Body Corporate for Kelly's Beach Resort v Burnett Shire Council
[2003] QPEC 23
•2 July 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 023
PARTIES:
BODY CORPORATE FOR KELLY’S BEACH RESORT
Appellant
v
BURNETT SHIRE COUNCIL
Respondent
And
KEITH RAWLE & ORS
Co-RespondentsFILE NO:
Appeal No 1 of 2002
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Bundaberg
DELIVERED ON:
2 July 2003
DELIVERED AT:
Brisbane
HEARING DATE:
7, 8, 9, 23 May; written submissions 9 June 2003
JUDGE:
Skoien SJDC
ORDER:
Appeal allowed
CATCHWORDS:
Material change of use for more restricted use of existing holiday resort; amenity
COUNSEL:
Mr C L Hughes SC for the appellant
Mr M Hinson SC for the respondent
Mrs Tickner and Mr Aarons (co-respondents) for all co-respondentsSOLICITORS:
Payne Butler & Lans for the appellant
Connor O’Meara for the respondent
This is an applicant’s appeal against the Council’s refusal of an application by the appellant “Kelly’s Beach Resort” for a development permit for a material change of use of premises at Trevors Road, Bargara. The existing use of the premises, pursuant to town planning consent permits issued in 1987 and 1988, is “multiple dwellings” (41 dwelling units), a shop, and restaurant “associated with the unit resort development”. The proposed use, the subject of the appeal, is accommodation units. The application also seeks to extend the restaurant to include a paved area between it and the existing swimming pool and to include the first floor of the existing building containing the restaurant as a function room.
The Site
The land the subject of this application (the site) is located between Trevors Road and Larder Street in the coastal community of Barbara near Bundaberg. A strata titled tourism resort exists on the site which is described as Lots 1 to 10 and Lots 12 to 42 and common property on BUP11958, Parish of Barolin. The application excludes Lot 11 within this plan as one of the unit owners did not wish to be part of the application. The total area of the site is 1.985 hectares.
The premises are included in the Residential A zone under the Council’s transitional Planning Scheme, and are within the Urban designation under the Strategic Plan. The proposed uses are permissible uses.
The site is framed along its northern and southern boundaries by detached dwellings. It has frontages to Larder Street to the east and Trevors Road to the west. Larder Street is a no through road (unconstructed in its central section) and has a carriageway width of 3.5 metres. Trevors Road has a carriageway width of seven metres along the frontage of the site with the pavement narrowing to the north and south. The land slopes from the northern and southern boundaries towards its centre where Kelly’s Creek, an existing natural waterway, drains through the site to the ocean.
Kelly’s Beach Resort was established on the site in the late 1980s in what could be described then as almost a greenfields development area with only a few houses in the vicinity of the resort. The last 10 years have seen continued detached housing development progressively surround the resort. The resort is located two streets back from the popular Kelly’s Beach.
The resort, with 41 units and administration building (containing a shop and restaurant) and centrally located recreation and laundry facilities, sits in an attractive landscaped setting. Internal roads and car parks are located around the perimeter of the resort with units well set back from the site boundaries. Car parking spaces for the units are scattered throughout the development and those associated with the shop and restaurant are located adjacent to the administration building. Access to one of the bus parking bays, designed and constructed to accommodate a coach, is constrained by the erection of a pergola so that only a mini bus can park there.
The resort is an easy, level walk of approximately 250 metres, via Larder Street and Durdins Road, to Kelly’s Beach. Access for cars and buses to the resort is split with some entering the site from Bundaberg/Bargara Road via Hughes Road/Durdins Road/Trevors Road and others through the commercial centre of Bargara along the beach front and then via Durdins Road. An alternative route to the site is to use Watsons Road and Hughes Road.
