Fauce & Fauce v Pine Rivers Shire Council & Ors [1992] QPEC 36

) ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND LG. Appeal No. 72 of 1991 BETWEEN: AND: AND; GIOVANNI LA FAUCE and SUSAN MAREE LA FAUCE Appellants PINE RIVERS SHIRE COUNCIL Respondents JOHN DOUGLASS and DINAH DOUGLASS Respondents by Election REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the ,)_ (, day of ..JiJ>JE 1992 ) This is an appeal by Giovanni La Fauce and Susan Maree La Fauce against the refusal of the Pine Rivers Shire Council of their application to use their land described as Lot 46 on R.P. No. 132691 County of Stanley Parish of Bunya located at 15 Strathford Avenue, Albany Creek(" the land") for the purpose of conducting swimming lessons. The land contains 938 square metres and is presently used for a residence and a shed in which a pool is located. Eleven Objections to the proposal and seventeen letters of support were -- 1 of 11 -- 2 received by the Respondent. The location of these persons is illustrated in Figure 3 accompanying the report of Mr Ryter, the Town Planning Consultant who gave evidence on behalf of the Respondent. Generally speaking, the Objectors are in the immediate vicinity of the land and encircle it, and the supporters are further away, in Strathford Avenue and Old N orthem Road. The shed on the land, which comprises a floor area of 118 square metres and is of besser block construction with a metal roof, was the subject of the Respondent's Permit No. 900335 issued on 7 March, 1990. The approved Plan is Plan 1401 prepared by Chermside Drafting Service dated November 1989, and is for a "Proposed Pool Enclosure" with a proposed area of 104.7 square metres. It shows a Floor Plan with dimensions of 15100 x 7800, and a 12 metres x 5 metres pool. The Town Planning Scheme of the Respondent was amended on 8 March, 1990 whereby domestic storage and recreation structures in excess of 100 square metres of gross floor area on allotments between 750 and 1000 square metres require town planning consent in the Residential O A" Zone. An application to build a swimming pool was lodged with the Respondent on 16 March, 1989 and the permit to build it issued on 5 May 1989. It was agreed that if the use is approved, it will be necessary for the Appellants to make a further application for permission to build a toilets and change rooms block of approximately 24 square metres. The Application for town planning consent states that the nature of the proposed use is "conducting swimming lessons" and the hours of operation are " 7AM to 7 PM": these worm have been crossed out and replaced with pencilled words " 7 am - 2 pm and 5 pm - 7 pm". The application did not refer to the number of children to be taught, nor their ages. -- 2 of 11 -- 3 The Respondent's Shire Planner prepared a report for the Respondent for a meeting on 6 February 1991. This report recommended approval, subject to conditions. Condition 11 states: "The use shall not operate on Christmas Day, Good Friday, nor before 12.00 noon on Anzac Day. The IBe shall only be permitted between 8.30 a.m. and 2.30 p.m.and 3.30 p.m. and 6.00 p.m. Monday to Friday. The use shall not operate on Saturdays and Sundays." The Respondent did not adopt the Shire Planner's recommendations, and refused the application on the ground that the proposal will detrimentally affect the residential amenity of the area. The Respondent presented evidence during the course of the Appeal, principally through Mr Ryter, a Town Planning Consultant it engaged. His views differed from those expressed in the Shire Planner's report to the Council. The Appellants adopted the Shire Planner's recommended conditions, and during the course of the Appeal it became clear that they are agreeable to further conditions. The land is included in the Residential "A" Zone in the Respondent's Town Planning Scheme. The Statement of Intent for this Zone is as follows: "The Residential A zone is intended to accommodate low density residential development predominantly in the form of single family detached dwellings to the general exclusion of other types of land use. It is intended that uses other than low density residential development will only be permitted where residential amenity can be maintained. Duplex dwellings and cluster housing developments ... It is intended that support facilities may be allowed within Residential A areas in appropriate locations and subject to development criteria ensuring a satisfactory form of development compatible with low density residential living''. While the proposal may be of some benefit to some persons in the area, and may be of some general community benefit, I do not consider it falls within -- 3 of 11 -- 4 the term "support facilities", for the reaons advanced by Mr. Ryter. The Respondent's Town Planning Scheme includes a definition of "Home Occupation", which includes any premises used for any of the purposes included in Appendix 6. Appendix 6 includes a tennis court but does not include a swimming pool. The Scheme also includes a definition of "Intensive recreation", which includes: "Any premises used for the purpose of the watching of practising of, receiving or giving of instruction, or taking part in, whether for recreation or otherwise, any sport or form of athletics indoors, or otherwise included in but not limited to Appendix 7, where the activity is conducted as a business undertaking, or is an activity organised or controlled by a club or organisation, whether for fee or reward or otherwise." Appendix 7 includes "Swimming". If further states that the term does not include a home occupation. Mr