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					CITATION:

Kingborough Council v M and M Smith TASRMPAT 81 Appellant – Kingborough Council Respondent – Michael and Michelle Smith 47 Dennes Point Lane, Bruny Island

[2008]

PARTIES:

ADDRESS:

TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal JURISDICTION: FILE NO/S: DELIVERED ON: DELIVERED AT: HEARING DATE: DECISION OF: Planning Appeal A30/08 5th May 2009 Hobart 23 April 2009 G P Geason, Presiding Member R. Howlett, Member M. Ball. Member

CATCHWORDS Development, By-Laws and Planning Scheme REPRESENTATION: Counsel: Appellant: D Armstrong Solicitors: Appellant: D Armstrong Respondents appeared in person: DECISION 1. Application is made pursuant to section 64 of the Land Use Planning and Approvals Act 1993 (“the Act”) for Orders that: a) The Respondents refrain permanently from using the property known and situate at 47 Dennes Point Lane Bruny Island (the land) for the purposes of holiday accommodation, unless and until a planning permit is issued for that purpose The Respondents remove from the land the demountable building/caravan and all associated structures within 21 days of the date of any order.

b)

c)

The Respondent pay the Applicant's costs of and incidental to the application.

Background 2. The evidence is that in early July 2008 the Kingborough Council (the Council) received several complaints regarding the placement of a demountable building on land at 47 Dennes Point Land Bruny Island. The Council inspected the land and observed a demountable building fitted with an axle and wheels, lights and a draw bar for towing. It bore a Queensland vehicle registration plate. On July 17 2008, a water tank was observed attached to the building and drainage pipes were observed leading to a soakage drain. Some bricks had been laid adjacent to the building. Subsequently it was reported to the Council that an awning was being installed attached to the building. Plainly the presence of the structure had aroused local interest. Whether that was one person or several is irrelevant. The Council wrote to the owners on July 17 2008. In that letter the owners were advised, inter alia, that the land was a highly prominent and sensitive area and that the developments on the land had created a deal of community concern. The Council referred to Council's Health and Environmental Services By-Law No 4 of 2001 which stipulates that Council permission is required if a caravan is to be occupied for more than 14 days over a 12 month period. The owners were further advised "that any additional structures or development on the land may trigger the need for planning or building permission" [our emphasis] and they were advised that the Council had the power to commence legal action where development is carried out without the required permits in place. The owners of the land advised the Council in a written response that they wished to utilise the caravan for short holiday periods only. They further advised that there long term plans for the property were to seek approval to build a low scale minimal impact and environmentally friendly dwelling thereon. The Council engaged legal representation and communications to the owners thereafter were prepared and signed by the solicitor. The first such letter was written on 29 July 2008, and it advised the owners that in light of their stated intention to use the facility for occupation as a holiday dwelling for approximately six weeks each year, and having regard to the placement of the building on the land in the manner which indicated "a significant degree of permanence" planning approval under the Scheme would be necessary. The owners were further advised that the Council had at its disposal the option of taking action under section 64 of the Act requiring any unlawful use to be terminated and any unlawful development to be removed. The owners were advised to make application for planning approval as soon as possible, if it was their intention to use the site and to maintain the building thereon.

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The owners responded directly to the Council [not its solicitor], stating that they had received advice from the Council's planning department that it was acceptable to Council for a caravan to be placed where it was on the land. This representation, they stated, "encouraged us to purchase the caravan in question and tow it from Queensland to its current position". They further indicated that they would apply for the relevant permit under Council by-laws. They stated, "We are adamant that there has been no illegal development or breach of the Planning Scheme on our property and therefore take threats of prosecution very seriously". The permit to which reference is made in that letter is a certificate under the ByLaw allowing use of the caravan for not more than 14 days per year. The permit was applied for, and was refused. Correspondence ensued between the parties with the owners requesting that the Council advise "any area of the Planning Scheme being breached". In subsequent correspondence as late as October 2008 the owners of the land restated their contention that they had been advised by the Council that a planning permit was not required for the caravan. This is notwithstanding the contents of the letter in July 2008 from the Council's solicitor advising that the Council took a different view.

