Church of Jesus Christ of Latter-Day Saints v Gold Coast City Council [2005] QPEC 62

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2005] QPEC 062 PLANNING AND ENVIRONMENT COURT JUDGE RACKEMANN P&E No 605 of 2004 CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS Appellant and GOLD COAST CITY COUNCIL Respondent SOUTHPORT ..DATE 21/07/2005 JUDGMENT -- 1 of 21 -- 21072005 T7/AMG M/T 1/2005 (Rackemann DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against a number of conditions of approval imposed by the council in respect of an application for a material change of use for a place of worship on land situated at 74 Mudgeeraba Road, Mudgeeraba. The site is located south of the Gold Coast-Springbrook Road overpass. It shares a boundary with Worongary Creek to the south and the Pacific Motorway to the east. Access is gained from Mudgeeraba Road; an arterial road to the west. The parcel has a total frontage to Mudgeeraba Road of some 530 metres, a frontage to the Pacific Highway of some 778 metres, an approximate maximum width of 230 metres and is comprised of a total site area of 13.587 hectares. The site has been used for purposes including the grazing of cattle, of recent times. The proposed development, which has been approved, is what the Church of Jesus Christ of Latter-Day Saints refers to as a "stake centre" which is to function as a focal point of religious activity for the congregation of the Church of Jesus Christ of Latter-Day Saints for the Gold Coast region as a whole. It will also provide for the local congregations of the Church of Jesus Christ of Latter-Day Saints, a meeting house to be used for public worship, a social and cultural facility for members of the congregation and to provide administrative facilities. The church building proposed is one of a significant size as befits its regional function and as can be seen from the approved plans for development. -- 2 of 21 -- 21072005 T7/AMG M/T 1/2005 (Rackemann DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 The facility is to accommodate a range of activities. The material accompanying the application contained a description of the typical activities of such a facility. These include: For worship, Sunday School activities, administrative meetings, informal worship service, teaching, youth programs, Ladies Auxiliary meetings, family or social functions, dance and other social activities as well as library use. These activities occur over a range of different periods. Insofar as the dancing and social activities are concerned, it is envisaged that they would occur up to 11:30 p.m. on Friday and Saturday nights. There are no other nights in respect of which use of the facility at such an hour is envisaged or requested. The matters, the subject of the appeal, concern a relatively large number of conditions which covered a range of professional expertise. Case management, in this appeal, included the conclaving of experts of like disciplines. -- 3 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 As a result of those conclaves the parties were able to reach agreement on a significant number of the conditions that were in dispute and the scope of the dispute with respect to the remaining conditions was narrowed. Ultimately the conditions which remained to be determined by the Court relate to two issues. Firstly there is an issue about the constraints on operating hours on the Friday and Saturday evenings. Secondly, there is a dispute about the provision of a corridor area along the Worongary Creek boundary to the site. The dispute in relation to the second of those matters affects a number of the conditions. Section 3.5.30 of the Integrated Planning Act requires conditions to be relevant or reasonable. In particular, it provides as follows: "(1) A condition must - (a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or (b) be reasonably required in respect of the development or use of premises as a consequence of the development. (2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identified as policies applied by, an assessment manager or concurrence agency." -- 4 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 5 JUDGMENT 1 10 20 30 40 50 60 While to be lawful a condition must satisfy the provisions of section 3.5.30, it is by no means necessary that every condition which is within legal limits be imposed. The council in assessing and determining the application and the Court in conducting a rehearing afresh on appeal has a discretion as to the imposition of appropriate conditions within the legal limits. The subject site falls within the Guragunbah Local Area Plan. Within that plan there is a Place Code. One of the performance criteria of that Code (PC16) provides that development must contribute to the provisions of a system of open space corridors throughout the LAP area as shown on map 14.3. Map 14.3 shows an open space corridor along a water course in the area of the Worongary Creek boundary of the subject site. The performance criteria goes on to state the purposes which must be fulfilled by the corridor. It also states that, "As most of the open space corridors currently have little or no significant native vegetation within them, it is intended that these corridors, excluding water courses, be substantially planted to form vegetated corridors." Insofar as the provision of a corridor is concerned, acceptable solution 16.1 provides, in part, that, in the case of open space corridors shown as running along water courses (as is the case here), a minimum of 50 metres wide from the top of each bank