Hanrahan v Townsville City Council

[2002] QPEC 62

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hanrahan & Anor v Townsville City Council [2002] QPEC 062

PARTIES:

HANRAHAN & ANOR
(Appellant)
TOWNSVILLE CITY COUNCIL
(Respondent)
HANRAHAN & ANOR
(Applicant)
TOWNSVILLE CITY COUNCIL
(Respondent)

FILE NO/S:

Appeal 28 of 2001, Application 39 of 2001

DIVISION:

PROCEEDING:

Appeal and Application

ORIGINATING COURT:

Planning & Environment Court, Townsville

DELIVERED ON:

1 March, 2002

DELIVERED AT:

Cairns

HEARING DATE:

5/6 November 2001

JUDGE:

White DCJ

ORDER:

1.   That Appeal 28 of 2001 be dismissed.

2.   That Application 39 of 2001 be dismissed.

3.   That both parties have liberty to apply within 14 days hereof upon 2 days written notice.

CATCHWORDS:

COUNSEL:

Mr. J. Logan S.C. for the appellants/applicants
Mr. J. Haydon and Mr. R. Quirk for the respondent

SOLICITORS:

Connolly Suthers for the appellants

1. The appellants are the owners of a substantial residence located at 33 The Esplanade, Pallarenda, Townsville.  The resident was designed by an architect, Terrence Arthur O’Toole, and Mr. O’Toole represented the appellants in dealings with the respondent Council and others concerning the construction of the house.  The construction took place over some months commencing in late 1999 and extending into the year 2000. 

1. On 20 December 2000 the respondent Council issued an enforcement notice pursuant to s 22 of the Building Act 1975 as amended, requiring the appellants to bring the premises into compliance with s 38 of the Standard Building Regulation 1993 by the removal of certain structures forming part of the building which the Council alleged did not comply with the minimum side boundary set-back requirements of the Regulation. Appeal No. 28 of 2001 is an appeal against the issue of the enforcement notice. Application No. 39 of 2001 is an application for appropriate declarations to the effect that the alleged offending structures constitute a lawful development and that the enforcement notice is invalid.

1. Examination of design illustrations and photographs of the residence shows a number of roofs.  The residence faces approximately east onto the esplanade at Pallarenda.  Relevant walls of the house closest to the northern and southern boundaries of the property are constructed at a set-back of two metres from those boundary lines.  Accordingly to the original drawings each of the roofs were intended to extend out over the exterior walls so as to provide eaves.  It was intended to construct these eaves around a framework provided by extensions to the top chords of the various roof trusses. 

1. There seemed to be no dispute that as originally designed the roof overhangs or eaves would be part of the roof structures themselves. It is also not in dispute that as originally designed the eaves overhanging the outermost northern and southern walls of the residence would not comply with s 38 of the Standard Building Regulation in that they would extend into the required two metre boundary clearance required by paragraph (b) of s 38. Application was made to the respondent Council for a dispensation from the strict requirements of s 38 so as to allow the eaves to be constructed as originally planned and designed. This application was refused. As a result amended plans were drawn providing for the roofs at the north and south extremities of the building to end flush with the outer north and south walls.

1. I have no doubt that the appellants and in particular their architect Mr. O’Toole, felt that the deletion of these roof overhangs detracted from the symmetrical appearance of the building and therefore its visual attraction.  I am also satisfied that the appellants and Mr. O’Toole took the view that there was a significant functional desirability for such roof overhangs in order to provide some protection to the walls and windows below them from rain and sunlight.

1. In December 1999 the appellants obtained certification that the proposed building plans complied with all necessary building codes from Mr. Greg Dempster of Developments Certifications Pty Ltd, an accredited private certifier pursuant to the provisions of the Building Act 1975. The plans certified at that time were those not containing the relevant north and south roof overhangs.

