Brisbane City Council v Wang [2008] QPEC 66

1 [2008] QPEC 66 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P&E Application No 3258 of 2004 BRISBANE CITY COUNCIL Applicant and VICTOR CHANG WANG Respondent BRISBANE ..DATE 19/02/2008 ORDER CATCHWORDS: Integrated Planning Act 1997 s 4.1.21, s 4.3.22, s 4.3.25 - enforcement order requiring demolition by respondent of structure erected on his premises without any permit - structure offended height and setback restrictions, its soundness was unknown - respondent not present at hearing, but Court satisfied he knew of an earlier hearing date (when he deliberately absented himself) and that the application might be renewed -- 1 of 15 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court has made an order in the following terms: " Order that 1. There be a declaration under section 4.1.21 that: (a) the Respondent, being the owner of the land located at 3 Cluden Street, Holland Park West, in the State of Queensland, more particularly described as Lot 66 on RP100702, ("the premises") has started assessable development, namely, building work, being the construction of a two storey concrete block building comprising a garage, a second floor and a roof deck ("the Structure") in or about the period 10 th February 2003 to 14 th October 2003, without a development permit contrary to s 4.3.1(1) of the Integrated Planning Act 1997; (b) the Respondent in or about the period 10 th February 2003 to 14 th October 2003 did not comply with a code when carrying out assessable development at the premises, namely the construction of the Structure, in that:- (i) the northern boundary clearance with respect to the Structure did not meet the standard required by section 38 of the Standard Building Regulation 1993; (ii) the road boundary clearance did not meet the standard required by section 36 of the Standard Building Regulations 1993; (c) the Respondent failed to comply with the Enforcement Notice issued to the Respondent by the Applicant issued on 30 June 2003; (d) the Respondent has failed to comply with the provisions of ss4.3.1(1), 4.3.2A and 4.3.5 of the Integrated Planning Act 1997; (e) the Respondent has committed a development offence within the meaning of the -- 2 of 15 -- 3 ORDER 1 10 20 30 40 50 60 Integrated Planning Act 1997, with respect to the Structure. 2. There be an enforcement order under section 4.3.22 and following that the Respondent: (a) cease using the Structure; (b) within 6 calendar months of the date of service upon him of a copy of this order, carry out such works, including demolition, as are required to ensure that the Structure is removed from the premises; and (c) within 6 calendar months of the date of service upon him of a copy of this order, return the premises to a condition as close as practicable to the condition that it was in immediately before commencement of the construction of the Structure. (d) Within 3 calendar months of the date of service upon him of a copy of this order, file in this court and serve on the applicant council, an affidavit setting out the progress made to comply with this order 2. 3. For the purposes of the above, service may be effected upon the Respondent by posting prepaid registered post to 3 Cluden Street, Holland Park West, Qld. 4121 and by leaving a further copy at the premises with any person found there on the occasion of such service being effected, the forgoing service to be deemed effective 2 business days after the required steps have been taken. 4. The parties have liberty to apply in respect of Order No. 2 hereof. 5. That this matter be reviewed on the 28th May 2008." As paragraph 5 indicates, this is just one stage in a saga which has now extended over five years. The order is made in the absence of the respondent who was not here when the matter was called on at 2.30 p.m. or in the same Court this morning -- 3 of 15 -- 4 ORDER 1 10 20 30 40 50 60 when it was realised that the matter had been inadvertently listed at 10.00 a.m. Nor was Mr Wang in Court on the 6th of February 2008 when I fixed this afternoon's hearing. The matter had come on for mention on that day. The applicant Council and its counsel, Mr Cronin, have approached this matter in a restrained and diffident manner, if I may say so, and it may well have a been considerable amount of encouragement from the Court on the 6th of February that led to the application's being listed for hearing today with a view to advancing matters. I have taken advantage of the intervening period to familiarise myself with the voluminous material on the file. Exhibit 1 is a full list of what Mr Cronin has relied on today… ... HIS HONOUR: ... supplemented by two affidavits the subject of leave to read and file: one of Mr Evans sworn yesterday informing the Court of the reported inability of Mr Wang's house sitter, Mr Phillip Tu, to contact him with advice of today's hearing and a significant one of Ms O'Brien. The most significant single item in Exhibit 1 is the last - (q) a certificate under section 1117 of the Local Government Act 1993 under the hand of Hayden Wright, the Town Clerk; he was acting town clerk at the date of the certificate (6th of July 