Bundaberg Regional Council v Loeskow & Ors [2011] QPEC 95 [2012] QPELR 27

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bundaberg Regional Council v Bruce Desmond Loeskow & Ors [2011] QPEC 95 PARTIES: BUNDABERG REGIONAL COUNCIL (Applicant) V BRUCE DESMOND LOESKOW (First Respondent) And BELINDA VERONICA LOESKOW (Second Respondent) And RICK DREW (BURNETT COUNTRY CERTIFIERS) (Third Respondent) FILE NO/S: 4038 of 2010 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 9 June 2011 DELIVERED AT: Brisbane HEARING DATE: 16/05/2011 – 17/05/11 JUDGE: Searles DCJ ORDER: AS PER SCHEDULE B TO THIS JUDGMENT CATCHWORDS: Building approval - Material change of use Whether property used for residential purposes- power of Private Assessor to issue Building Approval under s83(1)(a) Building Act 1975 where no approval for Material Change of Use in existence COUNSEL: For the applicant: M Williamson For the third respondent: B Cronin SOLICITORS: Connor O'Meara for the Applicant Finemore Walters & Story for the First and Second -- 1 of 22 -- 2 Respondents Payne Butler Lang for Third Respondent Application [1] The Applicant (Council) seeks a declaration and consequential Enforcement Orders in relation to the construction and use by the First and Second Respondents of a large shed on land described as Lot 41 on Survey Plan 213330, situated in the County of Cook, Parish of Barolin and situated at 6 Seahorse Court, Innes Park (the Land). The gross floor area (GFA) of the shed is 134m². [2] Underlying the Enforcement Orders sought is the declaration that Council seeks that the Building Approval (Approval) granted by the Third Respondent, a Private Certifier, on 25 March 20101 is invalid. Grounds relied upon by Council [3] The Council relies on three grounds to establish the invalidity of the Approval:- (a) that, by virtue of s.83(1)(a) of the Building Act 1975, the Third Respondent was not permitted to issue the Approval ( MCU point); (b) that the Building Works Application, the subject of the Approval, was not properly referred to the Council as a Concurrence Agency and thereby lapsed with the consequence there was no Application for the Third Respondent to approve ( Referral Point); and (c) the Building Works Application, the subject of the Approval, should have been refused ( Refusal Point); Background The First and Second Respondents are owners of the Land and the adjoining lot at 14 Esplanade, Innes Park, which is developed with a detached dwelling. On 14 January 2010 the Third Respondent received an Application for a Building 1 Affidavit R D Drew, 25 March 2011, Exhibit RDD-7 -- 2 of 22 -- 3 Approval from the First Respondent seeking approval to construct a new shed on the land 2 . The land, the subject of that Application, was confined to the subject land only. The Application required referral to the Council as a Concurrence Agency. On 18 January 2010 the following occurred:- (d) the First and Second Respondents appointed the Third Respondent as a Private Building Certifier in accordance with Division 2 of the Building Act 19753 ; (e) the Third Respondent gave notice to the Council, pursuant to s.143(a) of the Building Act 1975 of his appointment as a Private Certifier 4 ; and (f) the First and Second Respondents lodged with the Council a Request for Concurrence Agency Assessment - Planning, for building matters pursuant to Schedule.7, Table 1, Items 17, 19, 20 and 21 as applicable of the Sustainable Planning Regulation (2009) (SPR)5 . [4] According to the Third Respondent6 , on 21 January 2010, the First Respondent and Mr Kenney from the Third Respondent's office met with a Council Planning Officer, Ms Marinda Grayson. After discussion as to the appropriate request for Concurrence Agency Assessment, she accepted a fresh Application, being a Request for Concurrence Agency Assessment - Building on Amenity and Aesthetics and confirmed that this new application replaced the application lodged on 18 January 2010. [5] Ms Grayson 7 has no recollection of that meeting or the fresh application and there is no record of it in the Council records8 . What the Council does have are what is described9 as two versions of the 18 January application. Relevantly the difference between those two documents is that one10 is Request for Design & Siting and has two boxes completed in the final paragraph, whereas the second document11 shows that neither box is completed to identify whether the request is for Design & Siting or Amenity and 2 Drew Affidavit, para 3; Exhibit RDD-2 3 Drew Affidavit, Exhibit