Evans v Eacham Shire Council [2004] QPEC 83

[;;zeo+] Qy>£(_ i3 State Reporting Bureau a Queensland Government ~ Department of Justice and Attorney-General h Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING & ENVIRONMENT COURT JUDGE WHITE P & E Appeal No 277 of 2004 PETER EVANS and EACHAM SHIRE COUNCIL CAIRNS .. DATE 23/11/2004 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 24 November, 2004 Appellant Respondent 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. 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 14 -- 23112004 D.3 Tl/GRB M/T CNSl/2004 (White DCJ) HIS HONOUR: The land which is the subject of this appeal is described as Lot 109 on SP156395, Parish of Malanda. It is 6,796 square metres in areas, with a frontage of 151 metres to Meragallan Road. It is located approximately 6.7 kilometres from Malanda Post Office, and is surrounded by farms. The appellant applied to the respondent council for approval of a material change of use for fertiliser storage and sales, and the base of a fertiliser spreading business. This is an appeal against the refusal of the application. The proposed use has already been carried out in part on the subject land. This fact does not have any direct bearing on whether or not the appeal should be upheld, but it does mean that practical evidence is available of the manner in which the use is presently being carried on. The appellant and his wife reside in a house situated on the subject land. There is a multiple vehicle garage or carport associated with the residence. The use is carried out from a large shed with a present floor area of approximately 500 square metres. The business does not buy fertiliser for resale. It acts as an agent for TGT Tolga. At present fertiliser is handled in one tonne bags. The supply of these bags is kept in the shed for sale to farmers. Some farmers come to the premises to buy fertiliser which they take away in their own vehicles. This 2 JUDGMENT 1 10 20 30 40 50 60 -- 2 of 14 -- 23112004 D.3 Tl/GRB M/T CNSl/2004 (White DCJ) is a very small part of the business, and I am satisfied that 1 it will remain so. The business operates two spreader trucks. These are small four-wheel drive trucks with fertiliser containers on the back. In some instances the spreader trucks are filled with fertiliser from the bags stored in the shed, travel to a client's farm, and spread the fertiliser on the client's paddock. Most of the fertiliser stored on site is sold and delivered in this manner. However, this too is only a small part of the spreading business. The major part of the business involves spreading fertiliser on clients' farms. Such fertiliser being delivered direct to such farms from the manufacturer. The appellant proposes to extend the shed so that five bulk fertiliser bins can be constructed inside, so as to contain a maximum of 100 tonnes. The business will generally distribute this bulk fertiliser from the premises in the spreader trucks. The business has a prime mover and two semitrailers. These are used to collect bags of fertiliser from Incitec Pivot in Cairns, and deliver them to the subject premises and to clients' farms. There is also a rigid-body truck with a tipper body. This will be used to transport bulk fertiliser from Cairns to the subject premises. This truck will also tow a dog trailer carrying one tonne bags of fertiliser from time to time. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 14 -- 23112004 D.3 Tl/GRB M/T CNSl/2004 (White DCJ) The spreading business is carried out on farms across the Atherton Tableland. As I have indicated, most of the work involved is spreading fertiliser delivered direct to clients' farms. I am satisfied that this will continue to be the case. The shed will also be used for the parking of trucks operated by the business, and some vehicle servicing. In my view, the proposed uses fit within the following descriptions in the respondent's planning scheme. (1) Fertiliser Store - any premises used or intended for use primarily for the storage and sale of bagged fertiliser. The term does not include the manufacture, storage, and the bagging of loose fertiliser or a produce store as herein defined. (2) Bulk Store - any premises used or intended for use for the bulk store of goods where the goods stored, or to be stored are not required for use in a shop or commercial premises, on the same parcel of land, or on adjoining land in the same ownership. The term does not include a warehouse as herein defined. (3) Road Freight Depot - any premises used or intended for use for any or all of the following purposes: (a) the receipt, storage or distribution of goods for transport by road, or for the transport partly by road and partly by some other means, and loading and unloading of vehicles or 4 JUDGMENT 1 10 20 30 40 50 60 -- 4 of 14 -- 23112004 D.3 Tl/GRB M/T CNSl/2004 (White DCJ) containers used for the transport of such goods; (b) the transfer of goods from one vehicle or container to another vehicle or container; (c) the storage of goods for collection following