Cambridge & Anor v Logan City Council and Anor [2003] QPEC 58 [2004] QPELR 244

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cambridge & Anor v. Logan City Council and Anor [2003] QPEC 058 PARTIES: P. CAMBRIDGE And G. CAMBRIDGE (Appellants) v. LOGAN CITY COUNCIL (Respondent) And N. WARD (Respondent by election) FILE NO/S: 206 of 2002 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court Brisbane DELIVERED ON: 31 October 2003 DELIVERED AT: Brisbane HEARING DATE: 16-17 September 2003 JUDGE: Robin Q.C., D.C.J. ORDER: Appeal dismissed CATCHWORDS: Adverse submitter appeal against approval of material changes of use of existing backyard tennis court for “home occupation” of coaching – coaching activities had been carried on for years without concern to neighbours – neighbours supported the development application – only objection was by rival tennis centres offering coaching – use did not qualify as home occupation (a use permitted with Council consent) and was assessed as prohibited development – no relevant amenity impacts established COUNSEL: Mr Houston for the respondent Mr N Ward in person Mr P Cambridge in person SOLICITORS: Corrs Chambers Westgarth – respondent Respondent Ward – self represented -- 1 of 22 -- 2 Applicant Cambridge – self represented [1] This is Mr and Mrs Cambridge’s adverse submitter appeal against the Logan City Council’s approval of an application made by Mr Ward for a material change of use – tennis coaching in respect of his 7,556 square metre property at 96-98 Carbrook Road, Cornubia, Lot 2 on RP 225439, Parish of Mackenzie, County of Stanley. The land was vacant when Mr Ward, who is an accredited tennis coach, purchased it. Some nine years ago, he has constructed a residence towards the front of the block, which is about four times as deep as it is wide, and a full size artificial grass tennis court located roughly in the middle of the parcel and oriented across, rather than along the block, so that the base lines are roughly parallel to the side boundaries. [2] For some years Mr Ward has run tennis classes on the court, notably after-school classes for children. His activity generated concern and on or about 15 August 2001 (a date taken from Mr Kumskov’s report) a written complaint was made to the Council about the tennis coaching activity. The City’s current Planning Scheme is a Transitional Planning Scheme for the purposes of the Integrated Planning Act 1997 (IPA). Although it was originally gazetted in 1988, there have been substantial amendments, the Strategic Plan, which constitutes Part 1 of the Planning Scheme having been amended in 1994, and other provisions having been adopted in 1997. The site has Park Residential Area designation on the Strategic Plan map and is included in the Park Residential zone. [3] Pursuant to the complaint, which emanated from a source not identified in the appeal, but is no doubt some person or persons within the professional tennis coaches operating in Logan City, the Council served on Mr Ward a “show cause” notice. From that point Mr Ward, who was self-represented in the appeal, -- 2 of 22 -- 3 acknowledges that he has received only co-operation and assistance from the Council. Council officers assisted him to make his relevant application for “tennis coaching on existing court (home occupation)” lodged on 2 October 2001. The application was accompanied by supporting material indicating Mr Ward’s accreditation by the Australian Tennis Professional Coaches Association Ltd and the acceptability of the way in which coaching had been conducted on the site. Testimonials came from neighbours on both sides – there were signed letters from Mr Goldworthy and Mrs Judd, as well as seven pages of signatures presumably from customers of Mr Ward or their families. [4] A month later the Council received from the appellant, Mrs Cambridge, writing as secretary of Tennis Logan City, on behalf of 11 tennis centres, a “strong objection” to the development application. The grounds include the following: “• Logan residents are already “oversupplied” with tennis centres and coaches with many vacant courts available for use at the times applied for. There are currently 11 tennis facilities offering coaching and other tennis services to the people of Logan and to approve such a use, as a home occupation would further reduce the business viability of legitimate owners and coaches and their employees operating out of existing centres. • We do not believe the application to be in keeping with the aims of local planing policy no 11 not least the reduction of employment within Logan. These type of business operating out of their homes have far less cost overheads and traditionally undercut their cost of service forcing existing tennis coaching businesses to sack casual staff and reduce the times and employment of coaches. • The home activity applied for has been operating for some time and is against the provisions of the town-planning scheme and in total contradiction to ISDAS i.e. the use is in operation without