Edwards v Central Highlands Regional Council [2013] QPEC 16 (2013) QPELR 469

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Edwards v Central Highlands Regional Council [2013] QPEC 16 PARTIES: KIM MAREE EDWARDS (Appellant) And CENTRAL HIGHLANDS REGIONAL COUNCIL (Respondent) FILE NO/S: 3914 / 2012 DIVISION: Planning and Environment Court. PROCEEDING: Hearing of an appeal. ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane. DELIVERED ON: 28 May 2013 DELIVERED AT: Brisbane. HEARING DATE: 22, 24 and 26 April 2013 JUDGE: R S Jones DCJ ORDER: 1. I would allow the appeal subject to the imposition of appropriate conditions; 2. The appeal is adjourned for one month to allow the parties to consider an appropriate conditions package. CATCHWORDS: APPEAL – Appeal against respondents decision refusing appellants application for a development permit for a material change of use – Land located in rural residential subdivision – Land located in Town Zone – Rural Residential Precinct – Land used for residential purposes and storage and supply of building materials – Whether use of land conflicts with the respondents town planning scheme – Whether, in the event that there was conflict with the planning scheme, sufficient grounds existed to warrant approval despite the conflict – Whether noise emanating from the site was capable of being dealt with by appropriate conditions. Sustainable Planning Act 2009 Qld AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44 -- 1 of 23 -- 2 Arpedco Pty Ltd v Beaudesert Shire Council [1980] Qd R 88 Broad v Brisbane City Council & Anor[1986] 2 Qd R 317 Brown v Brisbane City Council [2005] QPELR 629 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2002] QPEC 080 Luke & Ors v Maroorchy Shire Council & Anor [2003] QPELR 447 Pinjarra Hills & Ors v Brisbane City Council [1995] QPLR 334 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Webster v Caboolture Shire Council [2009] QPELR 455 Weightman v Gold Coast City Council [2003] Qd R 441 Westfield Management Ltd v Pine River Shire Council and Anor [2004] QPELR 337 Woolworths Ltd v Maryborough Shire City Council (No. 2) [2006] 1 Qd R 273 COUNSEL: Mr S Fynes-Clinton for the Appellant. Mr S Ure for the Respondent. SOLICITORS: Herbert Geer Lawyers for the Appellant. King and Co Solicitors for the Respondent. [1] This proceeding was concerned with an appeal against the decision of the respondent (Central Highland Regional Council) to refuse the appellant‟s (Ms Edwards) development application for a material change of use for a bulk store (building materials). For the reasons set out below: 1. I would allow the appeal subject to the imposition of appropriate conditions; 2. The appeal is adjourned to allow the parties to consider an appropriate conditions package. Background [2] The subject land, described as Lot 2 on RP855957, is located at 8 Campbell Ford Drive, Emerald. The site is 4061m2 in area and has an extensive frontage to Campbell Ford Drive of approximately 100m and a side boundary of approximately 40m to Elm Street. Elm Street provides access from Campbell Ford Drive to a rural residential subdivision of which the subject is a part. [3] Campbell Ford Drive connects two significant roads, the Gregory Highway to the east and Riffle Range Road to the west, and carries among the usual suburban and -- 2 of 23 -- 3 commercial traffic, a significant number of heavier commercial and industrial vehicles associated with Emerald‟s rural and mining activities. Notwithstanding this strong commercial/industrial influence, Campbell Ford Drive is not subject to particularly heavy traffic flows. Another interesting feature of this road is that towards its western end, it has a water pump facility used to fill large water tankers. And, on the southern side of the road, immediately adjacent to the subject site there is an unofficial miners pickup and drop off point. As I understand this situation, miners park their private vehicles on the footpath area in front of the subject and are then picked up and taken to various mining sites and then returned later in the day or at the end of their respective shifts. [4] Constructed on the land is a large house, swimming pool, gardens and a 378m2 shed. [5] The use of the shed lies at the heart of this controversy. It is located towards the western end of the site away from the dwelling. It was not in dispute that it is a lawfully constructed class 10 non-habitable outbuilding associated with the dwelling house. There is also no issue about the size, location or appearance of the shed itself. This appeal was concerned solely about the use to which it may be put and, as a consequence, the shed will remain regardless of the outcome of the appeal. Further, as at the time of the hearing of the appeal, the shed was being used by the appellant for both private and commercial purposes. However, in the event that the appeal was successful, the whole of the shed and its surrounding curtilage could be used for commercial purposes. [6] The shed was described by the “noise experts” retained by the parties in the following terms:1 “The bulk store building serves the dual functions of (i) the provision of storage for the Appellant‟s building materials and under-cover storage/shelter for the Appellant‟s forklifts as well as (ii) the provision of storage for the household effects of the Appellant‟s family. The bulk store building has been partitioned internally to divide the building into separate spaces to allow these storage functions to be carried out in isolation from each other. For the purposes of drawing a distinction between these functions, the building materials and forklift storage function is referred to hereafter as the commercial storage function, while the storage of household effects as referred to as the private storage function. …” [7] The commercial use of the shed involves: 1. The receipt, storage, and distribution of building materials associated with the building business operated by the appellant and her husband. Such materials include tiles, doors, underlay/carpet, lighting, shelving, timber joinery and other hardware items; 2. The building materials are delivered by various suppliers once a week (usually on Thursday) in respect of timber products and less frequently for 1 Exhibit 1, volume 1, D3, page 231; Mr Brown for the Appellant and Mr Savery for the Respondent. -- 3 of 23 -- 4 other materials, which are delivered to replace items as they are used in the construction of homes; 3. From time to time but not infrequently, larger items including stacks of timber will be stored on the ground surrounding the shed, typically to the front of the shed; 4. An employee of the appellant attends the site as required to manage the arrival, unloading and loading of materials; 5. The loading and unloading of materials from time to time requires the use of a forklift. Two forklifts are kept on the site for that purpose. [8] Up until recently, other commercial activities were carried out in and around the shed. These included joinery and the manufacturing of gates. These activities required the use of equipment such as cutting machinery, power saws, angle grinders and a compressor. According to the appellant, those activities no longer take place within the shed and the equipment required to carry them out are in the process of being sold and/or otherwise removed from the site. [9] The shed is located behind a solid fence and gates. However, it would be able to be seen by passers by on many occasions