O'Sullivan v Toowoomba City Council

[1996] QCA 177

IN THE COURT OF APPEAL	[1996] QCA 177
SUPREME COURT OF QUEENSLAND

Appeal No 253 of 1995

Brisbane

[O'Sullivan v. Council of the City of Toowoomba]

BETWEEN

NEIL ALEXANDER O'SULLIVAN

(Appellant)

AND

COUNCIL OF THE CITY OF TOOWOOMBA

(Respondent)

Fitzgerald P
Pincus JA

Williams J

Judgment delivered 04/06/1996

Separate judgments of Fitzgerald P, Pincus JA and Williams J, all agreeing to the order.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	LOCAL GOVERNMENT - PLANNING AND ENVIRONMENT - definition of "Home Occupation" - whether a solicitor was complying with local government conditions attached to the use of his residence as a place of business.
Counsel:	Mr K Boulton for the appellant Mr S Ure for the respondent
Solicitors:	O'Sullivans for the appellant Connor O'Meara McConaghy for the respondent

Hearing Date: 27 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 253 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Williams J.

[O’Sullivan v. Council of the City of Toowoomba]

BETWEEN:

NEIL ALEXANDER O’SULLIVAN

(Applicant) Appellant

AND:

COUNCIL OF THE CITY OF TOOWOOMBA

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 04/6/96

I agree with the judgment of Williams J.

The construction for which the appellant contends requires that condition (xv) be

construed as either (i) permitting the “on-site attendance of more than two persons at any

one time in addition to any domiciled residents therein” in conflict with para. (c) of the

definition of “home occupation” in the Town Planning Scheme or (ii) omitting the words “as

clients”. There is no justification for either course.

The appeal should be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 253 of 1995.

Brisbane

Before Fitzgerald P.

Pincus J.A. Williams J.

[O’Sullivan v. Toowoomba City Council]

BETWEEN:

NEIL ALEXANDER O’SULLIVAN

Appellant

AND:

TOOWOOMBA CITY COUNCIL

Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 04/06/1996

I have read the reasons of Williams J. and agree with the orders his Honour proposes; I do not

repeat his Honour’s explanation of the issues.

The first declaration sought raises the question whether non-resident employees can work at

the premises, and the second whether non-resident persons (whether employees or not) who are not

clients may do so.

It is possible, on one view, to answer the first question without reference to condition (xv) attached to the Council approval, for as the primary judge pointed out, the definition of "Home Occupation" in the Plan may itself make it unlawful to have non-resident employees working on the

premises. But the judge found it unnecessary finally to determine that point, and so do I.

On the appellant’s argument, the requirement of condition (xv) that the occupation "not involve

an on-site attendance of more than two persons, as clients, at any one time in addition to any domiciled

resident therein" merely restricts the number of clients whose attendance may be involved; it has no

effect on the number of other sorts of persons whose attendance is permissible. Reading condition (xv)

without reference to the effect of the definition of "Home Occupation", the appellant’s contention might

seem to be a possible construction. But the difficulty is that restriction of the number of clients who may

be present to two would add nothing, for under the definition of "Home Occupation" no more than two

non-resident persons of any description (whether clients or not) may be present. The appellant’s

argument would treat the words "as clients" as surplusage. In favour of that treatment two things may

be said: first, it would seem an odd restriction to forbid a solicitor working from home to have a non-

resident secretary, and secondly, it would seem odd to prevent the solicitor from allowing casual visitors

connected with his practice, such as counsel or sales people, to come to his house.

The general answer the Council makes to these points is simply that they have to do with the

reasonableness of the condition imposed, a question not placed in issue in the proceedings, which are

concerned with the meaning of the relevant provisions, not their validity. Further, as to secretaries, it

may be that condition (xv) was drawn on the assumption that non-resident employees were already

prohibited by the Plan; the Council would not necessarily have regarded itself as having affected their

position by the terms used in condition (xv). As to casual visitors, they would seem to be a problem however one reads condition (xv). If two clients are in conference with the appellant when such a visitor

arrives, the appellant would possibly be in an awkward position, even under the Plan. But perhaps the

expression "shall not involve an on-site attendance . . . at any one time" does not require that casual

visitors be counted, but confines one’s attention to persons present in accordance with the ordinary

operation of the solicitor’s practice.

