Ausco Modular Pty Ltd v Western Downs Regional Council
[2017] QPEC 58
•11 October 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58 |
PARTIES: | AUSCO MODULAR PTY LTD (ACN 010 654 994) v WESTERN DOWNS REGIONAL COUNCIL and GROW CHINCHILLA PTY LTD (ACN 611 439 368) |
FILE NO/S: | 263 of 2017 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 11 October 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11, 12, 13, 14, 15, 18 and 20 September 2017 and further written submissions on 4 October 2017 |
JUDGE: | Kefford DCJ |
ORDER: | The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a workers accommodation village – whether there is conflict with the planning scheme – whether the use will have unacceptable social planning impacts – whether the use will have unacceptable traffic impacts – whether the use will have unacceptable noise, lighting, odour or dust impacts – whether there is a need for the proposed development – whether there are sufficient grounds to approve the development despite conflict with the planning scheme |
LEGISLATION: | Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), , s 314, s 324, s 326 |
CASES: | Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QCA 60; [2001] 1 Qd R 347, applied Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157, distinguished Bassingthwaighte v Roma Town Council [2010] QPEC 91; [2011] QPELR 63, approved Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, approved Broad v Brisbane City Council & the Baptist Union of Queensland [1986] 2 Qd R 317, applied Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209, distinguished Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, approved Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153; [2002] QPELR 207, distinguished Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, approved Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QCA 510; [2001] 1 Qd R 372, applied Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved John Gimpel & Perry Morphett & Associates v Brisbane City Council [1988] QPLR 5, distinguished Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, distinguished Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63; [2012] QPELR 354, applied Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110; [2010] QPELR 270, approved Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPEC 22; [2012] QPELR 468, distinguished SEQ Bonds Stores Pty Ltd v Gold Coast City Council [2006] QPEC 66; [2006] QPELR 747, approved Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466, approved Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47; [2015] QPELR 21, approved Westfield Management Limited v Pine Rivers Shire Council & Anor [2005] QPEC 15; [2005] QPELR 534, distinguished Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied Yu Feng Pty Ltd v Brisbane City Council & Ors [2007] QCA 382; (2007) 156 LGERA 399, applied Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2914) 201 LGERA 82; [2014] QPELR 686, applied |
COUNSEL: | M A Williamson with M J Batty for the appellant B D Job with N D Loos for the respondent J G Lyons for the co-respondent |
SOLICITORS: | Keir Steele Lawyers for the appellant Holding Redlich for the respondent Thynne Macartney for the co-respondent |
Table of contents
Introduction........................................................................................................................... 5
The current facility............................................................................................................... 5
The subject site and surrounding locality............................................................................. 6
The proposed development................................................................................................... 7
The decision framework....................................................................................................... 8
Relevance of the existing use............................................................................................... 9
The issues............................................................................................................................ 10
Chinchilla Shire Planning Scheme 2006............................................................................ 11
Is there conflict with the desired environmental outcomes?.............................................. 12
Desired environmental outcome 3.2 - economic development....................................... 12
Desired environmental outcome 3.3 - community expectations and needs.................... 17
Community expectations................................................................................................ 17
Need............................................................................................................................... 18
Sterilisation.................................................................................................................... 23
Conclusion regarding conflict with desired environmental outcome 3.3...................... 23
Is there conflict with the Rural Residential Zone Code?.................................................... 23
Nature, scale and density and character impacts............................................................ 26
Impacts on other existing accommodation facilities....................................................... 27
Amenity impacts............................................................................................................. 29
Traffic impacts............................................................................................................... 31
Noise, lighting, odour and dust impacts........................................................................ 33
Western Downs Planning Scheme 2017............................................................................. 39
Relevance of the Western Downs Planning Scheme...................................................... 40
Strategic Plan.................................................................................................................. 41
Overwhelming community need and valid planning justification.................................. 51
Character....................................................................................................................... 52
Low Density Residential Zone Code.............................................................................. 53
Nature, scale and density and character impacts.......................................................... 55
Amenity impacts............................................................................................................. 56
Accommodation activities code...................................................................................... 56
Social issues........................................................................................................................ 58
Grow Chinchilla’s submissions.......................................................................................... 63
Nature and extent of conflict.............................................................................................. 64
Grounds............................................................................................................................... 70
Need................................................................................................................................ 70
Other grounds.................................................................................................................. 76
Conclusion.......................................................................................................................... 78
Introduction
This is an appeal commenced by Ausco Modular Pty Ltd (“Ausco”). The appeal is against the decision of the respondent, Western Downs Regional Council (“Council”), to refuse a development application made by Ausco to facilitate the continued use, in perpetuity, of its non-resident workers accommodation village at 184 Zeller Street, Chinchilla (“the subject site”).
Grow Chinchilla Pty Ltd (“Grow Chinchilla”) is a company that was formed by a local resident. It was intended to be a vehicle to bring matters about the downturn in the coal seam gas industry to the attention of local residents, hoteliers, moteliers and local business owners.[1] Grow Chinchilla made a properly made submission opposing the development. It elected to join the appeal. It continues to resist the grant of a development approval.
[1]Statement of William Patrick Blake – Exhibit 18 Tab 5 p 18 [40].
The current facility
The facility currently exists on the subject site. It is branded “Chinchilla Stayover” and was constructed in various stages. Presently, it has capacity to accommodate 1 000 non-resident workers.
The uncontroverted evidence before the court is that the Chinchilla Stayover facility is of a high quality. It is well landscaped and provides excellent amenity for the workers that have the opportunity to reside there.[2]
[2]T2-3/L17-23 (Schomburgk); T2-38/L42 – T2-39/L3 (Ovenden); T2-73/L21-29 (Schneider); T3-4/L35-46 (Powell); T4-4/L37-42 (Duane); T4-48/L45-46 (Coghlin); T4-85/L35 – T4-86/L5 (Leyshon).
The pre-existing use of the subject site was originally established pursuant to an approval granted by Council on 17 March 2000. One of the reports incorporated into the development approval referred to an intention for the accommodation village to be decommissioned on completion of the Kogan Creek Power Station Project.[3] Council subsequently extended the approval’s limited life in response to requests by Ausco in June 2004 and February 2008.[4] On 5 November 2013, Council approved a further 100 beds in the proposed development, which approval was not acted upon.[5] The development approval authorising the present use expired on 30 May 2013.[6] An order of the Planning and Environment Court made on 28 October 2015 permitted the use to continue as a lawful use until the final determination of this appeal.[7]
[3]T2-9/L32-36 (Schomburgk).
[4]Joint Expert Report – Town Planning – Exhibit 8 pp 5-6 [18]-[19].
[5]Affidavit of Roger Neville Bradford - Exhibit 17 p 3 [23].
[6]Joint Expert Report – Town Planning – Exhibit 8 p 6 [19].
[7]Joint Expert Report – Town Planning – Exhibit 8 pp 5-6 [17]-[20].
The subject site and surrounding locality
The subject site is located on the corner of Zeller Street and Price Street, Chinchilla, approximately 1.7 kilometres south-east of the town centre. It has an area of 16.91 hectares.[8]
[8]Joint Expert Report – Town Planning – Exhibit 8 p 5 [9].
The subject site is part of the Chinchilla township.[9]
[9]Joint Expert Report – Town Planning – Exhibit 8 p 5 [12].
The main vehicular access is obtained from Zeller Street. There is a secondary service access from Price Street.[10]
[10]Joint Expert Report – Town Planning – Exhibit 8 p 5 [9] and [10].
Zeller Street and Price Street are both bitumen sealed roads, with kerb and channel on the opposite side of the road. All other urban services are available to the subject site.[11]
[11]Joint Expert Report – Town Planning – Exhibit 8 p 5 [11].
To the north, across Zeller Street, are residential lots of about 800 square metres, predominantly occupied with single detached houses. Similar residential development exists to the west across Price Street.[12]
[12]Joint Expert Report – Town Planning – Exhibit 8 p 5 [12].
To the south and east of the subject site is predominantly rural-residential style development comprised of lots of about one hectare that are also occupied by, primarily, single detached houses. As one moves further east and south, away from the suburban parts of town, the land is developed in larger lots (four hectares and larger).[13]
[13]Joint Expert Report – Town Planning – Exhibit 8 p 5 [13].
To the north-east of the subject site, around Carmichael Street and Taylor Street, towards the Warrego Highway, is an established industrial area that has access to Zeller Street.[14]
[14]Joint Expert Report – Town Planning – Exhibit 8 p 5 [14].
To the east, at the eastern end of Zeller Street, approximately 300 metres from the subject site, is Chinchilla Tourist Park. To the south-west, approximately 800 metres from the subject site, is Base Camp Chinchilla, which is the only other provider of bulk non-resident workers accommodation in Chinchilla.[15]
[15]Joint Expert Report – Town Planning – Exhibit 8 p 5 [15].
The Chinchilla airport is located approximately two kilometres south-west of the subject site.[16]
[16]Joint Expert Report – Town Planning – Exhibit 8 p 5 [16].
In overall terms, the character of Zeller Street is not a pristine residential (or rural residential) environment; rather it has a mixed character.[17] This is reflective of the location of light industry with access to Zeller Street, as well as its utilisation by traffic, including industrial traffic, as a convenient thoroughfare from the Warrego Highway to Chinchilla South Road towards Tara and Condamine.[18]
[17]T2-81/L25 – T-82/L3 (Schneider); T2-44/L25-31 (Ovenden); Joint Expert Report – Town Planning – Exhibit 8 p 13 [53] (Schomburgk).
[18]T2-82/L1-36 (Schneider); T3-55/L20-37 (Trevilyan).
The proposed development
The development application seeks a development permit for the making of a material change of use for an undefined use, being a non-resident workforce accommodation. The proposal comprises the following elements:
(a) 1 000 rooms in demountable cabins;
(b) separate laundry facilities within dedicated demountable cabins;
(c) kitchen and dining facilities within a large central common building;
(d) management and reception within a separate demountable building;
(e) indoor fitness centre;
(f) formal and informal outdoor recreation areas;
(g) approximately 750 carparking spaces;
(h) landscaped surrounds; and
(i) a dam near the north-eastern corner of the subject site.[19]
[19]Joint Expert Report – Town Planning – Exhibit 8 p 7 [22] and [23].
All buildings are single storey in height. They are set back from the perimeter boundaries by approximately:
(a) 45 metres to the Zeller Street frontage;
(b) 20 metres to Price Street;
(c) 30 metres to the eastern boundary; and
(d) 5 metres (at the closest point) to the southern boundary.[20]
[20]Joint Expert Report – Town Planning – Exhibit 8 p 7 [24].
The primary vehicle access is to remain from Zeller Street, with only service vehicles to use the Price Street access.[21]
[21]Joint Expert Report – Town Planning – Exhibit 8 p 7 [24].
The subject site is presently well landscaped. Ausco agrees to a condition being imposed for additional planting to be provided along the western, eastern and northern boundaries of the subject site, consistent with a Landscape Concept Plan dated August 2017.[22]
[22]Landscape Concept Plan – Exhibit 33.
The built form of the proposed development, other than the landscaping (which is to be enhanced), currently exists on the subject site. The first modular buildings were established on the subject site in 2004. In late 2007, the majority of the accommodation buildings were removed and relocated to other facilities run by Ausco. Modular accommodation buildings were reinstalled on the subject site during 2009 and 2010.[23]
[23]Affidavit of Myke Cavanagh – Exhibit 21.
The decision framework
The appeal was commenced by Ausco under s 461 of the Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009.
Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of hearing anew. It must be decided based on the laws and policies applying when the application was made, but the court may give weight to any new laws and policies the court considers appropriate.
The development application was made on or about 28 January 2016.[24] At that time, the Chinchilla Shire Planning Scheme 2006 was in force. On 20 March 2017, the Western Downs Planning Scheme took effect.[25] The parties agree that it ought be given substantial weight.[26]
[24]Joint Expert Report – Town Planning – Exhibit 8 p 7 [26].
[25]Joint Expert Report – Town Planning – Exhibit 8 p 9 [42].
[26]Respondent’s Submissions – Court Doc No 35 p 13 [44]. T6-43/L31-34 (Williamson).
As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with the Chinchilla Shire Planning Scheme unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.
Conflict means “at variance or disagree with”.[27] Any conflict must be “plainly identified” after analysing the scheme as a whole, rather than merely focussing on isolated provisions.[28]
[27]Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2012] QPELR 354.
[28]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208.
The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009 as:
“1. Grounds means matters of public interest.
2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
It is for Ausco to establish that the appeal should be allowed and the development application approved.[29]
[29]Sustainable Planning Act 2009, s 493.
Relevance of the existing use
Grow Chinchilla submits that, in terms of the existing use of the subject site, Ausco ought receive no benefit merely because the use is already in place.[30] In support of its submission, it refers to Westfield Management Ltd v Pine Rivers Shire Council & Anor [2005] QPEC 15; [2005] QPELR 534 at 538, [22]; Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 at [29]-[31]; John Gimpel & Perry Morphett & Associates v Brisbane City Council [1988] QPLR 5 at 8 and Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPEC 22; [2012] QPELR 468.
[30]Submissions on behalf of the Co-respondent - Court Doc 36 p 6 [29].
Council likewise submits:[31]
“In Serbian Orthodox Church School Congregation v BCC[32]the Court discussed the principles for the Court to observe when dealing with an application to approve a use that is already up and running and concluded:
(a)being an appeal de novo, the proponent gains no assistance from the use being up and running. The proposal must be assessed only on its merits going forward;
(b)the Court can look at the impacts – amenity, traffic etc – that the development has had during its period of operation; and
(c)the proponent is not entitled to rely on any loss or inconvenience – actual or implied – that might result from it having to dismantle the use in the event the Court dismisses the appeal.”
[31]Respondent’s Submissions – Court Doc 35 p 9 [30].
[32][2012] QPELR 468 at [17].
Each of these cases involved an appeal about a development application that had been made to regularise an unlawful use. That is not the case here. In this case, there is an existing lawful use.
Any loss or inconvenience that might result from having to dismantle the use if the development is not approved is not relevant. However, pursuant to s 314(3)(b) of the Sustainable Planning Act 2009, the existing lawful use of the subject site must be taken into account. It is relevant to an assessment of the impact of the proposed development. The present use informs the existing character of the area.
The issues
The issues to be determined in this appeal are:
(a) whether approval of the proposed development conflicts with the Chinchilla Shire Planning Scheme and, in particular, whether there is conflict with:
(i) desired environmental outcomes; or
(ii) the Rural Residential Zone Code occasioned by:
(A) the nature, scale and density of the proposed development and attendant impacts on character of the locality;
(B) impacts on other existing accommodation facilities;
(C) amenity impacts including traffic impacts and noise, lighting, odour and dust impacts;
(b) whether there are provisions of the Western Downs Planning Scheme that warrant refusal of the development application;
(c) whether social issues warrant refusal; and
(d) the nature and extent of the conflict and whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with the Chinchilla Shire Planning Scheme.
Although the disputed issues initially included visual amenity issues, on the basis that any development approval would be conditioned to require landscaping in accordance with the Landscape Concept Plan tendered as Exhibit 33, Council and Grow Chinchilla notified that they no longer rely on visual amenity as a ground for refusal.[33] However, they each maintain their respective positions with respect to visual amenity insofar as it relates to town planning matters, including perceptibility, character values and broader scheme expectations.[34]
[33]Respondent’s Submissions – Court Doc 35 p 7 [22].
[34]Exhibit 34; T5-3/L17-27 (Lyons); T5-3/L32 (Job).
Chinchilla Shire Planning Scheme 2006
The Chinchilla Shire Planning Scheme commenced in June 2006. The town planners agreed that the Chinchilla Shire Planning Scheme does not include a land use definition for the proposed activity, although the use would fall within the definition of “Accommodation building”.[35]
[35]Joint Expert Report – Town Planning – Exhibit 8 p 9 [37]; Chinchilla Shire Planning Scheme Extracts – Exhibit 4 pp 5-10.
Under the Chinchilla Shire Planning Scheme, the subject site is located in the Rural Residential Zone.[36]
[36]Chinchilla Shire Planning Scheme Maps – Exhibit 5 p 2.
Within the Rural Residential Zone, a development application for an undefined use is impact assessable. An application for use as an “Accommodation building” would also have required impact assessment.[37]
[37]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 12.
Council and Grow Chinchilla allege that a decision to approve the proposed development would conflict with desired environmental outcomes in the Chinchilla Shire Planning Scheme and the Rural Residential Zone Code.
Is there conflict with the desired environmental outcomes?
Part 3 of the Chinchilla Shire Planning Scheme contains the desired environmental outcomes.
Desired environmental outcome 3.2 - economic development
Grow Chinchilla alleges conflict with desired environmental outcome 3.2,[38] which states:[39]
[38]Issues – Exhibit 2 pp 7-8.
[39]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 11.
“3.2 Economic Development
The economy of Chinchilla Shire is enhanced and diversified through sustainable use of natural resources (including soil, extractive and mineral resources) and through a diverse range of other economic activities that respect the hierarchy of the urban centre and the small towns.
-The Planning Scheme reinforces and consolidates the role of Chinchilla as the principal place for business, industry and commerce within the Shire.
…”
(emphasis added)
Before considering the detail of Grow Chinchilla’s submissions, it is apposite to recognise that this is a desired environmental outcome for the whole of the Shire. It is not framed in a manner that one would expect that the goal will be advanced by every development. Failure to advance the goal does not necessarily demonstrate conflict is occasioned by approval of a proposed development. However, approval of a proposed development will conflict with the desired environmental outcome if it cuts across the ability to achieve the outcome or is at odds with its achievement.
Grow Chinchilla submits that approval of the proposed development would result in conflict because:
(a) the facility does not enhance the economy as its operation negatively impacts upon other accommodation operators within Chinchilla, which it says is reflected by current occupancy rates;[40] and
(b) the facility does not diversify the economy as there are already operating accommodation facilities within Chinchilla Shire, including another workers’ accommodation camp (Base Camp) and numerous other accommodation choices comprising hotels, motels, multiple dwellings and houses. There is also an approved but unconstructed workers’ accommodation camp for 196 multiple dwelling units and 68 accommodation units[41] and an approved but unconstructed multiple dwelling approval (being the Bottle Tree Apartments).[42]
[40]Submissions on behalf of the Co-respondent – Court Doc 36 p 28 [150], [154] and [155].
[41]Bundle of Co-respondent’s lay witness statements – Exhibit 18 Tab 58 p 65 [54]-[59].
[42]Submissions on behalf of the Co-respondent – Court Doc 36 p 28 [151]-[153].
The economic experts retained by the parties identified two types of non-resident accommodation facilities in Chinchilla, namely:
(a) non-resident worker camps, being Base Camp with 314 rooms and Stayover Camp (which is the proposed development) with 1 000 rooms; and
(b) 16 hotels or motels for short-term visitors that provide a total of 598 rooms, with the largest of those being Chinchilla Tourist Park with 105 rooms made up of 70 cabins and 35 caravans.[43]
[43]Joint Economic Need Report – Exhibit 11 p 29 [67] and [68] and p 30 Table 3.
While the experts agree that there is a range of accommodation facilities within the region that would contribute to the accommodation of workers if required,[44] the two types of facilities target (and are better able to cater to) different markets.[45] The experts agreed that:[46]
“Overall, there is a large difference in the services, nature and pricing of facilities between hotel/motel accommodation and non-resident worker accommodation villages. The former is more attractive to visitors and independent business travellers and short term contractors, while the latter is more attractive to employers seeking to accommodate a large number of workers close to their place of employment and where all amenities can be provided in one location (e.g. three meals per day, recreation facilities and the like) with consistency.”
[44]Joint Economic Need Report – Exhibit 11 p 31 [71].
[45]T4-5/L12-18 (Duane).
[46]T4-5/L12-25 and T4-5/L40-43 (Duane); Joint Economic Need Report – Exhibit 11 pp 37-8 [82].
The experts also agreed that there is an increasing demand for specialised non-resident workforce accommodation to cater to that market as a result of the following factors:[47]
[47]Joint Economic Need Report – Exhibit 11 pp 33-4 [73].
“a.Villages allow the workers for a single company undertaking a contract in the area to be accommodated all together in the one location. This controls employment conditions giving an employee uniformity of conditions for a large workforce rather than being spread across a number of accommodation styles, with different services and standards.
b.A centralised accommodation location to coordinate the transport of workers to and from the project site and alleviates multiple transport routes in the township area.
c.A food mess or dining hall is provided inhouse (sic), providing for all dietary needs and ensuring a healthy diet for the workers, relieving workers of the need to find the time and have the skills and energy to provide food for themselves after long shifts.
d.Villages can be designed and segregated for day and night shift workers to ensure that night shift workers are not disturbed during the day. This is difficult to achieve in hotels/motels and traditional houses in residential areas with other users in the surrounding areas as well as other housemates being active during the daytime.
e.Modern villages provide an enhanced level of amenity in terms of room quality, landscaping, etc. compared to older style camps.
f.Cleaning, gardening, repairs and maintenance issues can be left to others.
g.The ability of modern villages to provide amenities for each worker rather than shared facilities.
h.There is direct access to first aid on-site together with other facilities such as entertainment and a gymnasium.
i.Workers have substantial cleaning requirements and specialised, extensive laundry facilities can be provided at the villages.
j.Appropriate provision for vehicle parking (typical residential houses and hotels/motels do not cater for the private vehicles of 4 – 5 single workers resulting in undesirable street parking practices.
k.A resident code of conduct is enforced by site based management and security, ensuring that protocols and standards of behaviour are observed, encouraging an appropriate balance between lifestyle, sleep and nutrition.”
Other key differences between the proposed development and a traditional hotel or motel are:
(a) rooms are strictly single occupancy and, in many instances, incorporate single beds;
(b) rooms are relatively small in dimension;
(c) rooms are fully serviced once per week (rather than daily);
(d) rooms have key operated air-conditioners, which cannot be utilised when the room is not occupied;
(e) rooms do not incorporate cooking facilities;
(f) rooms cater for shift workers with black out blinds;
(g) all residents are inducted on arrival, at which time a Village Acknowledgment / Acceptance of Risk form is executed;
(h) meals are provided in a manner that is high velocity and with regard to coordinated transport to work options;
(i) the meal service commences at 4am;
(j) each resident prepares their own takeaway lunch using a nominated “crib” area where takeaway meals, salad and sandwich ingredients are provided, as well as a selection of snacks;
(k) central recreational facilities are provided to all for social integration;
(l) locker rooms are dispersed throughout the village, allowing residents to check-out of their rooms when they are not on shift whilst safely storing their possessions on site;
(m) manned security and village management are in place to ensure compliance with resident behaviour protocols; and
(n) carparking is separated from residential areas, rather than in front of the rooms.[48]
[48]Affidavit of Roger Neville Bradford – Exhibit 17 pp 8-10 [65].
I do not regard these differences to be merely a matter of “preference”, but factors that explain why the two types of facilities operate as different markets serving different roles.[49] The non-resident worker’s village operates as a “one-stop” facility that offers economies of scale benefits to companies seeking to accommodate large workforces.[50] It also provides a different offer to hotels and motels, with many of those differences having underlying health, safety and well-being implications for non-resident workers.[51] Hotels and motels, on the other hand, are geared to cater to a core market of tourists and travellers.[52]
[49]Joint Economic Need Report – Exhibit 11 p 38 [84]. There is, no doubt, overlap in the markets, but I regard the differences as important. By way of analogy, there is overlap in the market for a corner store and a full-line supermarket (with both selling bread and milk), but each operates in a different market. The full-line supermarket can offer convenience and price benefits (by achieving economies of scale) that are not available if one were forced to undertake a grocery shop by attending a series of smaller specialised stores.
[50]T4-6/L7-27 (Duane); T4-42/L14 – T4-44/L6 and T4-45/L4-9 (Coghlin).
[51]T4-59/L31-39 and T4-64/L11-24 (Coghlin); T4-73/L5 – T4-74/L30 (Leyshon).
[52]T4-49/L35 – T4-50/L5 (Coghlin).
Given these different markets, I am satisfied that approval of the proposed development would enhance and diversify the economy of Chinchilla. It would ensure that there remains a choice of workers’ accommodation villages capable of catering for the large operators that require a large number of rooms.[53]
[53]Joint Economic Need Report – Exhibit 11 p 46 [107]. T4-45/L11 – T4-46/L33 and T4-64/L26-47 (Coghlin); T4-76/L5-24 and T4-79/L32 – T4-80/L10 (Leyshon).
Grow Chinchilla also submits that approval of the proposed development would lock in an oversupply of rooms, causing existing accommodation operators to continue to suffer. It submits this will result in negative impacts upon Chinchilla as the principal place for business, industry and commerce within the Shire.[54] Even if the earlier proposition were true, the latter does not necessarily follow. I regard the opposite as likely. As was explained by Mr Duane, and accepted by Mr Leyshon,[55] if the proposed development is not approved, those companies (of which there is evidence of at least two)[56] that require the services offered by non-resident workforce accommodation would need to look for alternative accommodation in villages outside Chinchilla, potentially on gas tenements and mining leases. That will have flow-on effects for spending in Chinchilla.[57]
[54]Submissions on behalf of the Co-respondent – Court Doc 36 p 29 [158].
[55]T4-79/L7-13 (Leyshon).
[56]See Exhibit FG2 and FG3.
[57]T4-6/L29 – T4-7/L19 (Duane).
I am satisfied that a decision to approve the proposed development would not conflict with the desired environmental outcome in s 3.2.
Desired environmental outcome 3.3 - community expectations and needs
Council and Grow Chinchilla allege conflict with desired environmental outcome 3.3.[58] It states:[59]
[58]Issues – Exhibit 2 pp 7 and 14.
[59]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 11.
“3.3 Community and Services
Development in Chinchilla Shire reflects community expectations and needs, and contributes to community well-being through enhancement of core community elements (including the built environment, services, facilities and infrastructure).
-The settlement pattern is logical and sequenced and the built environment contributes to the overall rural amenity and character of Chinchilla Shire.
-…
-Development contributes to the health and safety of people and provides a diverse range of housing types, services and facilities.”
(emphasis added)
Community expectations
With respect to community expectations, Grow Chinchillla submits that the evidence of the lay witnesses demonstrates a community expectation that the Ausco facility would be temporary.[60] The evidence confirms that the expectation of the lay witnesses was based on the fact that Ausco had a temporary approval and an assumption that, once the approval expired, the facility would close.[61] Grow Chinchilla emphasises that many accommodation operators say they made investment decisions worth many millions of dollars on the assumption that the facility would close and that they would then house those working in the locality as and when the need arose.
[60]Submissions on behalf of the Co-respondent – Court Doc 36 p 30 [161].
[61]See Bundle of Co-respondent’s Lay Witness Statements – Exhibit 18 Tab 7 pp 30-1 [8] (Clarke), Tab 8 p 35 [8] (McGovern), Tab 9 p 39 [10] (Schuh), Tab 10 p 42 [10] (Maclean) and Tab 13 p 53 [9] (Goldie).
As was observed by Dorney QC DCJ in Kangaroo Point Residents Association Inc v Brisbane City Council & Anor[2014] QPEC 64; [2015] QPELR 203 at 240 [176]:
“While “realistic” expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations.”
Community expectations are to be derived from the statutory planning controls and the community must be taken to consider the possibility that development may include that which a local government may permit in an appropriate case.[62]
[62]Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, 133; Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, 16; Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, 60.
Residents of the area may well have hoped, and spent considerable funds on an assumption, that the use would cease at the expiry of the temporary approval. However, for reasons that follow, particularly with respect to the absence of hard amenity impacts and the existence of a need for the proposal, the possibility of a further approval was not a matter that could reasonably be ruled out.
Need
With respect to the requirement that development in Chinchilla Shire reflect the needs of the community, Grow Chinchilla submits that there is no need for the proposed development as:
(a) there is already an existing workers’ accommodation facility in Chinchilla that is not operating at full capacity;
(b) there is already an approved but unbuilt workers’ accommodation facility in Chinchilla;
(c) there are hotels and motels in Chinchilla that can accommodate larger work forces to the extent that there is any employer requirement that the workers are housed together;
(d) there are numerous other accommodation choices that can accommodate smaller work forces including contractors, operations workers and others who come to the region for shorter periods; and
(e) there are numerous other workers’ camps within the region, both in town and on tenements (and the latter can be developed without the need for a town planning approval).
In Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414 at 417-9, Wilson DCJ provided a thorough analysis of the authorities with respect to the concept of need as follows:
“[20] In Watts & Hughes Properties Pty Ltd v. BCC (1998) Q.P.E.L.R. 273 at 275 the Court said:
Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v. Caboolture Shire Council (1984) Q.P.L.R. p.126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v. Brisbane City Council (1986) 23 A.P.A.D. p.58 at p.60).
[21] Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v. Logan City Council (1997) Q.P.E.L.R. 208 at 213; Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v. BCC (1982) Q.P.L.R. 13 at 32-35, William McEwans Pty Ltd v. BCC (1981) 1 Q.P.L.R. 33 at 35).
[22] The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v. Gatton Shire Council (1997) Q.P.E.L.R. 198, at 199-200; Arksmead Pty Ltd v. Gold Coast City Council (1989) Q.P.L.R. 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 C.L.R. 675, at 687.
