Wallis v Brisbane City Council
[1995] QLC 2
•24 February 1995
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BRISBANE
24 February 1995
Re: Appeal against categorisation of land for
rating purposes -
City of Brisbane Act 1924.
VC94-571.
Jeremy R and Marianne Wallis
v.
Brisbane City Council
This is an appeal against the decision of Brisbane City Council (the Council) disallowing an objection by the owners/appellants to the categorisation of land situated at 602 Lower Bowen Terrace, New Farm.
For the purposes of levying differential general rates for the City of Brisbane for the financial year commencing 1 July 1994, the Council by resolution adopted six categories for the purpose and specified the criteria by which rateable land was to be included. The rate notice issued in respect of the appellants' land (the subject land) showed the land as being included in Category B whereas the appellants contend that the land should be included in Category A - more specifically because in their opinion the use of the land falls under criterion (Land Use Code) A-02 which covers a single unit dwelling house use where that use is predominantly for residential purposes. The category in which the land has been included in "general terms is intended to cover all commercial or industrial properties where the dominant purpose for which the land is used or intended for use is other than residential purposes ..." (Statement of General Intent). The relevant criterion used in making the decision to include the land in Category B is Code 48 - sports club/facilities. In a document published by the Council in explanation and use of land use codes, Code 48 is defined as including - "All sporting/fitness/health/bowling clubs with or without a liquor licence run as a business". The resolution in paragraph "A" of the document after determining categories, the general intent of each category and adopting specific criteria, provides in paragraph (d) - "directs that in applying the criteria so set out in relation to any parcel of rateable land regard should be had to the general intent applicable to the particular category of land". The general intent of Categories A and B is as follows:
| GENERAL INTENT | CATEGORY A In general terms covers all land where the dominant purpose for which that land is used or intended for use is a residential purpose. The use of premises for what under the Town Plan is a home activity in this context is to be regarded as part of the residential use of those premises. In the case of land on which there is erected a single unit domestic dwelling, to the extent that the dominant use of the land is residential, it falls into this category regardless of the zoning of the land. Where the land is used for single unit domestic dwelling purposes and some other purpose, then the dominant purpose for which the land is used or intended for use will be ascertained by reference to the visual, economic and spacious aspects of the uses. Vacant land will only fall within this category where it is wholly residential zoned land. | CATEGORY B In general terms is intended to cover all commercial and industrial properties where the dominant purpose for which the land is used or intended for use is other than residential purposes. The use of premises for what under the Town Plan is a home occupation and for associated residential purposes in this context is to be regarded as a use of those premises only for a home occupation. In the case of land on which there is erected a building or buildings used or intended for use for a purpose other than single unit domestic dwelling, flats, retirement villages or agricultural purpose where the visual economic and spacious aspects are normal to that of a commercial or industrial usage the land falls within this category. Vacant land falls within this category where it is not residential zoned land. |
In the hearing of the matter both Mr and Mrs Wallis gave evidence. Evidence was given on behalf of the respondent by Mr JD McHugh, Manager, Finance Division, who was the officer authorised by the Resolution for the purposes of determining objections to categorisations and by Mr LA Kenny and Mr AJ Croke who are inspectors/investigators in the employ of the respondent.
The determination of Mr McHugh in disallowing the objection gives these reasons:"Following an inspection of the property on 15th August 1994, which revealed two (2) buildings on the land in the assessment, one being partially used as a residence and partially to house male and female toilets and the other used to carry out the business of Iyengar Yoga Instruction for profit ... "
The subject land is a rectangular shaped parcel of 713m2. Photographs depict an old Queenslander-type residence on the block with a solid brick building at the rear. Access to the building at the rear is gained by the driveway to the side entrance of the dwelling and thereafter by pathways. The statement of evidence of the appellants says that -
"...prior to 1988 the property was used for the dual purpose of a Squash Club and private residence.
Since 1988 when there was a change of ownership no Squash has been played on the property. My wife and I do however conduct private yoga classes on the property.
These lessons comprise one to six persons at a time for a maximum of three hours per day. That is two classes of an hour and a half each day.
These lessons could be likened to a man and wife giving piano or singing lessons from their own home, and to my knowledge the rating category of their private residence in these circumstances is not affected.
