Benjule Consultancy Services Pty Ltd v Mulgrave Shire Council [1993] QPEC 2

IN THE PLANNING & ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND P. & E. Appeal No. 30 of 1992 (Cairns Registry) BETWEEN: BENJULE CONSULTANCY SERVICES PTY LTD Applicant THE MULGRAVE SHIRE COUNCIL Respondent REASONS FOR JUDGMENT - O'SULLIVAN, D.C.J. Delivered the J_',-#:.., day of ),l,iv.;_,~\..,a 1993 This is an Appeal against the refusal of an application to use premises located at 39 Jamieson Street, Trinity Beach ("the residence") for the purpose of "Flood lights for novelty-½ size tennis court" ("the proposal"). The respondent gave as its reason for refusal that the flood lighting of the tennis court would adversely impact on the amenity of the surrounding residences. The disputed issue in the appeal is amenity, particularly light and noise. It was not in dispute at the hearing of the appeal that the proposal falls within the definition of "Outdoor Entertainment" in the Respondent's Town Planning Scheme as it comes within "Tennis courts (for commercial use or when artificially lit)". The residence is within the Residential "B" Zone in the Respondent's Town Planning Scheme. In that Zone, "Outdoor -- 1 of 7 -- 2 Entertainment" is a purpose for which buildings or other structures may be erected or used or for which land be used only with the consent of Council. Under the Respondent's Town Planning Scheme, tennis courts and swimming pools are considered ancillary uses to residences, and thus do not require the consent of the Respondent. It is thus clear that as a matter of law the Appellant does not require consent for a tennis court, but it does require consent for the court to be artificially lit. This distinction was not appreciated by some of the Objectors to the proposal. There were five Objections to the proposal. The Objectors include all the immediate neighbours. Their grounds for objection are summarized, and considered, in the report 6f Mr. Edmonds, the Development Control Officer of the Respondent. They include the disputed issues in the appeal, noise, light glare, unnecessary disturbance, invasion of privacy and hours of use. Two of the Objectors gave evidence, Mrs. Hope and Mr. Meyer. The tennis court is located on the property at 39 Jamieson Street, but there is no access to it from that property. Access is via 30 Peterson Street, the property owned by Mrs. Stevens, a shareholder and director of the Appellant. It is surrounded on three sides by a 3.5 metre chain wire fence. A timber fence 1.8 metres in height is located inside the chain wire fence. The area enclosing the court has dimensions of approximately 11.8 metres by 20.1 metres with a grass verge of approximately 2.1 to -- 2 of 7 -- 3 2.8 metres in width located between the edge of the court and the surrounding fence. The tennis court occupies the entire width of the property on which it is located. There are two 500 watt lights currently proposed, in positions they had prior to being dismantled. are on the Peterson Street side of the court. did not specify the type of lighting. These positions The application In his oral evidence Mr. Stevens, a shareholder and director of the Appellant, made it clear that the Appellant would agree to a condition of approval that the lights be moved so that they faced Peterson Street: indeed, he would prefer them there. They had only been installed facing Jamieson Street on the advices of an electrician. Mr. Edmonds described Jamieson Street as "a quiet residential street with low traffic and suitable for families to live in a peaceful, well vegetated residential setting". Mr. Hardy, the Town Planning Consultant engaged by the Appellant, agreed in cross-examination that the area is well-treed, picturesque and quiet. Mr. Stevens did not agree that it is a quiet neighbourhood - he said that there are lots of children and parties. Mr. Edmonds considered that the allotments are not large enough to allow sufficient distance to separate built forms upon adjoining allotments or to allow the provision of appropriate -- 3 of 7 -- 4 landscaping to screen noise and light associated with the use of the tennis court at night. I accept this evidence. Mr. Edmonds noted that there appears to be little appropriate landscaping to sufficiently screen noise and light from sightlines of adjoining residences. The application did not include any landscaping or growing of foliage, nor was any suggested by Mr. Hardy in his report. In his oral evidence Mr. Hardy agreed with the suggestion of shade cloth or canvas. No details were provided in evidence. Mrs. Hope, the nearest neighbour, considered it would be awful to look at it. Mr. Edmonds acknowledged that the shade cloth would be likely to reduce the light problem to an acceptable level but he considered it would not be appealing in terms of amenity and would also prevent breezes blowing through. I find that the proposed shade cloth or canvas is not in keeping with the vegetated amenity of the area, and in any event I am not satisfied on the evidence that it will be effective in solving the problems of which the neighbours spoke. In his report Mr. Hardy suggested: "the lighting to be used shall be shielded and located to ensure that no direct light shall fall outside the boundary of the subject site in accordance with the Council's requirements". The evidence did not disclose any Council requirements, and no details were provided of the means to be used to satisfy this goal. -- 4 of 7 -- 5 In his report Mr. Hardy referred to "times commensurate with the residential nature of the adjoining uses", and in his oral evidence he elaborated that this might mean to 10.00p.m. each night. Mr. Edmonds considered that the proposal would generate unacceptable noise. He referred to particular noises, including the ball bouncing on the surface, squeaking of tennis shoes, the movement of players, noise associated with calling out the score and shots played. His report also referred to noise from the balls against the walls, but I find that this problem may be solved by the proposed use of an inside net draped inside the fence to catch the balls before they hit the fence. Mr. Edmonds considered that residents in this area would not expect night tennis. He said that there are no tennis courts in the surrounding locality. Mr. Hardy considered they would expect tennis courts, as ancillary to a domestic building and there is the potential of including a recreational use associated with a dwelling for night-time use. He acknowledged that they might not expect to see uncontrolled night tennis, but he suggested controls be placed on the approval. It must be borne in mind that artificial lighting of tennis courts is a separate use under the Respondent's Town Planning Scheme. -- 5 of 7 -- 6 r consider that the reasonable expectations of residents in this Residential "B" Zone would be that lighting would not·be approved for tennis courts. rt emerged late in the hearing of the appeal that the appellant would accept an approval limited to two nights per week. This restriction was not included in the application, nor Mr. Hardy's report, nor Mr. Stevens' evidence. Mr. Edmonds said that even with the proposed collection of conditions the proposal would still disturb the existing and likely future residential amenity in the area. He also felt that the proposed conditions are reasonably impractical. The rear of the residence of Mr. and Mrs. Hope is approximately 15 metres from the edge of the tennis court. There is currently a clear line of sight from the rooms at the back of her home to the tennis court. Mrs. Hope was concerned about light and noise. She explained in evidence that it is not just the actual noise of the tennis but the loud noise and excitement that goes with the playing of tennis. She complained of not being able to lead a normal life in her own home. Some of her concerns related to matters other than the playing of tennis, and I consider that some of the noise of which she spoke may occur even if night tennis were not played. -- 6 of 7 -- 7 Both Mrs. Hope and Mr. Meyer gave evidence of the noise problems they had encountered during the period the tennis court had been used at night. Mr. Meyer lives two doors down in Jamieson Street. He spoke of being unable to watch television in comfort. He contrasted the noise from night tennis with noise from other activities such as children playing, and people using barbecues and swimming pools. I find that the lights on the tennis court will facilitate activities and noise at a level which is unacceptable at night. On the whole of the evidence, I find that lighting and noise from the proposal will have an unacceptable impact on the amenity of the area. The various conditions proposed by the Appellant may reduce this impact, but I consider it will still be at an unacceptable level. The Appellant has failed to discharge its onus of proving that the Application ought to be approved. I accordingly dismiss the Appeal. -- 7 of 7 --