Millmerran Shire Council v Smith
[2004] QCA 58
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Millmerran Shire Council v Smith[2004] QCA 58
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Millmerran Shire Council v Smith[2004] QCA 58
Millmerran Shire Council v Smith[2004] QCA 58
SUPREME COURT OF QUEENSLAND
PARTIES: | v CHRISTOPHER LAWRENCE SMITH (respondent/applicant) |
FILE NO/S: | P & E Appeal No 2982 of 2003 |
Court of Appeal | |
PROCEEDING: | Application for leave Integrated Planning Act |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 8 March 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 March 2004 |
JUDGES: | Davies and Jerrard JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –PLANNING OFFENCES – where Planning and Environment Court declared that applicant’s use of land constituted the occupation of a temporary dwelling and was unlawful and a development offence pursuant to Integrated Planning Act (Qld) – where declaration that applicant’s use of land constituted the occupation of a temporary dwelling made on the basis that the applicant did not have the appropriate development approval or approvals to build structure on land - whether the structure was temporary |
COUNSEL: | The applicant appeared on his own behalf S L Doyle SC, with E J Morzone, for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Bernays Lawyers for the respondent |
[1]JERRARD JA: This matter is an application for leave to appeal pursuant to section 4.1.56(2) of the Integrated Planning Act 1997 against a decision of the Planning and Environment Court given on 22nd December 2003.
[2]The order sought to be appealed adverse to Mr Smith where in proceedings brought by the Council for declaratory orders pursuant to section 4.1.21 of that Act and for other orders made pursuant to section 4.1.22 and or alternatively 4.3.22.
[3]Mr Smith may appeal only with leave of this Court and only on the grounds of error or mistake in law or on the grounds that the Planning and Environment Court acted in an absence or in excess of its jurisdiction. His grounds of appeal dated 9 February 2004 raise a number of irrelevant matters that are neither errors of law nor ones identifying an absence or excess of jurisdiction. However, his ground number 3 on the first page of his appeal application and his paragraphs 1 of 2 3, together with his ground 3(B) in the form of 64 dated either 16th January 2004 or 19th of January 2004, do raise a relevant matter.
[4]As revealed in the judgment under application, the Council's original application was for a declaration and consequent orders. The declaration sought was that Mr Smith's use of land (described as lot 8 on RP 211676, Parish of Bulli, County of Derby and situated at lot 8 Billinga Road, Wattle Ridge, Millmerran) constituted the occupation of a temporary dwelling and was unlawful, in that no current temporary occupation permit had been issued pursuant to the Millmerran Shire Planning Scheme. Two further orders were sought, namely an order restraining Mr Smith from so using the land and an order requiring him to cease occupation of any temporary accommodation on that land within 14 days of the order.
[5]The learned Judge made the declaration sought and a further declaratory order that Mr Smith's use of that land constituted a development offence pursuant to the provisions of the Act. The Judge restrained Mr Smith by order from using that land for the occupation of temporary accommodation until Mr Smith obtained a current temporary accommodation permit issued by the Council and it ordered that upon failure to make application for such a permit within 28 days of the date of the order, Mr Smith was restrained from occupying the premises on that land.
[6]The judgment describes how Mr Smith had described himself in his material and argument placed before the Court below as the Chief Executive Officer of a community known as God's State (Federal State) Independent Sovereign State of Australia, of which he described himself a citizen and as a person not subject to the laws of the Commonwealth of Australia or those of the State of Queensland. Those views are reflected in the irrelevant grounds of appeal.
[7]The judgment describes lot 8 as being approximately 118 hectares in size and allocated to the Rural B zone pursuant to the Shire's planning scheme. Mr Smith had been the registered proprietor of that land from 1988 until 2001, at which time it was apparently sold to a Mr J McTavish, who was the registered proprietor at the time of the decision under application.
[8]The judgment describes Mr Smith as a person who "currently resides on the subject land with his daughter as a caretaker".
