Jones v Caboolture Shire Council

[2000] QPEC 76

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Jones v. Caboolture Shire Council & Ors. [2000] QPE 076
PARTIES:	DAVID AND PATRICIA MAY JONES Appellant And CABOOLTURE SHIRE COUNCIL Respondent And DAMIEN CHARLES HEDE & ORS Co-Respondents
FILE NO/S:	No. 2881 of 1999; No 717 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	21 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25, 26, 27 October 2000; 10 November 2000 (submissions)
JUDGE:	Senior Judge Skoien
ORDER:	Appeals dismissed
CATCHWORDS:	Art gallery shop; Home occupation either unlawfully permitted or unlawfully carried on; amenity; commercial use in residential area.
COUNSEL:	Mr J Haydon for the appellants Mr S Ure for the respondent Co-respondents Hede, Rownsfell and Lange in person
SOLICITORS:	Shand Taylor for the appellants King & Co for the respondent

1. This is an appeal (No 717 of 2000) by the Jones against the decision of the Council

   to refuse an application for a material change of use of land at White Patch on

   Bribie Island for the purposes of a shop, being an art gallery and a caretaker's

   residence. There is also an appeal (No 2881 of 1999) against the decision of the

   Council to refuse an extension of a consent to use the land for home occupation.

The Site

1. The site is towards the northern end of White Patch Esplanade, a road which skirts

   the foreshore of Pummicestone Passage at White Patch, a residential development

   (zoned Residential A) which forms the northern extremity of housing on Bribie

   Island. There is a total of 116 residential allotments, on 47 of which dwelling

   houses have been built. To the west the foreshore is in its natural state and is

   accessible by paths constructed and maintained by the Council. To the east and

   north are large tracts of natural forest, zoned Rural and Public Open Space. A few

   hundred metres to the north of the site is the Bribie Island National Park and the

   Esplanade ends there.

2. The building on the site is residential in appearance other than for a prominent

   paved driveway, fully paved front and side yards and a small identifying notice on

   the front fence. In addition two flagpoles habitually each fly a flag bearing the art

   gallery's logo. A third flagpole carries the Australian flag. The building has a floor

   area of about 430m² of which 128.7m² is devoted to an art gallery, the balance

   being used for residential purposes. The gallery is open Monday to Saturday 9 am -

   5 pm; Sunday 10 am - 5 pm and may also open on two evenings per month. It is

   not an art gallery in the sense of a public museum of art; it is an art gallery which

   exhibits paintings for sale, for the earning of income by the Jones. At present the

   gallery exhibits about 120 paintings, some by very well known artists, with prices

   ranging from a few hundred dollars to about $14,000.

3. The Jones also own the block of land immediately to the north of the site. Once

   they proposed to develop a bed and breakfast establishment on that block and

   sought the Council's consent for that but that proposal has now been abandoned.

4. The allotments on the Esplanade which have residences on them are, in the main,

   attractive detached dwellings. A bed and breakfast establishment (which looks like

   a large house) is about 600m to the south of the site but otherwise (and with the

   exception of the art gallery) White Patch is entirely devoted to non-commercial

   uses. A few houses have also been built on the limited network of roads to the east.

   All in all the area has a very pleasant quiet seaside/residential amenity.

5. In 1993 the Jones made an application to the Council for consent to use the site for

   the purposes of a home occupation/art gallery. The letter that accompanied the

   application described the use as for the "display of fine art". There was no

   indication on the face of the documentation that the use of the art gallery would

   involve the public display of goods on the premises, or their sale.

6. On 17 June 1993 the Council issued a Notice of Consent consenting to the use

   being carried out in accordance with plan of layout number 93420 prepared by

   Bayside Architectural Services and submitted with the application. Those plans

   showed an art gallery of some 65m².

7. On 17 June 1993 Mr Jones completed two applications for a building permit. The

   first showed the art gallery as approved in the Town Planning Consent Permit, that

   is, with a floor area of 65m². The second however showed a floor area of 128m². It

   is not known how this occurred. Mr Jones was not called to give evidence. In any event, equally mysteriously, on 29 November 1993 a certificate of classification

   was issued by the Council describing the "shop" as having a floor area of 128.7m².

8. On 25 June 1996 the Jones wrote to the Council seeking permission to alter the

   building in order to be able to use the full 128.7m² "and finish the final stage of the

   gallery." On 3 July 1996 the Council wrote to say that "as a result of the certificate

   of classification being issued for the larger floor space, ie. 128m² (sic) the changes

   to the garage as proposed are allowed". The Jones extended the gallery to make

   use of the entire 128.7m².

9. Thus, since 1996 the Jones have been using 128.7m² of the premises as an art

   gallery. In 1999 two applications were lodged with the Council in an attempt to

   regularise the use. The first sought an extension of the home occupation which the

   Council refused. The second application was for a use which was described in the

   IDAS application form as "shop being art gallery (maximum floor area 128m²) and

   caretaker's residence." The Council also refused that application. The two appeals

   before me are against those two refusals.