Whether that is the proper interpretation of "involve" in this context, or not (a point I do not

decide), it does not appear to me that the appellant’s arguments from inconvenience can prevail. All

they amount to, in essence, is that it is unlikely that the use of the additional expression "as clients" was

intended to augment the rather severe restrictions which the definition of "Home Occupation" imposed

on the mode of practising in the house; but so far from that appearing to be unlikely, the natural

inference from the addition of the words "as clients", is that the Council intended to add something,

rather than nothing, to those restrictions.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 253 of 1995

Brisbane

Before Fitzgerald P

Pincus JA Williams J

[O'Sullivan v. Council of the City of Toowoomba]

BETWEEN

NEIL ALEXANDER O'SULLIVAN

(Appellant)

AND

COUNCIL OF THE CITY OF TOOWOOMBA

(Respondent)

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 4th day of June 1996.

This appeal raises for determination by the court the proper construction of a condition attaching

to a consent given by the respondent, Toowoomba City Council, to the appellant, Neil Alexander

O'Sullivan, to use his home at 128 James Street, Toowoomba, for purposes of a "home occupation"

within the meaning of that term as used in the Town Planning Scheme for the area of the City of

Toowoomba gazetted on 10 June 1989.

By application dated 12 March 1990 the appellant sought consent of the respondent to use his residence at 128 James Street, Toowoomba for purposes of "home occupation - solicitor's office". That application was duly considered by the respondent and by letter dated 16 May 1990 the appellant

was advised that the application had been approved subject to certain conditions. The relevant

condition is that designated (xv); it is in these terms:

"The operation of this Home Occupation is approved for the applicant personally and not any successor in title to the land or occupier of the premises. The home occupation is to be undertaken by only persons resident therein and shall not involve an on-site attendance of more than two persons, as clients, at any one time in addition to any domiciled resident therein."

In these proceedings neither the power of the local authority to impose that condition, nor the

reasonableness of that condition, are in question. The appellant accepted the conditions set out in the

letter of 16 May 1990 and proceeded to conduct his practice from the residence at 128 James Street,

Toowoomba, in purported compliance therewith. There appears to be no doubt that the appellant has

been the only solicitor involved in the conduct of the practice from that address. However, the

respondent local authority contends that in March 1995 the appellant employed "at least two female

persons who were instrumental in the undertaking, or assisting in the undertaking, of the business and

who were not resident on the premises." The appellant appears not to deny, and it can be assumed for

present purposes, that he has employed one or more persons to perform secretarial duties at 128 James

Street, Toowoomba, in connection with his solicitor's practice. The respondent has commenced

proceedings prosecuting the appellant for a breach of condition (xv) and the appellant's response was

to seek a declaration from the Planning and Environment Court that, on the proper construction of the

relevant provisions of the Town Planning Scheme and the consent dated 16 May 1990, he was "not

prohibited from employing persons who are not resident at the said premises to work at those premises

in the course of the said business provided that the carrying on the said business does not involve an on-

site attendance of more than two persons at any one time in addition to any domiciled resident of the said premises." Further or in the alternative a declaration was sought that he was "not prohibited from

having persons, other than clients of the said business, attend at the said premises in relation to the said

business provided that the carrying on of the said business does not involve the on-site attendance of

more than two persons at any one time in addition to any domiciled resident of the said premises."

After a hearing in the Planning and Environment Court Quirk DCJ ruled against the appellant

and declined to make either of the declarations sought. From that decision an appeal has been brought

to this court.

