7-Eleven Stores Pty Ltd v. Pine Rivers Shire Council & Ors ; Ken Ryan & Associates P/L v. Pine Rivers Shire Council
[2006] QPEC 121
•8 December 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
7-Eleven Stores Pty Ltd v. Pine Rivers Shire Council & Ors ; Ken Ryan & Associates P/L v. Pine Rivers Shire Council [2006] QPEC 121
PARTIES:
7-ELEVEN STORES PTY LTD
Appellant
and
PINE RIVERS SHIRE COUNCIL
Respondent
and
PATRICK McGINLEY
First Co-Respondent
and
RAYMOND JOHN ALEXANDER
Second Co-Respondent
and
KEN RYAN & ASSOCIATES PTY LTD
Appellant
and
PINE RIVERS SHIRE COUNCIL
Respondent
FILE NO:
1677 of 2006
1771 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
APPEAL
ORIGINATING COURT:
BRISBANE
DELIVERED ON:
8 December 2006
DELIVERED AT:
Brisbane
HEARING DATE:
15 and 16 November 2006
JUDGE:
Rackemann DCJ
ORDER:
The further hearing of the appeal is adjourned to permit the formulation of conditions
CATCHWORDS:
MATERIAL CHANGE OF USE - extension of trading hours for an existing service station and late night shop – Court had previously refused 24 hour trading – likely amenity impacts – noise – sleep disturbance – consideration of ambient noise environment
Cases
7-Eleven Stores Pty Ltd v Pine River Shire Council & Ors [2006] QPELR 85
Body Corporate forKelly’s Beach Resort v Burnett Shire Council and ors [2003] QPELR 614
Church of Jesus Christ of Later Day Saints Gold Coast City Council [2006] QPELR 71
Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313
Petroleum Design and Management Pty Ltd v Council of the City of the Gold Coast [1995] QPLR 238
Prime Group Properties Ltd v Caloundra City Council & Ors [1995] QPLR 147
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337COUNSEL:
Mr Hinson SC for the Appellant
Mr A Skoien for the Respondent
SOLICITORS:
Deacons for the Appellant
The Shire Solicitor for the Respondent
Mr McGinley and Mr Alexander appeared in person
On 22 May 2006 the Council refused an application, made by Ken Ryan & Associates Pty Ltd on behalf of 7-Eleven Stores Pty Ltd (the applicant), for a development permit for a material change of use to permit a 2 hour extension of trading hours (to 11.00 pm) for an existing service station and late night shop situated at 1 Sovereign Avenue, Bray Park.
The service station and late night shop is that which was the subject of a previous unsuccessful appeal against the refusal of an extension to permit 24 hour trade. (7-Eleven Stores Pty Ltd v Pine River Shire Council & Ors [2006] QPELR 85). The determinative issue on that occasion was the potential for noise impact on nearby residents.
In the previous appeal I was left short of being persuaded that the potential frequency of noise events or the existing acoustic environment was such that the potential for on-site and off-site noise associated with the then proposed extended operating hours would be acceptable in the circumstances. In the course of reaching that conclusion I noted, amongst other things, that the evidence did not then permit any particularly definitive or confident conclusions to be drawn in relation to the extent of activity after 9.00 pm and that, with respect to the sleep disturbance criterion, the monitoring data did not establish the frequency with which the criterion was already exceeded within each sampling period, irrespective of events likely to be associated with the proposal.
There has been no relevant physical change in the circumstances of the site or its context (or to the relevant planning instruments) since the previous appeal, but the extent of the proposed extension is now considerably reduced and greater information has been provided, on which to base an assessment of the likely impacts of that more modest extension.
In a report which accompanied the application, Mr King, a lighting and acoustical engineer engaged by the applicant, explained that:
“A significant difference in potential impact exists between the current proposal with only 2 additional trading hours and the proposal for 24 hour operation. By limiting trade to 11.00 pm, ambient noise levels remain elevated due to passing traffic and the potential impact is significantly lower as compared to operating between 11.00 pm and 5.00 am when traffic flows and corresponding ambient noise levels are lower.”
Having assessed the proposal, Mr King concluded that the extension of hours now proposed would “not adversely impact upon the current amenity of adjacent residents”[1] by reason of noise and that “the development can readily comply with the appropriate standards with respect to light amenity such that operation in the period 9 pm to 11 pm will not result in adverse light amenity impacts at surrounding land uses”.[2]
[1] Ex 1 Pg 68
[2] Ex 1 Pg 74
Prior to deciding the application, the council engaged another experienced acoustical engineer, Mr Rumble, to review Mr King’s report. Mr Rumble reported that:[3]
“I can find no fault with the report and agree with the conclusions.”
[3] Ex 1 Pg 109
The Council’s Director, Strategic and Development, recommended that the application be approved, but limited to 10.30 pm. The application was however, ultimately refused, in accordance with the recommendation of the Council’s Strategic and Planning Committee, on the grounds that:
“(a)The proposed extension in trading hours is considered to be incompatible with the surrounding residential uses, is not supported by affected residents, and would, in Council’s opinion, compromise the amenity and character of the surrounding residential area.
(b)Council is not satisfied that the proposed operational procedures to reduce noise and lighting impacts would be effective in addressing the amenity impacts; and
(c)Council is not satisfied that the proposal complies with the primary aims of the Strategic Plan or the general intent for the Central Pine DCP.”
A conclusion with respect to conflict or otherwise with the planning scheme documents ultimately follows a conclusion as to the likely impact of the proposal on character and amenity. As a perusal of the conclusions in the report of Mr Larsen (a town planner called by the council) reveals, it is those parts of the planning instruments which relate to protection of the character and amenity of the area, particularly the nearby residential uses, upon which the Council ultimately placed reliance. As the respondent’s written outline states:
“In short, Council alleges that various adverse impacts associated with the proposed use will have an unacceptable impact upon the existing amenity of the area surrounding the subject land in conflict with numerous provisions of the transitional planning scheme …”
Mr Larsen accepted, in cross examination, the proposition that, if the activity can occur in circumstances which does not cause unacceptable impact on residential amenity, there is no planning reason why it ought not to be allowed to occur. The debate is whether it would have that unacceptable impact or not.[4]
[4] T128 l 27-32
Before turning to the evidence of likely amenity impacts however, there are three things which may be observed. First, there are a number of provisions of the planning instruments which place some emphasis on character or amenity. They are variously expressed. It is unnecessary for me to traverse the provisions in detail. In the written outline of submissions for the respondent it was contended that “… the proposed use conflicts with provisions of the Transitional Planning Scheme which specify that any new use should maintain or enhance the existing level of amenity.” A complete absence of any change or any noise or any other impact of whatever duration, nature or effect is not necessarily required in order that character or residential amenity be maintained. As this court has often recognised, many if not all land uses, in an urban context, have some potential for impact[5]. Planning instruments should not be interpreted and applied pedantically .[6] As Mr Skoien properly conceded in oral submissions, the question as to whether residential amenity would be relevantly maintained is to be answered by an assessment of the significance of (rather than just the fact of) likely impact[7].
[5] See e.g. Body Corporate forKelly’s Beach Resort v Burnett Shire Council and ors [2003] QPELR 614 at 622
[6] See Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at [18].
[7] T134
Secondly, subject to an assessment of specific amenity impacts, I am of the view that:
(i) the facility is appropriately located to provide for late night trading, for the reasons discussed by Mr Buckley.
(ii) the proposal is not beyond the bounds of reasonable expectations[8] and
(iii) the character of the locality would not be altered in any way which is inappropriate or unduly adverse (see 7-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors (Supra) at [18]-[20] – my conclusion is, if anything, stronger with respect to the more limited extension now sought. Mr Larson’s evidence did not persuade me to the contrary.)
