Evans & Ors v Shire of Albert [1992] QPEC 88

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: BETWEEN: AND: AND: BETWEEN: P. & E. Application 11 of 1992 JEAN EVANS & ORS. Applicants THE SHIRE OF ALBERT Respondent P. & E. Application 8 of 1992 ALBERT SHIRE COUNCIL Applicant IAN EVANS & ORS. Respondent P. & E. Appeal No. 52 of 1992 THE COUNCIL OF THE SHIRE OF ALBERT Appellant AND: IAN EVANS AND JEAN EVANS Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. - 6th April, 1992 -- 1 of 12 -- 2 This hearing involved three matters, Originating Application No. 8 of 1992, P & E Appeal No 52 of 1992 and Originating Application No 11 of 1992. In Originating Application No. 8 of 1992 the Applicant, The Council of the Shire of Albert ( "The Council 11 ) seeks various Declarations which may be summarized as follows that clause 62 (4) of Division 4 of Part 7 of its Town Planning Scheme is valid; That a covered patio and deck on the land of the Respondents, Ian Evans and Jean Evans ("Mr. and Mrs. Evans") is unlawful and that ~ the Council is not required to issue an approval under Section 30A of the Building Act (1975) in respect of the said patio and deck. In p & E Appeal No. 52 of 1992 the Appellant, The Council appeals against the decision of the Building Advisory Committee of 13 February which confirmed the decision of 15 December 1991 of Mr R c Cruice, a referee appointed under Part III of the Building Act ( 1975). In Originating Application No 11 of 1992, Mr and Mrs Evans are the Applicants for Orders for various Declarations which may be summarized as follows: The Council wrongfully accused Mr and Mrs Evans for a purpose of applying legal costs to them, and acted to the detriment of them compared to other applications and for costs expended and suffered. -- 2 of 12 -- 3 By Order dated 19 March, 1992 Judge Row ordered that Originating Application 8 of 1992 and Appeal 52 of 1992 be heard together on 27 March 1992 • On 27 March, 1 992 I ordered that Originating Application 11 of 1992 also be heard with Application a of 1992 and Appeal 52 of 1992. Originating Application 11 of 1992: During the course of the hearing, The Council made it clear that The Council does not seek any legal costs from Mr. and Mrs. Evans. Mrs Evans agreed that the Declaration sought in Paragraph 1 of the Application is therefore unnecessary. During the course of the hearing, Mrs Evans explained that the Declaration sought in paragraph 2 of the Originating Appli~ation 11 of 1992 relates to damages and compensation, although she agreed that it does not specifically state this. During the course of the hearing I ruled that I have no jurisdiction to award the damages and compensation sought by Mr. and Mrs. Evans. Paragraph 3 of Originating Application 11 of 1992 seeks an order that The Council pay Mr. and Mrs. Evans' legal costs in Application 8 of 1992 and Appeal 52 of '1992. During the course of the hearing, I ruled that this application could more conveniently be dealt with in those matters, rather than by a separate Originating Application. -- 3 of 12 -- 4 In view of the rulings I made dur1.'ng th f th e course o e hearing, I therefore ordered that Originating ·Application 11 of 1992 be dismissed and that there be no Order as to costs. Originating Application 8 of 1992 and P. & E. Appeal 52 of 1992: By letter dated 22 February 1991 The Council advised that permission was not granted for the existing deck and covered patio to remain as they were contrary to the requirements of the Standard Building By-laws and Council Policy. Mr. Evans submitted that The Council has rigidly applied its "Boundary Clearances - Waterfront" Policy and that this Policy cannot be used to over-ride Standard Building By-Law 11 . 1 . During the course of the hearing I was advised that The Council no longer relied on the Policy (although it was conceded that The Council had done so at the time of its initial decision). Mrs Evans further submitted that The Council has not had sufficient regard to other decisions it has made concerning other properties, when it has relaxed the requirements of the Standard Building By-Laws. I consider that these matters may be relevant to an Application for a permit for a structure on land (and any Appeal which may or may not follow the decision on that application), but are not directly relevant to the matters presently before the Court. -- 4 of 12 -- 5 Clause 62 (4) of Division 4 of Part 7 of the Town Planning Scheme of The Council is as foliows:- "(4) No person shall erect any building or structure other than a boat shed within nine ( 9) metres of a canal, lake or the high watermark of any other waterway except with the express permission of the Council and subject to such conditions as the Council may impose in the circumstances. Where development is planned and constructed as a comprehensive scheme approved by the Council, a lesser setback may be approved by resolution. " By-law 11.1(1) of the Standard Building By-Laws provides: "(1) Clearance from a public reserve, lake, canal, river, waterway, or the high water mark of any foreshore of the like. Notwithstanding the provisions of this Part, a Local Authority may, by by-law fix minimum distances for any or all classes of buildings around all reserves, lakes, canals, rivers, waterways, the high water mark of any foreshores or the like, and forbid the erection of buildings or other structures there." Section 11 of the Building Act 1974 -1991 is as follows: " ( 1) Subject to subsection ( 1A), the Standard Building By-laws