their transport by road, or partly by road and partly by some other means; (d) the loading, unloading, or storage of containers; (e) where carried out in association with the above, the garaging, refuelling, cleaning, servicing, and repair of road transport vehicles. The term does not include a railway siding or a dock facility, or the receipt and despatch of goods where such receipt and despatch is incidental to the use of the premises for some other permitted use. The land is in the Rural (General Farming) Zone of the respondent's planning scheme. The statement of intent for the zone is as follows: "The intent of this zone is to provide for and protect the shire's prime agricultural land for dairy farming and grazing pursuits, and to cater for other compatible rural activities. Uses in this zone should be generally compatible with primary industry activities. The general minimum subdivision area is 50 hectares." The three uses defined above, and the use proposed by the appellant may be carried on within the rural (general farming) zone with the consent of the respondent. I have no doubt that not all forms of fertiliser store, bulk store, or road freight 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 14 -- 23112004 D.3 Tl/GRB M/T CNSl/2004 (White DCJ) depot are appropriate within this zone, or would be generally 1 compatible with the primary industry activities carried on in the area. However, I am satisfied that the particulars uses proposed in this case are entirely compatible with primary industry activities. Although the business is proposed to operate between the hours of 5.30 a.m. and 11 p.m. seven days a week, in my view, the vast majority of these times will involve no activity on the subject land. The shed is a large one. That is particularly so when one takes into account the proposed extension. However, in my view, it is not exceptionally large by general Atherton Tableland standards. In my view, the appearance of the subject land with the house, carport, and large shed, will not be materially different to many farm homesteads which commonly appear in the area. Loading and unloading of fertiliser will almost always take place within the shed. Parking and servicing of vehicles will occur within the shed. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) The hours of operation are intended more to provide a service 1 to local farmers rather than to indicate the hours upon which there will be activity on the subject land. The respondent submits that the proposal is in conflict with its strategic plan. I will deal with each of these provisions relied on by the respondent. "1.0 Introduction: The strategic plan for the shire of Eacham is primarily intended to ensure that the needs of the existing primary industries, in particular dairying, are pre-eminent in determining future land use. To this end the strategic plan identifies land of agricultural value which should be retained for primary production." The proposed use does not conflict with this broad statement, in fact, to the extent that the proposed use provides a service to the dairy industry it is consistent. The subject land is within an area designated general farming as the preferred dominant land use: "Paragraph 2.0: Preferred Dominant Land Uses (1) General Farming - the designation covers most of the Shire's freehold areas I recognition of the economic base 10 20 30 provided by dairy farming and grazing. Other rural 40 pursuits are envisaged, although to a lesser extent and subsidiary to dairying and grazing." Paragraph 3.1 deals with the aims, objectives and implementation in relation to land designed general farming: "Aim - to protect and encourage primary industry in the shire; to conserve and protect the natural resources of the shire; and to provide for the needs of people supported by primary industry. (1) Objective: To protect valuable dairy and grazing areas from pressure for non agricultural uses. 7 JUDGMENT 50 60 -- 7 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) 1 (a) The shire's valuable rural land has been identified in part B of the strategic plan and all such areas are shown as general farming or special .farming on the strategic plan map unless there are other overriding considerations. (c) In administering the town planning scheme, particularly in relation to the consent powers in the rural general farming and rural special farming zones 10 council will have regard to the aims and objectives of the strategic plan by minimising conflicts of consent uses with as of right uses in these zones. (d) To minimise the need for non agricultural uses on valuable agricultural land part B of the strategic plan evaluates the demand for various uses including rural residential and urban development. Appropriate locations for such uses are identified on the strategic plan map in areas which will have the minimal possible adverse 20 effects on dairying and agriculture. Council does not favour rezoning applications for locations other than those identified in the strategic plan and subject to any