RDD-3 4 Drew Affidavit, Exhibit RDD-4 5 Affidavit Kenney, 25 March 2011, Exhibit WJK-3 6 Kenney Affidavit, para 5 7 Affidavit 15 April 2011 8 See also Affidavit A M Otto, 15 April 2011 9 Otto Affidavit, para 7 10 Otto Exhibit MEG-1 11 Otto Exhibit MEG-2 -- 3 of 22 -- 4 Aesthetics and has three boxes crossed in the information section. The significance of all this is that, according to Mr Kenney, in the discussion with Ms Grayson, he told her that Applications for Concurrence Agency Assessment on Design and Siting could not be lodged in relation to Class 10 buildings, which the shed is, with a gross floor area exceeding that designated for Class 10 buildings. According to Mr Kenney, he also told Ms Grayson that the correct application was for an Assessment on Amenity and Aesthetics. [6] What is common to both applications on the Council file is the description of the proposal which is: "shed larger than 60m² to store a large boat, caravan and accessories and associated farm equipment that would be otherwise stored in full view of street frontage." [7] According to the Council the request did not include either a full copy of the Building Application placed before the Third Respondent or an Acknowledgment Notice for that application. [8] The Council's Planning Committee considered the matter on 4 February 2010 and notified the First Respondent by letter bearing that date that the application was refused on the following grounds:- • The proposed domestic storage will be visually obtrusive, being greater than double the allowable size. • The proposed domestic storage will not appear residential in nature or scale. • The proposed domestic storage will not be compatible with the locality and will affect the amenity of the neighbouring property. • The proposed domestic storage will not contribute to an attractive streetscape 12 . The Council letter referred to the application lodged on 20 January 2010, the day before the above meeting, and expressly addressed the Concurrence Agency Assessment request as an Application for Amenity & Aesthetics. 12 Affidavit Jenna, Exhibit RWJ-8 -- 4 of 22 -- 5 [9] By letter dated 10 February 2010 the Third Respondent‘s firm notified the Council13 that the ten business day period for assessment of the application under Schedule 15 of the SPR had expired on 2 February 2010 and the First and Second Respondents had not been notified of the Council's decision of 4 February 2010 until 8 February 2010 when it received the Council’s letter of 4 February 2010. On that basis, according to the Third Respondent, the expiry of the assessment period without a decision deemed the Council's decision to be that there were no requirements in relation to the application. The letter gave the Council five days to respond, failing which a Building Approval would be issued. In the result, no substantive response was received from the Council and on 25 March 2010 the Third Respondent issued his Approval [Decision Notice Approval for Class 10(a) Buildings and Structures - Sustainable Planning Act 2009 s.335]14 . Council's argument The MCU point [10] The Council submits that the application included development other than building work in that the commencement of the use of the subject shed for a domestic storage constitutes a Material Change of Use (MCU) from its use as Vacant Land and is Assessable Development. Domestic storage is defined in the Planning Scheme as:- "Domestic storage means use of a shed or other storage facility (such as a shipping container) for storage of domestic goods including boats, cars, household items and tools not associated with a detached dwelling on the same lot and not for commercial gain." (emphasis added) The Council says the relevant Material Change of Use occurred at the point of transition from the use of the land as vacant land to domestic storage. That, it is said, is consistent with the definition of Material Change of Use in the Sustainable Planning Act 2009 (SPA) which, relevantly, provides 15 :- "Material Change of Use of Premises means:- (a) Generally:- (i) The start of a new use of the premises; or (ii) …; or (iii) … 13 Jenna Affidavit, Exhibit RWJ-9 14 Affidavit Jenna, Exhibit RWJ-11 -- 5 of 22 -- 6 The definition of "premises" includes land whether or not a building or other structure is situated on it16 ." [11] It is common ground that the land is included in the boundaries of the Burnett Shire Planning Scheme 2006 and is included in the Urban Residential Zone (Coastal Towns Planning Area). Attached as Schedule A are copies of