCIL OF THE CITY OF GOLD COAST

Respondent

P&E APPEAL No 1009 of 1999

BETWEEN
RUTH GROSSER

Appellant

AND
COUNCIL OF THE CITY OF GOLD COAST

Respondent

REASONS FOR JUDGMENT – NEWTON D.C.J.

Delivered the Eighteenth day of August 2000

These two appeals were, by consent, heard together. Appeal No 862 of 1999 relates to the respondent council’s decision to refuse a material change of use application. Appeal No 1009 of 1999 relates to an enforcement notice dated 25 October, 1999. I will deal with each Appeal separately.

APPEAL NO 862 OF 1999

A material change of use application was lodged with the respondent on 8 June 1999 to permit the use of Lot 22 on RP 103567, located at 44 Ashmore Road, Bundall for educational establishment (art school), public recreation (art gallery) and cafeteria.
The application sought approval of a facility which teaches a range of art subjects including Ikebana. For present purposes Ikebana may be accepted as a Japanese art of flower arrangement, with formal display according to strict rules. The art, however, embraces more than flower arranging and includes design using sculpture, pottery, metal, and paper. It also includes sketching and collage. Ikebana may also be regarded as a philosophy, or way of life.
Mrs Grosser is regarded as one of the leading masters of Ikebana in the western world. She has participated with distinction in many Japanese exhibitions of Ikebana, as well as in many different countries of the world. She is also a world-recognised teacher of the art.
The teaching of Ikebana is undertaken on the upper level of the premises. On the lower level the school provides a gallery for the display and sale of art produced by students of the school as well as by other local artists from the Gold Coast area, together with a coffee shop or cafeteria for the use of students and outside patrons. An office and library area and computer facilities are also included on the upper level.
The building generally features high levels of architectural detailing and the surrounds have been carefully and effectively landscaped.
On 12 February, 1999 the respondent issued a show cause notice to the appellant, the operators of the facility, citing alleged breaches of an earlier consent permit for a home occupation (flower school) granted by the respondent on 30 October, 1997. This matter is the subject of Appeal No 1009 of 1999. The subject application was made in response to that notice, seeking the respondent’s approval for the uses being conducted on the site.
The respondent issued an acknowledgement notice on 22 June, 1999 advising that the application would be assessed as an education establishment (Ikebana, pottery, computer graphic art school), indoor recreation (art gallery), shop and restaurant.
An information request was issued by the respondent on 6 July, 1999 requesting additional information relating to need, details of classes, hours of operation and the number of on site car parks. This information was provided to the respondent on or about 15 July, 1999.
Statutory advertising as required by the Integrated Planning Act 1997 (“the Act”) was subsequently undertaken on behalf of the appellant. Eleven submissions were received by the respondent; nine in favor of the proposal and two against.
At its meeting of 17 September, 1999 the respondent resolved to refuse the application. The decision notice included five grounds for refusal:
(1). The proposal does not accord with the intent for development in the
Residential Dwelling House Zone, as stated in the former City of Gold Coast Planning Scheme 1994.
(2).The proposal does not accord with the detached housing designation of council’s Strategic Plan.
(3).The number of on site car parking spaces is insufficient for the proposed uses on site and the car parking layout does not accord with Gold Coast City Council Local Planning Policy No. 1 – Off Street Vehicle Parking Requirements.
(4).The proposal is likely to result in an adverse impact on the amenity of the surrounding residential area.
(5).The issues raised by submitters objecting to the proposal are valid and are supported by council.
These grounds of refusal form the basis of the grounds of appeal in this matter. The main issues in dispute concern the development’s conflict with the Transitional Planning Scheme for Gold Coast City (gazetted on 11 February, 1994).
RESIDENTIAL DWELLING HOUSE ZONE
The site is currently contained within the Residential Dwelling House Zone. The intent of this zone is set out in s.4.3.1 of the Strategic Plan. The intent of the zone is to implement the objectives of the Detached Housing Preferred Dominant Land Use in the Strategic Plan. It is intended therefore to provide for the development of detached dwelling houses in an almost exclusively low density residential environment. All residential development with the exception of dwelling houses, dual occupancy dwellings, aged persons’ accommodation, townhouse development and integrated housing as well as most non-residential development will be excluded from this zone. The purpose of these restrictions on development is to provide residents with the assurance that their chosen residential area will remain free from unwarranted intrusions by incompatible development.
Permissible development in this zone may include some non-residential development which may be compatible with and complimentary to residential development.
Within the zone a high priority is to be given to maintaining the integrity of residential areas and accordingly permissible development will not be approved if such development can reasonably be located elsewhere.
Permissible development should generally locate in situations which minimise impact on residential amenity and which do not introduce additional traffic onto minor residential roads. Any permissible development will only be approved if it can be shown that such development is complimentary to and compatible with the surrounding area. Of course, in interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v. Maroochy Shire Council [1996] 92 LGERA 41 at 73, 75 and 78).
The evidence before me (contained within Mrs Grosser’s statement, Exhibit 8) is that part of the tradition of Ikebana is that it is best taught in a “living” environment. The term “living” refers to the spiritual involvement that people have with their local environment and home. Ikebana is traditionally taught in homes or similar environments. I accept that it is antithetical to the philosophy of the particular art form to suggest that it locate in a non-residential or commercial area. The subject site’s particular characteristics match the requirements for teaching Ikebana, as evidenced by the high accreditation and recognition that the centre has both in Japan and Australia. The centre is the only nationally accredited course of Ikebana in Australia.
When looking for a suitable property in which to relocate the centre from their home in Southport, the appellants had in mind two key requirements:
(a)the need for a relatively central location, readily accessible to students, tourists and locals; and
(b)the need to operate the centre from a building in the style of a residential dwelling, rather than a commercial building.
The appellants, accordingly, searched for a property that was neither in a wholly commercial area nor in a wholly residential area. They favoured a centrally located area, near the major tourist areas of Surfers Paradise and Broadbeach, with a mixed commercial/residential character. The evidence of Mrs Grosser was that after searching for about one year, the southern side of Ashmore Road, Bundall, was identified as a suitable area. The appellants were aware of the character of the surrounding area and considered the site to be centrally located.
Under the provisions of the table of development for the Residential Dwelling House Zone, the subject uses of educational establishment, indoor recreation, shop and restaurant are prohibited uses. The subject land would, therefore, prior to the enactment of the Act have required a rezoning application to undertake the form of development being proposed. However, under the Act, rezoning of land is not required and an application must be made for a material change of use, as was done in this instance.
In order to consider the appropriateness of the provisions of the intent for the Residential Dwelling House Zone in this case, it is necessary to consider the range and type of uses already approved in the area.
The site is immediately opposite the Harvey Norman Commercial Centre on Ashmore Road. Land use along the northern side of Ashmore Road, opposite the subject site, comprises intensive commercial and retail development including showrooms, shops and other related commercial activities. These uses clearly dominate the locality.
