Millmerran Shire Council v Smith

[2003] QPEC 68

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Millmerran Shire Council v. Smith [2003] QPEC 068

PARTIES:

Millmerran Shire Council
Applicant
v
Christopher Lawrence Smith
Respondent

FILE NO/S:

2982/03

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2003

JUDGE:

Quirk DCJ

ORDER:

I declare that the Respondent’s use of land, namely, Lot 8 on RP211676, Parish of Bulli, County of Derby, and situated at Lot 8 Balinga Road, Wattle Ridge, Millmerran (“the subject land”) constitutes the occupation of a temporary dwelling on the subject land and is unlawful in that no current temporary occupation permit has been issued pursuant to the Planning Scheme by Council, and thereby constitutes a development offence pursuant to the provisions of the Integrated Planning Act.1.   

The Respondent is restrained from using the subject land for the occupation of temporary accommodation until he has obtained a current temporary accommodation permit issued by the Council.2.   

Should the Respondent fail to make application for a temporary accommodation permit within twenty eight (28) days of the date of this order he is to be restrained from occupying the premises on the subject land.3.   

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – Town planning - application for declaration and consequential orders – unlawful use – temporary accommodation permit - jurisdiction

COUNSEL:

Mr S Ure for the Applicant

Respondent - self represented

SOLICITORS:

Bernays Lawyers for the Applicant

1. This is an application for a declaration that the respondent’s use of the subject land constitutes the occupation of a temporary dwelling and is unlawful in that no current temporary occupation permit has been issued pursuant to the Millmerran Shire Planning Scheme.  Two further orders are sought, namely an order restraining the respondent from so using the land and an order requiring the respondent to cease occupation of any temporary accommodation on the subject land within 14 days.

1. The respondent, by way of the material placed before this court, sought to argue that this court has no jurisdiction to hear and determine this application. It is relevant to consider each of these submissions at the outset.

JURISDICTION

1. The respondent is the Chief Executive Officer of a community known as God’s State (Federal State) Independent Sovereign State of Australia (herein referred to as ISSA).  It is contended that the subject land forms part of an independent sovereign self government.

1. The respondent’s material and argument placed before the court comprise the affidavits of the respondent sworn 23 October 2003 and Mr Donald Cameron sworn 18 October 2003. The submissions contained in those affidavits are difficult to understand or to crystallise into propositions. Notwithstanding this, I understand the submissions to be as follows:

(a)        As a citizen of the ISSA the respondent is not subject to the laws of the Commonwealth of Australia, including the laws of Queensland;

(b)        The Integrated Planning Act 1997 (Qld) is invalid pursuant to sections 109, 116 and 118 of the Constitution of Australia;

(c)        The Integrated Planning Act 1997 (Qld) is invalid pursuant to Article 18 of the Universal Declaration of Human rights;

(d)        The Integrated Planning Act 1997 (Qld) is invalid pursuant to Part I, Article I and Part II, Article II of the International Covenant of Civil and Political Rights 1966; and

(e)        A finding of the Southport Magistrate’s Court in December 2002 gives rise to an issue estoppel, an estoppel by res judicata and an estoppel by representation.

1. In dealing with the first submission, it is clear that the Constitution of Australia recognises that the States and Territories are the only entities in the federal polity known as the Commonwealth of Australia. It then follows that an area of land cannot cease to be part of, or be excised from, a State in the Commonwealth of Australia unless the Constitution of Australia provides for the alteration of the limits of that State: ACCC v Purple Harmony Plates Pty Limited [2001] FCA 1062.   The power to alter the limits of States is to be found in section 123 of the Constitution of Australia.

1. Section 123 grants the Federal Legislature power to increase or diminish the limits of States; there are no other constitutional means available for the establishment of any separate political community in Australia: ACCC v Purple Harmony Plates Pty Limited (supra). The respondent was unable to place any material before this court that would satisfy the requirements of section 123 of the Constitution of Australia. Accordingly this submission must fail.

1. The Constitutional points (item (b)) raised by the respondent are nonsensical and, in my view, do not raise any issue which involves the interpretation of sections 109, 116 and 118 of the Constitution of Australia. At best, even if one was to assume that section 116 could apply to strike down State legislation (namely the Integrated Planning Act 1997 (Qld)), the Act does not prohibit religious observance or the free exercise of any religion. I note that a similar approach was taken by the Queensland Court of Appeal in Cameron v Beattie & Ors [2001] QCA 392.

1. A vague reference is made in the affidavit of Mr Cameron to the Universal Declaration of Human rights and the International Covenant of Civil and Political Rights 1966 in support of a contention that the Integrated Planning Act 1997 (Q) is invalid. How the Act infringed respect for these treaties was never explained. It is my view that the Act does not prevent religious observance as contemplated by Article 18 of the Universal Declaration of Human Rights, nor does it prohibit the right of self determination. These submissions are nonsensical and in my view do not raise any issue which requires this court to undertake any analysis of either treaty. This submission must also fail.

1. Finally, a vague reference is made in the respondent’s submission to a decision of the Southport Magistrate’s Court. The reference appears as follows:

“MAGISTRATES COURT SOUTHPORT 05/12/02 (inter alia)

The independent Sovereign State of Australia’s geographical jurisdiction is the foreshores of Australia and therefore the Gold Coast City Council has no authority over….either individually or other citizens of the Independent Sovereign State of Australia.”

