Redland Shire Council v Jensen
[2003] QPEC 49
•12 September 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Redland Shire Council v Jensen and Anor [2003] QPEC 049
PARTIES:
REDLAND SHIRE COUNCIL (Applicant)
v.
ANNE CATHERINE JENSEN (First respondent)
And
RICHARD ASHTON JENSEN (Second respondent)
FILE NO/S:
4189 of 2002
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court Brisbane
DELIVERED ON:
12 September 2003
DELIVERED AT:
Brisbane
HEARING DATE:
28 August 2003
JUDGE:
McLauchlan QC
ORDER:
Declaration
CATCHWORDS:
Development - ‘building work’ – assessable or self-assessable – IPA – Standard Building Regulation
COUNSEL:
Mr M Hinson SC for the appellant.
Mr C Hughes SC for the respondents.
SOLICITORS:
Deacons for the appellant.
Anderssen Lawyers for the respondents.
This is an application for a declaration that
a) filling carried out by the respondents on land situated at 50 Attunga Street Macleay Island constitutes operational work and is assessable development pursuant to IPA and the applicant’s transitional planning scheme; and
b) by starting and carrying out the filling without a development permit for the development the respondent have committed a development offence pursuant to s.4.3.1(1) IPA.
It is common ground that in about mid-2002 earthmoving works were carried out upon the subject land upon the instructions of the respondents. These works involved the placement and compaction of fill upon the land. There may have been some excavation associated with the filling work but that makes no difference to the result of the present application.
The planning scheme for the Shire of Redland is a transitional planning scheme under IPA. Clause 11A of Part 4 Division 3 of the planning scheme relevantly provides that:
“No person shall without the written approval of Council alter surface levels (cut and fill) on any land on any island being one of the Moreton Bay Islands.”
It is not contested that the respondents did fill the land, and did so without the written approval of the applicant under Clause 11A. The ultimate contest in this case is whether the work carried out at the behest of the respondents was assessable or self-assessable development, because if it was assessable a development permit was required under IPA, whereas if it were self-assessable a permit was not required (s3.1.4(1)&(2) IPA).
“Development” is defined in s1.3.2 IPA to include ‘carrying out building work’, and also ‘carrying out operational work’. By s1.3.5 IPA “building work” means:-
“(a)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
(aa)work regulated under the Standard Building Regulation 1993; or
(b)Excavating or filling –
(i) for, or incidental to, the activities mentioned in para. (a); or
(ii) that may adversely affect the stability of a building or other structure, whether on the land on which the building or other structure is situated or on adjoining land; or
(c) supporting (whether vertically or laterally) land for activities mentioned in para (a).”
It is not contested that the ‘excavating or filling’ involved in the present case was not of the kind mentioned in paragraph (b)(i) or (ii) or paragraph (c) of the definition, so that if it is “building work” that must be because it falls within paragraph (aa) of the definition.
“Operational work” is defined in s1.3.5 to mean a number of specified activities including:-
“(c)excavating or filling that materially affects premises or their use”.
There is material before the Court from which it may reasonably be inferred that the premises at Attunga St were ‘materially’ affect by the filling done and the contrary was not argued. I infer that the filling did materially affect those premises.
The terms “assessable” and “self-assessable” development are defined in IPA by reference to the provisions of Schedule 8 to that Act. Part 2 of the Schedule sets out Self-assessable Development, and Item 7, which falls under that Part, includes in that category:
“All building work declared under the Standard Building Regulation to be self-assessable development.”
Part 1 of the Standard Building Regulation 1993, which deals with preliminary matters, provides, in s.4:-
“(1)Subject to subsections (2) and (3) the carrying out of all building work is assessable against this regulation.
(2)For IPA, schedule 8, part 2, item 7, the development set out in schedule 5 part 1 of this regulation is self-assessable development unless the development is building work in –
(a)the wet tropics area under the Wet Tropics World Heritage Protection and Management Act 1993; or
(b)a designated landscape area under the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987; or
(c) a registered place under the Queensland Heritage Act 1992.
(3) ………………………………………………..”
It is conceded that the provisions of paragraphs (a)(b) and (c) of sub-s(2) have no application to the present matter and that the provisions of sub-s (3) are also for present purposes irrelevant.