the following extracts from the Planning Scheme:- (a) Paragraph 1.12 - Planning Scheme identifies alternative provisions; (b) Table 3.4 - Assessment Table - making a Material Change of Use of Premises - Urban Residential Zone (Coastal Towns Planning Area); and (c) Specific Outcomes - SO.264 and Acceptable Solutions or Probable Solutions - PS.264.1; and (d) Table 8.4 - Siting Requirements for Sheds and Domestic Storage. [12] The making of a Material Change of Use for Domestic Storage in the Urban Residential Zone is governed by Table 3.4. The Council says that part of the table dealing with Domestic Storage provides for three potential levels of assessment:- (a) Self Assessment where the MCU complies with the acceptable solutions in the Detached Dwelling Domestic Storage and Building Works Code (Code); (b) Code Assessment where the MCU does not comply with an acceptable solution in the Code and that acceptable solution is not an alternative State Building Regulation (SBR) provision; and (c) Impact Assessment where no other self assessment or code assessment is appropriate. The foundation for that default mechanism to impact assessment is said to be in the interpretation of the word "otherwise", found on the bottom line of page 2 of Table 3.4. Next to that word is shown the assessment category as "Impact". [13] The Council then points to Specific Outcome SO.264 and Probable Solution PS.261.1 which are in the following terms:- 15 Section 10(a)(i) 16 SPAR, Schedule 3 -- 6 of 22 -- 7 FOR DOMESTIC STORAGE SO.264 Domestic Storage (i) Is visually unobtrusive; (ii) Retains the residential character when located in residential areas; (iii) Is compatible with the existing or expected future development in the locality; (iv) Contributes to attractive streetscapes or rural landscape. PS.264.1 Domestic Storage has a - (i) Combined a maximum GFA, minimum frontage set back, minimum side and rear boundary set back and maximum wall height as specified in Table 8.4; and (ii) If in the Urban Residential Zone or the Hinterland Residential Zone, the maximum width of any opening that faces the street, whichever is the lesser of 6 metres; or half the width of the frontage of the lot to which the opening is facing; [14] Table 8.4 referred to in PS.264.1 is in these terms:- TABLE 8.4 - SITING REQUIREMENTS FOR SHEDS AND DOMESTIC STORAGE Zone/Precinct Combined GFA of all sheds or domestic storage Minimum frontage setback Minimum side or rear boundary setback Maximum wall height Urban Residential Zone; and… Up to 60m² (SBR alternative provision) In accordance with the SBR In accordance with the SBR In accordance with the SBR [15] As can be seen from Table 8.4 the relevant Acceptable Solution provides for a combined GFA for domestic storage of up to 60m², some 74m² less than the 134m² of the subject shed. The Council’s argument is that non-compliance with the 60m²GFA results in the MCU being neither self assessable or code assessable, but impact -- 7 of 22 -- 8 assessable. Whatever might be the relevant level of assessment, it is obvious PS.264.1 cannot be complied with. Building Act 1975 [16] Section 83(1)(a) of the Building Act 1975 provides: “General restrictions on granting building development approval (1) The private certifier must not grant the building development approval applied for – (a) If the building development application includes development other than building work – until, under the Planning Act, all necessary development permits and SPA compliance permits are effective for the other development; and …” [17] As I have said, the Council argues that the building development application approved included development other than building work namely the material change of use so that no approval could have been granted by the Third Respondent until approval for the material change of use had been obtained which has not occurred. It follows, on that argument, that the Third Respondent had no power to grant the Approval of 25 March 2010. Third Respondent’s response to MCU point Operation of s 232(2) of SPA [18] The respondent seeks to invoke s 232(2) of SPA which provides:- “232 A regulation may proscribe categories of development or require a code or impact assessment -- 8 of 22 -- 9 (1) A regulation may prescribe that development is – (a) Self-assessable development; or (b) development requiring compliance assessment; or (c) assessable development. (2) Also, a regulation may proscribe development that a planning scheme, a temporary local planning instrument, a preliminary approval to which