Walter Elliott Holdings Pty Ltd v Logan City Council

[2009] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Walter Elliott Holdings Pty Ltd v Logan City Council [2009] QPEC 67

PARTIES:

WALTER ELLIOTT HOLDINGS PTY LTD             (ACN 005 277 038)

Applicant

V

LOGAN CITY COUNCIL

Respondent

FILE NO/S:

BD 659 of 2009

DIVISION:

Original jurisdiction

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Brisbane

DELIVERED ON:

6 August 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

14, 15 April 2009; written submissions received up to and including 7 May 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Order in terms of the declarations sought in paragraphs 1(a) and 1(b) of the originating application filed on the 10 March 2009

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – INTERPRETATION – RELOCATABLE HOMES – where land is approved for use as a relocatable home park – whether dwelling units fit within the relevant planning scheme definition of ‘relocatable home’ – whether dwelling units are designed and constructed to be moved in one or more prefabricated sections – whether dwelling units are permanently attached to the site other than for the provision of services

Cases considered:
Z W Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

M Hinson SC for applicant
J D Houston for respondent

SOLICITORS:

Robert Milne Legal for applicant
Corrs Chambers Westgarth for respondent

1. Some 130 dwellings have been built on the applicant’s land at Waterford, and more are in the process of construction.  The land is approved for use as a ‘relocatable home park’ and the dwellings are required to be ‘relocatable homes’.  The applicant says the dwellings meet the relevant criteria for homes of that kind but Council argues, in short, that their design and construction makes them much too permanent to qualify and, for that and other reasons, they do not satisfy the terms of approval.

[2]      The respondent Council inherited responsibility for this land during the realignment of local government boundaries in 2008.  At an earlier time the Gold Coast Council had granted approval for the use[1], and the terms of its planning scheme apply:

[1]Approval for up to 246 relocatable homes was granted by the Gold Coast City Council on 10 July 2006.

Relocatable Home: any dwelling unit that is designed and constructed to be moved in one or more prefabricated sections from one position to another and is not permanently attached to a site other than for the provision of services.  The term does not include a caravan.

Relocatable Home Park: any premises used, or intended to be used, for the parking or location of relocatable homes for the purpose of providing residential accommodation.  The term includes ancillary facilities such as amenities buildings, manager’s office and residence, a kiosk and recreation facilities where maintained for the use of residents of the relocatable home park.  It does not include a Caravan Park.

1. To the layperson, a ‘relocatable home’ is something more readily movable than a normal dwelling house; but, as the definition in the scheme indicates with its specific exclusion of caravans, also something which is more permanently connected with its site than a small house with wheels. 

[4]      This case focuses on the elements which, under this planning scheme, make a dwelling ‘relocatable’.  The exercise is not without its subtleties, a view corroborated by evidence which suggests that the traditional timber and tin ‘Queenslander’, built on stumps, is in fact not terribly difficult to move[2].

[2]As explained by one of the expert witnesses, Mr Leck, in his report: Ex 3, pp 5-7.

[5]      The applicant contends, and I agree, that it is not required to do more than show that the homes meet the requirements of the definition.   The proper meaning of the definition is to be found using a commonsense approach: Z W Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, per Thomas J (as he then was) at 360.

[6]      Both parties agreed that, by reference to the definition, the structures being built by the applicant are ‘dwelling units’. The focus of argument was upon two phrases used in the definition: first, ‘… designed and constructed to be moved in one or more prefabricated sections from one position to another’; and secondly, ‘… is not permanently attached to a site other than for the provision of services’.

[7]      Each party adduced evidence from expert witnesses. The applicant called a building surveyor, Mr Almonte, who was of the view that because each unit incorporates a galvanised steel sub-chassis to which prefabricated wall and, later, roof elements are attached, the units are not permanently fixed to the site and meet the definition.  Mr Oar, an engineer who designed the structures, said the prefabricated steel chassis (and a detachable garage frame) meant they were designed and constructed to be moved from one position to another; and, that the chassis was not permanently attached to the site but, rather, had removable tie down fittings.

[8]      Against that Mr Leck, a quantity surveyor called by the Council, thought that because the steel sub-frame or chassis could not itself take the entire weight of the building but, for the purposes of transport, would need to be supported by larger steel cross beams, it could not be said that they had been designed or constructed to be moved. He also thought that, while some prefabricated components such as roof trusses and wall frames were used in construction, this was no different from a conventional on-site house.  Mr Wright, an engineer, shared Mr Leck’s doubts about prefabrication and was also of the view that the complexity involved in removing the buildings from their present sites meant that they were, in truth, ‘permanently attached’.