is required to satisfy the acceptable solution. The acceptable solution goes on to also refer to provision for the retention of existing native vegetation -- 5 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 6 JUDGMENT 1 10 20 30 40 50 60 and provision for pedestrian and bike paths where indicated on map 14.6. As to the enhancement of the natural qualities of such corridors, acceptable solution 16.2 provides: "Enhancement of the natural qualities of the identified corridors may include planting appropriate species, removal of weeds and inappropriate species, or fencing of the area." It will be noted that the various measures stated in acceptable solution 16.2 are not expressed to be measures all of which will be required in every application. They are stated to be particulars of what enhancement "may include". The use of the word "or" before the reference to fencing of the area suggests that it is expressed in the alternative. The conditions which the council imposed upon its approval in this regard required the dedication of some 6.4 hectares of the site and the rehabilitation, improvement and maintenance of the dedicated land. The width of the dedication required by the council was approximately 150 metres. The appellant contended that such a provision was, if relevant, certainly an unreasonable imposition in the circumstances. It is unclear what the basis of council's condition was. It does not appear to be consistent with the recommendations that were made by the assessing officers. Whilst Mr Everson informed the Court that council's formal -- 6 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 7 JUDGMENT 1 10 20 30 40 50 60 position with respect to these requirements had not altered, he frankly conceded that he would not be running any positive case to support the condition. He did not cross-examine the witnesses called by the appellant with respect to this issue and the sole witness called by the council on the hearing of the appeal frankly conceded that he would not support the reasonableness of the condition as formulated by the council having regard to the council's formal position. However, it is appropriate that I say something about the basis upon which such a condition would be unreasonable. The Worongary Creek frontage of the site falls at the southern end of the site. The development, the subject of the approval, lies generally in the northern part of the site. The development is separated quite significantly from Worongary Creek by something in the order of 200 metres. It is not proposed that any of the area in the vicinity of Worongary Creek would either be developed or used in conjunction with or as a consequence of the development which has been approved. The evidence shows that the development would not have any affect otherwise on the area in the proximity of the creek other than a positive one occasioned by the removal of cattle grazing from the subject site. There appears to be little, if any, connection between the development itself and the creek, its corridor, the need for it or the use of it. The only real connection or nexus is that the site which is the subject of the development application includes an area which, in accordance with the structure plan, is intended to function in -- 7 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 8 JUDGMENT 1 10 20 30 40 50 60 the future as a corridor area. The provision of anything more than a corridor of about 50 metres in accordance with the intention of the Local Plan Place Code would seem to be excessive. Further, the requirement for improvement and maintenance of any such area also appears to be onerous in the context of the subject application. Such a requirement would place a significant imposition upon the development the subject of the application. Further, for the reasons which are set out in the evidence, particularly of Mr Hassall, there would be some practical issues involved in relation to the utility of such measures at this stage, given that access to the creek and its corridor would remain available from the property on the other side of the creek. In the circumstances, I have no hesitation in concluding that the conditions imposed by the council, if relevant, would constitute an unreasonable imposition on the development or use of the premises as a consequence of the development. It was not suggested at any stage that such a condition might be justified as being reasonably required in respect of the development or use of the premises as a consequence of the development. Clearly it would not. Even if such a condition were thought to be within the bounds of lawfulness however, I would not, as a matter of discretion, be prepared to let the conditions, as the council propose them, stand. -- 8 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 9 JUDGMENT 1 10 20 30 40 50 60 The appellant has offered to consent to an alternative condition which would result in the dedication of an area of land to provide a 50-metre wide corridor. The width of that corridor would be truncated, to a very small degree, in one corner to keep it clear of an easement which runs across the property, but there is no significance in that fact, nor is it contended that any significance should attach to a minor adjustment to the corridor in that way. Further, the appellant proposes to adopt two of the measures referred to in acceptable solution 16.2, namely the removal of weeds and appropriate species and the fencing of the area, so that the corridor is dedicated to public ownership in circumstances where it is weed-free and access