1. Sometime after December 1999 and during the process of construction Mr. O’Toole, with the approval of the appellants, devised a plan which he considered would allow a form of roof overhang to be constructed above the north and south walls which he believed would not render them as roofs and therefore be capable of complying with s 38 of the Standard Building Regulation.  This method involved cutting off the top chords of the relevant roof trusses with vertical cuts flush with the outside of the wall.  Each of the truss off-cuts was then attached to a steel bracket which was itself attached to the bond beam at the top of each of the north and south walls.  The revised plan provided for the waterproof sarking beneath the tiles to extend in one piece from the roof out over the new structures.  The tiles over the new structures were attached to them and the only relationship between those tiles and the tiles on the roof proper were that the lowest row of tiles on the roof overlapped the top row of tiles on the new structures.  Mr. O’Toole described these structures as awnings and for convenience I will do the same. 

1. When completed the awnings appeared to be extensions of the relevant roof structures extending beyond the walls, just as all other roof overhangs appeared to be extensions of the roof structures themselves.  There is no doubt that this was intended to be the case so as to give the appearance that all of the roofs were symmetrical and identical in appearance.  However, as Mr. O’Toole rightly points out, the structural framework of the awnings exists independently of the structural framework of the adjacent roofs.

1. The design drawings for the awnings were put to Mr. Dempster as amendments to the original certified plans and on the 26 May 2000 Mr. Dempster gave approval to such amendments.  In other words, he certified the proposed awnings as complying with the Standard Building Regulation.  Following this the residence was completed in accordance with these certified amended plans.

1. A number of issues have been litigated during the course of the hearing including issues of jurisdiction. However, it seems to me appropriate to start at the heart of the matter and deal with the issue of whether or not the awnings/eaves comply with the requirements of s 38 of the Standard Building Regulation. So far as is relevant s 38 provides as follows:-

“If the maximum height of the outermost projection above the natural ground surface is –

(a)        ….

(b)        Greater than 4.5 metres but not exceeding 7.5 metres the side and rear boundary clearances must be not less than 2 metres.”

Outermost projection is defined as follows:-

“Outermost projection”, of a building or structure means the outermost projection of a structural part of the building or structure including –

(a)        If the projection is a roof and there is a fascia – the outside face of the fascia or

(b)        If the projection is a roof and there is no fascia – the roof structure

but does not include rainwater fittings or ornamental or architectural attachments.”

Unfortunately there are no further definitions of such terms as “structural part”, “roof”, “ornamental attachments”, or “architectural attachments”. Having attempted to examine some dictionary meanings of these words (the Pocket Macquarie Dictionary) I have come to the conclusion that the relevant terms can have a slightly different meaning as they relate to the building industry generally from the very general meanings of such terms. What seems to be clear from the definition of “outermost projection” is that there can in fact be projections which might be the outermost projections in the general sense of the term but they are not outermost projections for the purposes of determining the side boundary clearances. Obviously, the rainwater fittings such as roof guttering and downpipes are not included for the purposes of determining the outermost projection in judging compliance with s 38. Further, ornamental or architectural attachments (whatever those terms might mean) are not included for the purposes of determining compliance with s 38. Further, it appears in order to be the “outermost projection” for the purposes of s 38, the projection in question must form part of a “structural part” of the building or structure.

1. In my view on the proper construction of the definition of “outermost projection” a roof cannot be exempted by being described as “an ornamental or architectural attachment”. “Roof” is defined in the Pocket Macquarie Dictionary as “the outer upper covering of a house or other building”. In my view the essential feature of the roof is the uppermost protective covering. Obviously, in order to support and attach such covering to the top of the walls of the house, a structural framework will usually be required and this forms part of the roof. However, a house cannot be properly said to have a roof until the uppermost covering is in place. In this case the uppermost covering of the roof is the layer of tiles. It may also include the layer of waterproof sarking beneath the tiles. The layer of tiles (and the sarking) on the roofs in question continue in rows to the outer edge of the awning/eaves. Therefore in my view the roof continues to the outer edge of the awnings/eaves. The fact that there are separate supporting structures beneath those layers to support the tiles and sarking and attach them to the house is of no consequence. They are still there to support the roof and attach it to the house. In my view the house does not comply with s 38 of the Standard Building Regulation 1993.

1. The next issue for consideration is the effect of the certification of the amended building plans (including the awnings/eaves) by the private certifier as complying with the provisions of the Standard Building Regulation.  As I understand the competing submissions, they are essentially these:-

(a) The appellants submit that the issue of whether or not the amended building plans complied with s 38 of the Standard Building Regulation required and therefore permitted a value judgment on the part of a lawfully appointed private certifier.  It was open to the private certifier to come to the view that the awnings/eaves were ornamental or architectural attachments and therefore his certification of the amended plans was valid and binding on the local authority unless lawfully set aside by a review authority or tribunal with power to do so.

