Redland Shire Council v Girling
[2004] QPEC 76
•24 November, 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Redland Shire Council v. Girling [2004] QPEC 076
PARTIES:
REDLAND SHIRE COUNCIL (Applicant)
v
DAVID JOHN GIRLING (Respondent)
FILE NO/S:
BD1193 of 2004
DIVISION:
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court Brisbane
DELIVERED ON:
24 November, 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
27 September, 2004
JUDGE:
McLauchlan QC DCJ
ORDER:
Declaration and Order restraining the respondent
CATCHWORDS:
JUNK YARD – HOBBY - ANCILLARY RESIDENTIAL PURPOSES - ‘article’ – whether a car hobby constitutes a junk yard
City of Noarlunga v. Usher [1981] 48 LGERA
COUNSEL:
Mr. Ure for the applicant; the respondent in person
SOLICITORS:
Corrs Chambers Westgarth for the applicant
By an application filed on 1 April 2004, the applicant Council sought the following declarations and orders:
1. A declaration that the respondent’s use of the land at 28 Pioneer Road, Sheldon, more properly described as Lot 134 on RP 86376 (“the subject land”) constitutes:
(a) a “junkyard” within the meaning of that term as used in the Town Planning Scheme for the Shire of Redland; and/or
(b) an “Industry Class III” within the meaning of that term as used in the Town Planning Scheme for the Shire of Redland; and/or
(c) an innominate use which is assessable development pursuant to the
provisions of the Integrated Planning Act 1997;
and is therefore unlawful, in that no development approval has been obtained for the use.
2. An order that the respondent by himself, his servants or agents, be restrained from using the subject land for the purposes of collecting, dismantling, storing, salvaging and abandonment of vehicles or machinery, the repairing and/or servicing of motor vehicles, the breaking up of motor vehicles for demolition, the rebuilding of motor vehicles, the panel beating and/or spray painting of motor vehicles or parts of motor vehicles, the collecting, storing and abandonment of scrap materials or scrap goods, including tyres, batteries and like materials.
3. An order that within 60 days the respondent do remove from the subject land all car bodies, car parts, chassis, scrap materials, including tyres, batteries and like materials and scrap goods.
4. Such other orders which this Court may consider to be appropriate.
The Town Planning Scheme for the Shire of Redland is a transitional planning scheme which has continuing effect pursuant to the provisions of s.6.1.2 of the Integrated Planning Act 1997 (IPA). Subsection (3) of that section provides that a prohibited use in a former Planning Scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. The respondent’s property is within the Rural Habitat, Protection and Water Supply Catchment Zone in the Town Planning Scheme. Uses to which such land may be put without the consent of the Council are restricted to dwelling houses, relative’s apartments and parks. Uses inconsistent with the intent of the zone include “Industry Class III” and “junkyards”. Those uses, and others are expressed to be prohibited uses under ColumnV of the zone. Uses of the land not comprehended within Column III(a) (dwelling houses, relatives apartments and parks), and Column III (b) (home based business) which are subject to the applicant receiving notification of approval pursuant to the administrative requirements of the Town Planning Scheme, and uses which are not comprehended by Column V are lawful under Column IV of the Table of Zones, only with the consent of the Council.