approval and has been so for some time. Tennis Logan City has written to Council seeking immediate closedown due to the illegal use and the detrimental affect these uses have on legitimate tennis business within Logan. -- 3 of 22 -- 4 • The objectors are seriously concerned about the significant negative effect on the value of commercial tennis centres operating as going concerns (including the real estate component) if such activity were approved. … The proposed use, that of tennis coaching in your residential backyard, is a backward step for residents of Logan who already have many existing professional tennis centres eager and able to meet their tennis needs. The below-mentioned centres (objectors) provide amenities such as change-rooms, toilets/showers, car parking, proshop, coaching and fixture programs in a professional environment – it would not be possible to provide these services to the people of Logan through a backyard operation. There are a lot of private, residential, backyard tennis courts within Logan and to create precedence for their commercial use would seriously hinder the commercial viability of the existing, approved tennis centres.” [5] Although it is common experience in this court to encounter litigants who are commercial rivals, it is clear that: “The mere threat of competition to existing businesses, if not accompanied by a prospect of resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.” (per Stephen J, Gibbs, Mason, and Aickin JJ agreeing) in Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675, 687. See also per Barwick CJ at 681.) [6] It happens that there are no existing tennis centres close to the site. The Cambridges’ is some 11 kilometres away. Further, the operators of the other centres have been exposed to the chill wind of competition from Mr Ward for some years already. The success of the development application is most unlikely to lead to any significant increase in coaching activity on the site, in light of conditions imposed by the Council in its Development Permit No. D013064 of 2001, issued to NA Ward. The conditions include that development on the site be generally in accordance with the submitted plan, identification of access as being from Carbrook Road to standards required by the Council’s Director of Development, Health & -- 4 of 22 -- 5 Environment – as is the requirement as to drainage, provision of four on-site car parking spaces to a defined standard, landscaping and maintenance thereof. The general conditions are: “General Conditions 7.1 The hours of operation for tennis coaching shall be restricted to: 7.1.1 Monday to Friday – 3 p.m. to 7.30 p.m. 7.1.2 Saturday – 8 a.m. to 10.30 a.m. 7.2 No more than six students shall attend the site at any one time for the purpose of tennis coaching (for a fee). 7.3 The site shall be maintained in a clean and tidy state. 7.4 The use shall be conducted in such a manner as not to interfere with the amenity of the neighbourhood by reason of noise or otherwise. 7.5 Only the applicant and members of his/her family who are also resident in the dwelling house shall be engaged in the use on the subject site. 7.6 Only one sign not exceeding 1 square metre in face area, depicting only the name and address of the occupier shall be displayed on site. The sign shall be non-illuminated and be located in accordance with the submitted plan undated and unnumbered. 7.7 All lighting shall comply with Section 11.9 (Lighting Nuisance) of Council’s Planning Scheme.” [7] Mrs Cambridge’s letter did include town planning grounds of conventional kinds, and asserted deficiencies in public notification (which were the subject of a ruling by me on 27 August 2003). Mr Ward was given and availed himself of the opportunity of reply. He sent in a letter of Tennis Queensland dated 8 November 2001. This letter was used in the internal planning report prepared to be considered by Council to counter the claims made in Mrs Cambridge’s first “dot point”. That report selected the following highlights: “The Logan Area … is bordering saturation with tennis court utilization … I feel that the Logan area could definitely sustain more tennis courts and I hope that you will consider the suggestions that this group may present to you.” -- 5 of 22 -- 6 [8] Mr Cambridge conducted the appeal in person. He was critical of Mr Ward’s use of the letter, and, in particular, of an alteration in the first paragraph of it: “I writing to you to support this group in their quest to have more tennis courts made available in the Logan community. I can testify that the Logan area, like the Brisbane area, is bordering saturation with tennis court utilization and it would be greatly beneficial to the district if the council was to consider restoring the two courts that currently exist in Cornubia area as well as installing two new courts.” A change was made in ink to strike out “Carbrook” and insert “Cornubia”. It seems to me obvious from other notations on the letter and other documents written by him that Mr Ward made the alteration. I