The premises in question are located in a Residential "A" zone, and a "home occupation" can

only be carried therein with the consent of the local authority. "Home occupation" is defined in the

relevant Town Planning Scheme as follows:

"Any business, occupation or profession carried on, in or under a dwelling house, where
such business, occupation or profession -

(a)         is undertaken only by persons resident therein;

(b)        does not occupy more floor space (whether temporarily or permanently) than the lesser of thirty (30) square metres or one-third of the total floor area of the actual dwelling house;

(c)         does not involve an on-site attendance of more than two persons at any one time in addition to any domiciled resident therein;

(d)        does not include any retail sale or display of goods of any nature on the site;

(e)         does not require the provision of parking facilities over and above those that could reasonably be associated with the residential use of the site;

(f)          does not entail the parking or garaging of more than one commercial vehicle on site;

(g)         does not advertise on the premises by any sign larger than point three (0.3) of a square metre in area, which sign bears only the name and telephone number of the occupier of the Home Occupation, unless Council is satisfied that a need exists for a sign of a larger area but not exceeding one (1) square metre;

(h)         does not create injury to or prejudicially affect the amenity of the neighbourhood, including but not limited to injury or prejudicial affection due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, or waste product; and

(i)          does not employ any mechanical power of a total connected load greater than 0.375 kilowatt;

The term does not include Arts and Crafts display and sales as herein separately defined."

The only provision of that definition relevant for present purposes is paragraph (c).

The respondent was empowered pursuant to the provisions of the Local Government (Planning

and Environment) Act 1990 to approve the appellant's application "subject to conditions". As has been

noted this approval was given subject to conditions which included condition (xv). In practical terms

the issue for determination is whether or not the approval given, which includes condition (xv), permits

the applicant to employ one or more secretaries as part of his "home occupation" profession, who are

entitled to work as such in the premises at 128 James Street.

Clearly persons employed as secretaries are not clients. That much was accepted by counsel

for the appellant. His principal argument was that the reference in condition (xv) to no "more than two

persons, as clients" did not restrict the power or right of the appellant to lawfully employ one or more

persons as secretaries in the business. The problems confronting the appellant were highlighted by the

difficulty his counsel had during argument in formulating a condition which would have expressly

empowered the appellant to do that, but which, at the same time, was not inconsistent with condition

(xv).

The words "as clients" cannot be ignored when it comes to construing the condition. Those words are of critical importance and at least it is clear that no more than two clients can be on the premises at any one time. The appellant only has permission to use the premises in question for a home

occupation in accordance with the express conditions, and there is nothing therein which could be

regarded as authorising the employment of secretaries in relation to the business activity.

Ultimately the argument for the appellant came down to a submission that the only restriction

was on the number of clients permitted on the premises at any one time; there was no restriction on the

number of employees, such as secretaries. Such a construction is not open, in my view, given the

definition of "home occupation" and the wording of the consent granted by the respondent.

Some may regard that as unreasonable because, for example, the solicitor's practice could be

carried on at the premises on the basis that no clients attended there. The solicitor could visit clients

elsewhere, and only perform administrative functions from the residence. That would mean that only

one or two secretaries would be on the premises in addition to persons ordinarily resident and domiciled

therein. That would not be permitted on the construction I have placed on the condition in question, but

such a consideration is not decisive. As already noted, reasonableness is not now in issue.

One can see that the local authority may well wish to significantly restrict the use of residential

premises for business and professional purposes, and against that background there is nothing

necessarily oppressive in a restriction such as that imposed here.

It is true that in a strict sense only a solicitor admitted to practise as such could be said to be

carrying on the "undertaking" in question, but that consideration does not materially assist the appellant

here. Both the provisions of the Town Plan and the conditions attached to the consent are concerned

with the number of persons associated with the business or undertaking who are on site, and clearly

employees, such as secretaries, are caught by the provisions thereof.

In the Planning and Environment Court it was held that the condition put it beyond doubt that
the only two non-residents who could attend on site were "clients"; a secretary was not included in that

designation. The conclusions reached in the Planning and Environment court is clearly correct and this

appeal should be dismissed with costs.