A Launceston woman is facing financial ruin after a series of problematic encounters with the Launceston City Council including an invalidly issued permit to operate a restaurant in a Closed Residential area.
Mrs Suzi Burge says that she bought her property in Reuben Court, Kings Meadows in 2001. It had previously been occupied by Pellows Saw Service, a company conducting saw sharpening activities. Ms Burge purchased the building in order to house her burgeoning craft supply business Crafty Critters.
“I started the business on a card table in my home with just $200. The business was very successful and it outgrew the dining room of my home. The business started as an In-Home Demonstration or Party Plan and I was operating every state in Australia. I really needed a new premises.”
The property she bought at Reuben Court, straddled two land titles. It also had a very unusual zoning with one title and half of the building – number 16 – being zoned “Closed Residential” and the other title and other half of the building – number 18 – being zoned “Business District”.
The List map of Reuben Court showing the property at Reuben Court which is zoned Business District
There was an initial problem with MCS Management, the owner of the Meadow Mews Shopping Complex development next door taking action in the Planning Tribunal alleging that Ms Burge did not have the permit necessary to operate a shop in the Closed Residential area under the pre 2006 legislation. The Launceston City Council said they did not have a copy of the permit. Fortunately the previous owner of the Reuben Court property located his copy of the existing retail permit which allowed her craft store to carry on with the business. “How does a City Council lose a permit?” she asks.
Shortly after this set back more problems began to appear. A few months later she received a Launceston City Council notification that the Council was going to “dig up Reuben Court”. At the same time builders were working on the property next door and extending the Meadow Mews complex. Ms Burge was situated in a cul de sac which meant that with the building works happening next door and road works in the street, her business would be isolated from the public.
“At times people could not get into us because both the laneways were blocked.”
The Council workmen were on the site for up to seven weeks. The loss of customers and reduction in income meant that Ms Burge’s booming Crafty Critters Party Plan Company became “starved of funds” and resulted in the closure of that part of the Company.
Ms Burge was advised by the Mayor at the time Janie Dickenson, to put in an application for compensation. However the Launceston City Council’s insurance company rejected the claim. Ms Burge was offered a $5,000 ex gratia payment which she refused.
By 2008 Ms Burge, encouraged by the success of the business, decided to upgrade the existing retail premises and gained Council approval for the extensions. Then Ms Burge decided she wanted to put a café-restaurant into the shop.
“My partner at the time took in the application for a café-restaurant into the Launceston City Council Planning Department – they looked over the plans and the department asked if we were going to serve alcohol. My partner answered yes. We were advised that as we already had existing toilets that was fine. “
This application was lodged on the 13th February 2009 and an advertisement to “Change part of a non-conforming use to enable use of part of premises as a restaurant (coffee shop) (vary car parking)” was posted on 21st February 2009. The Development Application was approved by the Council on 31 March 2009.
In May 2009 Ms Burge advertised in the Examiner for a liquor licence. “I had been waiting for the kitchen plans to be approved and was told on phoning the Planning Officer that the toilets were ‘too far away from the Café.”
Another council officer visited the Crafty Critters premises and said that the first council officer’s opinion that the toilets were “too far away” was wrong but added that the problem was that she must have “a separate toilet for staff”.
“The officers suggested that I put a staff toilet in the back near the kitchen. I thought this would not be very healthy but was desperate to open so was listening to everything they had to say.” According to Ms Burge at no time in any of these discussions was there any mention of potential problems with zoning issues.
Mrs Burge submitted plans for the additional toilets but had the plans returned to her the next day with the statement that a whole new development application had to be put in at a cost of $1254.20.
Mrs Burge balked at the cost and for five months her trade was restricted to 20 people and no liquor licence because of the toilet issue.
She said she was sitting at her desk when she noticed the toilet requirements in the Building Code of Australia. The Building Code did not stipulate separate toilets for staff but counted the staff in the total number of patrons using the facility.
“I rang the Building Code of Australia Office in Hobart and they said the same thing. However the officer told me to employ a building consultant to tell the Council that they were wrong, otherwise I would not get anywhere.”
“Therefore at additional expense I hired a building surveyor and they told the Council they were wrong about the toilet issue. “ Ms Burge says this issue over the toilets caused serious problems for her because of the restricted number she could seat in the café.