[8] See 7-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors (Supra) at [15]-[17]
Thirdly, there were some issues which were controversial in the previous appeal, but did not become the focus of the subject appeal. In that regard:
(i)In the previous appeal it was submitted that need had not been established. I expressed the view that need was not a determinative issue in the circumstances, but that the provision of extended operating hours at the existing facility was likely to make a positive contribution to meeting the community’s needs in terms of accessibility and convenience. The need was not considered to be particularly strong. While the subject proposal will also, no doubt, make some contribution, the extent of that contribution is more limited, having regard to the relatively minor extension of trading hours which is now sought. It is not an issue which is either determinative in this case or which was the subject of any significant attention in the subject appeal, although it was referred to in the council’s further and better particulars.
(ii)It was submitted, in the previous appeal, that some conflict arose with the planning scheme by reason of the proposal supposedly being more than a local facility. That submission was not accepted. The more modest extension sought in this case would, if anything, simply serve to strengthen my previous conclusion. While the contention was repeated in the Council’s further and better particulars in this appeal, it was not pursued in the course of argument on the hearing.[9]
[9] T59
The determinative issue in this appeal, as in the last, is the likely impact of the proposal in terms of specific amenity impacts.
Insofar as specific amenity impacts are concerned:
(i)There was no challenge to Mr King’s assessment that the development can readily comply with the appropriate standards with respect to lighting. Compliance with conditions of any approval would abate some existing adverse impacts, although the applicant can get no credit for that, since the existing situation would appear to be in conflict with conditions of an earlier re-zoning approval.
(ii)The potential for impacts from anti-social behaviour are to be minimised by conditions requiring implementation of a management plan. The prospect of anti-social behaviour assumed less prominence in this case than in the previous appeal. That is not surprising, given the more modest extension of hours sought on this occasion. Mr McGinley, who had given evidence in the previous appeal of his concerns for such matters, gave evidence in this appeal that he would mainly expect such behaviour to occur in the early hours of the morning and that the more modest extension on this occasion lessened, to at least some degree, his concerns.[10] My conclusion, in the previous appeal, that such concerns did not provide a sufficient basis to refuse the application, is stronger with respect to the subject proposal.
(iii)I accept Mr King’s evidence that likely noise impacts between 9.00 pm and 10.00 pm are acceptable. Mr Borgeaud, an acoustical expert called by the Council, accepted that, while there may be some impacts between 9.00 pm and 10.00 pm, they were not sufficient to warrant refusal of an extension of trading hours, at least until 10.00 o’clock.[11]
[10] T111
[11] T94 line 25
The most contentious issue was the significance of likely noise impacts after 10.00 pm. For the purposes of that period, the acoustical experts again looked at the sleep disturbance criteria of an indoor sound pressure level of 45 dB LA max. That is a level which the World Health Organisation guideline recommends should not be exceeded more than 10 to 15 times per night, for a good night’s sleep. In this case, the acoustical experts adopted a criterion of 55 dBA, as an external criterion. This allows for a 10 dBA reduction from external to internal levels.[12]
[12] This might be somewhat conservative, given the guideline refers to an adjustment of 15 dBA
The evidence demonstrates that more frequently occurring noises on the subject site from car doors closing, engines starting, use of the bowsers, patrons talking and the like would be expected to produce noise levels within the criterion. Cars driving over metal grates would exceed the criterion, but conditions can be imposed which require the grates to be treated, so as to achieve compliance.[13]
[13] It might also be appropriate to impose conditions requiring treatment to other metal covers on site and the regrading of one driveway on which cars tend to ‘bottom out’.
In concluding that there would be an undue impact after 10.00 pm, Mr Borgeaud pointed to the fact that less frequent on-site events, such as a “loud” car door close or engine start, a motorbike start or people shouting, could be expected to exceed the criterion, as would vehicles using those footpath crossover driveways located closest to adjoining residences.
I accept that, were the operating hours extended, there would be occasions when noise generated after 10.00 pm exceeded 55 dBA (as an external level) at the nearest residences. For the reasons which I gave in the previous appeal however, I do not consider that is necessarily conclusive. It is appropriate to also consider what significance or weight should be attributed to that, in the overall assessment of the impact on amenity in the particular circumstances.[14] It was at that point the views of the acoustical engineers diverged.