when the gates are open for business purposes.2 Some characteristics of the site [10] Reference has already been made to the site‟s extensive frontage to Campbell Ford Drive and the nature of the traffic on that road. Immediately to the east, on the other side of Elm Street, is a light industrial development. Activities carried out within this area include a motor vehicle modification workshop, a supplier of hydraulic hoses and fittings, a farm equipment and motorcycle supplier, a manufacturer of packaging, a rental car company, and an interstate trucking company.3 Immediately to the south of the industrial estate, fronting the Gregory Highway, is a large Motel. Between the motel and Elm Street is a larger house constructed on a rural residential allotment. Immediately to the south and west of the site is one rural residential dwelling and a large drainage area which extends to the west for several hundred metres until it reaches more residential development. The drainage area is owned and controlled by the respondent and is unlikely to be developed into the foreseeable future. To the south of the drainage area is a rural residential sub- division of a fairly high standard, although, on some blocks commercial activities inconsistent with the respondents planning scheme are clearly taking place. More will be said about this issue below. To the north of the subject site, on the opposite side of Campbell Ford Drive, is a traditional residential sub-division, its access, Crinum Crescent, is almost directly opposite the shed in question. The subject site and the site to the immediate south are the only rural residential lots north of the drainage area and, as already referred to, the subject is the only rural residential Lot fronting Campbell Ford Drive.4 The site was describe by Mr Fynes-Clinton, counsel for the appellant, as a rural residential “ugly duckling”. 2 Exhibits 12 and 13. 3 Exhibit 1, volume 1, D3, paragraph 12, Noise experts joint report. 4 Exhibit 1, volume 1, page 222; Exhibit 4 figure 3. -- 4 of 23 -- 5 The application and grounds for refusal [11] The use of the shed has been the subject of enforcement proceedings brought by the respondent and a prior development application lodged by the appellant. On or about 24 April 2012, the appellant lodged the subject development application with the respondent. The application required impact assessment and accordingly was publicly notified.5 No adverse submissions were received by the respondent. By decision notice dated 24 August 2012, the respondent refused the application. The reasons for the refusal set out in that notice were6: “1. The development compromises the achievement of Desired Environmental Outcome (a) of the Emerald Shire Planning Council Planning Scheme (Amendment 2 – 2011). The development will set an undesirable precedent, encouraging industrial activities to occupy rural residential land and shall negatively impact upon the rural residential amenity and character of the locality. 2. The proposed development is inconsistent with the overall outcomes of the Town Zone code. The codes (sic) overall outcomes states uses in the commercial and industrial use class are generally not located within the Town - Rural Residential Precinct and the land is predominantly used for houses on small rural living lots. The proposal is considered to be an over development of the site. 3. The proposal to locate industrial uses outside the existing industrial areas shall have a negative economic impact upon emerald‟s industrial areas and shall set an undesirable precedent encouraging industrial development to occur within Emerald‟s rural residential areas. 4. The council have received a number of complaints from the Community in relation to industrial and commercial business operating form residential and rural residential areas in Emerald. The proposed development would set an undesirable precedent for other business providers to operate within residential and rural residential areas. 5. The Council has approved a number of industrial subdivisions which provide new industrial allotments serviced with water and sewer truck infrastructures to meet the market demand. 6. The development will generate negative externalities which will impact upon the amenity of the existing precinct.” 5 Enforcement proceedings on foot were adjourned pending the outcome of this appeal. 6 Exhibit 1, volume 1, A1, pages 2-3. -- 5 of 23 -- 6 [12] On 4 February 2013, the respondent‟s solicitors wrote to the appellant‟s solicitors advising as follows7: “… . In addition to the issues notified in paragraphs 8, 9 and 10 of the notice of appeal, Council notifies the following issues: 1. The proposed development is in conflict with the IPA Planning Scheme (Amendment No. 2) for the Shire of Emerald in force from December 2011, in that – (a) it involves the location of an industrial use in a residential area; (b) it conflicts with desired environmental outcomes (a), (f), (n), (o) and (s); (c) it conflicts with overall outcomes 3, 4 and 5 of the Town Zone; (d) it conflicts with overall outcomes 6(i) – (i), (ii), (iii) and (ix) of the Town – Rural Residential Precinct; (e) it conflicts with specific outcomes S2, S3, S4, S5, S6, S7 and S9 of the Town Zone Code; (f) it conflicts with overall outcome (a), (c) and (g) of the Development Standards Code; and (g) it conflicts with specific outcomes S2, S3, S5, S6, S7, S17 and S18 of the Development Standards Code. 2. There are no sufficient grounds to overcome the conflicts. 3. The proposed development will have unacceptable visual amenity impacts on the residents of the residential area to the north of Campbell Ford Drive. 4. The proposed development will have unacceptable amenity impacts in terms of noise. The industrial activities associated with the use of the proposed bulk store (building materials) will result in noise of a level and character that will adversely impact upon the amenity of the rural residential area to the south of Campbell Ford Drive and the residential area to the north of Campbell Ford Drive. The activities will result in noise that is out of character with the noise environment of those areas.” [13] By a way of further and better particulars filed on 12 March 2013, it was contended on behalf of the appellant that, in the event that there was conflict with the respondents planning scheme (which was denied), then there were sufficient grounds to approve the proposal despite the conflict. Those grounds included8: “(i) The location of such a small operation in a light industrial precinct or industrial precinct would be contrary to the public interest because it would result in an underutilisation of industrial land. And, accordingly, to allow the use to 7 Exhibit 1, volume 1, C1, page 204. 