Simon v Logan City Council

[2001] QPEC 48

DISTRICT COURT OF QUEENSLAND

CITATION:

Simon v Logan City Council [2001] QPEC 048

PARTIES:

LAWRENCE ANTHONY SIMON             Appellant
V
LOGAN CITY COUNCIL  Respondent

LOGAN CITY COUNCIL  Applicant
V
LAWRENCE ANTHONY SIMON             Respondent

FILE NO/S:

1317/01
1318/01

DIVISION:

PROCEEDING:

Appeal and application for declarations

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

 10 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

5 July 2001

JUDGE:

Skoien SJDC

ORDER:

Appeal dismissed; declarations made

CATCHWORDS:

Unlawful use of premises; “salvage yard” repair, storage and recycling of motor vehicles in residential zone

COUNSEL:

Appellant/respondent in person
Mr Cochrane for respondent/applicant

SOLICITORS:

Corrs Chambers Westgarth Lawyers for the respondent/applicant

1. Two matters are before me.  The first (the Simon Appeal) is an appeal against the issuing of an enforcement notice by the Council.  The second (the Council application) is for declarations and a consequential order.  They arise out of the same facts and many of the legal points which are raised by them are identical. So it was convenient for them to be heard together.

Integrated Planning Act 1997

1. Section 4.1.21(1) permits the Council to bring proceedings for a declaration about:

(b)        The construction of .... planning instruments ....; and

(c)        The lawfulness of land use .... .

and the court is given by s.4.1.22 power to make orders about such declarations made by it.

1. Section 4.3.5 prohibits a person from carrying on an unlawful use on premises.  Such an act constitutes a development offence as defined in schedule 10.  An assessing authority (which is the Council for land in Logan City) which reasonably believes a person has committed or is committing a development offence may give an enforcement notice to the person requiring him to refrain from committing the offence and/or to remedy its commission in the way stated in the notice.  Before issuing the enforcement notice the Council must give a show cause notice to the person identifying the issues and giving an opportunity to respond by making representations (ss.4.3.8-10).

1. In this case, in a preliminary hearing on 9 December 1999, His Honour Judge Nase found that the requirements of IPA relating to the show cause notice and the enforcement notice referred to in para [3] above had been duly complied with by the Council.

1. A person who is given an enforcement notice may appeal to this Court against the giving of the notice (s.4.1.32) and on such an appeal the Council has the onus of proof (s.4.1.50(5)).  Until the appeal is disposed of the enforcement notice is stayed (s.4.1.33).  In seeking a declaration the Council also obviously carries the onus.

Logan City Planning Scheme

1. The premises concerned are situate at 144 Aquarius Drive, Kingston, within the City of Logan.  The land is zoned Residential (Residential Density R2).  In that zone neither “salvage yard” nor “vehicle repair station” is a permitted or permissible use. Each is a column 4 use.  So until a successful material change of use application is made either of those uses would be unlawful (s.2.2.4.1).  Indeed s.3.7.4 expressly forbids the repair of a motor vehicle on premises unless:-

“(a)the repairs are approved pursuant to the Planning Scheme; or

(b)the repairs are associated with the day-to-day maintenance of a motor vehicle which is registered in the name of the occupant and normally parked on the premises for use by the occupant of the premises.”

and neither of those exceptions apply.

1. Part 13 of the Planning Scheme has these two definitions:-

“Vehicle Repair Station - premises, not being a service station used for the servicing of or the carrying out of repairs to motor vehicles ... The term includes ancillary activities such as the ... fitting and maintenance of wheels and tyres, automotive electrics, batteries, mufflers, sound systems or suspensions and spare parts for such vehicle and machinery.”

and

“Salvage Yard - Premises used for the collection, dismantling, storage, ..., recycling ... of ... motor vehicles ...”

Facts

1. Mr Simon is the registered proprietor and occupant of the land in question.  It is a block of land of 1050 m²  on which a house stands.  He is a car enthusiast who collects, maintains and improves cars.