(b) The respondent’s submission is essentially that compliance or non-compliance with s 38 is a matter of objective fact. As a matter of objective fact the amended plans with the awnings/eaves included did not comply with the Standard Building Regulation and therefore the private certifier’s certification that the amended plans did comply with the Standard Building Regulation was beyond his statutory power.

1. Subsection 4(2) of the Building Act provides as follows:-

“(2) In carrying out building work where occupying a building a person must comply with the Standard Building Regulation even if a development permit given by an assessment manager is contrary to the Standard Building Regulation.”

By reason of the relevant provisions of Part 3 of Chapter 5 of the Integrated Planning Act this section would apply where the development permit is given consequent upon a certification by a private certifier.  I have been referred to quite a number of decisions relating to this issue.  I consider the leading case to be The Australian Heritage Commission and Mount Isa Mines Limited (1996-1997) 187 CLR 297. In my respectful view the law is correctly stated by His Honour Judge McLauchlan QC in Clayton v Miriamvale Shire Council and Webb 2000 QPELR 320. At p 323 His Honour said:-

“In applying the relevant principles of administrative law there is a distinction between a decision which is unlawful because of want of jurisdiction or excessive jurisdiction and a decision which should be set aside because of an error of law committed within the jurisdiction reposed in the body in question.  If, for example, the second respondent had lacked jurisdiction altogether to enter upon a consideration of the development application because the land in question was in fact included in a neighbouring shire and not in the Miriamvale Shire, then the decision of the second respondent approving the application would be void for want of jurisdiction and development carried out pursuant to that decision would be unlawful. If, on the other hand, the second respondent acted within jurisdiction embarking upon a consideration of the matter but committed an error in law in reaching its determination, then the proceedings and the decision would not be a nullity but would be liable to be set aside for error.  In the first case the development permit which is the expression of the decision upon the relevant application would be void whereas in the second case it would be merely voidable and would have effect so long as it stood.”

1. In this case, there is no dispute as to the primary fact.  That is, the physical existence and detail of the awnings/eaves are there for all to see and are consistent with the plans certified by the private certifier as complying with the Standard Building Regulation. The construction of s 38, the definition of “outermost projection”, and the meaning of any words contained therein, are matters of law. Applying those relevant provisions to the undisputed fact of the existence of the awnings/eaves results in the building either complying with s 38 or not complying with s 38. A private certifier has no jurisdiction to certify that a building complies with the Standard Building Regulation if objectively it does not.  Nor in my view is there any basis in the words of the relevant provisions of the Act for concluding that a private certifier has some form of discretion to decide whether a particular projection is a roof or for example, an architectural attachment.  Whilst as part of the decision making process it may be necessary for a private certifier to consider the appropriate description of a particular projection before making a decision whether to certify a building as complying with the Standard Building Regulation,  I do not take the term “jurisdiction” as used by His Honour Judge McLauchlan as referring to the preliminary process of reasoning.  The term “jurisdiction” in my view refers to the decision making power.  In this case the only power or jurisdiction which the private certifier had was to certify that the building complied with the Standard Building Regulation if in fact it objectively did so.

1. In my view, the certification was void and is no bar at all to the respondent issuing the relevant enforcement notice.

