Cooloola Ratepayers and Residents Association Inc v Cooloola Shire Council & Anor [2004] QPEC 18 (2004) QPELR 544

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cooloola Ratepayers and Residents Association Inc v Cooloola Shire Council & Anor [2004] QPEC 018 PARTIES: COOLOOLA RATEPAYERS AND RESIDENTS ASSOCIATION INCORPORATED (Appellant) AND COOLOOLA SHIRE COUNCIL (Respondent) AND ROSS VICTOR DAVIES AND DAPHNE ELIZABETH DAVIES as trustees for the RV & DE DAVIES SUPER FUND (Co-respondent by Election) FILE NO/S: No 2 of 2003 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Gympie DELIVERED ON: 6 May 2004 (judgment given ex tempore) DELIVERED AT: Gympie HEARING DATE: 5th May 2004 and 6th May 2004 JUDGE: Judge J.M. Robertson ORDER: [1] The appeal is dismissed [2] I direct that my reasons and the evidence before the Court on this issue of costs be forwarded to the Attorney-General with a view to him deciding if any person should be prosecuted for perjury. [3] I direct that a copy of my corrected reasons be given to each of the parties. [4] I give judgment in terms of the draft order which I have amended slightly to reflect those reasons, which I initial, date today’s date and lodge with the file. -- 1 of 10 -- 2 CATCHWORDS: PLANNING AND ENVIRONMENT – submitter appeal. COUNSEL: Mr F. Lightfoot (for the appellant) Mr W. Cochrane (for the respondent) Mr C. Hughes S.C. (for the co-respondent by election) SOLICITORS: King & Co Solicitors (for the Respondent) Balwins Lawyers (for the Co-respondent) The appellants for themselves [5] The co-respondents to this submitter appeal, Ross and Daphne Davies, have operated a furniture retail business in Gympie at various locations since 1988. They quickly outgrew their original premises in Mary Street, and in 1994 commenced trading at their present showroom and retail premises at 2-4 Horseshoe Bend, Gympie. In 2002 – 2003, in line with a real estate boom, and unprecedented population growth in the city, their trading increased very significantly to a point where it became critical to the continued growth and viability of the business to obtain substantially more floor space to display stock and to meet the needs of their expanding customer base. They set about, in a professional way, to identify an appropriate site to purchase, and eventually acquired the site the subject of this appeal. [6] The site is conveniently located immediately opposite their present showroom in Horseshoe Ben and comprises two lots. The land is located on Horseshoe Bend between Ferguson Street and Lawrence Street and comprises 2,412 square metres. Lot 802 is vacant and Lot 666 contains a character butcher shop, which will be retained under the proposal, and a character house which will be removed if the appeal is dismissed. [7] Mr Davies gave evidence to support his written statement. His evidence was not challenged in any significant way. His family are fifth generation Gympie residents. He impressed me as a sincere man of integrity with a deep commitment to the welfare of his community. It was also clear to me that the appellant’s continuation of the appeal, in the face of what was clearly a genuine response to the issues raised in the original Notice of Appeal, has placed considerable strain on him and his family. [8] The application to Council originally was in two parts. Mr and Mrs Davies applied for a material change of use of premises for a retail showroom and for the removal of the character home from Lot 666. The application was approved at a general meeting of the Council on the 18th November 2003 and was subject to a number of conditions. [9] The land is in the housing zone in the planning scheme, and the proposal is at least indirectly in conflict with various sections of the strategic plan. The application for removal of the house is a requirement of section 13.4.1 of the planning scheme. [10] The negotiated decision notice from Council was forwarded to Mr and Mrs Davies on the 24th of November 2003. -- 2 of 10 -- 3 [11] At the commencement of the hearing, Mr Hughes, on behalf of Mr and Mrs Davies, obtained the Court’s leave to proceed on the basis of a variation of the proposal for the material change of use. This was necessary because of section 4.1.52 (2) (b) of the Integrated Planning Act, which provides” “The Court:… (b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.” [12] In Ausbuild Pty Ltd v Redland Shire Council (2001) QPE, at page 18, Judge Quirk observed, after referring to Carillon Developments Pty Ltd v Maroochy Shire Council (2000) QPELR 216: “The determinative question, therefore, is whether the Court is, on the evidence, satisfied that the change to the proposal would be likely to attract an adverse submission that was not provoked by the proposal in its original form.” [13] Neither the appellant nor Council objected to leave being granted, clearly accepting that the proposal as amended would not be likely to attract an objection not provoked by the earlier proposal. [14] The revised proposal came about as a result of what I find to be a genuine effort by Mr and Mrs Davies to meet some of the valid concerns of the appellant raised in the original notice of appeal and also to meet some of the conditions imposed by Council. [15] By way of example, the original showroom was 1100 square metres in dimension and extended down Ferguson Street to