8 Exhibit 1, volume 1, A4, pages 9-10. -- 6 of 23 -- 7 continue on the subject site preserves industrial land for more appropriate uses; (ii) The proximity of the subject land to land already designated for light industrial uses; (iii) The commercial use of the shed was so modest as to amount to little more than a home based business; (iv) The existing use „preserves rather than conflicts with the residential character of the Rural Residential Precinct‟; and (v) The existing use „does not result in any adverse impacts on residential amenity‟.” The Issues [14] The substantive issues raised during the conduct of the appeal were: (i) Was the proposed use in conflict with the respondent‟s planning scheme; (ii) If so, whether there were sufficient grounds to justify approval despite the conflict; (iii) In the event that the proposal was found not to be in conflict with the planning scheme, should the proposal be approved on a merits assessment basis. [15] In the event that there was conflict with the planning scheme, I am satisfied that the appellant could not succeed on the basis of there being sufficient grounds. As much as was really conceded (quite properly, in my view) by Mr Fynes-Clinton. Mr Fynes-Clinton, in the appellant‟s opening, acknowledged that in the event that conflict was found the appellant would have real difficulties in satisfying me that the appeal ought be allowed. In the appellant‟s final written submissions it was said:9 “Nothing in the oral evidence has changed the position, foreshadowed in the opening, that the appellant cannot identify sufficient grounds to warrant approval if it were the case that a decision to approve would be in substantial and material conflict with the planning scheme. If that is to be characterised as a „concession‟, so be it.” [16] As a consequence of the joint expert reporting process the substantive issues centred around the impact on the amenity of the surrounding rural residential and residential development and, in particular, visual amenity and noise. According to the respondent, contrary to its planning scheme, the proposed use would present both visually and audibly as an industrial use within a rural residential area. [17] In appeals such as this, the appellant bears the onus of satisfying the court that the appeal ought be allowed.10 9 At paragraph 94. 10 Section 493(1) Sustainable Planning Act (2009). -- 7 of 23 -- 8 The planning scheme [18] The relevant planning scheme is the Shire of Emerald Planning Scheme forming part of the pre-amalgamation planning schemes administered by the respondent. Essentially, the scheme divides the respondent‟s area of responsibility into six zones: rural, open space, town, village, green fields and special industrial.11 The urban area of the town of Emerald is contained wholly within the Town Zone.12 Within the Town Zone there are then a number of prescribed precincts which, generally speaking, identify a number of uses including commercial, industrial, residential and various public uses.13 The subject site, as already pointed out, is contained within the Town Zone – Rural Residential Precinct. [19] The land to the immediate east is contained in the Light Industrial Precinct. The land to the south within the Rural Residential Precinct and to the north within the Residential Precinct. [20] The level of assessment for development for material change of use in the Rural Residential Precinct is established by Table 4.3.1 of the planning scheme. It is uncontroversial that the proposed use would fall within the definition of “bulk store” under the planning scheme.14 [21] Section 4.3.2 of the Planning Scheme relevantly provides15: “… (2) The Purpose of the Town Zone Code … 3. The Precincts each perform a different function within the Town Zone and represent distinct areas or groupings of compatible land uses; 4. The availability of land, the amenity, and the operational needs of different uses in each Precinct are not compromised by the inclusion or encroachment of inappropriate development; 5. Land on the boundaries on each of the Precincts is of a nature, design and appearance that respects the scale and nature of uses in the adjoining Precinct; 6. The overall outcomes specific to each of the Precincts within the Town Zone listed below are achieved; … (i) The overall outcomes sought for the Town – Rural Residential Precinct are: 11 Exhibit 1, volume 2, E1, page 377. 12 Exhibit 1, volume 2, Appendix 1, page 633, Town of Emerald Town Planning Scheme Zoning Map No. 2. 13 Exhibit 1, volume 2, E1, page 439. 14 Exhibit 1, volume 2, E1, page 391 - “bulk store” means any premises used for the bulk storage of goods, where the goods stored or to be stored, are not required to be used for another use located on the same site and does not include a warehouse. The term includes storage sheds not ancillary to a primary use of any premises. 15 Exhibit 1, volume 1, E1, pages 448-452. -- 8 of 23 -- 9 (i) Land is predominantly used for houses on small rural living lots, yet provided with appropriate urban services; (ii) Low population densities in the Precinct means that people enjoy a rural lifestyle with accessibility to community facilities; (iii) The nature of the land within the Precinct is essentially residential and therefore the size and scope of rural activities is limited; (iv) Uses such as animal husbandry, hobby farm cropping and agriculture are of a scale that do not result in adverse impacts upon residential amenity; … (ix) Uses in the Commercial and Industrial Use Classes are generally not located on land within the Precinct. …” (emphasis added) [22] On behalf of the respondent, it was submitted that, in particular, the amenity of residential uses within the Precinct would be compromised by the inclusion or encouragement of inappropriate development.16 The nature of the use did not respect the scale and nature of the uses in the adjoining residential Precinct.17 The size and scope of the activities would adversely impact on residential amenity.18 [23] After referring to various provisions of the planning scheme, the respondent‟s position was articulated in its written outline of submissions:19 “The subject use will present as an industrial use. Timber will be delivered to the site on a weekly basis by a large industrial truck. This will result in noise impacts which will be audible and identifiable in the rural residential precinct to the south and the residential precinct to the north. The noise will include air brake release, engine noise and reversing beepers. The vehicle will reverse out of the subject premises onto Campbell Ford Road prior to its departure. Whilst the vehicle is present at the site a forklift will unload the timber from the delivery truck. The photographs reveal that when this occurs, the truck is in the driveway. There will be audible and identifiable noise from the forklift including its engine noise, impact noise from the unloading and its reversing beepers whether those beepers be tonal reversing beepers or broadband reversing beepers. Deliveries of building materials other than timber will also take place. This will result in arrival and departure of other building 16 Respondent‟s submission, page 6 at section 4.3.2.(2). 17 Respondent‟s submission, page 6 at section 4.3.2(2)5. 18 Respondent‟s submission, page 6 at section 4.3.2(2)6(i). 