[23] Any possible adverse effects on an existing business will only be relevant to the extent that there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another: Zieta No. 59 Pty Ltd v. Gold Coast City Council (1987) 2 Qd. R. 116, at 120; Whitehead v. Hervey Bay City Council (1999) Q.P.E.L.R. 131, at 132. Indeed, providing competition and choice can be a matter which also provides for a need, in the relevant sense: Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193, at 198.
[24] The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v. Redland Shire Council (2001) Q.C.A. 116, at para.[20]:
... Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.
In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment.
[25] It is also relevant to have regard to the nature of the proposed development. In Harburg Investments Pty Ltd v. Brisbane City Council (2000) Q.P.E.L.R. 313, the Court said at 317:
(25) To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl.
(26) However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be paid on the convenience to the likely patrons of those development. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the “atmosphere” of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the “atmosphere” at the proposed centre is likely to be more relaxed than at the Hypermarket or other business centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probably that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale.
[26] This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons: Harburg Investments (supra); Provincial Securities Pty Ltd v. Brisbane City Council [2001] Q.P.E.L.R. 143. At the other end of the spectrum are cases in which such facilities as a new service station, or cinema complex would add to a consumer's area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand: Prime Group Properties Ltd v. Caloundra City Council [1995] Q.P.L.R. 146, at 150; and, Queensland Investment Corporation v. Toowoomba City Council [2000] Q.P.E.L.R. 362.”
(emphasis added)
For reasons explained in paragraphs [42] to [48] above and in paragraphs [58] to [65], [80] to [84], [135], [136], [138] to [144] and [223] to [231] below, I am satisfied that there is a need for the proposed development. The proposed development will provide accommodation to meet the needs of the workers accommodation village market, which was expressly recognised by all of the economic experts.[63] As is noted in paragraph [46] above, the proposed development provides large companies involved in large projects with an accommodation offer that cannot be met by instead spreading workers across a number of smaller facilities with different accommodation services and standards.[64]
[63]Joint Economic Need Report – Exhibit 11 pp 33-4 [73] and p 46 [107].
[64]Joint Economic Need Report – Exhibit 11 pp 33-4 [73].
The existence of a latent unsatisfied demand for workers accommodation village that is not being adequately met is of considerable significance for three reasons.[65]
[65]Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, 419 [27] citing Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 317.
First, the differences in the offer available at workers accommodation villages, as compared to hotels and motels, are directed towards managing the health, safety and wellbeing of non-resident workers.[66]
[66]T2-7/L20-31 (Schomburgk); T2-53/L1-18 (Ovenden); T2-90/L7-44 (Schneider); T3-5/L1 – T3-6/L2 (Powell); T4-59/L31-39 and T4-64/L11-24 (Coghlin); T4-73/L5 – T4-74/L30 (Leyshon). See also Joint Expert Report on Social Planning – Exhibit 9 pp 18-9 [58] and [60] and Report of Mr Powell – Exhibit 15 pp 26-7 [61]-[66] and p 30 [75]-[76].
Second, as was agreed by the social planning experts, Mr Powell and Ms Johnson, workers accommodation villages are one of the options that are required to prevent negative impacts on local housing supplies.[67] As much is recognised in the Western Downs Planning Scheme. It records, in s 3.2.2.1(3), that:[68]
“[i]t is necessary to ensure that sufficient accommodation options are available for non-resident temporary workers given that housing affordability can become an issue for people in lower low (sic) socio-economic brackets should non-resident temporary workers reside in dwellings in residential areas.”
[67]Joint Expert Report on Social Planning – Exhibit 9 p 23 [87].
[68]Western Downs Planning Scheme Extracts – Exhibit 6 p 15.
The town planning experts also agreed that the Darling Downs Regional Plan 2013:[69]
“… recognises that population growth represents both opportunities and challenges and that Local Governments can assist by providing an adequate supply of land to accommodate the anticipated needs of various land uses. It also recognises that this may include providing an adequate supply of land to accommodate the non-resident workforce accommodation if there are approved projects which support it.”
[69]Joint Expert Report – Town Planning – Exhibit 8 p 10 [46].
It is also noted in the Darling Downs Regional Plan 2013 that:
(a) development of social and local infrastructure and services is likely to encourage more workers to relocate their families to resource communities but it may not be practical to support the relocation of large numbers of non-resident workers to some smaller resource communities;
(b) using isolated work camps that are highly self-sufficient can also reduce some non-resident worker impacts on community infrastructure; and
(c) “expansion of the resources sector in the last decade has seen rapid increase in non-resident populations, increasing pressure on housing and accommodation, community services and infrastructure. This demand is expected to increase into the future with growth of the resource sector, placing increasing pressure on local residents in the form of housing affordability, cost of living and accessibility of services”.[70]
[70]Darling Downs Regional Plan pp 26 and 28 as extracted in the Joint Expert Report – Town Planning – Exhibit 8 pp 11-12 [48].
Housing affordability is of high significance to the well-being of a community.
Third, all of the economists agreed:[71]
“in relation to workers accommodation villages, supply should always be in-excess of demand such that there is occupancy well below 100% to accommodate for potential peaks which could be either expected or unexpected, and to provide for choice of location and operator. These are important elements to the worker accommodation village market within the Chinchilla region given such big contracts influence major operators such as QGC as previously indicated.”
[71]Joint Economic Need Report – Exhibit 11 p 46 [107]. See also T4-7/L21 – T4-8/L16 (Duane) and T4-74/L46-47 (Leyshon).
The presence of another workers accommodation village and other forms of accommodation is to be considered in this light.
Sterilisation
Grow Chinchilla submits that approval of the proposed development will entrench the facility as a permanent use, thereby sterilising the subject site and impacting upon the ability to provide a diverse range of housing types. With respect to this issue, it notes that the subject site is intended for low density housing (of some 150-400 houses) under the 2017 planning scheme at some time after 2026.
I do not accept that approval of the development would “sterilise” the land. The built form of the proposed development is made up of demountable buildings that are capable of being removed. Condition 3 of the existing approval required this occur at the cessation of the use.[72] While the use continues, the subject site will not be available for residential housing. However, should the need for the facility abate prior to 2026, the built form of the proposed development is not such as to render the subject site “sterilised”. The subject site will retain those attributes necessary to support residential housing in the future.
[72]Bundle of Approvals – Exhibit 32 Tab 2.
Conclusion regarding conflict with desired environmental outcome 3.3
In the circumstances, I am satisfied that approval of the proposed development would not conflict with the desired environmental outcome in s 3.3.
Is there conflict with the Rural Residential Zone Code?
The Rural Residential Zone is “intended for low density, “detached houses” within a rural setting.”[73]
[73]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 12.
The associated Rural Residential Zone Code includes the following provisions:[74]
[74]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 pp 15-18 and 24.
“4.2.3.3 Code Purpose
The following outcomes are the Purpose of the Code:
(1)The Shire has an appropriate land use structure that is in accordance with the environmental characteristics of the locality and that avoids conflict between incompatible “uses”.
(2)The Rural Residential “Zone” continues as an area for low density detached houses in a rural setting.
(3)Rural residential activities are not prejudiced by inappropriate development and existing rural residential areas are consolidated.
(4) Within the Rural Residential “Zone”, “development”:
…
…
(c) is located, designed and operated in a manner that protects and enhances the low density rural residential scale, intensity, form and character;
(d) does not prejudice or impact adversely on other “uses” including those within other “Zones”;
…
(5)Within the Rural Residential “Zone”, the Rural Residential “Zone” Code allows for:
(a) tourist related “uses” (“bed and breakfast premises” and “visitor accommodation”) and “home businesses” where they are of a small scale and are compatible with surrounding “uses”.
4.2.3.4Performance Criteria, Acceptable Solutions and Self Assessable Applicability – “Material change of Use”
“Material change of use”
Performance Criteria
Acceptable Solution
Self Assessable Development Applicability (to be read as per table 4.2.2 and 4.2.3.2 of the “Scheme”)
Amenity
PC5 “Residential Activities” – Density
The low density residential scale, intensity, form and character of the Rural Residential “Zone” are protected.
For “Detached houses”:
AS5.1 No more than 1 (one) “Detached house” per lot.
For “Caretaker’s residences”:
AS5.2 No more than 1 (one) “Caretaker’s residence” per lot.
For all other “Residential Activities”:
No acceptable solution is prescribed.
- “Detached house”
- “Caretaker’s residence”
Amenity
PC8 Transport Movements
Transport movements associated with the use protect the residential amenity of the locality and do not exceed those normally associated with residential activities.
For non-“Residential activities”
AS8 Transport movements do not occur through residential areas.
For all other “uses”:
No acceptable solution is prescribed.
Amenity
PC9 “Building” and “Structure” Design
“Buildings” and “Structures” are of a domestic scale, form and character to maintain the residential amenity.
No acceptable solution is prescribed.
Environmental
PC28 Noise Emissions
Noise emissions from “Premises” do not cause environmental harm or nuisance to adjoining properties or “Sensitive land uses”.
No acceptable solution is prescribed.
(emphasis added, footnotes omitted)
Council alleges that a decision to approve the proposed development would conflict with overall outcomes 2, 4(c) and 4(d) and performance criteria PC5 and PC8.[75]
[75]Issues – Exhibit 2 pp 14-15.
In addition, Grow Chinchilla alleges that a decision to approve the proposed development would conflict with performance criteria PC9 and PC28.[76]
[76]Issues – Exhibit 2 p 8.
In broad terms, the conflicts are alleged to arise as a consequence of:
(a) the nature, scale and density of the proposed development and character impacts;
(b) impact on other existing accommodation facilities; and
(c) amenity impacts.