a point quite close to the nearest residence in Ferguson Street. The amended proposal is for a showroom of 800 square metres and, most importantly, provides for a landscaped buffer zone of some 13 metres between the driveway to the development and the nearest house in Ferguson Street. There is also provision for a 1.8 metre acoustic fence to ameliorate any noise emanating from trucks operating in the truck turning bay to be erected in this vicinity. Generally speaking, the amended proposal addresses issues of amenity, character and traffic in response to some of the matters raised in the notice of appeal and other issues raised by Council. [16] Notwithstanding this, the appellant has chosen to continue with the appeal. It called no expert witnesses and no lay witnesses, except for Mr Lightfoot, whose statement contains mainly argument. Indeed, despite it being called the Cooloola Ratepayers and Residents’ Association, not one ratepayer or resident was called to give evidence by the appellant. [17] On the other hand, Mr and Mrs Davies, who, under the Integrated Planning Act have the onus of satisfying the Court that the appeal should be dismissed, called a number of residents and ratepayers, all of whom supported and applauded the proposal. None of these witnesses were challenged relevantly. In cross-examination of these witnesses, Mr Lightfoot’s major concern seemed to be self-serving, concentrating not on town planning issues and other relevant matter, but rather tending to concentrate on issues to do with himself and his association. Examples of this arose in cross-examination of Miss Toner, the nearby resident of Ferguson -- 3 of 10 -- 4 Street, and Mr Hooper, when Mr Lightfoot was concerned to inform Mr Hooper from the bar table that the Council did not fund his organisation, despite Mr Hooper’s assertion. [18] In the same vein, and significantly from the point of view of community need, the original proposal – that is, with the much larger showroom and proximity to the nearest house in Ferguson Street – attracted a large number of letters of support and a petition containing hundreds of signatures, most of which were from the local community, although there were some from outside the Gympie City area. On the other hand, the Council received five objections, one of which was from the appellant. [19] Mr Hurrey, the solicitor for Mr and Mrs Davies, has helpfully analysed these documents and has given unchallenged evidence that seven of the hundred letter writers who wrote to support the development live in close proximity to the site, whereas only one objector, a Mr Bernardin, lives close by at 14 Ferguson Street. Mr Bernardin did not give evidence and I was informed by Mr Lightfoot from the bar table that he doesn’t live in the house; it is rented. [20] With those general observations in mind, I will now deal with the disputed issues, in so far as it was possible to discern these from the way in which the appellant chose to conduct its case. [21] Town Planning Issues [22] (a) Conflict with the strategic plan: Mr Lightfoot has tended to concentrate on this issue in the conduct of the appeal. He’s not a town planner, and the appellant did not call an expert town planner. On the other hand, Mr Ryter, on behalf of Mr and Mrs Davies, and Mr Dillon, on behalf of Council, provided reports and gave expert town planning oral evidence in support of the proposal. Mr Dillon was required for cross-examination but was not asked a single question. [23] As the relevant planning scheme is a transitional planning scheme, the application is to be decided by reference to the relevant provisions of the repealed Act (the Local Government Planning and Environment Act 1990) and in particular, section 4.4 (5A), which provides that Council: “must refuse to approve the application if (a) the applicant conflicts with any relevant strategic plan and, (b) there are not sufficient planning grounds to justify approving the application despite the conflicts.” [24] As I have noted, there is at least indirect conflict with the strategic plan, a fact acknowledged by Mr Hughes, on behalf of the co-respondent, so it falls to the Davies to satisfy me that there are sufficient planning grounds to justify dismissal of the appeal, notwithstanding the conflict. [25] As I have noted, the land lies in the housing zone in the planning scheme, however, the strategic plan in its intents section for this zone does, in my opinion, contemplate some non-residential use. Urban designation is defined in the plan as referring “primarily to residential development of all forms, though it includes -- 4 of 10 -- 5 complementary activities which provide a service to local communities. Such activities may include local shopping….facilities.” [26] Mr Cochrane, in his closing address, has referred me to a number of decided cases, all of which generally support the proposition that reference to local services in planning schemes should not be interpreted too restrictively. In particular he referred me to Craig v The Brisbane City Council & Another (1998) QPELR 281; Evans v Caboolture Shire Council (1995) QPELR 28; and Phil Fletcher Planning v Brisbane City Council (1991) QPELR 16. Significantly, the strategic plan actively discourages retail showrooms in designated commercial centres (see paragraph 1.4.3.2.3) whereas there is no such active