The Locality
Bargara is an attractive residential suburb of Bundaberg and is also a popular tourist destination catering predominantly for the seasonal self drive domestic market. Its appeal has been enhanced by the considerable effort and cost associated with the recent revitalisation of the Bargara town centre and the nearby foreshore area. There has been a concerted effort to promote tourism in Bargara capitalising on the locational advantage of it being the southernmost access point to the Great Barrier Reef. Bargara offers a relaxed holiday experience with a relatively low level of infrastructure compared with the Gold and Sunshine Coasts. Improved accessibility to Brisbane via the tilt train and upgrading of the Bruce Highway, as well as the opportunity for a relatively low cost holiday, has seen a steady growth in the domestic and international tourism market.
Realisation of the tourism potential for Bargara is reflected in the development activity along the Esplanade to the north of the site, beyond the causeway over a creek. This area has seen the development of two seven storey unit blocks and redevelopment of the Bargara Hotel. South of the causeway tourism accommodation includes this resort as well as a caravan park, bed and breakfast accommodation and some holiday rental houses. The dominant land use in this area is, however, low density detached housing on conventional sized allotments. Further afield, the built up area gives way to farms.
History of Approvals
As the lawfulness of present activities has been called into question by some of the submitters it is useful to examine the history of approvals. To properly understand the approvals it is necessary to look both at the documents constituting the relevant applications and the Council’s decisions and conditions.
On 15 April 1987 an application for the project involving “a village design concept” with “densely landscaped open space”, a tennis court, a swimming pool, a general store and a resident manager was lodged. Clearly, on its face, this application contemplated a holiday or tourist facility. The original proposal plan (ex 3, p163) illustrated such a facility. Notwithstanding objections the Council approved this application for multiple dwellings (41 dwelling units), a shop and attached residence in May 1987.
Before construction an application for a minor modification of the town planning consent was lodged in February of 1988. The modification involved a reduction of the overall scale of the 41 “units”; a shop; reduced car parking but which “includes two parking bays for buses and one service bay”. Exhibit 3, p195 shows not one but two, references to parking bays for buses and the plan submitted (ex 3, p197) shows two elongated bus parking bays to the immediate north west of “Admin. Shop”. Perhaps more importantly the buildings then proposed and approved were described as “bungalows” which suggests small buildings suitable only for short term holiday accommodation. The overall picture was of a holiday resort with very limited potential for permanent residents.
The Council approved the application for modification but required a further application for restaurant facilities the addition of which it did not regard as minor.
Thus, it seems clear enough that buses or coaches were always intended to be parked on the site from time to time. Certainly there was no condition imposed precluding such vehicles coming to the site.
In December 1998, again notwithstanding objections from some of the local residents, the Council approved a restaurant at the resort. The restaurant was limited to 132m2 and Conditions 10 and 11 made it clear that the facility was to be primarily for on-site residents rather than the general public although the general public were certainly not excluded.
I accept a submission of Mr Hughes, for Kelly’s Beach Resort, that there can be no doubt that what was approved was a holiday, or tourist, resort in the form of a cluster of bungalows around central facilities which included a shop, a restaurant, a tennis court and swimming pool, all served by extensive and adequate parking areas. I accept that the resort was not of the type likely to provide permanent residential accommodation that coaches or buses were likely to bring people to the resort and that the restaurant was likely to provide for limited numbers of diners other than guests of the resort.
As recorded (para [11]) the permitted and existing use was for “multiple dwellings” the definition of which in the planning scheme is:-
“Multiple dwelling – any land, building or other structure or any part thereof used or intended to be used as flats or home units.”
It is helpful to consider what use of the bungalows is permitted by multiple dwelling use.
At once I reject the notion that the use permits only the letting of a bungalow to a family group. Had that been intended the drafter would no doubt have said so, as occurred, for example in the planning scheme definition of “dwelling house” which includes the qualification “intended to comprise only self contained accommodation for the exclusive use of one family”.
