Drivetype Pty Ltd v Council of the Shire of Caboolture & Ors [1994] QPEC 74

. ' I J. . J ; 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 AND ENVIRONMENT COURT SENIOR JUDGE SKOIEN p & E Appeal No 151 of 1994 DRIVETYPE PTY LTD and COUNCIL OF THE SHIRE OF CABOOLTURE and DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT and J HIRST BRISBANE .. DATE 09/11 /94 JUDGMENT 1 Appellant Respondent First Respondent by Election second Respondent by Election . , .J(J()(J "fr/t'phonc: ({} 7) 227 -1360. J,;1csimifr: (fl7) 227 5532 -Ith Floor, Tht· J,:nr Courts, (;corgi• Strt·t·t, JJn.-;Jmm. Q. -- 1 of 12 -- 091194 T 1/SA M/T CMS160/94 (Skoien DCJ) HIS HONOUR: For the reasons I publish, I am dismissing the appeal. 2 JUDGMENT , 3G , 40 : , 50 I ,_.l -- 2 of 12 -- J-4-113 IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 151 of 1994 Before His Honour Senior Judge Skoien [Drivetype Pty. Ltd. v. Council of the Shire of Caboolture & Anor. 1 BETWEEN: DRIVETYPE PTY. LTD. Appellant COUNCIL OF THE SHIRE OF CABOOLTURE Respondent AND: DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT Judgment delivered: Counsel: Solicitors: Hearing Date(s): Respondent by Election REASONS FOR JUDGMENT 9 November, 1994 Mr T.N. Trotter for the Appellant Mr S.M. Ure for the Respondent Mr J.A.M. Innes for the Respondent by Election Messrs Barker Gosling Solicitors for the Appellant Messrs King and Co Solicitor for the Respondent Crown Solicitor for the Respondent by Election 31 October, 1994 to 2 November, 1994 -- -- 3 of 12 -- IN THE PLANNING f ENVIRONMENT COURT HELP AT BRISBANE QUEENSLAND No. 1 s1 of J99f p BETWEEN: DRIYETYPE PTY. LTD. Appellant COUNCIL OF THE SHIRE OF CABOOLTURE Respondent DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT Respendent by Election REASONS FOR JUDGMENT SKOIEN S.J.D.C. Delivered the Ninth day of November, 1994 This is an appeal against the Council's refusal of Drivetype's application to rezone la~d. The respondent by election (D.O.T.) was an objector to the application. The Proposal The application, made on 15 March 1994, was to rezone part (3,440 square metres) of an allotment of land containing 2 hectares on Morayfield Road, Burpengary, from the Rural Residential A zone to the Special Facilities (Service Station and General Store) zone. It was proposed to leave the balance of the allotment in the Rural Residential A zone. The application attracted six objections. On 10 May 1994 the Council refused the appeal and Drivetype then appealed to this Court. Drivetype's intention is to build a modern service station with an associated general or convenience store with a floor area of less than 100 square metres. The business would be conducted -- 4 of 12 -- .i by a related company, National Oil Pty. Ltd., which would operate it 24 hours a day, 7 days a week. The site is on the Caboolture- bound side of Morayfield Road and the proposed premises are intended to cater only for traffic heading in that direction. For convenience sake I will treat the road as running north-south and the site as being on the western side of it. The Site and Locality The site is rectangular and is at the road frontage. A narrow strip beside it would provide access to the balance of the rural residential allotment which would then be battleaxe shaped. The site is low-lying and subject to flooding in, it seems, anything more than a one in two year flood, so it is proposed to use fill to raise the level of the site by more than a metre. Morayfield Road is one of the main roads giving access from Brisbane {via the Bruce Highway) to Burpengary, Morayfield and Caboolture. The Shire is rapidly growing so the volume of traffic past the site, now about 8,000 vehicles a day towards Caboolture, is likely to increase accordingly. Burpengary township lies a couple of kilometres south of the site. Morayfield lies a few kilometres to the north. With the exception of a few allotments all of the land between the two townships on the west of Morayfield Road is zoned Rural Residential A and for the most part each lot (of 2 - 5 hectares) has a house on it. On the eastern side of the road between the two townships the land is zoned either Rural Residential B or Rural Residential A. Much of that Rural Residential B land (including the large area opposite the site) is vacant land, heavily timbered. -- 5 of 12 -- Indeed as the zoning and land use maps show the great bulk of the land to the north, south, east and west of the site is in one of the Rural Residential zones and is either in present rural residential use or is as yet not built on. The only different uses on Morayfield Road in the vicinity are a church some 250 metres to the south of the site and a fruit and vegetable stall some 500 metres to the north. Further to the north are two