1. A complaint received by the Council led to a Development Control Officer, Mr Neylon, visiting the premises on 5 January 1999.  He found nine vehicles parked in the yard, most of them under a sheet of black plastic.  Mr Simon told him that they were mostly American cars which had been on the premises for about a year.  He had plans to store them in a shed he was building at Nanango.  There were also two registered vehicles on the premises, together with a large quantity of car parts and body panels.  A show cause notice was served, alleging that the premises were being unlawfully used as a salvage yard.  A further inspection of the premises on 18 March 1999 revealed that little had changed and on 9 April 1999 the enforcement notice was issued alleging the unlawful use as a salvage yard.  Mr Simon filed a notice of appeal against that notice.

1. Another inspection of the premises on 19 July 1999 by Mr Neylon revealed a similar state of affairs, there being three apparently registered and eleven apparently un-registered motor vehicles in the yard and under the house.  The application for declarations was filed soon after that.

1. Mr Simon raised the argument that he was merely indulging his hobby of restoring motor vehicles and that the planning scheme does not forbid that.  I do not accept that.  A hobby, truly classified as such, is within the definition of “home occupation” and thus is a permissible use in the Residential R2 Zone.  Mr Simon has not obtained the Council’s permission to indulge his hobby, so the use for that hobby is unlawful.  Furthermore, a home occupation is, by definition, an activity carried out within the dwelling unit, not in the yard of the dwelling unit.  I should add that I doubt that the activity which was established by the evidence would qualify as a hobby within the usual meaning of the word.

1. Mr Simon’s attitude, as expressed to me, was clearly much inflamed by what he took to be an unfair attitude of the Council to him.  He compared it with what he believes to be the Council’s leniency towards the developer of land affecting an environmental corridor.  I could not comment on that without being aware of all the relevant facts.  The letter which he tendered did not suggest unusual leniency to me. Then he expressed to me concern about an apprehended threat that the Council would enter his premises to seize his goods and chattels.  In my view it is unlikely that the Council officer threatened to do that and it is more likely that Mr Simon wrongly interpreted something said in the course of a heated conversation.

1. A great deal of time has gone by since the enforcement notice was issued but it seems that it was mostly caused by claims by Mr Simon of problems he was encountering in getting his shed at Nanango finished and also by an injury he suffered.  It is clear that the Council has extended some latitude so far as the prosecution of the declaration is concerned.  Equally it is clear that Mr Simon has not rushed to bring on the appeal.  I do not consider that the Council's attitude has been shown to have been unfair.  I do not think I need decide whether, as the Council suggests,  Mr Simon has been wilfully stringing things out.

1. In evidence Mr Simon said that by the end of May 2000 he had complied with the enforcement notice.  I cannot accept that as being true compliance.  The general tenor of his evidence showed that, over the material time, large numbers of vehicles and vehicle parts had come to and gone from the premises.  He seemed quite unable to say exactly how many vehicles he had dealt with although he conceded that on 25 June 2001 there were four registered cars and two unregistered cars on the premises.  Then Mr Smith, another Council development control officer, observed on the morning of the hearing three vehicles as well as a substantial quantity of car panels, doors and engine parts on the site.  I am satisfied that, whatever the actual number and description of vehicles on the premises may be at the moment, they regularly have exceeded what may properly be tolerated by a responsible Council (which must take into account complaints that a use qualifies as an eyesore and a harbour for vermin) and that there is an identifiable risk that that situation will recur unless restrained.

1. On all the evidence I am satisfied that at the material time, but especially when the enforcement notice issued, Mr Simon was using the premises as a salvage yard so that the notice was properly issued.  It follows that I dismiss Mr Simon’s appeal.

1. The application for declarations seeks a declaration first, that the use of Mr Simon’s premises for the storage of unregistered motor vehicles and motor vehicle parts is unlawful.  I am satisfied that such is the law.  Indeed the declaration need not be limited to “unregistered” motor vehicles, in the light of the definition of “salvage yard” (see para [7] above).

1. The second declaration sought is that the use of Mr Simon’s premises for the purpose of the “restoration” of motor vehicles is unlawful.  On the evidence I consider that what Mr Simon has been doing on the land could properly be described as “restoring” old motor vehicles and I consider that concept to be covered by the combination of “repairs” (in the prohibition of the vehicle repair station use) and “recycling” (in the prohibition of the salvage yard use).

1. I am prepared therefore to make both declarations.  I will hear submission on the proper form of any consequential order.