have no idea why he resisted that proposition. It is clear that whole point of using the letter was to show an unsatisfied demand for tennis facilities in Logan. The occasion for writing the letter was not to support Mr Ward’s present development application, but as the last quotation indicates, a different proposal relating to other tennis courts. Mr Cambridge’s understandable concern that the Council might have used the letter (or that the court might use it) as establishing Tennis Queensland’s support for the development application has turned out not to have been of practical importance at all. [9] The spirited exchanges between Mr Cambridge and Mr Ward during the appeal, and particularly during the former’s cross-examination of the latter, were not limited to this one. Whether or not there was any element of misrepresentation to the Council, Mr Cambridge did land a blow (or “hit a winner”) with Exhibit 6, an advertisement to the following effect: “Take the Grand Slam Package We are calling for Expressions of Interest on the following Business plus Residence situated in South East Queensland. This executive style 4 bedroom, 2 story home is in a class of its’ own. On 7556m2 -- 6 of 22 -- 7 manicured parkland, this resort style property also features a full sized professional tennis court. Put this together with an approved professional tennis coaching business, unique private coaching and a large established clientele already in existence [with scope for expansion] and you have a winner. This is a total lifestyle package. Opportunities like this seldom occur.” [10] I was not impressed with Mr Ward’s denial that he had the property on the market, and the subtle distinction he made with calling for expressions of interest. If Mr Ward did have his property on the market, he would face likely disappointment in any attempts to sell the business. Condition 7.5 makes it clear that the permit is personal to Mr Ward and his family, while they are resident on the site. No one else is entitled to be “engaged in the use on the subject site”. Any purchaser would need a new permit. The present one does not run with the land, and for good reason, one might think. The exemplary way in which Mr Ward has conducted the activity is an important feature in its gaining support and approval. A new operator might do things in ways creating unacceptable impacts on residents of the area. [11] Coming to planning issues, this court is in the enviable situation of having evidence from only one expert town planner, Mr Kumskov. The court has reason to be grateful to the Council for going to the expense of engaging Mr Kumskov, who has organised relevant planning provisions in a helpful way and set out his observations and expert opinions clearly. Cross-examination by Mr Cambridge (who, unlike Mr Ward, preferred the “well of the court” and did not face cross-examination himself) confirmed Mr Kumskov’s understanding of and compliance with the court’s guidelines for experts. -- 7 of 22 -- 8 [12] In the Strategic Plan, as Mr Kumskov notes, the site is included in Precinct 2 of the area covered by the Carbrook/Cornubia District Conservation Strategy, which is set out in s.1.15.2 of the Planning Scheme. The objective of Precinct 2 states: “Precinct 2 shall be developed for Park Residential development which retains the integrity of the communities of Melaleuca nodosa.” 1.6.2 Development in Park Residential Areas commences with the Objective that: “The park-like environment of the Park Residential Area shall be protected and enhanced.” and is followed by Policies (a) to (m). These relate to matters such as lot sizes, protecting amenity from noise, glare, light, etcetera and “(c)(ii) the introduction of … non-residential development development; or (iii) … of non-residential generated traffic, visual compatibility of development with the scale and character of existing or future park residential buildings, retention of native trees and vegetation, and requiring applicants to “(g)(ii) plant additional native trees and shrubs endemic to that locality.” [13] Mr Ward’s proposal is unusual, in that the tennis court, fencing and lighting are already in existence. There is no significant new construction. At some stage changes have occurred, such as installation of a few steps leading down to the court, where people might sit to wait or to watch what was going on on the playing area. Mr Kumskov is correct that, since relevant facilities are already in place, what arises from technically applicable provisions such as the Residential Fringe Development Controls discussed in para. 5.5 of his report (Exhibit 4) is “the need to give due consideration generally to matters of noise, amenity and traffic”. I find myself in agreement with the views expressed by Mr Kumskov. -- 8 of 22 -- 9 [14] There is, of course, an issue about the introduction to a Park Residential Area of a traffic and noise generating activity. Mr Cambridge offered estimates from the Bar table as to what earnings of the “business” might be if