Stencraft Pty Ltd v. Brisbane City Council
[2002] QLC 16
•28 February 2002
LAND COURT
BRISBANE
28 February 2002
Re: Appeals against a categorisation City of Brisbane Act 1924
Property ID No: 1310876 Local Government: BCC-Brisbane (VC2001-0094)
Stencraft Pty Ltd
v.
Brisbane City Council
J U D G M E N T
| (1) | Background: |
(1) This matter relates to an appeal by Stencraft Pty Ltd (the appellant) against the categorisation of land by the Brisbane City Council (the respondent). The subject land is at 26 and 30 Cairns Street, Kangaroo Point, and described respectively as Lot 19 on RP 880216 and Lot 7 on SL 807308, Parish of South Brisbane. The subject lands have areas of 606 m² (Lot 19) and 4,357 m² (Lot 7), and both were zoned as Special Development under the Kangaroo Point Peninsula Development Control Plan of the 1987 Town Plan.
(2) Those areas have subsequently been redesignated as Precinct Dockside in the Kangaroo Point Peninsula Local Plan within the City Plan 2000. However the City Plan 2000 was not effective at the relevant rateable period now appealed commencing 1 July 1998 and 1 July 1999. The relevant legislation is therefore the Kangaroo Point Peninsula Development Control Plan, as amended at 4 September 1998.
(3) At the relevant dates in 1998 and 1999 Lot 19 was a freehold title, and Lot 7 was a Special Lease. Subsequent to a decision by the Chief Executive of the Department of Natural Resources and Mines (the Chief Executive) on 5 May 1999 to amalgamate the two former separate valuations of the subject lands, the respondent Brisbane City Council determined the categorisation of the combined parcel of 4,963 m² as category B (Commercial Purposes). The appellant has now appealed that category claiming the land should be category 1 (Vacant Land).
Mr IF Bacon appeared for the appellant. Mr RM Needham of counsel, instructed by the Brisbane City Council appeared for the respondent.
| (1) | The history of the appeal - |
(4) It is agreed by both parties that there is virtually no dispute on the facts of the matter. The only dispute lies in their respective understandings of the relevant use of the land. Prior to the amalgamation of the two parcels by the Chief Executive the smaller Lot 19 had been categorised as category 2 (Commercial) and the larger Lot 7 had been categorised as category 1 (Vacant Land). Under the intentions of the Kangaroo Point Peninsula Development Control Plan (the Plan) both Lots 7 and 19 were designated for eventual development for residential purposes. However a large area of Lot 7 is to be maintained as vacant in order to preserve the important vistas of the historical Dockside Development.
(5) Prior to the amalgamation the smaller Lot 19 had been categorised by the respondent as category 2 in order to reflect the existing 10 car parking spaces extant upon that parcel. That earlier decision by the Council had not been appealed by the appellant at that time. It is also agreed that any future development for residential purposes will occur across parts of both Lots 7 and 19.
(6) At the time of the amalgamation by the Chief Executive, the appellant had agreed with the Chief Executive in respect of the level of unimproved value of the amalgamated parcel, presumably making due allowance for the impact of the restriction of the vista. However Mr Bacon advises that an objection against the amalgamation process itself had been refused by the Chief Executive, who advised that the amalgamation was not appealable. Mr Bacon notes that it appeared to be inconsistent for the Chief Executive to amalgamate the freehold parcel (Lot 19) with the leasehold parcel (Lot 7).
(7) Mr Needham advises that he is not aware of the reasons why the Chief Executive elected to amalgamate the two former separate parcels. However he speculates that it was likely to have been the opinion of the Chief Executive that, as any eventual development upon the lands was likely to encompass both parcels, then a single amalgamated valuation better reflected the highest and best use of the land. Mr Needham notes however that it was not within the power of the respondent to appeal against such an amalgamation, and the Council must therefore seek to categorise the amalgamated parcel in accordance with the relevant legislation.
(8) In respect of whether the appellant can appeal against the exercise of discretion to amalgamate the lands, that is a separate issue and not for consideration in the current matter. Mr Bacon now argues that if the subject lands could not be redesignated as category 1, then a more acceptable designation may be for category 4.
| (2) | The Legislation - |
| (2.1) | The development control plan - |
(9) The development control plan provides mainly for residential development throughout the entire area of the plan, although there is a small amount of non- residential development allowable which is in general terms to be compatible with and satisfy the requirements for residential development. (Section 1.5). The subject land falls within special area 1 (Dockside), which is being redeveloped with a mix of residential, entertainment, retail and tourist uses; while preserving, among others, large public plaza areas where vistas are to be maintained. One of those vistas passes in a north south direction to the east of the subject land; while another crosses a large portion of Lot 7 from west to east towards the old worker’s cottage in Cairns Street and on to the Brisbane River. The latter vista provides a major restriction upon building activities upon Lot 7.