19 Respondent‟s submission, page 7 at paragraphs 21 – 26, and page 9 at paragraph 34. -- 9 of 23 -- 10 construction vehicles and noise associated with the loading and unloading of those vehicles. On some five or six occasions per day the timber which is being unloaded from the delivery truck and other building construction materials will be loaded onto the appellant‟s vehicles and distributed to the various work sites. Whilst it is true that the mere fact that a use is characterised as commercial or industrial does not necessarily result in a conflict with the Planning Scheme having regard to the amenity impacts generated by the proposed use here, there is conflict which is significant. … The subject land is singularly inappropriate for an industrial use. It is on the border of a rural residential precinct and is immediately adjoined by a rural residential development to the south and there is a residential precinct on the other side of Campbell Ford Drive. The site is just marginally above the minimum area of 4,000m2 which is contemplated in the rural residential precinct. It sits at the gateway to the residential precinct so all vehicles entering and leaving the residential precinct pass the subject land. In fact, whilst leaving the residential precinct, all residents directly face the industrial use component of the subject land whilst they are preparing to enter Campbell Ford Drive.” [24] It was uncontroversial that the planning scheme must be construed as a whole and in a broad, practical and common sense way which best achieves the apparent purpose and objects of the scheme.20 This approach was articulated by Wilson DCJ (as he then was) in Luke & Ors v Maroorchy Shire Council & Anor21in the following terms: “… The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole; and, by that process, to discover whether or not the proposed development accords with the scheme.” Noise [25] The main areas of concern for the noise experts, Mr Brown for the appellant and Mr Savery for the respondent, were associated with the use of vehicles, including forklifts, on and adjacent to the subject land. These included engine and breaking noises and in particular, those associated with reversing alarms. 20 Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88 at 94 per Dunn J; Westfield Management Ltd v Pine Rivers Shire Council and Anor [2004] QPELR 337 at page 343. 21 [2003] QPELR 447, at paragraph 60. -- 10 of 23 -- 11 [26] Mr Brown and Mr Savery initially seemed to agree that noise related issues would not of themselves be sufficient to warrant refusal of the application as they could be dealt with by the imposition of appropriate conditions. However, there was some dispute about the details of some of the conditions that would need to be imposed in the event of the appeal being upheld.22 [27] The proposed conditions dealt with matters including23: (i) Permitted hours of operation of the business; (ii) Operation or constraints on site (other than vehicle activity); (iii) Reversing alarm noise; (iv) Upgrading of driveway; (v) Vehicle activity on the site; and (vi) Implementation of a Noise Management Plan. [28] Mr Brown and Mr Savery were in agreement in respect of how those issues identified in (ii), (iv) and (vi) were to be dealt with. The level of dispute between them concerning (i), (iii) and (v) was summarised in their joint report and really centred around access to the site, the undertaking of commercial activities on Saturdays, access under emergency situations and the use of forklifts. (Condition 1: permitted hours of operation of the bulk store). Whether broadband reversing alarms were mandatory for all vehicles associated with the commercial activities on the site. (Noise condition 3: audible reversing alarms). And whether specific conditions constraining the reversing of the vehicles onto and from the site were necessary. (Noise condition 5: vehicle activity on the site).24 In respect of the last matter, Mr Brown acknowledged that constraints on reversing would be likely to be beneficial from a safety point of view but were not warranted from an acoustic point of view. [29] At one stage during his oral evidence Mr Savery expressed a view to the effect that unless all vehicles associated with the site were required to be fitted with broadband reversing alarms, the application should be refused because of the impact on amenity. The imposition of such a condition would mean that the appellant would have to require all delivery vehicles operated by various suppliers to be fitted with broadband reversing beepers. Such a condition would be virtually impossible to implement and police. In any event, I do not accept this aspect of Mr Savery‟s evidence. The number of deliveries made by vehicles not fitted with broadband reversing beepers could be expected to be relatively infrequent. And, in this context, the nature of the traffic (albeit relatively at low levels) on Campbell Ford Road and the industrial activities carried out on the industrial site on the other side of Elm Street are relevant considerations. [30] However, that the noise issues associated with the proposed use may be able to be dealt with at a “technical” level is not the end of the matter. In this context, I accept Mr Savery‟s evidence to the effect that even with appropriate conditions and the best of intentions on the part of the appellant, some local residents would still be 22 Exhibit 1, volume 1, D3, pages 225-245. 23 Exhibit 1, volume 1, D3, pages 240-243. 24 Exhibit 1, volume 1, D3, pages 240-243. -- 11 of 23 -- 12 able to hear and be potentially annoyed by noise (particularly reversing alarms) emanating from the site. In this context I respectfully agree with the observations of de Jersey J (as he then was) in Broad v Brisbane City Council & Anor:25 “There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the affect of a place on the senses, but also the resident‟s subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect ones perception of amenity. … In deciding what are the reasonable perceptions of amenity of the residents I am conscious that I must apply „the standards of comfort and enjoyment which are to be expected by ordinary people of plain sober and simple notions not affected by some special sensitivity or eccentricity” Evidence of the town planners [31] It is quite clear from Mr Buckley‟s (town planner relied on by the appellant) written and oral evidence that he considered the coexistence of the dwelling on the land and the subject shed to be a significant consideration. In the town planners joint report he referred to there being a strong link between the residential component of the site and the use of the shed and pointed out that Rural Residential Zoned land catered for home based activities.26 This theme is repeated in his court report where Mr Buckley stated “The planning scheme must have anticipated that there would be businesses that would be based in association with a residence… .”27 [32] According to Mr Buckley, the relationship between the house and the shed and its use was an integral part of the planning merits of the subject application.28 Indeed, the coexistence of the shed and the dwelling on the land was fundamental to his approach.29 [33] With all due respect to Mr Buckley, I have significant reservations about his approach. The proposed use cannot in any sensible way be described as a home based business for the purpose of the planning scheme. It does not involve a commercial activity, occupation or profession carried out in or on the same site as a dwelling by any permanent resident of that dwelling. The appellant and her husband do not live in the dwelling located on the land. They moved to a larger and quieter rural residential allotment somewhere else in the vicinity. The resultant situation is: the appellant lives elsewhere, the head office of the business is located in the town of Emerald, the shed on the land will remain in the ownership and be operated by the appellant but the house will probably be rented to a third party. 25 [1986] 2 Qd R 317, on page 326 at lines 37 – 41. 26 Exhibit 1, Volume 1, D4, at pages 252 - 253, paragraphs 28 and 29. 27 Exhibit 1, Volume 1, D5, at page 289, at paragraph 21. 28 T 1-65: L 27-30. 