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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42631
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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A neighbour started a car detailing business without

Customer Question

a neighbour started a car detailing business without consultation with council or neighbours in a rural residential area. We have only lived in our house for under 12 months and purchased at this location because it was quiet, dead end street, large (albeit narrow) block with room for our gear (moving into town from a property). The operation has created a lot of dust and noise and particularly traffic on a dead end road. Noise, dust and smell complaints have been lodged with council (from more than one neighbour) and the last communication with council was that they were working with the owner to ensure he abided by the 'rules' to continue to run his business. A petition which was signed by over 50% of the street was also submitted, to which we have heard nothing. It appears council has allowed relaxation of every 'law' (for a price) eg, closeness of building to the fence line, erection of barriers in a flood easement and the consideration of dust was negligible because it wasn't 'obvious' when a council rep visited, I could go on. I would like to know what avenues I have to sue either the council and/or the neighbour to have the business move to a more appropriate site, it is becoming a very tense situation for the immediate group of neighbours surrounding the business. I would appreciate any advice you could give. All discussions with council (and it's like extracting teeth from a hen) appear to in no way support our rights, they are continually assisting the business owner to ensure he meets the criteria to stay put.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

You will first thing need to get a copy of the zoning, to ascertain whether this activity is permitted on the land. Once you have this, assuming the activity is not permitted without council approval, then you can lodge a complaint about Council with the Queensland ombudsman.

In relation to the activity because of the noise and dust, the neighbours may have an action in nuisance against the owner and I would suggest that you start taking photos of the nuisance being the dust etc as evidence. As a group you should be able to get sole representation against the party running the business.

But I suggest you obtain relevant information and evidence before commencing any form of legal action.

It should not take long to obtain details of resigning from council, and also the relevant photos.

I hope this makes sense and is of assistance.

Customer: replied 1 year ago.
I have already looked at the zoning codes, if you read the local plan it appears as thought this type of business should not be there, however the response from council says the code has to be read in reverse as per below.The proposed use is looking to establish under the definition of Home Based Business which is a definition under the Queensland Planning Provisions i.e. a standard definition across the entire state of Queensland. When assessing and considering applications for any use it is imperative to understand the mechanics of how the planning scheme is to be read and applied. The way to assess developments against the planning scheme is from the bottom up in a cascading order, this being, definition, level of assessment, code requirements, purpose of the zone, overlays, strategic framework. An application only moves to the next level if it does not meet the current requirements.When looking at the proposed Home Based Business the only criteria applicable is whether it meets the requirements within the Home Based Business component of the relevant zone code, if it does, then no further assessment is required, this means that the purpose code as referenced in Anne’s email is not considered as the use would have achieved the Self-Assessable criteria, the purpose of this approach set by the Queensland government is to reduce red-tape from the assessment process.If the proposed Home Based Business could not comply with the self-assessable criteria, then an application would be required and then any application would be assessed against the non-complying component of the code and the purpose code and the strategic framework. Whilst I understands Anne’s comments, this is not how the planning scheme works and Development Assessment can only use the framework that is availableI find this whole process thoroughly confusing and would have thought to start this type of business in a residential area, remembering it is a car detailing business so vehicles are coming and going all day, taxis, drop offs etc half way down a dead end street which used to be very quiet and allowed children to play, people walking and exercising etc. It also has no curb and guttering, no street lights and is only a bit over 1 car in width which means we have a lot of folks reversing up the street when they overshoot the driveway to the business. a group of neighbours have already taken photos, recorded dust and noise diaries and completed a petition, all of which have been submitted to councilIt appears and this is only my opinion, council is aiding the business to meet all criteria and do not care about the rights of the neighbours to have to put up with the complete change of the rural residential aspect which existed prior to the business commencing (they moved from more appropriate hard stand premises where the run off and noise had little effect being on a busy main raid and there was no dust).Given we seem to have run out of options with council as far as having the business move to somewhere more appropriate, I want to know what my options are to personally sue the business owner for impinging on our rights, loss of value in our property or whatever, we paid handsomely to move there because of the attributes of the area at the time. There has to be something we can do when so many people are opposed to the business operating from the premises, surely?
Expert:  Leon replied 1 year ago.

Good Morning

What is the definition of Home Based business?

But they have not filed an application with council have they?

Customer: replied 1 year ago.
I'm sorry Leon we appear to going around in circles, it might be best if I find help locally so we can sit down and discuss this, I only know what I have learned from the web and what I've downloaded from councils website and it's not particularly easy to follow (probably some purpose to that), one of the emails from council said the QLD State Govt had gone to this way of dealing with home based business assessments to cut red tape, which appears to result in screwing the everyday Joe and keep the businesses happy, as I said, in my opinion, thank you for your response but I don't think you can help me at this point. kind regards Anne
Expert:  Leon replied 1 year ago.

Good Morning

You will need to but before you make an appointment you should file an application with the local council under Freedom of information for the neighbouring property to actually see whether anything has been lodged with Council and what reports exist.

Here is some information about Freedom of information in Queensland and councils.

https://lgaq.asn.au/freedom-of-information

Once you have all of this information then you can make an appointment and get more detailed advice about your options and also costs associated with doing something about this. As a neighbour you have a right to access information.

I hope this makes sense and is of assistance and I wish all the best. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon