Brisbane Congregation of Jehovah's Witnesses Incorporated v Gold Coast City Council [1991] QPEC 15

) ) ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND L.G.A. No. 86 of 1990 (Southport Registry) 2, 3 October, 1991 BETWEEN: BRISBANE CONGREGATION OF JEHOVAH'S WITNESSES INCORPORATED GOLD COAST CITY COUNCIL Appellant Respondent REASONS FOR JUDGMENT - ROW D.C.J. - 3RD OCTOBER, 1991 The appeal herein arises consequent upon a decision of the respondent whereby it proposed to approve, subject to conditions, an application made by the appellant for the extension of an existing place of worship. The conditions in issue in general relate to the nature of the activities on the subject land and of the concerns of the local adjoining residents in relation to the manner in which those activities are carried on, in particular in relation to the use of the carparking area, part of which abuts the residential development. The subject land is included with the Residential "A" zone under the relevant Town Planning Scheme and is on the Strategic Plan map included within the urban area. In the Residential "A" zone places of worship are purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of the respondent. The existing Kingdom Hall was erected after consent had been obtained from the respondent in relation to the proposed use of the land and the erection of a building thereon for that purpose. -- 1 of 7 -- 2 It was completed in March 1987. The adjoining duplex residences are within the Residential "B" zone and as such are permitted developments within Column {iii) of the Table of Zones. Abutting the subject land to the north is a nursery which is significantly developed for that and associated uses. Land to the east of the subject land is open space and is used for passive rec~eational purposes. A tongue of land connects that park to Jean Street being originally part of the subject land which was subject to a condition whereon a 10 metre strip to the east was dedicated or given over for park purposes. The Kingdom Hall development has frontage to Olsen Avenue. A significant portion of the land fronting Olsen Avenue is used for parking purposes. The structure is located at the eastern end of the land. The topography is such that the land slopes from the east towards Olsen Avenue. At the present time there is 106 carparking spaces which are formed in three platformed areas with a gradient between the various platforms that provide access throughout the whole of the carparking area. The proposal before the Court is to extend the existing building by providing an additional auditorium with a seating capacity for approximately 200 people and for the provision of two discussion rooms. The proposed auditorium extension will be separated from the existing building by an atrium which will allow free passage and circulation of air. It is not proposed to extend the number of carparking spaces as the number provided is far in excess of the requirements under the Town Planning Scheme. At the present time the Kingdom Hall operates with regular -- 2 of 7 -- 3 meetings on Saturday afternoon and Sunday night with other meetings held during the night time. The congregation size is of the order of 1 00 to 150 persons. The evening meetings usually finish no later than 9.15 p.m. In addition to the scheduled meetings emergency situations arise whereby the Kingdom Hall is used at other hours for meetings which involve, in general, counselling of persons in distress or emergency situations. The existing development has a 1. 8 metre spaced timber fence along its common boundary with the duplex residences to the south. The area in the vicinity of the fence has some landscaping which could not be described as dense but is reasonably well maintained and presents as a reasonably attractive feature within the background of the spaced timber fence. Evidence as to the nature of the activities proposed in relation to the extended Kingdom Hall was given by Mr. Adams, an elder of the Jehovah Witnesses. I found his evidence to be most acceptable and gave a clear indication of the concerns of the congregation in relation to creating any annoyance to neighbouring residents. His willingness to undertake further or additional work which would help to minimise any adverse effect of the proposed development was, I am satisfied, quite sincere. His evidence demonstrates that the congregation is prepared to do those things which might be regarded as reasonable in order to alleviate the concerns expressed by the local residents. A number of local residents and a former resident gave evidence on behalf of the respondent. I have no hesitation in accepting that those persons honestly and sincerely believed what -- 3 of 7 -- 4 was stated in the witness box and what was expressed in writing in the various objections that each had lodged with the respondent in relation to the application. However, that concern has to be weighed having regard to expert evidence which has been adduced from persons experienced in noise evaluation and environmental concerns. That the local residents have some concern in relation to noise is understandable. In view of the present form of construction of the fence there is undoubtedly a reasonable basis on which such concern may be founded. As the floodlighting of the carparking area is not channelled away from the residential area, the concerns expressed in relation to the effect of light from the carparking area is clearly