Atherton Shire Council v Griffiths [2008] QMC 9

MAGISTRATES COURTS OF QUEENSLAND CITATION: Atherton Shire Council v Griffiths [2008] QMC 9 PARTIES: ATHERTON SHIRE COUNCIL (complainant) v PETER GRIFFITHS (defendant) FILE NO/S: MAG155901/07(1) DIVISION: Magistrates Courts PROCEEDING: Complaint ORIGINATING COURT: Magistrates Court at Atherton DELIVERED ON: 4 March 2008 DELIVERED AT: Atherton HEARING DATE: 31 January 2008 MAGISTRATE: Braes TJ ORDER: I find the defendant guilty CATCHWORDS: LOCAL GOVERNMENT – BUILDING CONTROL – whether building work is assessable development Integrated Planning Act 1997, s 4.3.1 Building Act 1975, s 20 COUNSEL: Fynes-Clinton for complainant Defendant appeared on own behalf SOLICITORS: [1] The defendant Peter Griffiths appeared before me upon the complaint of Peter Ross Stark, Chief Executive Officer of the Atherton Shire Council that on 7 March 2007, upon land situated at Kennedy Highway, Tolga described as Lot 675 on Crown Plan NR5169, County of Nares, Parish of Barron, within the Shire of Atherton constituted under the Local Government Act he being the registered proprietor of the land did carry out assessable development upon the land without an effective development permit for the development. The complaint was originally brought against the defendant and Giovanna Griffiths but at the commencement of the hearing the complainant offered no evidence in respect of Giovanna Griffiths and the complaint against her was dismissed. -- 1 of 6 -- 2 [2] The defendant pleaded not guilty and was not legally represented at the hearing in Atherton on 31 January 2008. Mr Fynes-Clinton of Counsel appeared for the complainant instructed by Mr M.Liston. [3] In order for me to find the defendant guilty of the complaint I must be satisfied that all of the elements of the complaint have been proved to the standard required, that being beyond a reasonable doubt. The onus of proving those elements to such standard is of course upon the complainant. Should the complainant fail to prove those elements to the standard required, then I must acquit the defendant and dismiss the complaint. [4] At the commencement of the hearing the defendant made a number of admissions. These were that: 1. on the 7th March, 2007; 2. upon land situated at Kennedy Highway Tolga; 3. within the Shire of Atherton; 4. he being a registered proprietor of the relevant land; 5. constructed a building; 6. without a development permit. [5] The issue to be determined by the Court therefore is: whether the building work carried out by the defendant amounted to assessable development. The Evidence. [6] On 28 September 2006 the defendant lodged with the complainant an application for development approval for building work on the relevant land. The “Development Application” was in respect of the addition to an existing shop. The purpose was described as “additional storage”. The accompanying form of application, “Building Work Assessable against the Building Act 1975” advised that the proposed alterations/additions were for “storage/carport”. The plan lodged with the applications refers to the “storeroom extensions”. [7] Although there is no direct evidence as to the size of the proposed building work the plan indicates dimensions of 15.150m by 4.880m. This area would amount to roughly one third of the entire structure after the new work was completed. My calculations in this regard do not include a cold room shown on the plan. [8] The plans provide for a predominately steel and concrete structure with RHS Beams approximately every 3 metres, external fibre cement cladding, and 0.42mm BMT Stramit Monoclad roofing. [9] The building as constructed by the defendant is similar in size to the drawing plans but it appears to be almost exclusively constructed of panelling of the type used in the construction of cold rooms. There do not appear to be any RHS Beams supporting the structure. The building is a substantial structure when compared with the size of the existing structure. [10] By letter of 6 October 2006 the complainant advised the defendant that the proposed extension to the existing shop constituted a material change of use under section -- 2 of 6 -- 3 1.3.5 of the Integrated Planning Act 1997, and as such a Development Permit was required. [11] By letter dated 27 September 2006 received by the complainant on 6 October 2006 (presumably the defendant had not received the complainant’s letter of 6 October) the defendant advised the complainant of his position which was that, the Local Government Act was not valid and any demands on the land holder were non enforceable. The defendant requested in this correspondence that all charges and requirements to conform with the building code be dismissed. The defendant further gave the complainant seven days to reply, failing which the complainant would be deemed not to challenge or enforce charges and acts for improvements on the land. [12] By letter of 18 October 2006 the complainant advised the defendant of the applications that were required to be lodged to proceed with the matter. [13] By letter dated 18 October 2006 received by the complainant on 26 October 2006 the defendant advised that; [14] “As your reply was dated the 18th day of October had not received within time frame (7 working days) SHALL BE DEEMED that you (ASC) will not challenge nor enforce no compulsory charges and acts for improvements on said freehold land.” [15] The defendant is not in a position to demand compliance of the complainant and deem non-compliance a statutory exemption from the law. The defendant further demanded that the building plan be stamped for approval “and returned for with (sic) so building can continue”. Here the defendant appears to be acknowledging the need for the issue of the development permit. [16] By letter of 7 November 2006 the complainant wrote to the defendant setting out in dot point the relevant legislation and confirming that the application for building work could not be approved until the proposed material change of use was first approved. [17] The evidence is that building work was carried out between 28 September 2006 and 29 August 2007. The date alleged in the complaint is 7 March 2007 which is admitted. [18] The complainant did not issue a development permit permitting the carrying out of building work. [19] The complainant did not receive any notices under Sections 86, or 143 of the Building Act notifying the complainant of the engagement of a private certifier. [20] There is no suggestion that the defendant engaged a private certifier to have the application assessed. [21] The complaint called one witness, Mr Arnold. Mr Arnold is a building certifier