The term “dwelling house’ is defined (relevantly) in the Transitional Scheme to mean”
“Any premises comprising or intended to comprise only self contained accommodation for the exclusive use of one family and which would constitute a class one building in accordance with the provisions of the Building Act 1975-1984: the term includes such outbuildings as are incidental to and necessarily associated with a dwelling house: the term also includes any use ancillary to the use of the premises for residential purposes …”
The position taken by the respondent is that he is conducting upon the land a hobby in the form of building motor vehicles for his own use out of parts obtained from other vehicles. Evidence as to the nature of the activities conducted by the respondent on his land was given by Mr and Mrs Bray who live next door on one side of the subject land at 34 Pioneer Road Sheldon, and by Mrs Gabrielle Bell of 24 Pioneer Road who is the neighbour on the other side of the property. Evidence was also given by Claire Richardson who is the principal consultant and managing director of Airnoise Environment Pty Ltd. Her evidence was to the effect that from time to time in the course of the respondent’s pursuing his activities the resultant noise exceeds levels which are acceptable in a residential setting. Evidence of the extent of the respondent’s activities was also given by a retired Council officer, Alexander Watson and by the applicant’s development control officer, Mr Lawrence Camilleri. Affidavits were sworn by these people and they contain photographs of numbers of vehicles on the subject property, including vehicles stripped of various parts and vehicles in the process of being rebuilt. The affidavits and viva voce evidence given by these witnesses supports the submission made on behalf of the applicant that the respondent’s activities include the storage of up to 25 motor vehicles, including vehicles in various stages of being stripped for parts, and discarded vehicles, the collection, dismantling, storaging and salvaging of vehicles and vehicle parts and the rebuilding of vehicles from parts salvaged from wrecked or worn out vehicles. The carrying out of the work, including repairs and alterations, has been conducted by the respondent and two or three other persons on a regular basis. The work includes the carrying out of grinding, panel beating, spray painting, welding, and the use of fork lifts, hoists, a compressor and air and power tools.
The respondent’s primary contention is that engaging in his “hobby” upon the land is a use ancillary to the use of the premises for residential purposes. The expression “ancillary” is defined in the Scheme to mean “incidental and subordinate”. It seems to me to be clear that the nature and extent of the activities in which the respondent has engaged with respect to motor vehicles upon his land could not reasonably be regarded as incidental and subordinate to his use of the premises as a dwelling house. In that connection I have been referred to a decision of the South Australian Supreme Court in City of Noarlunga v. Usher [1981] 48 LGERA at 36. At p.40 of the judgment the learned judge observed:
“There are many uses which, as a matter of fact, are part of (such) ordinary residential use. Those which easily come to mind are the more passive recreations such as sewing, reading, watching television and the like. Others have more active hobbies, such as, for example, pottery, handiwork of various kinds, gardening or such sports as swimming or tennis. Some of these activities involve erection of structures, for example, a television aerial – quite high in some areas, the potter’s kiln, the carpenter’s shed, trellising, swimming pools and tennis courts, with or without electric lights. Yet no one would suggest that such uses were other than part of the ordinary residential use. As such, some building consent may be necessary, but in normal circumstances if the use is the type of residential hobby that one associates with ordinary living, no planning consent would be suggested. It is, however, possible that some extreme cases, even in that range of ‘hobby’ use may need planning consent, if for example, the particular use, although of the same nature as the norm, is so out of line with that usually practiced as to be considered abnormal and unusual. We have in mind the extraordinarily large kiln for pottery purposes, perhaps the high diving board associated with the swimming pool, something quite out of line with what even the enthusiasts for the hobby would expect. Given that a ‘hobby’ is part of the ordinary use for a residence, it becomes a question of fact and degree as to whether the particular example under consideration is so far out of line with the manner in which the hobby is normally practiced that it should not be considered as being part of the ordinary residential use.”
I regard this authority as pertinent to the matter under consideration, although the issue there was whether or not a particular hobby was “part of” the ordinary residential use rather than whether it was ancillary and subordinate to a residential use. The activities of the respondent may be considered a hobby - certainly there was no commercial aspect to them - but the scale and effect upon neighbouring properties of those activities is such that it could not, in my opinion, be regarded as ancillary and subordinate to the use of the land as a dwelling house. As noted earlier, by virtue of s 6.1.2 IPA the transitional planning scheme continues to have effect in the Redland Shire. This includes the definition of the use of land as a “dwelling house” and renders inapplicable the narrow definition of “use” contained in IPA Schedule 10. It is evident that the respondent’s activities could not come within the description of “relative’s apartments” or “parks” and indeed the definitions of these expressions in the Scheme make that perfectly clear.
It follows that the use of the subject land by the respondent at the time when the originating application was made was unlawful without the approval of the applicant Council, insofar as that use was inconsistent with the intent of the zone, or without the consent of the Council if the use was not inconsistent with that intent.