other relevant criteria." The subject land is not valuable dairy or grazing land. In my view there is no conflict between the proposed use and as of 30 right uses in the zone. Reliance is placed by the respondent on the explanatory outline of land designated urban as the preferred dominant land use. That explanation appears in paragraph 2.0(7): "The designation covers all uses normally associated with townships and settlements, namely residential at various densities, business, industrial, recreational and community and other public facilities." The respondent also refers to the following, which deals with urban areas. Paragraph 4.0: "Aim - to provide for the needs of existing and future residents of the towns and the shire and to enhance the amenity and safety of the urban areas. (2) Objective - to provide for the growth of retail, commercial, industrial and other land uses. 8 JUDGMENT 40 50 60 -- 8 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) 1 Implementation - (a) Council would not support any general business zoning outside the established areas of the towns of Malanda, Yungaburra and Millaa Millaa; (b) Council will consider applications for any industrial or other rezonings having regard to the strategic plan and any other relevant planning considerations, but considers that these uses should be located primarily within and surrounding the existing urban areas." 10 Argument concerning the adequacy of service to the subject land relates only to the road network, and I will deal with this in more detail later. Otherwise, the conflict contended for is based upon a proposition that the proposed use is industrial/commercial in character. I am not persuaded that this is correct. The strategic plan and the planning scheme were gazetted at the same time. Terms such as industrial and commercial are not defined in the strategic plan, however, commercial premises and industry are defined in the planning scheme and, in my view, none of the proposed uses fall within either of these definitions. I am satisfied that the proposal is a scattered development in the sense that there are no similar developments anywhere near it. However, I am satisfied that it does not promote or encourage scattered development. It is therefore not in conflict with urban area objective (3): "To ensure that adequate services are available". Implementation (a) The strategic plan locates urban uses in areas which can be economically serviced; (b) Council will not approve rezonings for urban uses or development in areas which cannot be efficiently serviced." 9 JUDGMENT 20 30 40 50 60 -- 9 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) Objective 4: "To protect and enhance the amenity of existing and future residents while providing for a diversity of housing styles." "Subjective" hardly seems relevant but implementation paragraph (c) is as follows: "The strategic plan provides for consolidation of development in existing towns with planned expansion in defined areas. Council does not favour rezonings which would encourage scattered development." I was also referred to paragraph 6.0 of the strategic plan. 10 The section is headed "Communications and other Infrastructure 20 Objectives": "Aim - to ensure adequate and proficient provision of services. Objective 1 - to ensure the road system in the shire meets the demands placed upon it by adjoining land uses and general transport requirements in the shire. Implementation (c) - Council is mindful of avoiding ribbon developments when considering consent and rezoning applications." 6. 0 ( 1) (b) relates to roads, which I will consider shortly. I am satisfied that the proposal does not constitute a ribbon development and will not encourage ribbon development. Apart from the roads issue I am satisfied that the proposal does not conflict with the strategic plan. 30 40 As to need, I respectfully agree with the following remarks of 50 his Honour Judge Quirk in Theodorau v Redland Shire Council [1987] QPLR 11 at page 14: "I should say something about need as the matter was raised in the appeal and was the subject of some evidence. The relevance of need where a discretionary 10 JUDGMENT 60 -- 10 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) use is being considered has been the matter of some 1 debate. I regard it as a factor which (while by no means being determinative) can at times be considered. For example, the absence in an area of a particular facility which would be of benefit to the community might be a matter which would favour an approval of a development that would lead to the provision of such facility. It is in the context of "community interest" that such matters are judged." I also agree with the following statement by his Honour Judge Row in Leisuremark Australia Pty Ltd v Noosa Shire Council [1988) QPLR 137 at page 149: "Need in a planning sense is a relative concept. It does 10 not promote pressing urgency but rather relates to the 20 general wellbeing of the community. A use is needed if it would on balance improve the services and facilities