it operated to permitted capacity; he alluded to the congestion that might occur at times when one group of six being coached was vacating the court upon arrival of the next group. Park Residential Areas are covered by the Residential Fringe Area strategy in the Strategic Plan by 1.6.1(a). The Strategy is intended to facilitate the provision of low density development within a semi-rural environment. In Precinct 2, by 1.15.2.3, development, as well as respecting the Melaleuca nodosa, “must not have a detrimental effect on the amenity and character of the Precinct for Park Residential purposes” - as well as being in accordance with objective and policies in 1.6.2. [15] So far as zoning is concerned, s.2.2 of the Planning Scheme describes a traditional arrangement for development in zones under which appropriate tables indicate whether the development is Permitted, Conditional(ly) Permitted, Permissible or Prohibited. As to the last two, it is provided: “2.2.3 Permissible Development 2.2.3.1 Permissible development is development (other than by way of subdivision) for a purpose specified in column 3 of a table of Development. 2.2.3.2 Permissible development is considered to be compatible with the permitted development and conditional permitted development in the zone where the development:- (a) is compatible with the character and scale of existing or preferred development such that the development can co- exist or be co-joined to produce an acceptable form of development; and (b) complies with the Strategic Plan; and (c) complies with the intent of the zone; and (d) complies with the applicable codes. 2.2.3.3 Premises must not be developed for permissible development without the Council’s approval. -- 9 of 22 -- 10 2.2.4 Prohibited Development 2.2.4.1 Prohibited development is development (other than by way of subdivision) for a purpose specified in column 4 of a table of Development. 2.2.4.2 Prohibited development is considered to be incompatible with the permitted development and conditional permitted development in the zone unless it is demonstrated that the development: - (a) is not contrary or opposed in character to permitted development or conditional permitted development; and (b) is not out of keeping, inappropriate, unbecoming, or out of place in the context of the preferred dominant land uses characterised by permitted development or conditional permitted development; and (c) is not at variance with the character and scale of existing or preferred development to the extent that the prohibited development cannot co-exist or be co-joined to produce an acceptable form of development; and (d) complies with the Strategic Plan; and (e) complies with the intent of the zone; and (f) complies with the applicable codes. 2.2.4.3 Premises must not be developed for prohibited development.” [16] Section 6.1.2(3) of the IPA has the effect that such a prohibition is not absolute, rather “is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.” Relevant Intent provisions are: “4.2.1.1 The Park Residential Zone is intended to provide for:- (a) low density housing in a park-like environment; and (b) the protection of areas of conservation value in accordance with the objectives and policies of the Open Space Area Strategy, the Environmental and Conservation Area Strategy and the relevant District Conservation Strategy; and (c) high levels of residential amenity on lots generally with a minimum area of 5000m2. 4.2.1.2 The park aspect of the Park Residential Zone will be promoted by:- (a) retaining existing native endemic trees and vegetation; and (b) requiring the planting of native trees and shrubs in designated conservation areas as part of the conditions of Council’s approval; and (c) encouraging tree preservation practices; and -- 10 of 22 -- 11 (d) limiting tree clearing to building sites and areas that are required for fire safety and access purposes.” Here, 2.2.4.2 (above) sets out the bases on which prohibited development may be allowed to occur. [17] It will be recalled that Mr Ward applied for a “home occupation” being a Permissible Development. The Council, whether or not complicit in formulating the development application, declined to assess it on that basis (correctly so) because in the definition in Part 13 of the Planning Scheme, namely: “Home Occupation Premises comprising a dwelling unit used for an occupation, industry, hobby, trade or profession (not being a home activity) where the purpose:- (a) is carried out by a person living permanently in the dwelling unit; and (b) does not involve the employment of more than one person not resident on the premises; and (c) does not involve the use of an area (excluding car parking and access ways) of more than 40% of the floor area of the dwelling house, or 60 m2 whichever is the lesser.” paragraph (c) is not satisfied. A tennis court, not to mention other parts of the site that might be used ancillary to the tennis coaching activity, such as a toilet/shower, a waiting area on a back patio available to for students