29 T 1-67: L 31. -- 12 of 23 -- 13 [34] A consistent theme of Mr Buckley‟s evidence was to the effect that those who resided in the house would have a material degree of control and supervision of what occurred in and around the shed.30 [35] During the course of Mr Buckley‟s cross-examination, I asked him the following question31: “But in paragraph 29 of the joint report, you talk about „residential- zone Land cables for home-based activities which support‟ etcetera. This is really along the lines of Mr Ure, but – Mr Ure‟s question. In this context, where use of the term „home-based activity‟ creates an image, at least in my mind, of a connection between the owners of the home and the carrying on of the relevant activity… Here, we now know, that the owners don‟t live on the land, and I suppose what‟s puzzling me – maybe this is what Mr Ure perhaps was about to come to – is here – I‟m struggling with the concept of it being a home-based activity if there is no connection between the house, and the residents of the house, and what‟s being carried out on the land?” Mr Buckley‟s response was: “Yeah. I understand the point you are both making in that respect, your Honour, but the point about that paragraph, and indeed, the – the paragraphs around it, is that in the rural residential area that‟s – of which this land forms part, the number of instances where there is a business or an industry or whatever associated with a residence is quite substantial, so that‟s the context within which I‟m saying, so I – I don‟t know, in each case, whether the operator lives in the house or not, or it‟s an employee – whatever the case may be. So I understand what you‟re saying, but to me, the – the houses are the given in this area, and – and it‟s quite clear, by that casual drive around, that the substance and the scale of non-residential activities associated with the houses, in the same curtilage of the house, are quite substantial and – and not without moment.” [36] There are two fundamental difficulties with Mr Buckley‟s approach in my view. First, there is no probative evidence that any other commercial/industrial activities are taking place within the Rural Residential Precinct on land in circumstances where the operator of the business is not also the owner and occupier of the dwelling on the land. Second, Mr Buckley has overstated the level of control any tenant of the house might have over the business operations being carried out in and about the shed. It is true that the tenant may be able to complain about noise and business hours, by way of examples, but that is about as far as it goes in reality. The tenant would have no power to control the business activities being conducted on the site. Actual control would have to be exercised through the appellant (or agent) or otherwise by a duly authorised authority. There is, in my respectful view, 30 T 1-61: L 37-50; T 1-62: L 1-15; T 1-63: L 22-32. 31 T 1-63: L 42-47; T 1-64: L 1-15. -- 13 of 23 -- 14 in the circumstances of this appeal, no meaningful relationship between the proposed use of the shed and/or the dwelling located on the land and/or the residents of that dwelling. [37] That Mr Buckley‟s thesis concerning the use/residency relationship is not accepted is of course not the end of the matter. At first blush, the lack of any such relationship might be considered to create a genuine conflict with the planning scheme, but as Mr Perkins (the town planner relied on by the respondent) acknowledged, neither the overall outcomes sought for the Rural – Residential Precinct or relevant desired environmental outcomes prohibit a commercial or industrial activity taking place independently of any residential component. In this context, Mr Perkins seemed prepared to accept that the planning scheme contemplated, in appropriate circumstances, the whole of a rural residential lot being approved for a non-residential use but that such a situation would be “the exception to the rule”.32 It is not in dispute that the proposed use would fall within its meaning of “industrial use” for the purpose of Overall Outcome (6)(ix) of the planning scheme.33 [38] In this context, I also consider Mr Perkins to have erred in construing the relevant provisions of the planning scheme based on the starting point being a presumption against non-residential uses. Generally speaking, the words used in a planning scheme should be given their natural, ordinary and grammatical meaning and it would be wrong to infer into a planning scheme an unwarranted presumption. In this context, I respectfully agree with the observation of Chesterman JA (in dissent but not on this topic) in AAD Design Pty Ltd v Brisbane City Council34 where, after referring extensively to relevant passages from Project Blue Sky Inc v Australian Broadcasting Authority35, His Honour said: “The starting point in the task of construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 -: „It is an elementary and fundamental principle that the object of the court, in interpreting a statute “is to see what is the intention expressed by the words used”… . It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say… . Of course, no part of a statute can be considered an isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give affect to the unqualified words”… there are cases where the result of giving words of ordinary meaning may be so irrational that the court is forced to the conclusion that the ?? has 32 T 2-31: L 7-17. 33 Exhibit 1, volume 2, E1, page 444 “Industrial Use Class”. 34 [2012] QCA 44, at paragraph 37. 35 (1998) 194 CLR 355. -- 14 of 23 -- 15 made a mistake, and the cannons of construction are not so rigid as to prevent a realistic solution in such a case…However, if the language of a statutory provision is clear and unambiguous, and is consistent with harmonious and other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal in interpretation, or to deny that the court should seek the real intention of a legislature.‟” (Citations deleted) [39] That the overall outcomes sought for the Rural – Residential Precinct are that it is to be “predominantly”, used for housing and that commercial and industrial uses are “generally” not to be located within the Precinct provides no warrant, in the assessment of any development application, for a decision maker to proceed on the basis that there is an underlying presumption that the application ought be refused. [40] I respectfully agree with the submission made by Mr Fynes-Clinton to the effect that the subject application, being impact assessable in the Rural – Residential Precinct, required the actual impacts of the proposed use to be assessed on an objective basis and not on the basis of any generic or abstract notion or perception of what constitutes a “bulk store” or industrial activity. And, in this regard, it is relevant that Outcome 6(ix) contemplates commercial and industrial uses not just limited to home based businesses. Had the drafters of the planning scheme intended to limit commercial activity in the Rural – Residential Precinct to home based businesses they could have easily had done so. [41] By reference to the conclusions set out in Mr Perkins‟ court report36, it would seem that noise issues were of a greater concern to Mr Savery than to him. That said, there is no doubt that noise remains a relevant consideration. In his conclusions, Mr Perkins stated: “The council have received a number of complaints from the community in relation to industrial and commercial business operating from residential and rural residential areas in Emerald. Objections have been made in the past against the industrial operations from the site, which resulted in Council initiating a number of enforcement proceedings against the Applicant. It is my view that Council‟s pursuit of enforcement proceedings against the unlawful operations is a strong indication that Council is rightly concerned with the current site operations. The proposed development is also contrary to the future land use directions conveyed for this locality by the publicly notified Strategic Framework document (which will be used to inform Council‟s new planning scheme for the Region). 