Land on the southern side of Ashmore Road in the two blocks around the subject site has seen a number of approvals for non-residential uses in the period between 1990 and the present. A total of 28 properties front Ashmore Road between Upton Street and Campbell Street. The range of approved non-residential uses includes 9 separate medical centres, and 8 uses approved as home occupations specifying uses which include architects office, feng shui consultant, interior design (two), solicitor, project administrator and two non-designated offices. The approved feng shui use has subsequently ceased operations in the premises and been replaced by a real estate agent. Most of these uses have involved modification to the existing residential buildings some taking on a distinctly commercial appearance. I accept that some of these uses appear to be of a scale greater than that normally associated with a home occupation by a resident of the premises.
A further two sites, at numbers 30 and 56, appear to be utilised for non-residential purposes without appropriate council approval.
Development on land to the south of the subject site fronting Coogeen Street is purely residential.
Ashmore Road is a two-way dual carriageway approximately 23m in width, with curb and channel both sides and a central median of some 2 to 3m in width. With two through traffic lanes and parking lanes on each side, its function is clearly that of an arterial road. The latest available estimate for traffic on Ashmore road in the vicinity of the site is in excess of 24,000 vehicles per day.
In these circumstances, having regard to the range and type of uses already approved in the area, I do not regard the provisions of the Residential Dwelling House Zone as entirely appropriate to the subject land. No doubt some type of residential development on the site would be possible. However, this, in my view, is unlikely when one considers the problems presented by Ashmore Road and the commercial developments opposite the site (see, e.g. Harburg Investments Pty Ltd v. Brisbane City Council and Ecovale Pty Ltd No. 2163 of 1999, unreported decision of Skoien SJDC delivered on 5 May, 2000). The purpose of the two planning provisions with respect to this zone is primarily to protect residential amenity from undesirable intrusion by non-residential activities, although not to the extent that all non-residential activity is excluded. It is a question of impacts and the acceptability of such impacts. The amenity issues will be considered in due course. It is not to the point that approval of this proposal may create a significant precedent for the locality. Each planning application must be considered on its own merits and facts and circumstances (see Henry v. Council of the City of Gold Coast [1998] QPELR 341; Georgeson and Cotton v. The Council of the Shire of Caboolture and Ors [1996] QPELR 12 at 14).
The respondent required the use definitions of shop and restaurant to form part of the application. The appellant contends that the requirement to gain approval for the use of “shop” is inappropriate as the indoor recreation use is defined to include the specific use of art gallery. I accept that the sales activities predominantly, if not wholly, relate to those art gallery products and that the function of “shop” is ancillary to the display of art works and necessarily associated with such use.
The definition of restaurant at Part 2-11 of the Planning Scheme refers to any premises used or intended for use for the regular supply to the public of substantial meals which are eaten on the premises and for which table service is provided. This definition is inappropriate to the facility incorporated within the centre both in relation to scale and function. The use of the catering facility is primarily concerned with servicing the needs of students of the centre and so may be regarded as ancillary to and associated with the educational establishment, although it does draw some outside custom. The type and range of food offered by the facility could not fairly in my opinion, be described as constituting substantial meals. The term “cafeteria” would more accurately convey the type of function fulfilled by the facility, although this particular term is not defined in the planning documents.
The scale of the “restaurant” use is small, covering some 40 sqm. It should be noted that the scale of the art gallery and cafeteria uses have been modified since the lodging of the material change of use application, reducing the extent of the cafeteria use to 40 sqm with a concomitant increase in the size of the art gallery to 70 sqm.
CONFLICT WITH THE STRATEGIC PLAN
The subject land is included within the Detached Housing Preferred Dominant Land Use. The maintenance of residential amenity is a major priority in relation to detached housing areas. The preferred dominant land use in such areas is detached housing on individual allotments. A very limited range of non-residential development which is either ancillary to residential development or which directly serves the convenience needs of the local neighbourhood may also be appropriate in some locations.
The Strategic Plan requires that development in detached housing areas be required to accord with the provisions applicable to the Residential Dwelling House Zone.
Objective (a) of the detached housing designation provides that, in order to maintain a high level of residential amenity and a detached housing character, only those proposals for development which are complimentary to and compatible with dwelling houses will be favoured. The provisions of The Planning Scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping are intended to set standards for all development to further ensure the maintenance of amenity and character.
Again, impact upon the amenity of existing residential areas will be considered in due course.
The architectural drawings RA WD1, RA WD2, RA WD3, WD7a, WD9a and WD11a show that the development is of two storey construction. The building was approved by the respondent as a class 1 building in its current form. The respondent thereby accepted, as is clearly the case, that the building is residential in form and scale and therefore compatible with the existing built form in the area. I accept that the development is and will be complimentary to the residential areas to the south of Ashmore Road, being residential in its built form, whilst providing a low-key cultural facility in the area.
When considering whether Objective (a) of the detached housing designation is complied with by the subject development, it is appropriate to bear in mind that the respondent had previously approved a home occupation in the subject premises. This appeal involves uses which utilise the building as previously approved, with no change in size or appearance of the building being required for those uses. I accept that, in these circumstances, it can reasonably be anticipated that the maintenance of the character and amenity of the area will be further ensured.
Mr Grummitt, a town planning consultant, who testified on behalf of the appellants, referred in his evidence to the apparent assessment by the respondent of applications relating to proposals in the area of the subject site in accordance with provisions that apply in other similar heavily trafficked areas of the City of Gold Coast. In particular, Mr Grummitt referred to the provisions of Special Development Area No 2 – Low-key Office Development. Such areas are situated in locations with a high degree of accessibility to the main road network and close proximity to established commercial centres. Such areas are seen as offering an opportunity of establishing development which will provide an effective buffer between residential premises and heavily trafficked roads or adjacent commercial development. The subject site is one that clearly accords with this description, although there is no suggestion that it is located within Special Development Area No 2.
Several of the home occupation approvals in the area, however, have been made in respect of such low-key office developments. The approvals of 8 Upton Street and 78 Ashmore Road are designated as home occupation (office). The architectural practice at 28 Ashmore Road and the approvals for interior design (No 40) and for solicitor (No 68) are uses that would reasonably be expected to locate in low-key office precincts in such locations. Other approvals in the area may be considered to exhibit features more commercial in nature than low-key office developments, eg medical centres.
Some of the premises in the area in respect of which home occupation approvals have been granted have been renovated to adopt a more commercial appearance, thus reinforcing the low-key commercial nature of the area.
Ashmore Road is a major arterial road and bus route to central Surfers Paradise and provides a high degree of accessibility for those students and patrons who utilise public transport to the facility, although it should be acknowledged that the frequency of the bus service at present is not great. Should the service be upgraded in this regard it may be expected that a larger number of attendees of the centre would use it.