and an office where Mr Ward does the paperwork, comfortably exceeds either 40% of the floor area of the dwelling house or 60 m2. The present circumstances reveal a difficulty in the definition, which those concerned might consider reviewing, since, from some points of view, proposals such as Mr Ward’s which involve use of an excessive area, but are low impact, might readily be seen as coming within ordinary notions of what is a home occupation. Mr Kumskov assessed the proposal as if it were within the definition, which, as he said, was appropriate using a “best fit” approach: “the -- 11 of 22 -- 12 activity would sensibly be accepted as a Home Occupation as opposed to Outdoor Entertainment” (Exhibit 4, para. 6.1). A basic requirement in the Part 13 definition of Outdoor Entertainment is that the use “involves a charge for the admission for use of facilities”. It is somewhat straining things to characterise a fee charged for coaching in that way. [18] One of Mr Cambridge’s principal complaints concerned the trouble that had been gone to to identify some way of fitting Mr Ward’s proposal into Logan City’s planning arrangements. An approach whereby the “best fit” among the uses defined in a planning scheme have to be applied to a proposal whether or not it meets the definition has been expressly disapproved in this court: Russell v Pine Rivers Shire Council (1996) QPELR 241, 244. [19] The issue in the appeal, in which Mr Ward has the responsibility of proving the appeal should be dismissed, rather than Mr Cambridge having the responsibility to show that it should be allowed (see IPA s.4.1.50 (2)) is whether the evidence shows that the onerous requirements to justify a Prohibited Development under s.2.2.4.2 are satisfied. Section 13.1.2.5: “Development for a purpose not defined in s.13.2.2 shall be a permissible development or a prohibited development in accordance with the relevant Table of Development.” makes the Prohibited Development category the relevant one, once home occupation and outdoor entertainment are excluded for reasons indicated above. No one suggested that any other defined use was potentially relevant. The requirements are somewhat more stringent than those under 2.2.3 Permissible Development, which would apply if the definition of home occupation was satisfied. -- 12 of 22 -- 13 [20] This court had the benefit of a view of the site and surrounding locality on the first morning of the appeal hearing. That bears out the conclusion that the 2.2.4.2 Prohibited Development requirements are satisfied. In South East Queensland, tennis courts have long been, and continue to be, a common feature of residential areas, of whatever density, where sufficient room exists to permit one to be established. I do not think it is going too far to say that a tennis court may enhance the amenity of a neighbourhood by preserving open space. It is the use that is made of a particular tennis court which will determine impacts on amenity of the surrounding area. Common experience tells one that this may have nothing whatever to do with whether or not a commercial operation is being conducted. Social tennis may be as rowdy, and last as long into the night, and generate as much traffic activity as a small scale coaching or court hiring enterprise. The opportunity the development application created for the Council to impose conditions limiting the scale and intensity of the use tends to limit the impacts. It has to be recognised that the potential for non-business use of the tennis court remains unrestricted. The important point is that the coaching activities are not likely to generate different or significantly greater impacts. [21] While the spirit of tennis courts probably conjures up favourable responses in most Australians, given such national enthusiasm as there is for the game, the visual impact of a particular tennis court will depend on the way in which it presents to the public. There is nothing untoward about Mr Ward’s. It is discretely located behind and below his house. While it can be seen from the footpath in front of the house next door, that requires the viewer’s going to some trouble to select the appropriate sightline. -- 13 of 22 -- 14 [22] It is convenient to note and comment briefly on the disputed issues in the appeal, which were identified by this court’s order of 8 August 2003 as those in the Notice of Appeal, except for para. 11 (which concerned public notification): “1. The approval is contrary to the objective set out in 1.5.2 of the LCPS (Logan City Planning Scheme) in that it does not protect and enhance the physical attractiveness and amenity of the surrounding residential area. (a) the development detrimentally affects privacy in the use and enjoyment of the surrounding residential lots; (b) The development will intensify the lawful use which will have a detrimental effect on the residential area; (c) The approval fails to provide landscaping or other treatment to adequately buffer and screen the surrounding residential land from the activities