Sunshine Coast Regional Council v Ebis Enterprises Pty Ltd

[2010] QPEC 52

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Sunshine Coast Regional Council v Ebis Enterprises Pty Ltd [2010] QPEC 52
PARTIES:	SUNSHINE COAST REGIONAL COUNCIL (Applicant)
and
EBIS ENTERPRISES PTY LTD (ACN 011 060 021) (Respondent)
FILE NO/S:	3591 of 2009
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING  COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	24 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2010
JUDGE:	Griffin SC DCJ
ORDER:	The relief sought by the applicant should be granted.
CATCHWORDS:	PLANNING AND ENVIRONMENT – ENFORCEMENT ORDERS – MATERIAL CHANGE OF USE OR CONTINUED USE OF LAND – whether land used as an “accommodation building” without an effective development permit – whether property properly characterised as a “detached house” – whether land used for an “undefined use” without an appropriate development permit. Meaning of “household” under the Integrated Planning Act 1997.
COUNSEL:	M A Williamson for the applicant S J Keim SC for the respondent
SOLICITORS:	DLA Phillips Fox for the applicant P&E Law for the respondent

1. The applicant, Sunshine Coast Regional Council (the Council) seeks enforcement orders against the respondent who is the owner of land situated at 26 Ascot Way Little Mountain (the land) described as Lot 201 on RP 171269 in the applicant’s local government area and subject to provisions of the Caloundra City Plan 2004.

2. Relief is sought in relation to assessable development, namely the making of a material change of use or continued use of land for the purpose of an “accommodation building” or in the alternative an undefined use of the land which has occurred in the absence of an appropriate development permit.

3. The power to grant relief by this court arises pursuant to s 4.3.25 of the Integrated Planning Act 1997, the proceedings having been commenced before 18 December 2009 and are therefore proceedings under that legislation and not the Sustainable Planning Act. [1] The court must be satisfied that a development offence has or will be committed in order to grant relief and the applicant bears the onus of proof.

   [1] See s 832(1) Sustainable Planning Act.

4. It is in fact accepted by the respondent in effect that if the land is not properly characterised as a “detached house” and more properly described either as an accommodation building or its use is undefined then relief may be granted. Briefly the evidence to this effect is that both in the past and the continued proposed use of the premises will be for short term accommodation of up to 20 people. That short term accommodation is normally two to three days in duration or up to a maximum of 59 days[2].

   [2]            See affidavit of Stanfield, a director of the respondent.

5. It is common ground according to the Council’s records that no development approval has been granted for the use or the making of a material change of use for the land to provide short term holiday accommodation.

6. The matter came to the attention of council by reason of complaints made by nearby residents concerning noise although this is entirely irrelevant for present purposes.

The planning scheme and definitions

1. For the purposes of the relevant planning scheme an “accommodation building” means:

   …a use of premises for residential accommodation which does not
   comprise dwelling units.

   Examples – boarding house, guest house, backpacker hostel, service departments, student accommodation. It is to be noted that “accommodation building” constitutes assessable development in the rural residential settlement precinct. Furthermore and consistent with many other such schemes the definition of the land itself is defined by “use”.

2. If the property is an “accommodation building” or is residually an “undefined use” it is clear enough that the property is subject to assessment by the council.

3. The respondent for its part argues that the property is properly characterised as a “detached house”. Detached house is defined as follows:

   “Detached house” means a use of premises for residential accommodation comprising a detached dwelling unit on one site. The term includes:

(a)	an outbuilding which is subordinate to the dwelling unit;
(b)	a home office; and
(c)	a small secondary dwelling unit being an annexed unit.

In this case the definition of detached house is defined by the notion of “use”.

