Kennedy v Brisbane City Council
[1999] QLC 106
•1 October 1999
|
LAND COURT
BRISBANE
1 October 1999
Re: Appeal against the determination
of an objection to categorisation –
VC98-248
H Mulder and R Kennedy
v.
Brisbane City Council
D E C I S I O N
A brief history of events leading up to the filing of an appeal by H Mulder and R Kennedy against the determination of an objection to categorisation by the Brisbane City Council is:
On 16 March 1999, the appellants wrote to Councillor Tim Quinn of the Brisbane City Council (with a copy sent to the Lord Mayor) seeking assistance with Council recognising that they operate a home occupation (architectural business) from their residence at 131 Mildmay Street, Fairfield, warranting them paying rates on a residential basis (Category A) rather than on a commercial basis (Category B).
On 4 May 1999 Council, apparently after having treated the letter to Mr Quinn as an objection, wrote to the appellants disallowing their objection to Council placing their land within Category B for the assessment of differential general rates for the quarter commencing 1 April 1999. The basis for the disallowance was that a Council inspection of the property on 9 April 1999 revealed a two-level building which contains a commercial and a residential area, and that in accordance with the criteria set in the Council’s Budget Resolution, it was determined that the property use was predominantly other than residential.
The Council’s resolution of rates and charges for the 1998/99 financial year contains the following differential general rating tables within the relevant categories:
Category A- In general terms covers all land where the dominant purpose for which that land is used or intended for use is a residential purpose and for the exclusive residential use of the one family.
In the case of land on which there is erected a single unit domestic dwelling, or a single unit domestic dwelling and a granny flat, to the extent that the dominant use of the land is residential and exclusively used for the residence of the 1 family or exclusively used for the residence of the 1 family and the care of an aged or infirmed family member, it falls into this category regardless of the zoning of the land. Where the land is used for single unit domestic dwelling purposes and some other purpose, then the dominant purpose for which the land is used or intended for use will be ascertained by reference to the visual, economic and spatial aspects of the uses.
Category B – In general terms is intended to cover all land on which a commercial or industrial activity is carried out and where the dominant purpose for which the land is used or intended for use includes other than residential purposes. In the case of land on which there is erected a building or buildings used or intended for use, where the visual economic and spatial aspects are normal to that of a commercial or industrial usage the land falls within this category. Vacant land falls within this category where it is not: wholly residential zoned land; or land that is wholly rezoned to the conservation zone under a voluntary conservation agreement; or land that is partly residential zoned land and partly rezoned to the conservation zone under a voluntary conservation agreement.
The land use code criteria within the relevant categories as contained within Council's resolution are:
Category A – Land to which codes
01 - vacant urban land,
04 - vacant urban land, greater than or equal to 2,500 square metres.
06 - outbuilding/amenity block,
72 - vacant land – valuation discounted for approved subdividers, and94 - vacant rural land
of the Land Use Codes apply where that land is wholly residential zoned land or falls within the general intent of this category, and land to which codes
02 - single unit dwelling,
05- single unit dwelling – large homesite, greater than or equal to 2,500 square metres,
08 - building unit, and
09 - group title unit
of the Land Use Codes apply, other than a lot on a Community Titles Scheme registered under the Body Corporate and Community Management Act 1997 where that lot is used for predominantly non-residential purposes or for purposes other than a single unit dwelling.
Category B – Land to which codes
01 - vacant urban land,
04 - vacant urban land, greater than or equal to 2,500 square metres,
06 - outbuilding/amenity block, and
72 - vacant land – valuation discounted for approved subdividers,
94 - vacant rural land
of the Land Use Codes apply where that land is not wholly residential zoned land or falls within the general intent of this category, and land which codes
08 - building unit(s),
09 - group title unit(s),
10 - combined multiple dwelling and shop
Now for the appellants' land to be included within Category A for differential general rating purposes, the use of it must meet the defined use of Code 02 (single unit dwelling (dwelling house)) which is set out in the Land Use Codes used by the Brisbane City Council. This Land Use Code reads:
"A building erected on a parcel of land less than 2,000 square metres, which comprises or is adapted to comprise only self-contained accommodation for the exclusive use of one family. The term includes a granny flat. This code may also include a 'home activity' but excludes 'a home occupation'."
