Isis Shire Council v Wagtail Yarns (a firm)

[2000] QPEC 60

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Isis Shire Council v. Wagtail Yarns (a firm) & Anor [2000] QPE 060
PARTIES:	ISIS SHIRE COUNCIL Applicant And WAGTAIL YARNS (A FIRM) First Respondent And ELIZABETH MANY SCARLETT, KEVIN DONN SCARLETT AND GAYLENE ELIZABETH SCARLETT

Second Respondent

FILE NO/s:	Appeal No. 2061 of 1998
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	14 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge McLauchlan Q.C.
ORDER:	APPLICATION DISMISSED
CATCHWORDS: COUNSEL: SOLICITORS:

1. The applicant applied on 26 May 1999 for various declarations against the

   respondents, pursuant to the provisions of s.4.1.21 of the Integrated Planning Act

   1997. The declarations concern the activity of spinning and knitting mohair by the

   respondents on land owned by them and zoned rural "A" in the applicant's Town

   Planning Scheme. On 2 September 1999 I delivered a judgment in which I

   expressed the view that the activities in question constituted light industry in terms

   of the Town Planning Scheme, which was a prohibited use on the land: and having regard to the provisions of the Town Planning Scheme and the provisions of the

   Integrated Planning Act the activity mentioned was an unlawful use in the absence

   of development approval for a material change of use, as was the sale of the

   products from that land. In consequence the use of machinery installed on the land

   to carry out the spinning and knitting processes was also unlawful. I indicated my

   preparedness to make declarations to that effect and consequential orders. Those

   reasons were predicated upon the provisions of the Town Planning Scheme of the

   applicant as I understood it to be and as it was presented to me. However, it has

   subsequently transpired that before those reasons were delivered an amendment was

   effected to the Town Planning Scheme. The amendment was published in the Isis

   Town and Country newspaper on 22 April 1999, approximately one month before

   the filing of the originating application by the applicant. On 29 June 1999 the

   amendment was adopted by the applicant. The application came before me on 9

   July 1999. On 23 July 1999 the town planning scheme amendment was published

   in the Gazette and acquired the force of law. As already indicated, my reasons were

   delivered on 2 September 1999. Obviously, any declaration made after 23 July

   1999 would have to pay regard to that amendment to the extent that it was relevant.

2. It was not until 21 February 2000, following a change of solicitors for the

   respondents, that I was informed of the existence of the amendment. The

   amendment is highly material to the issues raised by the application. I have been

   told, and I accept, that neither counsel for the applicant nor his instructing solicitor

   was aware of the amendment. However, it is extraordinary that the applicant did

   not draw the attention of its legal representatives to this situation so that the Court

   might be properly informed of the matters which needed to be taken into account in considering the application. No satisfactory reason for the failure to do so has been

   advanced.

3. For present purposes the relevance of the amendment is that it permits, in the rural

   "A" zone, development in the form of a "home-based business (subject to meeting

   the home-based business development code)". It is further provided that such

   development is to be "self assessable development (to the extent the development is

   addressed by the Planning Scheme)". The expression "home-based business" is

   defined to mean -

   "the use of a dwelling house for any occupation, vocation or profession carried out in or under or within the curtilage of the dwelling involving the residents of the dwelling and not more than 2 additional persons who are not residents of the dwelling."

4. The performance objective of the home-based business code is "to ensure the

   development of home-based business which does not create an adverse impact on

   the amenity of the surrounding locality" and it is then provided that compliance

   with the following requirements is considered to be the minimum acceptable

   standard. -

“1.	The total use area to conduct the home-based business both inside and outside the dwelling will not exceed one third of the gross floor area of the dwelling house whether used temporarily or permanently.
2.	Signage is limited to one non-illuminated sign not exceeding 1 metre by 1 metre in area, not exceeding 1.5 metres in height and bearing only the name, occupation, and telephone number of the occupier.
3.	Goods, materials or equipment which are in any way associated with the business shall not be visible from the footpath, road reserve or any neighbouring property.
4.	The home-based business shall not be conducted Sundays or public holidays. The hours of operation from Monday to Saturday (providing they are not public holidays) are limited to between 7 am and 7 pm.
5.	There is no interference to the amenity of the locality as a result of traffic generation, hours of operation, appearance or the emission of noise, vibration, light, odours, fumes, steam, soot, ash, dust, waste products, electrical interference or otherwise.
6.	Does not require the provision of any essential service of a greater capacity than normally required for a dwelling house in which it is located, except in accordance with the condition of the express permission of the council.
7.	The applicant shall ensure that all other permits and other licences required under any relevant statute are obtained prior to the commencement of the use.
8.	The applicant shall provide a minimum of 2 on-site car parks. Such car parks shall be clearly delineated, positioned to allow vehicles to enter and leave the subject land in a forward gear, and suitably graded and drained to prevent ponding and surface run-off of concentrated stormwater onto adjoining allotments.

Should any proposed development not meet the self assessable requirements stated above, an application will be required and the application will follow the Code Assessment process.”

1. Obviously, it is possible that the business conducted by the respondents on the land

   in question, although an unlawful use in terms of the planning scheme prior to this

   amendment, may be a self assessable development as a home-based business in

   terms of the amendment, and thus lawful. This is essentially the position advanced

   by the respondents. In effect what is said by the respondents is that the business

   presently or until recently conducted by the respondents conforms with the

   requirements of the amendment as a self assessable development or with some

   slight adjustment can be made to do so.