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Zoning 12. The land is subject to the Kingborough Planning Scheme 2000 (the Scheme); under the Scheme the land is zoned Environmental Management. Much of the argument at the hearing of this matter related to whether or not the caravan had sufficient degree of permanence to constitute a building making it a development requiring approval under the Scheme. The interplay between the By-Law and the Scheme was also the subject of discussion. It appeared to the Tribunal that the matters required for a permit under the by-law could well confer upon the structure the indicia of permanence, necessitating characterisation of the caravan as a building, thereby requiring development approval. Of course the provisions of the Scheme will always prevail over the By-Law. It is entirely possible and not inconsistent, nor indeed unreasonable, that a By-Law will impose particular obligations for a particular purpose, compliance with which will cause the subject matter to acquire a different character from that which it would otherwise have. Thus, when, as here, the by-law requires that the owner of land must not allow the land to be used for a caravan used for human habitation for more than 14 days in a year without a certificate; and requires that such certificate may be refused if it does not contain satisfactory facilities for the supply of water or the disposal of sewage. The by-law is requiring ancillary installations which embellish a caravan with physical characteristics and accoutrements it would

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not otherwise have, and confer upon it a degree of permanence requiring planning approval. 17. It appears to the Tribunal that the problem which has arisen in this case is the product of some confusion about the function of the by-law, the consequences of compliance with it and the interplay between the by-law and the planning scheme. It was also possibly contributed to by representations of the Council, and the statement that any "additional" structures may trigger the need for development approval [refer Council’s letter 17th July], implying that that which was already there did not require planning approval. Compliance with a by-law will not confer upon something which is a development, a permit for that development if such development requires a permit under the Scheme. Compliance with a by-law may be an incident of, and indeed a prerequisite for, the grant of a permit for a development, but is not a substitute for that permit.

The Structure 18. The threshold issue is whether there is a development requiring planning approval under the Scheme. The Scheme incorporates by reference, the definition of development contained in the Act as follows: "Development" includes – (a) (b) (c) (d) (e) (f) The construction, exterior alteration or exterior decoration of a building; and The demolition or removal of a building or works; and The construction or carrying out of works; and The subdivision or consolidation of land, including buildings or airspace; and The placing or relocation of a building or works on land; and The construction or putting up for display of signs or hoardings –

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But does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition; Pertinent to this application is sub-paragraph (e). 20. "Building" includes a structure and part of a building or structure. [See S.3 of the Act]. A structure is merely a construct which has a form resulting from the combining of parts. At the hearing, the owners confirmed that the main structure was towed

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from Queensland under permit and is not registered as a vehicle. The demountable building placed upon the land is, on any view of it, a structure. Permanence is not strictly a prerequisite for that characterisation, though in practice it may require permanence before being considered a building. The Tribunal is satisfied that there is, in this case, the requisite degree of permanence. 22. In this case the Tribunal is satisfied that the placement of the demountable building on the land constitutes the placing or relocation of a structure on the land. Accordingly, there is a development for the purposes of the Act and the Scheme, and a requirement for a permit [refer S.51 of the Act]. Clause 3.1 of the Planning Scheme 2000 provides:3.4.1 a person wishing to carry out use or development in the Planning Scheme area must submit an application for a permit to Council unless the proposed use or development is listed as exempt under Part 4 of the Scheme. 24. That there is no permit is not in dispute. Further, the Tribunal received and accepted evidence that the development is not exempt under Part 4 of the Scheme. Section 63 of the Act provides: (2) A person must not …… undertake development or do any other act, that – (a) is contrary to a State Policy, a planning scheme or special planning order

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The Tribunal is satisfied that there is a development for the purposes of the Scheme for which a planning permit has not been granted and that, accordingly, S.63 of the Act is breached. Accordingly, the Orders 1 and 2 sought by the Council should be made.

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The Orders 28. The Tribunal is satisfied that the owners of the land have acted in good faith at all times. They were candid and open in the presentation of their case and about their conduct. We are prepared to accept for the purposes of this matter that it is probable that they were advised that the placement of the caravan on the land did not require any sort of development approval. That view is supported by the language of the July 17th letter. The Tribunal will make the Orders, numbered 1 and 2 sought by the Council in the Application. However those Orders will not take effect until one calendar month after the date of this decision. That delay is intended to afford the owners of the land an

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opportunity to make application for planning approval. If such application is made within that time, then the Orders will be stayed pending determination of the planning application. 31. An adverse determination of the planning application will cause the Orders to be activated 14 days after that determination unless such refusal is taken on appeal in which case the Orders will be stayed pending a decision of that Tribunal. A refusal of any such Appeal will activate this Order upon that decision taking effect. If an application for planning approval is not made within one calendar month after the date of this decision, then Orders 1 and 2 must be complied with on or before the expiration of that period and the demountable building must be removed. In all the circumstances the Tribunal is not persuaded that it is appropriate to make an order for costs against the respondents. Accordingly it orders that each party bear its own costs of and incidental to the application.

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Dated this 5th day of May 2009 M Ball Member G Geason Presiding Member R Howlett Member

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