[14]7-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors (Supra) at (33)-(34)
Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 316
Church of Jesus Christ of Later Day Saints Gold Coast City Council [2006] QPELR 71 at 76
For the purposes of considering the significance of the impact, Mr King analysed information in relation to the extent of likely activity associated with the extended hours and with respect to the ambient noise environment at that time.
The evidence suggests that, in the period between 10.00 pm and 11.00 pm on a typical evening, one would expect only some 15 transactions at the facility. For the purposes of assessment it was assumed, conservatively, that each of those transactions involved a separate visit by a motor vehicle[15] that each vehicle entered and departed using the driveway crossovers closest to adjacent residences and that each was an additional noise event (i.e. not a ‘drop in’ vehicle which would otherwise have been making a similar noise driving by the facility, were it not open).
[15] Rather than “walk up” custom or multiple transactions associated with the one vehicle.
Based on those assumptions (and measurements of cars in the driveway which suggested that some 73% would exceed the criterion at the nearest residences), it was concluded that one might expect 11 further events, over the one hour period after 10 pm, at each of the closest driveway crossovers in Sovereign Avenue and in Kensington Way respectively (assuming each vehicle enters via one driveway and leaves via another). Mr Borgeaud relied upon anecdotal evidence that, in addition to those events, there might be one or two of the less frequent and more noisy on-site events which would also exceed the criterion.
While that number of events, viewed in isolation, might appear to be significant, in the context of a criterion which calls for such levels not to be exceeded on more than 10 to 15 times over an entire evening, the apparent significance loses much of its force when consideration is given to the ambient noise environment.
Survey data establishes that the sleep disturbance criterion is already exceeded by vehicles on Sovereign Avenue and in Kensington Way on a very regular basis after the existing closing time, including in the 10.00 pm to 11.00 pm period. The latest two fifteen minute counts in Sovereign Way (10.10 – 10.25 pm and 10.43 – 10.58 pm) recorded 60 vehicle movements producing 51 noise events in excess of the 55 dBA criterion.[16] In the case of Kensington Way, the latest two 15 minute surveys (10.26 – 10.41 pm and 10.59 – 11.14 pm) revealed 58 vehicle movements producing 43 noise events in excess of the 55 dBA criterion.
[16] Ex 2 pg 7 Table 4
Mr Borgeaud initially sought to make something of the fact that the number of events, in excess of 55 dBA, expected for the subject site over a one hour period was more than 20% of the events surveyed. That overlooked the fact that the surveys for the period after 10 pm were only for a total of half an hour for each of Sovereign Avenue and Kensington Way. Mr King had made the same mistake[17], but had not regarded the percentage as problematic in any event. On an hourly basis, one would expect of the order of double the number of surveyed events. This having been drawn to his attention, even Mr Borgeaud was prepared to alter his description of the situation to “borderline”[18] .
[17] Ex 2 pg 12
[18] T95 l38
Mr Borgeaud remained of the view that noise of the vehicles on the driveway after 10 pm (in addition to the one or two noisier on-site events) was a concern. He referred to its different “information content” i.e. it would be distinguishable from the noise of traffic on the roads.
It can readily be accepted that different noises can be associated with different sources in a way which affects the recipient in different ways. It is understandable that the noise of an intruder at your window at night, for example, might well be significantly more startling than the noise of a window rattling in the breeze. The noise of one’s own baby crying might be another example of a noise which provokes a particular response. This is however, a different situation.
The noises which would be associated with the extended hours are noises which are already an established part of the environment, including the environment on the subject site and on the driveway crossovers (at least until 9.00 pm). Vehicle noise, more generally, is evident beyond the existing closing time. While Mr McGinley says that he can tell whether a vehicle is driving over the driveway of the subject site or driving along the road, it remains the case that the noise associated with vehicles, including vehicles which are accelerating and decelerating, is characteristic of the ambient noise environment in any event.
As I said in the context of the previous appeal[19].