of the tennis coaching and noise thereof.” Comment 1.5.2 deals with Residential Areas indicated on the Strategic Plan map, not with the relevant Residential Fringe Area Strategy in s.1.6. That aside, the view confirms that (c) is wrong and that the acceptance by neighbours of matters comprehended in (a), (b) and (c) is justified. Physically, the “development” is already there; if the conditions are complied with, whether the use has hitherto been lawful or not, it will not intensify. [23] Ground 2: “The approval is contrary to the performance objectives of the LCPS in that: (a) It fails to ensure adequate landscaped buffer areas are provided to protect the residential amenity from residential uses. i.e. commercial tennis centre activities and associated uses. (b) The use and approval compromises or detrimentally affects the amenity of the location. -- 14 of 22 -- 15 (c) The proposed material change of use is not of a type, scale and character that are compatible with residential development in this R1 area.” Comment The assertions in (a), (b) and (c) are factually wrong. I agree with Mr Kumskov that it is unlikely that the provision of tennis coaching lessons to children on a backyard tennis court is a type of non-residential development contemplated in the stated Performance Objectives in 4.9: “4.9 Development Controls for Non Residential Development 4.9.1 Performance Objectives 4.9.1.1 To ensure the height, scale, and character of non-residential development is sympathetic to the height and scale of adjacent development. 4.9.1.2 To ensure adequate landscaped buffer areas are provided to protect residential amenity from non-residential development and associated activities. 4.9.1.3 To ensure non-residential development does not compromise or detrimentally affect the amenity of the locality.” However, nothing about the nature, scale or character of the activity conflicts with the desired outcomes with regard to the protection of residential amenity. [24] Ground 3: “The number of on site car parking spaces is insufficient for the proposed uses on site and the car parking requirements does not accord with Logan City Council Local Planning Policy – Off Street Vehicle Parking Requirements.” Mr Kumskov’s comments are pertinent: “The conditions of the approval call for the provision of 4 off street parking spaces. This is considered adequate for the proposed use having regard to the scale of operations and limited student numbers. -- 15 of 22 -- 16 Section 11.5 of the Planning Scheme sets out the minimum requirements for parking and access. There are no specific requirements in this section with regard to Home Occupations. However, 4 spaces per court is a requirement for Outdoor Entertainment, which includes public tennis courts. The location and layout of the 4 parking spaces at the front of the site enables vehicles to enter and exit in a forward gear. There is no need for onsite queuing of vehicles, as the likely incidence of a vehicle entering and leaving at the same time is very low. In any event traffic flows on Carbrook Road are very low which enables the entering vehicle to queue on the roadside if another vehicle is existing. On the day of my inspection there was only one car parked on the site. Parents most often will drop off their children and then return at the end of the class. It is also typical for parents to work out a roster and share the “taxi” role on alternate weeks.” [25] Ground 4: “The proposal is likely to result in an adverse impact on the amenity of the surrounding residential area. (a) The approval is contrary to Local Planning Policy No 11 (HOME OCCUPATIONS) adopted 16 December 1997 in respect of 11.11.12.1(a) (b) (d) (e) (f); 11.11.12.2; 2.1.1.1; 2.2.2.; 2.3.1. (b) The application does not satisfy the Logan Council’s Policy Provisions of Local Planning Policy No 11 (Home Occupations) in respect of; 1.1.2.2; 2.1.1.1; 2.1.2.1(g).” Comment 11.11.12 is found in the Local City Planning Scheme (rather than in the Local Planning policy referred to, which became Exhibit 2B). It provides: “11.11.12.1 Development for the purpose of a home occupation will not be approved by the Council where the activity:- (a) generates traffic or visitors to the premises in excess of that ordinarily generated in that locality; or (b) causes a public or private nuisance; or (c) involves the display and retail sale of goods on the premises except where those goods are made on the premises; or (d) generates excessive noise; or -- 16 of 22 -- 17 (e) is otherwise likely to cause a disruption to residential amenity; or (f) relates to or involves a real estate office, medical practice, car depot, contractors yard, hire business, or the repair and maintenance of motor vehicles. 