discouragement in housing areas. [27] The scheme provides specifically for retail showrooms in the Duke Street and Tozer Street commercial centres and describes these designated areas as “accessible to the whole city and the Bruce Highway, adjacent to the town centre, … and well-known commercial precincts”, characteristics which could well apply to the proposed site. [28] I am satisfied on the evidence that there are no suitable sites available for sale in these designated areas, and Mr Dillon’s report refers to a lack of suitable flood free land in these designated areas. [29] Mr Lightfoot questioned Mr Davies as to whether or not he would consider a site on the Bruce Highway. Understandably, he rejected this on grounds of customer convenience and other business grounds. It is difficult to understand why the question was asked, as the strategic plan at 1.4.3.8 actively discourages retail showrooms on the Bruce Highway. [30] In the planning scheme, there is also reference under paragraph 4.1.1 to the showroom precincts designation referred to earlier. The provision, in my view, is so worded as to clearly contemplate such uses outside the designated precincts subject to the town planning considerations set out in the dot points in the scheme under the heading “Showroom Precincts”. [31] As Mr Ryter notes in his report, the site is very close to a number of existing commercial development. Adjoining the present retail furniture showroom opposite the site is the residence of Mr and Mrs Rossi, which was used as a child-care centre until 12 months ago. Mr Rossi gave evidence on behalf of Mr and Mrs Davies, and particularly noted their long-term concern for the amenity of their neighbours over the 10 year use of their existing facility. He also indicated that he and his wife were considering obtaining Council approval to use the shop part of their premises for a commercial purpose. [32] Land on the north-west quadrant of Horseshoe Bend and Lawrence Street, is used for the purposes of a large dental clinic; and land to the west in Channon Street, which is a continuation of Horseshoe Bend, is used for a mixture of residential and commercial (predominantly medical) purposes, including a large private hospital, specialist clinics and surgery. To the east of the site the use is predominantly housing, although there are a number of home businesses conducted along Horseshoe Bend. [33] I agree with Mr Ryter that, in terms of land use, the immediate locality of the subject land is obviously an area of mixed land use involving both well-established -- 5 of 10 -- 6 commercial and residential uses. I also accept his evidence that there is consistency in this development proposal with the performance criteria for non-residential development in urban areas in the planning scheme. As he notes, both the planning scheme and the table of zones contemplate non-residential development in urban areas. [34] The uncontested evidence of the traffic expert, Mr Robert Holland, satisfies me that Horseshoe Bend is a principal road within the urban area of the city. His evidence is that the road presently carries approximately 9,000 vehicles per day, and I accept all the evidence that the main source of noise on the site, both now and post- development, will be from traffic volumes on Horseshoe Bend. [35] Mr Davies has said in evidence that the two retail showrooms will stock different merchandise and provide for different customer needs, thus minimising any undesirable increase in pedestrian movement across Horseshoe Bend. [36] I accept on the evidence that he had been for the past 10 years of the operation of the business on the present site a very responsible manager, and when he says that the business will be conducted in this way, I accept his evidence without question. [37] I am satisfied that, notwithstanding the conflicts with the strategic plan, there exists in this case substantial planning grounds to justify the approval, notwithstanding such conflict. In this regard, I also accept the succinct summary set out in Mr Dillon’s report at pages 27 to 28. [38] (b) Community need The evidence about community need for a facility such as this is all one way, and can only be described as overwhelming. The uncontested evidence of Mr Davies and the quite dramatic evidence showing the extraordinary growth in the city since 2003 have been referred to earlier. I also agree with Mr Davies and Mr Ryter that the co-location of both showrooms providing different services is important to this issue. Although more relevant to the issue of community support, the extensive public support for the original proposal is also relevant to the issue of need. The appellant made absolutely no challenge to the evidence on this issue. The need for the development is established and probably could be classified in this case as ‘pressing’ or ‘critical’, thus going well beyond what the authorities say is meant by this concept of need in planning law. [39] These cases are succinctly summarised by Senior Judge Skoien in Harburg Investments Pty Ltd v Brisbane City Council & Anor (2000) QPELR 313 at 317, paragraphs 24 and 25. His observations in paragraph 25 are apposite in this case. [40] As I have noted, there is very significant community support for the project and very little opposition. The new showroom will provide initially employment for local