in the community." It is probably correct to say that there is no need for this proposal on this particular site, however, there is benefit to some people in establishing the proposal on this site. Firstly, the establishment of the proposal, in conjunction with the appellant's residence, allows for a seven day a week service to farmers. Secondly, it is conveniently located for farmers who live nearby. This is in contrast to Ms Coleman's view that the use would be more appropriately located in the Malanda industrial estate where it would not be particularly close to or convenient for any of its clients. Whilst the collection together of similar uses in discrete locations may well be a significant matter for consideration in town planning, it should not be considered an end in itself. This is particularly so against the background of a 11 JUDGMENT 30 40 50 60 -- 11 of 14 -- 23112004 0.3 T2-3/LET M/T CNSl/2004 (White DCJ) statutory planning scheme. By allowing a wide range of permissible uses in the rural general farming zone, many of which could be said to be appropriately located in urban areas, means that the council planning scheme anticipates that such uses may be appropriately located other than in a collection of similar uses. In any event, I am satisfied that the need for the proposal on the subject site is sufficiently made out. Finally, I turn to consider the adequacy of the roads, particularly Merragallan Road. The respondent carried out at a traffic count of Merragallan Road between the 19th of December 2003 and the 29th of January 2004. The average number of traffic movements per day was 69. It included a significant number of trucks, including semitrailers and B- double trailers, approximately 20 per day. The road is 12.2 kilometres long with 8.5 kilometres of one- lane bitumen and 3.7 kilometres of gravel. The section between the subject land and Malanda is bitumen. Current traffic includes milk tankers, a school bus and cattle trucks. Mrs Evans has extracted a record of truck movements to and from the subject land for the period January to October 2004. I am satisfied that these figures are highly accurate. The greatest number of truck movements occurred in July, 145 movements at an average of 4.68 per day. 12 JUDGMENT 1 10 20 30 40 50 60 -- 12 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) I take into account that the council traffic count occurred during school holidays and it is possible that the count could have been greater during school time by reason of people along the road driving children to and from school. On the other hand, the council count would have included some truck movements to and from the site. I proceed on the basis of approximately 70 vehicle movements per day, without the appellant's operation, as a reasonable estimate. There are no details of the potential for expansion of the operation. I am of the view that the business is likely to grow. However, growth will be limited by the capacity of the operation to handle additional business. In my view, expansion of the business will largely involve growth of the spreading business which will occur off the site and will not involve a proportional increase in truck movements to and from the subject site. However, even if vehicle movements were to double that would bring the total average vehicle movements per day to no more than 80. It is also relevant, in my view, that the majority of vehicle movements generated by the business involve the spreader trucks. These are class 3 vehicles, they are small trucks not much larger in their horizontal dimensions than four-wheel drive utilities such as the Toyota Land Cruiser and Nissan Patrol which proliferate on the Atherton Tableland. As Mrs Evans' diary indicates, the majority of movements by the semitrailers, tipper truck and dog trailer occur, and will 13 JUDGMENT 1 10 20 30 40 50 60 -- 13 of 14 -- 23112004 D.3 T2-3/LET M/T CNSl/2004 (White DCJ) continue to occur, between the subject land and Cairns. That 1 is, most of these movements occur, and will occur, on the bitumen section of Merragallan Road. In my view the contribution of the proposal to traffic generated on Merragallan Road is of no significance. Without the proposed use traffic generated on Merragallan Road is very light and with the addition of the traffic generated by the proposal will still be very light. In my view Merragallan Road as it presently exists is quite adequate to handle traffic generated by the proposal. There is no justification for refusing the application on this ground nor, in my view on the evidence so far, could the appellant be reasonably required to contribute to the cost of any upgrading of Merragallan Road because it is just not required. I propose to uphold the appeal. I will adjourn the hearing to allow the parties the opportunity to agree upon reasonable and relevant conditions. HIS HONOUR: I order that further hearing of the appeal be adjourned to a date to be fixed. Come back and see me some time in the future. 14 JUDGMENT 10 20 30 40 50 60 -- 14 of 14 --