Brisbane City Council v Brook [2015] QPEC 10 (2015) QPELR 454

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisbane City Council v Brook [2015] QPEC 10 PARTIES: BRISBANE CITY COUNCIL (applicant) v BRENNAN SCOTT BROOK (respondent) FILE NO: 2739 of 2014 DIVISION: Planning and Environment Court PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 30 March 2015 DELIVERED AT: Brisbane HEARING DATE: 16 – 18 March 2015 JUDGE: Everson DCJ ORDER: Orders [1] I declare that pursuant to s 456 of the Sustainable Planning Act 2009 that during the period 18 January 2013 to 14 February 2014 the use of the premises at 121 Besham Parade, Wynnum in the State of Queensland and described as Lot 10 on SP254565 was not for a “House” as that term is defined in the Planning Scheme for the City of Brisbane, City Plan 2000. [2] I declare that pursuant to s 456 of the Sustainable Planning Act 2009 that during the period 18 January 2013 to 14 February 2014 the use of the premises at 121 Besham Parade, Wynnum in the State of Queensland and described as Lot 10 on SP254565 was for a “Multi-unit dwelling” as that term is defined in the Planning Scheme for the City of Brisbane, City Plan 2000. Acts Interpretation Act 1954 (Qld) s 32C Statutory Instruments Act 1992 (Qld) ss 7, 14. -- 1 of 8 -- 2 Sustainable Planning Act 2009 (Qld) ss 80, 456, 578, 582, 601 AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR, applied Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, applied CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – RESIDENTAL – DWELLINGS AND HOUSES – where the use of the premises involves one residential building containing two dwellings – whether it was lawful to use the premises as a “House” - whether the use of the premises was for a “Multi-unit dwelling” COUNSEL: Mr G Gibson QC with Mr J G Lyons for the applicant Mr D R Gore QC with Mr M J Batty for the respondent SOLICITORS: Brisbane City Legal Practice for the applicant Thynne & Macartney for the respondent Introduction [1] In this proceeding the applicant seeks declarations and an enforcement order in respect of the use of premises at 121 Besham Parade, Wynnum, described as Lot 10 on SP 254565 (“the premises”). [2] The particular relief sought by the applicant is as follows: 1. A declaration pursuant to s 456 of the Sustainable Planning Act 2009 (“SPA”) that during the period 18 January 2013 to 14 January 2014 the use of the premises was not for a “House” as that term is defined in the Planning Scheme for the City of Brisbane, City Plan 2000. 2. A declaration pursuant to s 456 of SPA that during the period 18 January 2013 to 14 February 2014 the use of the premises was for a “Multi-unit dwelling” as that term is defined in City Plan 2000. 3. Declarations pursuant to s 456 of SPA that during the period of 18 January 2013 to 14 February 2014 the use of the premises was: (a) a development offence pursuant to s 578 of SPA in that it was assessable development for which no effective development permit was issued; and (b) a development offence pursuant to s 582 of SPA in that it was not a lawful use of the premises. 4. An enforcement order pursuant to s 601 of SPA requiring that, at the expiration of any current tenancy agreement applying to the premises, the -- 2 of 8 -- 3 premises be used only as a “House” as that term is defined in the City Plan 2000. The relevant facts [3] Throughout the period referred to in the originating application, 18 January 2013 to 14 January 2014 (“the relevant period”), it was lawful to use the premises as a “House” as that term was defined in the applicant’s former planning scheme, City Plan 2000. The respondent was and continues to be the owner of the premises. Throughout the relevant period and continuing to the present, the use of the premises involves one residential building containing two dwellings. Each dwelling has a separate entry, a separate garage and, contrary to what was shown on the approved plans for the premises, there is no access between the dwellings. The primary dwelling is located on the ground floor and comprises three bedrooms, a kitchen, two bathrooms and outdoor areas. The secondary dwelling is located on the top floor and it comprises two bedrooms, a kitchen, a bathroom and a deck. During the relevant period each dwelling had a separate letterbox, but recently only one letterbox has been provided. The dwellings were and continue to be serviced by separate gas bottles, separate hot water systems, separate electricity supplies and separate telephone connections. Each dwelling was separately tenanted with each tenant maintaining a separate household.1 The use of the premises involving one building with two dwellings is as a consequence of two approvals, a building works approval dated 20 September 2012 and a subsequent approval of a material change of use of the premises for a “House” dated 6 September 2013. The respondent purports that the use of the premises provides “affordable housing”.2 [4] The proceeding before me was instituted on 18 July 2014. This was after the new planning scheme of the applicant, City Plan 2014 came into force on 30 June 2014 and well after the applicant commenced investigations as to the lawfulness of the use of the premises, conducting its initial inspection on 3 January 2013.3 The characterisation of the premises [5] The dispute between the parties relates to the correct characterisation of the premises. During the relevant period, was the premises being used for a “House” as that term is defined in City Plan 2000 or not? [6] Relevantly “House” is defined as: “House: a use of premises principally for residential occupation by a domestic group or individual/s, that may include a secondary dwelling, whether or not the building is attached, but does not include a single unit dwelling.” [7] It is contended by the applicant that the premises were in fact being used as a “Multi-unit dwelling” as that term is defined in City Plan 2000 and not as a “House”. The term “Multi-unit dwelling” is defined in the following terms: “Multi-unit dwelling: a use of premises as the principal place of longer term residence by several discrete households, domestic 1 Affidavit of Nicole Jane Goodwin filed 24/09/14, paras 11 and 12. 