Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2004] QPEC 8

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2004] QPEC 008 PARTIES: BODY CORPORATE FOR KELLY’S BEACH RESORT Appellant v BURNETT SHIRE COUNCIL Respondent And KEITH RAWLE & ORS Co-Respondents FILE NO/S: Appeal No 1 of 2002 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Bundaberg DELIVERED ON: 29 April 2004 DELIVERED AT: Brisbane HEARING DATE: 16, 24 April 2004 JUDGE: Skoien SJDC ORDER: Order as per initialled amended draft CATCHWORDS: Conditions concerning noise amenity. COUNSEL: Mr C L Hughes SC for the appellant Mr M Hinson SC for the respondent Mr S Kelliher for all co-respondents SOLICITORS: Payne Butler & Lans for the appellant Connor O’Meara for the respondent [1] On 2 July 2003 I delivered my reasons for deciding that this appeal should be allowed and adjourned the matter to allow the parties to try to agree all appropriate conditions of the proposed development. [2] The appellant and the Council have agreed on conditions which they have incorporated in a draft order. The co-respondents accept all but four of them; those -- 1 of 4 -- 2 numbered 4(a)(ii), 14(b)(i), 31(a) and para 6(c) of the proposed Site Management Plan. Effectively they all relate to the potential effect of noise to be created by the activities to be carried out on the site on the amenity of nearby residents. Condition 4(a)(ii) [3] This proposed condition allows three coaches to be parked on the site other than for the months of June, July and August (the busier period when four coaches may be parked there). At the hearing it was envisaged that only two would be parked on site over the balance nine month period. [4] Although the reason for the parking of the extra coach was not explained to me I assume that there must be one which the appellant sees as important. In any event what I must consider is not the reason for, but the effect of, the parking of the extra coach. [5] I cannot see that any adverse effect will flow from it. Coaches will enter the site at its northern end and depart at its southern end. An unbroken 2.4 metre high acoustic fence will run between the entry and exit points. The expert accoustic evidence at the hearing was that such a fence will reduce to quite tolerable levels noise which the buses will make within the site. Coaches will be parked within the site. Their start up time is severely limited by other conditions. So any noise created by a coach at its parking position will be tolerable. Of the greatest importance is the fact that condition 4(c) strictly limits the number of coach movements during the relevant nine months to 56 one way movements per week and 16 per day and there is no dispute about the condition. It follows that no extra noise will be created in any event by the extra parked coach. The proposed condition is reasonable. -- 2 of 4 -- 3 Condition 14(b)(i) [6] This condition requires that the function room will cease operation at 10 pm daily except that on two nights of every week (excluding Sunday) it will cease at 11 pm. [7] Mr Hughes’ submission was that it is likely that the extra hour will only be sought on Fridays or Saturdays, nights on which most neighbourhoods experience noise until later at night. Added to that is the fact that most people are able to sleep in on Saturdays and Sundays. [8] In my view it is reasonable to permit the extra hour twice a week, but I amend the condition to restrict that to Fridays and Saturdays. Condition 31(a) [9] This proposed condition is precisely as drawn by Mr King, an expert acoustic engineer. In his report of 8 April 2004, supported by his affidavit, he says that the criteria are those commonly applied in cases like these, are practicable and in his opinion suitable. There is no evidence to the contrary and the condition will remain as drafted by the appellant and the Council. Site Management, Plan clause 6(c) [10] The appellant now accepts the submission of the co-respondents that alcohol should not be served in the outdoor dining area after 9.30 pm. I will amend the clause accordingly. -- 3 of 4 -- 4 Conclusion [11] I will initial the draft judgment, incorporating the two amendments, and it will be the judgment of the court. -- 4 of 4 --