“The Council agreed they were wrong and gave me a permit for 50 seats and a liquor licence however as it was close to Christmas and I had lost the income from Christmas functions.”
“The only thing the council official said when I referred to the financial problems being caused by their mistake was that he “must have read it wrong’ ”.
Ms Burge’s new permit gave her 6 months to put in wheelchair friendly toilets and once again there was no mention of any zoning problem.
Further problems occurred with car parking. Ms Burge says she had enough car parking space for about 22 cars on her own property, a substantial amount for a shopping district, however a complaint was received from Centro Meadow Mews, the property next door, regarding inadequate parking. This complaint was investigated by Council.
“The council came in with the ruling that my customers had to park on my property and not use the Meadow Mews car park or neighbouring streets even after hours. “
“This was really ridiculous, how am I supposed to know where my customers were parking.” Ms Burge said. It was also unfair as Council policy as outlined in a Report into the Reuben Court development application in 2009 was to “encourage shared access and shared parking areas by providing links between separate car parks.”
As Ms Burge’s new permit for 50 people and her liquor licence came with a clause to put in a new wheelchair friendly toilet within six months, an employee dropped off her plans to the Council. He was accosted by the Launceston City Council Planning Manager.
He was told that the café could no longer operate; “It is illegal.” An email was sent to Ms Burge later that night which stated: “The use as a Restaurant is prohibited in the portion of the building zoned “Closed Residential”. I ask that by 31st May 2010 the encroachment of the use be rectified. Failure to comply will result in prosecution.”
Ms Burge said she was astounded by this because a planning officer with the Launceston City Council and an alderman had actually visited her after she was operating and sat in the illegal part of the café and drank coffee with no mention of the zoning problem.
The Council Planning Officer maintained that she had never given a permit to Ms Burge for No 16 Reuben Court, the Closed Residential section of the building and that the permit had been based on a plan submitted by Ms Burge showing seating in the conforming zone.
As the area of the title in the conforming Business District Zone has only enough room for about two or three tables this would be an unlikely scenario.
Indeed the plan provided to Ms Burge as support for this claim and bearing a stamp saying “This is the plan relevant to the application” does not appear to be an official plan of the formal type normally contemplated by a body such as the Council. It has no official representations of seating and this would normally be required for such an application.
The Council Officer continued to insist that she had only issued a permit for the District Business Zone portion of the building. At one stage Ms Burge alleges the Officer told her: “I can make you put a wall down the middle of your building.”
However after representations from Ms Burge about the problem on the 24 May 2010 Senior Development Officer with the Launceston City Council wrote to Ms Burge saying that the Council “would formalize a consistent zone within the forthcoming new Planning Scheme for the City at no charge to yourself”.
“The section of your café within the Closed Residential can remain as a low key ancilliary use of the Craft shop but, at this stage is not approved with extended hours or to have a liquor licence.” The Council said.
The Council solution was that they acknowledged that “It is indeed an unusual situation that a property would have two zones and in recognition of this, we are allowing the use of the café/restaurant to remain in this section (the illegal “Closed Residential” section) but only for the same hours as the shop”.
According to the Council Ms Burge could operate the “illegal” side of her café at number 16 Reuben Court, which was most of her café between the hours of 9 and 5 and that she could not serve alcohol in this area. That left Ms Burge with an area with only about two tables where she could serve alcohol and patrons could stay late.
There was a promise to rezone her business by Christmas 2010, then there was a promise to rezone by February 2011. Rezoning was a long time coming, in the end it did not come at all.
In addition, Ms Burge also alleged harassment by council officers, including pedantic attention being paid to minor issues, undue concerns about wood smoke from her wood fired pizza ovens and unfair complaints about people leaving her property at night at speed. Although she requested copies of these complaints they were not provided.
She has persuasive answers to these allegations including evidence of council ignoring serious smoke pollution from another resident in the area. She argues that a pothole at the end of her driveway would stop any unnecessary speed from people leaving the premises and the fact that she closes her business at three in the afternoon and has rarely hosted a late night function. Allegations that noise is coming from the property she feels are particularly unfair considering that a saw sharpening shop operated on the premises previously.
Ms Burge feels council coercive power is being applied unfairly. She alleges that a loading bay is being used by a neighbouring property contrary to the original Planning Scheme restrictions for that development and no action has been taken by the Council.
