Western Downs Regional Council v Grams

[2010] QPEC 38

[2010] QPEC 38

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3631 of 2009

WESTERN DOWNS REGIONAL COUNCIL	Appellant
and
SEAN GRAMS	Respondent

BRISBANE

..DATE 22/04/2010

..DAY 1

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009 s 832(1)
Integrated Planning Act 1997 s 3.5.30, s 4.3.3, s 4.3.25

Enforcement orders sought by Council requiring a dam to be fenced comformably with s 14 of the Buildling Regulations 2006 for swimming pool fencing as fitted in a dam not a swimming pool as defined - Council relied on a fencing obligation contained in a development condition in an approval of a material change of use of a dam for aquaculture - neither conditions nor Council's enforcement notice appealed against

HIS HONOUR:  Before the Court is an originating application filed on the 16th of December 2009 by which the Council seeks against Mr Grams, who has represented himself, orders that:

(a)Within 60 days of the date of this order, the respondent erect fencing complying with the design, building and performance standard prescribed by section 14 of the Building Regulation 2006 at the location indicated in the plan forming part of the respondent's development application to Tara Shire Council dated 18 April 2007;

(b)Failing compliance with order (a) within 70 days of the date of this order, the respondent completely fill in the excavation the subject of Tara Shire Council's decision notice to the respondent dated 13 June 2007.

The filing of the application occurred two days before the coming into force of the Sustainable Planning Act 2009, by section 832(1) of which the Integrated Planning Act 1997 (IPA) continued to apply for the purposes of this application.

The orders are sought under section 4.3.25 of the IPA as a means of remedying commission of a "development offence" as defined in schedule 10 of IPA. By section 4.3.3, it is an offence to contravene a development approval including any condition in the approval.

The development application (the Court was given to understand) was made by Mr Grams on advice of Council officers of the then Tara Shire Council which had jurisdiction over the property in the township of Glenmorgan to make a development application to regularise use of the property for "aquaculture" involving an existing excavated dam whose dimensions are said to be 30 metres by about 12 metres with a maximum depth of a couple of metres.  The Court hears that there was complaint based on the danger the complainer thought existed in having that body of water in the town unfenced.

Mr Grams has told me that the aquaculture consists of breeding golden perch, not for commercial purposes, but for his own recreational purposes.  The application to the Council was successful.  Unsurprisingly, given the history, the Council imposed a condition "That the entire excavation be fenced to a standard complying with the Swimming Pool Fencing Regulations.  Such fence to be maintained in accordance with the regulation."

Although informed of his appeal rights by a communication from Council, Mr Grams, who was dissatisfied with the condition, did not exercise his right of appeal to this court.  He did approach the Council to reconsider the matter and was treated as having made a formal request to change an existing approval.  The Council on the 18th of December 2008 refused that request.  Once again there could have been an appeal by Mr Grams but there was none.  A subsequent attempt was made to get Council to reconsider its attitude, unsurprisingly attracting refusal.  By the time of the request to change the existing approval the Council had already embarked on the procedures which lead to the current application.

Things started with an inspection on the 16th of July 2008 which revealed gaps in the fencing which Mr Grams had established, and that there were no gates.  On the 8th of August 2008 a communication followed advising the Council's view that Part 4 of the Building Regulation 2006 had not been complied with.

In the following month a notice inviting Mr Grams to show cause why enforcement orders shouldn't be made was sent out.  That attracted no response other than what may be regarded as attempts to get the Council to change the condition.  The fencing has now been completed but still fails to comply with what the Building Regulation requires of swimming pools.  The fencing consists of wire mesh with broad openings 140 millimetres square.

The horizontal strands serve as potential footholds for a child wishing to scale the fence inconsistent with what the pool fencing standards call for, namely an absence of horizontal members.  There are no self-closing latches on the gates.

Mr Grams has made his structure more child unfriendly than it would otherwise be, by incorporating a single woven strand of barbed wire along the top.  In places it's possible for a child to get underneath the fence.  Mr Grams is no doubt correct in saying that that could be fixed up.  In what he regards as the most likely sections of the fence to be breached he has provided an additional cover of wire mesh with openings only 10 millimetre square which he says is well within a standard of 13 millimetres.

I am prepared to accept from him that what he has may represent the safest dam in Glenmorgan or a wider area.  He's been able to point to instances of other dams or ponds which are unfenced and could be accessed by children.  It's obvious that the concern of relevance here is the risk of drowning in unfenced bodies of water.

As Mr O'Donnell, the Council's officer said when cross-examined, what makes Mr Grams’ present plight possible, in the sense that he appears to have been singled out and required to meet standards which others don't comply with, is that he made a development application, approval of which could be the subject of attached conditions under section 3.5.30 of the IPA. Those conditions have to satisfy tests of reasonableness and relevance. There is no basis pointed to on which the Council could in the absence of any development application impose on those responsible for the comparatively unsafe dams Mr Grams points to a condition such as the unwelcome condition 1.