nurseries and in nearby areas to the west of the road are a cattery and kennel and a couple of nurseries. The amenity in the area between Burpengary and Morayfield is thus almost entirely rural residential or vacant bushland. The grounds of rejection of the application and the grounds on which this appeal was fought can be summarised as relating to traffic, flooding, need, town planning considerations, noise and light. Questions of amenity are relevant to the last three of those grounds. Traffic This can be dealt with shortly. It is a matter in which the D.O.T. is vitally interested but which, on the production of a list of conditions {exhibit 14), became resolved because Drivetype accepts those conditions. No other party has suggested that, if the requirements of the O.O.T. are met, any traffic problems will be posed by the development. Flooding Quite a lot of evidence was led on this topic, both from expert engineers and local residents. While they differed on points of detail the engineers, Mrs Campbell and Mr Tite,were in general agreement that a design could be produced to ensure that the flooding characteristics after the construction of the -- 6 of 12 -- J service station and the filling of the site would be no worse than now exist. That design would also have to achieve a "not worse" effect on water passing over Morayf ield Road, a matter in which the D.O.T. has a continuing vital interest. It obviously is a matter which at this stage, given the engineers' confidence, is not critical to the appeal. That engineering design would involve drainage work on the land of Mrs Hirst, an objector whose land abuts the site to the north. At this stage her attitude is that she and her husband would not permit it to occur. While that would seem at first blush to be the end of the matter, it may not necessarily be so. No formal approach has yet been made to Mr and Mrs Hirst. Negotiations may achieve their consent. I must not pre-judge the result of such negotiations. See Walker v. Noosa Shire Council (1983) 2 Qd.R. 86. So the question of flooding can be put aside for the moment. ~ I am satisfied that the general convenience of the overall community within the Shire would be enhanced by the establishment of these premises. That follows from the unchallenged evidence of Mr Hodge who has expertise in investigating the commercial prospects of proposed service stations on sites such as this. Need, in the relevant sense, is thus established. Town Planning Considerations There are very weighty town planning arguments against this application. At present the neighbouring area is quiet, peaceful and rural, albeit with a residential component. That is so despite the presence of busy Morayfield Road. All of the objectors gave acceptable evidence which accorded with that -- 7 of 12 -- description and they emphasised the i mportance of that amenity to them. The proposed use would attract a substantial amount of the passing traffic (perhaps 400 vehicles a day) from the road onto the site. The site, which is presently the vacant front portion of an occupied rural residential lot, .would house an obvious service station. It would be clearly visible by day and brightly lit at night. I will discuss its lighting and noise later. For the moment I simply observe that it would be clearly visible and must, from time to time emit noise. That is not within the perception of the area which was, and is, actually held by the objectors. In my opinion that perception is a validly held one even though the light and noise might not actually create a nuisance. See Broad v. Brisbane City Council and Baptist Union of Australia (1986) 2 Qd.R. 317. At p. 326 de Jersey J. said:- "There is no doubt that the _concept of amenity is wide and flexible. In my view it aay in a particular case embrace not only the effect of a place on the senses but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one's perception of amenity:" The planning documents support those actual perceptions. As this site is within a rural residential area, the residents perceptions can validly be measured against the provisions of the Town Planning Scheme for such an area. In December 1991 the Council duly made the use of land for a service station a prohibited use in both Rural Residential A and B zones. That was a statement by the responsible planning authority that a service station (which is by far the more important component of this proposal) is considered incompatible with the rural residential zones. Its establishment would be an unreasonable commercial or non-residential intrusion into the residential area. Compare -- 8 of 12 -- vanglow Ptv, Ltd. v. council of the Shire of Albert (1991) Q.P.L.R. 68 at 71-2. I also consider that the Strategic Plan conflicts with this