shall, in respect of the carrying out of building work, be a complete code and a Local Authority shall not have power to make a by-law prescribing standards to be observed in the carrying out of building work within the meaning of the Standard Building·By-laws." Sections JOA and 30B (1) of the Building Act 1974-1991 are as follows: "30A. ( 1) A person shall not carrying out or cause to be carried out building work in respect of which the Standard Building By-laws require the approval of the Local Authority unless such approval has first been obtained. Penalty: $500. (2) An application to the Local Authority for approval referred to in subsection (1) shall be made in the manner prescribed from time to time in the Standard Building By-laws." JOB. ( 1) A Local Authority to which _is made an application for approval to the carrying out of building works shall consider th~ application and in connexion therewith shall deterrnine- (a) whether the building work to which the application relates complies with the relevant -- 5 of 12 -- 6 provisions of the Standard Building By-laws, having regar~ to any variation thereof m~de under section 12C or 12F; (b) if no such building work does not so comply the particular in which it does not so comply." ' Section 30B (2) provides, inter alia, that the Local Authority may approve, approve subject to conditions or refuse the application. Subsection 30B (3) provides, inter alia, that the Clerk shall notify the decision to the applicant within 7 days. Mrs. Evans submitted that Section 30B was the relevant Section for their application rather than Section 30A, and that the time limits in Section 30BB applied. Section 30BA provides for the Local Authority to advise the applicant where town planning laws are applicable. Section 30BB provides times within which applications for approval to the carrying out of building work is to be decided. Section 52 of the Building Act 1975 - 1991 provides for demolition of buildings erected unlawfully. The Building Act Amendment Act 1991 inserted a new section, section 52A, which provides, inter alia, that the Local Authority may by notice ~n writing require the owner of a building erected without an approval required by the Standard Building By-laws to apply for that approval within a specified time. The Section provides a new procedure for approval of existing buildings erected without approval, and is thus in sharp contrast to section 30A which provides that the approval must have "first been obtained". Mr David Roberts, the Council's Senior Technical Supervisor, Building explained that The Council nevertheless received, and dealt with, purported Building Applications and continued to do so until it received legal advice that it had no legal power to do so. Mr Ure conceded that the Council was wrong in purporting to deal with the application. As to the legality, I was referred -- 6 of 12 -- 7 to Longa v Blacktown City Council ( 1985) 54 LGRA 422, 423-4. Mrs Evans submitted that • as the Application was processed under section 30B and as there was non-compliance with section 30BB, then it became an Application for relaxation, and standard Building By-Law 11 . 4 became relevant. I consider that the problem of retrospective approval has been resolved by the 1991 insertion of section 52A into the Building Act. In his Affidavit Mr Roberts opines that the effect of section 52A is Mr. and Mrs. Evans should make an application to The Council for Building Approval pursuant to the Building Act, as amended in 1991. I agree that this course is open to Mr & Mrs Evans. The Referee's Determination of 15 November, 1991 ( "the Determination") on the objection was tendered as an exhibit to the Affidavit of Mr and Mrs Evans filed on 19 March, 1992. The written Determination sets out the relevant facts, including the chronology of events. The Referee requested advice from the Crown Solicitor on various legal points. The Referee said that the Crown Solicitor's reply should be read as being part of his Determination. The Referee said: "It is therefore established that the Local Authority has no valid By-law pursuant to Standard Building By-law 11.1 upon which to base its decision", and that the application should be considered on its merits under the provisions of the Standard Building By-laws. He varied the Council's decision of 22 February, 1991 and directed the Council to approve the application for relaxation of the minimum boundary clearance to the canal in accordance with the dimensions submitted with the application. The Advice from the Crown Solicitor was tendered in evidence as an Exhibit "A" to the Affidavit of Mr. and Mrs. Evans filed 19 March, 1992. I consider that this Advice overlooks the difference between a Clause in a Town Planning Scheme and a by-law concerning building -- 7 of 12 -- 8 setbacks made pursuant to the Building Act. In Concore Pty. Ltd. v Mulgrave Shire Council (1988) 2 Qd.R. 395, 399 Derrington J. recognizes a distinction between the scheme itself and the by- laws which merely administer and implement it. I consider the Referee's statement that "the Council was not entitled to refuse the building application on the basis of any provision relating to setback distances which appears in its Town Plan" is wrong. The Determination refers in a number of places to "by-law 62 ( 4)": see for example paragraph 6.02, and it is clear from reading the Determination that this was an integral part of the decision. The Council submitted that 62 (4) is not a by-law, rather, it is a Clause in the Schedule and is part of The Council's Town Planning Scheme. I was referred to page 1519 of the Queensland Government Gazette, and two portions thereof in particular: 1. The Governor in Council notifies, inter alia: " (b) that the town planning scheme as approved in part shall consist of- (i) the provisions contained in the Schedule hereto; (ii) the scheme maps referred to in the Schedule hereto, being scheme maps signed for identification by the Clerk of the Executive Council" ..... (v) the by-laws made by the Local Authority to implement the scheme and to provide for, regulate and control the administration and execution of the scheme." 