s 242 applies or a master plan can not declare to be self- assessable development, development requiring compliance assessment, assessable development or prohibited development. (3) In addition, a regulation may require a code or impact assessment, or both code and impact assessment, for assessable development. The Third Respondent says that the use of the land for domestic storage is a use for a residential purpose and points to the reference to domestic storage in the planning scheme definition of residential which is in these terms: “Residential Includes a Caretaker’s residence, Detached Dwelling, domestic storage; dual occupancy, high-density housing and tourist park.” [19] Returning to SPA s 232, it envisages that a regulation enacted under SPA may proscribe development that a Planning Scheme cannot declare to be, relevantly, assessable development and SPA s 233(1) provides that, to the extent a Planning Scheme is inconsistent with such a regulation, the Planning Scheme is of no effect. [20] The Third Respondent contends that, as the subject shed is a use for residential purposes, SPR Schedule 4 Table 2 applies so that any provision in the Council’s Planning Scheme seeking to regulate the MCU development is of no effect. In other words, the provisions of the scheme relied upon by the Council above outlined have no operation. -- 9 of 22 -- 10 [21] SPR Schedule 4, Table 2, Item 2 , relevantly, provides: “Schedule 4 – Development that cannot be declared to be development of a particular type – Act, section 232(2) Table 1 - Building Work 1 … Table 2 - Material change of use of premises For a Class 1 or 2 Building 1 … Table 2 – Material change of use of premises For a particular Class 1 Building or Class 10 building or structure Making a material change of use of premises for a class 1(a)(i) building, class 1(a)(ii) building comprising not more than 2 attached dwellings or a class figure 10 building or structure under the BCA if – (a) The use is for a residential purpose in a residential zone; and (b) for an existing class 1(a)(i) building or class 1(a)(ii) building comprising not more than 2 attached dwellings – the material change of use involves the repair, renovation, alteration or addition to the building; and (c) for a class 1(a) not mentioned in paragraph (b) – there is no existing dwelling house on the premises; and (d) the development is not self-assessable development under a planning scheme, temporary local planning instrument, master plan or a preliminary approval to which s 242 of the Act applies; and (e) either – (i) No overlay (other than an overlay about bush fire hazards), as identified in the planning scheme, applies to the premises; or (ii) an overlay about bush fire hazards applies to the premises and the premises are less than 2000 m2 .” (emphasis added) -- 10 of 22 -- 11 [22] It can be seen then, from Item 2(a), that, if the subject use is for a residential purpose, then SPA s 232(2) will be triggered so as to render any relevant regulatory provisions of the Planning Scheme ineffectual. The question then is whether the use is for a residential purpose. Is the use of the shed for Domestic Storage a use for a residential purpose [23] The Third Respondent relied upon Pearson v Thuringowa Shire 17 Council where the expression “residential purpose for the purposes of the standard building regulations was in issue. In that case the applicant had been convicted for an offence involving the unauthorised use of a shed for residential purposes. His evidence was that he carried out the following activities in the shed: (a) watched football on the television; (b) used a stove for cooking; (c) used a toaster and jug; (d) used a fridge to store his food; (e) used a shower; (f) used the washing machine; (g) had a telephone in the shed the number of which was listed in the relevant telephone directory; (h) had a mail box at the shed where he received mail; and (i) he met visitors at the shed. He said that he usually slept in a nearby campervan. [24] Keane JA ,as he then was,and with whom McPherson JA and Dutney J agreed, had this to say:-18 “11 The phrase “residential purposes” is not defined in the Standard Building Regulations 1993 (Qld) so it is necessary to arrive at an appropriate definition by recourse to authority and by reasoning from first principle. In terms of relevant 17 [2005] QCA 310. 