A major negative impact upon the amenity of lots fronting the southern side of Ashmore Road is created by the existing extensive commercial area along the northern side of Ashmore Road and by the high traffic levels on that road. I am satisfied that the subject site and the uses for which approval was sought will provide an effective buffer between the purely residential areas to the south in Coogeen Street and the heavily trafficked Ashmore Road and extensive commercial development immediately to its north.
I have already observed that the respondent has approved numerous non-residential uses, including some eight medical centres in the two blocks to the east and west of the site. The majority of the medical practitioners based at these centres are specialists, and, as such, could reasonably be expected to draw patients from a very wide area of the city (or beyond). In these circumstances the centres are serving not just the convenience needs of the local neighbourhood, but those of a wider area. I accept the contention that this indicates acquiescence by the respondent in non-residential uses in the subject area and also in the establishment of a precinct in the vicinity of the site which serves a wider function than the provision of services to local residents only.
The non-residential activities operating as quasi-commercial uses in the subject area (including the medical centres and other activities) by their nature draw custom from a wide area and therefore fulfil uses envisaged by the provisions relating to Special Development Area No 2 rather than those of the detached housing designation.
The site and the other non-residential uses on the southern side of Ashmore Road have very discrete boundaries with residential areas to the south in Coogeen Street. This provides an effective constraint to the proliferation of commercial development into Coogeen Street or other areas south of the lots fronting Ashmore Road.

AMENITY ISSUES

The residential strategy and Objective (a) for the Detached Housing (Preferred Dominant Land Use) designation of the Strategic Plan point to the importance of maintaining the amenity of detached housing areas.
In assessing the impact of the housing area it is important to bear in mind that the character of the area surrounding the subject site is that of a mixture of residences and small scale and low-key commercial activities. The subject development was granted building approval as a dwelling house with a home occupation. I accept that the built form is similar in scale and general appearance to other developments approved by the respondent in the area and also to other new residences constructed in the general location of the site.
This similarity in scale and appearance to other developments in the general area is not lessened by the development not being residential in nature and not incorporating a residential component. Mr Brannock a Consultant Town Planning Expert who testified on behalf of the respondent considered that the proposed use of the subject site is not likely to be functional given the shortage of car parking spaces and inadequate vehicular manoeuvering and disabled access arrangements. Furthermore, Mr Brannock considers that the site will be over-developed as a result of the commercial uses proposed by the applicants and that this will create adverse amenity consequences for residents in close proximity. Mr Brannock sees these consequences as including:

on street car parking within residential streets to the south of Ashmore Road;
noise generated by maneuvering vehicles on site and within surrounding residential streets and the activity of pedestrians;
odor from garbage disposal and the cafeteria.