(10) Under the development code any development or planting within an area designated as a public vista is to be constrained to no more than one metre in height within a 10 metre wide corridor along the axis of the vista (Section 3.3.2(b)). The impact of that vista is that a strip of about 10 metres in width along the northern side of Lot 7 is to be preserved as open space, free of any development greater than one metre in height. That restricts the height of any proposed landscaping including tree cover. Lot 7 has a depth of about 42 metres from Cairns Street at its eastern end, and about 59 metres at its western end.
(11) The area restrained by the open vista (shown as part of area J), reflects about 975 m² or 22% of the total area of Lot 7. However while the vista corridor is to be retained as open space, the general site cover of any development upon a parcel is not to exceed 40% of the area of the site (Section 3.3.2(a)).
(12) The southern portion of the amalgamated area of Lot 7 and Lot 19 (shown as area D2) is designated for use as residential accommodation to a maximum of 2,800 m², with the total number of dwelling units not to exceed 18. Onsite parking is to be provided for a maximum of 38 cars, with ten of those spaces to be provided at ground level for visitors common to both the development on the southern portion of the subject land (area D2), and also for the adjoining land to the east (area D1), now developed as the St Helena Units (Appendix 1).
(13) The subsequent Kangaroo Point Peninsula Local Plan of Brisbane City Plan 2000 has maintained the preferred development for the Dockside Precinct 4. In that plan, site coverage is not to exceed 40% of the area of a site, and the two nominated public vistas retain a minimum width of 10 metres, with no structural landscape feature greater than one metre in height. Total gross floor space of 2,800 m², a maximum of 18 units and 10 common parking spaces within sub-precinct D2 for use by visitors to both the St Helena Units and future proposed units on sub-precinct D2, repeat the former constraints of the 1987 Town Plan. As noted by Mr Needham there is no difference in intentions of the two development Control Plans. Brisbane City Plan 2000 became effective in October 2000.
| (2.2) | The categorisation - |
(14) The respondent has established land use codes for rating purposes for the budget years 1 July 1998 and 1 July 1999 (Exhibit 3). The latter code has been maintained also for the subsequent period commencing 1 July 2000. The relevant four digit land use codes comprise two primary codes and two secondary codes.
(15) The primary code identify the predominant use of the land, and the secondary code defines either the number of Units or Lots involved, and/or where a lesser use is also involved on the land. In respect of the subject land the respondent has determined the dominant land use code as placing the land in category B (1998) and category 2 (1999). The change of designation merely reflects changes from letters to numerals.
(16) Because of the presence of the common visitor car parking places, and the associated bitumen surfacing, the subject land has been seen to satisfy the criteria for Land Use Code 22 (car park). That code is defined as:
“Car Park – a place used or intended for use for the parking of motor
vehicles where -1. That parking is not merely incidental to and necessarily associated with the use of the premises which includes that place for some purpose; and
2. That place is not a taxi cab depot; and
3. That place may have a prepared bitumen/cement surface and line marking; and
4. Fees may be charged.”
(17) Mr Needham argues that the open space requirements associated with the “Vista” area across the subject land, provides a commercial advantage to the appellant, in that it more easily accommodates the car parking spaces than on the adjoining St Helena unit site (sub-precinct D2). For that reason the provision of the 10 common visitor car parks upon the subject land is seen as a commercial advantage to the appellant, who was formerly the developer of the St Helena units. Those 10 common visitor car parks allow a greater intensity of development upon the St Helena unit site (sub-precinct D1). Because of the above commercial benefit to the appellant, the respondent sees the dominant purpose of the subject land as for car parking.