Home Occupation

1. There can be no doubt that the 1993 consent of the Council for the home occupation

   use, if it purported to permit the art gallery as actually established (that is, as a shop

   for the sale of art work) was given contrary to the provisions of the Town Planning

   Scheme. The definition of "home occupation" in Part 1 is:

   "an occupation or profession carried on in or under a dwelling house or in the case of horticultural nurseries, florists and market gardens, within the cartilage of a dwelling house by a person resident therein and in the conduct of which -

   … ..

(e) there is no public display of goods on the premises."

And of course the public display of goods for sale is the very essence of this

gallery.

1. It is possible that the home occupation consent was intended to allow simply a

   gallery for the display, but not sale, of artwork (in the style of a museum of art), the

   Council taking the view that the art work would not be "goods". If so, the consent

   would have been lawful but the activity carried on under it by the Jones would be

   unlawful. These questions were not explored before me.

2. Mr Ure of counsel, for the Council, did not seek to argue that the 1993 home

   occupation consent should somehow be set aside. Nor did the co-respondents in

   their careful submissions. Rather, for the purposes of the appeal all parties accepted

   it as a fait accompli and based their arguments on the planning documents and

   planning principles.

3. As I have said, it may be that the home occupation consent was mistakenly issued

   in contravention of the provisions of the Planning Scheme or it may be that it was

   validly issued but has been invalidly used by the Jones. Perhaps in other

   proceedings this question will be investigated and answered. For present purposes

   all I need say is that, as the art gallery does not qualify as a home occupation, a

   fortiori any extension of it cannot be permitted. So the appeal (No 2881 of 1999)

   for that extension must be refused.

The Issues

1. The issues in the material change of use appeal (no 717 of 2000) can be broadly

   categorised as:

(a)	impact upon amenity.
(b)	conflict with the Council's statutory planning documents.

Amenity

1. I accept the evidence of Professor Brannock, as expressed in his town planning

   report which was tendered, that White Patch is a small discrete community in which

   the rather less then usual density of residential development, complemented by the

   extensive foreshore vegetation, the nearby presence of the National Park and the

   fact that the Esplanade is a no-through road, creates a serene environment. It is an

   area in which the existence of a commercial use is unexpected, not simply because

   commerce in the area may offend the expectations of the local residents, but

   because of the actual effects of the commercial activity.

2. That the proposal offends the expectations of the local residents, as well as those of

   people who live more remotely, cannot be doubted. The application (or the earlier

   similar one) attracted many objections and, it must be said, many expressions of

   support as well, but the greater significance, I consider, is the fact that thirteen

   people, mostly local residents or landowners, elected to become co-respondents to

   this appeal and took an active role in opposition to the proposal.

3. The practical effects of the use can actually be attested to from experience. This is

   quite unusual because in the vast majority of appeals we must imagine what the

   future will hold should the proposal proceed. But here, this commercial activity has

   been operating since December 1993 in about 65m² of floor space in the building

   and during the last four years in 128m² of floor space, the very size of art

   gallery/shop now being applied for. So the actual effects are known.

4. Those effects have comprised many more visitors to the site than would be

   expected of a private residence. That is a truism, the gallery having operated

   successfully in attracting noted artists to display their works and people to come to

   look at them and to buy them. While no-one was able to give clear evidence on the

   point, I accept that the addition of the extra floor space in 1996 must have increased

   the number both of exhibitors and visitors. From time to time the attendance on site

   of visitors has been even greater because of the opening of exhibitions. This degree

   of attendance by people on the site is quite incompatible with its use were it a

   private residence.

5. Of course virtually all of the visitors come by vehicular transport. That involves

   much greater vehicular movement and parking than would be generated by a private

   residence, much greater indeed than is generated by the bed and breakfast house to

   the south. There is evidence, which I accept, that it is by no means rare for buses to

   come to the site. Some of them, no doubt, contain people who actually go into the

   gallery. Some of them may simply drive past, but even those, I conclude, do so in

   order to show tourists the gallery as an attraction on Bribie Island. There are signs

   elsewhere on the Island, advertising the gallery and directing visitors to it.

6. I accept Mr Beard's evidence that no real safety issues are created by that traffic. I

   do not, however, accept his evidence (as set out in the last sentence of his tendered

   report) that it would have no adverse effect on residential amenity. The increased

   volume of moving traffic would tend to annoy those enjoying the residential

   amenity, as would the number of cars parked, as they quite often do, on the

   footpath. In his oral evidence Mr Beard was careful to say that there were not

   sufficient traffic planning grounds to refuse the Jones' application, and that I accept.

   But that is not the same as amenity.

7. It is not to the point that other people drive vehicles along the esplanade to visit the

   National Park, to sightsee, or to park to enable them to get to the foreshore. That is

   part of the amenity of the area and must be accepted by all. It is the extra

   concentration of traffic and parking caused by the commercial activity of the gallery

   to which those who enjoy the amenity can legitimately object.