[9]      The evidence focused on particular units which had been inspected by Mr Leck and Mr Wright; Units 92 – 95, 96, and what were called the ‘Goodooga Units’. The latter had, unlike some other units, been erected outside the applicant’s land and, when inspected, were standing on temporary supports on a vacant allotment in Goodooga Drive, Waterford. The different location is not, however, material, because the method of construction – whether on site or away from each unit’s ultimate destination – appears to be the same.

Designed and constructed to be moved in one or more prefabricated sections from one position to another

1. The evidence establishes that the Goodooga Units were actually constructed off site and moved in separate sections onto the site; that Unit 96, with its garage, had been raised some 250 mm; and that Unit 93, with its garage, was detached from Unit 92 and moved a short distance from its slab.  While there was no evidence demonstrating that units, once moved, could be attached to a new site Mr Almonte and Mr Oar were confident that was possible.  Council’s witnesses were concerned about the difficulty of reconnecting services to a unit which had been moved from one slab to another but the evidence showed that that was, ultimately, simply a matter of care, patience and proper alignment.

1. Mr Wright accepted that the Goodooga Units were designed and constructed with the intention that they be transported, and that these units have been moved; and that the sole purpose of the steel chassis is to make the units movable and that if they were designed to be permanent, the steel chassis would not be required.  Mr Leck was initially dubious about the purpose or usefulness of the steel chassis but did accept, in cross-examination, that it was to enable the dwelling to be moved.  He remained doubtful, however, that it could achieve that purpose and thought additional steel transport beams and other structural bracing would be necessary to make the home truly ‘relocatable’.

1. As the applicant submitted, however, the definition does not specify a particular standard of design and construction or a particular method of movement; nor, what features must be found in a unit to assist its movement or any standard to be achieved in that process.  Rather, it simply requires design and construction in a way which permits movement in one or more prefabricated sections, as opposed to design and construction of an entire, and fixed and immovable, structure.

1. Council’s expert witnesses set the bar too high.  Each had views about how the units could have been better designed and constructed to make moving easier, but that is not the question posed by the definition.

1. An example of Council’s unduly rigorous focus was a claimed need for ‘jacking plates’ to be built into each unit rather than retrospectively fitted.  While the evidence showed the process of identifying the location of proper lifting plates, and, if necessary, installing them was not without its difficulties, the evidence did not establish they are critical and the units could be moved by professional home removalists by other means. In any event the point is, again, that the absence of these plates does not mean the units are not designed and constructed to be moved.

1. Emphasis was also placed, in Council’s case, on the question whether the homes were constructed of prefabricated sections.  Mr Wright’s report, for example, asserts that the definition requires that the units be designed and, at first instance, constructed from sections of that kind[3].  In ordinary use ‘prefabricate’ does mean ‘to fabricate or construct beforehand; to manufacture (houses, etc) in standardised parts or sections ready for rapid assembly or erection’[4]. 

   [3]Exhibit 4, p. 27 at [8.3].

   [4]Macquarie Dictionary.

1. As already remarked, however, the definition here only requires, rather, that the units be designed and constructed to be moved in one or more prefabricated sections.  The evidence establishes that the units have that character – that is to say, they are capable of being moved in one or more prefabricated sections.  

1. There is no inherent absurdity (or inconsistency with the definition) in a mode of design and construction which allows the structures, once in place, to be later dismantled and moved in ‘standardised parts or sections’, even if the first or original construction did not use that method.  The word ‘prefabricated’ is apparently used in the definition to distinguish between complete disassembly for the purposes of movement, and breaking down into ‘standardised parts or sections’ for that purpose.

1. Even if a contrary view is taken, however, the evidence here is persuasive that the primary or original construction of the units is also, with reference to the dictionary meaning, from ‘standardised parts or sections’.  The designs are simple and repetitive, as are the methods of construction.  The Goodooga Units were, again with reference to the dictionary, ‘fabricated and constructed beforehand’ and moved to their ultimate site.  Those actually built on site use a large proportion of standard sections and pieces which are simply brought in, and assembled.  The fact that, as I understood the evidence, this is true of many modern dwellings does not detract from the conclusion that, on the ordinary meaning of the word ‘prefabricated’, these dwellings qualify as having been built by that method.    

