Council of the Shire of Boonah v Lofthouse [1991] QPEC 20

J IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: P.& E. Appeal No. 75 of 1991 COUNCIL OF THE SHIRE OF BOONAH Appellant DONALD JOHN LOFTHOUSE Respondent P. & E. Application No. 2 of 1991 IN THE MATTER of the Application of Clause 1 of Di vision 15 of the Town Planning Scheme for the Shire of Boonah to a proposal by Donald Hartley Lofthouse for the erection of a dwelling house. ,l'l./1 .. - .I 13-9-'4 I. "'~J. REASONS FOR JUDGMENT - QUIRK, D.C.J. The decision which I must make relates to two matters brought to this Court by the Council of the Shire of Boonah. One of them is an appeal brought pursuant to the provisions of the Building Act against a determination of the ·Btiilding Advisory ,(;. ' Committee constituted under Part IV of t:hfi.t: Act.- The other i~ • an application seeking a declaration as to the validity of Clause ' ' ~- . 1 of Division 15 of Part 5 of the Shire's.Town P.J.anning Scheme.r-- .. -~·-•· ,• However, as it was agreed that the question raised in the second mentioned matter was determinativ~ of the appeal, it is convenient that both should be dealt with together . . Essentially the ruling which I am asked to make is\~et_per, by reason of s,11 of the Building Act, the abovemention,~· clause ;,._,, is invalid and in9~erative. It is worthwhile to see·~~ow this ,, -- 1 of 5 -- ) ) ) 2 clause is "brought into play" within the framework of the Town Planning Scheme. Clause 3 of Part 2, which explains the arrangement and operation of the Table of Zones, is expressed to be "subject to the provisions of Parts 3 and 5 of the Town Planning Scheme". (The subject land is in the Rural C Zone, and in that zone a "dwelling house" which is here proposed appears as a "permitted development"). Part 5 is entitled "SPECIAL REQUIREMENTS IN RELATION TO PARTICULAR DEVELOPMENT" and is made up of a number of divisions. In Division 15 the clause under examination appears under the heading "STRUCTURES ON ALLOTMENTS AFFECTED BY FLOODING, SLOPE INSTABILITY OR ACCESS DIFFICULTIES". It provides: "Where an allotment does not contain a building site at natural ground level which is flood free, or does not have flood free access, or does not contain an area which, in the opinion of the Council, is of a suitable slope or is sufficiently stable to be used for building, or does not practical access, the Council may refuse to issue a building permit for any structure". (It was the Council's refusal to issue a building permit in this case that provoked the dispute which has arisen). It is contended by the appellant that this clause is "beyond power" by reason of s.11 of the Building Act. This provides: " ( 1 ) 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". Mr. Edmiston, a consulting building surveyor, who appeared as agent for the appellant, in a carefully prepared and clearly presented address, pointed to the highly technical character of the Standard Building By-laws and that they do in fact touch upon -- 2 of 5 -- 3 matters arising from those referred to in Clause 1, namely problems relating to slope, stability and flooding. He pointed in particular to Standard Building By-law 44.4 which provides: "A Local Authority may declare by resolution a site which is liable to flooding and it may determine the required height of floor levels of habitable rooms". He submitted that it was quite unacceptable at law that Clause 1 should enable the Local Authority to prohibit what the Standard Building By-laws have set out to regulate. He drew ) attention to provisions incomparable by-laws in other States which address directly the question of flood prone land. ) While I am grateful to Mr. Edmiston for his interesting examination of these relevant matters, if I am to rule invalid what is an express provision of a recently gazetted Town Planning Scheme, the clearest reasons for so doing must be demonstrated. Section 11 of the Building Act clearly puts it beyond power for a Local Authority 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". Is Clause 1 a "by-law" at all. The Building Act defines a "by-law" as including: "A by-law made by a Local Authority". The Local Government Act, whereby Local Authorities are constituted, define "by-laws" as "by-laws made under the authority of this Act". A Local Authority's general power and authority to make by-laws are found in s.31 of the Act. Section 31(27) prescribes the procedures to be adopted when by-laws are made. Sub-clause (iii) ( b) ( i) makes particular provision for those by-laws which "regulate and control the administration and -- 3 of 5 -- ) ) ) 4 execution of a Town Planning Scheme". Section 33 of the Act, under which this Town Planning Scheme became law, in sub-s.(2C), which deals with the composition of a Town Planning Scheme, provides separately for the inclusion in the Scheme of: "(a) The Order in Council notifying approval of the Scheme together with the Schedules, if any, to the Order in Council ...... and (c) By-laws made by the Local Authority (whether before or after the commencement of the Local Government and Another Act Amendment Act 1980) to implement the Scheme and to provide for, regulate and control the administration and execution of the Scheme;". In Concore Pty. Ltd. v. Mulgrave Shire Council 1988 2 Qd.R. 395 at 399, Derrington J. observed that these provisions make a clear distinction between the Scheme itself and the by-laws administering and implementing it. The Order in Council gazetted to indicate the approval of this Town Planning Scheme provided that: "The Town Planning Scheme as approved in part shall consist of - (I) The provisions contained in the Schedule hereto; (iv) 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. (These appeared as "Chapter 47 Town Planning")." Importantly, Clause 1 of Division 15 of Part V was part of the Schedule to the Order in Council and not of the by-laws. For these reasons I have concluded that Clause 1 of Division 15 of Part V is not a "by-law" within the meaning of s. 11 of the Building Act. It was further argued by the Local Authority that the clause could not be said to describe standards to be observed in the carrying out of building work. "Building work" is defined by the -- 4 of 5 -- ) ) ) 5 Act and the Standard Building By-laws. A generally accepted dictionary definition of "standard" in this context is "a level of quality which is regarded as normal, adequate, or acceptable" (the Macquarie dictionary). Clause 1 does nothing to prescribe criteria of any kind by which the adequacy of quality of building work might be judged. What it does is to enable the planning authority to decline to permit the placing of any structure on land which has, in its opinion, sufficiently serious problems associated with flooding, slope instability or access. Any decision made in this regard would have been subject to review by this Court under s.33(16A) of the Local Government Act and now under s.7.1 of the Local Government (Planning and Environment) Act. I am of the view that the Local Authority's argument in this regard is well founded. For these reasons I have concluded that s.11 of the Building Act does not put "beyond power" Clause 1 of Division 15 of Part V of the Town Planning Scheme for the Shire of Boonah. Accordingly, pursuant to s. 2. 24 ( 3) of the Local Government ( Planning and Environment) Act I declare that "Clause 1 of Division 15 of Part V of the Town Planning Scheme for the Shire of Boonah is not, by reason of s.11 of the Building Act, invalid or inoperative according to its terms. For similar reasons the appeal against the determination of the Building Advisory Committee is allowed. -- 5 of 5 --