During this long drawn out process Ms Burge had made an application for the Ombudsman to investigate the problem.
“Interestingly the Ombudsman acted on the wood smoke issue whereas he did not place any weight on the procedural problems I had with the Council.” She adds.
Ironically Burge’s application to the Ombudsman’s Office was one of the reasons why the Council eventually decided not to rezone her property to Business Precinct. The Launceston City Council moved on 12/09/2011 to “not rezone Reuben Court Kings Meadows until such time as the smoke, noise and business operating hours of the café (restaurant) are resolved between the owner, neighbours, council and the Ombudsman’s office.”
However bizarrely a month before this decision was made three residents from Reuben Court made submissions to the Launceston City Council’s planning scheme review. The residents were asking for 16-18 Reuben Court to be a “residential zone”. In the Recommended Response to Submission panel the response from the Council was: “Not Supported. Instructed by Ombudsman to zone Commercial”.
Burge says she was astounded to see that statement written down in a Council document.
“Basically his (the Ombudsman’s) finding was that he wouldn’t investigate because they (the LCC) had offered to rezone at their cost and he was happy with that – so case closed!” Ms Burge said. She found it difficult to understand why the Council was regarding the Ombudsman case as ongoing on the one hand and completed with instructions to rezone on the other.
The Council’s issuing of a permit for the Closed Residential zone was always invalid according to the Environmental Defender’s Office. In a letter to Ms Burge the EDO lawyer says:
“The Tribunal has consistently held that a permit which tries to authorise a prohibited use is invalid”.
In an interesting move on the same day the Council decided against rezoning the Burge property to Business or commercial, on 12/09/2011, the Council members decided unanimously to support a resolution that the Council invite Expressions of Interest for the development of a discount department store at the Kings Meadows Activity Centre, on the opposite side of Hobart Road to the Meadow Mews Complex and Reuben Court.
Considering a Report file number SF4089 prepared by the Council General Manager Robert Dobrzynski, the LCC decided to “determine upon a proposal to publicly invite Expressions of Interest for the development of a discount department store at the Kings Meadows activity centre. “
The new proposal is described as requiring a parcel of Launceston City Council land for access to the site.
An image from the List system showing the council owned land which is being proposed as the access to a proposed discount store development in Kings Meadows in close proximity to Reuben Court.
This flies in the face of the council planning principles which are described in a Report on Ms Burge’s 2009 Planning Application. Council “principles” are described as:
a) New retail and business developments will only be allowed at Kings Meadows and Mowbray if they are appropriate to the district-level function of the centres and do not threaten the viability of the Central Business District.
b) New development to locate in the existing zoned areas. No extension of the District Business Zone to be made at either location.
…
In the section of the 2009 Report headed “Zone – Intent of the Zone” this paragraph occurs.
2. Provision is also made for comparison shopping needs to be met. However limitations are imposed on the size of shops permitted to ensure that these second-tier centres do not detract from the role of the central city. For example, it is not intended that discount or full-line department stores establish in the District Business Zone as these would directly threaten the viability of the central city …”
In the Launceston City Council Planning Scheme Review there is an entry from local Town Planners Pitt and Sherry relating to her land and other properties in the Reuben Court – Guy Street area.
“2-18 Rueben St, 7-9 Riseley St, 17-33 Guy St, Kings Meadows Request some type of retail/commercial zone. Reasons: allow Kings Meadows to expand as second tier in retail hierarchy; been 300-350 new houses in catchment with no increase in floor area; low residential density next to shopping precinct under supports the precinct; these residential lots affected by parking/traffic/hours of operation/poor urban design problems. “
The response from the Council was “Further analysis required. Defer to Kings Meadows master planning.”
The then Mayor Albert Van Zetten wrote to Suzi Burge on 5th September 2011 saying that he was “unable to determine how the events unfolded. No doubt a result of many issues and human error”.
He said in closing that no compensation would be paid and that “Council will need you to take legal action against Council.”
In an email to the Launceston City Council Manager Robert Dobrzynski on 18 September 2011, Ms Burge refers to one of the more puzzling aspects of the double zoning on 16-18 Reuben Court, the fact that the previous owner told her that the property had been all under the one zone when he owned the land.
“He would like to know at which point in time someone drew a line down the middle of an already erected building?” she asks.