36 Exhibit 4, page 21, paragraphs 130-134. -- 15 of 23 -- 16 I consider that the current activities significantly adversely impact on the amenity of the surrounding area, exacerbated through my observation that the extent of the activity is not contained to within the curtilage of the site but instead extends out into the road reserve. The use of allocated on-site parking areas for storage activities together with the inadequate on-site space available to accommodate the manoeuvring, loading and unloading of trucks appears to have resulted in the need to rely on land outside of the property to form part of the day to day operations – especially to provide for required vehicle parking. As a result, both the site in the industrial operations are very visible from the residential area (and residential traffic), given that on-site activities are visible through both the opening in the boundary fence and from the side operations (spill) out onto the road reserve. It is apparent to me that the proposed development / current activities on the site are industrial in nature, and far beyond what could reasonably be categorised as a home industry or home business.” [42] Addressing each of these matters in turn, it is relevant to note that there were no adverse submissions made in respect of the current application. It would appear that the “objections” and “complaints” mainly refer to other properties and, more particularly, to a previous application lodged by the appellant in 2009 concerning the same land and shed. Four adverse submissions were received.37 However, that application involved joinery/manufacturing activities (and therefore the use of plant and equipment, which would not be used under the current proposal). Accordingly, in my view, it would be wrong to proceed on the basis that the subject development application, or for that matter, the current use of the site, has been the subject of a number of complaints and/or objections. The contrary is in fact the reality. [43] In this regard, the respondent carried out “door knock” exercise of those residents located in the residential subdivision on the northern side of Campbell Ford Drive. It is unclear just how many residents were canvassed, but it would be fair to say I think, that the response was relatively unconvincing and underwhelming. Of the 19 people questioned, 11 had no issues and no concerns regarding either the proposed use or the application. Four of those had their rear boundary facing Campbell Ford Drive. Three residents expressed no particular concerns about the current use of the property, but expressed concerns about future expansion and more intensified activities than are currently taking place. Arguably, five residents expressed more genuine concerns. Four of the five had their rear boundary on Campbell Ford Drive. However, only three of the 19 people interviewed were apparently prepared to go beyond answering “yes: or “no” to the questions posed in the questionnaire. Those that did expressed concerns about noise and lighting, but expressed them in terms, not so much about the current use of the site, but about future expansion of that use.38 37 Exhibit 8. 38 Exhibit 11. -- 16 of 23 -- 17 [44] I am uncertain as to whether any residents in the rural residential development were also canvassed, but there is no evidence of any complaints or concerns form the residents in that area. In fact the evidence is that, notwithstanding that business operations have been carried on, sometimes to a greater extent than at present, for a number of years now, there have been no complaints from the rural residential neighbour immediately to the south. There was some hearsay evidence to the effect that the owner or at least one of the owners of that property was a council employee and therefore “did not want to get involved”. I do not find that evidence particularly persuasive. [45] On balance, I consider that Mr Perkins had proceeded on an erroneous assessment about the real level of community objection or more precisely, lack of objection to the current use and the development application. That the proposed development has not attracted any significant level of compliant and/or objection is of course not determinative but is, as Mr Perkins acknowledged, a relevant consideration. [46] Under the respondent‟s draft Strategic Framework document, the subject land is located within the “suburban neighbourhood” Precinct. This document has yet to reach the public display stage. On balance, I do not consider that it adds in any material way to the respondents‟ case. In any event, it would appear that Mr Perkins‟ primary reliance on this document was to refute a “suggestion” by Mr Buckley that the respondent had in some way implicitly accepted a change in the land use policy in the location of the subject land. While I accept that the draft Strategic Framework document tends to support Mr Perkins‟ view on that particular matter I do not think it takes things much further. [47] As to Mr Perkins‟ opinion that the current activities “significantly adversely impact on the amenity of the surrounding area”, it seems tolerably clear by reference to paragraphs 132 and 133 of his court report (exhibit 4) that Mr Perkins was particularly concerned with the visual aspects of the current use. [48] In respect of the issue of visibility, it seemed that two particular aspects concerned Mr Perkins. First, the overall visibility of the site from those travelling east or west along Campbell Ford Drive and more particularly, those entering into or coming out of Crinum Crescent.39 And, in this context, an exacerbating aspect was the fact that operations associated with the current use could not be contained within the shed and its immediate curtilage.40 Mr Perkins accepted that this matter was one he mentioned up to eight times in his report and was an “important” part of his considerations. [49] Campbell Ford Drive runs parallel to the site and, accordingly, it would be only those persons who turn to their left or right (depending on which direction they are travelling) that would be able to get any meaningful view of what was occurring on the site which is enclosed by a solid fence and a significant solid gate, although the gate would be expected to be opened for significant periods during business hours. 39 T 2-21: L 33-45. 