Does a shipping container require development approval?
Court finds that shipping containers need not be "fixed" to land to constitute assessable building work
On 29 August 2018, the Magistrates Court held that a shipping container had to be "fixed" to land in order to constitute assessable development. This position was reversed in a recent decision of the District Court of Queensland where it was held that the placing of a shipping container on land, without "fixing" it to the land, constituted assessable building work.
Case History and Facts
In Logan City Council v Brookes, the District Court heard an appeal against the decision of the Magistrates Court dismissing seven complaints for breaches of section 578 of the Sustainable Planning Act ("SPA") (i.e. carrying out assessable development without a development permit). The breaches related to the placement of seven shipping containers on land, for which Council alleged the owner had not obtained development approval. The shipping containers were being used for the storage of furniture, construction materials, vehicles and other personal effects and were classified as class 10a structures under the Building Code of Australia.
Earlier, in the Beenleigh Magistrates Court, Magistrate Kilner dismissed each charge brought by Council. The Magistrates Court at first instance found that the shipping containers were not "buildings" or "structures" since they were not fixed to the ground. The consequence, the Magistrates Court said, was that movement of the shipping containers onto the land did not comprise "assessable development" requiring a development permit.
Council lodged an appeal to the District Court on the basis that the learned Magistrate's finding was an error of law.
It was relevant for the District Court to consider the definition of "building work", which the SPA and the Building Act ("BA") define (in part) as building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure.
In a clear point of distinction, Judge Jarro noted that, unlike the term "building", which is defined as a fixed structure, the term "structure" is not defined in the SPA, and it does not follow that a container needs to be fixed to the ground or permanently attached to it.
In having regard to the definition of "building work", the District Court considered the term "structure" which the BA states includes a wall or fence and anything fixed to or projecting from a building, wall, fence or other structure. The Court accepted that the word "includes" means that structures need not be limited to walls or fences, or things affixed to existing buildings, walls, fences or other structures. Indeed, the District Court said that there is nothing in the definition of "structure" in either the SPA or the BA which required the structure to be fixed to the ground.
As no exemptions under the Building Regulation ("BR") were found to apply, the District Court held that the movement of the shipping containers onto the land constituted "assessable development" (i.e. building work moving a structure onto the land) for which a development permit was required. Accordingly, the complaints made by Council were found to be proven, with verdicts of guilty entered in respect of the seven charges. The District Court is yet to rule on the penalties to be imposed.
This decision clarifies the general understanding that consideration should be given to whether a shipping container is "fixed" to land in order to constitute assessable development. Whilst the decision considered relevant provisions of the now superseded SPA, the principles flowing from this case apply equally under the Planning Act.
It is important for local governments to be aware that the placement of a shipping container on land is now likely to be considered assessable development, at least in the context of shipping containers which are classified as class 10a structures (and for which no exemptions under the BR apply). However, it remains to be seen whether that is also the case for other structures which are not classified as class 10a structures and are used for other purposes. Helpfully, where a shipping container is not "fixed" to land in any way, this decision makes it easier for local governments to take enforcement action against the landowner if they do not hold the necessary development approval/s.
For more information on this decision, or to discuss possible enforcement action, contact our Planning and Environment Group on (07) 3243 0000.
|Tags: Local Government Planning & Environment Development Approval Legislation|