18 Paragraphs 11 and 12. -- 11 of 22 -- 12 authority, the full court of the Federal Court recently had the opportunity to consider the meaning of “residential premises” for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”) in Marana Holdings Pty Ltd & Anor v Commissioner of Taxation (2004) FCA FC 307; 2004 214A LR 190. The definition of that phrase provided by s 195-1 of the GST Act depended upon the meaning of the term “residence”. After conducting an extensive review of the dictionary meaning of words such as “residence”, “reside” and “residential” as well examining previous authority dealing with the meaning of phrases such as “residential accommodation”, the full court concluded that such terms usually quote a degree of permanent or long term commitment to the occupation of the premises in question. I would respectfully agree with that conclusion.” “12 The question in this case is whether the applicant used the shed for “residential purposes”. In my opinion, bearing in mind what has recently been said by the full Federal Court about the meaning of “residential”, a building is being used for “residential purposes” when the primary use of the building is as a venture for a function or functions normally undertaken in a dwelling, such as food preparation and consumption, washing or sleeping, in a manner that is not merely temporary or sporadic but is consistent with an intention to use the building for such functions on a permanent or long-term basis. Whether or not the usage to which a building has been put meets this definition will be a question of fact in each case. In the present circumstances, in my view, the applicant admissions about his persistent use of the shed in order to carry out functions consistent with the use of the building as a dwelling mean that it is not possible to conclude the learned Magistrate and the learned District Court Judge on appeal, were in error when they found that the applicant had made use of the shed for “residential purposes”.” [25] The Third Respondent submits that the use of the shed for the storage of domestic goods is in association with the residential use by the first and Second Respondents of their detached dwelling at 14 Esplanade, Innes Park. Further, the definition of use in SPA is relied upon. It defines use, in relation to the premises, as including any use incidental to and necessarily associated with the use of the premises. Hence, it is said, the storage of the barge boat, caravan and accessories and associated farm equipment is -- 12 of 22 -- 13 intrinsically a part of the domestic use of the esplanade property. Such storage, as the Third Respondent says, may occur within the primary structure of the dwelling house or in a separate shed on an adjacent property, and occurs in every household so that domestic storage is necessarily associated with a residential purpose. In his view there is no reason to take a different view for a shed erected on a separate allotment from that where the shed is erected on the same allotment as the residential dwelling and adjacent to it. Rather, it is said, the focus should be on the use of the shed and, in both instances, the use is the same. In summary, the use of the shed for domestic storage is for a residential purpose as it is intrinsically and necessarily related to the use on the Esplanade’s property. Hence the Council Planning Scheme is unable to regulate that use, and the Third Respondent, as assessment manager, is unconstrained by any requirements of the Planning Scheme and may approve or refuse the application in the course of a validly exercised assessment. Council’s response to the s 232(2) SPA Point [26] The Council’s response starts with the definition of “domestic storage” in the Planning Scheme which I again set out for convenience:- “ ‘Domestic Storage’ means use of a shed or other storage facility (such as a shipping container) for storage of domestic goods including boats, cars, household items and tools not associated with a detached dwelling on the same lot and not for commercial gain.” (emphasis added) [27] Council says that the definition does not contemplate residential accommodation described in Pearson and, picking up the words highlighted in the above definition, excludes domestic storage associated with a detached dwelling on the same lot. In other words, the definition of domestic storage only contemplates domestic storage when associated with a detached dwelling on the same lot as the storage shed which is not the case here. Hence, it is said, the subject shed falls squarely within the definition of domestic storage. -- 13 of 22 -- 14 [28] As to the Third Respondent’s argument that the use is incidental to, and necessarily associated with, the use of the premises, the Council says that the relevant premises are those described in the building application which, confines the premises to the lot upon which the shed is built and not the adjoining lot with the detached dwelling. Accordingly, the Council says the use of the land is limited to the use of the shed, is not incidental to or necessarily associated with any other use of the land upon which that shed stands, and is thereby clearly being used for the purpose of domestic storage as defined in the Planning Scheme. 