1. It is relevant to incorporate into the definition of “accommodation building” a further definition which appears at 3.3.1 Other Development Definitions. “Accommodation building” in its definition excludes the use of premises for residential accommodation “which does not comprise dwelling units”. At 3.3.1 “dwelling unit” is defined in this case, not by use but rather by structure in the following terms: “dwelling unit” means any building or part of a building comprising a self-contained unit designed adapted or used for the exclusive use of one household. (emphasis added)

2. Contained within the definition of dwelling unit however is a “use” notion, that is, that the dwelling unit is to be “used” by a household. There appears no doubt that, prima facie at least the definition of detached house fits very comfortably with the actual use to which the house is presently put, that is, a use of premises for residential accommodation comprising a detached dwelling on one site. No reference in this definition is made to temporal issues concerning the period during which the premises are used for that residential accommodation.

3. This however is not an end of the matter. The definitions in section 3.2.1 of which both accommodation building and detached house are defined are subject in my view to a more closely scrutinised category of uses to be found in section 3.2.2 “classes of use” definitions. These definitions are somewhat curiously I think set out not in plain English words but a type of “flow chart”. That chart is as follows:

4. It is immediately obvious from the flow chart that there are connections by lines amongst what I apprehend to be separate “branches” of the residential use class. For example the “multi unit” category is connected to the “short term accommodation” line which has as subcategories accommodation building, bed and breakfast and motel. Whatever purpose that may serve, it is tolerably clear that by virtue of the classes of use definition – residential use class at figure 3.1, residential use classes are categorised fundamentally as either short term accommodation or long term accommodation.

5. In my opinion some meaning must be given to the categorisation of the residential classes in the flow chart.

6. On the evidence before me the use of the land is simply not “long term accommodation”. On all the evidence the use to which the land is put is in fact short term accommodation for stays of two to three days normally but up to 59 days.

7. The combined effect of the definition of “detached house” together with the categorisation of properties under 3.2.2 means that the land cannot be described as a “detached house” because of the short term nature of the accommodation.

8. Although the conclusion to which I have come on the basis referred to above of itself renders a property liable to assessment by the council, it is relevant to consider the question of whether the subject land is either an “accommodation building” or an “undefined use” as contemplated by Planning Scheme.

9. The type of use of the subject property does not fit comfortably within any of the examples given, that is, “boarding house”, “guest house”, backpacker hostel, service departments or student accommodation”. Although it is to be noted that these are mere examples and the definition itself in this way by use of examples cannot be regarded as exhaustive.

10. The land is clearly used as premises for residential accommodation. The question arises whether it is accommodation which does not comprise “dwelling units”.

11. The definition of dwelling unit at 3.3.1 – “Other Development Definitions” describes “a building designed adapted or used for the exclusive use of one household”.

12. The applicant has satisfied me that the “accommodation building” is a building which does not comprise dwelling units. This is so because a “dwelling unit” contemplates a “design adaptation or use” for the exclusive use of one household.

13. Household is not defined; however its meaning is tolerably clear. In my opinion it does not refer to a group of people who come together for the time being under one roof. On the contrary, in my opinion it connotes the common intention of a group of people related or otherwise, to live together on a permanent basis. It is in fact the permanence of the arrangement amongst the group of people that gives true meaning to the notion of household.

14. In this case the evidence is that, although the owner of the land deals with only one person who arranges the accommodation for a group of up to 20 on any particular occasion that group of people is not a “household” whether or not that group lives or lived together in a permanent household arrangement at other premises. The temporary nature of the use of the premises on that land nullifies or neutralises any sense that that group of people renting the premises at 26 Ascot Way is a “household” within the meaning of the Planning Scheme because of the fundamentally temporary nature of the rental. I am satisfied that the use of the premises in the way in which the respondent has used and proposes continued use of the premises is that of “accommodation building”.

15. If however, this is an incorrect characterisation of the use of the premises then the premises on the evidence do not fit within any other definition of use and the premises should therefore in the alternative be regarded as being an “undefined use” of those premises.

Relief

1. The consequence of the findings I have made and the opinions expressed lead to the conclusion that the relief sought by the applicant should be granted.