Brisbane Wharves & Wool Dumping Pty Ltd, Conaust Ltd & Anor v Brisbane City Council & Anor [1993] QPEC 56 (1994) QPLR 1

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 9 of 1993 Before Quirk DCJ [Brisbane Wharves & Anor. v. B.C.C. & Anor] BE1'WEEN: BRISBANE WHARVES & WOOL DUMPING PTY. LTD. ) CONAUST LTD. and P&O AUSTRALIA LTD. Appellants - and - ) BRISBANE CITY COUNCIL Respondent - and - BRETTS WHARVES AND STEVEDORING PTY. LTD. Respondent by Election REASONS FOR JUDGMENT ) Judgment delivered: 01/07/1993 ) Catchwords: Counsel: Solicitors: Hearing Date(s): C Hughes for the Appellant J Haydon for the Respondent D Gore QC with T Kirk for the Respondent by Election Flower and D M Clarke Mallesons Respondent Hart for the Appellant for the Respondent Stephen Jaques for by Election 27-30th April, 4th, 5th May 1993 the -- 1 of 15 -- IN IH.t: PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE P & E Appeal No. 9 of 1993 BETWEEN: BRISBANE WHARVES & WOOL DUMPING PTY. LTD. CONAUST LTD. and P&O AUSTRALIA LTD. Appellants BRISBANE CITY COUNCIL Res2ondent BRETTS WHARVES & STEVEDORING CO. PTY. LIMITED Respondent by Election C P & E Appeal No. 13 of 1993 ( BETWEEN: PETER HAROLD GODSALL A!)pellant BRISBANE CITY COUNCIL Respondent BRETTS WHARVES & STEVEDORING CO. PTY. LIMITED Respondent by Election REA~ONS_f_QR JUDGMENT - QUIRK D.C.J. Delivered the .9-~.Y of June 1993 These appeals, heard together by consent, are by objectors against an approval by the respondent of an application to rezone land on the river at Hamilton from the Waterfront Activities Zone to Particular Development Zonings which would enable the land's development for residential and (to a minor extent) (l -- 2 of 15 -- ) ) ) ) 2 commercial use. The first appeal (9/1993) is by parties who are involved in waterfront activities on land which is also on the Hamilton reach of the river but located some distance to the east of the subject land. The second appeal is by a resident of Langside Road at Hamilton. The land which has a total area of 23,650 square metres has frontage to Kingsford Smith Drive, Harbour Road and the river. For many years it has been the site of a complex known as Brett's Wharves which provided 3 berths for marine cargo handling and loading at the western end of the Hamilton reach. Along the river, adjoining the subject land to the east, is land (in Government ownership) upon which the Hamilton Cold Stores and Associated Wharves were located and occupied approximately 240 metres of river frontage. This facility is now inactive and the structures on the land (which are fairly substantial) are derelict in appearance. Further to the east lies the waterfront land upon which the appellants' activities are conducted. In general, land to the east of the subject land and to the south of Kingsford Smith Drive is zoned and used for industrial, commercial and other non-residential purposes. The proposal is to redevelop the subject land into a medium density residential development with a lirni ted area of commercial use at the western end where a relatively large area of the site has been set aside as open space. Three higher buildings (7 to 10 storeys) are located to the rear of the site with a number of lower buildings (2 storeys) nearer to the river bank. A continuous line of buildings along the water's edge has been -- 3 of 15 -- 3 avoided with appropriate interruption to building form and a view of the river from Racecourse Road has been provided. When the City of Brisbane had its beg innings waterfront activity {in ·the sense of the handling of marine cargo) established in the city reaches. With the passage of time, an increase in the size of ships and in the sophistication (and cost of establishment) of cargo handling facilities, there has been a progressive shift in focus of port activity downstream. Port facilities in the city and Newstead reaches have closed. I was ( informed in evidence that, in recent years, the usage of Brett's Wharves (which were established in the 1930's) has declined to the financial detriment of the operator, the respondent by ( election in these proceedings. The redevelopment of the land for other purposes has been under consideration for a number of years. The Port of Brisbane (and the tidal reaches of the river) is under the control of a statutory authority, the Port of Brisbane Authority. In 1974 the Authority put forward a ( Strategic Plan, a key element of which was the proposal to locate the Port to Fisherman Island. A further expression of the ( Authority's strategy in the administration of the Port was contained in the "Key Port Brisbane" publication which was approved by the Government in 1993. This strategy has in mind that: "Relocation of the Port's facilities at Hamilton should be completed by the year 2005 with the exception of a cruise liner terminal which could integrate with other commercial and residential developments in the area". The publication points out: -- 4 of 15 -- ) ) ) ) 4 "there has been a gradual move of the Port down river a~ay from the City area, largely in recognition of the trend to larger vessels and the need to provide expensive cargo handling terminals. Also, relocation of cargo handling operations away from Hamilton will eventuate as a result of growing pressure for commercial and residential redevelopment of the area. In addition, transport logistics to and from the upriver wharves are becoming more difficult because of traffic congestion and the trend is for more industries to locate on the southside of the river". Objection to the reception in evidence of these matters was made by