Council of the Shire of Mulgrave v Sofiolakis & Anor [1992] QPEC 7

) ------ --~--- --~-----------------"1""""'1.....::--~---i:-=-rc,,'--'~, TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE, 0. 4000 ..- Tel. (07) 2Z7.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT ROW DCJ p & E Appeal No 1 of 1992 (Cairns Registry) COUNCIL OF THE SHIRE OF MULGRAVE Applicant and NICHOLAS SOFIOLAKIS and JAMES SOFIOLAKIS Respondents BRISBANE .. DATE 17 /3/92 JUDGMENT 1 REVISED COPI-ES -ISSUED / Ceurt Reporting Burcrn., [ ! D8te,-i~3 / q:2...J -- 1 of 12 -- 10 20 30 40 50 60 170392 JUDGMENT HIS HONOUR: In this matter I have reduced my reasons to writing. I'm satisfied that the use of the subject land is unlawful and prohibited by the relevant Town Planning Scheme of the applicant. I make declarations in terms of paras 1 and 2 of the application. I further order that an injunction issue forthwith to restrain the defendants, or either of them, from unlawfully using the subject land. I further period of either of order that the injunction be suspended for a twenty-one days to allow the respondents, or them, to comply with the terms of the orders herein in relation to signage and hours of operation. I grant liberty to the parties to apply. I publish my reasons. c' 10 20 30 40 50 60 -- 2 of 12 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND P & E Application No. 1 of 1992 (Cairns Registry) BETWEEN: COUNCIL OF THE SHIRE OF MULGRAVE Applicant NICHOLAS SOFIOLAKIS AND JANE SOFIOLAKIS Respondents 2nd March, 1992 REASONS FOR JUDGMENT - ROW D.C.J. Delivered 17th March, 1992 - Brisbane In this matter the Council of the Shire of Mulgrave ("the Applicant"} seeks orders pursuant to s.2.24 of the Local Government (Planning and Environment) Act 1990-1991 for certain declarations in respect to the use of land situated at 3 Sharon Street, Smithfield and injunctions to restrain the alleged unlawful use of the said land. The subject land is zoned Residential A under the relevant ~\ , Town Planning Scheme for part of the Shire of Mulgrave. In that zone, domestic industry is a purpose for which buildings and other structures may be erected or used or for which land may be used only with the consent of the applicant. Under and pursuant to Column IV of the Table of Zones, Shop is a prohibited purpose under Column v of the Table of Zones. Domestic industry is defined in the Town Planning Scheme as being an occupation or profession carried on in or under a dwelling house or within the curtilage of a dwelling house by a person resident therein and -- 3 of 12 -- 2 in the conduct of which various matters are therein prescribed, including sub-clause (d) which provides as follows:- " ( d) No. sign other than a sign not exceeding O. 5 square metres in area, and bearing only the name of the occupier and the occupation is displayed;". The subject land has not a frontage to the Cook Highway. It is separated from the highway by a narrow acute triangular parcel of land which extends beyond the southern boundary of the subject land. The male respondent and his family reside on the said premises and conduct a business from the residential address, 3 Sharon Street, under the registered name of "The Opal Factory". By order of the Local Government Court pronounced on 20th November, 1 9 9 0, the Court, on an appeal by the respondent, Nicholas Sofiolakis, against part of the decision of the applicant whereby the applicant approved, subject to conditions, an application made by the male respondent for permission to use the subject land for domestic industry, ordered that the application for Town Planning consent for domestic laundry, gem cutting and polishing, be approved subject to conditions including as follows:- "5. No sign other than a sign not exceeding O. 5 square metres in area and bearing only the name of the occupier and the occupation can be displayed, and before the erection of any such sign it must be submitted to the Shire Engineer for approval. All existing signs on the property are to be removed forthwith. 7. Provision is to be made on site for one car park generally as shown as Exhibit 7, appropriately signposted, and so positioned that the motor vehicle may leave the subject land in a forward direction. 8. Hours of operation will be 9.00 a.m. to 5 p.m. Monday to Saturday inclusive." -- 4 of 12 -- 3 The history of the use of the subject land as set out in the affidavit of L.A. Manning I accept without hesitation. The most relevant part of that history relates to the activities on the subject land since the order of the Court pronounced on 20th November, 1990. The evidence as to the location of signs on the subject land and wording identified on such signs indicates that there has been, for some continuous period, a variation in location of the signs and in the phraseology depicted on the signs. Basically, two significant signs are erected on the property, one of which is the Domestic Industry sign depicted on Exhibits NH3 and NH4 of the affidavit of N. Hardy, a Town Planning Consultant. The other sign which relates to the availability of parking is what has been described as a double sign in that it is so located on the subject land that it is visible from a northerly and southerly aspect for motor vehicles travelling on the Cook Highway. Each side of that sign has an area of 2. 