Anderson v Logan City Council & Waack [2014] QPEC 10 (2014) QPELR 185

[2014] QPEC 10 1 PLANNING AND ENVIRONMENT COURT JUDGE RACKEMANN P & E Appeal No 1954 of 2013 SONYA MARGARET ANDERSON Appellant and LOGAN CITY COUNCIL Respondent and DEAN AND FIONA WAACK Co-Respondents BRISBANE 2.52 PM, WEDNESDAY, 12 MARCH 2014 JUDGMENT CATCHWORDS: Planning and Environment – submitter appeal against council’s decision to approve a development application for a material change of use to permit a home based upholstery business – procedure where appellant fails to appear – where home based business activities potentially suitable under the planning scheme, subject to impact assessment – whether approval would result in adverse amenity impacts COUNSEL: SOLICITORS: M Batty (respondent) P Beehre (co-respondent) CBP Lawyers (Respondent) -- 1 of 30 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: This is a submitter appeal against the council’s decision to approve, subject to conditions, a development application for a material change of use to permit a home based business on land located at 38-42 Doyle Road, South Maclean and more particularly described as Lot 5 on SP 223103. The site in question has a total area of 8000 square metres and has a frontage to Doyle Road of approximately 5 60 metres. The land is rectangular in shape. The properties to the east and west of the land are of a similar dimensions and size. The area presents as, essentially, a rural residential type area. The proposed home business is to do upholstery work from part of a shed which is located to the east of a 10 large lowset residence on the subject site. To the immediate east of the subject site, is vacant land. The appellant’s residence is immediately to the west and so there is a significant separation between that house and the garage in which the home business is proposed. 15 The upholstery business, in fact, started some time ago, apparently under the mistaken impression that no approval was required. This application seems to have been provoked by the council’s intervention to inform the co-respondent of the true position. Some correspondence on the file suggests the appellant was upset about the 20 use being conducted before an approval was obtained. As the court has emphasised on a number of occasions its function, in a case like this, is not to seek to decide whether or not the applicant for development approval should be punished– that is something that can be done in other proceedings if and when they are brought. The question in this proceeding is whether the development application is one which 25 ought be approved or not. The past operation of the business on the site sometimes has a practical utility in being able to make it more straight forward to assess amenity impacts. It is unnecessary for me to delay upon the history of the use of a property prior to the development application, or indeed subsequently to it. The focus of the court is on the merits of the development application. 30 The issues in the appeal are defined by reference to the grounds of appeal. Those grounds of appeal allege various amenity impacts by way of noise, traffic and other environmental impacts, particularly air pollution and dust. In addition to that, the notice of appeal suggests that there will be some economic loss to the appellant, by 35 reason of a diminution in the value of property. It is conceivable that someone who fears that their amenity will be affected, will also have a concern that the impact upon amenity will be reflected in a diminution in the value of their property. However, from a town planning perspective, it is the diminution in amenity which is the relevant consideration, rather than the diminution in value of property, per se. In 40 any event, there is no material before the court which would justify a conclusion of likely diminution in property value. When the matter came on for hearing this morning, there was no appearance by the appellant or anyone on the appellant’s behalf. The notice of appeal nominated the 45 appellant’s residence as the address for service, gave a telephone number and an email address and also nominated the name of her husband who has acted as her agent throughout the matter. Mr Anderson has appeared on reviews of this matter, in court on the 6th of November 2013 and again at the pre-callover review of the matter -- 2 of 30 -- __________________________________________________________________________________ 3 JUDGMENT on 6th of February 2014. He was not present, nor was anyone else present for the appellant at the callover, where the matter was set down for the 12th of March. However, that date was a date which he had previously indicated, to the solicitors for the respondent, would be suitable. And the solicitors for the respondent sent him an email on the day of the callover, informing him of the result. There was then 5 correspondence between the solicitors for the respondent and Mr Anderson in the lead up to the trial date. Yesterday afternoon, Mr Anderson sent some correspondence to the solicitors for the respondent, in which he said that he would not attend today and would seek legal 10 advice. My associate was informed of that and sent an email to Mr Anderson, advising that the matter would be listed for 10 o'clock today and advising that attendance by all parties is required. That was responded to by Mr Anderson. His email concludes by saying: 15 In view of my wife’s medical condition, I have recommended that she have professional advice and I have resigned my