the appe 1 lants. It was argued that the Court was concerned with the determination of what was essentially a planning matter and the express strategies of the Port of Brisbane Authority have never been adopted by the Brisbane City Council and have not been exhibited for objection and public comment as would be required in the case of comparable instruments of the Planning Authority. Why the Planning Authority should make it its business to adopt expressions of strategy of another statutory authority is not entirely clear. It is true that these documents were not exhibited for public comment as are planning instruments but there is no requirement that they should be and I do not see how that detracts from their relevance or weight. If the Court is to consider (from the point of view of community interest}, the need to retain land in a particular area for Port purposes, surely it is relevant (if not essential) that it has regard to what the authority statutorily entrust~d with the administration of the Port of Brisbane has to say on the matter. However I accept the appellant's argument that this evidence should not be used as a basis for any conclusion that the appellants' activities on this land will cease at any -- 5 of 15 -- 5 particular time. The evidence indicates a right on the part of the appellants to occupy the land for approximately another 25 years and does not justify any conjecture as to whether they will remain active for that long or for any longer time. The evidence regarding future development of the Port of Brisbane did lend some support to the approach taken by the town planning consultants who spoke in favour of the proposal, Mr. Conway (called by the respondent) and Mr. Brannock (called by the respondent by election), who saw this area as one which is "in transition" as a result of the demise of the Hami 1 ton Cold ( Stores and the apparent under utilisation of the area's land and facilities. This also appears to be consistent with the attitude of the ( planning authority which, over a number of years, has contemplated in what appears to have been a positive way, redevelopment of this area of the City. The preparation of a "Hamilton Wharves reveloprnent Plan" \.'-:is cor-,r:-.enced and although such a plan has not achieved the status of a formal planning document, this toget'ber with favourable responses to requests for 0 consideration in principle to redevelopment of the area and the decision to approve this application make it clear that the (' planning authority sees the future development of this part of the Hamilton reach being for other than waterfront activity and the introduction of residential development into the area as a probability. The proposed development was seen by both Mr. Conway and Mr. Brannock as a very desirable form of redevelopment of the subject land which, because of its convenient location and waterfront -- 6 of 15 -- 6 position, offers an attractive opportunity for residential use. The importance of the river to the community as open space and the added fact that·this land is at a point where visitors to Brisbane arriving from the airport obtain their first view of the river and the city area beyond, called for very careful attention in the design and layout of the proposal. Mr. Conway accepted that the proposal had successfully met this challenge and I adopt his description of it; "The design places emphasis upon a parklike setting for the residential towers and a 'green edge' to the river. Pedestrian access to the water's edge has been incorporated along the full length of the site in the form of a public promenade. In addition a large area at the western end of the site has been set aside as open space. This will allow for a view of the river from Racecourse Road and a convenient corridor for pedestrians from Racecourse Road to the river's edge". He concluded that the proposal would "make a significant contribution to the City of Brisbane by returning the river~s edge to public usage". The matter which appears to me to be important to the determination of the appeal is whether or not the proposal would probably lead to the appellants being inhibited in the lawful use of its land in accordance with its zoning. There was some talk of a "reverse impact" situation existing here in as much as it is not said that the proposal will give rise to disturbance to other landholders. Whether or not that is so, it seems to me that a better way of approaching the matter is to accept that proper town planning requires that a town planning scheme should give rise to expectations as to the way in which particular land may be used so that commitments in regard to tenure, building, plant, equipment and other -- 7 of 15 -- 7 "infrastructure" can be made with confidence. This obviously sensible notion lies behind many of the objectives of the Town Plan to which the Court's attention was drawn in the course of the hearing. In town planning arguments raised against the proposal, attention was drawn to a number of provisions of the Town Plan which, it was contended,called for the protection of existing development from the establishment of adjacent new development and an ensuring that industrial and commercial areas are secure against ( development on adjacent land. A formally adopted policy (7.19) refers to the undesirability of the establishment of new residential areas immediately adjacent to existing or committed( non-residential uses. A debate as to whether the word "adjacent" should be understood as being equivalent to "adjoining" developed. Ref ere nee was made to the "structure