Generally Mr Brannock sees the proposed commercial development intruding upon the privacy and integrity of the residential area through increased pedestrian and vehicular activity by pedestrians who reside outside the neighborhood.

I will deal more specifically with traffic issues and car parking in due course but I should at this stage indicate that any noise generated by motor vehicles on site is extremely unlikely to make itself heard above the very heavy traffic levels on Ashmore Road.
With respect to the suggestion that odor from garbage disposal and the cafeteria will impact upon the amenity of nearby residences I point out that there is no evidence before me that anyone has yet complained of either of these suggested sources of odor. In my view there is no basis in fact to claim such an impact upon the amenity.
In relation to the suggestion that the subject site has been over-developed it should be noted that the development parameters for the development relating to the site coverage, building height, and setbacks all comply with the provisions of the Residential Dwelling House Zone, as required for non-residential development in such areas within the city.
There is no evidence that there has been any impact upon the privacy and integrity of the residential area by patrons of the centre, where ever they may reside.
Both Mr Brannock and Mr Grummit concur that the gradation of uses is conducive to orderly development and proper amenity outcomes. I accept that this is a principle of good town planning practice and in my view the proposal constitutes a proper gradation of uses bridging the commercial nature of the area to the north of Ashmore Road with the residential nature of the area to the south of the proposal.
TRAFFIC IMPACT AND CAR PARKING
The development plan depicts provision for a total of 6 car spaces comprising 2 staff spaces and 4 visitor spaces. Although the dimensions of the spaces are not in strict conformity with the planning policy I accept that these deficiencies alone would not compromise the safe operation of parking.
Further it is clear, in my opinion, that limited manoeuvering space exits at the rear of the building resulting in access into and out of spaces requiring multiple point turns. Moreover, if all spaces are occupied any vehicle entering the site searching for a space will be forced to reverse off the site on to Ashmore Road. This is a potentially hazardous manoeuver as visibility is restricted by adjacent parallel parking. I accept that it is preferable to ensure that vehicles are able to manoeuver on and off the site in a forward direction. Particularly is this so where, as in this case, the frontage is situated on an arterial road.
There is no dedication provision on the development plan for service vehicles. It seems that delivery vehicles will stop outside the rear door of the building and thus block access to parking spaces at the rear of the building for short periods of time.
If all or even most parking spaces are occupied, delivery vehicles will be required to reverse off the site. This does not satisfy council’s planning policy at clause 1.4.1.5 which states that:-
“Service areas shall facilitate the requirements of the particular designed vehicle,
to ensure that such vehicles can readily access the service bay and enter and leave
the site in a forward gear”.
In my view the difficulties associated with on site parking can be significantly reduced by reserving all on site car parks for staff members and requiring all students to park along Ashmore Road. The evidence before me establishes that even allowing for anticipated growth in student numbers there is likely to be adequate space for parking on Ashmore Road, either on the south or the north, avoiding the necessity of incursion into residential streets. It would be unusual for students not to be able to park on the southern side of Ashmore Road within a few minutes walking time of the centre.
Were the planning scheme to be strictly complied with, the centre has an on site parking deficiency of some 2 to 3 spaces. The standards in the scheme however may be relaxed and the criteria for relaxation are expressed broadly. By restricting student access to parking on site as I have suggested, the difficulties, both actual and potential, relating to on site parking can be effectively minimised. An appropriate condition should be formulated by the parties in this regard.
The art gallery at present attracts only occasional visitors and it is unlikely that their requirements will add to the total parking requirements of the centre. There is no reason why one space at the rear of the building is not made available for disabled parking to comply with council’s local planning policy and the planning scheme.
It is not appropriate to encourage the use by staff and students and visitors of the Harvey Norman site on the opposite side of Ashmore Road. Indeed there is no necessity to use that site for parking given the availability of car parking space along Ashmore Road itself.
A brief consideration of the results obtained from a survey of students using the Ikebana Centre in May of this year shows that the peak traffic generation of the Centre occurs on Wednesdays when a total of 54 vehicle trips per day occur. Of this total 12 vehicle trips per day are made by staff members, 20 by students, 20 by visitors and 2 by commercial vehicles. On other days student numbers are much reduced resulting in a vehicle generation of some 40 vehicle trips per day. I accept the evidence of Mr Veitch, a Consultant Traffic Engineer, that in the context of overall traffic activity on Ashmore Road, these numbers are insignificant, and would not be noticeable. I further accept his evidence that none of this traffic activity impinges on the residential amenity of the local area.
As would be expected from the above, peak parking demand also occurs on Wednesdays, particularly between the hours of 10.00 am and 12.00 noon. Mr Veitch estimates that 5 or 6 vehicles during these hours will be parked on the street. Presumably, if on-site parking is restricted to staff members this number will increase by approximately 3. Given the capacity of Ashmore Road to provide on-street parking within relatively short distances of the Centre, this is of little moment. I am satisfied that even with the increase in demand for on-site parking as a result of the restriction of on-site parking for staff members there is little or no likelihood of encroachment of parking demand into nearby adjacent residential streets such as Tiwi Street. In any event, should the period of peak activity from 10.00 am to 12.00 noon on Wednesdays produce greater demand than anticipated for on-street parking it would be a simple administrative matter for the operators of the Centre to alter the timetable so that the popular photography and Ikebana courses are separated.
Although it is not desirable to encourage patrons of the Centre to cross busy Ashmore Road, having parked on the north side of the road, to reach the Centre, Mr Veitch testified that crossing Ashmore Road to the south side is a relatively simple and safe movement for pedestrians because of the presence of a median strip and also because substantial gaps in the traffic occur at regular intervals because of the traffic platooning effect of the nearby traffic signals on Racecourse Drive and the roundabout on Upton Street. I accept this evidence.
The requirements of delivery vehicles to reverse off the site may be reduced to some extent by the decreased demand for on-site parking spaces if these are reserved for staff members only. In these circumstances, there may be some opportunity for manoeuvering at least smaller delivery vehicles on site in order to enable such vehicles to exit the site in a forward gear. The difficulty in this regard of complying with the relevant planning policy should not, in my opinion, result in the rejection of the appeal.
In general terms I conclude that as it is currently operating, the Centre is not having any adverse impact on the safety or traffic efficiency of the road network and is not causing a parking problem or adversely affecting the residential amenity of the surrounding residential neighbourhoods. On the evidence before me I am satisfied that even with an increase in on-street parking resulting from the requirement that students do not park on site, and allowing for the anticipated increase in the number of students attending the Centre in the future this situation is unlikely to significantly alter. The proposal is not one that demands an unduly negative view in assuming that a “worse case scenario” in traffic engineering terms is inevitable. Rather, one should focus upon the proposal and its reasonable possibilities (see Hollis v. Brisbane City Council and Liquorland (Australia) Pty Ltd No. 2494 of 1999, unreported decision of Quirk DCJ delivered on 28 February, 2000).