Part 1 of Schedule 5 of the Standard Building Regulation is headed “Self Assessable Development” and includes, as Item 5 the following:-
“5, Filling or excavation if –
(a)the proposed cut or fill is no deeper than 1m in relation to natural ground level; and
(b)any cut embankment is no steeper than –
(i)for sand .... 2 horizontal to 1 vertical; and
(ii)for silt ... 4 horizontal to 1 vertical; and
(iii)for firm clay ... 1 horizontal to 1 vertical; and
(iv)for soft clay ... 3 horizontal to 2 vertical; and
(c)any fill embankment is no steeper than 4.0 horizontal to 1.0 vertical; and
(d)any compacted fill embankment is no steeper than –
(i)for sand ... 3 horizontal to 2 vertical; and
(ii)for silt ... 4 horizontal to 1 vertical; and
(iii)for firm clay ... 2 horizontal to 1 vertical.”
It is common ground that the requirements of Item 5 are met with respect to the fill in the present case.
Since the Planning Scheme is a transitional planning scheme the provisions of Chapter 6 IPA are relevant. In Part 1 of Chapter 6 “assessable development” is defined to include development, not inconsistent with Schedule 8, that under the repealed Act, would have required an application to be made for a continuing approval. The expression “continuing approval” is defined to mean a condition, certificate, permit or approval mentioned in s 6.1.23(1), and that section mentions, in paragraph (d), approvals by whatever name called, under a former planning scheme.
The requirement that assessable development be development not inconsistent with Schedule 8 would not be satisfied if the filling carried out by the respondents falls within the provisions of Part 2 Item 7 of that Schedule, that is to say if the filling is accurately described as “building work declared under the Standard Building Regulation to be self-assessable development”.
It is necessary then to revert to the definition of “building work” in s 1.3.5 IPA. The filling carried out by the respondents had nothing to do with building. As already noted, if the filling is to be seen as “building work” that must be because it falls within paragraph (aa) of the definition, that is to say “work regulated under the Standard Building Regulation 1993”. Therefore, to comply with schedule 8 part 2 item 7 IPA it must be shown that the filling is work regulated under the Standard Building Regulation, and declared under that Regulation to be self-assessable development. (Work can be both regulated and self assessable because s4.3.2 IPA provides that a person must comply with applicable codes when carrying out self-assessable development and s2 of the Standard Building Regulation provides that it is a code for IDAS.)
The Standard Building Regulation includes the Building Code of Australia (‘BAC’). Section 8 of the Standard Building Regulation specifically provides that the BCA is part of the Regulation. That apart, there is nothing contained in the Standard Building Regulation which could be seen as regulation of filling upon land Filling, however is dealt with in the BCA Part 3.1 in relation to site preparation, and also to some extent in Part 3.2 dealing with footings and slabs. A reference to those provisions in the context of the BCA as a whole warrants the conclusion that the BCA, and therefore the Standard Building Regulation is not concerned with filling upon land except insofar as that is incidental to building activity upon the land, and in those circumstances it is considered and dealt with as in itself constituting building work.
When, therefore, Schedule 5 Part 1 refers to “filling or excavation” it is not, in my view, referring to filling and excavation generally, but only to such filling and excavation as is the concern of the Standard Building Regulation, which is to say filling and excavation for the purpose of, or incidental to building activity. The Standard Building Regulation has no concern with and, in my opinion does not purport to make provision in respect of, filling or excavation which has nothing to do with building. The effect of s 4(2) and Schedule 5 Part 1 Item 5, read together with Schedule 8 Part 2 Item 7 IPA, is to make self assessable, some filling or excavation for or incidental to building activities. The provisions of the Standard Building Regulation referred to, say nothing about filling or excavation not associated with building activity. It follows that the filling carried out by or on behalf of the respondents was not work regulated under the Standard Building Regulation.
In the circumstances the application succeeds and I will make the declarations sought. I am asked to make a consequential order that the respondents make an application under Clause 11A of the applicant’s transitional planning scheme. However, as at present advised, I am doubtful of the Court’s power to make such an order, and until persuaded otherwise, I shall refrain from doing so. In any event, I am not satisfied that to make such an order would be an appropriate course for the Court to take.
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