Yu & Leung v Brisbane City Council & Anor

[2005] QPEC 78

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Yu and Leung v Brisbane City Council & Anor [2005] QPEC 078

PARTIES:

ERIC HON YING YU AND
CECELIA MAN YEE LEUNG
(AS TRUSTEES FOR THE SHEPHERD FAMILY TRUST)

Appellants

v

BRISBANE CITY COUNCIL

Respondent

and

DAVID AND PETRA WILLIAMS

Co-respondents

FILE NO/S:

BD 1517/2004

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2005

JUDGE:

Rackemann DCJ

ORDER:

Declared that:

i)          the development application is an application for a development permit for a material change of premises for the purposes of a House under the planning scheme for the City of Brisbane;

ii)         the development application is a code assessable development application under the Act;

iii)        Mr & Mrs Williams do not have a right or entitlement to be joined as co-respondents in this proceeding

CATCHWORDS:

Declaratory relief – entitlement to be co-respondents – characterisation of use – described as “extension to office (caretakers residence)”, “caretakers flat”, “house”, “multi-unit dwelling”, “commercial character building activities”, “home business”, “mixed use” – whether application for new dwelling included intended future office use of existing building

Integrated Planning Act 1997 (Qld)

Cases cited:

Baht v Brisbane City Council [2003] QPELR 109

Brisbane City Council v Cunningham (2001) 115 LGERA 326

King v Lewis (1995) 88 LGERA 183

Livingstone Shire Council v Brian Hooper and M3

Architecture and Others (2004) QPLR 308

COUNSEL:

Mr A Skoien for the appellants

Mr J B Job for the respondent

Mr P Smith for the co-respondents

SOLICITORS:

Redmond Van De Graaff Solicitors for the appellants

Brisbane City Legal Practice for the respondent

Plastiras Meredith Mohr Lawyers for the co-respondents

Introduction

1. By notice of appeal filed on 28 April 2004, the appellants appealed against the respondent’s refusal of an application for a development permit for a material change of use, in respect of property situated at 49 Laura Street, Highgate Hill. The application had been treated one as a requiring impact assessment. The co-respondents had made a submission.

1. The appellants have resolved their differences with the respondent.  But for the position of the co-respondents, those parties would be in a position to consent to orders allowing the appeal. The subject application has been brought by the appellants for declaratory relief, to the effect that the co-respondents have no entitlement to be co-respondents because:

(a)        the material change of use, the subject of the application, properly characterised, is one which required only code assessment and;

(b)        the co-respondents did not comply with the relevant requirements in electing to become parties to the appeal.

The Election to be Co-respondents

1. The notice of appeal was served, by ordinary post, on 30 April 2004.  The affidavit of Mrs Williams deposes that, to her recollection, it was not received until the morning of 17 May 2004.  On 24 May 2004 the submitters filed a form by which they intended to become parties to the appeal.  They did not serve a copy of that document on the other parties.  Mrs Williams, who filed the document, was unaware of any requirement as to service.

1. Accepting Mrs Williams’ evidence as to when the notice of appeal arrived, it would appear that the filing was within time. Although there was some irregularity with respect to the document as filed, neither the appellants nor the respondent take any point about that.

1. In relation to the failure to serve the other parties, I would be prepared to exercise my discretion to relieve against non-compliance with the rules (assuming Mr and Mr Williams had a right to elect to be co-respondents). The failure to serve does not appear to have resulted in specific significant prejudice to the other parties. While the failure meant that the other parties conducted their own discussions in ignorance of the existence of the co-respondents position, the material does not establish that they significantly altered their respective positions, to their detriment, as a consequence.  Although it is obviously a matter of some frustration, particularly for the appellants, to learn that they may also now have to deal with the co-respondents, that would not dissuade me from exercising the discretion in favour of the co-respondents.

1. Counsel for the co-respondents made the point that, if Mrs Williams’ evidence as to receipt of the notice of appeal is accepted, then notice was not given to Mr and Mrs Williams within the required time.  He did not oppose an order extending time.  It would be appropriate to do so (assuming Mr and Mrs Williams were submitters entitled to be given notice and to elect to become co-respondents), given the delay between posting and delivery.

The Characterisation of the Use

1. The determinative issue was that of the proper characterisation of the material change of use for which approval was sought and the level of assessment required.

1. The subject land has two street frontages and comprises an area of approximately 410m².  On one frontage, there is an existing building which is designated as a “commercial character building” for the purposes of City Plan 2000.  It has been used, for some time, for residential purposes. The proposal is to erect a three-storey, 3-bedroom dwelling towards the other street frontage.  The proposed dwelling is not to be attached to the existing character building.  

1. The development application form described the proposal as “extension to office (caretaker’s residence)”.  The report stated that “It is proposed to build a caretaker’s residence on a site, which currently has a commercial character building on it.”  The report accompanying the application incorrectly noted the current use of the site as “office”.  The report confirmed that “the existing commercial character building on the site is to be retained, and will not be altered in any way”.  