OBJECTIONS BY SUBMITTERS

As at the closing of the public notification period 11 submissions had been lodged with the respondent. Of these 9 were in favour of the proposal (including a petition containing 11 signatures) and 2 objected to the proposal.
The 2 submissions objecting to the proposal were submitted by the adjoining property owner at 42 Ashmore Road and by the owner of the property at the rear of 42 Ashmore Road. The latter has since moved. The former operates a Chiropractic Clinic on the premises next door to the Centre. That person submitted that
“the proposal would have an adverse impact on the residential amenity of the area
because of the following:
· It would be an over use of the property.
· There is insufficient parking.
The proposed application is generally unsuited to a residential area and should be
in a commercial zone, of which there are plenty of favourable ones in the area.”

The Centre is constructed in conformity with the Council’s requirements for a Class 1, Detached Dwelling. It cannot therefore be an overuse of the property.
As I have previously indicated the use of the premises for such activities has not resulted in any detriment to the area by way of unacceptable impacts from car parking on the site. No such impacts in my view are likely to occur in the future even with an increased use of Ashmore Road for parking.
The submitter’s claim that the proposed application is unsuited to a residential area is not borne out by the evidence of Mrs Grosser that the teaching of Ikebana is ideally carried out in a residential setting and is unsuitable in a purely commercial area.
The submitter who formerly resided at the rear of 42 Ashmore Road complained that the Centre looks like a three storey building on “A Class” Residential. I repeat that the Centre as constructed has conformed to Council’s requirements for a Class 1, Detached Dwelling as a 2 storey building. The apparent height of the building may result from a flood height requirement requiring that the site be filled by 600mm.
In my opinion the issues raised by the submitters have been given undue weight by the respondent and the objections of the submitters in my view would not justify refusing the Material Change of Use Application.
CONCLUSION
For the above reasons I am satisfied that the appeal should be allowed, subject to the preparation of appropriate conditions relating to the restriction of on site parking to staff members and also to the provision of on site parking for a disabled person or persons. If the parties are unable to agree on the wording of such conditions the matter may be brought on before the Court upon the giving of reasonable notice. Despite the conflicts with the Strategic Plan that have been identified, these are not, in my opinion, so fundamental as to enliven the provisions of section 4.4 (5A) of the Local Government (Planning and Environment) Act 1990 which require that an application be refused if it conflicts with any relevant strategic plan and there are not sufficient planning grounds to justify approving the application despite the conflict. To some extent it may be said that the Strategic Plan so far as this particular area is concerned has simply been overtaken by events to the stage where this portion of Ashmore Road is really dominated now by semi-commercial aspects of the medical centres and home occupations. (See, e.g. Plafaire Projects Australia Pty Ltd v. Council of the Shire of Maroochy & Anor [1991] QPLR 87 at 88).
APPEAL NO 1009 OF 1999
On 12 February, 1999 the respondent served a show cause notice on Mrs Grosser requiring her to show cause why an enforcement notice should not be issued against her under Section 4.3.11 of the Act to refrain from committing a development offence, or to remedy the commission of a development offence by failing to comply with the conditions of approval for town planning consent for a Home Occupation (Flower School) issued on 30 October, 1998. The notice alleged that the total use area of the home occupation exceeded one-third of the gross floor area of the dwelling house or 45 square metres, which ever is the lesser in contravention of Condition 1.
[75.} In response to the show cause notice, the appellant caused an application for a Material Change of Use to be prepared seeking the respondent’s approval for the subject uses in accordance with the provisions of Part 2 of the Act.
The respondent issued an enforcement notice on 25 October, 1999 stating that:
By town planning consent permit No. 818/97/145 dated 30 October, 1997 the assessing authority approved an application for Home Occupation (Flower School), subject to conditions which included a condition the total use area of the home occupation shall not exceed one-third of the gross floor area of the dwelling house or 45 square metres, whichever is the lesser;
The total use area of the home occupation exceeds one-third of the gross floor area of the dwelling house or 45 square metres, whichever is the lesser and contravention of the condition in the town planning consent approval breaches Section 4.3.3(1) of the Act;
The land is situated within the Residential – Dwelling House zone with the City of Gold Coast Planning Scheme gazetted February, 1994;
The land is being used for an Educational Establishment (Ikebana, Pottery and Computer Graphic Art School), Indoor Recreation (Art Gallery), Shop and Restaurant without a development approval by Gold Coast City Council as the assessing authority;
The present use of the land contravenes a condition of the town planning consent permit No. 818/94/146 issued 30 October, 1997 and use of the land for an Educational Establishment (Ikebana, Pottery and Computer Graphic Art School), Indoor Recreation (Art Gallery), Shop and Restaurant is not a lawful use.
This appeal (No 1009 of 1999) was lodged by the respondent against the enforcement notice. An amended notice of appeal was lodged on 6 April, 2000 asserting, inter alia, that the enforcement notice should not have issued until the Material Change of Use application had been finally determined. The other grounds of appeal set out in the amended notice of appeal, were relied upon by Counsel for the appellant only if he failed on the main argument.
There is no doubt that the appellant contravened Condition 1 of the town planning consent permit issued on 30 October, 1997. Mr Ford, a technical officer employed in the Development Compliance Department of the respondent inspected the subject site on 17 November, 1998 in the presence of Mrs Grosser. He saw that:

(a)there were no beds or other indications that anybody was living in the building;
(b)a coffee shop (with paintings and pottery items on display and for sale) was operating from the area identified on the site plan as “family living”;
(c)a lecture room was set up in the areas identified on the site plan as “home occupant personal studio and home occupant library, media room”;
(d)a lecture room was set up in the major part of the area identified on the site plan as “Ikebana teaching area”; and
(e)the area identified on the site plan as “home occupant bedroom suite den” had been divided in two with one part set up as an office and the other set up with a number of computers on benches.

In these circumstances I can do nothing other than find that the appellant had breached the terms of Condition 1 of the town planning consent permit, issued on 30 October, 1997.
{80.] The real issue is whether as a matter of discretion the respondent ought not to have issued the enforcement notice pending final determination of the Material Change of Use application.
The onus in this appeal rests with the respondent pursuant to Section 4.1.50(5) of the Act, which states:
“In an appeal by a person who is given an enforcement notice, it is for the entity
that gave the notice to establish that the appeal should be dismissed.”
Section 4.1.54 of the Act sets out the powers of this Court on appeal as follows:
           “4.1.54
(1)In deciding an appeal the Court may make the orders and directions it considers appropriate;
(2)Without limiting subsection (1), the Court may;
(a)confirm the decision appealed against; or
(b)change the decision appealed against; or
(c)set aside the decision appealed against and make a decision replacing the decision set aside;
(3)If the Court acts under subsection (2)(b) or (c), the Court’s decision is taken, for this Act (other than this decision), to be the decision of the entity making the appealed decision.”
[83.]     The introductory words of the section, in the use of the permissive “may”, make it clear that the Court retains a discretion when disposing of an appeal. In the exercise of my discretion I must bear in mind the fact that the local authority is the elected body charged with the administration of the planning scheme and that something so compelling as to amount to exceptional circumstances must be found in order to deny relief to the local authority once a breach of the planning scheme has been found (see Di Domenico v Hervey Bay City Council – unreported decision of Skoien SJDC 1666/1999 delivered 7 March, 2000).
[84.]     Mr Hughes, for the appellant, submitted that the exceptional circumstances to be found in this case that would justify the exercise of my discretion in favour of his client relate to the absence of any harm being done by the unlawful use continuing. However in my opinion, this factor alone cannot warrant the exercise of my discretion to effectively countenance what has been a long and continuing offence against the planning scheme. There is in this case, a distinct absence of those features which enabled Skoien SJDC in Di Domenico to exercise his discretion in favour of the appellant. In that case the appellant had operated as a shop and kiosk situated within a caravan park without obtaining an appropriate development permit. His Honour identified the features he took into account in finding that exceptional circumstances existed:
(a)the shop use has been in existence for over 20 years;
(b)the shop was not begun by Di Domenico but by a predecessor in title, at least one removed from him;
(c)Di Domenico bought the caravan park believing that he could lawfully continue the shop use and has done so for 14 years in that belief;
(d)The continuation of the shop use is essential to Di Domenico’s economic running of the caravan park;
(e)That shop has been the only local store in the area until October, 1998, thereby filling a community (and planning) need for a very long period;
(f)Di Domenico has regularly applied to State and Council authorities for the necessary permits and certificates to run the shop. Indeed his building permit in 1990 (when he re-built and re-located the shop) required the Council to be satisfied of the planning lawfulness of the use. See Building Act 1975, S.30BA.
(g)At that time in 1990, he discussed the new building with the Council officer, Mr Orr. Had Di Domenico properly understood Mr Orr, he could then have applied for and almost certainly have obtained, an appropriate re-zoning. While I accept that Mr Orr attempted to explain the planning difficulties, Di Domenico did not understand him because of his imperfect grasp of English. However the important point is that despite a Council officer having actually turned his mind to the question of planning lawfulness, the Council did not take any formal step to inform Di Domenico that it was unlawful to operate the shop as he was doing;
(h)A report to the Council dated 2 July 1997, on a proposed new shopping centre for the neighbourhood, expressly dealt with the activities of the Di Domenico shop. It made no reference to illegality, referring only to the commercial competition which would be provided by the Di Domenico shop. Again, despite actual Council attention to the fact that Di Domenico was operating a shop for the public generally, the Council took no action for a further period of about 18 months, when it issued the show cause notice;
(i)Even if Di Domenico now restricted the shop use to one which is merely ancillary to the caravan park use (which would be lawful) it would inevitably still attract some outside custom so that breaches of the planning scheme, unintended by him, would be committed;
(j)No adverse effect on the general public because of the operation of the Di Domenico shop has been demonstrated;
(k)The only identified person who is adversely affected by the shop use is Mr Matthews, the proprietor of a local store which opened in October ,1998. I consider that Mr Matthews must have taken into consideration the existence of the Di Domenico shop when deciding to commence business. I do not accept that Di Domenico, in an oral and apparently casual conversation , would have expressed an intention to cease the shop use, thereby misleading Mr Matthews;