Furthermore, as Mr Hughes submitted, it is noteworthy that there is no restriction in the definition of multiple dwelling on short term letting or holiday accommodation. Indeed the definition includes the description “flats”. It is notorious that flats are frequently taken by unrelated people who live together for convenience and economy. Flats in a holiday area are also often similarly rented for short terms. Were a Kelly’s Beach Resort bungalow to be rented for a period by a group of students, work-mates, sporting team-mates or the like I would be surprised if anyone seriously argued that the bungalow was not being used as a flat. No condition restricting any such use was imposed by the Council. Then, no condition restricting the ferrying of guests to and from the resort by bus or coach was imposed. Indeed the plans of the resort contemplated the parking of buses or coaches, even though as ultimately configured those parking areas were inappropriate. So if the group of students, work-mates or sportsmen were large enough to result in the renting of a group of bungalows/flats, transport by such vehicles would not have been unforseen or unlawful. Finally, it is noted that the Certificate of Classification issued by the Council classed the bungalow as “Class 3 Dwellings which classification relaters to “a residential building …. which is a common place of ….. transient living for a number of unrelated persons”.
It seems, however, that while Kelly’s Beach Resort has generally let its bungalows on a per unit basis it has also sometimes let them on a per bed basis. I think it probable that the latter use falls outside the multiple dwelling use which concentrates on the use of premises as flats or home units neither of which, in ordinary experience, are let per bed, but as an entire dwelling unit.
On this appeal it seems to have been accepted by all parties that per bed letting would fall within the use of an “accommodation unit”, defined as:-
“accommodation unit – any land, building or other structure used or intended for use as boarding houses, guest houses, hostels, unlicensed hotels and motels, unlicensed residential clubs or serviced rooms”, relying on the reference to “hostels”,
because of the inclusion of the word “hostels”.
I agree with Mr Challenor, the co-respondent’s consultant town planner, that even that is not as clear as it might be (the Shorter English Oxford Dictionary does not specifically relate the term to a bed letting as opposed to room letting distinction), but I think it is clear enough that it does encompass such things as the typical back-packer hostel as they notoriously exist in Australia, where the travelling back-packer pays for a bed, with use of facilities in common with other guests. McLauchlan DCJ dealt with such a use in Noosa Shire Council v Statey (19 April 2002, unreported). To the extent that Kelly’s Beach resort has, up to the present engaged in that sort of letting, the use has probably been unlawfully carried out.
On the other hand, to the extent to which guests have fallen into the category described in para [19] in my opinion the use has been lawful. These are not breach proceedings and so far as I am aware no such proceedings have been brought in the past. I am not asked to reach a definite conclusion on the question of possible illegality. Indeed the submissions of the co-respondents do not urge me to do so, merely referring to the past practices as “questionable”.
While no accurate estimate of the ratio of lawful to probably unlawful use can be made, the evidence strongly suggests that the use has been predominantly in the category which I consider to be lawful.
In recent times, about one third of guests (about 9 000 per year) come in family or other groups, generally travelling by private car. However most (about 22 000 per year) arrive in coaches arranged by two tour organisations, Oz Experience and Contiki. The main attraction for those two tour groups is, apart from the appeal of the area itself, the ready access available to the southern extremity of the Great Barrier Reef, particularly Lady Musgrave Island and Lady Elliott Island.
During the winter months two Contiki coaches arrive at Kelly’s Beach Resort directly from Brisbane Airport at 6-7 pm every second day. The occupants are groups of American children in age groups of 12-15 and 15-18 who have flown directly from the United States. They spend two nights at the resort with the intervening day visiting Lady Musgrave Island. They leave the following morning. I accept that no adequate alternative accommodation for these groups exists in the Bargara (indeed Bundaberg) area, and the alternative would be for them to seek accommodation in Agnes Water or the Town of 1770, over an hour’s extra drive.
Throughout the year Oz Experience coaches (one northbound, one southbound) arrive at Kelly’s Beach Resort between 3-6 pm on Mondays, Wednesdays and Fridays. On other days only one coach arrives. They depart at about 8.30 am.
The Proposal
Because of perceived difficulties in relating all of the uses of the resort to the use of multiple dwellings, and no doubt because of some complaints made to the Council about the way in which it was being used, Kelly’s Beach Resort applied to change the use to accommodation units. It also sought to extend the restaurant to include a paved area between it and the existing swimming pool and to create a function room in the first floor of the building containing the restaurant.
