P R and R E Schmidt v DC Mount Barker No ERD-01-130 [2001] SAERDC 30 (4 April 2001)

Last Updated: 9 April 2001

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Environment, Resources and Development Court

Hearing

08/03/2001.

Catchwords

Development Act, 1993 - building control - building classification - building to be used for raising of chickens - Council awarded a Class 8 classification - appeal against classification - Council classification correct.

Representation

Appellant: PHILIP R & RUTH E SCHMIDT
Advocates: MR P SCHMIDT & MR B CLARK

Respondent: DISTRICT COUNCIL OF MOUNT BARKER
Advocates: MR J COLE & MR P HARMER

ERD-01-130

Judgment No. [2001] SAERDC 30

4 April 2001

(Commissioner Berriman and Commissioner Cheesman)

P R and R E SCHMIDT

v

DISTRICT COUNCIL OF MOUNT BARKER

(ERDC No 130 of 2001)

[2001] SAERDC 30

THE COURT DELIVERED THE FOLLOWING DECISION:

1 This is an appeal against the decision of the District Council of Mount Barker classifying an extension to an existing shed and the construction of a new shed for the purpose of growing chickens as a Class 8 development as defined in the Building Code of Australia (BCA). The buildings are described subsequently as broiler sheds.

2 The appellants contend that the proper classification is Class 10A and that a Class 8 classification is not appropriate.

3 The decision notification form dated 15 December, 2000 gave provisional development plan consent subject to nine conditions and provisional building rules consent subject to seven conditions.

4 The Court heard evidence from Mr and Mrs Schmidt, Mr B Clark, a builder engaged by Mr and Mrs Schmidt and Mr J Cole and Mr P Harmer for the respondent Council.

5 Mr and Mrs Smith own and live on the property where the sheds are located and operate the chicken growing enterprise.

6 The conditions attached to the provisional development consent were accepted and did not form part of the hearing.

7 The conditions forming part of the provisional building rules consent which were appealed against were:

Condition 1 requiring illuminated Exit signs

Condition 3 opening of doors in a required exit

Condition 5 requiring a builder's written statement before Council can issue a certificate of occupancy

Condition 6 provision of notice to Council before commencing various sections of the work

Condition 7 requiring details of the person who will provide the statements for a certificate of occupancy. This will be necessary before work commences.

These conditions are applicable to a building having Class 8 classification but not to one with a 10A classification.

8 Mr Harmer addressed the Court on the procedure adopted by the Council in determining the Class 8 classification and submitted the segment of the Building Code of Australia defining each class. The Code states in Clause A3.1 that "The classification of the building or part of the building is determined by the purpose for which it is designed, constructed or adapted to be used."

9 The proposal in detail is to construct a new broiler shed of 1360 square metres and add 380 square metres to an existing shed to increase its area to 1360 square metres.

10 Council discussed the proposal with the applicants, visited the site and is confident that the use will be growing birds for the purposes of sale. The Council planners have defined the land use as intensive animal keeping. The evidence considered each classification and by elimination nominated Class 8 as correct for the intended use.

11 Pursuant to Regulation 82 of the Development Regulations, the various classifications of buildings for the purposes of provisional building rules consent are those prescribed by the Building Code of Australia. Part A3 of that Code deals with classifications of buildings. Included within that part are the following classifications:

"Class 8: a laboratory, or a building in which a handicraft or process for the production, assembling, altering, repairing, packing, finishing or cleaning of goods or produce is carried on for trade, sale or gain."

"Class 10: A non-habitable building or structure.

Class 10A - a non-habitable building being a private garage, carport, shed, or the like; or

Class 10B - a structure being a fence, mast, antenna, retaining or free standing wall, swimming pool or the like."

12 The Council believes that the activity in the shed, the production or finishing of chickens for commercial gain, clearly fits a Class 8 description.

13 The Guide to the Building Code of Australia in its discussion of Class 8 building says "The most common way to describe a Class 8 building is as a factory, however this can be a simplistic impression of the types of building which can fall within this classification." Included in the examples listed in the guide is food manufacture which Council considers is also correct and supports this classification.

14 Two further matters were considered by Council.

15 Firstly the consequences in terms of risk to safety, health and amenity of occupants if a Class 10A classification were adopted and secondly if, because of the owner-operator circumstances, there were alternatives to some requirements that were satisfactory.

16 If the building was classified as 10A (the only alternative) the building would require no fire rating if adjacent to either a property boundary or other building, no fire department restrictions, no egress requirements, no disabled access provisions, no water for fire fighting, no need for portable fire extinguishers, no exit or emergency lighting, no lavatory facilities and no ventilation requirements.