Ryter contended that the proposal falls within "intensive recreation", and is thus a prohibited use in the Residential "A" Zone. Miss Roughen, the Town Planning Consultant who gave evidence on behalf of the Appellants, contended that the proposal falls within "home occupation". I find that the proposal falls within "intensive recreation" in the Respondent's Scheme, and is thus prohibited. I have reached this view after careful consideration of all the evidence, including the Shire Planner's report and the history of the Respondent's dealing with the application as a home occupation. I can see no warrant for Miss Roughen's contention that "the terminology utilised in this definition ("intensive recreation") implies that it is intended to include substantially high order, fully commercialised recreational activities which are intensive both in terms of scale of facilities provided and the number of people involved in the use". I do not agree with her that the proposal involves a "small pool similar in size to a typical -- 4 of 11 -- 5 residential backyard pool". She conceded that rmder the proposal the pool will be used more frequently than a domestic pool. If the proposal falls within "home occupation", then I consider that it does not satisfy paragraph (v) of this definition which provides that the floor area not exceed more than one third of the total floor area of the detached house, except with the consent of the Cmmcil. Mr Ryter gave unchallenged evidence that with the toilet and change room block, the floor area will be 49% .I consider that there is insufficient evidence to justify relaxation. I am not satisfied that the floor area requirement ought to be relaxed because I consider that the proposal will detrimentally affect the amenity of the locality, for the reasons I now propose to discuss. I reject Miss Roughen's view that it follows from the use of the word "permissible" in the home occupation definition, that it is "therefore an appropriate use". Amenity: The Respondents by Election called evidence from four residents in the immediate vicinity of the land. They spoke of unacceptable noise, loss of privacy, and change of character of the area. The Statement of Intent for the Residential "A" Zone requires that "uses other than low density residential development will only be permitted where residential amenity can be maintained." It thus becomes necessary to determine whether the proposal maintains residential amenity. Miss Roughen agreed with Mr Ryter's description that the land is "perceived as part of an intact residential area characterised by good quality, modern residences, and which is free from intrusion from any commercial or non residential uses". A number of specific amenity issues were raised: noise, visual intrusion, -- 5 of 11 -- 6 traffic. Noise: The Respondent called Mr Kamst, an Environmental Consultant who is an experienced Acoustic Engineer, and he spoke to his report. He measured existing noise levels, in the absence of swimming lessons, from the backyard of 18 Old Northern Road. Using a computer mode4 he predicted maximum noise levels due to conducting swimming classes at neighbours' residences. He concluded that these would exceed the levels permitted by Australian Standard 1055-1989, unless various measures were introduced. These measures included dos~ both windows and the door, the installation of a ceiling and closing off the air gap, and consequential mechanical ventilation or air conditioning. He considered that the shed is presently quite reverberant, and this is consistent with the evidence given by a number of neighbours. He conceded in cross-examination that his estimated noise levels were based on assumptions about the nature of swimming lessons, especially shouting of instructions and the use of a radio, and on information supplied to him by neighbours, although he also used his own judgment. He conceded that it was possible that the descriptions of the noise generated by swimming lessons given to him might be exaggerated. He advised the Court that if his proposed noise and ventilation measures were introduced, then the proposal becomes acceptable from a noise point of view. Mr Ryter considered, and I accept, that the residents facing Old Northern Road use their backyard more because their front yards are affected by traffic noise generated by that Road. This is relevant to an assessment of the amenity impact of the proposal on these residences. -- 6 of 11 -- 7 Mr and Mrs La Fauce gave evidence, and showed a video, describing and illustrating the nature of the swimming lessons they propose to give, which they described as "drown-proofing" rather than squad training. They are prepared to accept the Shire Planner's recommended condition that there be only three people (children) at any one time. They are also prepared to provide for breaks between lessons. They explained that the children Mrs La Fauce proposes to teach are from 3 months to 5 years, and this will limit the swimming activities in which they are able to engage. She will use modem swimming teaching methods which avoid trauma to children and in her experience there is never any yelling out. She accepts the condition recommended by the Shire Planner that there be no public address system, use of whistles or clapping. They considered that the noise from the proposed lessons would be less than the noise presently generated by the use of the pool by their two children, and visiting friends and relatives. I accept that the present use, the enjoyment of the pool by the Appellants and their guests, does generate noise for neighbours, and