The Council refused that application on amenity grounds, whereupon Kelly’s Beach Resort amended the proposal to which the Council now agrees, subject to conditions.
No party has raised as an issue s 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA). The changes to the application can readily be characterised as minor changes for the purposes of that provision. They are directed towards avoiding any potentially adverse amenity impacts that could arise, absent the changes. The changes are:-
(a) deletion of the originally intended use of 15 units (Lots 27-41) as dormitory/hostel style accommodation;
(b) revision of the coach parking layout to allow one-way on-site movements and avoiding the need for coaches to be driven in reverse;
(c) inclusion of a site management plan;
(d) limiting the number of restaurant patrons to 100;
(e) limiting the number of non-resident visitors to the restaurant or function room or both to 22 at any one time.
As can be seen from para [30](a) above, the proposal now deletes the intended dormitory accommodation in 15 of the bungalows. The intention now is to use all bungalows in a per unit letting and to accept a condition (through a management plan) forbidding per bed letting. One might wonder, in that case, why the change of use is strictly necessary. The answer is said to be to regularise and to crystallize what activities the resort may and may not engage in. I accept that there is the intention also to reduce the number of occasions on which disturbance to local residents occurs. In any event no-one has submitted that there is any irregularity, from a legal or planning point of view in the application for the proposed new use which is to be subject to the proffered restrictive condition on per bed letting.
Other than some relatively minor work to the restaurant area, little visible change is proposed. The larger bungalows will accommodate up to six people, the smaller up to five.
Essentially the proposal now involves the following:-
(a) the material change of use to “accommodation units”, which would also permit the less intensive use of “multiple dwellings”;
(b) an extension of the restaurant dining area to adjacent areas such as the “bar” and outdoors to provide flexibility with the location of diners but limited, at all times, to no more than 100 patron seats and approval to use the function room;
(c) approval to use both the restaurant and function room above it for visitors not accommodated on the site provided that at any time no more than a maximum of 22 such visitors are to be present at those venues;
(d) amendments of the site plan to facilitate on-site parking for coaches on the basis that:
(i) a maximum of 4 coaches will be parked on the site for 3 months only (June, July and August);
(ii) for that 3 month period the maximum weekly number of one-way bus movements shall be 56 and the maximum number on any day will be 16;
(iii) a maximum of 2 coaches will be parked on the site at any one time for the balance 9 months of the year;
(iv) for that balance period of 9 months the maximum number of one-way bus movements per week shall be 28 and the maximum number on any day will be 8:
(e) coach movements on the site are to be one way with the entry point at a new northern access point and the exit at a new southern exit point as depicted on the plan ex. 2;
(f) coach movements to and from the site are to be limited to between the hours of 7am and 8.30pm (save for the 3 months June, July and August of the year 2003 only, when the earliest coach movement will be permitted at 6.30am);
(g) the site plan is also to be amended to incorporate:
(i) an acoustic fence along the Trevors Road boundary (with returns at each end) other than at the two points of access or egress; and
(ii) an appropriate new illuminated sign.
Issues
The issues in the appeal can be summarised under the headings planning documents, traffic, parking, need and amenity.
Because this is a Transitional Planning Scheme (ie one not drawn under the provisions of IPA) the provisions of the repealed Local Government (Planning and Environment) Act 1990 (P & E Act) apply (IPA s.6.1.2). As this would have involved a consent use under the P & E Act, because of s.6.1.30(3)(b) of IPA, regard will be had to s.4.13 of the P & E Act and if necessary to s.4.13(5A) which provided:-
“(i)The local government must refuse to approve the application if –
(a) the application conflicts with any relevant Strategic Plan or any development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
Town Planning Documents
As was said in Bell v Noosa Shire Council (1983) QPLR 311 at 313:-
“(a)[a consent use] ”is obviously one which, in the overall scheme of the town plan, should be permitted in an appropriate case. Otherwise it would have been a prohibited use;
and
(b)“a landowner must be taken to contemplate that a nearby parcel of land …. may come to be put to one of the uses permitted with the consent of the local authority.