1. I reject the respondent’s submission that this decision gives rise to an estoppel of any form as the Millmerran Shire Council was not a party to the action. It could not be said that an action, to which the Shire was not party, could support an estoppel. Accordingly this submission must also fail.

1. For these reasons I reject the respondent’s submissions and find that this court has jurisdiction to hear and determine the application.

Declaration and Enforcement Orders

1. The subject land being Lot 8 on RP211676, Parish of Bulli, County of Derby is approximately 118 hectares in size and, pursuant to the Shire’s Planning Scheme, is allocated to the Rural B Zone.  The respondent was the registered proprietor of the land from approximately 1988 to 2001 at which time the subject land was sold to one Mr J McTavish.  The respondent’s evidence as to when he sold the property to Mr McTavish was unclear. The material before this court indicates that Mr McTavish is still the registered proprietor of the subject land. The respondent currently resides on the subject land with his daughter as a caretaker.

1. In early July 2002 Mr Peter McCashney, an Environmental Health Officer employed by the applicant, became aware of the existence of a building on the subject land. An initial “drive-by” inspection undertaken by Mr McCashney confirmed the existence of that building. Mr McCashney attended upon the subject land a further four times including an attendance pursuant to a warrant issued out of the Magistrate’s Court at Millmerran.  On the last occasion two structures erected on the subject land were filmed on a video camera by Mr McCashney in the presence of the respondent. A copy of that video was tendered by counsel for the applicant in this proceeding.

1. The video taken by Mr McCashney indicates that two rudimentary structures have been erected on the subject land.  The first of the two structures comprises a concrete slab on ground, a timber frame, timber wall cladding and steel roof sheeting.  A number of additions and extensions appear to have been made to the structure of this building.  The respondent, in his evidence, stated that he had expanded the existing structure so as to make it more habitable, more suitable. This expansion included the construction of a bathroom, cooking area and a kitchen. It is common ground between the parties that the respondent and his daughter permanently reside in the first of the two buildings.

1. The second structure, like the first, is a timber framed building.  The respondent stated in evidence that this second building was still under construction and the work undertaken had been done at the instruction of Mr McTavish.

1. The unchallenged evidence before the court is that at no stage has an application been made by the respondent or the registered proprietor for a development permit, building permit or temporary accommodation permit in relation to the subject land or any structure or extension erected upon the subject land. On that basis the Council’s present application seeks:

“1. A declaration that the Respondent’s use of land, namely, Lot 8 on RP211676, Parish of Bulli, County of Derby, and situated at Lot 8 Balinga Road, Wattle Ridge, Millmerran (“the subject land”) constitutes the occupation of a temporary dwelling on the subject land and is unlawful in that no current temporary occupation permit has been issued pursuant to the Planning Scheme by Council, and thereby constitutes a development offence pursuant to the provisions of the Integrated Planning Act.

2. An enforcement order restraining the Respondent from using the subject land for the occupation of temporary accommodation without first obtaining a current temporary accommodation permit issued by the Council.

3. An enforcement order requiring the Respondent to within fourteen (14) days cease the occupation of any temporary accommodation on the subject land.”

1. The applicant contends that the respondent resides in a temporary structure located on the subject land without a current temporary accommodation permit. In support of this contention, the applicant relies upon clause 30, Division 4 of its Planning Scheme which relevantly provides:

“Rural Zones”

30(1) Unless otherwise stated the provisions of this Clause Shall apply to all uses in the Rural “A”, Rural “B”, Rural “C”, Rural “D”, and Rural “E” zones;

(2) …

(3) Notwithstanding any provision of this Scheme to the contrary, Council may permit the erection of a temporary structure or the parking of not more than one (1) caravan on an allotment for the purposes of owners who wish to reside temporarily on their land whilst building their own permanent dwelling house, subject to the following requirements –

(a) The occupation of any temporary accommodation on any land within the area is prohibited unless there is a current temporary accommodation permit issued by Council;

(b) …”

1. The evidence before this court is clear and unchallenged. Two unapproved structures, including extensions thereto, have been erected on the subject land and the respondent resides in one of those structures. The application turns on whether the structures can be characterised as temporary structures. I am of the view that the structures are temporary as they are unapproved structures that require an appropriate development approval or approvals.  Until the approval or approvals are obtained the structures, in my view, are temporary.

1. I am persuaded that the respondent is in occupation of a temporary structure without a temporary accommodation permit as contemplated by the Shire’s Planning Scheme.

1. I make the following orders:

(i) I declare that the Respondent’s use of land, namely, Lot 8 on RP211676, Parish of Bulli, County of Derby, and situated at Lot 8 Balinga Road, Wattle Ridge, Millmerran (“the subject land”) constitutes the occupation of a temporary dwelling on the subject land and is unlawful in that no current temporary occupation permit has been issued pursuant to the Planning Scheme by Council, and thereby constitutes a development offence pursuant to the provisions of the Integrated Planning Act.

(ii)       The Respondent is restrained from using the subject land for the occupation of temporary accommodation until he has obtained a current temporary accommodation permit issued by the Council.

(iii)      Should the Respondent fail to make application for a temporary accommodation permit within twenty eight (28) days of the date of this order he is to be restrained from occupying the premises on the subject land.