understandable. Mr. Ormerod and Mr. Kamst, each of whom has considerable qualifications and experience in the field of environmental issues, particularly those associated with noise and light, gave evidence. At the end of the day there was very little difference between the opinions which were expressed by the two witnesses. It is significant that both witnesses agree that there should be a solid fence separating the carparking area from the duplex residences to the south. The nature of that form of construction in the circumstances, having regard to the existing timber fence, could well be met by the provision of further timber being abutted on to the existing fence whereby the spaces between palings are closed. As the present fence is only 1.8 metres in height and there would be a minimal difference in the attenuation effects available if the fence be 2 metres, I am of the opinion that it is reasonable in the circumstances that the solid -- 4 of 7 -- 5 construction of a timber fence should be of the order only of 1.8 metres in height. The evidence on which I am satisfied indicates the desirability of that solid fence being constructed along the common boundary abutting bays numbers 31 to 104 with a further continuation of solid timber fence for a distance of 5 metres to the east and west thereof. As the effect of the attenuation of the solid timber fence is, to an extent, governed by the distance between the noise source and the receptor source, it would be desirable in relation to those bays, namely 31 to 40, 71 to 80 and 90 to 104 that there should be erected in appropriate places signs indicating that those bays should be occupied by motor vehicles reversing in, thereby adding a further distance between the noise source and the receptor. It would be unreasonable that there should be any prohibition of use of such bays provided the appropriate signs are erected and the timber fence converted to a solid timber fence. On the evidence I am satisfied that the attenuation thereby achieved will be sufficient so that unacceptable noise annoyance will not be caused to the adjoining duplex residents. It was submitted on behalf of the respondent that there should be a limitation in relation to the number of nights during which the Kingdom Hall operates. The hall operates in a religious, social environment and the limitation of its operation for such a use is, in my view, unreasonable. The imposition of conditions to curtail the hours of operation for religious or similar purposes would not be reasonable. A substantive issue which arose during the hearing of the -- 5 of 7 -- ) 6 appeal related to the time at which the carparking area should be cleared or substantially cleared of motor vehicles. As was said by Mr. Kamst, the hour of 10 p.m. is regarded in fields which consider environmental issues as being a relevant time at which one might expect persons to be entitled to some less disturbance by others. He refers to it as a night-time zone. As the regular meetings generally cease at 9.15 p.m., I see no difficulty in imposing such a condition which would relate in general to the members of the congregation. However, having regard to the fact that persons are required to clean the hall, and could be responsible for other administrative actions, I am ) of the opinion that some qualification should be imposed in relation to all vehicles clearing the parking area by 10 p.m. at night. In addition, some further qualification should be provided which will cover the situation for emergency meetings, ) ) or other non-scheduled general meetings where the services of the elders of the Kingdom Hall are required to meet either emergency or important non-scheduled circumstances. The evidence of both Mr. Ormerod and Mr. Kamst indicate that the provision of landscaping will have minimal affect on the attenuation of noise, but would, however, provide some visual relief in relation to the development. While there is no condition specifically imposed in relation to lighting, some evidence was led as to the effect of the floodlighting of the carpark on adjoining residences. The evidence of Mr. Adams clearly demonstrates that the appellant is prepared to erect baffles which would have the effect of directing light away from the adjoining duplex residences. In -- 6 of 7 -- 7 those circumstances I do not propose to impose any condition. I order that condition 20 be amended to read as follows: "All vehicles other than those belonging to persons involved in the administrative, church counselling and emergency services of the church shall depart from the car parking area by 1 0 p. m. " Condition 21 is deleted. Condition 22 should be amended to read as follows: "The fencing on the southern side of the site is to be upgraded to consist of butt palings. The height of the fence is to be 1.8 metres. The upgraded fence is to cover that area of the fence between carparking bays number 31 and number 104 and extend for a further distance of five metres to the west and east thereof respectively. The fence is to be upgraded prior to the issuing of a building approval for the proposed extensions. The appellant shall be solely responsible for the cost of upgrading the fence. The appellant shall erect and maintain signs indicating that motor vehicles should reverse into car parking bays number 31 and number 104." Condition 23 is amended by deleting "and noise attenuation effect". The appeal is allowed subject to the conditions as herein stated. -- 7 of 7 --