to it is restricted. As Mr Reynolds acknowledged, the corridor so dedicated would be sufficient so as to permit the council to develop improvements within it if it saw fit to do so in the future. In the circumstances, Mr Reynolds, who was called by the council, conceded that that was a reasonable and appropriate response to the planning objective of providing for the open space corridor and I share that view. Accordingly, the council conditions relating to the corridor will be variously deleted (in the case of conditions 31, 32, 33, 34 and 42) or amended (in the case of condition 41) and a new condition will be inserted which contains the condition -- 9 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 10 JUDGMENT 1 10 20 30 40 50 60 offered by the appellant, subject to the plan being altered to take account of the easement and subject to some other minor amendments which were discussed in the evidence and which are unnecessary for me to traverse in these reasons. The remaining condition in dispute and, indeed, the only condition which was ultimately argued before me, was condition 21 dealing with hours of operation. Condition 21 provides as follows: "All activities associated with the operation of the approved use are to be conducted only between the hours of: . 6.30 a.m. to 9.30 p.m. from Monday to Thursday; and . Friday and Saturday evenings until 10 p.m.; and . 8.30 a.m. to 9 p.m. Sunday Notwithstanding, persons will be permitted on site outside of these hours for the purposes of gathering prior to a function; the dispersion of persons after functions; administration by official staff; cleaning and maintenance and/or emergency spirit actual counselling. The Chief Executive Officer may consider a written request to vary the hours of operation for special events with a minimum of 30 days' notice." That part of condition 21 which was controversial was the limitation of operations on Friday and Saturday evenings to 10 p.m. In addition to that issue I raised with counsel whether the final sentence of the condition (which reserved to the Chief Executive Officer a power to vary the approved hours) was one in respect of which issues of unlawful delegation -- 10 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 11 JUDGMENT 1 10 20 30 40 50 60 arose. That part of the condition is obviously for the benefit of the appellant in providing some greater flexibility. The Court having raised the issue, the appellant indicated that it did not oppose that part of the condition being deleted, and I will do so. The appellant contends that the condition should be altered so that it is permitted to operate until 11.30 p.m. on Friday and Saturday evenings only. Such an amendment would permit operations in accordance with the activities disclosed in the application document itself. The material before the Court establishes that other similar facilities operate to that later hour on Friday and Saturday evenings. Those facilities are discussed in the report of Mr Venn, a town planner called by the appellant. The other similar facilities include a facility in the same local authority area at Nerang which is of a similar size, but a different layout. It has been operating for approximately five years within an area of a park/rural residential character, on Mr Venn's evidence. That site was also included in a park/residential zone and had a preferred dominant land use designation, at the time of approval, of park/residential. The desire for the appellant to provide for the later hours on a Friday and Saturday evening, for dances and social events for its congregation, is understandable, and the benefit to those attending such functions to stay until they are -- 11 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 12 JUDGMENT 1 10 20 30 40 50 60 completed at such an hour is also understandable. Indeed, Mr Venn expressed the view that there was a positive public benefit in allowing for the church to provide such functions to a later hour, rather than turn away young people at an hour where they might be encouraged to continue activities elsewhere. I understand those views, but ultimately, they are not ones which I place any significant weight on in the assessment of the conditions. Also, that there are similar facilities in other areas operating until these later night times is a matter which is not irrelevant, but is a matter which I do not place significant weight upon, since one must assess the acceptability of such hours in the context of the area in which the subject premises is located. The critical issue in respect of the operating hours issue is the question of the effect which such later hours may have upon amenity. Insofar as specific amenity impacts are concerned, those impacts were the subject of evidence by Mr Kamst, who was called by the appellant. The respondent did not call any witness expert in matters of noise and lighting to contradict the evidence of Mr Kamst. Mr Kamst's evidence is evidence which I accept. There are two residences which lie to the immediate north-west of the intended development, the amenity of which would need to be closely considered, as Mr Kamst has done. Other potential sensitive uses, particularly in respect of noise, -- 12 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 13 JUDGMENT 1 10 20 30 40 50 60 are the residences located on the opposite side of Mudgeeraba Road from the intended point of access to the subject site. Mr Kamst also considered potential impacts on those residences. Land use in the area west of Mudgeeraba Road is generally of a park residential nature, featuring houses on larger than usual allotment sizes. Land use to the immediate south of the subject site is owned by the Baptist Union and features a place of public worship and areas which appear to be either used or at least suitable for grazing purposes. The subject land and the land to the south is included within the Gurabunga local area plan. The land to the immediate south is so designated in the local area plan as to contemplate its future development for purposes including residential low/medium density development. The evidence of Mr Kamst is that the likely noise impact at residences 1 and 2 from people who might, in the later hours of Friday and Saturday night, cause noise by slamming car doors or starting their engines in the northern car park in close proximity to those residences would be barely audible, and certainly acceptable. I accept that evidence. It was pointed out by Mr Everson that Mr Kamst did not perhaps look at the full range of noises which could be caused by people in that area (by, for example, screaming or shouting) and that there was at least a possibility of some noise impact -- 13 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 14 JUDGMENT 1 10 20 30 40 50 60 upon those residences. Mr Kamst's evidence was that such impact was unlikely to be of significance. It should be pointed out in this context that the conditions of approval include conditions which require the emission of noise from the car park not to result in levels which are above those specified in the conditions. If the noises remain within those limits then they would not be unreasonable. Mr Kamst's evidence is to the effect that the noises emanating from the car park are likely to be within those limits. The condition, however, also contains a mechanism whereby, in response to complaint, monitoring is then required to be carried out to ensure compliance. On the evidence of Mr Kamst I am satisfied that it is unlikely that noise emanating from the car park will have any significant impact at all upon residence 1 and 2. However, there is a further management step which could be taken to further reduce the prospect of any impact. That management measure would involve the erection of signs at either end of the northern part of the car park indicating that, with the exception of disabled parking, parking in that area was prohibited after 10.00 p.m. Reference to the plans of the development reveal that there is a large number of car parks within the site which are further removed from the residences in question. Erection of such signage would reduce the likelihood of the car parks which are -- 14 of 21 -- 21072005 D.2 T10/LLM M/T 1/2005 (Rackemann DCJ) 15 JUDGMENT 1 10 20 30 40 50 60 closest to the residences being used in the later hours. The appellant indicated that it would consent to the conditions being altered so as to incorporate such signage and I am satisfied that, with the conditions otherwise in place and on the evidence of Mr Kamst that, together with the further signage offered, that there would not be any reasonable concern for amenity impacts by way of noise on the closest residents to the facility occasioned by the later hours. Insofar as the residents opposite the vehicle entry is concerned the evidence of Mr Kamst establishes that they are sufficiently far removed from the church buildings so that the noise impact due to activity within the church would be either inaudible or insignificant. Mr Kamst, however, gave consideration to whether such persons would be affected by possible sleep disturbance as a result of vehicles departing the site late at night. His evidence is that in respect of at least one of the residences there was the potential for the noise of vehicles departing, if they were under full acceleration, to reach levels at which sleep disturbance may occur. It is necessary, however, as Mr Kamst explained, to have regard to the context of the site in order to determine what weight to put upon that matter. -- 15 of 21 -- 21072005 D.2 T12/JDR M/T 1/2005 (Rackemann DCJ) 16 JUDGMENT 1 10 20 30 40 50 60 Residences 3 and 4 front Mudgeeraba Road, itself an arterial road. Traffic counts establish that the volume of traffic along that road in the later hours of Friday and Saturday evening is substantial. Mr Kamst's evidence establishes that by reason of that traffic, residents along Mudgeeraba Road would already be experiencing an environment characterised by a significant number of events where the maximum noise level is above the sleep disturbance index and also above the level of noise which may be caused by vehicles exiting the subject site. In such circumstances, Mr Kamst's evidence was to the effect that the additional events occasioned by vehicles departing the subject site would not be such as to cause unreasonable impact. I accept his evidence. Mr Kamst also had regard to matters such as fixed lighting and possible disturbance from vehicle headlights. I will not traverse the details of his findings in that regard, but I accept his evidence that there would be no significant impact occasioned as a result of any of those matters. Accordingly, I find that the later operating hours would not result in any significant amenity impact, of a direct kind, on residences in the area. Ultimately, the council's case, with respect to this condition, focused upon the effect which it contended the later hours would have on the perception of amenity. -- 16 of 21 -- 21072005 D.2 T12/JDR M/T 1/2005 (Rackemann DCJ) 17 JUDGMENT 1 10 20 30 40 50 60 As was pointed out, the protection of