Stahn v Brisbane City Council

[2005] QPEC 60

[2005] QPEC 060

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 954 of 2004

MR GOTTFRIED AND MRS INGRID STAHN         Appellants

and

BRISBANE CITY COUNCIL  Respondent

and

ACER ARCHITECTS  Co-Respondent

BRISBANE

..08/07/2005

ORDER

HIS HONOUR:  This appeal is one by submitter objectors against the council's approval of an application for a development permit for a new house on land which is described in the approval as a caretaker's residence.  The site in question is 369 Waterworks Road Ashgrove and is more particularly described as lot 282 on RP18732.

The subject property is currently improved with an old shop building which is a commercial character building pursuant to the City Plan.  It is currently being used for an office in the rear of that building and for a real estate agency at the front.  The proposal is to construct a new detached residence on the property and it is that approval against which the appeal has been brought.

The grounds of appeal set out, in paragraphs 1 to 9, some of the history relating to the current use of the commercial character building.  Paragraph 10 recites the fact of the subject application and paragraph 11 recites the council's approval.  Paragraphs 12 to 16 set out the substantive reasons for the appellants opposition to the proposed new residence.

In paragraphs 1 to 9 of the grounds of appeal it is pleaded that a development application was made in December 1999, supported by certain material.  The development application was approved subject to conditions against which there was an appeal. 

The final approval was one which was given pursuant to a Court order on 2 August 2000.  That Court order included a number of conditions, including conditions relating to the limitation on the type of business premises that could operate from the existing premises and as to the construction of car parking.  Most relevantly, condition 4 included a condition effectively prohibiting the establishment of a real estate agency within the building.

Paragraph 9 of the notice of appeal then pleads that, in or about December 2003, a real estate agency was commenced.  Those paragraphs do not, in terms, plead that the existing use of the premises for a real estate agency is unlawful but it is clear from other material and from the submissions that is what the appellants contend.

By order of the 25th of May 2005 the following preliminary issue was set down for determination:

"The Court herein determine a preliminary point of law, namely, that the existing use of part of the premises involving the sale, purchase or hire/leasing of real estate is lawful and, as a consequence, paragraphs 1 to 9 of the notice of appeal be struck out."

For reasons which will become apparent, I do not consider that

the question as to whether the existing use of part of the

premises, as involving the sale, purchase or hire/leasing of

the real estate, is lawful is a matter of law only.

The applicant/co-respondent submits that the use is lawful, pursuant to the provisions of the City Plan which came into effect after the Court's approval and that there is nothing in the Court's approval which can take away the rights which are conferred statutorily via the City Plan.

The appellant further submits that in any event the connection between paragraphs 1 to 9 of the notice of appeal and matters of relevance to a determination of the approval or otherwise of the proposed residence is not made out, such that grounds 1 to 9 should be struck out.

City Plan commenced on the 30th of October 2000.  Pursuant to its provisions, the subject land was included in the low density residential area and the existing building on site was nominated as a commercial character building.  The level of assessment for the relevant area was set out in section 5.2.3 of chapter 3 of the City Plan.  Relevantly for current purposes, it includes the following activity as development which is self-assessable:

"Commercial character building activities (except restaurant) where in a commercial character building and complying with the acceptable solutions in the Commercial Character Building Code."

Commercial character building activities are defined in chapter 3 to include an office.  The term "office", in turn, is defined in a way which includes a real estate office.

Reference to the level of assessment table therefore suggests that, upon the commencement of City Plan, a real estate agency could be conducted from the subject commercial character building, provided there was compliance with the acceptable solutions in the commercial character building code.

There is, however, a qualification to that.  The Commercial Character Building Code makes provision for circumstances in which the level of assessment will be other than that provided for in the table.  Relevantly, for our present purposes, it provides that:

"Any building work other than minor building work (which is exempt development) also results in the commercial character building activities no longer being subject to the level of assessment specified on the basis of being a commercial character building, but defaults to the usual level of assessment for the individual type of commercial character building activity in the area in which the site is located."

An office use would otherwise be subject to impact assessment, pursuant to the level of assessment table.

The appellants pointed out that the application, which was the subject of the previous Court order, envisaged some works beyond minor building works.  Counsel for the applicant/co-respondent asserted that those works had been done prior to City Plan and prior to the establishment of the real estate office.  However, those are matters upon which I could not reach a concluded view at this stage.

Assuming that the difficulty was overcome, the use of the premises for a real estate agency would be self-assessable, provided it complied with the acceptable solutions in a commercial character building code.

The acceptable solutions are set out in a report by Mr Ryan, a town planner, who asserts that there is compliance.  Again, however, that is not a matter which I can confidently conclude on the material before me. 

The relevant acceptable solutions include, in relation to car parking, that:

"The proposal does not create a major on-street car parking problem or traffic hazard, or exacerbate an existing traffic hazard."

It is evident from the material before me that the appellants complain of the effect that the real estate agency has had on car parking, but the material before me at present would be insufficient for me to reach a concluded view on a preliminary hearing such as this, as to whether any difficulties arising therefrom amounted to a departure from the acceptable solution.

There was also some reference made to another acceptable solution in relation to hours of operation which apparently,  it is suggested, has not been complied with from time to time.

It is for those reasons that I earlier noted that the question of the lawfulness of the real estate agent office is not merely a question of law but one which also involves matters of fact.  Nevertheless, it is possible to rule on the primary conflict between the parties. 

The appellants primary difficulty with the lawfulness of the real estate agency use in the existing building is that it conflicts with the earlier Court order. 

I accept, however, the submissions of counsel for the respondent and the co-respondent to the effect that non-compliance with the conditions of the earlier Court order does not render the real estate agency use unlawful if it complies with the requirements of the City Plan in relation to the circumstances in which such development is self-assessable development pursuant to that planning scheme.  Where that is the case, the right to carry on such development is conferred pursuant to those provisions and there is no need for the operator of the development which, in this case, commenced after the introduction of the City Plan, to rely upon the use rights conferred by the earlier Court order and is not thereby restricted by the conditions in relation to the types of business premises which could be carried out pursuant to the terms of that order.

That is not to say however, that the existence of the real estate agency and the effects which it has, is necessarily irrelevant to an assessment of the impact of a proposed new residence.  It may be arguable, for example, that given the impacts on car parking of the existing use of the commercial character building, that the additional impacts which would be occasioned by the residence would be undue.  That was a particular example discussed with the appellants in submissions.
It seems to me, however, that if the earlier order, which defined the issues in dispute in the appeal as those issues contained in the notice of appeal, was varied so as to define the issues in dispute as those set out in paragraphs 12 to 16 inclusive of the notice of appeal, that it would be open to the appellants in advancing those issues to point to any aspects of the existing use of the land which were relevant to an assessment of the acceptability of the proposed residence.

Accordingly, I vary the Court's order of the 25th of May 2005 by inserting the words, "in paragraphs 12 to 16 inclusive" after the words, "issues contained" and before the words "in the notice of appeal".  The order is that, "The issues in dispute in the appeal are those issues contained in paragraphs 12 to 16 inclusive in the notice of appeal."

I should note that there was another potential issue which was raised with the parties.  That concerns the proper characterisation of the application and the appropriate level of assessment.  Similar issues are currently being considered by me with respect to another application.  It is possible that, depending upon the proper conclusion, a consideration of the matters which I have determined today could be hypothetical.  However, since none of those issues had been formally raised and the parties were otherwise before the Court, I was prepared to determine the issues, as indeed, the parties urged me to do.

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