The complaint of double standards, unfairness et cetera might be seen as enhanced given that one of the examples established by Mr Grams concerns a dam which is the Council's own direct responsibility.  There's some argument between him and Mr O'Donnell as to whether it's in a road reserve or on a property.  Mr O'Donnell responded to the implicit charge that there's one law here for Mr Grams, another for the Council by asserting that the location of the Council dam, which has been there for a considerable time inside a former quarry or gravel pit, is seen as being in a rural area whereas in the planning documents and perhaps also as a matter of reality Mr Grams' property at number 2 John Street is in the "urban" area of Glenmorgan.  It has only a handful of residents, unlike much larger centres in the area such as Chinchilla and Miles where Mr Grams suggested, as I understood him, that there may be unfenced bodies of water as well.

It's very much part of his case that he is under no obligation to provide swimming pool fencing in accordance with current standards.  Indeed he asserts that he complies with the law's requirements.  That's on the basis that what he has on his property is not a "swimming pool.”  It's convenient to refer to the definition he relied on which can be found in the Pool Fencing Guidelines 3rd Edition March 2008 which form an exhibit in material before the Court:

"A swimming pool means an excavation or structure:

(a)capable of being filled with water to a depth of 300 millimetres or more;

(b)capable of being used for swimming, bathing, wading, paddling or some other human aquatic activity;

(c)solely and principally used - or designed, manufactured of adapted - for the above purposes despite its current use.  This includes spa pools, spa tubs or similar things (whether portable or fixed), and wading pools (other than portable wading pools).

A swimming pool does not include:

(d)a fish pond or pool solely or principally used - or designed, manufactured, or adapted - for ornamental purposes;

(e)a dam or tank solely or principally used - or designed, manufactured or adapted - for aquaculture, marine research or the storage of water;

(f)a water course;

(g)a portable wading pool.”

While it may be a factor in assessing the relevance or reasonableness of a condition that the general law does not require fencing of some particular standard, that is not the test that the Court has to apply in the present matter. The Council does not assert that there is any legal obligation requiring it to incorporate something like condition 1 in the approval; it relies on the general good sense of doing so and the appropriateness of the condition under section 3.5.30.
A couple of observations are pertinent. In assessing the validity of conditions, although fairness may be referred to in that context, it does not amount to anything like a separate and distinct question to be determined before conditions are imposed - see Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404 at paragraph [31] and following.

It is always likely to be troublesome that a particular developer appears to be singled out and subjected to some onerous obligation, but that doesn't necessarily mean that there's something wrong with the relevant condition.

Also, it has to be accepted that standards change over time, which it is notorious they have done in respect of fencing of bodies of water where people might drown, making it a weak argument so far as the Court is concerned that other developers in the past may not have been subjected to a condition being imposed today - see for example May v Redland Shire Council [2009] QPEC 106.

The importance in contexts such as the present of the requirements of planning schemes and planning approvals being taken seriously has been acknowledged by courts at appellate level. For example, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 346 the following passage appears: "The courts have under the various planning regimes emphasised the significance of compliance with planning requirements and the danger of allowing individual hardship in particular cases to erode the general operation of planning schemes. These considerations are no less relevant at the present time": see locally Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53 at page 59 where the Court of Appeal identified that "Among potentially relevant matters is the aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed."

The Council is in this proceeding seeking to enforce its enforcement notice dated the 24th of December 2008, which Mr Grams acknowledged he had received on or about the 22nd of January 2009.  Once again, he had the opportunity to approach this Court challenging the notice.  He didn't do so. 

Notwithstanding the discussion I've embarked on above, this is not an application to have condition 1 removed or varied or anything close to an equivalent of that.  Given the discretion that the Court has in making serious orders for enforcement it is relevant to have regard to various considerations of the kind examined. 

Mr Allen's submissions are persuasive that this is no mere technical breach which is being pursued by the Council.  On the merits there are good reasons why the relief sought ought to be granted.  The relevant water body is in close proximity to residences, even though for the moment they may not house young people.  A family with young children are said to be the owner of the closest house, although not occupying it at present.  The elderly people said to reside in nearby houses may, of course, have young visitors.
Mr Allen says it is not shown that the Council has had any role to play in determining the circumstances of fencing, or the lack of it, at the other dams pointed to by Mr Grams in his argument about double standards.

The Court was invited to note and act upon changing standards and attitudes respecting fencing of water bodies.  Mr Allen contended that Mr Grams is the author of his own problems now in having failed to take steps to dispose of condition 1.  He got himself into a situation where the only courses open to him were to proceed with his development in accordance with the conditions set, including that one, or to refrain from proceeding at all.

Notwithstanding Mr Grams’ obviously genuine belief that we shouldn't be here at all, the Court's view is that it's a clear case for the granting of the relief that the applicant Council seeks and, accordingly, there will be orders in terms of the originating application.

...

-----