Nature, scale and density and character impacts
During cross-examination, Mr Schomburgk, the town planner retained by Ausco accepted that the proposed development is squarely at odds with the overall purpose of the Rural Residential Zone.[77] Mr Schomburgk also acknowledges that what Ausco seeks to have approved:
[77]T2-17/L13-14 (Schomburgk).
(a) is not commonly found in a rural residential area;[78]
[78]Joint Expert Report – Town Planning – Exhibit 8 p 14 [57].
(b) is not development that enhances the low density residential character and could not be said to be of a low density rural residential intensity, a low density rural residential form, nor a low density rural residential character;[79] and
[79]T2-19/L5-18 (Schomburgk).
(c) even with screening, will:
(i) appear as something different to rural residential development;[80] and
(ii) have a completely different built form and character to what one would normally expect, including by reason of its visible signage and car parking and different traffic generation (in terms of the traffic peaks and the different types of vehicles).[81]
[80]T2-19/L24-28 (Schomburgk).
[81]T2-19/L30-46 (Schomburgk).
The facility includes approximately 750 car parks, predominantly at the front of the subject site. There is also a high level of activity on the subject site, including from very early in the day with the kitchen facilities open from 4am. There is also a large number of traffic movements very early in the day, much earlier than would occur with traditional residential uses.
Ausco accepts that a decision to approve the development application would conflict with the Chinchilla Shire Planning Scheme because the proposed development is not a detached house in form, or limited in density to a single dwelling on a large lot.[82] It also accepts that the conflict is more than minor or technical.[83]
[82]Written Submissions on behalf of the Appellant – Court Doc 37 p 50 [179].
[83]Written Submissions on behalf of the Appellant – Court Doc 37 p 51 [181].
Ausco’s concessions are appropriate. There is clear conflict with the intent of the Rural Residential Zone, overall outcomes (2) and (4)(c) and performance criteria PC5 and PC9. However, for the reasons stated herein, I am satisfied that the conflict is not accompanied by any undue impact.
Impacts on other existing accommodation facilities
Grow Chinchilla submits that conflict with overall outcome (4)(d) of the Rural Residential Zone Code arises:
(a) as a result of the impacts upon other accommodation providers (predominantly the hoteliers, moteliers and the other worker accommodation camp in Chinchilla, but also to some extent, those who have bought rental investment properties); and
(b) as a result of matters of character and amenity in relation to the permanent residential uses nearby to the site.[84]
[84]Submissions on behalf of the Co-respondent – Court Doc 36 p 36 [195].
Character and amenity impacts are dealt with elsewhere herein.
With respect to the issue of impact, Grow Chinchilla relies on:
(a) evidence in lay witness statements from the hoteliers, moteliers and the other worker accommodation camp in Chinchilla, as well as property investors,[85] who speak of drops in occupancy rates, financial difficulties that they are experiencing and their perception that their occupancy rates would significantly improve if the development application for the proposed development was refused;
[85]Submissions on behalf of the Co-respondent – Court Doc 36 pp 36-7 [196]-[197].
(b) the confidential part of the Joint Economic Need Report;
(c) the interviews conducted by Ms Johnson, that confirm the distress felt by these accommodation providers and the hope that refusing this appeal would help with their predicament;[86] and
(d) the evidence that hotels and motels have and continue to accommodate non-resident workers and that they include a number of high quality buildings that can house larger sized worker teams, as well as contractors, operations workers and others who come to the region for shorter periods.
[86]Joint Expert Report on Social Planning – Exhibit 9 p 16 [47(c)] and p 19 [64].
I have no doubt that the hoteliers and moteliers are experiencing personal distress as a consequence of the economic downturn following the end of the resource boom, nor that they have, during the boom, accommodated non-resident works and enjoyed more financially rewarding times. However, that is not the issue. Town planning is not concerned with protecting individuals from a decline in the investments that they elect to make, nor is it generally concerned with protecting existing operators from competition.[87]
[87]Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675, 687.
Section 4.2.3.3(4)(d) of the Chinchilla Shire Planning Scheme requires that development not impact adversely on other uses. It does not speak of the financial success of the operators of those uses.
Further, when considering the question of impact, a notion of reasonableness should be inferred: the provision should be construed as seeking to protect uses against unreasonable or unacceptable adverse impact.[88]
[88]Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, 510.
I am satisfied that there is no conflict with overall outcome (4)(d) as:
(a) houses provide no meaningful supply to the non-resident workers accommodation market. The economic experts agreed that “accommodation of non-resident workers within local houses is likely to be a limited part of the market”.[89] Mr Duane said it would be less than one per cent of the market;[90]
(b) for the reasons outlined in paragraphs [42] to [48] and [57] above, I am satisfied that the proposed development would cater to a different market and that the hotels and motels are not in a position to meet the needs of the non-resident workers accommodation market. A number of smaller providers would need to be aggregated to establish sufficient numbers to accommodate the non-resident workforce for larger companies. An aggregation of uses or facilities is not a substitute for the proposal as a whole,[91] which offers the choice of a “one stop” facility; and
(c) the evidence does not establish that a decision to approve the development application would result in an adverse effect on the extent and adequacy of facilities that was not otherwise the product of the boom and bust nature of the Chinchilla economy.
[89]Joint Economic Need Report – Exhibit 11 p 31 [71].
[90]T4-15/L12-17 (Duane).
[91]SEQ Bonds Stores Pty Ltd v Gold Coast City Council [2006] QPEC 66; [2006] QPELR 747, 755 [48].
Amenity impacts
Council accepts that “hard” amenity impacts will be mitigated to the point where they do not represent a reason for refusal in their own right. It submits, however, that negative impacts upon perception of amenity remain.[92]
[92]Respondent’s Submissions – Court Doc 35 p 25 [81].
Grow Chinchilla relies on unacceptable amenity impacts, occasioned by traffic, noise, light, odour and dust, as a reason for refusal.[93]
[93]Submissions on behalf of the Co-respondent – Court Doc 36 p 23 [123].
In Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QCA 60; [2001] 1 Qd R 347, the Court of Appeal (comprising McMurdo P, Thomas JA and Holman J) said at 354-5 [3]:
““Amenity”, as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), is “one of the most over-employed words in the vocabulary of planning jargon…” (p. 430), but it is accepted that the word refers to “that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence”: Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1955) 55 S.R. (N.S.W.) 282 at 306. The concept of amenity is wide and flexible, and intangible factors and subjective considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area affected: see Broad v. Brisbane City Council & Anor [1986] 2 Qd. R. 317.”
The notion of amenity was considered in Broad v Brisbane City Council & the Baptist Union of Queensland [1986] 2 Qd R 317, where Thomas J (with whom Connolly J agreed) observed at 319-20:
“The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of “atmosphere.” Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.”
In Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47; [2015] QPELR 21, Robertson DCJ observed at 45 [96]:
“The standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the Planning Scheme and its intent for development of the area.”
Amenity is not an issue that will necessarily be determined exclusively with reference to expert opinion (for example, about noise or odour). In Bassingthwaighte v Roma Town Council [2010] QPEC 91; [2011] QPELR 63, Jones DCJ observed at 73 [63]:
“While the evidence of appropriate experts must of course be respected and given due weight, the court is not obliged to fall in with their assessment of what impacts other people ought find acceptable. Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses.”
(footnotes omitted)
In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, Dodds DCJ summarised the approach to be taken as follows at 348-9 [40]:
“… Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. …”
(emphasis added, footnotes omitted)
Traffic impacts
Council and Grow Chinchilla allege that a decision to approve the proposed development would conflict with performance criterion PC8 of the Rural residential zone code in the Chinchilla Shire Planning Scheme.[94] As noted above, it states:[95]
“Transport movements associated with the use protect the residential amenity of the locality and do not exceed those normally associated with residential activities.”
[94]Issues – Exhibit 2 pp 8 and 15. See also Exhibit 19.
[95]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 17.
Council and Grow Chinchilla accept that the volume of traffic generation associated with the proposed development will be about the same as a residential development on the subject site. However, they submit[96] that the traffic will be out of character with the area as:
[96]Respondent’s Submissions – Court Doc 35 p 27 [85]; Submissions on behalf of the Co-respondent – Court Doc 36 p 26 [136].
(a) the proposed development will have a much higher number of peak hour traffic movements;[97]
[97]Report of Mr Trevilyan – Exhibit 14 p 5 [18].
(b) the traffic peak occurs much earlier than would be expected from a standard residential development;[98]
(c) the movements are all concentrated at one driveway access point to Zeller Street (in contrast to the hypothetical residential development which could have numerous points of access, including to Price Street);[99] and
(d) the vehicle movements comprise a number of different types of vehicles including trucks, buses and four wheel drives and would comprise more of the larger vehicles than a typical residential subdivision.
[98]Report of Mr Trevilyan – Exhibit 14 p 36.
[99]T3-57/L3-21 (Trevilyan).
The only traffic engineer called to give evidence was Mr Trevilyan. It was his uncontested evidence that:
(a) in the event the subject site was developed for 150 traditional residential dwellings (which is considerably less than the 400 lots expected by Mr Ovenden[100] and Mr Schneider[101]) and all lots gained access from Zeller Street, the peak hour traffic generation would be less than for the proposed development (128 vehicles per hour compared to 305 vehicles per hour) but the overall daily traffic generation would be essentially the same;[102]
[100]T2-40/L19-27 (Ovenden).
[101]T2-78/L1-6 (Schneider).
[102]Report of Mr Trevilyan – Exhibit 14 pp 4-5 [11]-[18].
(b) in the event the subject site was developed for 400 traditional residential dwellings, the peak hour traffic generation would be comparable to that of the proposed development but the daily traffic generation would be much higher;[103]
[103]T3-56/L8-22 (Trevilyan).
(c) the impacts on the road network are not only satisfactory, but well within acceptable standards. The analysis of the operation of the Zeller Street access, the Price Street access and the Zeller Street and Price Street intersection demonstrates excellent operating conditions and additional delays induced by the proposed development would be imperceptible;[104]
[104]Report of Mr Trevilyan – Exhibit 14 p 5 [19]-[21].