2 Affidavit of Brennan Scott Brook filed 18/12/14, paras 43 and 44 3 Affidavit of Richard Thorn filed 18/07/14, para 5. -- 3 of 8 -- 4 groups or individuals irrespective of the building form. Multi-unit dwellings may be contained on one lot or each dwelling unit may be contained on its own lot subject to Community Title Schemes. Examples of other forms of multi-unit dwelling include boarding house, retirement village, nursing home, orphanage or children’s home, aged care accommodation, residential development for people with special needs, hostel, institution (primarily residential in nature) or community dwelling (where unrelated people maintain a common discipline, religion or similar). The term multi-unit dwelling does not include a house or single unit dwelling as defined elsewhere.” [8] It is common ground that use of the premises does not come within the definition of a single unit dwelling as that term is defined in City Plan 2000. [9] The inter-relationship between the definitions of “House” and “Multi-unit dwelling” were recently the subject of a decision of the Court of Appeal in AAD Design Pty Ltd v Brisbane City Council.4 The court was asked to determine whether three proposed uses of detached residential dwellings containing between 9 and 11 bedrooms which were to be separately rented to unrelated persons for student accommodation constituted a use of “Multi-unit dwelling” or “House”. Philippides J delivered the majority judgment of the court. Relevantly, she stated:5 “[82] It may be assumed that the distinction between the definitions is regarded as having significance, given the different consequences which follow from the designation of a dwelling as a house as opposed to a multi-unit dwelling for Council planning purposes, in terms of the more stringent assessment requirements. As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: ‘[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. … [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was „a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’ [83] While on a superficial level, all multi-unit dwellings (that are structurally houses) can be viewed as coming within the definition of 4 [2013] 1 Qd R 1. 5 Ibid at 20-21. -- 4 of 8 -- 5 house – because a use of premises principally for residential occupancy by ‘individuals’ is involved, such an approach fails to give proper regard to the context in which the word ‘individuals’ appears in each definition. In that regard, it is pertinent that, for the purposes of the multi-unit dwelling definition, the words ‘several discrete’ qualify the words ‘households, domestic groups or individuals’; they inform the meaning to be given to the word ‘individuals’ in that definition. That is to be contrasted with the house definition which is concerned with residential occupation by ‘a domestic group or individual/s’. The relevant differentiation is thus between ‘a domestic group or … individuals’ and ‘several discrete … domestic groups or individuals’. [84] The approach taken by the applicant equates the meaning to be given to the word ‘individuals’ in the multi-unit dwelling definition with its use in the house definition and fails to accord the word ‘discrete’ its distinguishing significance in qualifying the meaning to be given to the term ‘individuals’. It is not to the point that a number of ‘individuals’ may reside at the premises; the critical distinction that arises between the definitions is whether the individuals can be characterised as being several ‘discrete’ individuals in respect of their residential occupation. [85] The house definition is not concerned with multiple individual residents who are properly described as being ‘discrete’. That ‘house’ is not intended to cover residential use by several discrete individuals is made clear by the fact that examples of such use are specified in the multi-unit dwelling definition. Such examples are not given in the house definition where the expression ‘discrete’ does not qualify the word ‘individuals’. The term ‘house’ is not intended to encompass several individuals residing ‘discretely’ in the same dwelling. By the same token, the house definition does allow for the situation of a householder who, for example, takes in a boarder, by providing that the use of the premises must be ‘principally for residential occupancy by a domestic group or individual/s’. Whether the extent and nature of the sharing of accommodation renders the use within that of ‘house’ or ‘multi-unit dwelling’ may thus, in some circumstances, be a matter of degree.” [10] The respondent points to two principal distinguishing features of the premises which were not relevant to the circumstances under consideration by the Court of Appeal in AAD Design Pty Ltd. Firstly it is submitted that, unlike the facts before the Court of Appeal, the premises includes a secondary