contractors and then will provide for up to three new jobs for local residents. [41] (c) Amenity and character I am satisfied on the uncontested evidence to which earlier reference has been made that the proposed development will not only have no impact on amenity of local residents, but will contribute to the overall character of the streetscape in the vicinity. I refer to the retention of the heritage butcher shop and the nature of the -- 6 of 10 -- 7 mixed use development in the immediate vicinity in particular in this regard. The reduction in size of the building, and the provision for a 13 metre buffer zone with landscaping between the development and the nearest residence in Ferguson Street have greatly reduced impacts brought about by the bulk and height of the original proposed building. [42] Other Issues Removal of character house This issue was not raised at all in the evidence, although it is referred to in the appellant’s written submission. The proposal is that the house will be offered for sale after its removal from the site. Mr Dillon deals with this issue at pages 1 to 17 of his report. Mr Ryter deals with it from paragraphs 5.4 to 5.6 of his report. I accept their evidence. [43] I saw the house on inspection and it certainly didn’t impress me as a house which made an important contribution to the visual character of the local streetscape. It is a humble weatherboard house in Horseshoe Bend. It is not known to be of heritage significance due to any aesthetic, historic, scientific or social value or regional, state or national significance. There are no merits in this ground of appeal. [44] Traffic – noise I have already referred to Mr Holland’s evidence. His evidence establishes that there will be an increase in traffic flows in Ferguson Street between the intersection and the driveway of the new development. I accept his evidence that there will be no discernible adverse effect on amenity for resident in Ferguson Street, and I accept the uncontested evidence of the acoustic expert, David Moore, that because of the overwhelming contribution to background noise, which already comes from traffic flows along Horseshoe Bend, the increases in traffic flows occasioned by this development will have a negligible adverse impact on noise levels. I accept his evidence that the site as developed will not produce unacceptable noise, particularly as the 1.8 metre acoustic fence has been incorporated into the proposal in the truck turning bay. There is no basis for allowing the appeal on traffic or noise grounds. [45] The appellant’s argument that trucks may access the driveway in Ferguson Street from the north is not borne out by the evidence. I accept Mr Davies’ evidence that the trucks will always access the driveway from the Horseshoe Bend intersection for reasons of convenience and commonsense. I see no reason to impose any further condition in relation to this issue. [46] The Appellant’s submissions The appellant tendered copies of Council and Council committee minutes which presumably relate to the relevant issues. These minutes have, of course, been disclosed in pre-trial procedures. The purposes of these documents, presumably, was to show that notwithstanding the recommendation of Council officers, the Council’s Planning and Development Committee recommended to Council to -- 7 of 10 -- 8 approve the application, and it did so at its meeting on the 23rd of September 2003, and subsequently the development was approved, subject to conditions, by the full Council. [47] As Mr Hughes correctly observes, the relevant Council officers, and indeed the committee of Council, did not have the wealth of material that has been placed before this Court, and of course, the proposal has since been modified notwithstanding the approval. The appellant called no evidence to support the alleged views of Council officers, and in these circumstances the weight that I attach to this evidence is negligible. [48] As I have noted, Mr Lightfoot is the only witness who gave evidence on behalf of the appellant. His statement, exhibit 23, is predominantly argumentative. He does not live in the area, nor does he even assert that he is a local resident of Gympie, but I assume that he is. The appellant’s submission in the main harks back to the recommendation of Council officers. Where it purports to contain statements of fact r opinion which are not expressed in exhibit 23 and are not found in other evidence, then I am bound to ignore such statements. An example is paragraph 40. The submission fundamentally fails to appreciate the difference between assertion and evidence. [49] I accept Mr Lightfoot is a lay person, but he clearly has an in-depth understanding of town planning issues and, in the absence of evidence to consider in relation to many of these assertions, these cannot be accepted. There is nothing in the appellant’s material to cause me to alter the view that I have firmly reached, and that is that the appeal is dismissed and I so order. [50] Submitter Appeals I want to say something about submitter appeals in the context of this appeal. The right reserved to objectors to appeal is enshrined in the Integrated Planning Act. However, this is a case which, in my opinion, demonstrates the problems that can arise with such appeals. As I have noted, despite the appellant’s name, not one ratepayer or