plan" which, quite understandably, calls for the "consolidation of industrial areas". However it is difficult to see how the redevelopment ofo this land, which is on the western extremity of the Hamilton waterfront/industrial area would give rise to fragmentation orO would otherwise work against a proper consolidation of industrial areas. The appropriate separation of residential and industrial uses is, by no means, a novel concept in town planning and one does not need to rely on a narrow reading of the Town Plan to find support for it. To decide whether there would be appropriate separation of the proposal and the appellant's activities in this case docs not call for an exercise in -- 8 of 15 -- 8 semantics, but requires a careful examination of the proposal and the consequences of its introduction into the area. Expert evidence in relation to these matters was given and must be looked at. The activities in which the appellants are involved give rise to the creation of quite a deal of noise which cannot be easily avoided. cargo and the The operation of machinery, the handling of movement of vehicles are essential to these activities. An examination of the appellants' operations and an assessment of their likely impact (in relation to noise) upon the proposed development was made by two consulting engineers expert in that field. Mr. Winders was called by the respondents by election and Mr. Manser gave evidence for the appellants. Each adopted a different approach to their assessment and, perhaps not surprisingly, reached differing conclusions. Mr. Winders used an environmental noise model to anticipate peak noise levels at the proposed development while Mr. Manser based his conclusions upon measurements of particular activities on the appellants' site which he then projected to what was believed would be the nearest receptor location on the subject land. Some of the readings taken by Mr. Manser's assistant and the imposition of tonal penalties in respect of those readings were questioned with apparent justification. It was suggested, also with some evident validity, that Mr. Manser's approach in projecting his readings to what were essentially minimum separation distances, produced results which were not really representative or helpful in gaining a balanced impression of the -- 9 of 15 -- 9 impact of activities taking place on the appellants' land (which stretched a considerable distance to the east} and the proposed development (which is to be distributed over a considerable area of land to the \,test). The extremities of each site are separated by a distance of approximately 2 kilometres. Mr. Winders explained that his method of relying on the environmental noise model led to a better appreciation of likely 11 barrier and ground" effects, matters which do not appear to be adequately considered by Mr. Manser' s approach. Such effects would be likely to result from the presence of the cold store buildings on the land separating the subject land and the appellants' land which, on the evidence given, will probably not Q be redeveloped for some considerable time. Mr. Winders also doubted the appropriateness, in an assessment of this kind, of a comparison of intrusive noise to background noise levels and pointed out that such an approach did not appear to be part of the relevant standard. He preferred a method which, he explained, is generally employed when noise sources from transport related activities are being examined. Perhaps most significantly, it seems to me that Mr. Winders' C conclusions in favour of the proposal are supported by the 1:elevance of a number of matters which are specified by the provisions of the Noise Abatement Act (s.6(2)) as matters to which regard must be had in forming an opinion as to whether a noise is excessive noise. Among these matters the following appears: "The nature of the lawful uses permitted for premises in the neighbourhood of the premises from which the noise is emitted and the dates of establishment of particular lawful uses; -- 10 of 15 -- 10 The number of complaints received concerning the alleged excessive noise; Other noises ordinarily present in the neighbourhood of the premises from which the noise is emitted; If the complaint on which the person required to form the opinion impacting has been made by an owner of an occupier of premises who has become such owner or occupier at a date subsequent to the date when the noise complained of first came to be admitted, the action taken in relation to such prerotses to limit the effect of noise emitted from other premises in the neighbourhood." It was submitted by the legal representatives of the respondent by election, that these paragraphs of the relevant legislation make relevant to the examination of any complaint in respect of noise; 11 1. The fact that the P & o Wharves were established first. 2. The absence to date of any noise complaint relating to the P & o Wharves. 3. Traffic noise on Kingsford Smith Drive and elsewhere. 