40 T 2-24: L 30-47; T 2-25; T 2-26: L 1-12. -- 17 of 23 -- 18 That said though, the visibility of the site for those travelling east and/or west would be limited. [50] Turning then to the issue of those accessing Crinum Crescent, again I think Mr Perkins significantly overstated the problem. Those entering Campbell Ford Drive from Crinum Crescent would of course be able to see the subject site and no doubt be able to see what was occurring through the open gates. However, the driver (and for that matter probably the passengers) would also be concerned with the east and west bound traffic along Campbell Ford Drive. It is not as if the activities being carried out on the site would be visible for any extensive periods of time, except in circumstances where a person was interested in parking and observing what was going on. On this issue, I prefer the evidence of Mr Buckley to the effect that for most vehicles entering or exiting Campbell Ford Drive via Crinum Crescent would only have a relatively fleeting and sweeping view of the site and, for a number of those travellers, the view would also encompass the industrial area to the east.41 Mr Buckley‟s opinions are largely borne out by other evidence on this issue. First, as already mentioned, none of the residents “door knocked” expressed any strong views concerning this issue. Second, Ms Hooper, who lives in Crinum Crescent accepted that from her property which backs onto Campbell Ford Drive, she had only a very limited view of the upper part of the shed and part of the forklift when it was operating on the site. And, as to her everyday observations of what was occurring on the site, they would appear to have been very fleeting indeed. In this regard, notwithstanding that, she travelled regularly past the site, Ms Hooper had even failed to observe the proposed development signage immediately to the east of the access gate to the site. [51] As to the offsite activities considered important by Mr Perkins, it is tolerably clear that to a material extent his views were coloured by vehicles parked within the Campbell Ford Drive reserve, but which in reality had no connection with the appellants business. [52] In paragraph 32 of the joint planners report, Mr Perkins stated:42 “What is also evidence is that the extent of the activity is not contained to within the curtilage of the site but instead extends out into the road reserve. This is illustrated by photographs contained in Appendix C – Respondent’s Photographs. The use of allocated on-site parking areas for storage activities together with the space required to accommodate the loading and unloading of trucks appears to have resulted in the need to rely on land outside of the property to form part of the day to day operations – especially to provide for required vehicle parking.” [53] Appendix C included a photograph showing a number of vehicles including trucks and utilities parked on verge of Campbell Ford Drive. The appellant‟s largely unchallenged evidence in respect of those vehicles could be summarised as follows: A number of miners parked their vehicles adjacent to the site in order to be picked 41 T 1-74: L 20-45; T 1-75: L 1-27. 42 Exhibit 1, volume 1, D4, page 253, paragraph 32. -- 18 of 23 -- 19 up by the bus which then transports them to and from the mining areas located outside of Emerald.43 Of the other vehicles shown, only two, the Isuzu truck and a utility would ordinarily be associated with the business. The other vehicles shown were not a part of the day to day operations of the business but were there, generally speaking, present on a “one off” occasion.44 The best evidence is that the photograph relied on by Mr Perkins, seriously overstated the amount of vehicles/traffic associated with the business being conducted on the land. That said, it is tolerably clear that from time to time, large delivery trucks from various suppliers will access and leave the site and that from time to time it would be reasonably likely, if not regulated, that the appellants‟ Isuzu truck and other employee vehicles would be parked on the verge of Campbell Ford Drive. In order to address these concerns, the appellant accepted that it would be appropriate that a condition be imposed to the following effect: “Vehicles used by the appellant or employees for the transport of materials to or from the site must be parked wholly within the site when not in use.”45 There was no serious suggestion that provided this condition was able to be complied with that it would not go a long way to addressing the offsite concerns of Mr Perkins. Conclusions [54] There are a number of features of the subject land which distinguish it in a material way from the vast majority of the other lots within the immediate rural residential area. These include its extensive frontage to Campbell Ford Drive, it being separated (save for one other lot) from the rest of the rural residential subdivision by a significant drainage area, its adjacency to the industrial estate to the east and the open space/drainage area to the west. I agree with Mr Buckley‟s evidence to the effect that the physical characteristics of the subject site distinguish it in a material way from the other rural residential lots making up the estate.46 [55] In this regard, Mr Perkins seemed prepared to accept that the drain to the south of the subject might have provided a suitable boundary to separate the industrial precinct from the rural residential precinct, but that Elm Street was a preferable physical boundary. According to Mr Perkins, Elm Street provided a more definitive boundary between the uses and prevented road access to the rural residential precinct being bounded on both sides by industrial development. 47 While I accept this explanation, it is relevant that the western side of Elm Street will retain its rural residential character. [56] Having regard to the unique principal characteristics of the subject site, approval of the proposed use would not, in my opinion, establish an undesirable precedent. 43 Exhibit 1, volume 1, A7, pages 18-20. 44 Exhibit 1, volume 1, A7, page 22. 45 Exhibit 6. 46 T 1-48: L 17-47; T 1-49: L 1. 47 T 2-34: L 1-30; T 2-39: L 12-25. -- 19 of 23 -- 20 [57] In this context, it is also appropriate to deal with the evidence that established that some other lots within the rural residential area were being used for commercial and/or industrial purposes without approval by the respondent. This evidence neither strengthens the appellant‟s case nor weakens the respondent‟s case. This evidence does not establish a tolerance or48 implicit approval of those uses by the respondent. And, that other unlawful uses might be occurring, provides no foundation for the approval of the subject application. [58] The next issue is that concerning the negative impacts on amenity associated with the proposed use. The evidence concerning the past public reaction to the use has already been referred to. Also as already addressed, noise associated with the use is not of itself a sufficient reason to refuse the appeal. And, on balance, I am satisfied on the evidence that the operational impacts and, in particular, the visual impacts are not, of themselves or together with noise, sufficient to refuse the appeal. [59] I agree with Mr Buckley and Mr Brown that the negative impact on amenity can be addressed by the imposition of an appropriate suite of conditions dealing with the types of issues identified in paragraph 27 above and exhibit 6. [60] On behalf of the respondent, it was submitted that the court would be reluctant to allow the appeal subject to the types of conditions identified by the noise experts as they would require “regular and faithful observance” of conditions of a person with a “long history of ignoring planning law”.49 Pinjarra Hills & Ors v Brisbane City Council50 and Lewiac Pty Ltd & Ors v Brisbane City Council & Ors51 were cited in support. [61] This submission raises a number of issues. First, in my respectful opinion, the types of conditions contemplated by the noise experts in this appeal bear no resemblance to the nature of the condition considered by Newton DCJ in Lewiac. The condition under consideration there was:52 “The 10,0002m of shop defined in the plan of development are to function as outlet stores. For the purposes of this condition, outlet stores are defined to man premises primarily or substantially used for the sale of surplus and/or out of season or discontinued, seconds, end of run, superseded, outlet specific, factory direct, discounted or like merchandise.” [62] Newton DCJ commenced his consideration of this condition by expressing grave doubts as to whether it could be lawfully imposed in any event.53 [63] The passage in Lewiac54 set out in the respondents written submissions has to be read in the context of the town planning evidence to the effect that the condition 48 Exhibit 4, figure 3. 