2. On that same page of the Gazette is an index to "The Schedule" which includes Di vision 4 ("Residential, Rural and Village zones") of Part 7 ("Special Requirements for Development in Particular Zones"). The question for my determination is whether Clause 62 (4) is a by-law. A number of statutory provisions are of some assistance. -- 8 of 12 -- 9 Section 5 of the Building Act 1975-1991 defines "by-law" as: "includes a by-law made by a Local Authority and an ordinance made by Brisbane City Council". Section 1.4 of the Local Government (Planning and Environment) Act 1990 states that "by-law" means a by-law or ordinance made by a Local Authority." Section 31 of the Local Government Act (1936) (as amended) contains provisions as to by-laws. Sub-section 31 (27) deals with the passing of by-laws. Section 33 (2C) of the Local Government Act (1936) (as amended) provides for the composition of town planning schemes, and, inter alia, it provides: "A town planning scheme shall consist of - (a) the Order in Council notifying approval of the scheme, together with the schedules, if any, to the Order in Council; (c) by-laws made by the Local Authority (whether before or after the commencement of the Local Government and Another Act Amendment 1980) to implement the scheme and to provide for, regulate and control the administration and execution of the scheme". In his affidavit filed on 26 March 1992 David Arbon, the Shire Planner for The Council deposes to his belief that Clause 62(4) relates to "matters concerning what I consider to be good Town Planning and Engineering practice". He opines that Clause 62(4) does not prescribe criteria regarding the adequacy of quality of any building work. He acknowledges that if it did it would be invalid and inoperative by reason of section 11 of the Building -- 9 of 12 -- 10 Act. Rather, it prohibits the placing of a structure within 9 metres of a canal except where the Council exercises its discretion in the particular circumstances. He refers to The Council needing to have regard to the possible negative visual amenity effects, open space, separation of buildings, provision for the passage of light and breezes, and a "soft landscaped canal edge". Mr Douglas Rudd, an Engineer with Kinhill Cameron McNamara, deposes to his familiarity with Clause 62 (4) and states in his Affidavit filed on 26 March 1992 that he is satisfied that the contents of the Clause in no way relate to the prescribing of building standards; rather it relates to defining an area within which no buildings or structures shall be constructed, regardless of standard. He opines that the Clause reflects sound engineering practice by preserving the unimpeded flow capacity of the canal by not allowing the erection of buildings within the floodway. I was referred to the Macquarie Dictionary definition of "standard" as "level of quality which is regarded as normal, adequate, or acceptable". I was also referred to the definition of "building work" in the Standard Building By-Laws. I find that Clause 62 ( 4) does not prescribe standards to be observed in the carrying out of building work within the meaning of the Standard Building By-laws. -- 10 of 12 -- ,, Taking into account all these matters, I consider that Clause 62 ( 4) is not a "by-law" within the meaning of Section 11 of the Building Act. It thus cannot be struck down by reference to that Section. I consider that the Referee and the Crown Solicitor erred in the findings that : "Council has, pursuant to Standard Building By-law 11.1(1) adopted By-law 62(4) of the Town Plan in its consideration of this application"; and "the Council was not entitled to refuse the building application on the basis of any provision relating to setback distances which appears in its Town Plan". I find that Clause 62(4) concerns a permit for a structure on land, and any decision made by The Council would be appealable to this Court pursuant to Section 7.1 of the Local Government (Planning and Environment) Act 1990. I consider that Clause 64(4) is valid and operative according to its terms. I consider that the patio and deck on the property of Mr. and Mrs. Evans is unlawful. I consider that The Council, the Referee and the Building Advisory Committee had no jurisdiction to consider the purported application for building approval where the application was for approval of a structure after it had been constructed. -- 11 of 12 -- 12 I consider that The Council is not required to issue an approval pursuant to Sections 30A or 30B of the Building Act. I allow Appeal No. 52 of 1992 by The Council against the decision of the Building Advisory Committee of 13 February 1992 which confirmed the decision of Mr R C Cruice, a Referee under the Building Act of 15 December 1991. I accordingly make the Declarations sought in paragraphs 1, 2 and 3 of Originating Application 8 of 1992. -- 12 of 12 --