[9]The judgment records how an environmental health officer employed by the Council became aware of the existence of a building on that land and video-taped two structures erected upon it.
[10]The video, exhibited in the proceedings below, shows the erection on the land of what the judgment described as two rudimentary structures. The first comprised a concrete slab on the ground, a timber frame, timer wall cladding and steel roof sheeting.
[11]The judgment records that a number of additions and extensions appear to have been made to the structure of that building; and it records Mr Smith, in his evidence, saying that he had expanded the existing structure so as to make it "more habitable, more suitable". The expansion had included the construction of a bathroom, cooking area and a kitchen.
[12]The judgment records that it was common ground between the parties in the Planning and Environment Court that Mr Smith and his daughter permanently resided in the first of the two structures.
[13]The second structure was described in the judgment as a timber framed building like the first and the judgment records that Mr Smith stated in his evidence that that second building was still under construction and that the work had been undertaken on the instruction of Mr McTavish.
[14]The evidence was unchallenged that at no stage had any application been made by Mr Smith or Mr McTavish for a development permit, building permit or temporary accommodation permit in relation to that land or any structure or extension erected upon it. On that basis the Council sought the orders actually made by the learned Judge.
[15]It appears that the Council's case below was that Mr Smith resided in a temporary structure located on that land and without a current temporary accommodation permit. Putting the Council's application on that basis reflected the provisions of clause 30 Division 4 of the Shire Planning Scheme. That clause relevantly provided, as described in the judgment and I quote:
"Rural Zones 30(1)
Unless otherwise stated the provisions of this clause shall apply to all uses in the Rural 'A', Rural 'B', Rural 'C', Rural 'D' and Rural 'E' zones.
30(3)
Notwithstanding any provision of this scheme to the contrary, Council may permit the erection of a temporary structure or the parking of not more than one caravan on an allotment for the purposes of owners who wish to reside temporarily on their land whilst building their own permanent dwelling house subject to the following requirements-
(a)The occupation of any temporary accommodation on any land within the area is prohibited unless there is a current temporary accommodation permit issued by the Council."
[16]On the manner in which the Council's case was put and declarations and consequent orders sought and as described in the Council's outline of argument on this application, the granting of the relief sought depended upon findings that Mr Smith's use of the subject land constituted the occupation of temporary accommodation; or, perhaps, the occupation of a temporary dwelling as described in the order made.
[17]The learned Judge's actually finding at paragraph 18 of the reasons for judgment were that:
"Two unapproved structures including extension thereto, have been erected on the subject land and the respondent resides in one of those structures. The application turns on whether the structures can be characterised as temporary structures. I'm of the view that the structures are temporary as they are unapproved structures that require an appropriate development approval or approvals. Until the approval or approvals are obtained the structures, in my view, are temporary."
[18]The learned Judge accordingly held that Mr Smith was in occupation of a temporary structure without a temporary accommodation permit contrary to a requirement of the Shire's Planning Scheme.
[19]Mr Smith's grounds of appeal do include the contention that the learned Judge should have acknowledged that buildings might be erected or used on land without the consent of the Council and Mr Smith has argued in this Court that the learned Judge should not have held that Mr Smith's accommodation was "temporary". I think Mr Smith raises the issue of an error of law in the conclusions of the learned Judge just quoted.
[20]Mr Smith is not the registered owner of the subject land, nevertheless, he permanently resides on it. That, it appears, is common ground. There appears no suggestion that he intends to reside in any other structure than the one he now occupies. It appears from passages of the transcript quoted in the outline of Senior Counsel for the respondent Council in this Court, that Mr Smith regards that building in which he resides as also being under construction and not finished. But that does not make temporary his occupation of it in an unfinished state or his occupation of it a temporary accommodation in that structure or the structure itself a temporary one.
[21]The applicant should succeed on the argument that a structure is not rendered temporary because no current temporary accommodation permit exists in respect of it. Structures are properly described as temporary partly from the nature and composition such as made from paper, grass or bark; but whether they are temporary depends far more upon the quality of their construction and the intent of their occupiers than it does of official approval of their erection.