agency. Prior to that, he complains that he sought some information from the council on the 27th of February, but did not receive a reply until the 10th of March. The affidavit of 20 the solicitor for the respondent demonstrates that the correspondence to which he refers could hardly be said to be a reason why he would not be ready for a trial, or could not attend the trial. The email which he sent on the 27th of February to the council, asked whether the council would continue to support the co-respondent’s application, in circumstances where he contended there was a breach of the town 25 plan and of proposed approval conditions. He also asked how compliance with any conditions of approval could be guaranteed. The council wrote back advising that it continues to support approval of the development application subject to conditions and would consider any breach and take appropriate action at the appropriate time. Mr Anderson responded that that reply came too late to enable him to prepare his 30 case and did not address the issues raised. The correspondence between he and the council in this respect, was not about the preparation of his case at all. It was about the council’s continuing attitude. Until and unless the council notified him of a change of its attitude, he ought to have been preparing for trial. In the absence of any application for an adjournment or any material supporting it, I decided to proceed 35 with the trial this morning. Were this ordinary civil litigation commenced by a plaintiff who did not appear, the defendant would be entitled to dismissal of the claim, pursuant to rule 476(2) of the UCPR. In this case, however, while it is the appellant who has not appeared, the 40 appellant is not the one who bears the onus in the appeal. That onus lies on the co- respondents and the appropriate course was to proceed with the trial and to provide the co-respondents with an opportunity to discharge their onus in the usual way. It might be observed that there was absolutely no indication that the appellant had, to 45 this point, done much to prepare the case. She did not engage any experts in relation to the matters of complaint in the notice of appeal and there was nothing else that had been filed by the appellant, or indication otherwise, that she (or her husband) had been duly preparing the case. Notwithstanding the non-appearance of the appellant, -- 3 of 30 -- __________________________________________________________________________________ 4 JUDGMENT however, I am mindful that it is the Court’s role to determine whether, indeed, the onus has been discharged, and so I have been careful to consider the material that has been placed before me. The co-respondents, for their part, called a number of witnesses who had prepared 5 statements. One of those is from the company for whom the co-respondents do work, but the others are generally described as either residents of the area or people with an interest in property in the area. They all indicate their support for, or lack of opposition to, the co-respondents’ proposal. 10 Other than for that, the co-respondents, rather than engaging their own experts, were content to rely upon the experts who had been engaged by the Council. In that regard, the Council called evidence from two experts, namely, Mr Craig Beyers, an expert in noise and air quality, and Mr Ryan MacLellan, a town planner. The report of Mr Beyers concludes that the risk of unacceptable acoustic amenity or air quality 15 consequences as a result of the proposed upholstery business is expected to be negligible and that the proposed conditions of approval are considered appropriate to protect the acoustic amenity and air quality of surrounding land uses. In that regard, it may be noted that the conditions attaching to Council’s approval 20 include a number which seek to guard against any undue amenity impact. The conditions, amongst other things, limit the vehicle movements which may be associated with the proposed use; limit the number of non-resident employees to two; require materials associated with the home business to be stored within the shed or dwelling unit; do not permit storage containers or refuse bins associated with 25 the business to be kept on site; require landscaping works and, in particular, a 40 metre long landscaped screen buffer along the eastern boundary to achieve a three metre screen at maturity; place limits on the hours of operation; and require a number of measures to ensure acoustic amenity by containing the upholstery activities within the workshop area; requiring the maintenance of insulation, the 30 closing of doors, the provision of air-conditioning to the workshop and the setting of noise limits with respect to the air compressor involved in the activity, amongst other things. I have no hesitation in accepting the evidence of Mr Beyers to the effect that the use 35 will not cause any noise or air quality adverse impacts of any significance. In light of the limited scope of the proposal and the number of employees to be engaged and the limits to be placed on vehicle movements, I have no hesitation in concluding, consistently with the evidence of Mr MacLellan, that there will not be adverse traffic consequences. 