Colefax Clayton Smith Pty Ltd v Council of the Shire of Mulgrave [1991] QPEC 28

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE L.G.A. No. 20 of 1989 QUEENSLAND BETWEEN: COLEFAX CLAYTON SMITH PTY. LTD. Appellant AND: COUNCIL OF THE SHIRE OF MULGRAVE Respondent REASONS FOR JUDGMENT - QUIRK; D.C.J. This appeal arises out of a refusal by the respondent of an application to rezone an allotment fronting the Holloway's Beach access road from the Residential A zone to the Special Facilities ( Light Industry, excluding Motor Workshops and Panelbeaters) zone. The allotment is rectangular in shape, has a frontage of ) approximately 1 00 metres, a depth of approximately 200 metres and an area of a little over 2 hectares. At the rear or northern boundary there is a drainage easement of approximately 20 metres _; in width to allow for the dispersal of stormwater from the subject and surrounding land. Land adjoining the west and north is included in the Residential A zone and conventional residential subdivisions are there in place. To the east, an allotment was some years ago included in a Special Facilities zone to permit a form of development which has not eventuated. The rezoning is to enable the land to be developed as a Light Industrial complex which was conceptualised in a plan put -- 1 of 5 -- 2 before me showing five parallel buildings each having vehicular access and loading areas to the front with carparking at the rear. Some provision is made for landscaping around the boundaries of the site. The major justification put forward for a change in the zoning of the subject land was that, in relatively recent times, the area has been afflicted by a dramatic increase in the occurrence of aircraft noise. The Cairns International airport has experienced considerable growth in the volume of air traffic in recent years added to which has been an extension ( in a northerly direction towards Holloway's Beach) of 1.25 kilometres to the main runway. Evidence in the form of written reports was adduced without objection to show the adverse effects of aircraft noise on the residential amenity of the area. That these ill effects are considerable was not a matter that was challenged. Indeed Mr. Peter Robinson, the respondent's town planning consultant, was quite ready to concede that further intensification of residential development on the subject land would be inappropriate. There was a relatively large body of objection to the proposal from nearby residents and others. The concerns expressed by these objectors focussed upon the adverse effects upon their residential amenity that the introduction of industrial uses on to this land might have. Some of these objectors gave evidence to explain their opposition to the proposal. I was told that, notwithstanding aircraft noise, allotments adjoining to the west were providing their inhabitants -- 2 of 5 -- 3 with quite an acceptable place in which to live. One resident called by the appellant informed me that he was not opposed to the proposal. Some evidence was directed to the difficulties that might arise because of the added vehicular traffic that the proposal might bring to the area, but it did not show that these problems were such as to warrant the proposal's rejection. There was a good deal of discussion in the course of the appeal about the existing and projected need for further industrial land in this part of the Shire. Mr. Robinson, who has had extensive experience of planning in the area, conceded that there is likely to be increased pressure for some light industry ( in the popularly understood sense) opportunities in the northern beaches area. He doubted, however, that this need could be said to justify a proposal on this scale at this location. He added that the proposed designation for the zoning was inappropriate in that the definition of "light industry" in the Town Planning Scheme would not admit "additional land use categories that are considered warranted to serve Holloway's Beach". These matters were, however, relatively peripheral to the point that emerged as being determinative of the appeal, namely: "Was the fact that further intensification of residential use of the land is neither likely nor desirable sufficient justification for allowing it to be zoned as is here proposed?" Mr. Malcolm Hardy, the planner called by the appellant, felt that it was, and that with proper planning of a proposed development, sufficient protection could be provided for the amenity of adjoining residents. -- 3 of 5 -- 4 Mr. Robinson took an entirely opposite view pointing out that the adverse effects of aircraft noise on the amenity of the area was not a good reason for the introduction of further detrimental influences on adjoining land which is, and is likely to remain, zoned and used for residential purposes. He said: "Just because the amenity of a residential area is adversely effected by the operations of another use ( in this case the International Airport) that is no reason or justification for further downgrading the amenity of the area by the intrusion of other uses, that is to say, residents of the adjoining subdivision should not be condemned to the problems associated with the proximity of inappropriate industrial development just because they already have a noise problem." In my view, it is difficult to get around this argument. In cannot be denied that even with substantial buffering, landscaping and the like, there are difficulties (relating to detraction from residential amenity) inherent in the location of industrial uses adjacent to residential uses and the point made by Mr. Robinson has considerable force. It is unfortunate for ) the appellant that airport activity has had the effect on the land that it has. But, in itself, this does not justify an attempt to compensate for this which ignores the interests of other landholders similarly effected and opens the way for the introduction of elements which can only have a negative effect on the amenity of surrounding land which will remain in the Residential A zone. While I am prepared to accept that the appellant is conscious of this and has shown some consideration for the amenity of his neighbours in the amendments to the layout which have been made, it would not be easy, in a rezoning application of this kind, to ensure that, in the future, the land will be -- 4 of 5 -- 5 developed and used with the degree of sympathy for adjoining residents that would be called for. It was suggested that the Court might allow the rezoning but called for a reduction in the area to be used for industrial purposes and an increase in its buffering from adjoining land. However, it is not for the Court to redefine a proposal to make it acceptable. It is for an appellant to present a proposal which, on the evidence, satisfies the standards which good town planning requires. In all of the circumstances, I am not satisfied that the onus of showing that this appeal should be allowed has been discharged and accordingly it is dismissed. -- 5 of 5 --