19 [29] Finally the Council says that the Third Respondent has put no evidence before the court to show the actual use to which the shed is being put as was done in Pearson. Conclusion re s 232(2) SPA Point [30] I am not persuaded that the Third Respondent’s argument in relation to the use of the shed premises for residential purposes has been made out. The arguments of the Council, in my view, correctly describe the position. I accordingly find that s 232(2) does not have the operation contended for by the Third Respondent and that the material change of use was for domestic storage only. [31] The Third Respondent identifies three separate categories of assessment in Table 3.4 in relation to domestic storage; (a) self assessable if the development complies with the Code; (b) Code assessable if it does not comply with the Code but does comply with any relevant SBR alternative provisions; and (c) Self assessable, with the local authority as concurrence agency, if there is compliance with the Code but not with the SBR alternative solution. Table 3.4 seems to me to provide for 3 types of assessment. Self assessment if the Acceptable solutions in the Code [PS.264.1] are complied with. They are not, because of the excess GFA. Next, Code assessable if there is non-compliance with the Code but compliance with an SBR alternative provision. Such a SBR alternative provision, the 19 See also Boral Resources (Qld) v Cairns City Council (1996) 91 LGERA 323 -- 14 of 22 -- 15 above mentioned GFA requirement restricting GFA to 60 square metres cannot be complied with. Hence it is not Code assessable. As to the third category of assessment, it is said by the Council to be impact assessment if neither of the other two levels of assessment is appropriate. The Council says that impact assessment is the appropriate level of assessment in this case. [32] The Third Respondent, on the other hand, says that by the operation of s 14 H of the Acts Interpretation Act 1954, the appropriate level of assessment in the present situation, where the SBR alternative provision referred to in the Code (Table 8.4) cannot be complied with, is self assessable with the Council as the concurrence agency 20 . [33] It is not necessary for me to determine the appropriate level of assessment of the MCU because of the view I have formed as to the validity of the subject Approval. [34] What is clear is that the MCU is assessable development. 21 Whatever may be the appropriate level of assessment, a development permit is required.22 I am satisfied the Council has made out its case that the building application submitted by the first and Second Respondents involved development other than building work namely a material change of use from the use of the land as vacant land to that of the shed for domestic storage. That triggered s 83(1)(a) of the Building Act 1975 which had the effect of denying to the Third Respondent the power to grant the building development approval of 25 March 2010 until the First and Second Respondents had obtained an effective development permit for the material change of use to domestic storage. I find that the building works and the material change of use both constitute the carrying out of assessable development in the absence of an effective permit so as to result in the commission of development offences. 23 [35] Given that conclusion, it is unnecessary for me to consider further the other two grounds of the invalidity of the Approval advanced by the Council. 20 See 3 rd Respondents written submissions paras 26-33 21 SPA Schedule 3-definition of assessable development; SPA s 232(1)(c); SPR Schedule 7 Table 1 Item 17 22 SPA s238 23 SPA s 575 -- 15 of 22 -- 16 Order Pursuant to SPA s604, I make orders in terms of Schedule B to this judgment which requires perfection by the completion of paragraphs 4(b) and 5 after I have heard from the parties. -- 16 of 22 -- -- 17 of 22 -- -- 18 of 22 -- -- 19 of 22 -- -- 20 of 22 -- -- 21 of 22 -- -- 22 of 22 --