Palmer v Brisbane City Council
[2006] QPEC 70
•14 July 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Palmer & Anor v Brisbane City Council & Anor [2006] QPEC 070
PARTIES:
PATRICK PALMER AND R DUNCAN FREWEN
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
KAYSTONE DEVELOPMENTS
Co-respondent
FILE NO/S:
BD936 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Application in pending proceeding
ORIGINATING COURT:
Brisbane
DELIVERED ON:
14 July 2006
DELIVERED AT:
Brisbane
HEARING DATE:
28 April 2006, with further submissions received on 3 May 2006
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr S Ure, of counsel, for the Appellants
Mr B Job, of counsel, for the Respondent
Mr P R Smith, of counsel, for the Co-respondents
SOLICITORS:
McCarthy Holzberger for the Appellants
Brisbane City Legal Practice for the Respondent
Thynne & McCartney for the Co-Respondents
In November 2003, the co-respondent made a development application which was ultimately approved, subject to conditions, in early 2004. The proposal, the subject of the application, involved, at the least, the construction of a new detached dwelling at the rear of an existing building. The application was treated as impact assessable. The appellants were adverse submitters. The issue which now falls for determination concerns the proper characterisation of the application and, in particular, whether it ought to have been subject to impact assessment.
The co-respondent relies upon this court’s decision in Yu and Leung v Brisbane City Council & Anor [2005] QPEC 78 to submit that the proposal was simply a “house” which did not require impact assessment. The consequence, it was submitted, is that the appellants had no right or entitlement to become submitters or to appeal against the Council’s decision. It was conceded, on behalf of the appellants, that they had no such rights if the application was properly characterised as for a house only. The co-respondent seeks, in the alternative, to change its application to now seek approval only for a “house”.
The land, the subject of the application, is situated at 47 Wahcumba Street, Dutton Park. It is a corner site, with a frontage to Park Road West. The site is currently improved with an older style building fronting Wahcumba Street. Its appearance suggests it might once have been used for a shop or other commercial purpose. It is common ground that the building has, in recent times, been used for residential purposes. It is not identified as a Commercial Character Building under CityPlan.
The application, as lodged, comprised completed IDAS forms, a brief report and proposal plans. The “site plan” and “streetscape” plan, which accompanied the application, showed both the existing building and the proposed new dwelling. The “site plan” showed the internal configuration of the older building and nominated uses for various rooms including a “waiting room”, “office”, “meeting/staff” and “reception/office”, together with two bedrooms, a kitchen and lunch/dining area. The same plan showed a “path to office” linking the existing and proposed new buildings. The proposed new building takes the form of a contemporary detached dwelling.
The current use of the site was erroneously described in Part A of the IDAS form as “commercial character building” and in the report as “office”. There was also an erroneous reference to “commercial character building” in Part D. The proposal was described, in Part A, as “extension to office (caretaker’s residence)”. The attached report stated that:
“It is proposed to build a caretaker’s residence on the site, which currently has a commercial character building on it.”
The application also contained references to the use of the misdescribed “commercial character building” which was to be retained. In Part D of the IDAS forms, it was said that there would be two employees and that the use would operate for eight hours per day. That could only sensibly be taken to be a reference to the proposed office use.
In dealing with the CityPlan codes, the report accompanying the application referred to the “combined building footprints”. In two places, it was stated that “the caretaker’s residence is an ancillary building to the office”. The house code was not addressed in the application documents.
The proposal was described in the Council’s acknowledgment notice and in the public notification as “office – (caretaker’s flat) within a building with commercial character”. That description would not give the reader any impression that a new detached dwelling was proposed. The description in the Council’s decision notice was “office – (caretaker’s flat)”.
The CityPlan does not use or define the term “caretaker’s residence”. The expression “caretaker’s flat” is defined as follows (my emphasis):
“Caretaker’s flat:
an ancillary use of part of a premises for residential occupation by a person or a domestic group that includes the person who has the care of a business or industry activity on the premises. Any use of a caretaker’s flat forms part of that use for some non-residential purpose of those premises in connection with which it is used and does not constitute a mixed use development.”
A “caretaker’s flat” forms part of the non residential purpose to which it is ancillary. In this case, the proposed residence was put forward, in the application, as being ancillary to the office, and was so treated by the Council.
The link between the proposed residential component and the office assumed some importance.
The public notification attracted submissions. A joint submission by Mr Palmer and Mr Frewin called into question the applicant’s intentions regarding the future use of the proposed new building. In particular it was said that “a small office in a densely populated suburb with a functioning neighbourhood watch program has no need of an on-site live-in caretaker” and, in any event, no separate dwelling was required for such purpose. The obvious course of action was, it was said, for the owners to subdivide and sell the two properties as small lot dwellings. In other words, it was suggested that the intention was for two houses rather than an ancillary residence for an office use. The application was referred to as a surreptitious way of achieving subdivision. Further, a submission by Urban Strategies on behalf of Mr Palmer, questioned whether the proposal was for a mixed use development rather than an ancillary use to the office.