engaged by the complainant to administer relevant legislation in relation to building work. His evidence was not challenged or contradicted or discredited in any way. Mr Arnold entered the property on 29 August 2007 under the authority of a warrant issued for the purpose under Section 1094 of the Local Government Act. -- 3 of 6 -- 4 [22] There was no challenge to the authenticity of the warrant. The defendant made a number of attacks on Mr Arnold accusing him of trespassing on the land. The evidence from Mr Arnold is that when he entered the premises he spoke to a woman who then contacted the owner of the property by telephone while he waited. Mr Arnold heard the words “we can’t stop them, we can’t stop them”. [23] Mr Arnold proceeded to inspect the premises and to take several photographs of the premises. There is nothing in the evidence to suggest that his conduct was other than courteous and lawful. [24] Mr Arnold observed the new work. He described it with reference to the original plan and provided photographs. He said that he was unable to convince himself that the new work was structurally adequate. He would not walk on the roof for fear of falling through. He confirmed that from his observations the work was not self assessable or exempt. There was some cross examination on the point, but Mr Arnold confirmed his evidence quite categorically in re-examination that the building work was neither self assessable nor exempt. I accept this to be the case. [25] The defendant gave evidence on his own behalf. The points that he made and the issues that he raised are that: 1. The land is not commercial land, it is rural. This is not denied by the complainant, 2. His use of the land is lawful under a previous approval. This is not denied by the complainant, it is agreed that the existing shop premises has pre-existing lawful use status, 3. As he has a pre-existing lawful use he does not have to apply to change it, 4. As the complainant did not reply to his letter within seven days he had the right to commence the building in the manner that he did. [26] The defendant also made a number of statements to the effect that there was no contract between him and the complainant, he referred to the Uniform Commercial Code, ( I was not given the reference to this code and it is unknown to me, a Google search did show such a code in certain States of the United States) he argued that the various pieces of legislation were invalid, that the entry of Mr Arnold to the property was unlawful, that the complainant had failed in its duty of care to him, that the Local Government was itself invalid, and that legislation could not affect his rights as an owner of the freehold title to the land. He referred to Section 18(a) of the Property Law Act 1974. [27] In the process of the argument I have been referred to a number of decisions of Superior Courts that the complainant says are relevant to the defendant’s arguments. I have also had reference to the following decisions; 1. Hubner –v- Erbacher and Morley unreported White DCJ Cairns 24th August, 2004 2. Kobylski –v- Cole and others Dearden DCJ 25th August,2006 QDC 308 3. Carnes –v- Essenberg QCA 23rd August, 1999. [28] More Judicial and eloquent persons than I have already considered arguments similar to those put forward by the defendant. It is not my place to write a paper on the history of the Statute Law of this Country; that may be done on appeal. -- 4 of 6 -- 5 [29] I find that there is no merit in any of the defendant’s arguments which are rejected. Section 18(a) of the Property Law Act has no application to the present case. [30] The complainant has referred me to a number of provisions of various acts in support of its submission that the building work was assessable development and therefore required a development permit. For the benefit of the parties I have set out below very briefly the relevant legislative route one must follow in determining if the building work was assessable development. This may be unnecessary as I accept the evidence of Mr Arnold that there was no development permit issued in respect of the building work, and that the building work was not self assessable nor exempt. Integrated Planning Act 1997: Section 3.1.4. A development permit is necessary for assessable development and a development permit is not necessary for self assessable or exempt development. Section 4.3.1. A person must not carry out assessable development unless there is an effective development permit for the development Schedule 10 Assessable development – go to Schedule 8 Part 1 Section 1.3.2 Development includes carrying out building work and also includes a material change of use of the premises Section 1.3.5. Building work includes building of the type carried out by the defendant. Material change of use includes a material change in the intensity or scale of the use of the premises Schedule 8 Part 1 Assessable development for the Building Act (being the relevant legislation in this case) includes building work that is not self assessable and declared under the Building Act to be exempt development. Schedule 8 Part 2 Self assessable development for the Building Act is building work declared under the Building Act 1975 to be self assessable development. Building Act 1975: Section 20 All building work is assessable development unless it is exempt or self assessable. Section 21 Building work is declared to be self assessable for the Integrated Planning Act if it is prescribed under a regulation. Section 22 Building work prescribed under a regulation is declared exempt development for the Integrated Planning Act. Building Regulations: Section 4 For Section 21 refer to Schedule 1 Section 5 For Section 22 refer to Schedule 2 Schedule 1 -- 5 of 6 -- 6 Section 7 – the building work is not self assessable under these provisions. Schedule 2 The building work is not exempt under these provisions. [31] In the course of the hearing the defendant did not make any meaningful submissions about the relevant legislative provisions. The essential facts were admitted. The building work was an extension of the existing premises which added a substantial area to it proportionate to the area of the existing building. [32] I accept the evidence of Mr Arnold, the building work was neither self assessable nor exempt. [33] The law applies to the defendant’s land notwithstanding the Rural zoning. [34] I find that the building work was assessable development for the purposes of the Integrated Planning Act. [35] I am satisfied to the requisite standard that the complainant has established all of the elements of the complaint. [36] I find the defendant guilty. -- 6 of 6 --