(d) the character of traffic on Zeller Street is mixed. Zeller Street carries residential traffic and industrial traffic, as well as through traffic (including heavy vehicles) as a signed bypass route from the Warrego Highway towards Tara and Condamine;[105]
(e) there is a 40 metre wide road reserve in Zeller Street, which is indicative of its function as a collector street, intended for use for residential and industrial local traffic, as well as through traffic;[106] and
(f) in terms of the concerns expressed by Mr Mackie that vehicles associated with the existing use of the subject site for non-resident workers’ accommodation has resulted in vehicles being parked on the kerb in Zeller Street and Price Street,[107] the issue is being addressed by a security guard monitoring on street parking. Security records the number plates of any vehicles that are parked on the street and if they are owned by anybody staying on the subject site, the owner and their employer are notified.[108]
[105]T3-55/L20-37 (Trevilyan).
[106]T3-55/L38-46 (Trevilyan).
[107]Co-respondent’s Bundle of Lay Witness Statements – Exhibit 18 Tab 3 p 6 [12].
[108]T3-56/L30-40 (Trevilyan).
I accept that:
(a) a residential subdivision of the subject site may not take all of its access from Zeller Street, thereby diluting the likely traffic impact on Zeller Street;[109]
(b) the morning peak of the traffic movements associated with the subject site is earlier than the normal residential peak;[110] and
(c) the mix of vehicles associated with the proposed development is different to the vehicles that would ordinarily be associated with a residential subdivision.[111]
[109]T3-57/L3-21 (Trevilyan).
[110]T3-57/L33-35 (Trevilyan).
[111]T3-57/L42 – T3-58/L8 (Trevilyan).
Nevertheless, I do not accept that the proposed development would have traffic impacts that would reasonably be regarded as out of character with the area. Zeller Street is not a pristine residential environment. Absent the proposed development, Zeller Street carries local industrial traffic and heavy vehicles that use Zeller Street as a signed bypass.
I am satisfied that the traffic impacts associated with the proposed development do not result in conflict with performance criterion PC8 or result in an unacceptable amenity impact.
Noise, lighting, odour and dust impacts
Grow Chinchilla (and the lay witness statements tendered by it) has raised issues with respect to the amenity impacts associated with the proposed development as a consequence of its noise, lighting and air quality impacts. It alleges that a decision to approve the proposed development would conflict with performance criterion PC28 of the Rural residential zone code in the Chinchilla Shire Planning Scheme,[112] which states:[113]
“Noise emissions from “Premises” do not cause environmental harm or nuisance to adjoining properties or “Sensitive land uses”.
[112]Issues – Exhibit 2 p 8. See also Exhibit 19.
[113]Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 24.
The only expert called to give evidence with respect to noise, lighting, odour and dust was Mr King.
Mr King’s site inspection identified the following sources of noise specific to the proposed development:
(a) car parking onsite and associated traffic noise, including reversing beepers;
(b) bus pick-up and drop-off;
(c) air conditioning units, both for individual rooms and shared facilities;
(d) refrigeration unit and exhaust fans associated with the dining hall;
(e) service vehicles and delivery trucks; and
(f) noise from guests in external areas of the site (i.e. people talking).[114]
[114]Report of Mr King – Exhibit 13 p 9 [19].
Each of these noise sources was comprehensively considered by Mr King, who considered the existing noise environment of the subject site and adjoining uses by inspecting the site operations and measuring the noise generated by them.[115]
[115]Report of Mr King – Exhibit 13 p 9 [18]; T3-60/L8-25 (King).
It is accepted that the traffic counts and noise measurements were conducted at a time when the proposed use was not at capacity. Nevertheless, with respect to site carparking and traffic noise, I accept the uncontroverted evidence of Mr King that:
(a) standard practice for parking vehicles fitted with reversing alarms on site is that they be left to enable departure in a forward direction;[116]
[116]Report of Mr King – Exhibit 13 p 9 [21]-[22].
(b) reversing alarms are more common in the afternoon when workers are returning to camp and reversing into a carparking bay, but the ambient noise environment is such that the reverse alarm did not present as unacceptable or intrusive to surrounding residential areas;
(c) calculations of noise levels from site car parking activities demonstrate compliance with applicable sleep disturbance criterion is achieved at all surrounding residences, as are noise limits during the day and evening periods;[117]
(d) noise generated by vehicular traffic associated with the use, including noise from entering and existing vehicles at the site driveway on Zeller Street and noise from traffic on Zeller Street associated with the use, fit within and did not exceed existing ambient noise levels.[118] The existing amenity absent the proposed development is not quietude as, even at 5am, there is already traffic using Zeller Street that is not associated with the proposed development. The existing traffic includes non-residential traffic, so that character of traffic noise is also present already. The noise generated by the traffic leaving the subject site is lower than existing traffic travelling along Zeller Street. Thus, while an individual could perceive the noise of vehicles leaving the site, because the vehicle is not silent, it would not reasonably offend their sense of place or amenity;[119] and
(e) the nett daily difference in road traffic noise generated by the proposed development, as compared to a residential subdivision of 150 lots, is negligible and imperceptible.[120]
[117]Report of Mr King – Exhibit 13 pp 9-10 [24]-[27].
[118]Report of Mr King – Exhibit 13 p 10 [28]-[29].
[119]T3-60/L44 – T3-61/L37 and T3-65/L1-32 (King).
[120]Report of Mr King – Exhibit 13 p 10 [30]; T3-61/L11-46 (King).
The buses used to transport some camp residents to and from work sites range from mini-buses to coaches. They all travel slowly and in a forward direction on-site and the noise from buses fits within existing ambient traffic generated noise. As such, noise from bus operations are not considered by Mr King to cause adverse amenity impact at surrounding residential areas.[121]
[121]Report of Mr King – Exhibit 13 p 11 [32].
With respect to noise from service vehicles and refuse collection:
(a) less than ten service vehicles, including deliveries and refuse collection, utilise the Price Street entry/exit point a day, with minimal resultant noise from such movements;[122]
[122]Report of Mr King – Exhibit 13 p 11 [33].
(b) calculations of noise levels from delivery vehicles traveling to the back of house areas demonstrate compliance with the appropriate noise limits relating to service vehicle operations during the daytime period;[123]
(c) provided deliveries by medium rigid vehicles, large rigid vehicles, articulated vehicles and refuse collection are limited to the window of 7am to 6pm, there will be no adverse impact on surrounding acoustic amenity;[124] and
(d) there is no need to place a time-based restriction for deliveries by vans or small rigid vehicles to achieve acceptable acoustic amenity outcomes.[125]
[123]Report of Mr King – Exhibit 13 p 11 [34]-[35].
[124]Report of Mr King – Exhibit 13 p 12 [36].
[125]Report of Mr King – Exhibit 13 p 12 [36].
Fixed plant and equipment noise relates primarily to air conditioning units and heat pumps associated with guest rooms and central facilities, and fans and refrigeration equipment associated with the kitchen areas. These facilities are centralised on the subject site and well set-back from surrounding residential uses. Mr King’s inspections and noise measurements identify that noise from plant is barely detectable at off-site residential areas and the noise measurements and assessment demonstrates compliance with regulatory noise standards.[126]
[126]Report of Mr King – Exhibit 13 p 12 [37]-[38].
With respect to guest noise, there is significant separation between communal outdoor areas and off-site residences. The separation distance is in the order of 160 metres to the nearest off-site dwelling. Mr King opined that the separation is more than adequate to provide suitable noise reduction. His opinion was confirmed by a site inspection of the camp prior to Christmas when he observed a Christmas party occurring in the undercover entertainment area. The noise generated by the party was not considered by Mr King to be excessive or at a level likely to cause annoyance at off-site residences.[127]
[127]Report of Mr King – Exhibit 13 p 12 [39]-[40].
Further, as was observed by Mr King, noise from on-site guests is likely to be self-limiting as excessive noise would impact on guests. Camp rules require appropriate behaviour and limits noise generation in external areas at all times.[128]
[128]Report of Mr King – Exhibit 13 p 12 [41].
As was explained by Wilson SC DCJ in Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466 at 473 [31], ascertaining the seriousness of the conflict involves:
“discerning, from the verbiage of the Scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.”
Although the proposed development is clearly at odds with the intended character of the zone, in terms of the verbiage of the Chinchilla Shire Planning Scheme, I consider it to be material that:
(a) the Chinchilla Shire Planning Scheme makes no specific provision for workers’ accommodation villages of the kind proposed;
(b) at its highest, section 3.3 of the Chinchilla Shire Planning Scheme envisages that development is to reflect community expectations and needs, and there is no conflict with that provision;
(c) the Chinchilla Shire Planning Scheme makes provision for location of non-residential activities in the Rural Residential Zone in circumstances outlined in performance criterion PC1 of the Rural Residential Zone Code, which states:
“PC1 Non-“Residential activities” – Locational Criteria
Non-“Residential activities” are located in the Rural Residential “Zone” only where those activities:
(a) are necessarily associated with “residential activities”;
(b) do not impact adversely on the residential amenity of the Rural Residential “Zone”;
(c) do not prejudice the consolidation of like non-“Residential activities” in other more appropriate “Zones”;
(d) do not prejudice the productive capacity of surrounding rural land; and
(e) protect the landscape values and scenic qualities of the Rural Residential “Zone”.”
Neither Council nor Grow Chinchilla alleges conflict with this provision; and
(d) there is also no allegation that the proposed development would conflict with overall outcomes (1) and (3) and performance criteria PC6, PC7, PC11, PC12, PC13 and PC27 of the Rural Residential Zone Code. Those provisions are directed at managing the separation of incompatible uses, avoiding prejudice to rural residential activities and managing impacts to acceptable levels.