In response to concerns of this kind, the co-respondent, in a letter to the Council of 4 December 2003, said, amongst other things (my emphasis):
“The sole intention for the construction of the caretaker’s flat is to act as a residence for a single domestic group, which will include persons using the existing building as a business premises.
To serve in this capacity the proposed building does not need to be physically connected to the existing building. Separating the two uses, into two buildings is important in regards to scale and bulk of the building ... as the site is on a corner and therefore affects the streetscape of Park Road West.”
In the same letter the applicant stated the following with regard to car parking (my emphasis):
“Three off-street car parking spaces have now been provided. Two of these would be used by the domestic group living/working in the building and the third by visitors. There is street parking available in Park Road West for additional visitors. It is not envisaged that the type of business to go into the existing building would generate more than five visitor vehicles per day.”
The same letter referred to the gross floor area as being 270 m2, which included both buildings, and contended that the existing building was ‘essentially’ a commercial character building and so should be allowed to have a caretaker’s residence.
The ancillary nature of the proposed residential use featured in the assessment manager’s summary of the objections/concerns and representations in response.
The conditions of the Council’s approval included the following (my emphasis):
“(6)Construct and maintain the office and caretaker’s flat to include the following:
(a)the use of the premises for office area is to be limited to the upper floor of the existing building and has a maximum gross floor area of 105m2.
(b)the caretaker’s residence forms part of the ancillary use of the premises for the purpose of office; and
(c)is to be for the residential occupation by a person or a domestic group that includes the person who has the care of the office activity on the premises.
Guideline
This condition is imposed to ensure that the caretaker’s flat is an ancillary use to the existing building as a business premises – (office).”
The approval also required development to be carried out generally in accordance with certain drawings, which had been amended by changing the designation of what was previously shown as bedrooms in the existing building to “office/store”.
It is clear that the applicant did not apply, in terms, for a “house” and denied suggestions to the effect that the proposal was for a house, unrelated to an office use. The Council did not treat the application as being for a house, although it is the proper characterisation of the application, rather than the Council’s treatment of it, which is decisive.
A house is defined, in CityPlan, simply as “a use of premises principally for residential occupation by a domestic group or individual/s”. The co-respondent submits that, as in Yu’s case, the application, properly construed, sought approval only for the new building, which, it was contended, is properly characterised as a house, even though it was otherwise described.
There are a number of similarities between this case and Yu. As in Yu, the development application form described the proposal as “extension to office (caretaker’s residence)”. As in Yu, the current use of the site was misdescribed as “office”, even though the existing building had been used for residential purposes. Further, as in Yu, it was not proposed to physically alter to the existing building. There are however, a number of other points to note:
·The proposal plans, which accompanied the application in Yu, only showed the detail of the proposed new detached dwelling. Unlike in the present case, they did not show the internal layout of the existing building and designate the use of various rooms within it. The existing building was shown in outline form only. Further details of the then future intentions for the existing building were given later, in response to a request from the Council, but I concluded that did not, in Yu’s case, amount to a change to the application.
·It does not appear, from a perusal of my reasons in Yu, that the same emphasis was placed on the ancillary nature of the proposed new residence[1].
·The existing building in Yu was a commercial character building, with the consequence that any intended office use of that building did not necessarily require development approval[2]. In this case, an “office” (as distinct from a home business, which is discussed later), to which the proposed residential use was proposed to be ancillary, could not be conducted in the absence of a development approval.
·The contention in Yu, was that the application was for a multi-unit dwelling. That contention was, at one point, advanced in this case, but rightly not persisted with. No party in Yu contended that the application was properly characterised as a caretaker’s residence, as the appellants do in this case.
·In Yu, I was satisfied, on balance and as a matter of fact, that it was only a new house for which approval was sought, even though the applicant had adopted the “caretaker’s residence” terminology in consultation with the council. I am invited to reach a different factual conclusion in this case.
[1] I also note that the application in Yu was not treated by the Council as being for a caretaker’s flat.
[2] Subject to compliance with the acceptable solutions of the relevant code, the development was self assessable.
This is another case in which the application documents are erroneous and far from perfect with resulting argument about the proper characterisation of the application.
As has already been noted, the application documents erroneously indicated that the existing building was a commercial character building being put to an office use. Counsel for the co-respondent endeavoured to use that to his client’s advantage, to suggest that the application assumed the office use and sought approval only for the new residential building. It is difficult however, to divorce the proposed office use from the application.
That an office use did not exist must have been known to the applicant and, indeed, to any person with any familiarity with the subject site. The development application clearly reflected a proposal for the existing building to be used, at least in part, for office purposes, designated areas to be so used and specified the proposed number of employees and the hours of operation. The application documents were later supplemented with information concerning car parking demand for the uses across the site, including the office use. The residential component of the application was expressly put forward on the basis that it would be ancillary to the office use.