49 Respondents written submissions, paragraphs 35 – 38. 50 [1995] QPLR 334, at 344. 51 [2002] QPEC 080. 52 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2002] QPEC 080, at paragraph 62. 53 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2002] QPEC 080, at paragraph 63. -- 20 of 23 -- 21 would essentially require the local authority to assume the role of stock controller for the extensive Harbour Town Shopping Centre.55 That situation bears no resemblance whatsoever to the nature of conditions under consideration in this appeal. The same can be said, in respect of a condition designed to control domestic pets so as to minimise threats to wildlife as was the situation in Pinjarra Hills. [64] The second issue is that the draft conditions put forward and considered by the noise experts were published in their joint report the contents, which would have course been known to the respondent. No evidence was led by an officer of it to say that the types of conditions being considered by the noise experts would impose an unacceptable financial and/or burden on manpower. Further, unlike the situation in Lewiac where there was town planning evidence as to the potential ramifications of the imposition of the condition under consideration in that case, the situation in this appeal is that neither of the town planners expressed any fatal or near fatal concerns about the acceptability of the conditions proposed. Mr Buckley expressed no reservations at all. Mr Perkins in the town planners joint report said this:56 “DP (David Perkins) also says it is unwarranted to be discussing draft conditions given his view about the intrinsic unsuitability of the proposed development in this location. However, in the event that the matter were to proceed to consideration of a conditional approval the following observations would then be relevant:  The draft conditions provided in the Joint Report of Noise Experts are a starting point. I note that there is some disagreement between the experts in respect of the details of those conditions. In my view it is important that the conditions be readily enforceable without the need for undue vigilance by Council or nearby residents. By way of example, the cabinet making equipment and gate fabricating equipment should be removed from the site as they cannot reasonably be claimed to be domestic in scale or use.  Any bin storage should be screened from view form the public domain.  A limit on the extent of machineries stored on the site.  DP agrees with CB that there should be a condition requiring that the use, at all times, operate in conjunction with the residential use of the balance land. That would at least provide some semblance of a home based activity and provide a form of self-governing of the activity.  With respect to the road reserve / shoulder, it is apparent to me that the activity is of a scale that cannot be contained within the confines of the site and it is fundamental to any conditional approval that the operations be capable of taking place wholly within the site. In that scenario the road reserve should be landscaped and not used for commercial parking or loading/unloading or vehicle cleaning operations. Accordingly, the on-site parking area would need to be 54 Ibid, at paragraph 71. 55 Ibid, at paragraph 70. 56 Exhibit 1, volume 1, D4, pages 257-258, paragraph 49. -- 21 of 23 -- 22 cleared of the various obstructions and be reserved for its proper purpose. All storage should be within the sheds and site operations screened from public view. This would, I expect, also entail the reestablishment of the aesthetically acceptable front gate which would remained closed except when vehicle movements are required.” [65] In considering the matters raised by Mr Perkins it needs to be borne in mind that he was acting under the mistaken belief that all of the vehicles he observed on the southern side of Campbell Ford Drive were associated with the subject use. Further, in addition to the evidence of the appellant concerning the sale of plant and equipment associated with the joinery and gate manufacturing business which had been carried out on the site, exhibit 6 would go along way to meeting most of Mr Perkins‟ concerns. [66] It is inescapable that the appellant conducted her business on the land knowing it to be an unlawful (unapproved) use. Such behaviour ought to be condemned. However, the scope of the non compliance, particularly in circumstances where there is no evidence of any material history of complaints, does not provide a sufficient basis for refusing the appeal in circumstances where it has been found that there is no genuine conflict with the planning scheme. Merits assessment [67] On behalf of the respondent it was submitted that if it were found that the proposed use was not in conflict with the planning scheme then the court would conclude, on a merits assessment basis of the amenity impacts on the land to the south in the rural residential precinct and on the residential land to the north and to the residents on the subject that the appeal ought be dismissed. In this context a number of the physical characteristics of the land were also pointed out. These included its size, its location at the “gateway” to the rural residential precinct and its visual presence on Campbell Ford Drive, particularly in respect of its proximity to the intersection or Crinum Crescent and Campbell Ford Drive. [68] These matters have been sufficiently addressed above when dealing with the issue of conflict with the planning scheme and I do not consider it necessary to revisit them. Suffice to say that for the reasons already given I am satisfied that the appeal should not be refused on a merit based assessment basis. [69] By way of final conclusion, I am satisfied that the proposed use is one contemplated within the Rural Residential Precinct provided that the amenity of residential and rural residential residents are not compromised beyond an unacceptable level. There is a significant difference between planning schemes that reveal a clear intention to discourage inconsistent uses occurring in a precinct and those, while recognising they will not be the norm, also recognise that, in appropriate circumstances, apparently inconsistent uses might occur. The subject scheme falls into the latter category. I am also satisfied that the proposed use is not in conflict with the -- 22 of 23 -- 23 respondents planning scheme in any material way and that the reasonable expectations of residents would not be unacceptably compromised. [70] For the reasons given the orders of the court are: 1. I would allow the appeal subject to the imposition of appropriate conditions; 2. The appeal is adjourned to allow the parties to consider an appropriate conditions package. -- 23 of 23 --