Sunshine Coast Regional Council v Owners of Lots 1-40 on SP115731 at Noosa Lakes Resorts
[2013] QPEC 13
•26 April 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sunshine Coast Regional Council v Owners of Lots 1-40 on SP115731 at Noosa Lakes Resorts & Anor [2013] QPEC 13
PARTIES:
SUNSHINE COAST REGIONAL COUNCIL
(Applicant)
V
OWNERS OF LOTS 1-40 ON SP115731, LOTS 41-68 ON SP115743 & LOTS 69-94 ON SP118002 AT NOOSA LAKES RESORT
(First Respondent)
And
BODY COPORATE FOR NOOSA LAKES RESORT COMMUNITY TITLE SCHEME 26495
(Second Respondent)
And
SN NOOSA PTY LTD ACN 151341052
(Third Respondent)
FILE NO/S:
D152/2012
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
26th April 2013
DELIVERED AT:
Maroochydore
HEARING DATE:
5th April 2013
JUDGE:
Robertson DCJ
ORDER:
I declare that:
It is a requirement of the development approval applying to the Lots that the ground floor of each Lot cannot lawfully contain kitchen facilities, which include any equipment used for the preparation and cooking of food, but does not include facilities usually found in a motel room such as tea making equipment, electric jugs and a bar fridge.1.
The development approval current for Noosa Lakes Resort is for:2.
94 Lots (each having as an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); anda.
Not for 188 self-contained dwellings.b.
Condition 8 of the development approval:3.
is relevant and reasonably required within the meaning of the repealed Local Government (Planning and Environment) Act1990. a.
b. applies to the whole of each Lot.
CATCHWORDS:
LOCAL GOVERNMENT – TOWN PLANNING – USE APPROVED IN PERMIT – whether classification of the buildings is 94 lots or 188 self-contained dwellings. Whether it is a requirement of the developed approval applying to the Lots that the ground floor of each Lot cannot lawfully contain kitchen facilities. Whether condition 8 of development approval is relevant and reasonably required within meaning of the repealed Local Government (Planning and Environment) Act 1990 an if it applies to the whole of each Lot.
Legislation:
Building Act 1975 (Qld)
Integrated Planning Act1997 (Qld)
Local Government (Planning and Environment Act)1990 (Qld)
Cases:
Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318
Hawkins & Izzard v Permarig Pty Ltd and BCC (1) [2001] QPELR 415
Wise v Maroochy Shire Council [1999] 2 Qd R 566
COUNSEL:
Mr Sinclair for the Applicant
First respondent self-represented
Mr Cooke for the Second Respondent
Mr Nicolson for the Third Respondent
SOLICITORS:
Wakefield Sykes for the Applicant
Gadens Lawyers for the Second Respondent
Hynes Lawyers for the Third Respondent
The Court is asked to determine a number of preliminary legal issues arising from a town planning permit given by the former Noosa Shire Council on 4 March 1998. The Court’s determination of these issues will influence the conduct of the litigation, which is an application by the Sunshine Coast Regional Council (“the Council”) for a declaration that the use by any Lot owner in the Noosa Lakes Resort at 3 Hilton Terrace, Noosa is unlawful if the ground floor of that Lot has kitchen facilities. The application also seeks a declaration relating to classification of the buildings within each Lot and enforcement orders. For the purposes of the preliminary argument, no witnesses who have provided affidavits were required for cross-examination and no discretionary issues arise.
The preliminary argument focuses on the proper construction of the Town Planning Consent Permit number 11895 TC (“the permit”) dated 4 March 1998 namely:
“USE APPRVOED IN THIS PERMIT:
Resort, indoor entertainment/function room (conference centre) and ancillary facilities (multiple dwelling of 94 units and accommodation building of 94 units) and:
‘Condition 8 –
The plans submitted for Building Approval are to comply with the following requirements:
8.1 The accommodation units are to be designed as Class 2 Buildings, with the applicable fire separation and egress requirements.’”
Relevant to the arguments presented is condition 7 of the permit which is relevantly in these terms:
“Submission to and approval by Council of building plans…………………… in accordance with Plans 9707-121, sheets 1-14 dated August to September 1997, prepared by Matovic Partnership Pty Ltd…”.
Only one of the owners (from the first respondent) appeared to be heard on the preliminary points. Mr Stockwell is the owner of Lot 45 which he purchased in January 2007. He is a qualified town planner presently employed as manager in the Department of State Development Infrastructure and Planning. The second respondent was represented by counsel, as was the third respondent, which holds the management rights to the resort pursuant to agreement.