"Home occupation" is defined within the Town Plan as an occupation carried on:
"In a dwelling unit or separate building by one or more of the permanent residents, does not involve employment of persons other than residents, does not involve the use of more than 30 square metres of floor area, does not impose a load on any public utility other than is required for the predominant use in locality, does not interfere with the amenity of the neighbourhood, does not involve the display of goods, does not involve the exhibition of any sign except to display name of person, business name and type of business, does not involve vehicular movements in excess of normal residential in that locality, and not for day care."
Placed in evidence by the respondent is a Brisbane City Council town planning consent permit for the subject property (Lot 3 on RP 40886, Parish of Yeerongpilly) dated 20 September 1994. This consent permit issued subject to certain specified conditions consequent upon an application having been made by the appellants on 17 June 1994 under s.4.12 of the Local Government (Planning and Environment) Act 1990. It was for the extension and use of part of the building or other structure on the land for the purpose of a "home occupation" (design studio and office).
Henk Michael Mulder, one of the appellants, furnished evidence in support of his and his wife's appeal. The grounds of appeal read:
"With regard to council's letter of 4th May 1999, wherein the author states 'property use is other than residential', we strongly disagree, and appeal the decision. We are not constrained in our work to property. We undertake a range of commitments elsewhere – research at University; lecturing/tutoring; site visits; meetings out of town or at various locations in the city; in workshops with other organisations. For the husband and wife partnership with two small children, our house is primarily a home, under any definition – percent of floor area, time spent as a family, etc. As well the rates category of 'B' provides no service to us – water used, waste etc, whereas 'A' would."
Mr Mulder is an architect by occupation and so is his wife, Ms Kennedy. He told us that he and his wife and his children occupy the residence on the land and use what was formerly a small attached shop as an architectural studio after refurbishment. Mr Mulder confirmed that after originally moving to the property at 131 Mildmay Street, Fairfield, about five years ago, an application was made to council to make use of the property as home occupation under the city of Brisbane Town Planning Scheme. He said that this was the best available advice at that time. When the property was purchased, the old shop had been vacant for about six months. The work the appellants carry out in the studio is undeniably a design service for clients who are looking for particular types of buildings, alterations and additions, decks, new rooms, etc. Mr Mulder describes his practice as a micro business which occupies at most 35 m² of a total floor area of 259.6m including decks in front and back and a garage and work area. This studio space is 13.5% of the total building floor area, and he feels with such a small proportion used for commercial purposes, it is unreasonable to include the land within Category "B" for differential general rating purposes, and Mr Mulder urges the Court to include it within Category "A". Mr Mulder stressed that if the property was included within Category "A", then the owners would have the benefit of receiving refuse dump vouchers which, he says, has been removed since the Category "B" rating has applied. This is what Mr Mulder describes as a fundamental and great issue in the case. But it transpired during the hearing of the matter that it would be most likely that the provision of the dump voucher service would be reinstated if an application was made to Council.
Counsel for the respondent Council simply submits that as the subject property is used as a "home occupation", then the inclusion of it within Category "A" would violate land use Code 02 as previously defined.
If there is any doubt that the use of the studio for an architectural business could be regarded as a "home activity" use rather than a "home occupation" use, then the issue of the town planning consent permit for "home occupation" resolves it. In addition, photographic evidence tendered by the respondent Council shows that there is a professional sign displayed on the building, and this is approved in the "home occupation" use definition and is prohibited in the "home activity" use definition.
In the circumstances, it cannot be that the subject land should be included within Category "A" for differential rating purposes. It follows then that, in accordance with the provisions of s.91(1)(b) of the City of Brisbane Act 1924, the appeal be disallowed.
(CH Carter)
MEMBER OF THE LAND COURT
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