1. The report accompanying the application stated that “after consultation with the BCC the following codes are to be considered”.  The codes referred to were the Residential Design – Small Lot Code, the Residential Design – Character Code, the Demolition Code and the Commercial Character Building Code.  The analysis of compliance with those codes referred, in different parts, to one or other or both the existing and proposed new buildings. 

1. The plans accompanying the application showed the existing building in outline form only, while the proposed new dwelling was drawn in detail.  The description of the proposed use was settled following consultation with one of the council’s town planners.

1. The council’s acknowledgment notice described the proposal as “extension to commercial character building (caretaker’s residence)” and advised that the application would be assessed using impact assessment procedures. Accordingly, the application was advertised.   Twenty-three submissions were received.

1. On the hearing of this application, no party supported the description of the application in the application documents and council’s acknowledgement notice. The proposed detached dwelling is not, in fact, an “extension” to the commercial character building.  “Caretaker’s residence” is not a defined purpose in City Plan.

1. A “caretaker’s flat” is a defined purpose, but no party suggested that was the appropriate characterisation of the proposal. A caretaker’s flat involves ancillary use of part of non-residential premises for residential occupation by a person or a domestic group that includes a person who has the care of a business or industry on the premises.  The caretaker’s flat use forms part of the non-residential purpose of the premises of which it forms part.  In this case (assuming non-residential use of the existing character building) the proposed detached dwelling would not ordinarily be described as a flat, would be difficult to describe as purely “ancillary” and does not form part of the commercial character building premises[1] which might, in the future, be used for a non-residential activity.

   [1] While ‘premises’ ordinarily includes land, the expression, when used in the context of a caretaker’s flat,

   should be construed as referring to a building of which the flat forms a part.

1. Because the proposed dwelling is detached from the commercial character building, it could not fall within the definition of “commercial character building activities”.

1. In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way[2] to determine the appropriate genus which best describes the activities in question.  Where there are two or more defined purposes which are apt to cover a particular proposal, a “best fit” approach is appropriate[3].  What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time.

   [2]King v Lewis (1995) 88 LGERA 183 at 202; Livingstone Shire Council v Brian Hooper and M3

   Architecture and Others (2004) QPELR, 308 at para 14.

   [3]Livingstone Shire Council supra at para 16

1. The most obvious characterisation of the new detached dwelling, the subject of the application, is a “house”.  That is the characterisation contended for by the appellants and the respondent.  That is the only use which is now proposed to be approved in the event that the appeal is allowed in the terms agreed between them.  The proposed dwelling, the subject of the application, appears to fit comfortably within the definition of that purpose in City Plan as “a use of premises principally for residential occupation by domestic group or individual/s…”.  Such a use on the subject site is notifiable code assessment development.

1. The co-respondents’ submission is that the proposal should be differently characterised by reference to development across the site, including the use of the commercial character building.  

1. It is possible for the use of the commercial character building to alter the proper characterisation of development across the site.  It was submitted that, given the current residential use of the commercial character building, the proposal to erect a new dwelling on the site brought the development, as a whole, within the definition of a multi-unit dwelling.

1. The proposition that separate buildings, on the same allotment, used for residential occupation by discrete households, domestic groups or individuals, may constitute a multi-dwelling use, is consistent with the reasoning in Baht v Brisbane City Council [2003] QPELR 109[4].  In this case however, there was no real indication[5], in the application, that it was proposed to use the existing character building and the proposed detached dwelling in that way.  The existing use of the commercial character building was described, albeit erroneously, as “office”.  The application did not propose that, following the erection and use of the proposed detached dwelling, the commercial character building would also continue to be used as a place of longer term residence for a discrete household, domestic group or individual.  If anything, the description of the new dwelling as a “caretaker’s residence” suggested to the contrary.  Counsel for the co-respondents observed that there was no application to discontinue the existing residential use of the commercial character building, but no such application is necessary.

   [4]at paragraph 33.

   [5] The report accompanying the application referred , in part, to the ‘residences’, but that does not alter my conclusion.

1. I do not consider that it would be appropriate to characterise the application as one which sought approval for the construction of the new detached dwelling for use, in conjunction with the existing commercial character building, to serve as the principal place of longer term residence for several discrete households, domestic groups or individuals, such as to fall within the definition of a multi-unit dwelling. 

1. While I have reached that conclusion on the basis of the application as made, I also note that later correspondence, sent to the council during the assessment of the application, and the affidavits of Mr Yu and Mr Taylor, confirm that it is not intended to continue the residential use of the existing commercial character building.

1. Approval of the proposed dwelling as a “house” would not authorise the use of the premises in a way which falls within the definition of multi-unit dwelling.  Further, any approval could be subject to a condition which required discontinuance of the residential use of the commercial character building prior to the commencement of the house use.

1. There was some debate as to the proper characterisation of any future non-residential use of the commercial character building.  After public notification had occurred and submissions were received, but before deciding the application, the council enquired[6] as to the intended use of the existing building.  The response was that “the building is to be the workplace of the occupants of the proposed caretaker’s flat.  At this stage it is envisaged that this will be an architect, engineer, interior decorator, etc, who would employ 2-3 (max) employees.  There would be one car space provided for the employees in the caretaker’s flat”.  Further plans were provided, which showed the interior layout of the existing building, with three ‘offices’, a work area, reception, kitchen and toilet.