application. If that is so, then unless there are sufficient planning grounds to justify the application despite the conflict, the application must be refused. See Local Government (Planning and Environment) Act. 1989, s.4.4(5A). The designation for Rural Residential areas in the Strategic Plan says:- " (a) . . . land uses in these areas will be essentially of a residential nature, however other areas . . which complement the lifestyle and do not impact on the residential amenity of the area will be preferred." In my opinion this service station cannot be said to complement the rural residential lifestyle. Uses which might be seen to do that could include such things as a church, a creche and the like. I see a service station as affecting adversely the residential amenity for reasons I have mentioned. I am attracted to the planning approach of-- the Shire's planning officer Hr Matheson which is to emphasise the necessity of reading the Strategic Plan as a whole. That is not to say that one goes in search of an isolated statement anywhere in the document which, when taken out of context, might support an argument. Such a search, in most planning schemes, could unearth support for almost any argument. If, however, a statement can be found which clearly sets out a fundamental principle of the planning scheme and which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document. -- 9 of 12 -- 7 This scheme gives a good example of that proposition. In the "Residential Areas" section, objective a is expressed "to preserve the individual identity of the townships throughout the Shire and the way that is to be implemented is set out thus: "(a) In accordance with the Strategic Land Use Plan Map, the residential area of the individual townships throughout the Shire shall be prevented from merging • . . . . The visual break between the townships shall be maintained by the development of land being limited to the preservation of a mix of rural uses and rural residential development to maintain a visually open rural character. The areas of immediate concern are . . and Morayfield townships. . those between Burpengary (b} The development of commercial and industrial activities between individual townships will not be perrni tted, to ensure that the visible break between the townships and the open rural character is maintained. The areas of immediate concern are . . between Burpengary and Morayf ield townships . " . . . It is difficult to imagine a more specific statement that a commercial development such as this should not occur. Arguments also turned on the effect of the Open Space Areas components of the strategic Plan. Except to say that these arguments were much less immediately compelling than those relating to the residential areas, I do not intend to refer to them. The express words of the residential use implementation which I quoted seem to me to distinguish this case from The Shell -- 10 of 12 -- §. company of Australia ttd, y, Gold coast City Council (1993) Q.P.L.R. 293, especially at 295-6. Noise and Light The evidence of Mr Rumble as to noise and Mr Winders as to light was each careful and persuasive. It demonstrated that there is unlikely to be escape of unreasonably disturbing noise or light from the premises if developed and operating. The fact remains of course that there ■ ust be occasional loud noise from a service station, especially in the early morning hours and while light from it (and from the road outside it) might not actually increase the light in a resident's house it would be clearly visible as a bright pool of light. Amenity It is my clear conclusion that a commercial use such as this would be a complete and obvious departure from the rural residential nature of the existing amenity, an amenity which on the evidence the residents value and are anxious to preserve. The importance of preserving the reasonably held perception of amenity held by residents is emphasised by Broad, supra. It is not to the point to say that the service station/shop would not often detrimentally affect the lifestyle of the residents because of its noise or light. The fact is that noise and light from the site would occasionally do that to an extent they would not suffer if the site remained part of a rural residential lot. More importantly however, these residents have had a reasonable expectation of living in a rural residential, non-commercial area, and that expectation (or amenity) should, on the facts of this case, be preserved. -- 11 of 12 -- 2. I am encouraged that, though the facts no doubt were slightly different, Row D.C.J.'s decision in Vanglow, supra, seems to be in sympathy with mine. Conclusion On the two grounds of conflict with proper planning principles and amenity I dismiss the appeal. -- 12 of 12 --