40 I appreciate that the notice of appeal raised a question about the practicality of monitoring the limit of 10 vehicle trips per day associated with the subject use. The reality is, however, that the use is of a very small scale, and there is no reason to think that the limit is likely to be exceeded in any event. If, however, the area 45 becomes busy, then a complaint to the Council could easily lead to monitoring to ensure that there is compliance. I do not think that this is a condition which is so difficult to enforce as to be an inappropriate way of dealing with the suggested amenity consequences. -- 4 of 30 -- __________________________________________________________________________________ 5 JUDGMENT My conclusions thus far really deal with the matters raised in the notice of appeal. The notice of appeal did not, in terms, rely on any specific contravention of provisions of the town planning scheme. However, the relevant provisions have been the subject of examination in the report and evidence of Mr MacLellan and should be considered. 5 The relevant planning scheme is the Beaudesert Shire Planning Scheme 2007. That planning scheme consists of a set of Desired Environmental Outcomes for the shire, a Strategic Framework, together with planning scheme measures which comprise planning scheme maps, including zoning maps, and planning scheme provisions, 10 including assessment tables, consistent development tables and codes. The subject site falls within the Mount Lindesay Corridor zone. Land within that zone is divided into a number of precincts. The subject site is included within the countryside precinct. Within the applicable zone, the home business use proposed is 15 impact-assessable. That is because it falls within the definition of a category 3 home-based business, being a home-based business which may involve activities of an industrial nature (and no more than two non-residential employees). Although it is subject to impact assessment, it is, however, also listed as consistent development within the countryside precinct. The consequence of it being listed as consistent 20 development is that, pursuant to section 1.2.13 of the scheme, it is taken to be development which is “potentially consistent” with the applicable zone and the relevant overlay code. Accordingly, within the relevant zone and precinct under the town plan, home-based businesses of the kind proposed here are contemplated as potentially appropriate development, subject to impact assessment. 25 In terms of the applicable codes for consideration, in conjunction with the assessment of a development application for such a use, the ones of relevance are the Home- Based Business Code, the Parking and Servicing Code and the Mount Lindesay Corridor Zone Code. I should add that Mr MacLellan, in his report, also reviewed 30 relevant DEOs, and I am satisfied, on the basis of his evidence, that there is no conflict with the Desired Environmental Outcomes. His report also deals with the South-East Queensland Regional Plan, with which there is similarly no conflict. Mr MacLellan helpfully set out his assessment of the relevant provisions of the three 35 relevant codes in annexures 3, 4 and 5 of his report, copies of which I will annexe to the transcript of these ex tempore reasons. Generally, I accept and adopt his treatment of those relevant provisions and his findings that the proposal complies with the relevant provisions either by adopting the probable solution or by otherwise satisfactorily address the specific outcomes. I say generally because my adoption of 40 what he has set out is subject to a few caveats. The first of those caveats relates to the parking and servicing code. In a number of respects, he states that it is his understanding that car parking will be provided in a way which complies with certain specific outcomes or probable solutions. In his oral evidence, he did not suggest any basis upon which that compliance should not be required and, in my view, the 45 conditions of approval ought to be amended to make sure that it does require such compliance. -- 5 of 30 -- __________________________________________________________________________________ 6 JUDGMENT The second caveat with respect to the Parking and Servicing Code relates to his treatment of S09 which requires the development to provide for safe and segregated pedestrian paths within the parking area. His comment on that, which is simply to observe that onsite car parking is proposed, does not address the specific outcome. 5 Again, this is something which can be readily rectified by a condition to ensure compliance. The other caveat relates to his treatment of the Mount Lindesay Corridor Zone Code and, in particular, to that part of the code which contains specific outcomes and 10 probable solutions for the countryside precinct. S02 provides that: “development including retail, urban residential and industrial activity is not carried out on the premises.” I have already observed that the home-based business in this case falls within category 3 because it may involve activities of industrial nature. Mr MacLellan did not read S02 as relating to a category 3 home-based business as, 15 distinct from a specific industrial use. I would respectfully adopt the same construction because S02 needs to be read in light of the provisions of the scheme otherwise which treat home-based businesses, even category 3 home-based businesses, as consistent development. It would create a conflict within the plan itself if one were to regard S02 as setting its face against a category 3 home-based 20 business when such an activity is otherwise consistent development under the planning scheme. Even if that construction be wrong, however, for the reasons which I will get to in a moment, any conflict in that regard would be easily outweighed by sufficient grounds to justify approval notwithstanding. 