It cannot be forgotten that establishment of the resort was permitted some 15 years ago and has operated since then in a predominantly lawful way. Few residential houses were in the locality when the approval was first given. Most of the existing houses have been built since so it cannot be said that the resort comes as a surprise to or imposition on the inhabitants of those houses. They had actual notice of the resort use. Only those whose arrival pre-dated the resort have to be considered as struck with the constructive notice described in para [36].
A reading of the statement of intent of the Strategic Plan gives a clear indication that tourism is a prime consideration in Bargara:-
s.2.1.3 “Bargara is intended to be the main service centre for coastal development within the Shire as envisaged as one of the most important growth areas, with emphasis on provision of facilities for tourism, recreation, residential, commercial, community and industrial development.
Integrated housing and multiple unit developments will be encouraged in selected localities within this area as an integral part of residential development and lifestyle opportunities.Provision will also be made for medium and high density residential and holiday accommodation and tourist facilities in proximity to the main beaches and commercial areas. Commercial activities are intended to be centralised to provide consolidated business and entertainment nodes for Bargara and the developing urban areas along the coast.”
The following tourism objectives are in the Strategic Plan:-
“17.1.1 To provide for and promote the expansion of tourist development within the Shire and region.
17.2.1 To provide areas for tourist activities.”
The Strategic Plan includes the following statements of implementation of the tourist objective:-
“17.1.2 Council will support and encourage the establishment of tourist development which recognise and promote the natural attributes of the Shire and/or the region and which are of a nature and scale consistent with the locality.
17.2.4 The Planning Scheme makes provision for particular developments. The designation is to provide the Council with sufficient flexibility to permit a variety of uses within a tourist project. Where considered to be desirable, the Council will approve applications for development for particular developments in response to the requirements for specific tourist or recreation projects. The requirements in relation to each development will be determined by Council on the circumstances of each application.”
Equally the Strategic Plan seeks to protect the amenity of residential areas:-
“Objective 3.9.1 To enhance the visual appearance and amenity of existing and proposed urban areas.”
And the following implementation paragraphs of the tourism objective:-
“17.1.3. Applications to provide for the establishment of tourist developments will be subject to conditions requiring a high standard of development to:
(1)ensure the proposed development does not adversely impact on the natural environment or local community or the amenity of the surrounding area.
17.1.4 The Council will require all applications for large scale tourist and recreation developments to be accompanied by a planning and management report outlining such matters as, impact on residents and residential amenity if located within an urban or residential area, long term management of the natural environment in and surrounding the proposed development, site coverage, layout of buildings, provision of infrastructure, landscaping and the protection of resources and compliance with the objectives established with the strategic plan.
17.1.5 While Council supports tourism development it will not generally support development of large scale tourist development or tourist generated in residential areas unless:
(1)it can be demonstrated to Council’s complete satisfaction that the proposed development will not adversely impact upon the residents or residential amenity of the area and/or
(2)the area has been designated for tourist development in a Development Control Plan (DCP) or Local Area Plan (LAP) covering the proposed site.
The site has not been designated for tourist development in a Development Control Plan or Local Area Plan.
Thus the Strategic Plan makes it plain that the balancing exercise between tourism and residential amenity is to be carried out carefully.
The Strategic Plan also clearly provides for the economic well-being of Bargara:-
“Aim 4 – To promote sound economic development and diversification of industries appropriate to the Shire as a means of establishing a healthy regional economy and prosperous community.
Traffic
Two highly experienced traffic engineers gave evidence, Mr Holland and Mr Beard. Ultimately I did not think their opinions varied greatly.
In a perfect world buses and coaches of the type which have been going to Kelly’s Beach Resort (and it is most unlikely that larger types will ever be used) would not use the roads which give access. But in practice the small numbers of movements which are set out in the Management Plan are highly unlikely to give rise to safety concerns or cause notable damage to the roadways. As Mr Beard candidly put it, the question raised by the coach movements is one of amenity.