8. One of the co-respondents, Miss Lange, specifically objected to the noise of air-

   conditioners installed in the gallery. She lives immediately to the south of the

   gallery and there are two air conditioners installed in the southern wall of the

   gallery. They are, it seems, of the standard split system often installed in houses. If

   they create a noise in breach of an applicable statute or local law, of course, Miss

   Lange can take appropriate action. But I was referred to none. The necessity for

   the two to be operating probably relates to the number of people in the gallery and it

   may well be that if fewer are present, as would be so in a smaller gallery, the noise

   will accordingly be less.

9. Similarly, there was mention of unpleasant odour from a waste water disposal (I

   doubt it could be a septic tank outflow). Again, the situation may or may not be in

   breach of a health law, but it is not a matter which is relevant here.

Statutory provisions

1. As the planning scheme for the Shire of Caboolture is a transitional planning

   scheme within the meaning of that term as used in the Integrated Planning Act

   1997, the provisions of s.6.1.30(3) apply and one must have regard to what would

   have been necessary for this proposal under the repealed Local Government

   (Planning and Environment) Act 1990. A rezoning would have been necessary and

   that would have called up the provisions of s.4.4(5A) of the Planning and

   Environment Act, which was in these terms:-

   "The local government must refuse to approve the application if -

(a)	the application conflicts with any relevant strategic plan or development control plan' and
(b)	there are not sufficient planning grounds to justify approving the application despite the conflict".

1. The strategic plan confers on the site the preferred dominant land use designation of

   "residential area", the intent for which contains this intent:

   "(a) those areas to be developed essentially for residential purposes incorporating uses which service the residential area and are normally found as an integral or ancillary part of such an area. Child care centres, churches, parks and small scale community based recreation facilities and local shops are some of the uses which may locate within the residential area".

2. The examples given in that intent are not exhaustive but they give a clear idea of

   those types of uses which in the view of the drafter qualify as uses which serve the residential area and are normally found as an integral or ancillary part of such an

   area. An art gallery of this type could not be described in those terms unless,

   (probably) it was a gallery set up for the display and (perhaps) sale of the artistic

   work of a local group. That could well be a "small scale community based

   recreation facility", or something akin to it. But an art gallery of the type which is

   the subject of this appeal is not that at all. It is a gallery which displays many

   works by many people having no connection with White Patch. Quite clearly its

   primary function is a shop, as is recognised by the Jones' application to the Council

   which specifies a shop. Such a shop neither serves the residential area (except

   incidentally and rarely) and can in no way be said to be either an integral or an

   ancillary part of White Patch.

3. The following intent for residential areas; paragraph (b), states that in such areas:

   (expansion of existing … commercial facilities within the residential designation not specifically identified will generally not be permitted."

   There has been no specific identification of this gallery.

   No specific identification of this gallery exists.

4. The Strategic Plan, in implementation provision 1 of objective 5 gives the following

   guideline for the residential A area:

   "(a) Those uses that are generally considered to be ancillary to a residential area shall be generally given favourable consideration. Such uses shall include, inter alia, schools, churches, child care centres, local shops, general stores, and in some cases motels,"

   a provision which is similar to that set out in para [26] above and which gives no

   greater assistance to the Jones.

5. In the section of the Strategic Plan relating to commercial areas, objective 5(iii)

   calls on the Council to give consideration to "any undesirable traffic generation, in

   particular undesirable traffic flows through residential areas," and this I have

   found, adversely to the Jones, in paras [20] - [22] above.

6. So the proposal is in conflict with the Strategic Plan in the instances discussed

   above, paras [26] - [30]. What planning grounds could justify it despite that

   conflict?

7. As I understood the case put forward by Mr Haydon of counsel for the Jones, the

   argument was, in a nutshell, that the use already exists and carries on attractively

   causing no offence, but with a great deal of public support. It is, of course, true

   that it has existed since 1993 and on the scale sought in this appeal since 1996. It is

   true that it is an attractive, well maintained and run gallery/shop and it seems

   obvious that it has a great deal of public support (but not, it must be remembered,

   from the residents of White Patch). It is also true that there have been no real

   complaints received by the Jones but it is trite to observe that annoyed people

   frequently do not voice their annoyance in a formal complaint.

8. I am quite unable to see those features as providing positive planning grounds to

   support the proposal. Rather they seem merely to take advantage of three apparent

   errors of the Council, the first (by the planning department) in giving consent for a

   home occupation which was wrong, the second (by the building department) in

   issuing a certificate of classification for twice the "proper" area and the third (again

   by the planning department) in extending the improper home occupation to cover

   that enlarged area. Now this court, in effect, is being asked to ratify those errors.

9. To do that would be to ignore the serious concerns of the local opponents to the

   proposal, the thrust of the planning documents, and the findings on amenity which I

   have made.

Conclusion

1. Both appeals will be dismissed.