2005). I regard section 1117(3) as warrant for the Court's accepting the documents included in the certificate for what they are -- 4 of 15 -- 5 ORDER 1 10 20 30 40 50 60 and for practical purposes as establishing sufficiently what they say as to essentials. Although the certificate does not, as one might expect, perhaps, go into chapter and verse about Mr Wright's authority to give the certificate, other provisions of the Local Government Act 1993, in particular section 10, appear to me to establish it. This matter was listed for hearing on the 25th of October 2005 and came before Senior Judge Skoien. His Honour was unhappy about proceeding on the basis of statements from the Bar table about steps taken to inform Mr Wang of the hearing date; in those circumstances he adjourned the matter. This is hardly surprising given the nature of the Council's quest which is to have demolished, if it cannot be regularised by some successful planning application, in whole or substantially a large concrete block structure which Mr Wang has constructed on his property. It infringes setback requirements and exceeds the standard height restrictions. No approval has been granted for the building nor, subject to minor qualification, even sought. The structure may be described as an ornate ground level double car garage alongside a doorway leading up to a suite of some kind constructed immediately above it which in turn is topped by a "viewing platform" surrounded by a balustrade with substantial block pillars giving an impression of turrets. The appearance of the structure is somewhat exotic and suggestive of Chinese inspiration. It is not unpleasant to behold and, indeed, might be seen as a point of interest for -- 5 of 15 -- 6 ORDER 1 10 20 30 40 50 60 those who come upon it - which observation is not to gainsay the hostile reaction of those compelled to live next door or near to it; it is on a hilltop and dominates the street. Although cases exist of courts ordering the demolition of unlawfully constructed building, as in Council of the Shire of Hornsby v Danglade [1928-29] SR(NSW) 118; 45 WN (NSW) 197-see especially at 124 (200) where English authority to like effect is acknowledged - the more common approach is to eschew the waste of resources which demolition of structures (unless they are unsafe) would entail: see Caloundra City Council v Taper Pty Ltd [2003] QPELR 558. The usual approach is to give every opportunity to the errant developer to get matters regularised or to work out some less dramatic outcome; cf. Nimmo v Land One Solutions Pty Ltd [2006] QPELR 645. Senior Judge Skoien's approach is readily understood. The Council planner, Mr Kelly, in his affidavit aptly describes the structure as "a house which is not minor building work, which does not have a development permit and does not comply with the acceptable solutions in the House Code." He notes the acceptable solution requiring that no part of a house be more that 8.5 metres above ground level. Mr Wang's structure fails to comply and as such represents "code (notifiable) assessable development for which no application has been made to the Council." Ms O'Brien's affidavit provides the Court with sworn evidence of matters his Honour appears to have been reluctant to accept -- 6 of 15 -- 7 ORDER 1 10 20 30 40 50 60 from the Bar table. It confirms that Mr Wang was not at the callover when the matter was set down for the 25th of October 2005, however, he was informed by Ms O'Brien by telephone on the 5th of October 2005 of the hearing date and of the necessity that he attend and be ready at that time. Mr Wang was kept informed by having posted to the address of the premises which he gave as his address for service when he began to act for himself about further affidavit material being prepared by the Council. There was another telephone call to the residence by Ms O'Brien on the eve of the hearing. Ms O'Brien's contemporaneous note is, and I quote, "Phoned Mr Wang's residence and spoke to a female. I asked if I could speak to Victor Wang. She said she would go get him for me. She returned a short while later and told me that Victor was not there. I left a message for Victor to call me back." The next day the hearing occurred without any attendance by Mr Wang. Further telephone approaches by Ms O'Brien to the house led to a discussion in the course of which the female said Mr Wang had gone overseas. Mr Wang himself within a few hours called back indicating that he wished to resolve matters with the Council and he thought it would help the Council if he did not turn up at the Court. The Court file contains the Registrar's notice to Mr Wang of the setting down of the matter for hearing on the 25th of October 2005. ... -- 7 of 15 -- 8 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The date of the Registrar's letter is 21st of September 2005. To my mind, confirmation that Mr Wang was fully aware of the hearing and, indeed, able to attend it had he had the desire to, is his filing of a lengthy affidavit sworn by himself on the 21st of October 2005. His Honour had that affidavit on the 25th of October 2005; I am told by Mr Cronin he read out certain parts