Jenner v Maroochy Shire Council

[1993] QCA 329

IN THE COURT OF APPEAL	[1993] QCA 329
SUPREME COURT OF QUEENSLAND

Appeal No. 67 of 1993

Brisbane
[Jenner v. Maroochy Shire Council]

BETWEEN:

CATHERINE JENNER

(Appellant)

AND:

MAROOCHY SHIRE COUNCIL

(Respondent)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The President
Mr. Jutice Ambrose

Justice White

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ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment delivered 13/09/1993

Separate reasons prepared by the President, Ambrose J. and

White J. all agreeing in the order to be made.

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APPEAL DISMISSED WITH COSTS TO BE TAXED.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

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CATCHWORDS	FENCES AND BOUNDARIES - ENCROACHMENT - applicant was refused application to exclude land from Rural A Zone - whether determination of Planning and Environment Court based on error of law in that including land within Special Facilities Zone would be contrary to intent of Zone.
Counsel:	S. Keim for the Appellant C. Hughes for the Respondent
Solicitors:	Goss Downey Carne t/a for Justin Crosby

for the Appellant

Shire Solicitor (J.D. Hall) for the

Respondent

Hearing date:  27/08/1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 67 of 1993

Brisbane

[Jenner v. Maroochy Shire Council]

BETWEEN:

CATHERINE JENNER

(Appellant)

AND:

MAROOCHY SHIRE COUNCIL

(Respondent)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The President
Mr. Jutice Ambrose

Justice White

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment delivered 13/09/1993

Separate reasons prepared by the President, Ambrose J. and

White J. all agreeing in the order to be made.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

APPEAL DISMISSED WITH COSTS TO BE TAXED.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

CATCHWORDS	LOCAL GOVERNMENT (PLANNING & ENVIRONMENT) ACT 1990 - Special Facilities Zone - building approval - whether determination based upon error or mistake in law.
Counsel:	S. Keim for the Appellant C. Hughes for the Respondent
Solicitors:	Goss Downey Carne t/a for Justin Crosby

for the Appellant

Shire Solicitor (J.D. Hall) for the

Respondent

Hearing date:  27/08/1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 67 of 1993

Brisbane

Before The President

Mr. Justice Ambrose

Justice White

[Jenner v. Maroochy Shire Council]

BETWEEN:

CATHERINE JENNER

(Appellant)

AND:

MAROOCHY SHIRE COUNCIL

(Respondent)

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 13/09/1993

This is an appeal by the owner of an unsubdivided parcel of land in the Maroochy Shire against a decision of the Planning and Environment Court dismissing her appeal against the Council's refusal of her application to exclude her land from the Rural A Zone and include it within a Special Facilities (Rural Cabins Retreat) Zone under the Town Planning Scheme for that shire.

The appellant contends that the determination of the Planning and Environment Court was based upon error or mistake in law and she appeals to this court pursuant to s. 7.4(3) of the Local Government (Planning and Environment) Act 1990.

The appellant purchased the land in question in March 1986. It has an area of 4.052 hectares and is contained within the Rural A Zone of the Town Planning Scheme. At the time of her acquisition of the land there were constructed on it three dwelling houses.

In February 1989, the appellant received from the respondent a cause notice advising her that two of the buildings on her land did not have building approval.

After discussions with the respondent, the appellant eventually applied pursuant to s. 4.3 of the Local Government (Planning and Environment) Act 1990 to have her land excluded from the Rural A Zone and included within a Special Facilities (Rural Cabins Retreat) Zone.

The application for rezoning asserted the present use of the land to be "one caretaker's residence (cabin) and two (2) rental cabins". The proposed use of the land was asserted to be "no subdivision proposed".

The respondent refused the rezoning application and the appellant appealed to the Planning and Environment Court against that refusal.

The appeal was heard over a period of two days and

dismissed.

There was a good deal evidence called upon the appeal.
In the course of delivering an unreserved judgment, the
learned Judge constituting the court referred to the

statement of intent of the Special Facilities Zone in Part

II Division II of the Town Planning Scheme which provides:

"SPECIAL FACILITIES range of activities which have not necessarily been covered by other specific zones within the scheme. A particular use can be identified on the scheme maps by specific reference so that not only can it be protected as such but it cannot be changed to other inappropriate uses without rezoning. For example this zone has been used to recognise the wide range of tourist attractions and facilities where they occur in specific locations.

The actual land use permitted within this zone relative to a particular site is indicated in red lettering on the scheme maps."

Dealing with the intent of the Special Facilities Zone, His Honour observed:

"The intent of the zone recognises that in certain circumstances the Special Facilities Zone is the appropriate zone within which certain land should be included. Under the table of zones dwelling houses are permitted or the intent of the Residential A indicates that dwelling houses (detached dwellings) are intended to be primarily located within that zone. Other residential uses are intended to be within the various other residential zones. Dwelling houses in such circumstances are necessarily covered by other specific zones within the planning scheme. It cannot be said then that it is necessary to include the subject land within the special facilities zone because dwelling houses have not necessarily been covered by other specific zones within that scheme. The use of the special facilities zone whereby it could achieve the formalisation of the unlawful dwelling houses on the subject land is not a matter which in my opinion is within the intent of the special facilities zone."

It is the contention of the appellant that contained in the observations to which I have referred, is an error of law in that His Honour concluded that to include the relevant land within the Special Facilities Zone would be to act contrary to the intent of that Zone and in so concluding:

a)	He has failed to give any weight to the reference to "wide range of activities" in the statement of intent;
b)	He has wrongly proceeded on the basis that if a use is provided for in one or more specific zones it cannot come within the Special Facilities Zone; and
c)	He has failed to realise "that a use which might in certain circumstances (one house per lot) be covered by a specific zone can constitute an activity not so provided for in other circumstances (three houses per lot)".