(18) At the relevant dates the respondent established the following relevant
provisions in respect of differential general rates:
“For Differential General Rates
(a) for the purpose of making and levying differential general rates for the financial year on all rateable land in the City, the Council determines that -
(i) the categories into which the rateable land in the City is to be
categorised are -
• 6 in number; and • identified and explained in the respective columns ‘category’ and ‘general criteria’ of the Differential General
Rating Table; and(ii) the criteria by which land is to be categorised as being in a particular one of those categories are specified in the column ‘Specific Criteria’ of the Differential General Rating Table opposite the identification and explanation of the particular category.
| Category | General Criteria | Specific Criteria |
| 1 | To meet this criteria the | Subject to the General Criteria, |
| dominant purpose for which the | (1) land to which the following land | |
| land is used or intended for use | use codes apply: | |
| must be:- | 01 – vacant urban land, | |
| 04 – vacant urban land, greater than |
(a) residential; and or equal to 2,500 m², (b) for the exclusive use of one family (2) land to which the following land
use codes apply: -Where the land contains a single
unit domestic dwelling and 02 – single unit dwelling, otherwise meets the general 05 – single unit dwelling, large criteria above, then this category home site, greater than or equal to will apply regardless of the 2,500 m², zoning of that land. but does not include a lot on a community title scheme where: Vacant land will meet this criteria only where that land is: (b) the lot is used for purposes other than a single unit dwelling. (a) contained wholly in a
residential zone;
| 2 | To meet this criteria the | Subject to the General Criteria, |
| dominant purpose for which that | ||
| land is used or intended for use | (1) land to which the following Land | |
| must be:- | Use Codes apply: |
(a) carrying out a 01 – vacant urban land
commercial or industrial 04 – vacant urban land greater than activity; and or equal to 2,500 m², (b) include other than
residential purposes. (2) land to which the following land use codes apply: Vacant land falls within this
category where that land is not: 08 – building units 22 – car park (a) contained wholly in a
residential zone. but does not include a lot on a Community Title Scheme where the lot is not used predominantly for
non-residential purposes in accordance with the general criteria.
| 4 | To meet this criteria the | Subject to the General Criteria, lands |
| dominant purpose for which that | to which the following Land Use | |
| land is used or intended for use | Codes apply: | |
| must be: | ||
| 03 – multiple dwellings |
(a) multi-residential; and 08 – building unit (b) used on a permanent or
semi-permanent basis.It also covers land on which duplex dwellings and more than one dwelling exist and a lot on a group title, building units or community management plan which is divided into and used as flats.
| 6 | Applies only where land does | Land not included in: |
| not fall within categories 1, 2, 3, |
4 or 5. category 1
category 2
category 3
category 4 or
category 5
(19) The primary use code identifies the predominant purpose of the use of the land. The land use codes direct as follows:
“The criteria for predominant use should take into account the economic activity together with the visual and spatial aspects. Area is not necessarily the basis for determining the predominant use. The predominant use may be determined and applied during the construction period and will be identified by its future land use code followed by a secondary land use code of 01.”
(20) It is the policy of the respondent to seek to identify the use of lands by the objective criteria of the actual commencement of building operations upon the land. This practical policy is followed in view of the many development applications which do not come to fruition, for whatever reason. The respondent therefore does not seek to determine the intentions of each developer, but relies upon the commencement of a particular development. Mr Needham notes that it is for this reason that it has not been seen possible to include the subject land in category 4.
(21) Mr Needham further clarifies the respondent’s policy in respect of vacant lands designated for residential purposes. He advises that such lands are initially categorised as category 1 until the land is developed for multi residential purposes. However, he argues that as the subject land is no longer vacant, then its use for car parking purposes (land use code 22) would appear to correctly identify its current use.
| (3) | The use of the land - |
(22) Before considering the current use of the subject land, it is important to understand the rights of ownership extant in that property. The freehold title of Lot 19 places no additional limitations upon its use beyond those encumbered in the existing planning legislation. However the nature of the Special Lease involved in Lot 7 conditions the future use of that parcel. By Special Lease of 28 November 1995 that latter parcel is held under a lease for 8 years for the purpose of development for mixed density residential development.
(23) The lessee (appellant) is also required to ensure that the use and development of the land conforms to the existing Development Control Plan (Condition M76); and to construct residential buildings to a value of not less than $2.3 million (Condition M81(a)). Upon satisfactory completion of the above conditions, the lessee is then entitled to purchase the freehold title to the subject land at a fixed cost of $680,000 plus any CPI increases. (Condition M76).
(24) While it is not a matter directly relevant in the current appeal, it is noted that the appellant, subsequent to the relevant dates, has given notice of his intention to develop the subject lands for mixed residential purposes. Evidence was provided of a notice advertising intentions to develop eight units upon the land; and it is agreed that a later development application for eighteen units now lies before the respondent for approval.