(l)It is noteworthy that Section 4.3.11 under which the Council issued the enforcement notice, itself gave to the Council a discretion to do so irrespective of its belief that there had been a breach of the planning scheme. Thus the legislation does not make the issue of an enforcement notice an automatic consequence of the breach and must be taken to have left to the Council the discretion to consider all of the circumstances. None of these considerations, or anything similar, arise in this matter.
[85.]     In the circumstances of the case before me I am satisfied that it is not appropriate to exercise my discretion in favour of the appellant by continuing or extending the opportunity of a stay in respect of the enforcement notice.
[86.]     The amended notice of appeal listed the grounds of appeal and the facts and circumstances relied upon in support thereof as follows:
1.The respondent was required, before giving the relevant enforcement notice, to give a show cause notice by virtue of Section 4.3.9 of the Act;
2.The respondent in purported compliance with Section 4.3.9 of the Act, gave a show cause notice to the appellant dated 12 February, 1999;
3.The purported show cause notice did not comply with Section 4.3.10 of the Act:
(a)It did not give the appellant a proper opportunity to show cause why the relevant enforcement notice should not be given;
(b)It did not allege or deal with the allegation, subsequently made in the enforcement notice, that the present use of the subject premises was an Educational Establishment, Indoor Recreation, Shop and Restaurant without a development approval; accordingly
(c)It did not properly outline the facts and circumstances forming the basis of the belief that an enforcement notice should be given.
4.The purported show cause notice was not given to all interested parties, and in particular Dr David Grosser and Rickmansworth Pty Ltd.
5.Further in deciding to issue the said enforcement notice;
(a)The respondent acted unlawfully in that it acted pursuant to the direction of its solicitors, rather than acting upon the exercise of its relevant discretion pursuant to the Act;
(b)The respondent failed, in breach of its obligation pursuant to Section 4.3.12 of the Act, to properly consider the representations made by the appellant before issuing the said enforcement notice.
6.Insofar as the enforcement notice required the performance of acts it did not in breach of Section 4.3.14 of the Act state the period within which such acts were to be done.
7.Further, and in any event, in the exercise of its discretion the respondent ought not to have issued the said enforcement notice dated 25 October, 1999 having regard to the fact that it well knew that Appeal No 862 of 1999 had been issued in the Planning and Environment Court on 29 September,1999, and that the use of the premises involved no unacceptable impact on amenity or danger to life or property.
I was informed by Counsel for the appellant that paragraph 5 of the amended notice of appeal was not relied upon. I have already dealt with paragraph 7. The remaining grounds of appeal are to be considered against the statutory general requirements of shown cause notices and enforcement notices.
Before giving an enforcement notice, the assessing authority (in this case the respondent) is required to give the person a show cause notice inviting the person to show cause why the enforcement notice should not be given (Section 4.3.9 of the Act).
The general requirements of a show cause notice are set out in Section 4.3.10 of the Act:
“4.3.10.(1)A show cause notice must:
(a)be in writing; and
(b)outline the facts and circumstances forming the basis for the assessing authority’s belief that an enforcement notice should be given to the person; and
(c)state that representations may be made about the show cause notice; and
(d)state how the representations may be made; and
(e)state where the representations may be made or sent; and
(f)state:
(i)a day and time for making the representations; or
(ii)a period within which the representations must be made.
(2)The day or period stated in the notice must be, or must end, at least 20 business days after the notice is given.”
The show cause notice was personally served by Mr Ford on Mrs Grosser on 12 February, 1999 at the subject site. The notice stated that written representations may be made about the notice and that oral representations may be made. It detailed how these representations were to be submitted or effected. The evidence before me shows that, in fact, the appellant made oral and written submissions on 11 March, 1999. There is no substance in the allegation that the appellant was denied a proper opportunity to show cause why the enforcement notice should not be given.
Paragraph 3(b) of the amended notice of appeal alleges that the show cause notice failed to refer to a matter subsequently raised in the enforcement notice, namely that the present use of the subject premises was an Educational Establishment, Indoor Recreation, Shop and Restaurant without a development approval. Paragraph 3(c) complains that because of this failure, the facts and circumstances forming the basis of the belief that an enforcement notice should be given were not properly outlined.
Two points may be made in respect of this complaint. Firstly, there is no requirement that the terms of an enforcement notice must precisely mirror the contents of a show cause notice. Section 4.3.14 of the Act requires that:
(1) An enforcement notice must:
(a)be in writing; and
(b)describe the nature of the alleged offence; and
(c)inform the person to whom the notice is given of the person’s right to appeal against the giving of the notice.
(2). If an enforcement notice requires a person to do an act involving the
carrying out of work, it also must give details of the work involved.
(3)If an enforcement notice requires a person to refrain from doing an act, it also must state either –
(a)a period for which the requirement applies; or
(b)that the requirement applies until further notice.
(4)If an enforcement notice requires a person to do an act, it also must state a period within which the act is required to be done.
(5)If an enforcement notice requires a person to do more than I act, it may state different periods within which the acts are required to be done.