In the circumstances, there are difficulties in characterising the proposal, the subject of the application, as simply relating to the so-called “ancillary” residence, and not the principal use to which it was to be ancillary but which did not then exist and for which the necessary approval had not otherwise been obtained.
I am in this case, unlike in Yu, ultimately left unpersuaded that, as a matter of fact, the proposal the subject of the application was only a house.
There was a deal of debate about the proper characterisation of the proposed development. Two possible descriptions of the non-residential component, referred to in argument, were “office” and “home business”. An office is impact assessable. A home business is self assessable, but only where it complies with the self assessable acceptable solutions in the Home Business Code.
As approved, the proposal does not comply with at least one of the self assessable acceptable solutions. The conditions of approval allowed for up to 105 m2 for the “office” use, contrary to A2.2 of the acceptable solutions for self assessment in the Home Business Code. The material does not permit a conclusion as to whether the business use was more than 50 m2 in the plans as lodged with the Council, so as to conform to that acceptable solution.
Self assessable acceptable solution, A2.1, requires the involvement of no more than one non-resident employee on site at any one time. The application documents referred to two employees, without qualification as to whether they would be the occupants of the residence or non-resident employees. A home business must also be “carried out” by one or more of the permanent residents of the house (A1.1). The letter of 4 December 2003 refers to the proposed residents including those “using” the existing building as a business premises. The Council’s conditions refer to those with “care” of the office activity.
There was debate as to whether the new residential building would be properly described as a “house” (as the co-respondent and the Council contended), which is not impact assessable, or a “caretaker’s flat” or “caretaker’s residence” (as the appellants contended) which are impact assessable[3]. It was submitted, on behalf of the appellants, that the residential component of the application was not simply for a house, which could, consistently with the definition, be used by any domestic group or individual/s, but was only for a residence for persons associated with the non-residential use. It was submitted that the residential component of the application was better characterised, in those circumstances, either as part of the office use, by reason of being a “caretaker’s flat” or (if disqualified from that definition by not being truly “ancillary” or by reason of being a new detached building rather than a “flat”) the innominate use of caretaker’s residence. As in Yu, no party contended that the proposal, as a whole, should be characterised as a mixed use.
[3] A “caretaker’s flat” would be part on an “office” use, while a “caretaker’s residence”, as an innominate use would fall, by default, into the impact assessment “generally inappropriate” category by being “any other material change of use”
The material establishes that the co-respondent does not now have any fixed intention to use the existing building for any purpose.
The co-respondent now wishes to seek only approval of the new dwelling as a house. I do not consider that would be a minor change within the meaning of s 4.1.52 of the IPA.
Accepting the submissions of the appellants with respect to the proper characterisation of the residential component, the change would be to a different use from that for which application had been made and approval granted. Accepting that the residential component is properly described as a “house”, the deletion of the proposal for an office use, so that the house is no longer put forward as simply ancillary to that primary use, would be more than a minor change in the circumstances, given the reliance which was placed, in the application, on the relationship between the residence and the office[4].
[4] I note that the existence and use of a second building on the site of a “house” is a matter of relevance under the House Code (see P1, P7)
It was submitted, in the respondent’s supplementary submissions, that the proposal was properly characterised as a “house” and a “home business”. It was submitted in the co-respondent’s further submissions that, if that were so, a “minor change” could now be made to the proposed home business component so that it clearly involved only a self assessable home business (for which no approval would be required), leaving only the ‘house’ to be approved. That submission was a little surprising in light of the evidence that the co-respondent now has no fixed intention in relation to the use of the existing building. I was, in any event, left short of being persuaded that the original application was for a home business. Leaving the self assessment acceptable solutions to one side, a “home business”, by definition, requires the primary use of the lot to be residential. That is not the basis on which the application was put forward.
I am conscious that the floor area of the new building was to be greater than that of the existing building. As I said in Yu, that is not determinative. I am also conscious that the original proposal plan also showed a residential component in the existing building. It may be difficult to see how the residential use, as shown in the plans lodged with the application, would truly be “ancillary” to the primary office use, given the relative areas given over to each component in the proposal plans, but the application did not seek approval for a house as the primary use of the lot. The application sought an approval for, relevantly, a residence which was to be ancillary to the proposed (primary) office use, a matter which was addressed in the conditions of Council’s approval. It would appear to be more than a minor change to now consider granting approval to the new residence as a primary (house) use on the basis that any commercial use (for which there is no fixed intention) would be limited to a self assessable home business.
I am satisfied, as a matter of fact, that the application in this case, was not merely for a house and that the application may not now be changed to be so confined. That is not to say that the applicant could not now make such an application, but it may not do so in the subject appeal. The difference in outcome from that in Yu is influenced by the different circumstances. I will hear from the parties concerning the appropriate orders.
0