25 The other caveat in relation to dealing with this part of the code relates to S05 and S06 which were not dealt with in the planning report. S05 provides that: “development for non-farming purposes supports the ongoing conduct of broad- hectare farming activity” whilst S06 is concerned that development for “non- farming” use does not interfere with the conduct of broad-hectare farming. 30 S05 might be read as requiring a home-based business to be of a kind which would support broad-hectare farming activity. Certainly, this use would not be inconsistent with such activity but there is no particular link between an upholstery business and broad-hectare farming activity. Insofar as S06 is concerned, certainly, this use would 35 not interfere with the conduct of broad-hectare farming. I mention these two specific outcomes together, however, because they both are related to maintaining or supporting broad-hectare farming activity in the area. That is consistent with the intent for the precinct which as appears from OI58 of the 40 Mount Lindesay Corridor Zone, that development within the countryside precinct “has an agricultural character typified by broad-hectare farming.” In this respect, the town plan, insofar as it relates to this part of the precinct, has really been overtaken by events, because the land has been sub-divided to rural residential sized lots which are used for residential living on large allotments rather than for broad-hectare 45 farming. So much is recognised in the draft new scheme for Logan which includes the site within the rural residential zone. -- 6 of 30 -- __________________________________________________________________________________ 7 JUDGMENT If it were thought that there was any tension or conflict with S05 then there are more than sufficient grounds to warrant approval notwithstanding conflict. Those grounds include not only the fact that the scheme has been overtaken by events in the way that I have just described, but also that the level of any conflict would be very low and the merits of the proposal are substantial in providing for a useful economic 5 activity within a shed on premises which are entirely suitable for the use and to which it can be put without causing any environmental or amenity impacts of any consequence. Further, it should be noted that the planning scheme seems to promote home-based businesses subject to amenity and character issues. In that regard, the Desired Environmental Outcomes for the planning scheme include, in section 10 2.1.3(2)(f) with respect to economic development, as follows: “provides local employment opportunities for home-based businesses which are compatible with residential amenity and protect the natural values and character of the local area…” I am satisfied that that is exactly what the subject proposal would achieve. 15 Mr Waack in his affidavit (exhibit 9) attests in para 51 of other benefits of his proposal which Mr MacLellan was prepared to endorse. It is unnecessary for me to descend to those, however, because the matters to which I have already referred provide more than sufficient grounds in the circumstances to warrant approval notwithstanding any degree of tension or conflict which might be found with the 20 more detailed provisions of the planning scheme. I have already mentioned that there is a draft planning scheme which is on exhibition. That draft is a document to which the court may attach some weight. I have already mentioned that the planning scheme catches up with the reality of 25 development in this area, by including the land within the rural residential zone. The draft planning scheme contemplates development for home-based businesses such as is proposed subject to amenity impacts. There is nothing about the draft town planning scheme which the subject proposal would cut across and there is nothing about it which would make the task of the co-respondent getting approval any more 30 difficult than it is with the existing scheme. Indeed, if anything, the contrary is the case. Moreover then, this is a case of an application for a modest home-based business in area where such activities are contemplated by the planning scheme as being 35 potentially suitable, subject to impact assessment. The relevant provisions of the planning scheme relating to impact assessment focus attention particularly on potential amenity and character impacts. For the reasons I have already given, an examination of those potential impacts in this case leads inexorably to the conclusion that the proposal would be entirely appropriate and would not result in adverse 40 amenity impacts. To the extent that there might be thought to be any tension with any part of the more detailed provisions of the planning scheme, for the reasons I have given, there are more than sufficient grounds to justify approval of this meritorious proposal, notwithstanding any such tension or conflict. 45 For those reasons, the appeal is dismissed. The development application is approved subject to conditions which will be amended from those which the Council has set in the respects which I have indicated in these reasons. ______________________ 50 -- 7 of 30 -- -- 8 of 30 -- -- 9 of 30 -- -- 10 of 30 -- -- 11 of 30 -- -- 12 of 30 -- -- 13 of 30 -- -- 14 of 30 -- -- 15 of 30 -- -- 16 of 30 -- -- 17 of 30 -- -- 18 of 30 -- -- 19 of 30 -- -- 20 of 30 -- -- 21 of 30 -- -- 22 of 30 -- -- 23 of 30 -- -- 24 of 30 -- -- 25 of 30 -- -- 26 of 30 -- -- 27 of 30 -- -- 28 of 30 -- -- 29 of 30 -- -- 30 of 30 --