Is it really the case that hobbies and ‘backyard activities’
need planning approval?
It is interesting to ponder the possibility that one’s hobby
may be breaching planning laws. The application for a helicopter landing and
taking off from a one man’s house at Bargara has sparked a lot of controversy
but there is another aspect that raises more questions than it answers.
Right throughout Bundaberg and beyond, people have all sorts
of pastime activities that mostly fly under the Council planning radar. Hobbies
and the like are mostly innocuous, or in some cases potentially an issue but
neighbours are tolerant. Nobody will know about your penchant for collecting
stamps but flying a helicopter is hard to keep hidden. The trouble is where
does a council draw the line between what is harmless and what might offend.
In my neighbourhood
Take for example in my neighbourhood, I know of several
people who restore old cars, sometimes working late at night and on weekends.
Nearby residents could complain about the noise of angle grinders and the smell
of paint fumes but I suspect good neighbourly relations prevail.
You may have noticed that family down the road, the one with
several teenage sons who love their cars. They tune them, repair them, show
them off, park all over their front yard, and come and go late at night. We put
up them, well more or less.
What about someone who has an aviary with a thousand birds,
or the earthmoving contractor who parks his truck and earthmoving machinery at
home leaving early in the morning for the next job? What about the garage band
in the backyard shed, or the weekly self-help group meeting, or the school bus
parked in the side yard, the ham radio operator, or the elderly gentleman making kids furniture and toys for charities. The list is endless. You get the idea.
But do they really need approval?
Do all or any of these need a planning approval? To be
frank, we are not sure that any of them really do.
Some unanswered questions
So, to the specific case of landing a helicopter at
someone’s place, there are several questions to which neither we nor Bundaberg
Regional Council appear to have a satisfactory answer…unfortunately!
- How many times could someone land a helicopter at a house
before it becomes a use of land and need Council approval?
- What about landing a helicopter at a business or on a farm?
- What about a very very small single-seater electric
helicopter, one that made no noise?
- And getting even smaller, what about flying a drone? (Well actually, a 2 kg drone could kill someone.)
Where do you draw the line?
You can probably get the picture—that it is difficult to
draw the line between what needs an
approval and what doesn’t. It is arguably even more challenging to decide what
should receive an approval and what
should not.
What about looking a little to the future where jetpacks or
hover-bikes might be a preferred transport mode for commuters?
World's first commercial jetpack set for 2016 launch
Planning scheme definition of detached dwelling
Different planning schemes have until recent times all had
their own, but similar, definitions for ‘Detached Dwelling’ (i.e. just an
ordinary house). The traditional response to whether an approval was needed was something like…if family members
carried on some ‘incidental and subordinate’ non-business activity at their
dwelling it was probably ‘ancillary’ to the detached dwelling. No approval
would be necessary. I like it…it's simple.
The view of the courts
The courts, and consequently councils, appear to have the
view that to avoid being ‘development’ the new activity needs to be
"...necessarily, unavoidably, or inevitably, associated with or involved in the
primary use”, i.e. a detached dwelling. While we can readily see how landing a
helicopter is not inevitably associated with a house—neither are most of the
hobbies and activities presented earlier. My neighbours do not need to have an
aviary or restore their vintage cars to live in their houses—they are not
necessarily, unavoidably, or inevitably associated. It is ‘development’ that is
not a detached dwelling and requires a planning approval.
New planning schemes
New planning schemes in Queensland, including the new
Bundaberg Region Planning Scheme expected later in 2015, include a statewide
definition:
"Dwelling house - A residential use of premises for one
household that contains a single dwelling. The use includes domestic outbuildings
and works normally associated with a dwelling and may include a secondary
dwelling.”
This new definition is potentially even more confusing. What
does it mean when it says the use includes domestic outbuildings and works? It
probably intends to say that the use includes "activities normally associated
with a dwelling and domestic outbuildings and works”. That still merely
restates the current situation in which nobody really knows what is ‘normally
associated’ with a dwelling.
Conclusion - our suburbs may be packed with unlawful uses
So where does all this lead? Good question!
Does it mean that our Council
should take enforcement action for a range of backyard ‘uses’ and ‘development’
occurring within our suburbs? Well yes, if they are to treat everyone fairly. Our
suburbs would be fun-free zones however, very peaceful and quiet but without life or
activity.
Imagine the outcry over that! There would be
rioting and bloodshed in the streets!