1. It should be noted, too, that the definition does not place any focus upon the place of original manufacture or assembly.  Interestingly the definition of ‘relocatable home’ in the Respondent’s current planning scheme does require construction away from the premises at which the building is ultimately to be erected, but the Gold Coast Planning Scheme definition does not (and neither does the Macquarie Dictionary, a reference called up by that Scheme).

1. For the sake of completeness it should also be observed that the requirement that a home be designed and constructed to be moved in one or more prefabricated sections implies, as the Applicant submitted, that there may be some dismantling or disconnection so as to create one or more sections.

1. Council’s evidence and submissions also focused upon perceived difficulties in moving these units including, for example, the need to use bracing, and partial detachment.  Again, however, nothing in the definition appears to prohibit additional aids, like braces; and, the definition plainly incorporates the notion that some detachment or dismantling of parts of the units is permitted, because it obviously allows for movement in more than one section.

1. Finally, Mr Wright and Mr Leck were of the view that moving a unit from one slab to another would be virtually impossible because of the difficulty of establishing the precise location of, and reconnecting, waste pipes and the like and pointed to the absence of evidence that this exercise had been successfully achieved.  The Applicant did, however, provide examples of lifting, moving and transporting units (Units 93 and 96, and the Goodooga Units) and, again, the evidence of the Applicant’s witnesses showed that the difficulties were not insurmountable and capable of practical solutions.  In particular, their evidence was persuasive that there is little difficulty in relocating a home on piers on a new site.

Is not permanently attached to a site other than for the provision of services

1. The expert witnesses were also at odds about whether or not the units were, in truth, permanently attached in a way which offends this part of the definition.  Mr Almonte and Mr Oar said they were not; Mr Wright believed they were; and Mr Leck’s report did not precisely address the question.  Mr Wright also accepted, however, that the purpose of the steel chassis was to make the units movable, and that some units had been moved.  He also fairly conceded that virtually all structures can be detached and moved, an exercise which involves varying levels of complexity, and cost.

1. The method of design used here involves a steel chassis connected to the underlying slab by tie-downs which, the evidence shows, are removed without much difficulty. Mr Wright’s concern appeared to relate to the need to dismantle or demolish part of the floor to get access to them, and to lift the roof to cut through cyclone rods, but the evidence also established that these are ordinary features of any mode of safe construction: the tie-downs are required, as Mr Almonte’s evidence showed, for wind-uplift.

1. Emphasis was also placed, in Council’s evidence, on the secure connection of drainage services which would need, for example, to be cut through if a unit was to be disconnected and moved.  The evidence also showed, however, that this exercise is capable of being performed and is neither unusual nor especially difficult.

1. As the definition reads, permanent attachment of a unit to its site for the provision of services is not inconsistent with a method of design and construction which permits units to be moved.

1. A particular focus was upon brick walls placed between the garages of duplex units. The evidence showed that the garages included prefabricated components (roof trusses and wall frames) but work of a not insubstantial kind would be required to detach them from the brick walls before they could be moved. Again, however, nothing in the definition requires that any parts of each unit, including the garages, must be comprised only of independent prefabricated sections: that is to say, the incorporation of more permanent structures in the units is not prohibited by, and does not contradict, the definition.

Conclusion

1. The definition is not, as the applicant submitted, concerned with relative degrees of movability.  It draws a line between units which have been designed and constructed to be moved, and those which have not.  Here, the evidence is persuasive that the units have been so designed and built.  They incorporate a steel chassis the sole purpose of which is to make them movable; and, some have been moved.  The method of their attachment to the slabs upon which they have been placed gives them solidity and does add to the complexity associated with moving them, but still permits that exercise to be performed.

1. Nor is the degree of attachment fairly described as ‘permanent’, other than for the provision of services. The measure of attachment is on any view substantial but the units remain capable of detachment.

1. These conclusions mean the Applicant is entitled to a declaration that the houses located upon its premises are relocatable homes within the definition.

1. The Applicant also sought a declaration that it was using the site for the purpose of a relocatable home park. Although all of the units on site were not inspected, I did not understand Council’s case to be that any had been constructed differently from those upon which the evidence focused, or that it opposed an order to that effect if the units were found to be ‘relocatable homes’.