(25) Mr Needham however argues that while the policy of the Development Control Plan indicates the respondent’s planning intentions for the future use of the subject land as multiple residential purposes, under the Integrated Planning Act 1997 there remains scope for another type of use, subject to the consent of Council. For that reason the respondent adopts its current policy of categorising the land in accordance with the evidence of development actually commenced upon it.
(26) It is agreed by the parties that a bitumen sealed car parking area has been developed upon the smaller Lot 19. Those ten car parking spaces are designated by signs directing their purpose to be for visitor parking for the adjoining St Helena apartments. Those ten common car parking spaces are also protected by an easement in favour of the respondent, to ensure continuance of the parking provision. Prior to the amalgamation of Lot 7 with Lot 19, the former had been categorised as category 1 (Vacant Land), and the latter as category 2 (Commercial). The respondent argues that the current visitor car parking spaces are not incidental to, or necessarily associated with, any development upon the balance of the subject land. For that reason Mr Needham argues that the car parking areas do not exclude the use of Land Use Code 22 (Car Parks).
(26) Because the balance of the subject land is undeveloped, Mr Needham further argues that the dominant use, in fact its only current use, must be for the car parking purposes. He notes that the fact that the parking fees are not charged to St Helena apartments, does not conflict with Land Use Code 22, as part 4 of that code directs only that “fees may be charged”, and is therefore neutral in its directions.
(28) Mr Bacon questions the respondent’s conclusion that some special commercial advantage had been received by the St Helena apartment development in respect of the 10 common visitor car parking spaces upon Lot 19. Mr Bacon notes that the visitor parking related to other than just the subject Lot 7. Mr Bacon also queries whether the bitumen surfacing constitutes a “structure” under the legislation. He also notes that the terms of the Special Lease restrict any charges for the use of the common car parking spaces, as any car parking development must be restricted in height to a maximum of one metre.
(29) Mr Bacon further questions the reasonableness of the respondent’s decision to charge rates upon the amalgamated Lots 7 and 19, when clearly car parking on the balance of Lot 7 was unlikely to be approved by the respondent. He notes that the intentions of all parties involved, and the existing planning legislation, sees the subject lands to be for residential purposes, and not for a car parking facility. Mr Bacon further notes that charges for the 10 common car parking spaces on Lot 19 are prohibited under Clause 1 of the easement in favour of the respondent.
(30) Mr Bacon in particular argues that the dominant use of the subject land is currently as vacant land, with only a small area devoted to the 10 common car parking spaces. Based upon that classification Mr Bacon argues that the dominant purpose establishes the subject land as vacant land, and therefore capable of categorisation under category 1 (Vacant Land).
Decision: this Court (s.89), and the Court may either set aside the categorisation and include the land in a different category, or disallow the appeal. (s.91(1)).
(31) Under the City of Brisbane Act 1924 the respondent is charged under section
81 with establishing criteria and categories for the levying of rates. The relevant
categories may either be identified by the Council, or by the Chief Executive
(Valuations) under the Valuation of Land Act 1944, at the request of the Council
(section 82), and in such manner as the Council considers appropriate (s.83(2)).
(32) In respect of the decision to amalgamate the two separate parcels (Lots 7 and 19), that discretion rests entirely with the Chief Executive under s.34(1) which states:
“34(1) Unless the chief executive otherwise directs, there shall be
included in one valuation -
(a) several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are left to 1 person; (2) However, any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation and which may respectively be lawfully held under separate ownerships.”
(33) Presumably the Chief Executive has determined that as Lots 7 and 19 are held by the appellant, and the car parking spaces erected upon the land are generally not taken as satisfying the meaning of a building, then a valuation as a single parcel is appropriate. It is noted that the word “building” may refer to a permanent fixed thing built for occupation; while “occupation” may refer to the taking of space, and thus not exclusively related only to buildings for habitation. Without understanding the background to the Chief Executive’s decision, such considerations are merely speculation. However the use of the word occupation in relation to the word building, tends to imply the use of the building for the purpose of residence, and relates to something more than merely a legal possession of the land. (Stroud’s Judicial Dictionary 4th edition, Sweet and Maxwell, page 1813).
(34) In respect of amalgamating for valuation purposes the freehold land (Lot 19) with the leasehold land (Lot 7), it is noted that s.14(1) of the Valuation of Land Act 1944 directs that, for the purpose of deciding the unimproved value of land that is not granted in fee simple, the land is taken to be land granted in fee simple. It is further noted that under s.14(2) of that Act any restriction imposed upon the subject land is to be ignored for purposes of determining the unimproved value of the land.