amenity is a matter which finds a basis, as one would expect, in the town planning documents. Those town planning documents also direct attention to matters including the hours of operation. The argument advanced on behalf of the council, that is supported by Mr Reynolds, was that, given the park residential nature of development in the area and the future intentions with respect of future residential development, the operation of what was said to be effectively an entertainment venue, into the late hours on a Friday and Saturday night, with associated lighting and other effects which, although perhaps not causing a nuisance, would be obvious, would affect, detrimentally, the perception of residents and those travelling through the area of the character of the area. Mr Reynolds, in this regard, placed reliance on resident's reasonable expectations in relation to the amenity of the area. Whilst the area, within which the subject site is located, is an area which is characterised by park residential development, it must be acknowledged that it is not an area which is free of the signs or impact of activity. The report of Mr Kamst demonstrates that the background noise level in the area is higher than one would expect for a quiet, residential area. That is, no doubt (and on the evidence) affected by the close proximity of the motorway and the Mudgeeraba arterial road. -- 17 of 21 -- 21072005 D.2 T12/JDR M/T 1/2005 (Rackemann DCJ) 18 JUDGMENT 1 10 20 30 40 50 60 The activity along those roads creates noise which affects the amenity and environment of the area and also produces the observable physical activity associated with cars using such significantly used roads. Ultimately, Mr Reynolds could not support or justify his statement that, during the times in question, the roads would otherwise be quiet and dark, nor what he described as perceptions of "quiet, rural, residential living." It may be accepted that any change to an area in terms of its built form and in terms of its operating hours has the potential, at least, to have some impact upon people's perceptions of their amenity. It should be noted that in this case there were no duly made submissions. The late submissions that were received did not particularly raise the issues of late night usage and the Council did not call any residents, in its case, in respect of perceptions. What must ultimately be looked at is the extent to which the later operating times would impact upon character, and the weight to be put on that in terms of an assessment of the appropriateness of the condition. In this case, the application has been approved by the Council. Even with the Council's conditions, there will be a change to the area by the introduction of a development of a significant size which operates into the night period, -- 18 of 21 -- 21072005 D.2 T12/JDR M/T 1/2005 (Rackemann DCJ) 19 JUDGMENT 1 10 20 30 40 50 60 including at least up to 10 p.m., with people leaving the site thereafter. What is being proposed here is an extension, effectively, of those operating times for an extra one and a half hours on two nights only of the week. In my view, the extent of the impact which that would likely have on perceptions of the character of the area is small. Looking at the weight to be afforded to any such impact, while I accept that matters of subjective perception can be of relevance in planning matters, it should also be borne in mind that it is necessary to be careful with respect to the weight which one affords to such considerations. In Broad v Brisbane City Council and the Baptist Union of Queensland, [1986] 2 QdR 317, de Jersey J. (as he then was), said as follows (at 325): "In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area, a Judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development." -- 19 of 21 -- 21072005 D.2 T13/KAW (Rackemann DCJ) 20 JUDGMENT 1 10 20 30 40 50 60 In the context of the subject application and the subject Locality, with the features I have described, and having regard to the limited nature of the extended operating times which are requested and having regard also to the likely effect which vegetation, both existing and proposed (the conditions contemplate landscaping on the subject site) would have, I find that any impact on the perceptions of amenity would not be significant. For those reasons, the imposition of a condition which would confine the hours of operation so that the applicant could not carry out its planned activities to 11.30 in accordance with the application is one which, in my view, is unreasonable. Even if it falls within the bounds of lawfulness it is not one which I would impose as a matter of discretion. In my view, the condition ought be varied, as indicated, to allow operations until 11.30 p.m., as the appellant has contended for. As I have indicated, there are other conditions which will be altered as a consequence of matters upon which the parties were able to reach agreement. I will at this stage simply adjourn the appeal to allow the parties to formulate the appropriate type of order. . . . HIS HONOUR: If you wish to make an application if you could deliver any material you want to rely upon, together with any -- 20 of 21 -- 21072005 D.2 T13/KAW (Rackemann DCJ) 21 JUDGMENT 1 10 20 30 40 50 60 outline, within, say, seven days. MR LYONS: Certainly. HIS HONOUR: With council to respond with material and submissions within seven after that and you can reply within seven days after that. MR LYONS: Thank you. HIS HONOUR: And, accordingly, I should reserve costs at this stage. ----- -- 21 of 21 --