Body Corporate for Coral Horizons v Cairns Regional Council

[2009] QPEC 95

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Body Corporate for Coral Horizons v Cairns Regional Council and Anor [2009] QPEC 95

PARTIES:

BODY CORPORATE FOR CORAL HORIZONS

(Appellant)
v
CAIRNS REGIONAL COUNCIL

(Respondent)

And

CAIRNS SURF LIFESAVING INCORPORATED

(Co-Respondent)

FILE NO/S:

256 of 2008

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Cairns

DELIVERED ON:

9 October 2009 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

8-9 October 2009

JUDGE:

Everson DCJ

ORDER:

The appeal is allowed in part and the proposed development is approved subject to the conditions agreed between the parties and amended condition 52(c).

CATCHWORDS:

PLANNING – PLANNING AND ENVIRONMENT – CONDITONS OF APPROVAL – DISPUTE ABOUT A CERTAIN CONDITION – CHARACTER AND AMENITY - Whether a proposed condition is lawful or necessary.

COUNSEL:

T Fantin for the respondent
M Williamson for the co-respondent

SOLICITORS:

P&E Law for the appellant
King & Co solicitors for the respondent
MacDonnells Law for the co-respondent

This is a submitter appeal relating to the redevelopment of the Cairns Surf Lifesaving Club at 135 Williams Esplanade, Palm Cove.  The development application was described as one for "a material change of use (impact) for indoor sport & entertainment (redevelopment of Cairns Surf Lifesaving Club)".

What is proposed is an intensification of a longstanding use. Ultimately a three story development is proposed with an extensive capacity to provide a venue for functions on the top floor.  The submitter appellant is the body corporate for a four story accommodation building targeted at the holiday rental market immediately to the north of the subject site.  A similar building is immediately to the south.  Both adjoining buildings address the beach, which is on the opposite side of the Williams Esplanade, to the east.  They do not overlook or address the subject site in any significant way, presenting largely concrete walls with a few small windows in each instance.  At the rear of the proposed development is a car park, which is to be upgraded, which fronts Cedar Road to the west.

Palm Cove is a tourist orientated strip of beach just to the north of Cairns. Williams Esplanade contains numerous holiday accommodation complexes, restaurants, shops and other tourist orientated facilities.  Following extensive negotiations between the parties resulting in a suite of conditions, the only issue left for determination in this appeal is whether an additional condition should be imposed on the proposed development to protect the character and amenity of the area.

The appellant contends that a further condition is required in the following terms:-

"For the purpose of this Condition a 'Function' is defined as: 'An event carried out on the premises which requires an Events Liquor Licence and occurs past 7.00 p.m.'

1. no more than 12 'Functions' may be carried out within any one calendar year and no more than 2 'Functions' may be carried out in any one month of the year; and
2. all patrons departing from a 'Function', seeking car parking access or collection by bus or taxi, shall be required to exit the premises after 10.00 p.m. via the northern lounge side access, indicated on Figure A 'Acoustic, Treatment, Ground Floor', Drawing 09-017-A-AT    dated 20/03/09, to the rear car park/bus or taxi collection area."

Such a condition is opposed by the respondent and the co-respondent on the grounds that it is unnecessary.  The co-respondent further asserts that limiting the number of functions will restrict its opportunities to raise revenue for the provision of life saving infrastructure in the Cairns region.

The appellant relies upon a number of amorphous propositions concerning the amenity and character of Williams Esplanade, but it is conceded that there is nothing in the respondent's planning scheme which precludes a function venue on the subject site or expressly limits such a use.  Ms Taylor, who gave town planning evidence on behalf of the appellant, detailed a number of other function venues in the vicinity.

The focus of the appellant's case was the sleep disturbance of people in the vicinity following a function in the proposed development.  However, only the co-respondent called a noise expert, Mr King.  His evidence was clear and unchallenged.  He has recommended a number of conditions for the proposed development which, if adopted, he says, will ensure that the proposed development "can operate within appropriate noise limits and not adversely impact upon the amenity of the surrounding area."  These conditions include structural measures such as acoustic screens and enclosed walkways and operational measures, including restricted trading hours and requiring access restrictions after 10 p.m.

The acoustic control measures that have been recommended by Mr King have been implemented in full in the draft conditions agreed between the parties.  His evidence is that based on the ambient noise levels in the vicinity of the proposed development measured by him, sleep disturbance is unlikely to occur as a consequence of functions being conducted pursuant to the draft conditions.  I accept the evidence of Mr King.

The appellant's concerns focus on people leaving the building after a function rather than noise from within the building. The respondent and the co-respondent now propose an amendment to another condition which was previously agreed, condition 52(c), to address these concerns.  It is proposed to amend this condition to be:

"All departing patrons of the venue seeking car park, bus or taxi access shall be required to exit the premises after 10 p.m. by the northern lounge side access indicated on Figure A Acoustic Treatment Ground Floor DWG 09-017-A."

Pursuant to section 3.5.30 of the Integrated Planning Act 1997 a condition must:

1. be relevant to, but not an unreasonable imposition on, the development or use of the premises as a consequence of the development; or
2. reasonably required in respect of the development or use of the premises as a consequence of the development."

I find the proposed development to be consistent with the prevailing tourist focused amenity of Palm Cove.  The disputed condition proposed by the appellant is both an unreasonable imposition on the use of the proposed development as a function venue and not reasonably required as a consequence of this proposed use given the evidence of Mr King.  Any amenity impacts of people departing from a function are adequately and appropriately addressed by amended condition 52(c) which ensures they are well separated from the noise sensitive areas to the north and south of the proposed development.

Furthermore, the proposed condition is unlikely to achieve its purported aim of protecting the character and amenity of the area.  It merely sets an arbitrary limit on particular types of functions.  This is a clumsy approach, which could prove extremely costly to the co-respondent and restrict its capacity to provide lifesaving infrastructure to the wider community.  In the exercise of my discretion I would not impose such a condition in such circumstances.

The appeal is allowed in part and the proposed development is approved subject to the conditions agreed between the parties and amended condition 52(c) set out above.