2. The applicant argued that the use in question could not constitute a self assessable

   development, which would not require any application to be made to the Council (s.3.1.4(2) IPA), because of the provisions of s.3.1.2 of the Act. In particular,

   reference is made to subsections (3) and (4) which provide as follows:-

"(3)

To the extent a planning scheme is inconsistent with
schedule 8, the planning scheme is of no effect.

(4)

However, to the extent a planning scheme is inconsistent with schedule 8 because a planning scheme states development is self assessable, but schedule 8 states the development is assessable -

(a)	codes in the planning scheme for the development are not applicable codes; but
(b)	the codes must be complied with."

Schedule 8 includes in part (1), which relates to assessable development, s.6 which

reads as follows:-

"development prescribed under a regulation under the Environmental Protection Act 1994 for this section for carrying out an environmentally relevant activity under that Act."

Under the Environmental Protection Regulation 1998 it is provided in s.63A as

follows:-

"For Schedule 8, part (1), s.6 of the Integrated Planning Act, a material change of use of premises for an environmentally relevant activity is prescribed as development for carrying out the activity."

1. Environmentally relevant activities are set forth in Schedule 1 to the regulation and

   the item of relevance for present purposes is item 55 – “Textile manufacturing -

   commercial carpet manufacturing, wool scouring or carbonising, cotton milling, or

   textile bleaching, dyeing or finishing.” It is not contested that the business which

   the respondents have conducted on the property in question falls within that

   activity. The argument, then, is that there is an inconsistency between the planning

   scheme as amended and the provisions of Schedule 8, because the planning scheme

   provides that the business, or activity constituting a business, is self-assessable

   development, whereas Schedule 8 clearly states that it is assessable development. There does not, however seem to me to be any conflict or inconsistency. The

   planning scheme provides that the development is to be self-assessable "to the

   extent the development is addressed by the Planning Scheme". Obviously this

   contemplates that there may be aspects of the development not addressed by the

   Planning Scheme and as to the self-assessability or assessability of such aspects, the

   Planning Scheme says nothing. Consequently it seems to me to be impossible to

   say that to the extent that the development is addressed by the Environmental

   Protection Regulation and as such is rendered assessable by Schedule 8 it is

   possible to identify any inconsistency under s.3.1.2. It will be noted that subsection

   4 of that section provides that where inconsistency arises because the planning

   scheme states development is self-assessable but Schedule 8 states the development

   is assessable, the codes must be complied with although they are not applicable

   codes. That however, is in my view irrelevant to the present position where I

   consider that no inconsistency is shown.

2. That an aspect of a development may be self-assessable according to the relevant

   planning scheme, and another aspect of it may be assessable according to some

   other Act or regulation is demonstrated by the provisions of Schedule 1A of the

   Integrated Planning Regulation 1998. Section 3.1.7.(1) of the Integrated Planning

   Act provides (in part) that the "Assessment Manager" for an application, is -

“(a) if the development is wholly within a local government's area - the local government, unless a different entity is prescribed under a regulation.”

In the present case the development concerned is wholly within the local

government area of the applicant. Section 3A of the Integrated Planning

Regulation 1998 provides (so far as is relevant) as follows:-

"(1) For section 3.1.7(1)(a) of the Act, Schedule 1A, part 1,

column 2 states the Assessment Manager for the application
mentioned opposite the assessable development in column 1."

The effect of this, when one turns to schedule 1A is to see that the Assessment

Manager is "the administering authority" in the case of development prescribed

under a regulation under the Environmental Protection Act 1994 for Schedule 8,

part 1, item 6 of the Integrated Planning Act 1997, if -

“(a)	the development is not assessable development under a planning scheme; and
(b)	the application does not include other development; and
(c)	no other Assessment Manager is prescribed for the development in this schedule.”

Those conditions are met in the instant case so that the Assessment Manager for

the development in so far as it comprises an environmentally relevant activity is

the administering authority. The expression "administering authority" is defined

so far as the present case is concerned in the Environmental Protection Act 1994 to

mean the Chief Executive. The result is, in my opinion, that in so far as the

development is regulated by the planning scheme it is self-assessable and requires

no application to the council. In so far as it is regulated by the Environmental

Protection Act 1994 and the Environmental Protection Regulation 1998 it is

assessable and requires an application to the Chief Executive of the department.

The position, then, is that, as the respondents submit, the business in question may

well be a self-assessable development under the planning scheme with the

requirements of which the respondents can comply.

1. There is material which was filed by leave on 21 February last which, amongst

   other things goes to the question of compliance of the respondents’ activities with the requirements of a home-based business indicated above. There is some factual

   conflict between various of the affidavits or exhibits thereto. That conflict could

   not in my opinion be satisfactorily resolved except by further evidence. There are

   also associated questions such as the true meaning of the expression "curtilage" and

   whether the shed employed by the respondents for their business activities comes

   within that area. The applicant bears the onus of showing that the respondents’

   business does not comply with the requirements of the Planning Scheme or could

   not be made to do so, and on the material before me it has not satisfied me as to

   those matters.

2. In any event it appears that the applicant does not now seek a determination of

   those matters, since the declarations it proposes are to the effect that the impugned

   activities amount to an unlawful use “(in the absence of such activities constituting

   self assessable development pursuant to the Planning Scheme)”. I have already

   indicated a view to that effect, but I decline to make formal declarations which are

   virtually pointless, since they do not resolve the issues between the parties. In

   effect the Court is asked to declare that the activities in question are unlawful unless

   they are lawful and it is difficult to see any utility in such a declaration.

3. The application is dismissed.