of it at the hearing. In the last conversation she had with Mr Wang of which she provides a very detailed contemporaneous note, Ms O'Brien made it clear to him that although nothing had happened on the 25th of October 2005 in the Court, the Council could be expected to bring the matter on again. This she (reasonably accurately) advised him could lead to a demolition order being made if the construction was not regularised and to the Council effecting demolition if Mr Wang failed to, with the consequence that he would be responsible for the cost of it, which in turn might become a charge on the property. On the 6th of February this year the house sitter, Mr Tu, gave evidence which I thought unconvincing, to the extent that it described Mr Wang as incommunicado in China. On at least one very recent occasion, Mr Tu said he had seen Mr Wang attend at the house. Although no members of the Wang family reside there at the moment according to him, he gave evidence of observations which suggest that the family have children at a school at Toowong which can fairly readily be identified. It is not established that Mr Wang has notice of today's hearing but one would not be terribly surprised to hear in due -- 8 of 15 -- 9 ORDER 1 10 20 30 40 50 60 course that he did know about it. He has, it seems, made himself incommunicado, leaving as the address for service in this still pending proceeding the address of the relevant premises. Whatever leeway members of the community might crave in respect of development on their own properties, they expect that others will comply with planning rules and regulations, and that the Council, if approached, will do its best to enforce them. There are important public interests involved here. The Council's attempt to vindicate them ought not to be frustrated by Mr Wang's making himself so difficult to contact. He will have the ordinary right of any party whose interests are affected by an order made in his absence to approach the Court to seek to have that order set aside or changed in some appropriate way. The order is not going to have direct consequences for some months following service. Some observations about the justice of the case might be made. I have read Mr Wang's affidavit and, indeed, numerous letters sent by him to the Council and others which can be found in item (q). He is very quick to protest the injustice of what is happening to him, presenting the point of view that his structure does no harm. He is blaming the builder rather than himself for the failure to get or seek relevant permits. That builder, -- 9 of 15 -- 10 ORDER 1 10 20 30 40 50 60 incidentally, seems never to have been identified; Mr Wang suggests he has now disappeared. He is critical, too, of the Council for failing to stop the construction before it went too far and, indeed, for its failure to sufficiently instruct him and other members of the public about the requirement to obtain Council authority for structures of the kind he has put up. He advances the opinion that the structure has enhanced the value of neighbouring properties. He seems totally incapable of appreciating that the neighbours might genuinely be unenthusiastic about this addition to their physical surrounds. It may well be that in absolute moral terms something could be said for his approach, that he ought to be entitled to do what he wishes on his own land or at the very least to do what he has done. But that ignores the well-established constraints that all land owners are subject to in this era when doing just about anything seems to require a permit. It is the case that the Council was alerted to the construction underway by a complaint from the locality. The Council has kept track of the construction and a series of photographs showing the progress of it may be found in item (q) - I think the earliest is the 23rd of April 2003. ... -- 10 of 15 -- 11 ORDER 1 10 20 30 40 50 60 HIS HONOUR: At intervals of weeks or thereabouts new sets of photographs were taken. The work seems to have reached its full extent by about mid-October 2003. But further finishing may be depicted in photograph of the 10th of April 2004. The Council's concern had been advised to Mr Wang no later than the 30th of June 2003 when a letter of that date was hand delivered to "Mrs Wang" at the premises advising that work must be stopped and that Mr Wang should contact the Council. The letter was an enforcement notice requiring Mr Wang to cease building work immediately, apply for the necessary development approvals within five business days and obtain the necessary development permits prior to any further development or building works being undertaken. Mr Wang was advised that failure to comply would be an offence under the Integrated Planning Act 1997 attracting maximum penalties in excess of nearly $125,000 for an individual or nearly $625,000 for a corporation; appeal rights were advised to him. By letter of the 1st if July 2003 Mr Wang responded. His letter acknowledged receipt of a Council officer's calling card on the 23rd of April 2003 which the letter says was not ignored but rather passed on to the builder: "obviously the builder did not make the