8 square metres. That sign carries the words "The Opal Factory - Cutting - Wholesale - Retail" with the word "Parking" and an arrow indicating in general by direction, Sharon Street. The other sign which is intended to identify the activity on the land as being within the definition of domestic industry is positioned on the subject land and carries the words "The Opal Factory" under which the words "N. Sofiolakis" appear as a very indistinct notation. That notation is not visible in some of the photographs which were tendered. That sign has an area of 0.732 square metres. The wording on the sign and its location has been altered on a number of occasions. The present location makes the -- 5 of 12 -- i" ") 4 sign clearly visible from the Cook Highway. Also on the dwelling house there are a number of flags apparently designed as some form of bunting to draw the attention of passing traffic to the particular location. The affidavit of M.L.J. Carey, a Consultant Town Planner, filed on 17th February, 1992 indicates, and I so accept, that the signs as detailed by him have been erected on the subject land from 5th August, 1991 to 5th November, 1991. During the period of his observations, the sign indicating parking has been increased in size with the words "Cutting - 1 Wholesale - Retail" being added to the sign. The respondents have caused to be published brochures 1·• indicating the activities carried out on the subject land. The : ) order for the brochures was placed in mid-1991 and delivered on 17th July, 1991. The brochure states as follows:- "We trade 7 days a week with private viewing by appointment". Brochures have been distributed widely throughout the Cairns area. The female respondent has, of recent times, amended some brochures by the deletion of figure "7" and insertion of the figure 11 6 11 in lieu thereof. The domestic industry approval relates to premises situated at 3 Sharon Street, Smithfield. The concept of signage for a domestic industry is to allow visitors to the site in Sharon Street to properly identify the location of the property in that street. A sign in such circumstances in relation to the parking of motor vehicles should be located in the vicinity of the Sharon Street frontage. Domestic industry is to be contrasted with activities which would otherwise be within the Town Planning Scheme, a shop. The -- 6 of 12 -- \ ) 5 definition of Domestic Industry is indicative that there is a significant difference in scale which is illustrated by the limitations imposed. The nature of the activity proposed in the definition is severely limited by floor area and the number of persons employed in the business. A further limitation to domestic industry relates to the signage that may lawfully occur. As the use which is carried on is located at 3 Sharon Street, all signs relating to the domestic industry should be so positioned that they would assist persons who find their way into Sharon Street in locating the particular premises at which the domestic industry is located. Sharon Street itself carries signs off the Cook Highway which would lead a motorist to it. The activity as exhibited by the Town Planning Scheme is indicative of a low key scale of use carried on in a dwelling house. The Domestic Industry sign erected on the subject land exceeds in area that permitted within the definition of domestic industry. In those circumstances, the activity which is carried ' on is not lawfully a domestic industry within the provisions of j the relevant Town Planning Scheme. The activity which is presently carried on with the sign having an area in excess of ) 0. 5 square metres is unlawful within the provisions of the relevant Town Planning Scheme. As the existing use of the land in those circumstances is not permissible under Column IV of the Table of zones, it is prohibited development under Column V being neither permitted under column III or permissible under Column IV of the Table of zones. The nature of the sign that is permissible within the definition of domestic industry is further limited in that it -- 7 of 12 -- 6 should bear only the name of the occupier and the occupation displayed thereon. The male.respondent has carried on business under the business name of "The Opal Factory" since 1988 and continues to so trade. In those circumstances, I am satisfied that the use of the term "The Opal Factory" on the sign would be a sufficient description of the occupation. In addition to the occupation, the name of the occupier, namely N. Sofiolakis, should further be displayed on the sign. The sign should not exceed 0.5 square metres in area and should be displayed within ( • 1 ,~.--· th b ' 1 d _ e su Ject an . Provided that the sign is within the curtilage of the subject land it should, of necessity, face Sharon Street, that being the address of the dwelling house whereon the domestic industry is carried on. Condition 7 of the approval relates to the provision of car parking on the site. Under that condition, provision was to be made on site for one car park space, appropriately signposted, and so positioned that motor vehicles may leave the subject land in a forward direction. As the use for which permission was sought is located at 3 Sharon Street, the sign indicating the car park ought to be appropriately located on the Sharon Street frontage and in the near vicinity of the access point. The location of the sign currently existing, in my view, is not appropriately located in regard to the terms of the order and the premises within which the use is located. The wording on the parking signs far exceed that which would be reasonably required to indicate the location of the on-site car parking space provided by the respondents in relation to the use of the premises at 3 Sharon street as a domestic industry. -- 8 of 12 -- 7 An appropriate parking sign, having regard to the dimensions for the sign indicating the nature of th t · · e ac 1.v1.ty within the definition of the term domestic industry, should be of no greater area than that so indicated. In order that the sign be appropriately marked, the words "The Opal Factory" and "Parking" with or without an arrow indicating where the parking is located would, in my view, be a sufficient and appropriate sign to indicate that a car parking