4. Action taken in the design of the Brett's development to limit the effect of the earlier established P & o Wharves." On a consideration of the evidence given in relation to this aspect of the appeal, I pref er the view of Mr. Winders and accept that: "Provided the appellants' activities do not become no1s1er than at present, it is unlikely that a complaint from a future resident of Brett's Wharves development would result in the appellants' activities being constrained by the appropriate authority to solely satisfy a Brett's Wharves residents' complaint." A consideration of likely disturbance to residents of the proposed development by floodlighting of the appellants' activities was made by Mr. Manser and by Mr. van Oosten (on behalf of the respondent by election). As the evidence on this topic unfolded, the debate appeared to narrow itself to a dispute about the impact of the luminous intensity created at the -- 11 of 15 -- 11 appellants' premises during what were referred to as "curfew hours" (11 p.m. - 6 a.m.). Each of the expert witnesses were prepared to consider the matter by reference to a set of draft standards for "The obtrusive effects of outdoor lighting" which is expected to be issued for public review in the near future, but which is yet to gain statutory force. Leaving aside some criticisms by Mr. van Oosten of Mr. Manser's approach in carrying out the necessary calculations, the € former was prepared to concede that, in terms of luminous intensity, the present lighting arrangements on the appellants' premises would exceed the limit set by the draft standards to an C extent which, on first impression, y;ould seem substantial. However, in so doing, he made two points which appear to be of importance. In relative terms, the luminous intensity created,on the appellants' wharves is not remarkably high when compared to levels commonly encountered in everyday life (street lighting on major roads 'was given as an example) . In Mr. van Oosten, s opinion, the existing lighting arrangements, even if unaltered, would by no means be certain to provoke complaint from the subject land. Secondly, Mr. van Costen was of opinion that a rearrangement of the light sources (which would be neither complex nor costly) on the appellants' land could achieve results which would be acceptable for all concerned. Mr. Manser initially appeared to have some doubts about this and expressed concern as to whether the light could be rearranged and still provide sufficient Q -- 12 of 15 -- 12 lighting at various elevations to enable all necessary aspects of loading operations to be carried out but, in cross-examination on the matter, he could not rule out the possibility of this being achieved. After a consideration of this evidence, I am prepared to accept the opinion of Mr. van Costen that light from the appellants' wharves would not present such serious and unavoidable problems for the proposed development as would lead to unreasonable pressures being placed upon the appellants in their operations. Certain cargoes handled from time to time at the appellants' wharves can give rise to dust creation and offensive odours particularly if wind conditions are adverse. However dust monitoring which is presently conducted at premises close to the subject land suggests that air quality levels are within acceptable limits for residential amenity. While the area is not presently a residential one, many people nevertheless resort to it for business and other purposes. The creation of unhealthy or otherwise unacceptable levels of odour or dust would hardly be regarded as desirable whether this development proceeds or not. Mr. Winders appeared to be of the view that dusty or odorous cargoes should be handled at the most easterly berths and this would avoid any serious difficulties. Any suggestion that this was impractical was not advanced. On the evidence given in the appeal I am satisfied that the creation of dust or odour during the appellants' operations is not a matter which calls for the proposal's rejection. -- 13 of 15 -- 13 The respondent by election made the point in evidence and in submissions that its own operations had not, over a long period, provoked serious reaction from residents living at Hamilton within distances comparable to those which would separate the proposal from the appellants' wharves. I have no difficulty in accepting this evidence but I feel cautious in relying upon it to draw any conclusion as to the likelihood of any disturbance to the proposed development. Circumstances would be different and the relevant differences have not, in my view been adequately explored. I prefer to rely on the Town planning and Engineering opinion that has been given as to the adequacy of the distance that would separate the appellants' activities C and the proposal. I am satisfied on the evidence that there would be sufficient separation and, having regard to the evident attitude of those in control of the adjoining "Cold Stores" land, (notwithstanding its zoning) the probabilities are that it will continue to be provided. In summary, on the evidence given, I am satisfied that; 1.In view of demonstrated changes in the pattern of land ( usage for waterfront activity, a redevelopment of this land for other than waterfront activity is not contrary to the public interest. 2.The form of development here proposed is a suitable form of development for the subject land and it would be in the public interest that a rezoning to permit it proceed. 3. The appellants' interests in remaining free to conduct its activities on its land in accordance with the land's zoning are -- 14 of 15 -- 14 entitled to protection but there would be sufficient separation between the proposed development and the appellant's activities to preclude justified pressures upon the appellants' freedom to conduct those activities. 4.The proposal does not offend the objectives of the Town Plan which seek to safeguard the interests of those legitimately engaged in industrial and waterfront activity. On the whole of the evidence, I am satisfied that the onus of showing that the proposal should be approved has been discharged and the appeals are accordingly dismissed. -- 15 of 15 --