(i) The current use of the land -
(35) I turn then to the question of whether the dominant use of the amalgamated lands may be taken to reflect vacant land under the legislation. I note that the word “vacant” is taken to mean empty or unoccupied. (The Shorter Oxford English Dictionary). I note also that land use codes 01 and 03 (Vacant Urban Lands) are specified as land “upon which no structure is erected and which is being put to no use”. The common understanding of the word “structure” may be taken to refer to the whole of the essential part of something. On that understanding of the land use codes, the existence of a common visitor car park may be taken to satisfy the meaning of a structure for this matter.
(36) Clearly then the development of the 10 common car parking spaces, with its sealed paving areas, precludes any interpretation of the land as being unoccupied. I would therefore agree with Mr Needham that the amalgamated lands cannot be taken as vacant lands for the purpose of categorisation.
(37) On that basis the remaining criteria for category 1 refers to land to be used as a single unit dwelling for the exclusive use of one family. That does not reflect the intended purpose for the subject land, and I reject category 1 as a possible categorisation.
(38) I turn then to the respondent’s argument that the subject land should be included in category 2, the dominant purpose of which is for commercial activity of a car park. In this matter I note that there is no need to pursue the meaning of dominant use of the subject land, as in fact the common car parking spaces are the only current use of the land. However the existence of the 10 common car parking spaces establishes the intentions of the appellant for the development of the amalgamated subject lands. In my opinion it would be unreasonable for the respondent to exclude the subject lands from being classified as vacant lands for the purpose of categorisation; and then to reject that the development of the land has already commenced.
(39) The question then to be answered is for what purpose does the common car parking spaces exist? If, as argued by the respondent, those common car parking spaces are intended solely for the use by visitors of the adjoining St Helena apartments, then guidance may be found from Land Use Code 22.
(40) In respect of Land Use Code 22, I accept that the optional nature of section (4) defines that fees may be charged; however that does not preclude considerations for this matter. While the appellant is required to provide free access to the common car parking spaces, the requirement to charge fees under Land Use Code 22 is not mandatory. A similar conclusion occurs in respect of the need for a bitumen surface and line marking for the car parking spaces.
(41) Of more relevance, in my opinion, is the requirement of Land Use Code 22 “that parking is not merely incidental to and necessarily associated with the use of premises” upon the subject land. In seeking understanding of the meaning of “incidental” to the use of the subject lands, I note that may refer to a subordinate event or an ancillary use of the land. I note that in respect of a work or business, an ancillary work describes something pertinent to the purpose for which the business is carried on. (Green v Britain [1904] KB 356, per Matthews LJ).
(42) In respect of the 10 common car parking spaces the question is whether those are incidental solely to the adjoining St Helena apartments; or also incidental to the future development of the multi-unit residential development proposed for the subject land. In seeking guidance on that matter I note that the Development Control Plan (Appendix I), and the terms of the Special Lease for Lot 7 (condition M76), both direct that the 10 common car parking spaces are to be preserved for visitors to both the St Helena apartments and also the future residential development on the subject land.
(43) I note also that in the registered easement over the car parking spaces in favour of the respondent, clause 1 provides for access to park up to 10 motor vehicles. That use of the words “up to” indicates, in my opinion, the joint common sharing arrangements of the common visitor car parks. They are common to both parcels of land. On that basis I see those common car parking spaces as incidental to and necessarily associated with the future development of the subject land. For that reason I reject that Land Use Code 22 has direct relevance to the amalgamated subject lands.
(44) If I then accept that the car parking spaces are directly incidental to the residential use of the subject lands, then those lands cannot be interpreted to involve other than residential purposes. On that basis I reject category 2 as relevant for the subject land.
(45) I turn then to category 4 and note that it is agreed that the future intended use of the subject land is for multiple dwellings for residential purposes. Having already established that such developments may be construed to have commencement with the establishment of the 10 common car parking spaces, I conclude that it would be consistent for the respondent to categorise the subject land as category 4 at the relevant date of 1 July 1999. By similar analogy I also believe that the subject land should be category E at 1 July 1998.
Conclusion:
(46) Considering the evidence as a whole, I determine that the subject land should
be category E for the period commencing 1 July 1998, and as category 4 for the
period commencing 1 July 1999.
NG DIVETT
MEMBER OF THE LAND COURT
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