1. The next issue for consideration is if, in the exercise of the Court’s discretion, the enforcement notice should be set aside. I must say that taking this particular case in isolation, in my view, the presence of the awnings/eaves makes no difference to the situation which would prevail were they removed. Although it appears that the Council action leading to the issue of the enforcement notice was initiated by a complaint from a neighbour, there is no evidence from the neighbours of any relevant complaint about the presence of the awnings/eaves and nor is there any evidence to suggest that their presence creates, or could potentially create, any of the practical difficulties which boundary clearance requirements are designed to meet. I am also satisfied, supported by the evidence of Mr. Macks, that the awnings/eaves enhance the aesthetic symmetry of the building as a whole. I also accept that the presence of the awnings/eaves is functionally desirable in that they provide a degree of protection to the windows and walls immediately beneath them. There is also the not inconsiderable cost of removing the structures if the enforcement notice is permitted to proceed. On the other hand, I do not consider this Court to be the appropriate forum for reconsidering the refusal by the council of the appellants’ application to relax the boundary clearance requirements, pursuant to s 48 of the Standard Building Regulation. The appellants had a right of appeal to a tribunal pursuant to s 21 of the Standard Building Regulation and declined to exercise it. It is common ground that the Court retains a wide discretion under s 4.1.5.4 of the Integrated Planning Act to, for example, order that the enforcement notice be forever stayed.  However, it is also properly acknowledged on behalf of the appellants that some deference is to be given to the decision of a local authority to issue an enforcement notice as distinct from enforcement proceedings brought by a private interest.  In other words, the local authority is taken to represent a public interest.  For example, Di Domenico v Hervey Bay City Council (2000) QPE 021, NRMCA (Qld) Ltd v Andrew (1993) 2 QR 706.

1. The respondent also points to the way in which the appellants went about obtaining the private certification for the awnings/eaves. There is no doubt that as the support structure of the roof was originally designed, the building could not comply with s 38 of the Standard Building Regulation. It is precisely for that reason that the appellants, through Mr. O’Toole, sought a dispensation from the Council. When the dispensation was refused, rather than pursue the avenue of appeal, the appellants, through Mr. O’Toole, sought a way to get around s 38. I would not characterise it as looking for a way to break the law. I would characterise it as looking for a way to comply with the law technically whilst still retaining the functional and aesthetic benefits of the relevant roof overhangs. Although I have concluded that the appellants and Mr. O’Toole were wrong in thinking that the new design of the supporting structure would comply with the Regulation I am not prepared to go so far as to conclude that they did not honestly think that there was compliance. On the other hand, the appellants have not come forward to give evidence that they were innocently misled by the private certification. They are really the only ones to be able to give evidence of their true state of mind about this whole affair. In the absence of any evidence from the appellants I draw the inference that they particularly wanted to retain the awnings/eaves on the house for aesthetic and functional reasons. Mr. O’Toole devised a plan whereby they might be able to retain those structures and the appellants were prepared to take their chances. Perhaps in summary I should express the view that there is no hardship to the appellants which I consider needs to be taken into account. In summary the awnings/eaves were constructed in breach of s 38 of the Standard Building Regulation.  No conduct on the part of the respondent led the appellants into any false sense of security.  Upon becoming aware of the breach the respondent issued the enforcement notice reasonably promptly.  The respondent has a public interest in ensuring that building laws are enforced.  I am not persuaded that there is any proper basis for exercising a discretion to set aside or stay the effect of the enforcement notice.

1. Finally, two issues of jurisdiction were raised.  In the Notice of Appeal the following grounds appear:-

4. Further, or in the alternative the enforcement notice is invalid in that, being deemed to be a notice under s 4.3.11(3) of the Integrated Planning Act 1997 the respondent failed to consult with the private certifier about the giving of the notice prior to the giving of the notice.

5.   Further, or in the alternative the enforcement notice has not been given by the respondent in a manner authorised by or for the purposes of the Building Act 1975.

These issues were not explored by senior counsel for the appellants.  It may well be that the points are abandoned.  However, in the absence of any argument to the contrary I accept the submissions of counsel for the respondent contained in paragraphs 31 to 54 of their written submissions.

1. The respondent raised a point of jurisdiction concerning the appellants’ right to appeal against the issue of the enforcement notice to this Court pursuant to the provisions of the Integrated Planning Act 1997. I have considerable doubts as to the validity of the respondent’s submission but since it is purely a question of law and I propose to dismiss the appeal on substantive grounds I do not propose to make a definite determination on the point. It was also the case, as counsel for the respondent properly acknowledged, that the substantive issues were properly before the court by reason of the matters raised in application 39 of 2001 in any event.

1. In summary therefore I propose to dismiss both the appeal and the application.  I have not yet heard any submissions as to costs.  The jurisdiction to order costs in proceedings before this Court is very limited but I will give the parties liberty to apply within 14 days of the date of the formal order dismissing the appeal and application in case there is some basis for an application for an order for costs.