Smith v Milmerran Shire Council - [2005] QDC 372

[2005] QDC 372

DISTRICT COURT

APPELLANT JURISDICTION

JUDGE ROBIN QC

No BD1359 of 2005

CHRISTOPHER LAWRENCE SMITH Applicant/Appellant

and

MILMERRAN SHIRE COUNCIL Respondent

BRISBANE

..DATE 07/11/2005

ORDER

CATCHWORDS: Appeal to District Court under s 222 of the Justices Act 1886 against convictions by Magistrate - offences against Integrated Planning Act 1997 of failing to comply with enforcement notices requiring appellant to apply for development permits in respect of two houses already constructed - appellant contended that the Planning Act had no application, that the rights of a fee simple owner of land justified the construction without any approval or permit being obtained - appeal dismissed - respondent refused indemnity costs.

HIS HONOUR: Mr Smith has argued his own appeal under s 222 of the Justices Act 1886 against convictions entered by a Magistrate at Pittsworth on the 16th of March this year in respect of two offences under section 4.3.15 of the Integrated Planning Act 1997. The Magistrate found that Mr Smith had failed to comply with enforcement notices issued under section 4.3.13(1)(f) requiring him to apply for a development permit to regularise the construction of two houses on a property which I think is 300 acres or so in the Shire of Milmerran. The land apparently belongs to Mr McTavish. Everything that Mr Smith has done there has been with Mr McTavish's approval; he told the Court he built one of the houses for himself, the other for McTavish.

The buildings exist; as the planning authority, the Council has taken exception to that because no application for any permit was ever made. The original tack adopted by the Council involved proceedings in the Planning and Environment Court premised on the buildings being temporary. That was unsuccessful, the Court of Appeal determining, in Appeal 610 of 2004 Milmerran Shire Council v. Christopher Lawrence Smith, 8th of March 2004, that whether the structures were temporary ones, erected without a temporary accommodation permit contrary to requirement of the shire's planning scheme, or permanent structures, depended on the intention of those who erected them. See page 8 of the Court of Appeal's reasons. The decision is said to be reported at 133 LGERA 144.

The Council adopted a new approach accepting the structures as permanent. So far as the Integrated Planning Act is concerned, it seems clear that they represent "assessable development" within the definition in schedule 10.

That definition refers one to schedule 8. Table 1 in part 1 lists as "assessable development" building work assessable under the Standard Building Regulation, with presently irrelevant exceptions.

The last provision of the Integrated Planning Act to which reference should be made, section 4.3.1, provides that a person must not start assessable development unless there is an effective development permit for it.

It would, one assumes, have been a relatively simple matter for Mr Smith to make application for permits, as the Act required, and as the Council's enforcement notices required. The Council's selected mode of proceeding indicates that there were reasonable prospects of applications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QDC 372
Decision Date: 07/11/2005

CaseChat Overview and Summary

The case of Smith v Milmerran Shire Council involved the appellant, Christopher Lawrence Smith, appealing against convictions entered by a Magistrate in relation to two offences under the Integrated Planning Act 1997. Smith had been found to have failed to comply with enforcement notices issued by the Milmerran Shire Council, requiring him to apply for development permits for the construction of two houses on a property within the Shire of Milmerran. Smith argued that the Planning Act did not apply to his situation and that his rights as a fee simple owner of the land justified the construction of the houses without any approval or permit being obtained. The District Court was tasked with determining whether Smith's arguments were valid and if the convictions and penalties imposed on him were justified.

The court considered the legal issues surrounding the applicability of the Planning Act to Smith's situation and the extent to which the rights of a fee simple owner could be exercised without compliance with planning regulations. The court noted that the Council had taken exception to Smith's construction of the houses as no application for any permit was ever made. The court also examined the precedent set by the Court of Appeal in Bone v Mothershaw, which held that regulation was compatible with the notion of fee simple titles and that there was no feasible way of devising planning and other regulatory arrangements which would easily permit citizens like Smith to withdraw to live as they wish in relatively isolated locations.

The court found that Smith's arguments were not supported by the law and that the Planning Act did apply to his situation. The court also rejected Smith's contention that his fee simple title granted him absolute rights over the land without any regulatory constraints. The court concluded that planning authorities have not been prepared to draw lines defining areas where planning controls do or do not apply, and that Smith's arguments would be unacceptable in an urban context.

The court dismissed Smith's appeal and upheld the convictions and penalties imposed on him by the Magistrate. The court also denied Smith's request for indemnity costs, stating that the points raised were untenable but not significantly different from the point made in Bone v Mothershaw. The appeal was dismissed with costs to be assessed on the standard basis.

The final orders of the court were that the appeal was dismissed, the convictions and penalties imposed on Smith by the Magistrate were upheld, and costs were to be assessed on the standard basis.

Orders