dwelling which is expressly contemplated by the definition of “House”. Secondly it is submitted that the definition of “Multi-unit dwelling” contemplates a use of premises “by several (my emphasis) discrete households” and that, properly defined, “several” means more than two and that the use of the premises involves only two discrete households. [11] In support of the argument that the use of the premises is properly categorized as a “House”, the respondent firstly notes that in AAD Design Pty Ltd, the Court of Appeal ruled that nothing in the express words of the definition required “that each -- 5 of 8 -- 6 individual residing in the premises occupy the whole of the premises”.6 It is further submitted that the reference to “domestic group” within the definition should be read as “domestic groups” applying s 32C of the Acts Interpretation Act 1954 (“AIA”) which relevantly states that “words in the singular include the plural”. Thus it is submitted that a secondary dwelling can be occupied by a separate domestic group living within a “House” as defined in City Plan 2000. However, while the AIA applies to the interpretation of City Plan 2000 as a consequence of the Statutory Instruments Act 19927, the application of the AIA may be displaced by a contrary intention appearing in the planning scheme.8 When considering the meaning of “domestic group”, it is significant that it is expressed in the singular whereas the alternative class of occupier is stated to be “individual/s”. The intention of the definition read as a whole is that whilst residential occupation by more than one individual is contemplated by the use of premises for a “House”, occupation by only one domestic group is contemplated. In such circumstances a secondary dwelling is permitted only in the context of the occupation of the premises by one domestic group. That is not the situation on the facts before me. As they have been used, the two dwellings are not one “House”. [12] Turning to the submission that the premises are not a “Multi-unit dwelling” because more than two discrete households are contemplated by the use of “several” in the definition, the respondent relies upon a preponderance of dictionary definitions which state that the word “several” means at least “more than two”.9 Conversely the applicant relies on the on-line Oxford English Dictionary which relevantly defines the word as “A number of different; various, diverse, sundry” and specifically in legal use as being “More than one”. Both parties disavowed reliance on an alternative definition of “several” being “separate”10 on the basis that this meaning would add nothing to the term “discrete” which immediately follows it. Further, the applicant stresses the approach to statutory interpretation followed by the Court of Appeal in AAD Design Pty Ltd, namely that extracted by Philippides J from Project Blue Sky Inc v Australian Broadcasting Authority11 which emphasises the importance of construing legislative provisions to give effect to harmonious goals. In this regard it is noteworthy that the definition of “Multi-unit dwelling” in City Plan 2000 was amended in July 2004 to remove various examples including “duplex” and include the phrase “irrespective of the building form” which appears in the current definition. The term “duplex” is not defined in City Plan 2000. In the Macquarie Concise Dictionary12 the term is defined as “a building consisting of two separate dwellings, arranged either on each storey of a two-storey building or as a pair of semi detached cottages”. It is uncontroversial that the premises would fall within such a definition. [13] Unsurprisingly the respondent submits that the removal of “duplex” from the definition of “Multi-unit dwelling” is supportive of its contention that the use of the premises is appropriately categorised as a “House”. Conversely the applicant submits that it was always within the contemplation of the definition of “Multi-unit 6 Ibid at 19. 7 Sections 7 and 14 and SPA s 80. 8 AIA s 4. 9 For example Macquarie Dictionary, 6th Ed, 2013 “being more than two or three”; the Oxford English Dictionary, 2nd Ed, 1989 “of an indefinite (but not large) number exceeding two or three. 10 Macquarie Concise Dictionary, 4th Ed 11 (1998) 194 CLR 355 at [70]-[71]. 12 4th Ed. -- 6 of 8 -- 7 dwelling” that the word “several” was intended to mean more than one and that a duplex is an example of such a use in circumstances where only two discrete households are contemplated. [14] Giving effect to the decision of the Court of Appeal in AAD Design Pty Ltd, the critical distinction between the definition of “House” and the definition of “Multi- unit dwelling” is “between ‘a domestic group or … individuals’ and ‘several discrete … domestic groups or individuals’”,13 there would clearly be a lacuna in the legislation if the word “several” meant more than two. It is tolerably clear that the appropriate interpretation of City Plan 2000 is to give effect to the harmonious goal of limiting the definition of “House” as applying to one domestic group or individuals and according “Multi-unit dwelling” a meaning that refers to a use where more than one discrete domestic group occupies premises. Accordingly the use of the premises is as a “Multi-unit dwelling”, not a “House”. Discretionary considerations [15] The respondent submits that even should the court conclude that the correct characterisation of the premises during the relevant period was “Multi-unit dwelling”, relief should nevertheless not be granted on discretionary grounds. In