17 For the proposal before it, Council's decision was that a 10A classification was clearly inappropriate.

18 As the broiler sheds are placed in a family farm and the only employees are family members, Council waived the requirement for lavatory accommodation, relaxed the requirement for emergency lighting and disabled access and water for fire fighting from AS 2419 standard to CFS requirements. Fees were reduced and the Council has shown willingness to discuss the certificate of occupancy.

19 In view of the concessions granted, Mr Harmer was asked whether a further condition which would limit approval to the present property ownership, should be included.

20 Mr Harmer agreed that the certificate of occupancy should state Council's basis for assessment and that change in circumstances may require re-application.

21 Mr Clark was then heard and in his statement drew attention to a larger similar proposal being approved by the Rural City of Murray Bridge with a 10A classification. The inconsistency between the interpretation of the BCA by adjoining Councils was the reason for this appeal in view of the additional resulting building cost.

22 P R and R E Schmidt are independent contractors and are paid a growing fee. They do not own the birds except by death. Birds are delivered in air-conditioned trucks when one day old and taken into the sheds on trolleys.

23 Mr Schmidt then described the broiler sheds and the growing process. The first birds leave the sheds at a live weight of 1.8 kg at approximately 35 days. The remaining birds are taken to meet market requirements usually finishing at about 50 days but occasionally extending to 56 days. Sheds are then cleaned and sanitised.

24 Sheds have computerised temperature control with cooling by misting in hot weather and gas heating in the colder months. Ventilation is also computer controlled with opening shutters and exhaust fans. Sheds have three rows of feeders and four rows of drinkers, lighting is dimmable and is also computer controlled. The materials used in construction are non-flammable or low risk with little support for combustion other than litter. A large CO2 extinguisher is kept for electrical fires.

25 Following the summary of activities, the conditions subject to objection were reviewed and discussed. In summary:

* Condition 1 can be resolved in negotiation with the Council;

* the objection to Condition 3 is due to a misunderstanding;

* Condition 6 is accepted;

* the appellants have been confused by Conditions 5 and 7 which are related. The Council requires a written statement from a responsible person with appropriate qualifications certifying that the buildings have been built in accordance with the approval. The certificate of occupancy cannot be issued until this condition is met. The Council has stated its preparedness to determine an acceptable procedure.

26 We believe the classification by the Council as a Class 8 building is correct, that the conditions listed on the provisional building rules are necessary and that the appeal should be dismissed. Although not frequent, there are regular visits to the sheds by non-family for delivery and housing of day-old chicks and despatch at 35-50 days. Further visits can be anticipated for the repair and servicing of the quite extensive equipment.

27 We would impose a further condition limiting approval to the present ownership of the property. The decision of the Council to waive some of the requirements generally applicable to Class 8 buildings, eg separate lavatory accommodation, emergency lighting and some of the fire water requirements was reasonable in the circumstances presently prevailing. However, that decision was based upon the fact that the business activities to be undertaken in the buildings concerned will be undertaken by the occupants of the dwelling on the farm upon which the buildings are located. However, should the buildings and the dwelling become either separately owned or occupied, such waiver is unlikely to remain appropriate. At very best, the situation will require review. In our view, our determination should contain a condition that, upon such separation of ownership or occupancy arising, such waiver shall lapse. The practical effect of such a condition will be that, upon such an event occurring, the Council will have the opportunity to review the situation or to take such steps as may be appropriate.

28 In conclusion, we think it appropriate to express the view that the principal reason for the classification of buildings is to ensure that all buildings are both structurally sound and may be safely used for the purpose for which they have been either constructed or adapted. If a building is used for a purpose other than that appropriate for its classification, there are risks that it may not be structurally adequate for that use and that its occupants may be in danger. That is what the classification of buildings is all about. In the course of hearing this appeal, Mr Clark told us of a building similar to that now proposed which was classified by the Council of the Rural City of Murray Bridge as a Class 10A building. We have not seen that building and know nothing about it other than what Mr Clark told us. However, if what Mr Clark told us about the building is correct, we are firmly of the view that it should have been classified as a Class 8 building. The differences between a Class 8 building and a Class 10A are substantial - the difference between the structural and safety requirements are equally substantial. Thus the apparent incorrect classification of this building is a matter of concern. In the circumstances we have come to the conclusion that we should refer this matter to the Minister for Transport and Urban Planning for her consideration and such action as she considers to be appropriate. We direct the Registrar of the Court to forward a copy of this judgement to her.

29 The Order of the Court is that:

1. The classification by the District Council of Mount Barker of the buildings the subject of these proceedings as Class 8 is affirmed; and

2. The waiver of the requirements relating to the provision of lavatory accommodation, some emergency lighting, disabled access and water for fire fighting (from AS 2415 to CFS requirements) in the buildings the subject of these proceedings shall cease upon either those buildings and the dwelling situated on the farm upon which such buildings are located becoming separately owned or occupied, or the use of the buildings the subject of these proceedings being changed.