“Mr Borgeaud also placed some reliance on the prospect that residents would be more offended by disturbance due to noise from the subject site, than from other sources. Such subjective reactions can be of relevance, but I would not place great weight on them in the present context if the evidence demonstrated that, viewed objectively, the noise associated with extending the hours of the existing facility made no significantly adverse difference.”
[19]7-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors (Supra) at [35]
Reference to the survey data reveals that the number of vehicles using the respective roads until 11.00 pm is vastly in excess of the number of vehicles which would be using the driveways associated with the subject site in the now proposed extended hours. The proportion of the (much greater) number of vehicles on the road which result in noise events which exceed the “sleep disturbance criteria” is as high or higher than the proportion of the (much lower) number which may be using the driveways of the subject site. Further, reference to exhibits 10 and 11 shows that the average noise of several cars on the nearest driveway was less than the L max (avg) for Kensington Way during one of the survey periods and close to, although 2 dBA in excess of, the L max (avg) in Sovereign Avenue.[20]
[20] As to the detectability of a 2 dBA difference see King T46
I find it difficult to accept that something of the order of an additional 11 events in excess of the sleep disturbance criterion, associated with vehicles arriving and departing via the driveways at each of Sovereign Avenue and Kensington Way respectively (assuming each vehicle enters via one and leaves via the other) would have a significant detrimental impact, given the ambient noise environment. I accept Mr King’s evidence that:
“Noise from customers in their vehicles once off the site will be similar in magnitude and intensity as that of existing ambient pedestrian and traffic movements and given the low frequency of occurrence during the extended trading hours as compared to existing ambient traffic movements will not result in adverse noise impact.”
I have considered the prospect of infrequent loud on-site noises, but these are more occasional and, as Mr King said, the exception rather than the rule. While that does not mean that they should be completely disregarded, the noise monitoring data[21] shows that occasional loud noises are also an aspect of the ambient noise environment. The prospect of some (relatively few) events, associated with the relatively modest extension of hours now sought, does not lead me an adverse conclusion with respect to the proposal’s likely impact on amenity.
[21] Exhibit 2 p 7 table 3
While each case must be assessed on its individual merits, I note that in Petroleum Design and Management Pty Ltd v Council of the City of the Gold Coast [1995] QPLR 238 Skoien SJDC said, in accepting the evidence of Mr Rumble as to the likely impacts of another service station and shop on a corner location adjoining elevated residential development:
“He cannot of course exclude the possibility of inconsiderate motorists sometimes making unacceptably loud noises. Such motorists are just as likely to cause that nuisance whether or not the service station exists, for example when accelerating away from the traffic lights at the intersection. He considers also that effective management can be expected to prevent the occurrence of unpleasant noise from cars passing over loose grates, the presence of anti social groups and so forth. …”[22]
[22] see Prime Group Properties Ltd v Caloundra City Council & Ors [1995] QPLR 147 at 148 K-L
As is apparent from the above, I found the evidence of Mr King to be more persuasive than that of Mr Borgeaud. Subject to the imposition of appropriate conditions, I do not consider that the likely impacts associated with the relatively modest extension of trading hours now sought would have a significantly detrimental effect or be inconsistent with the maintenance of residential amenity. In reaching that conclusion I have had regard to the likely impacts viewed individually and collectively. While the period after 10 pm was the most critical, I have also had regard to the likely impacts over the whole of the period for which an extension is sought.
I am satisfied that the appeal ought be allowed, but I will, at this stage, adjourn the further hearing of the appeal to permit the formulation of conditions. Those conditions ought require implementation of the various measures referred to in the evidence and also ensure that, by 11.00 pm, trading has ceased and customers have been required to leave the site.
Some reference was made, in the course of the appeal, to activities past the existing closing time associated with serving ‘last minute’ customers and closing the facility. The recommendation of the Council’s Director, Strategic and Development, was that there be a condition limiting hours of operation to 10.30 pm, with the premises to be closed and vacated by 11.00 pm. That is more limiting than necessary. It is the noise associated with customers (and their vehicles) which ought be the focus. That is a matter for consideration in the formulation of conditions.
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