It is also relevant to consider the particular circumstances of the proposed development within the regime outlined above to gain a true appreciation of the significance of the conflict.
The proposed development is of a high standard. Mr Ovenden described it as “well appointed and well maintained”[228] and of a “high quality”[229]. As is noted in paragraph [33] above, Council and Grow Chinchilla abandoned the allegation that the proposed development ought be refused on grounds relating to visual amenity.
[228]T2-38/L42-44 (Ovenden).
[229]T2-39/L3 (Ovenden).
In terms of the significance of the conflict occasioned by the built form and character impacts, I consider it relevant that the current character of the locality is not a homogenous, single-detached housing area with houses on large lots.
Mr Ovenden acknowledged that it would not be accurate to describe Zeller Street as having a rural residential character.[230] He also conceded that the proposed development does not prejudice existing rural residential activities in the area.[231]
[230]T2-44/L25-31 (Ovenden).
[231]T2-47/L40-41 (Ovenden).
As was conceded by Mr Ovenden,[232] Zeller Street has a mixed character that includes:[233]
[232]T2-44/L1 (Ovenden).
[233]T2-44/L1-25 (Ovenden).
(a) a TAFE college;
(b) a school;
(c) an aged care facility;
(d) low density residential;
(e) industrial uses;
(f) rural residential;
(g) showgrounds; and
(h) Chinchilla Tourist Park.
Mr Ovenden accepted that Zeller Street is described in a character sense as a “mixed bag”.[234]
[234]T2-44/L25 (Ovenden).
Council invited the court to examine the aerial photograph of the whole of Zeller Street that appears in the Visual Amenity Joint Expert Report.[235] It submits that the “mix” of uses are overwhelmingly low impact uses that the community would expect in a rural residential area. It also submits that the proportion of industrial land at the eastern end of Zeller Street is modest, and that it does not overwhelm the street or set the character and amenity expectations for the whole of the street.
[235]Visual Amenity Joint Expert Report – Exhibit 10 p 27.
There was no evidence of the impact of uses such as the showground or aged care facility. As for the industrial development, I accept that it does not overwhelm the street. However, I consider it fair to describe the character of the street as mixed.
The “mixed character” is reinforced by the form and function of Zeller Street. Mr Trevilyan, the only traffic expert to give evidence in the appeal, was of the opinion that Zeller Street:
(a) carries a mixture of residential, industrial and through traffic;[236]
(b) forms a convenient link from the Warrego Highway towards Tara and Condamine, for through traffic;[237] and
(c) serves a major collector road function in the road network.[238]
[236]T3-55/L20-23 (Trevilyan).
[237]T3-55/L25-29 (Trevilyan).
[238]T3-55/L34-37 (Trevilyan).
Mr Ovenden conceded that:
(a) the people who reside on Zeller Street would have an expectation that the traffic on the street includes traffic from industrial development;[239]
(b) Zeller Street is a relatively busy street;[240] and
(c) to describe Zeller Street as a low density residential street would be misleading.[241]
[239]T2-46/L42 – T2-47/L8 (Ovenden).
[240]T2-47/L13-14 (Ovenden).
[241]T2-47/L10-11 (Ovenden).
Into this less than pristine environment, Ausco proposes a development that is “well appointed and well maintained”,[242] and that forms part of the existing mixed character of Zeller Street.
[242]T2-38/L42-44 (Ovenden).
Further, as was accepted by Mr Ovenden, the proposed development:
(a) is located on a large site;[243]
(b) has a very generous setback to Zeller Street;[244] and
(c) is designed in such a way as to respect its neighbours, with catering and service facilities located in the centre of the proposed development.[245] Mr Schneider accepted that the limited number of contemporaneous complaints that had been made about the use during its life is objective evidence of the fact that the design respects the neighbours.[246]
[243]T2-44/L46-47 (Ovenden).
[244]T2-45/L1-2 (Ovenden).
[245]T2-45/L28-31 (Ovenden).
[246]T2-83/L5-21 (Schneider).
In visual terms, it is not contended the development is unacceptable. As Mr Ovenden agreed, which was confirmed by my site inspection, it is very difficult to get a true appreciation of the scale of the proposed development, in visual terms, from Zeller Street.[247] The aerial photograph in the Visual Amenity Joint Expert Report may well demonstrate that, when viewed from the air, the proposed development has a scale that is out of character with the surrounding development; however, it does not represent what is perceptible to the public.
[247]T2-45/L4-6 (Ovenden).
The matters referred to in paragraphs [204] to [217] above mitigate the extent of the conflict with the Chinchilla Shire Planning Scheme. As was fairly acknowledged by Mr Ovenden,[248] the degree of conflict is tempered, and the outcomes sought by the Chinchilla Shire Planning Scheme are achieved in part, given:
[248]Joint Expert Report – Town Planning – Exhibit 8 p 22 [95].
(a) the proposed development is at the edge of the Rural Residential Zone, opposite the Urban Zone and the Mixed Use Zone, and on the same street as properties in the industrial zone. The mix of zonings and mix of uses in proximity to the subject site mean the differences in nature, scale, density and character are less pronounced than they might be if the use was embedded within a homogenous area of rural residential allotments;
(b) the proposed development (with the proposed enhancement to landscaping) will be reasonably well screened from surrounding properties and roads;
(c) the proposed use is residential in nature, so impacts that result from its scale and intensity, being beyond that normally contemplated by a rural residential use, are likely limited to those falling within an amenity categorisation (such as traffic and noise) rather than health (such as emissions and dust); and
(d) even though the vehicle movements are greater than a detached house on a rural residential allotment, the subject site has frontage to an appropriate standard of road to cater for the estimated traffic generation and it is connected to the full range of reticulated infrastructure.
In relation to the effect of the change to the planning scheme, I accept that the change to a planning scheme does not, of itself, justify approval of a development if the development proposal materially conflicts with the new scheme. However, I am satisfied that:
(a) the conflict with the Western Downs Regional Plan is limited to a conflict arising as a consequence of the nature of the use (being an inconsistent use in the Low Density Residential zone) and the density, scale, built form and character impacts of the proposed development; but that
(b) the conflict is ameliorated by the absence of unacceptable amenity impacts and the demonstration of an overwhelming community need for the proposed development; and
(c) the existence of a latent unsatisfied demand for workers village accommodation is a matter of significance when one has regard to the strategic provisions of the Western Downs Planning Scheme and the Darling Downs Regional Plan.
Grounds
The grounds relied on by Ausco can be broadly described as need and other matters of merit.
Need
Many aspects of the evidence in relation to the need for the proposed development have already been dealt with in paragraphs [42] to [48], [55] to [65], [80] to [84], [135], [136] and [138] to [144] above.
Council and Grow Chinchilla submit that Ausco has not demonstrated a need for the proposed development.
In terms of the available information with respect to past and predicted occupancy rates, Council notes:
(a) Chinchilla is presently experiencing a very difficult economic environment. For it, the resources boom peaked in 2013;[249]
[249]Respondent’s Submissions – Court Doc 35 [91].
(b) in terms of the non-resident workforce “[t]he non-resident workers on shift in Western Downs LGA in 2016 was only 27% of the level it was in 2014”;[250]
[250]Respondent’s Submissions – Court Doc 35 [92]. See Joint Economic Need Report – Exhibit 11 p 46 [106].
(c) Queensland Treasury forecasts a further decline of 10 per cent in that non-resident workforce to occur over the coming year;[251]
[251]Respondent’s Submissions – Court Doc 35 [93]. See Joint Economic Need Report – Exhibit 11 p 46 Table 8 and T4-37/L36-38.
(d) there has been a decline in occupancy from the peak period until the current day;
(e) there is a very significant number of available accommodation rooms in Chinchilla;
(f) Base Camp has average occupancy of 30 per cent; and
(g) the economists agreed that occupancy rates at the Stayover Chinchilla declined significantly after 2014.
Council submits that Ausco’s need argument depends in large part on the evidence of Mr Duane that despite current occupation rates for Base Camp and the subject proposal running at occupancy of around 30 per cent, the current demand can be around 400 beds and Base Camp alone cannot accommodate that number.[252]
[252]Joint Economic Need Report – Exhibit 11 p 51 [124].
Mr Duane’s evidence was that on average the shortfall is “about 100, a bit less”.[253] He acknowledged that that number:
[253]T4-22/L40-41 (Duane).
(a) is most likely to be comprised of a range of groups, rather than one block, of employees;[254]
[254]T4-22/L43-44 (Duane).
(b) those workers are visiting various locations in the region;[255]
[255]T4-22/L46-47 (Duane).
(c) those workers would include a range of contractors;[256]
(d) those workers may be on short visits;[257] and accordingly
(e) some of the demand, for stays of only three or four days, could be accommodated at the hotel/motel accommodation.[258]
[256]T4-23/L1 (Duane).
[257]T4-23/L3-4 (Duane).
[258]T4-23/L6-8 (Duane).
Council also referred to Mr Coghlin’s evidence that the inability to accommodate the current demand at Base Camp was not the problem that Mr Duane suggested it to be because:[259]
[259]T4-37/L31 – T4-38/L10 (Coghlin).
(a) the Queensland Treasury forecast of another decline next year in total non-resident workforce demand, in the order of 10 per cent;
(b) when one looks at the total amount of accommodation available in Chinchilla, it’s more than enough to meet demand – there are 598 rooms in hotels and motels plus some 318 rooms in Base Camp. There would be well over 300 rooms available at any one time in hotels and motels to meet individual demand; and
(c) even if worker accommodation demand reaches 50 per cent above the predicted level, there is still sufficient demand for supply within Chinchilla without the proposed development.