So far as Column V is concerned the uses which the applicant claims to be inconsistent with the intent of the zone are those uses nominated “Industry Class III” and “junkyards”. So far as the former is concerned, “Industry Class III” is defined for present purposes to mean the use of premises for the carrying on of any process for or ancillary to the making of any article or part of any article or the altering or repairing and servicing of any article. The term includes the ancillary use of such premises for the storage of articles used in connection with or resulting from any such activity. For the purpose of the definition article is defined to mean an article of any description not including a boat or other marine craft. The evidence appears to me to establish that the respondent has used his premises for the carrying on of a process for the making of motor vehicles involving the altering, repairing and servicing of motor vehicles and the storage of such vehicles in various stages of repair or demolition. It is clear that a motor vehicle comes within the definition of an “article”. Having regard to the number of vehicles involved, and to the equipment maintained by the respondent for the purpose of these activities, I think it is also clear that the respondent is or was carrying on a “process” for or ancillary to that activity. I conclude that the respondent was using the premises for an “Industry Class III” activity.
It is contended that in addition, or in the alternative, the respondent has used the premises for a “junkyard”. That expression is defined to mean:
“Any premises used or intended for use in the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or scrap goods, or used for the collecting, dismantling, storage, salvaging and abandonment of vehicles (including cars, tractors, motor cycles, earthmoving equipment or any motor driving vehicle) or machinery: the term includes the sale of parts in connection with the above.”
The only portion of this definition which I consider may be applicable to the respondent is that which concerns collecting, dismantling, storage, salvaging and abandonment of vehicles. I accept that the evidence establishes the collection, dismantling, storaging and salvaging of vehicles, but I do not consider that “abandonment” of vehicles on the premises has been established since, as I understand that expression, it involves the final disposition, disclaimer or relinquishment of an article. The evidence establishes that some car bodies or parts of car bodies have been on the premises for several years, but it is also true that the respondent has, perhaps for reasons connected with this application and a previous application made by the applicant, removed those articles from his property. I think that the language should be construed distributively so that it is sufficient to show that some vehicles were collected, some dismantled, some stored, some salvaged and some abandoned. However, I do not think that abandonment of any of the vehicles on the property has been clearly shown. It follows that I do not consider that it has been established that the respondent has used or permitted the use of his residential premises for a “junkyard”.
My conclusion that the respondent has used the property for activity coming within the definition of “Industry Class III” is all that is necessary to entitle the applicant to relief, subject to any discretionary matters which may need to be considered. Even if that were not so, I think it is clear that the respondent’s activities fall within Column IV of the Table of Zones so that his use of the land in connection with his activities involving vehicles would in any event have required Council consent and without that consent the activities were unlawful. Since, however, the use of the land is one which, in the old terminology, was prohibited by Column V, the question whether it was also unlawful under Column IV does not arise.
The evidence before me indicates to my satisfaction that there are no discretionary matters which might persuade me not to make a declaration in favour of the applicant notwithstanding the unlawfulness of the respondent’s activities.
I shall make a declaration that the respondent’s use of the land constitutes “Industry Class III” as sought and is therefore unlawful in that no development approval has been obtained for the use. I would also make an order substantially as sought in para. 2 of the application. An order in terms of para. 3 is no longer sought, in that the respondent has already removed the material referred to from the land.
I make the following declaration and order –
1. A declaration that the respondent’s use of the land at 28 Pioneer Road Sheldon described as Lot 134 on RP 86376 (“the subject land”) constitutes an “Industry Class III” within the meaning of that term as used in the Town Planning Scheme for the Shire of Redland and is unlawful, in that no development approval has been obtained for that use.
2. An order that the respondent by himself, his servants or agents be restrained from using the subject land for the carrying on of any process for or ancillary to any of the following activities that is to say –
(i) the making of any vehicle or part of any vehicle;
(ii) the altering, repairing and servicing, or breaking up for demolition of any vehicle.
3. The process referred to in the immediately proceeding paragraph includes the rebuilding of motor vehicles, the panel beating and/or spray painting of motor vehicles or parts of motor vehicles and the collecting and storing of motor vehicles and parts of motor vehicles for any of the above purposes.
As indicated earlier in these reasons, the use of the land by the respondent, even if not unlawful because it was one listed under Column V, would in that case be unlawful because it was a Column IV use and no consent from Council had been obtained. In that event a similar declaration and order would have been made.
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