Warringah Shire Council v Sedevcic14 Kirby P considered the wide ambit of the discretionary power conferred on a court such as this,15 noting relevant features included whether or not the breach complained of was purely technical, the fact the local government had delayed in bringing the action, the legislative purpose of upholding the integrated and co-ordinated nature of planning law and that, relevantly, a council is seen as the proper guardian of public rights. [16] The first basis on which it is submitted relief should not be granted on discretionary grounds is that the question is now theoretical because City Plan 2000 is no longer in force, having been replaced with a different statutory regime pursuant to City Plan 2014. Secondly, it is submitted that the applicant itself has been shown at times to be unsure of the correct definition which applies to the use being carried on at the premises.16 Accordingly it is asserted that the breach is merely a technical breach and further that it would be unjust to declare that the respondent has committed a development offence. Thirdly, it is submitted that in any event there is no evidence of any adverse impact caused by the use of the premises which it is asserted satisfy a community need for affordable housing. Finally, it is submitted that the fact that the council delayed bringing the proceeding until after the new planning regime was in place is a relevant consideration in itself. [17] Also relevant to the exercise of my discretion is the approach of the respondent in establishing the premises. He gave evidence and was vigorously cross-examined. Despite being a highly educated man and a successful property developer, he undertook the development of the premises without obtaining any legal advice.17 The corporate entity controlled by him has recently pleaded guilty of nine development offences and four environmental offences, incurring significant fines.18 13 AAD Design Pty Ltd v Brisbane City Council, op cit at 21. 14 (1987) 10 NSWLR 335. 15 Ibid at 339-341. 16 See Exhibit 8, where in a warrant application the council asserted the use was an undefined use. 17 T1-90 lines 35-45. 18 Exhibit 11. -- 7 of 8 -- 8 The offences included unlawfully demolishing a character house on the site of the premises.19 The use of the premises in the manner described previously is not an isolated occurrence. The respondent estimates that he has been responsible for the construction of in excess of 150 similar developments within the Brisbane City Council area in the context of a significant commercial venture.20 Conclusion [18] Development rights obtained under City Plan 2000 continue to have effect despite the coming into force of City Plan 2014. Declarations as to the lawfulness of the use of the premises during the relevant period therefore have utility. The uncertainty of the applicant about the correct categorisation of the use of the premises is to be contrasted with the cavalier attitude of the respondent in constructing the premises and many more like them without first obtaining legal advice as to the lawfulness of the proposed use and a preparedness to resort to unlawful means to do so, as evidenced by the pleas entered on behalf of the corporate entity controlled by him to significant and relevant development offences. The applicant is appropriately seeking to uphold the public rights conferred by City Plan 2000 in the context of the respondent cynically seeking to exploit the ambiguity the subject of this proceeding for commercial gain, under the guise of unilaterally providing “affordable housing”. The absence of an identifiable adverse impact on third parties as a consequence of the use of the premises occurs in the context of a calculated usurping of the applicant’s planning controls. I am satisfied, having regard to the evidence before me, that it is appropriate to make declarations in accordance with paragraphs 1 and 2 of the originating application. [19] The significant delay of the respondent in bringing this proceeding has tangible consequences which are most relevant to the exercise of my discretion so far as the balance of the relief sought by the applicant is concerned. The enforcement order sought in paragraph 4 of the application fails to acknowledge the possibility of lawful rights arising as a consequence of the new planning scheme. It is simply too broad as there is a possibility that the premises could be used lawfully pursuant to City Plan 2014. The declarations sought in paragraph 3 of the originating application only have utility as laying the basis for the enforcement order sought in paragraph 4. I decline to make the enforcement order sought in paragraph 4, and in the circumstances I further decline to make the declarations sought in paragraph 3. Orders [20] I declare that pursuant to s 456 of the Sustainable Planning Act 2009 that during the period 18 January 2013 to 14 February 2014 the use of the premises at 121 Besham Parade, Wynnum in the State of Queensland and described as Lot 10 on SP254565 was not for a “House” as that term is defined in the Planning Scheme for the City of Brisbane, City Plan 2000. [21] I declare that pursuant to s 456 of the Sustainable Planning Act 2009 that during the period 18 January 2013 to 14 February 2014 the use of the premises at 121 Besham Parade, Wynnum in the State of Queensland and described as Lot 10 on SP254565 was for a “Multi-unit dwelling” as that term is defined in the Planning Scheme for the City of Brisbane, City Plan 2000. 19 T1-108. 20 T1-85-86. -- 8 of 8 --