Di Domenico & Anor v Hervey Bay City Council [1999] QPEC 52

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E APPEAL NO. 1666/1999 Before His Honour Senior Judge Skoien [ROMERO DI DOMENICO AND SHIRLEE DI DOMENICO v. HERVEY BAY CITY COUNCIL] 1999 QPE 052 BETWEEN: ROMERO DI DOMENICO and SHIRLEE DI DOMENICO Appellants AND: HERVEY BAY CITY COUNCIL Respondent REASONS FOR JUDGMENT Judgment delivered: 24.11.99 Counsel: Mr. P.J. Favell for the appellants Mr. M. Connor (Solicitor) for the respondent Solicitors: Carswell & Company for the appellants Connor O’Meara McConaghy for the respondent Hearing Dates: 2/8/99 and 23/9/99 -- 1 of 9 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 1666/1999 BETWEEN: ROMERO DI DOMENICO and SHIRLEE DI DOMENICO Appellants AND: HERVEY BAY CITY COUNCIL Respondent REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the Twenty-fourth day of November 1999 This is an appeal against the issuing of an enforcement notice against the appellants by the Hervey Bay City Council. The appeal is pursuant to s.4.1.32 of the Integrated Planning Act 1997 (IPA). On 28 January 1999 a show cause notice pursuant to s.4.3.10 of IPA was served on the appellants. In that notice the appellants were invited to show cause why an enforcement notice under s.4.3.11 should not be given in relation to land described as Lot 1 on RP J42419, Parish of Vernon at 100 Jeppeson Road, Toogoom (Αthe site≅) used by the appellants. The facts and circumstances relied upon by the Council were:- (a) the land is zoned “Particular Development - Caravan Park” pursuant to Council=s Transitional Planning Scheme; -- 2 of 9 -- 3 (b) the land is partly used for the purpose of a shop; (c) any kiosk on site is restricted to the purpose of rendering services to travellers and tourists staying on the premises; (d) no development permit has been obtained for the use of the land as a shop. (e) the failure to obtain a development permit and/or to continue to operate the kiosk as a shop is a development offence. An enforcement notice was issued dated 9 March 1999. It required the appellants to refrain from committing Αthe offence≅, to stop the use of the site for the purpose of a shop open to the general public and to ensure that the development complies with the original town planning approval as prescribed - Particular Development - Caravan Park. The onus in this appeal rests with the Council. Section 4.1.50(5) is as follows: ΑIn an appeal by a person who is given an enforcement notice, it is for the entity that gave the notice to establish that the appeal should be dismissed.≅ Originally the relevant local authority for the area was the Burrum Shire Council. On 1 July 1976 the area was transferred to the Woocoo Shire and then on 1 July 1982 the area was transferred to the Town of Hervey Bay. The Town Planning Scheme for the extended area of the City of Hervey Bay came into existence on 21 March 1985 (Government Gazette of 23 March 1985). -- 3 of 9 -- 4 Then on 29 March 1996 the current Hervey Bay Planning Scheme commenced. Before 27 April 1974 the site was not zoned. On 27 April 1974 an interim development by-law was gazetted. Section 3 of the IDB required that a person should Αnot use any land ... within the town planning scheme area without first obtaining the consent of the Council so to do.≅ The provisions of the IDB were continued in existence by virtue of successive Orders in Council until the 1985 Hervey Bay Planning Scheme commenced. Pursuant to that scheme the site was included in the Special Facilities - Caravan Park Zone. Then on 29 March 1996 the current Hervey Bay City Planning Scheme was gazetted and that scheme included the site in the Particular Development - Caravan Park zone. On 10 April 1974 the then owner of the site applied to the Burrum Shire Council for consent to use the site as a caravan park. The consent issued on 13 June 1974 and on 9 September 1974 building approval was given for the amenity blocks, laundry and office on the site. It has been used as a caravan park ever since, Di Domenico purchasing it in 1985. No planning approval has ever been given for the carrying on of the use of a shop on the site. When the caravan park was established it seems that there was also established a small kiosk on the site. However on 8 December 1989 Di Domenico applied for Council approval for the construction of a dwelling and shop and that building approval was given on 4 June 1990. The plans refer both to a Αshop≅ and a Αkiosk≅. The Council’s -- 4 of 9 -- 5 certificate of classification refers to a Αshop” of 38.7m². During the course of that application Di Domenico spoke to Mr. Orr, the Council=s building inspector and at Orr=s suggestion the entrance to the shop/kiosk was re-located from the street to a point within the site. I accept that one of Orr=s reasons for that was to discourage sales to the general public but I also accept that Di Domenico (whose English is even now not fluent) did not comprehend that and thought that it was simply to avoid the necessity to apply for a re-zoning of the site. I accept that since he bought the caravan park in 1985 Di Domenico, first from the kiosk and later from the new kiosk/shop, has sold convenience items not only to the patrons of the caravan park but to the public generally. He has done so openly. He has advertised his business in the local paper and by the use of footpath signs. Since 1991 the kiosk/shop has held a certificate of registration under the Council’s Food Hygiene Regulations which classified the kiosk/shop as a “general food store”. The annual certificate of registration since then has referred to it as a “Food Shop”. Until 1988 when Mr. Matthews took up occupancy of a nearby shop in a newly developed and properly zoned business development, the caravan park kiosk/shop was the only convenience store in the general area. The affidavits of Mr. and Mrs. Clark (former proprietors of the caravan park) and Mr. and Mrs. Johnston establish that