contact." Then, according to the letter, in May 2003 a solicitor was engaged to "help me to follow through the builder," the solicitor's "recent" advice being that there was no hope of getting anything out of the builder. -- 11 of 15 -- 12 ORDER 1 10 20 30 40 50 60 There is an assertion that no further building work has been done since 23rd April 2003 which I would say is belied by the photographs. Mr Wang wrote, "It looks terrible and I only tried to dress up a little bit since I live there daily." There is no need to traverse the correspondence further; the point is that Mr Wang since around the 23rd of April 2003 may be taken as aware of the problems facing him. The Council's file indicates a cooperative approach insofar as Mr Wang (mistakenly called Chang in a letter of 14th of April 2004 from Tania Favero) was offered advice as to how he might get matters regularised. I ought to note here that the earliest document on the Council's file is a request for action by the local councillor dated 27th of February 2003. The constituent's request was that the Council "investigate" rather than stop the construction. By the time of the Councillor's next request for action, 11th of April 2003, Council officers had already become involved. I think it would be asking too much of the Council to expect it to have intervened sooner than it did along the lines of Mr Wang's assertions. Certain things were done by him once intervention came. He applied to the Council for a relaxation of setbacks, but unsuccessfully. An application was then made by Mr Wang to the Building and Development Tribunal constituted by a well-known planning consultant, Mr Schomburgk and a referee, Mr Grant Wilson. -- 12 of 15 -- 13 ORDER 1 10 20 30 40 50 60 Mr Wang, in contrast to his level of activity in the Court, was present, assisted by a Mr Bob Stermberg, a private building certifier. The Tribunal's decision was dated the 8th of March 2005. The reasons expressed the view that the building as a whole represented a major negative visual intrusion into the streetscape; that the design did not take into account impacts on streetscape and adjoining properties. The absence of necessary structural compliance checking was noted. Mr Wang, however, enjoyed a certain level of success, the Tribunal allowing his appeal in part. As summarised in Mr Cronin's written submissions, the Tribunal set aside the decision of the Council insofar as it related to the ground floor garage only on condition that: (a) the habitable room, viewing tower and stairs were removed, (b) the applicant was to provide a structural certificate from a registered engineer for the ground floor garage to demonstrate structural soundness, (c) the roof of the garage was to be designed and constructed to all relevant standards, (d) a certificate from a licensed surveyor that the roof was no higher than 8.5 metres above natural ground level be obtained; and (e) the applicant was to provide and maintain landscaping. -- 13 of 15 -- 14 ORDER 1 10 20 30 40 50 60 There was no appeal from that decision nor, it seems, has anything been done pursuant to it to obtain planning consent for what it would permit. I think it is convenient to adopt what Mr Cronin says in paragraphs 12 and 13 of his written submission which I set out here: "12. Pursuant to s.1.3.2 of IPA, development includes "carrying out building work". Building work is defined in s.1.3.5 of IPA. Under Schedule 10, assessable development is defined by reference to Schedule 8, Part 1 of IPA. Building work that is not self assessable or declared under the Standard Building Regulation (“SBR”) to be exempt development. Section 4 of SBR says that all building work is assessable against the SBR or it is declared under Schedule 5 of the SBR to be self assessable development. 13. The evidence shows that: (a) a development application for building work has never been made. A development permit is necessary for assessable development under s.3.1.4(1) of IPA. Under s.4.3.1(1) it is an offence to start assessable development unless there is an effective development permit for the development; (b) even if an application was made, the siting of the structure would not meet s.36 and s.38 of the SRA and therefore the development would be carried out without complying with the applicable code under s.4.3.2. The work is assessed against the code pursuant to s.4(1) of the SBR. Section 34 SBR refers to single detached housing. An application was made to a local authority under s.20. That application was refused by the local authority and approved only with respect to a ground floor structure by the Queensland Building Tribunal." There has been a development offence, indeed, on the foregoing analysis, more than a single development offence for purposes -- 14 of 15 -- 15 ORDER 1 10 20 30 40 50 60 of s 4.3.25, which in my opinion provides ample warrant for the making of the above order in the circumstances. ... HIS HONOUR: As indicated already, my view is that the public interest requires that in the interests of general deterrence - difficult as it may be - matters of the present kind be pursued to some sort of salutary conclusion. ----- -- 15 of 15 --