Despite this evidence, I am satisfied that there is a need for the proposed development for the reasons already provided and because:
(a) the contraction in the Chinchilla economy since the boom period of 2013 does not diminish from the specific need for this proposal, given the difference between the offer and the offer available at the hotels and motels;
(b) I do not regard the Queensland Treasury forecasts to be particularly helpful. In the past they failed to predict the boom in Chinchilla, which no doubt contributed to the economic harm now being felt by many of those lay witnesses who gave statements in support of refusal. I also do not have confidence in the forecasts given Mr Bradford’s evidence about the extremely limited nature of the data collected by Queensland Treasury from Ausco each year;
(c) as was accepted by Mr Leyshon, not all 598 hotel and motel rooms ought be regarded as capable of meeting individual demand if the proposed development is not approved. The only genuine competitors in this case for the Stayover facility are Base Camp, Chinchilla Tourist Park, Kings Park Accommodation, Bottle Tree Apartments (which is approved but not built), Chinchilla Motor Inn and Cypress Pines Motor Inn.[260] This concession dramatically reduced the supply of accommodation available to meet the needs of non-resident workers. Indeed, based on such a concession, the total number of hotel/motel rooms available for non-resident workers accommodation declines from 598 to 275;
[260]T4-76/L44 – T4-78/L33 (Leyshon).
(d) as the economists agreed, supply in relation to workers accommodation villages should always be in excess of demand such that there is occupancy well below 100 per cent to accommodate peaks which could be expected or unexpected and to provide choice of location and operator;[261]
[261]Joint Economic Need Report – Exhibit 11 p 46 [107]. See also T4-7/L1-43 (Duane) and T4-74/L46-47 (Leyshon).
(e) the peak daily requirement for rooms at Stayover during the month of May 2017 was 424 rooms[262] - this peak could not be accommodated by the only other operator in Chinchilla, Base Camp, which has a total 314 beds, of which 30 per cent are already occupied on average. On the basis of an average occupancy of 30 per cent for Base Camp, the peak demand experienced in May 2017 would result in a shortfall of some 233 rooms if this application was refused;[263]
[262]Report of Mr Duane – Exhibit 12 p 6 [3.3].
[263]Joint Economic Need Report – Exhibit 11 p 51 [124].
(f) I am not persuaded that the shortfall of some 233 rooms would be addressed, or met, by existing hotels and motels in Chinchilla given the economists agreed that there is a large difference in the services, nature and pricing of facilities as between hotels/motels on the one hand and non-resident worker accommodation villages on the other hand.[264] This is reinforced by Mr Bradford’s evidence,[265] which is consistent with the notion that the two types of accommodation are separate styles serving different roles.[266] The former’s core market involves tourists and travellers, not the provision of large format workers’ accommodation that competes directly with Stayover;
[264]Joint Economic Need Report – Exhibit 11 pp 37-8 [82]. See also Joint Economic Need Report – Exhibit 11 p 58 [149].
[265]Affidavit of Mr Bradford – Exhibit 17 p 8 [65].
[266]Joint Economic Need Report – Exhibit 11 p 38 [84].
(g) the recognised differences as between hotels/motels and worker accommodation villages have an important purpose – it is uncontroversial that the differences, whilst the product of preferences of the organisations who utilise the facilities, are directed towards managing the wellbeing of non-resident workers in large format villages;
(h) as was acknowledged by Mr Leyshon, while there may not be demand for 1 000 beds, given the differences in the offer at a worker’s accommodation village as compared to hotels and motels, there is a need for another workers accommodation village;[267]
(i) the uncertainty about whether identified projects will proceed, and the timing and employment numbers of such projects, does not detract from the need. To the contrary, it reinforces the planning and community need to have an available facility that can cater to that demand in a timely fashion. Given the use is an impact assessable one in every zone, I am not satisfied that it is sufficient to rely on some future development application, particularly given the identified difficulties that can arise in terms of housing, not to mention the safety and welfare of the non-resident employees, if appropriate facilities are not available; and
(j) if the application was refused, this would result in a reduction in choice and competition for the market – only one operator would remain in Chinchilla to meet the market’s needs for large non-resident workers’ accommodation, thereby creating an effective monopoly.
[267]T4-82/L3-34 (Leyshon).
In addition to these matters, I found the evidence of Mr Bradford to be of interest. As the general manager of Ausco responsible for the operation of the Stayover facility, Mr Bradford has a sound measure of confidence that there is sufficient demand to support a 1000 bed facility in Chinchilla. That confidence was based upon Mr Bradford’s knowledge of the industry (including prospective major projects)[268] and a genuine appreciation of the prospect that overlapping project requirements may result in the Stayover facility reaching full occupancy, even in circumstances where a perfect storm in terms of demand does not arise.
[268]Affidavit of Mr Bradford – Exhibit 17 [95].
Mr Bradford’s confidence is, no doubt, informed by a contract with QGC for a guaranteed reservation of a large number of rooms, as well as another contract executed during the course of the hearing. However, I do not place significant weight on those individual contracts. They simply corroborate the expert opinion proffered by Mr Duane about the need for a facility with capacity to cater to companies that seek to accommodate large groups of employees. What, to my mind, is more telling is:
(a)the evidence of the peak in May 2017;
(b)the fact that, if the development is not approved, there will only be one facility remaining in Chinchilla;
(c)Mr Leyshon’s acceptance that there is a need for a second workers accommodation facility;
(d)there are a number of projects that could, at short notice, produce significant demand;
(e)there are significant consequences for the community if the demand is left unanswered; and
(f)the ability to provide a nimble response to demand that arises in a short period is hampered by the fact that non-resident workers accommodation is an inconsistent use in every zone in the Western Downs Planning Scheme.
With respect to the issue about whether hotels and motels are an alternative to a non-resident workers camp, Council noted the evidence of the economists that for smaller groups for limited stays, the hotels and motels may be an alternative.[269]
[269]T4-12/L10 – T4-13/L46 (Duane); T4-44/L36-40 (Coghlin); T4-49/L46 – T4-50/L5 (Coghlin); T4-76/L44 – T4-78/L45 (Leyshon).
The relevant need for the proposed development is the need to have available workers village accommodation for the larger non-resident workforces (i.e. the core market of workers village accommodation), as opposed to travellers or small workforces that stay for only a few days (i.e. the core market of hotels and motels). The potential for unacceptable adverse impact on the hotel and motel operators can be addressed by the imposition of a condition.[270]
[270]T6-58/L30 – T6-59/L9 (Williamson).
Other grounds
Ausco relies on the following additional matters to justify approval of the proposed development:[271]
[271]Written Submissions on behalf of the Appellant – Court Doc 37 pp 52-55 [188]-[194].
(a) the identified need can be met in circumstances where the proposed development:
(i) involves the continuation of an existing lawful use for the purposes of s 314(3)(b) of the Sustainable Planning Act 2009;
(ii) is well located in the road network to offer accommodation facilities for resource projects in the region;
(iii) will deliver social and economic benefits to the community, being matters of the public interest, including:
(A) the purchase and consumption of locally made products and services;[272]
[272]See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tabs 1, 4, 5, 8, 10 and 11.
(B) significant employment opportunities for local residents;[273]
[273]See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tabs 2, 7 and 9.
(C) important opportunities for career development for young people in the Western Downs area;[274]
[274]See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tab 9.
(D) funding and participation in local community interests;[275]
[275]See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tab 9 p 6.
(E) significant benefits over and above other accommodation choices in Chinchilla through its facilities, food and services;
(iv) will continue to offer choice in competition in terms of workers accommodation;
(v) will not have unacceptable impacts on amenity;
(vi) will not have unacceptable economic impacts;
(vii) will facilitate planning outcomes sought by Council’s current planning scheme for the local government area; and
(b) the Chinchilla Shire Planning Scheme is overtaken by events and does not adequately provide for the use the subject of the development application.
In terms of the existing use of the subject site, this matter has been addressed earlier. I accept, as submitted by Council,[276] that:
[276]Respondent’s Submissions – Court Doc 35 p 40 [138(a)].
(a) the existing use was authorised as a temporary one;
(b) the approval had expired; and
(c) the use is continuing only as a result of the exercise of this court’s discretion, and only until the outcome of this appeal is known.
I regard the existing use as relevant to a consideration of impacts of the proposed development, but of little relevance as a ground for approval.
With respect to the issue of social and economic benefits to the community, I consider it likely that, should the proposed development be refused, at least some of the workers will be accommodated in locations other than Chinchilla. There may still be some incidental spending in Chinchilla by those workers. However, I consider it unlikely that the benefits will be as great as those identified in the lay witness statements tendered by Ausco. As such, I accept that approval of the proposed development will result in social and economic benefits to the community.
As noted above, in considering whether there are grounds that would be sufficient to overcome the identified conflict, I regard it as material that there is an absence of unacceptable amenity or economic impacts. In Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, Holmes JA (with whom White JA and Atkinson J agreed) observed at 323-4 [25]:
“It may be accepted, as Grosser says and Palyaris implies, the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration. In any case, Grosser and Palyaris, it should be remembered, were concerned with different expression, “planning grounds”, and hence a narrower enquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are now relevant. It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity. The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.”
(emphasis added)
In terms of Ausco’s submission that the Chinchilla Shire Planning Scheme has been overtaken by events, I accept that the Chinchilla Shire Planning Scheme does not adequately provide for the use the subject of the development application. However, the land use strategy in the planning scheme, in terms of the intended residential character of the area, has not been overtaken by events. As Mr Schomburgk acknowledged during cross-examination:
(a) very little of the zone is anything other than rural residential development;[277] and
(b) “[t]he objective of the zone is it remains generally intact if you take out the subject site”[278] (which, of course, was approved before the Chinchilla Shire Planning Scheme and only on a temporary basis).
[277]T2-17/L25 – T2-18/L31 (Schomburgk).
[278]T2-18/L33-35 (Schomburgk).
I otherwise accept the grounds relied on by Ausco and am satisfied that there are sufficient grounds to warrant approval of the development application, despite the identified conflict.
Conclusion
For the reasons provided above, I am satisfied that Ausco has discharged its onus. The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of reasonable and relevant conditions.
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