11.11.12.2 Development must comply with the relevant Local Planning Policy.” [26] I reject any contention that the proposed use offends in the ways listed in 11.11.12. Here, of course, an exercise is being engaged in of ensuring that the proposed use, while not a Home Occupation, complies with requirements that would prevail if it were. I agree with Mr Kumskov’s comments regarding the Local Planning Policy provisions identified in the Notice of Appeal: “133. With reference to section 2.1.1.1 of LPP No 11, the use of an existing backyard tennis court for the purpose of coaching children is not seen as the intrusion of an incompatible use. Section 2.1.2.1 more particularly outlines the nature and scale of operations that are considered to be incompatible development. 134. The proposed use for coaching tennis on the existing court will be subordinate to the predominant use of the premises for a residential dwelling unit [refer section 2.2.2.1]. 135. The signage does not intrude into the residential character of the streetscape [refer section 2.3.1]. 136. The type scale and character of the proposed use will not have a detrimental impact on the amenity of the area [1.1.2.2]. The adjoining owners were afforded the opportunity to express any concerns in this regard. The neighbours rather than object, submitted letters in support of the application. 137. The use is not considered to be an incompatible use in this locality as referred to in paragraph 133 above. 138. It is inappropriate to suggest the proposed use is a hire business as expressed in section 2.1.2.1(g) of LPP no 11.” (The evidence was to the contrary). [27] In similar vein, Mr Kumskov’s assessment of the following grounds of appeal is compelling: -- 17 of 22 -- 18 “Disputed Issue 5 – The application does not comply with the provisions of 2.2.3.1; 2.2.3.2; 2.2.3.3; 2.5.2.2; of Local Planning Policy no 11 of LCPS 139. There is no conflict between the proposed use and the intent of section 2.2. as expressed by reference to sections 2.2.1.1 and 2.2.2.1 of LPP No 11. 140. With regard to section 2.2.3.2, the Council required the provision of 4 parking spaces. Again, it is suggested that this provision should be read in the context of the proposed use. The parking area once sealed and landscaped will not detract from the residential area or the streetscape. It should also be noted that the use is not a high traffic generator or one that demands high turnover parking areas. The provision of 4 spaces is seen more one of convenience than necessity. 141. Noise from the proposed use is not likely to cause annoyance to the neighbours [2.5.2.2]. 142. A detailed noise assessment has not been made and in my opinion is not required. Activity levels will vary as will the noise from the children. However, having regard to the hours of operation and proximity of the adjoining houses, neither is likely to cause a nuisance. In this regard, the neighbours have not expressed any concerns with respect to noise levels from the activities, which have been conducted on the site for some time. Disputed Issue 6 – The application does not comply with the provisions of 2.56.3.1; 2.5.3.2; 2.5.3.3 of Local Planning Policy No 11 of LCPS 143. There is no conflict with the intention of section 2.5 as expressed in sections 2.5.1.1, 2.5.2.1 and 2.5.2.2 of LPP No 11. 144. In any event, the hours of operation have been set in the conditions having regard to periods of maximum need and demand with regard to the timing of tennis lessons. 145. The neighbours by reference to their letters of support submitted with the application, do not consider the coaching classes as being a source of nuisance and there is no likely cause or contributory factors from the coaching of children that will cause a risk to the local community. Disputed Issue 7 – The application does not comply with the provisions of 2.7.3.3; 2.7.3.5 of Local Planning Policy No 11 of LCPS -- 18 of 22 -- 19 146. The proposed use does not cause any conflict with the stated objective and performance criteria expressed in sections 2.7.1 and 2.7.2 respectively of LPP No 11. 147. The access to the tennis court reflects the nature of the use. It is low key and low impact. All visitors to the site must pass by the dwelling house. This arrangement is considered acceptable in the circumstances of this application and the nature of the use. Disputed issue 8 – The application does not comply with the provisions of 3.1.1.1(a), (b), (c), (d), (e) and 3.1.2.1(I) of Local Planning Policy No 11 of LCPS 148. In respect of sections 3.1.1.1(a)-(e), the development application complied with the requires of the Integrated Planning Act 1997, and was accepted by the Assessment Manager. 