Stated shortly the error of law for which the appellant contends arises from an incorrect construction of the statement of intent of the Special Facilities Zone contained in the Town Plan, which has unduly restricted the exercise of discretion. It is contended that resulting from his incorrect construction of the statement of intent of the Special Facilities Zone, His Honour failed to consider properly the planning merits of the appeal.

When considering the appellant's contention, the observations made in the judgment must be viewed in the context of the Town Planning Scheme and relevant subdivisional by-laws, and also against the background of the town planning evidence led upon the appeal.

Under by-law 10 of the Subdivisional By-laws for the Shire (Chapter 36), the minimum area that may be subdivided within the Rural A Zone is generally speaking 12 hectares.

There are specified exceptions to this general rule but it is unnecessary for present purposes to refer to them.

Under cl. 7 of Division I of Part II of the Town Planning Scheme ("zoning"), it is provided:

"7. Notwithstanding that pursuant to this town planning scheme a dwelling house may be erected in a zone without the consent of the Council only one such dwelling house shall be so erected on any one allotment."

Division VII of Chapter 53 of the By-laws applies to all zones within the Town Planning Scheme and has objectives which include the improvement of the aesthetic quality of rural development and the permission of group title development in all zones. It provides for the approval of subdivision pursuant to the Building Units and Group Titles Act 1980 of land within the Shire. Clause 4(2) of Division VII of that By-law provides:

"(2) There shall be only one dwelling or tenancy

per lot."

Under cl. 1(1) of Division VIII of that By-law, it is

provided that:

"(1) Any person proposing a group title development shall comply with the requirements of 'Table 1' to the by-law."

Table 1 to the By-law then provides that in the Rural A Zone the maximum density without "bonus" is one lot per 12 hectares while the maximum density "bonus" available is three lots per 12 hectares. Under that Table, the minimum number of lots permissible in such a subdivision is three.

Under the Table of Zones contained in Division III of the Town Planning Scheme, upon land within the Rural A Zone, dwelling houses are specified as a use as of right under Column III while accommodation units are specified as a prohibited use under Column V. This provision in the Table of Zones must of course be read subject to the provisions of cl. 7 of Division I of the Scheme - that only one dwelling house may be erected upon any one allotment within the Scheme area.

The effect of the rezoning sought by the appellant therefore would be to circumvent the policy to be found in the specific constraint of cl. 7 of the Town Planning Scheme - that there should be only one dwelling house per allotment, and that to be found in Chapter 53 of the By-laws constraining Group Title Development upon land within the Rural A Zone.

Shortly stated, if successful, the application would permit what would otherwise be impermissible under the Town Planning Scheme and By-laws - the use of a single allotment of land with an area of approximately four hectares for the purpose of three single unit dwelling houses.

If, as contended for the appellant, the three dwelling houses were considered as "accommodation units" within the meaning of the Town Planning Scheme, the use of Rural A land for the purpose of accommodation units within the Rural A Zone would be prohibited and the rezoning sought would in effect introduce into the Rural A Zone, in respect of the appellant's land, the equivalent of a spot rezoning for a use otherwise prohibited in that area.

In my view, His Honour's observations should not be construed as an intimation that by reason of the content of the statement of intent for the Special Facilities Zone in the Scheme, there is no power to rezone the appellant's land as applied for but rather as an intimation that it would be contrary to good town planning practice to do so in the circumstances of the case before him.

Under s. 4.4(3)(l) of the Local Government (Planning and Environment) Act 1990, His Honour was required to assess all matters relevant to the nature of the application and it cannot be said that the matters to which he referred were not relevant.

Indeed one of the town planners expressed the view

that:

"The fact that the situation existed prior to the applicant's purchase is not of course justification for her or the Council (or this Court) to seek to legalise it by amending the Planning Scheme. Three dwellings on 4ha in this location is contrary to all of Council's town planning controls and the Special Facilities Zone should not be used as a way around conventional controls which deny the proposal."

I am unpersuaded that a ruling as to the effect of the statement of intent of the Special Facilities Zone can be extracted from the rather elliptical phraseology, to which I have referred, used in the delivery of a long unreserved judgment dealing with matters of planning practice canvassed on the appeal in the course of which His Honour expressed his preference for "the approach and the evidence" of one of the town planners called as witnesses.

In my view no error in law involving a misconstruction of the statement of intent for the Special Facilities Zone has been demonstrated.

I would dismiss the appeal.

In the absence of submissions to the contrary, I order

that the respondent pay the appellant's costs to be taxed.
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 67 of 1993

Brisbane

Before President

Ambrose J.

White J.

BETWEEN:

CATHERINE JENNER

(Appellant) Appellant

v.

MAROOCHY SHIRE COUNCIL

(Respondent) Respondent

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 13/09/93

The matters in issue in this Appeal are set out in the reasons for judgment of Ambrose J.

Although the language used by the Planning and Environment Court Judge in his reasons for judgment at p. 384 of the Record to which reference has been made by Ambrose J. and which was focused upon almost exclusively by the appellant, might suggest that he was precluding himself from granting the application for rezoning because of a particular view which he took of the description of Special Facilities Zone, on a consideration of the whole of his reasons for judgment it is plain that that was not so. His Honour exercised his discretion and refused the application for town planning reasons which was appropriate. I agree with the orders proposed by Ambrose J.