   [6] The enquiry was not an information request pursuant to s 3.3.6

1. The most obvious description of the intended future use of the existing building is “office”.  Where carried on in a commercial character building outside the multi-purpose centres and in a Residential Area (as is the case here) an “office” falls within the definition of “commercial character building activities”, which, where complying with the Acceptable Solutions in the relevant code, are self-assessable in a Low Density Residential Area.  Where there is non-compliance with the Acceptable Solutions of the applicable code, such activities are assessable, but subject only to notifiable code assessment.  That characterisation does not assist the co-respondents.

1. Counsel for the co-respondents submitted that a “home business”, which is expressly excluded from the definition of “office”, would be the ‘best fit’ for the intended future use of the existing building.  That use is defined as “a use of premises for a commercial, government or non-profit activity that is carried out on a lot used primarily for residential purposes”.  That use is subject to impact assessment, in the Low Density Residential Area, where it fails to comply with the self-assessable Acceptable Solutions in the Home Business Code.  The material lodged with the application, even if one has regard to the response to the council’s later enquiry, does not establish that the use of the ‘lot’, viewed as a whole, would be ‘primarily’ for residential purposes.  While the gross floor area of the new dwelling would exceed that of the commercial character building, that is not determinative.

1. Neither of the above characterisations of the intended future non-residential use of the existing building would alter the characterisation of the residential use of the proposed new dwelling.

1. A use of premises that “integrates residential activities with commercial, retail or industry activities” falls within the definition of a ‘mixed use’, where a minimum of 30% of the total gross floor area is used for residential purposes.  An application for a ‘mixed use’ on the subject site would have been subject to impact assessment.  That definition requires a finding as to the integration of the residential activities with the other activities.  No party submitted that the subject development should be so characterised.

1. The appellants and the respondent submitted that the characterisation of the intended future non-residential use was irrelevant, since the application was only for the proposed new dwelling and no approval was sought in relation to future non-residential use of the existing building. 

1. While the drafting of the application was far from perfect, I am satisfied that it only sought approval for a proposed new dwelling (the misdescribed ‘caretaker’s residence’) on the site which also has an existing character building on it.  While the description of the new dwelling as a ‘caretaker’s residence’ and the erroneous reference to the existing use of the existing building as “office” might have been indicative of the intention for future non-residential use of the existing building, that does not necessarily lead to the conclusion that approval was then sought for that non-residential use.  An examination of the application and the documents, including the plans which accompanied it, satisfies me, as a matter of fact, that it was the new residence for which approval was sought.  That the applicant later, in response to an enquiry, informed the council of the intentions with respect to the future use of the commercial character building, did not amount to a change to the application with respect to the use for which approval was then sought[7].

   [7] s 3.2.9 deals with changing an application

1. The applicant is not obliged, at this stage, to make an application for an approval for a material change of use which includes a future use of the commercial character building.  There is no rule prohibiting the making of more than one application in respect of the one piece of land[8].  Properly characterised, the subject application was for a house.  The application was for the whole of that use.  There are indications as to the intended future use of the commercial character building.  The appellants acknowledge that, if that building is to be so used in the future, by itself or in conjunction with the new dwelling, in a way which causes assessable development to occur, then a further application will be required.  That does not alter the proper characterisation of the subject application.

   [8]Brisbane City Council v Cunningham (2001) 115 LGERA 326

1. The conclusion is that the material change of use for which approval was sought was a house.  That is a form of development which, on the subject site, is not properly subject to impact assessment or the public notification provisions of IDAS which, in turn, provide the basis for the submitters’ rights to elect to become parties to an appeal against refusal.[9]  Counsel for the co-respondents did not suggest that, in the event of such a conclusion, there was any basis upon which his clients should or could remain proper parties to the appeal[10].

   [9] A ‘submitter’ may elect to become a co-respondent (s4.1.43(4)). A person who makes a “properly made submission” is a ‘submitter’ (Sch 10). Relevantly, a ‘properly made submission’ is one made during the “notification period” (Sch 10). The “notification period” is defined by reference to s3.4.5, which forms part of the notification stage, which applies, relevantly, where any part of the application requires impact assessment (s3.4.2). 

   [10] T60 l35

The Identity of the Applicant

1. Counsel for the co-respondents pointed out that the appellants were not the applicant named in the development application.  The IPA contains an extended definition of ‘applicant’, for the purposes of Chapter 4, which includes “the person in whom the benefit of the application vests”.  It was agreed, during the hearing, that further material could be filed in that regard.  The further affidavit material establishes that the named appellant was a consultant engaged by the appellants, who made the application at their instruction, on their behalf and for their benefit.  I am satisfied that the appellants are applicants for the purposes of Chapter 4.

The Orders

1. I will, make orders in terms of paragraphs a)(i), (ii) and (iii) of the application.  I am also prepared to make final orders disposing of the appeal in the terms agreed between the appellants and respondent, subject to inclusion of a condition of a type referred to above.