Secondly, the appellant could not have been under any misapprehension as to the basis of the central allegation of the respondent which remained unaltered in the enforcement notice – namely that the appellant had breached Condition 1 of the town planning consent permit of 30 October, 1997. The complaint of the appellant in this regard is without foundation.

Paragraph 4 of the amended notice of appeal complains that the show cause notice was not given to all interested parties, and in particular Dr David Grosser and Rickmansworth Pty Ltd.
The application for town planning consent seeking the respondent’s approval for the establishment of a Home Occupation (Flower School) at the subject site was forwarded to the Council under cover of a letter from Grummitt Planning Pty Ltd dated 4 September, 1997. The letter signed by Mr Noel Grummitt, stated that the application was being made on behalf of the Australian Ikebana Centre. The application itself was signed by Mrs Grosser and indicated that an entity identified as Rickmansworth Pty Ltd consented to the making of the application and also authorised Council officers to enter the subject property to carry out inspections relating to the application. Mrs Grosser, by her further signature, consented as a duly authorised person of the company to the making of the application. However, I note that this consent was not given, as was required under the company seal.
The evidence before me (exhibit 14) shows that searches conducted at the Australian Securities and Investments Commission revealed:
(a)“Australian Ikebana Centre” was a registered business name;
(b)Ruth Grosser was identified as the person carrying on business under the name “Australian Ikebana Centre”;
(c)David Maxwell Grosser and Ruth Grosser did not trade as Rickmansworth Pty Ltd (Trustee):
(d)David Maxwell Grosser and Ruth Grosser were directors and shareholders of Rickmansworth Pty Ltd.
The show cause notice was served by Mr Ford on Mrs Grosser on 12 February, 1999 at the subject site. There can be no doubt that Dr Grosser was aware of the show cause notice at least by 11 March, 1999 because on that date he made oral representations about the show cause notice to Mr Ford. Furthermore, Dr Grosser and Mrs Grosser on 11 March handed to Mr Ford a written submission dated 10 March about the show cause notice . This four page document purports to be from both Dr and Mrs Grosser, however only Mrs Grosser has actually signed it. The written submission refers to ”we”, “us” and “our” throughout its contents and was clearly expressed in such a manner to refer to both Dr and Mrs. Grosser.
In these circumstances I am satisfied that it was sufficient for the respondent to serve the show cause notice only on Mrs Grosser. She was, it should be remembered, identified as the person carrying on business under the name ”Australian Ikebana Centre’ on the town planning consent application. Counsel for the appellant has not pointed to any prejudice to his clients as a result of the show cause notice being served in the manner described. Indeed, it would be surprising if such prejudice had been alleged. There is no substance to the complaint in this regard.
Paragraph 6 of the amended notice of appeal states that in so far as the enforcement notice required the performance of acts it did not in breach of Section 4.3.14 of the Act state the period within which such acts were to be done.
The enforcement notice required the appellant to “immediately”

(a)refrain from committing the offence; and
(b)remedy the commissioner of the offence by forthwith ceasing any use of the dwelling house on the land which exceeds one-third of the gross floor area of the dwelling house or 45 square metres, whichever is the lesser, for the purpose of Home Occupation (Flower School).

From these requirements it can be seen that rather than failing to state the period within which these acts were to be done, the time limit was identified with startling clarity - they were required to be done immediately and forthwith. There can be no room for doubt as to the meaning of those words. They should be given their natural and obvious meaning – namely, instantly. This ground of appeal should also be dismissed.
CONCLUSION
Notwithstanding the success of the appellant in Appeal No 862 of 1999, the evidence before me shows that the appellant for a considerable period of time failed to observe its obligations to comply with the planning scheme. The Appeal No. 1009 is, for the reasons stated above, dismissed.

[2000] QPEC 47

18/08/2000