As this is a relatively minor use of the property compared with the predominant use as my family home I contend that the property is predominantly residential and I request the Council to correctly assess my property at 602 Lower Bowen Terrace under Category Residential A.0.2, should the Council however refuse because they consider Yoga a Sport and put this forward as a reason for the present rating of the property they could only do so from a complete misunderstanding of the nature of Iyengar Yoga. "
The toilets referred by Mr McHugh in the downstairs area of the dwelling occupy about 8m2, are marked "male" and "female" and are used by students. The residence occupies about 156m2 whilst the rear brick building covers approximately 100m2. Trees and shrubs are evident in the surrounds. Any person who has played or seen Squash televised would readily appreciate that such buildings are of solid construction with high ceilings, high ventilation windows, and have gallery and changing rooms. The gallery of this building is now used for a library, the ground floor area has two changing rooms, varied equipment, with instruction/information boards, etc. Beside the driveway gate is a sign saying no more than "Yoga" which Mrs Wallis agrees is there also to direct students to the rear building via the driveway/pathway. The activity is listed in "Yellow Pages" under "Yoga" as "Yoga Health Studio". The latest edition of the "City News" (February 16) carries an advertisement under the heading of "Health Fitness and Wellness". The name of the studio appears as listed in "Yellow Pages" including a statement saying "Yoga Courses Are Available". The philosophy of the appellants is dealt with in an article in the same issue -
"Yoga bears healthy life
New Farm's Yoga Health Studio offers teaching in the postures and breathing techniques of Yoga that give the energy to enjoyably lead life to the full.
This is the philosophy of Marianne and Jeremy Wallis, who operate the studio.
'Time spent alone in practice puts mundane issues in perspective and builds a fund of inner strength,' Mr Wallis said.
He said yoga postures helped develop firmness, fitness, pliability, strength, poise, balance, alertness and mental peace.
Yoga Health Studio is at Lower Bowen Terrace and has various classes throughout the week as well as children's classes on Saturday. "
Classes are held twice daily for 1.5 hours with one class on Saturday and one on Sunday. Students per class average about 4/5 (varying from 1 to 12) with returns of the order of $400 to $500 per week.
The likening by the appellants of the activity to that befitting "home activity" or "home occupation" in their notice of objection was not pursued on appeal and has no support in law under the Town Planning definitions. The thrust of the conduct of the appeal is found in these four paragraphs:"1.The Brisbane City Council states that one of the buildings contains male and female toilets for the use of the second building. We occupy the residence with our children and there is one toilet upstairs and a male and female toilet under the house.
This is used by ourselves and also used by visitors to the property from time to time. The conduct of yoga as referred to in the 31st July 1994 objection is a science and does not fall under any of the categories for definition of indoor sport and recreation. Persons who attend yoga classes do from time to time use the facilities.
2.The second building was on the property when we purchased it and was conducted then as a squash court. Immediately on settlement it ceased to operate as a squash court and we prepared for yoga classes. It was never the intention to conduct it as a squash court nor have we. We are concerned that the Council still perceives it as a squash court and/or a sport building, notwithstanding this use.
3.The objection of the 22nd August refers to a profit and in fact we do not make a profit from the classes. We have already referred to this issue in our letter of 31st July 1994.
4.The property is used primarily as a residence and yoga classes are also attended by members of the public from time to time but it is not the primary use of the land. "
I return then to the statement of intent, the relevant parts being the last sentence of the second paragraph in respect of Category A and the second paragraph in respect of Category B. In the former category the dominant purpose between single unit domestic dwelling purposes and some other purpose is to be determined by reference to "the visual, economic and spacious aspects of the uses". In the context of - (a) space, building and amenities set aside for the advertised use for "yoga" is substantial; students/participants in the course have their own change rooms, toilets, access, etc., and whilst the owners/appellants may also make use of these facilities, for example, the downstairs toilets such use in my opinion is incidental to the use of the area for business purposes. (If there is any doubt about that consider the converse); (b) the economics of the business is by no means insignificant with returns which would exceed a rental that may be derived from the letting of the residence; (c) the visual aspects with separate buildings, identification sign which also serves the purpose of directing students to the rear building separate and distinct from the pathway to the front door of the residence and the aspect of the rear building point to the conclusion that the activity conducted on the premises is of a significant commercial nature. In these circumstances it is a matter of weighing all the facts and circumstances of the activity and it is the cumulative effect which is weighed in the balance. The blending of the test laid down in the Resolution for determining the issue with the facts of the case prove in my opinion that the dominant purpose for which the land is used is for business or commercial purposes and not for single unit domestic dwelling house purposes. Putting then the facts of the case against the test laid down in the Resolution for determining whether the visual, economic and spacious aspects are normal to that of a commercial usage, I would have to answer in the affirmative. It was submitted by the appellants that Land Use Code - B48 -was inappropriate in that "Yoga" was a science and whilst the practice of "Yoga" has an effect on a person's physical fitness, health and wellbeing, it was not strictly correct to classify the activity as a fitness or health activity. The alternative Land Use Code which was the subject of some discussion during the hearing (B-58-Education) although having no practical effect on the result is not in my opinion the correct Land Use Code. In the paper headed "Explanation and Use of Land Use Codes", Code 58 is defined as "University, Tertiary, State and Private, Residential Colleges/School and non-residential school, Kindergarten". The activity conducted on the subject land as advertised is orientated more towards the beneficial effects of "Yoga" than it is in studying the theory of "Yoga" and as such has more affinity with fitness/health studio purposes than it has with uses envisaged in B-58. In the circumstances the appeal is disallowed.
President of the Land Court
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