The preliminary issues are:
a. Whether it is a requirement of the development approval applying to the Lots that the ground floor of each Lot cannot lawfully contain kitchen facilities.
b. Whether the development approval is for;
(i) 94 Lots (each has an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); or
(ii) 188 self-contained dwellings.
c. Whether condition 8 of the development approval;
(i) is relevant and reasonably required within the meaning of the repealed Local Government (Planning and Environment Act)1990 (“the P&E Act”);
(ii) applies to the whole of the whole of each Lot or only to the downstairs portion.”
The third respondent’s only interest is in asking the Court to determine the meaning of “kitchen facilities”, a term not defined in the Noosa Planning Scheme in force at the time of the approval. The Body Corporate’s interest is in issue b.. Mr Stockwell is the only respondent to argue issue c. He is also a contradictor in relations to issues a. and b.
The Background
The site was formally a motel which was demolished. The original development application approved by Council on 17 February 1997 was for 94 town houses, each town house to be occupied by a single family unit.
After the initial application, consent was sought and obtained. under the repealed P&E Act. to allow separate occupation of the downstairs area. Approval was sought to allow “dual key” entry to each town house so that the downstairs bedroom could be separately let to people attending the conference centre. An expanded conference centre was also part of the application.
As I have noted, the permit was granted on 4 March 1998.
The Plans referenced in condition 7 show 94 town houses with generally one or two bedrooms, a living area and a kitchen and en-suite upstairs and one bedroom a living area with an ensuite downstairs. They are built as 24 blocks of 4 town houses each.
What was in fact built was town houses with the fire separation and egress requirements for town houses (Class 1) not units (Class 2) i.e. in accordance with the original plans.
Each town house has one water connection, one power connection, a single water meter for upstairs and downstairs, a single waste receptacle located outside, and a shared laundry on the ground floor and bathroom and toilet on each floor.
Since completion owners have done three things with their units:
a. live-in or let the whole town house as one family unit;
b. used the top floor of the town house for long term accommodation and let the downstairs area for conference or other short term accommodation use;
c. let the downstairs for use by long term tenants as a place of residence independently of the upstairs use.
Some of these later owners, or their tenants, have installed or used cooking facilities especially those with long term tenants and some fires have occurred.
Fire is of particular threat where there are unrelated people above and below one another, cooking and sleeping at separate times and where the fire separation between each of them and between the next town house is not generally appropriate for unit living.
In relation to the preliminary issues, Council seeks the following orders:
1. It is requirement of the development approval applying to the Lots that the ground floor of each Lot cannot lawfully contain kitchen facilities;
2. The development approval current for Noosa Lakes Resort is for:
a. 94 Lots (each having as an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); and
b. Not for 188 self-contained dwellings.
3. Condition 8 of the development approval;
a. is relevant and reasonably required within the meaning of the repeal Local Government (Planning and Environment Act) 1990;
b. applies to the whole of each Lots.
The body corporate makes no submission about orders 1 or 3. In relation to order 2, it seeks the following order:
“The development approval is construed as for both:
(i) 94 lots (each having as an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area) for the purposes of the Integrated Planning Act 1997; and
(ii) 188 dwellings, for the purposes of the Building Act 1975.”
As I have noted, the third respondent asked only that the Court provide some definition of “kitchen facilities” in order 1. Mr Stockwell effectively argues (in a form of cross application filed 21 November 2012) that the use of any Lots as incorporated in the definition of “accommodation building” in the superseded scheme is lawful, and that condition 8 is neither reasonable nor relevant.”
Relevant Legal Principles
It is not controversial that relevantly to the determination of the preliminary issues here the principles as distilled form the cases are as follows:
a. The rights of land use pursuant to an approval are to be determined from the terms of the approval itself which may include expressly, or by necessary implication, other material;
b. The approval “speaks” according to its written terms including other incorporated material “construed in context but having regard to its enduring function”;
c. Any lack of clarity or certainty is the responsibility of the Council and it must take the consequences of any failure to specify accurately, or in detail, what is consented to as well as any conditions to which a consent is subject;
d. Where plans are expressly incorporated in the conditions of a permit, these can show the use and not just the form of use approved;
e. If the approval is ambiguous, it should be construed in a way that places the least burden on the land owner;
f. The Court is not dealing with an Act of Parliament. An over technical approach to the meaning of the language used “in approvals and conditions” is not called for.
These principles are derived from cases such as Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] Q.P.E.L.R 318, and Hawkins & Izzard v Permarig Pty Ltd and BCC (1) [2001] Q.P.E.L.R. 415 and the authorities cited therein.
Discussion
In relation to issue b, the proposition advanced by the Body Corporate, that on a proper reading of the permit, the use permitted can be construed as 188 dwellings, simply does not stand up when regard is had to the Plans referred to in condition 7. The Plans clearly provide for 94 town houses with one or two bedrooms, a kitchen and ensuite and living area upstairs and one bedroom and ensuite and living area downstairs. It is true that the words in brackets at the end of the use description is confusing given the description of two use definitions which seem to conflict.