that this may be considered part of the ordinary currency of family life and living in the suburbs. The appellants agreed to the erection of screening fences around the land but these will not necessarily have noise attenuation advantages. They propose that the hours of operation will be limited to specific hours during the day only and not on weekends, when some of the neighbours (including their immediate side neighbours) are at work. Miss Roughen stressed that many of the Objections were directed to noise on weekends, early mornings and at night. This is true, but it is also true that there was evidence that some of the neighbours do not work and are at home during the day. In any event, there may be changes in the circumstances of the neighbours, and indeed in the neighbours themselves. Traffic: -- 7 of 11 -- 8 Mr Avent, a Traffic Engineer, prepared a report concerning traffic matters on behalf of the Appeliants. He used the Australian Model Code for Residential Development (AMCORD) Guideliness to opine that Strathford Avenue can accommodate about 100 vehicles per hour. He conceded that Amcord deals with "green street development". Strathford Avenue presently has a low level of traffic: about 325 vehicles per day. The worst scenario he envisaged generated by the proposal would be 204 vehicles per day. He considered a realistic figure·would be 100 vehicles per day. This compares with a figure of 6 vehicles per day for a normal household. He conceded that amenity must be judged by Town Planners: his report and evidence deals with traffic engineering and capacity. I therefore treat the conclusions in his report in this light. The proposal calls for three car parking spaces, at the front of the lancL which is consistent with the Shire Planner's recommended condition. Mr Ryter considered the amenity implications of Mr Avent's predictions of traffic volumes. He opined that these levels would be unacceptable from a town planning viewpoint. I consider that Miss Roughen placed too much emphasis on the increased noise levels for Strathford Avenue as a whole, rather than the impact of traffic volumes concentrated on just one residence, and the impact this would have on its immediate neighbours. I consider she also over-emphasized the mitigating effects of screen fencing and landscaping, and the fact that the Andretti house has only one window on the common boundary. On this issue, I prefer the evidence of Mr Ryter. I consider that the traffic generated by the proposal will have an unacceptable impact on the amenity of the area. The coming and going of vehcles will make it clear to residents of -- 8 of 11 -- 9 the area that a non-residential use has been introduced. Visual impact: It is clear from the evidence that the Objectors are dismayed that the Respondent permitted the she~ and find its appearance unacceptable. However, as Counsel for the Appellants stressed, this Appeal is about use of Ian~ not the construction of a building. Mr Ryter conceded that the shed is permitted, and will remain. He considered that the additional toilet/change room block of some 24 square metres will add to the unacceptable visual impact of the proposal. It will mean a total floor area of 142 square metres which from a town planning viewpoint would not be expected in the backyard of a Residential "A" block of less than 1,000 square metres. I accept the evidence of Miss Roughen that approval could incorporate conditions requiring screen fencing, treatment of external building walls and landscaping that will substantially improve the visual impact of the existing building. However, as Mr. Andretti put it, the carparking ''will transform the front yard from a residential looking property into one which has a commercial feel or character". I find that the proposal, especially the three car parking spaces to the front of the land, will have a detrimental visual impact on the amenity of the area. Character of the area: As Mrs Wishy put it, "the activity associated with the swimming pool will change the residential nature and character of the area and introduce a -- 9 of 11 -- commercial feeling". I note that there is no evidence that the Appellants will financially benefit to any great extent, and that they may have motives behind the proposal which are commrmity-minded. However, I consider that this does not alter the fact that from a town planning viewpoint, the proposal is of a commercial nature. Miss Roughen conceded that commercial activities will be discernible. Findings: The proposal will detrimentally impact on the amenity of the area in terms of traffic intrusion (including noise therefrom) and visual impact. Noise impact on amenity can only be made acceptable by the imposition of a wide range of conditions. The proposal will change the character of the area by introducing a non-residential use of a commercial character. Strategic Plan: Mr Ryter also referred to Objective 1 in Part A of the Respondent's Strategic Plan, which states :"to enhance the amenity of existing and proposed urban areas". He agreed that the provision of swimming lessons may be of some benefit to some residents, but considered that this does not satisfy the test required by the Objective, especially when one considers the potential detrimental impacts on the immediately adjoining residents in the area. In view of my findings concerning amenity, it follows that the proposal is in conflict with the Respondent's Strategic Plan. The Appellants have failed to discharge their burden of proving that the proposal ought to be approved. -- 10 of 11 -- 11 I accordingly dismiss the Appeal. -- 11 of 11 --