facility is available on site. Al though there is no direct evidence of trading hours outside of those nominated in Condition 8, an inference can safely be drawn from the brochure and its area of distribution that such trading occurs. The participation of the female respondent in the business activities carried on on the subject land is evident from her affidavit sworn on 2nd March, 1992. The evidence on behalf of the applicant as set out in the affidavits filed therein, which I have no hesitation in accepting, establishes a blatant and continuous disregard by the '\ respondents of the requirements of the limitations imposed by the j definition of domestic industry and of the order of the Local Government Court limiting the hours of operation. Such actions by the respondents are serious in that the lawful use of the subject land is for the purpose of domestic industry. The sign indicating the name of the occupier, the occupation and its size are part of the definition and consequently in order to come within the permitted use of the subject land in the Residential A zone, such provisions should be complied with. If the use has a sign in excess of that prescribed it ceases to be a domestic industry within the provision of the scheme. Accordingly I am -- 9 of 12 -- 8 satisfied the use 1.· n the • tc1.rcums ances is unlawful in the ·Residential A zone. A further indication of the blatant disregard by the respondents is evidenced by the publication of the brochure which indicates that the activity trades 7 days a week. One of the conditions of approval imposed by the Local Government Court limited the hours of operation to 6 days a week wherein it specifically provided under Clause 8, "the hours of operation were from 9. 00 a.m. to 5 p.m. Monday to Saturday inclusive". The actions by the female respondent in deleting figure "7" and inserting figure 11 6 11 in some brochures, whilst it may be seen as an attempt to comply with Condition 8 of the order of the Court does not so comply. In the circumstances, the subject use is in breach of the approval and is unlawful under the Planning Scheme. The power of the Court to make declarations under s.2.24 of the Act allows the Court to hear and determine any proceedings for a declaration in respect of any act, matter or thing to be undertaken in respect of the Planning Scheme or the use of land. The brochures I am satisfied are material which relate to the use of land and in those circumstances, the Court is empowered to make declarations in relation thereto. Under s.2.24(4) where the Court is satisfied an offence has been committed, whether prosecuted or not, it may make such order as it considers appropriate to remedy or restrain that offence. Under sub-s.5 thereof, the Court may order the person to cease the activity or order the person to do any act or thing required to comply with the provision of the Planning Scheme. -- 10 of 12 -- 9 On the evidence before me, I am satisfied that the respondents have committed an offence in that they have failed to comply with and have contravened the provisions of the relevant Town Planning Scheme in relation to the use for Domestic Industry related to the signage on the land and have carried on the use for hours of operation being not in accordance with Condition 8 of the approval. The said condition is not severable but constitutes an integral part of the approval. The nature of the jurisdiction of the Court to grant ) injunctive relief was considered by the Court of Appeal in NRMCA (Old} Ltd. v. Andrew & Anor. ( judgment pronounced 3rd March, 1992). Adopting the approach indicated by the Court of Appeal ) ) ) and accepting that, whilst there is a general discretion to be exercised, the fact that the applicant who is seeking injunctive relief is the local authority is of some significance. A Local Authority is in a different position that where private rights between individuals are being considered. The exercise of discretion is not confined to consideration of the undesirability of allowing deliberate breaches of the planning laws, but is of a wider ambit. In the exercise of discretion herein, I consider it is of significance that the evidence which I have accepted demonstrates blatant disregard of the provisions of the Town Planning Scheme and of the conditions of approval by the respondents. The convictions of each of the respondents subsequent to the date of the Court order are significant matters relevant to the exercise of the discretion. r take into account that the respondents, through their counsel, gave a written undertaking in respect to -- 11 of 12 -- • , l \ 10 the publication of brochures that would comply with C~ndition 8 and undertakings relevant to the Domestic Industry sign and the parking sign. The matters in relation to the signs can be remedied rather speedily. Although no steps are presently being taken by the respondents to remedy the breaches in view of the undertakings in the exercise of my discretion, I propose to grant an injunction but suspended it for a relatively short period of time to allow a reasonable time within which the respondents can comply with the Town Planning Scheme and Condition 8 of the ,I approval. ) I am satisfied that the use of the subject land is unlawful and prohibited by the relevant Town Planning Scheme of the applicant. I make declarations in terms of paragraphs 1 and 2 of the Application. I further order that an injunction issue forthwith to restrain the defendants or either of them from unlawfully using the subject land. I further order that the injunction be suspended for a period of 21 days to allow the ) respondents or either of them to comply with the terms of the orders herein in relation to signage and hours of operation. I grant liberty to the parties to apply. -- 12 of 12 --