In the Noosa Planning Scheme in force at the time of the approval, relevantly the terms “Accommodation Building” and “Multiple dwelling” were use definitions. “Accommodation Building” was defined as –
“Any premises used or intended for use for two or more accommodation units and which provides common facilities. The term includes a boarding house, a guest house, hostel, motel or serviced rooms but does not include bed and breakfast accommodation.”
“Multiple dwelling” was defined as –
“Any premises used or intended for use for 3 or more dwelling units. The term does not include accommodation building, …, duplex dwelling, group housing development, …, hotel … as herein defined.”
.
“Accommodation unit” is defined in the Explanatory Definitions in the Planning Scheme as –
“Part of a building used or intended to be used as a dwelling place for the exclusive use of one family, but which is not a dwelling unit due to the absence of a kitchen and ablution facilities.”
Having regard to the Plans the use could not sensibly be construed as relating to 188 dwellings as part of 94 Lots. “Dwelling unit” is defined in the Explanatory Definitions as – “A building or part of a building used or intended for the use as self-contained dwelling place for the exclusive use of one family.” The use definition of Accommodation Building is apt to describe what is on the ground, constructed substantially in accordance with the Plans including “two or more accommodation units.”, which fits well with the construction contended for by Council.
The permit as a whole (including condition 2) which links “approval of the accommodation units…” to “the conference centre being constructed” cannot be construed as the Body Corporate submits. Although not necessary to construe the permit, the result I favour is completely consistent with the amended application, which lead to approval of the dual key arrangement to provide accommodation for conference attendees. The down stairs section of each unit is more like a motel type unit which may contain facilities for the consumption of food prepared elsewhere and does not require cooking. This explains the sink downstairs and the separate entry design.
It follows that use approved should be construed as:
“Resort, indoor entertainment/function room (conference centre) and ancillary facilities (94 multiple dwellings each containing an accommodation unit).”
It follows from my reasoning above, and particularly having regard to the permit as a whole that Mr Stockwell’s submission as to the proper construction of the permit having regard to the definition of “accommodation building” cannot be accepted.
The issues raised by the Body Corporate about financial burdens on residents if the Court did not accept its “188 dwellings” argument, are not relevant to the preliminary issues. These may be extremely relevant to discretionary considerations if Council were successful in ultimately obtaining the declarations sought in paragraph 3 of its Originating Application filed 17 August 2012.
Issue a.
“Kitchen” is defined in the Macquarie Concise Dictionary as “a room or place equipped for or appropriated to cooking”. Kitchen facilities include ovens, cooking tops or any form of cooking implement.
I agree that when read as a whole, including the Plans referred to in condition 7, the permit does not provide for kitchens in the downstairs unit whereas ablution facilities are. This accords with the construction favoured by the Court in relation to issue a. particularly having regard to the explanatory definition of “Accommodation Unit”.
Council is clearly entitled to the order sought in paragraph 1 of its draft order. To assist Mr Nicholson’s client, and subject to the comments of the other parties including Council, I would add to the draft, after deleting the full stop, the words “… which include any equipment used for the preparation and cooking of food, but does not include facilities usually found in a motel room such as tea making equipment, electric jugs and a bar fridge”.
Issue c
As I have noted, the only contradictor on this issue is Mr Stockwell.
The concept of “relevant or reasonably required in respect of the proposal…” in section 6.1(1) of the repealed P & E Act was discussed by the Court of Appeal in Wise v Maroochy Shire Council [1999] 2 Qd. R 566. Clearly here condition 8 was imposed as a response to the dual key arrangement associated with the conference centre, bearing in mind that the original approval for 94 town houses approved on 17 February 1997 did not contemplate separate occupation of the down stairs area, and was for 94 standard Class 1 town houses for use by one family unit. Condition 8 was an appropriate planning response to the development proposed as amended. There is no conflict with the Building Act 1975 and the arguments advanced by Mr Stockwell are more relevant to the discretionary issues that may arise if Council was successful in obtaining the declaration sought in paragraph 3 of its Originating Application.
The orders are:
1. It is a requirement of the development approval applying to the Lots that the ground floor of each Lot cannot lawfully contain kitchen facilities, which include any equipment used for the preparation and cooking of food, but does not include facilities usually found in a motel room such as tea making equipment, electric jugs and a bar fridge.
2. The development approval current for Noosa Lakes Resort is for:
a. 94 Lots (each having as an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); and
b. Not for 188 self-contained dwellings.
3. Condition 8 of the development approval:
a. is relevant and reasonably required within the meaning of the repealed Local Government (Planning and Environment) Act1990.
b. applies to the whole of each Lot.
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