from at least May 1978 the kiosk at the caravan park has operated as -- 5 of 9 -- 6 a general convenience store, that is a shop. It must have been operating as such from some earlier date because when the Clarks took over the premises the shop was already established. Part III of the 1985 Scheme preserved existing lawful non- forming uses and s.4.3 of the 1996 Scheme has a similar effect. So the first question is whether the kiosk/shop is a lawful non- conforming use. The 1974 consent of the Burrum Shire Council was to use the site as a caravan park. There was no consent to use the land for any purpose which involved selling goods. The 1974 IDB defined “use” to include “any use which is incidental to and necessarily associated with the lawful use of the land in question”. The Council concedes that the creation and use of a kiosk would fall into that category provided that the business of the “kiosk” be restricted to selling convenience items to residents of the caravan park and to their bona fide guests and visitors. It cannot, the Council argued, be the business of selling to the general public. It is clearly incidental to and necessarily associated with the use of a caravan park that the owner of the park should conduct premises from which to sell convenience items such as newspapers, milk, packaged food and drink etc., to its residents and their bona fide visitors. Indeed it seems to me that the proper range of items for sale would best be determined by the demand of the residents and the guests. For example, at a seaside caravan park, items such as fishing lines, bait, -- 6 of 9 -- 7 sunscreen lotions etc. would be legitimate commodities for sale. Perhaps premises of that type might best be described as a kiosk, a term which is defined in the Macquarie Dictionary as: “a small light structure for the sale of newspapers, cigarettes etc; a building or part of a building for the sale of light refreshments as at a hospital, railway station, park etc.” although one is familiar with “kiosks” operating on a grander scale than that definition suggests. But in my opinion nothing turns on the name; rather the question is whether the kiosk/shop which Di Domenico conducts is “incidental to and necessarily associated with the use of the caravan park”. This question can sometimes be a nice one, involving questions of degree. See Boral Resources (Qld) Pty Ltd v. Cairns City Council (1996) 91 LGERA 323 at 326-8. But here I think the degree or essence of the business carried on from the kiosk/shop goes clearly beyond what is incidental to the business of a caravan park. The business of a caravan park does not contemplate the attracting of retail custom from the general neighbourhood. And as Boral, holds at p.327 the use must not just be incidental to but also necessarily associated with that of the caravan park. There is no necessity for a caravan park to sell convenience items to the public generally. So in my opinion the maintaining of the Di Domenico shop/kiosk use is not a use within the description “incidental to and necessarily associated with” the maintaining of the caravan park use. It goes far wider and operates as a shop for which no consent was given in 1974 under the IDB, nor under the -- 7 of 9 -- 8 1985 Planning Scheme (where the term “general store” would probably fit the kiosk/shop) nor under the 1996 Planning scheme where the term “local store” would probably describe it). I am thus unable to find that the kiosk/shop has ever been, or is now, an existing lawful non-conforming use. So none of the relevant Planning Schemes have ever extended protection to it. The Council has satisfied the onus of establishing that the appeal should be dismissed. Conclusion The lodging of the notice of appeal by Di Domenico had the effect of staying the operation of the enforcement notice, (IPA s.4.1.33(1)). An order dismissing the appeal would revive the enforcement notice (s.4.1.33(1)). Peculiar circumstances exist in this case. The prohibited kiosk/shop use has been in existence at least for over twenty years undisturbed by any objection from the Council or anyone else for that matter. It was not established by Di Domenico but by a predecessor in title. Di Domenico bought the caravan park in the belief that he could lawfully continue to run the kiosk/shop business, and has done so for fourteen years since. His belief has been encouraged by actions of the Council in issuing a certificate of classification and Food Hygiene Certificates in respect of his “shop”. While the Council, in doing so was “wearing a different hat”, not its “planning hat” and cannot be said to have issued the necessary planning approval, I am satisfied Di Domenico did not appreciate that. Nor -- 8 of 9 -- 9 would many others in his position. His evidence is that the kiosk/shop income is essential to the economic health of the overall business of the caravan park. Until last year there was no other convenience shop in the neighbourhood. So the kiosk/shop has been filling an obvious need, in the planning sense, for over twenty years. Had Di Domenico made the appropriate application to the Council (for re-zoning) under the Local Government (Planning and Environment) Act 1990 it is difficult to see how it could have been refused. Perhaps a development application under IPA would also be successful. I note in passing that had this been an application for an enforcement order under s.4.3.22 of IPA, I would be able to state the time by which the order is to be complied with (s.4.3.26(3)(b)). That could have given Di Domenico time to make a development application while continuing to run the kiosk/shop business. It might also give rise to the exercise of principles such as those discussed by Kirby JA in Warringah Shire Council v. Sedevic (1987) 63 LGRA 361. Because of the peculiar circumstances of the case I propose to defer giving my judgment for a brief period to allow those advising Di Domenico time to consider his position. -- 9 of 9 --