149. Section 3.1.2.1(I) in fact recognises that alternative hours of operation may be appropriate having regard to the particular application and the circumstances of the proposed use.” [28] Disputed Issue 9 is: “The plan submitted by the applicant and accepted by the respondent in respect of the application is unclear or defined to show detail as to the application.” The hand-drawn plan is comprehensive, Mr Kumskov said unusually so. The only criticism Mr Cambridge persisted in was in respect of the location indicated for one of the neighbouring houses, which is shown slightly out of place. Nothing turns on this. [29] Disputed Issue 10 was: “The approval is contrary to LCPS requirements 11.11.12”. This effectively repeats Ground 4(a), once that is seen as truly referring to the Planning Scheme. -- 19 of 22 -- 20 [30] Ground 12 is: “Signage is not in accordance with Council policy and as to 2.3.3.3 of Local Planning Policy No 11.” The provisions as to signage commence: “2.3 SIGNAGE 2.3.1 Performance Objectives 2.3.1.1. To ensure that signage does not intrude into the residential character of the streetscape 2.3.2 Performance Criteria 2.3.2.1 Signage must be visually unobtrusive and not detract from the visual amenity of a residential or rural streetscape 2.3.3 Acceptance Design Solutions 2.3.3.1 Only one sign is erected 2.3.3.2 The sign displays only the business name or name of the occupier and the occupation 2.3.3.3 The sign above ground level measured to the top of the sign and does not exceed 0.3m² in area 2.3.3.4 Signage should not be moving , flashing, illuminated or audible” [31] The Council’s planning report (13 October 2001) gave details of the sign: “A sign is erected at the front of the property, which reads “Elite Tennis Coaching – 96-98 Carbrook Road”. The sign is made out of timber, is 2.4 metres wide with posts approximately 1 metre high. Landscaping surrounds the base of the sign. The face area of the sign panel is less than 1 square metre (400mm x. 2.4 metres). The signage is considered acceptable and complies with Local Planning Policy No 10 (Guidelines for the Design and Siting of Signs and Advertisement Hoardings).” The court’s view confirms that assessment. [32] Acceptable design solutions are not promulgated as the only means of satisfying performance objectives or performance criteria. It is not demonstrated in the appeal that acceptable design solutions were not met; even if they are not, the performance objectives and performance criteria have been. [33] The last ground of appeal is: -- 20 of 22 -- 21 “With respect to the conditions listed in the approval, conditions 7.2; 5.1 are vague and uncertain.” Comment Condition 5.1, set out above in para. [6] contains sufficient detail, in my opinion, and cannot be regarded as vague or uncertain. Likewise, Condition 7.2, set out in the same para. I find myself in agreement with Mr Kumskov once again: “155. In simple terms this means that no more than 6 students are permitted to be in attendance on the site for coaching lessons. It is conceivable that one or more students from an earlier class may still be on the site if their parents are delayed and the next class arrives. However, it seems unlikely this would be seen as being a breach of the condition. The purpose of the condition is to limit class sizes to a maximum of 6 students. In my opinion condition 7.2 adequately expresses this requirement.” [34] Although there never was evidence in this regard, Mr Cambridge, who took measurements in the course of the view, appeared to contend that the dimensions of the car park are too small. If that is the case, then Mr Ward must comply with the Council’s condition – something he is yet to do in respect of paving or sealing the car park. This consideration does not affect the appeal. On the view Mr Cambridge raised some concern regarding a change room/shower/toilet, located at one corner of the residence, and accessible from outside the residence by a door marked “TOILET”. This is a facility available for use by those attending for tennis coaching, if needed. (The lessons last only an hour.) This aspect seems to me to raise no relevant consideration in the appeal. [35] It might be noted that the proposed use is limited to coaching and matters strictly ancillary, such as access to the court and use of the toilet. Nothing is sold, neither tennis equipment nor refreshments. -- 21 of 22 -- 22 [36] The only evidence Mr Cambridge presented was an affidavit of Mr Ayles, a representative of Tennis Queensland to the effect that the organisation (which I infer is a large voluntary group pursuing the private interests of members and affiliates) only supports developments incorporating a minimum of four tennis courts (like the Cambridges’) and has never supported Mr Ward’s proposal for his site. I regard this material as part of the “unfair competition” argument, which, for reasons indicated in paragraph [5] above, is of no assistance to the appellants. [37] Mr Cambridge evinced considerable interest in the details of the business, as to whether Mr Ward had a ABN (Australian Business Number) and what was done with regard to the Goods and Services Tax. Exchanges about aspects of this kind illustrated the friction that exists between the two individual protagonists in the appeal but, of course, were irrelevant to this court’s task.. My view is that, within reason, it is important that self-represented litigants be allowed a certain leeway, and not made to feel that arguments they consider it important to make in advancing their cases are not allowed to be ventilated at all. [38] Mr and Mrs Cambridge’s appeal must be dismissed. -- 22 of 22 --