resident gave evidence in opposition to the proposal. In fact, the contrary was the case. I have no knowledge of how many members make up the appellant’s association, but it clearly does not have the resources to appropriately prosecute an appeal of this nature. This leaves the applicant and the Council in the invidious position of having to conduct expensive and time-consuming litigation in the face of what turned out to be practically no relevant opposition. I anticipate that had the association been properly advised it would have accepted the amended proposal and withdrawn its appeal, thus saving the extensive costs of the last couple of days. There was no proper basis on the evidence to continue the appeal in the face of that response. [51] I recommend that consideration be given to some form of accreditation of submitter appellants to ensure that if these appeals are prosecuted, they are done so in a professional and relevant basis. There may be some preliminary way in which such appeals can be filtered to ensure that the Court’s time is not wasted and the resources of other citizens and local authorities are not thrown away pointlessly. This will need debate and input from a lot of interested people, but this appeal demonstrates clearly, in my view, how the submitter appeal process can lead to real injustice. -- 8 of 10 -- 9 [52] Costs In light of my reasons for judgment, Mr Hughes, on behalf of Mr Davies, applies for costs limited to the costs incurred since the delivery of the amended plans to Mr Lightfoot on 21 April 2004 and the costs of bringing expert witnesses to Court to give evidence. Mr Cochrane applies for costs on behalf of Council as and from 29 April 2004, the day on which, it is accepted, Mr Lightfoot received Mr Dillon’s report. [53] Ordinarily in these appeals each party must bear the party’s own costs of the proceedings. However, section 4.1.23 (2) does provide a discretion to the Court to order costs which the Court considers appropriate in certain circumstances. The subsection to which counsel refer is subsection (b) and that is that the Court considers the proceedings or part of the proceedings to have been frivolous or vexatious. There is no submission make in relation to the proceedings up to the delivery of the amended plans on 21 April 2004. [54] The authorities establish that frivolous means that the appeal had no serious prospects of success. The unchallenged evidence of Mr Hurrey in his affidavit filed by leave this afternoon satisfies me that Mr Lightfoot received a copy of the amended plans at a meeting on 21 April 2004 and, although there was some minor modifications leading up to final plans on 27 April, the appeal proceeded essentially on the basis of the plans delivered on the 21st. I also accept that Mr Lightfoot, on behalf of the applicant, was invited by Mr Hurrey on a number of occasions to drop the appeal or to reduce the issues. [55] Mr Lightfoot elected to give sworn evidence before me this afternoon on the issue of costs. His evidence was difficult to understand and was discursive and lacked credibility. He swears that he received advice from someone that Council officers could not be called as they would be hostile and/or in conflict with their employer. This issue was always central to the objection taken by the appellant originally and to the notice of appeal. It was not raised during the hearing of the appeal. When pressed about this issue he was prepared to name a number of Council officers who he said may have given hum some advice. I don’t believe him. [56] He disclosed that the management committee comprises three people, the president who, during the course of these proceedings, he said, resigned; the secretary, which is him, and his partner Ms Carsen, who is the treasurer, who has been sitting beside him throughout the appeal hearing. He tells me that the association only has 12 members. That such a tiny unrepresentative body can cause so much expense on entirely unmeritorious grounds confirms my earlier views about appeals of this nature. [57] It is quite clear to me that Mr Lightfoot has been on a frolic of his own, but at all time he has presented himself as representing the appellant, and no member of that association has said otherwise. Before I heard his evidence, I was inclined to award costs on the basis that the prosecution of the appeal after delivery of the amended plans was frivolous, but now I am satisfied that it was vexatious. -- 9 of 10 -- 10 [58] I direct that my reasons and the evidence before the Court on this issue of costs be forwarded to the Attorney-General with a view to him deciding if any person should be prosecuted for perjury. [59] I direct that a copy of my corrected reasons be given to each of the parties. [60] I give judgment in terms of the draft order which I have amended slightly to reflect those reasons, which I initial, date today’s date and lodge with the file. [61] The amendment relates to paragraph 4, Mr Hughes and Mr Cochrane, and will be that the appellant pay the costs of the respondent and the co-respondent by election limited to costs incurred as and from 21 April 2004 in relation to the co-respondent and 29 April 2004 in relation to the respondent, including the costs of bringing experts to Court during the hearing, such costs to be agreed or assessed on the standard basis. -- 10 of 10 --