[22]Likewise whether a dwelling, however constructed, is temporary would depend at least as much upon the occupant's intent as upon the skill with which it is built and whether accommodation is temporary or permanent depends almost entirely upon the intent of the occupant.
[23]Finally I observe that even if all members of the Millmerran Shire Council were ardent sympathisers with Mr Smith's cause, they would be unable lawfully to approve his being issued with a current temporary accommodation permit pursuant to clause 30(c) since its provisions allow the Council only to permit the erection of a temporary structure for the purposes of owners wishing to reside temporarily on their land while building a permanent dwelling house.
[24]As Mr Smith is not an owner wanting to reside temporarily on his land, he could not qualify for a permit issued for the purposes of clause 30(3). Accordingly, I consider that the applicant has raised for consideration an error or mistake of law, namely the correct construction of clause 30(3) and whether it is sufficient in the circumstances to render the structure he lives in temporary, that is no current temporary accommodation permit or other development approval or approvals exist in respect of it.
[25]I consider there is only one answer to that question which is adverse to the respondent Council and I would grant leave to the applicant to argue that matter, allow the appeal, set aside the orders made on 23 December 2002 and in lieu thereof dismiss the applications made to the Planning and Environment Court in this matter by the respondent.
[26]DAVIES JA: I agree.
[27]McMURDO J: The application for leave to appeal is made upon a number of grounds which appear to correspond with the various arguments discussed and determined by the primary Judge. With one exception this application raises no arguable question of law.
[28]The exception is the applicant's contention that his case is not within clause 40 of the planning scheme. It amounts to a submission that neither of the structures constituted a temporary structure or temporary accommodation in the relevant sense.
[29]Neither of the terms "temporary structure" or "temporary accommodation" is defined for the purposes of the scheme. Each should be given its ordinary meaning as the respondent submits by its reference to a dictionary definition of "temporary" as meaning lasting, existing, serving or effective for a time only, not permanent.
[30]When a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, then the question of whether they do or not is one of fact, but there is a question of law in whether the facts as found could bring the case within the ordinary meaning of those words. New South Wales Associated Blue Metal Quarries and The Commissioner of Taxation (1956) 94 CLR 509 at 512, Hope and The Bathurst City Council (1980) 144 CLR 1 at 8.
[31]In the present case then the relevant question of law is whether on his Honour's findings it was open to conclude that either of these structures was a temporary structure and that the applicant's accommodation was temporary accommodation.
[32]The primary Judge made an express finding that the applicant permanently resided in one of these structures and his findings are consistent only with the conclusion that the applicant did not reside in the other structure. The building in which he does live was described as rudimentary but it was found to have been his permanent residence. This finding is inconsistent with the conclusion that it was his temporary residence. Moreover there was no finding to the effect that he was residing in this structure, only whilst the second structure was being completed.
[33]On these findings in my view it was not open to conclude that the structure in which he lives was a temporary structure or temporary accommodation. As to the other structure there is no finding that he occupied it. It is a house in the course of being built, but in the context of clause 30 it cannot be said that there is an occupation of a building as accommodation simply where a builder occupies the site of a house which he builds.
[34]There was nothing on the facts which made it open to conclude that this second structure was a temporary structure or temporary accommodation in the relevant sense. In my respectful opinion his Honour erred in each case in concluding that the structure was temporary and the error was in giving the term "temporary" a meaning which was not its ordinary meaning but instead by interpreting it as meaning in effect a dwelling or structure for which the relevant permission was yet to be obtained.
[35]On the findings made below the only conclusion reasonably open was that the Council had failed to prove its case in that neither of the structures was temporary in the relevant sense. I agree with the orders proposed by Justice Jerrard.
[36]DAVIES JA: I also agree with the reasons just given by Justice McMurdo. The orders are as indicated by Justice Jerrard.