Indeed from the purely traffic engineering point of view what is now proposed is a vast improvement over what has been happening for some years. Up till now coaches have had to reverse into the site at its entry point midway along the Trevors Road frontage. Vehicles of that size manoeuvring in Trevors Road to achieve that and the actual reversing itself are potentially dangerous and, of course, noisy. What is planned in future is an entry point at the northern end of the frontage, one way traffic just within the site and behind an acoustic fence towards the south and an exit point at the southern end of the frontage. That obviously reduces both risk and noise.
Parking
I accept Mr Holland’s evidence that coach parking will be adequately catered for in the four bays he has proposed in ex 2. I also accept his evidence that while there is capacity for the creation of up to 10 extra car parking spaces, it is unlikely that they will be needed. There are adequate numbers of car parks to provide for a car at each of the 41 bungalows as well as some parking for staff. In practice they are not all used because most guests come in coaches. The only likely heavy demand for parking would be when the dining room is fully patronised by the 22 permitted non-residents. There will then, of course, be occasions when some of them will park in Trevors Road but proper signs, oral requests by management and the preference of most drivers to park as close as possible to the destination should reduce that to a minimum. One must bear in mind that even in purely residential areas street parking occurs from time to time.
Need
Need, in planning terms, usually raises the question whether the proposed facility will add something desirable to the relevant area, to the benefit of those who live there. See for example Fitzgibbon Hotels Pty Ltd v Logan CC (1997) QPELR 208; Harburg Investments Pty Ltd v BCC (2000) QPELR 313.
That is not the case here, at least in the strictest sense. The residents in the immediate area are probably unlikely to derive much practical benefit from Kelly’s Beach Resort, although the possibility should not be totally disregarded. I would be surprised if occasional patronage of the restaurant by local residents, many of whom live within walking distance, did not occur, especially if the cuisine is notably good. It seems that the tennis court use is not restricted entirely to guests of the resort. Finally, local residents may find the resort occasionally provides very convenient accommodation for their visiting friends and relatives. I do not, however, suggest that this “need” is of weighty moment.
However the planning concept of need is not necessarily restricted to a consideration of the needs of the immediate locality. The relevant area can be larger than that. It can encompass the surrounding suburb, or even the whole shire. The material benefit can be the economic benefit which a development can bring to that larger area. This is emphasised in Aim 4 of the Strategic Plan (see para [44]). Rather than “need” a more appropriate title for this issue might have been “Regional Economy”.
The only evidence specifically on the nature and extent of the contribution made by Kelly’s Beach Resort to the regional economy came from Mr Abnett, an economist who is an expert in the field. Mr Robertson of Lady Musgrave Barrier Reef Cruises and Ms Parish of the Bargara IGA Supermarket provided much of the raw material on which his opinions were based and they gave evidence before me. I considered them to be helpful witnesses and Mr Abnett’s evidence to be reliable.
As explained by Mr Abnett the continued profitable existence of Kelly’s Beach Resort has dramatic beneficial impacts on not only the local community of Bargara, but also on a number of businesses in the Shire (and even Bundaberg).
The evidence of Mr Abnett established that international visitors make up 70% of the total visitors to Kelly’s Beach Resort. These international visitors spend annually $1.184 million in accommodation and food at Kelly’s Beach Resort and $924,478.00 at the 10 local businesses directly surveyed by Mr Abnett. This includes expenditure of $498,540.00 at Lady Musgrave Barrier Reef Cruises; $219,000.00 at the IGA Supermarket; $131,000.00 at Bargara Beach Hotel.
In addition, almost $120,000.00 is spent by Kelly’s Beach Resort buying bulk purchases from the local community. For example, the Resort spends $30,000.00 a year in bulk purchases from a local butchery. To replace this would take 1,500 retail purchases, averaging $20 per purchase. To this must be added an untold amount of money spent at many other businesses in the Bargara and Bundaberg regions, which were not the subject of Mr Abnett’s survey.
The evidence shows that apart from this expenditure, Kelly’s Beach Resort employs 24 people and the business it generates is directly responsible for at least 14 local jobs. In reality however, potential job losses should Kelly’s Beach Resort no longer be able to provide its tourist accommodation facilities in this locality would be greatly in excess of that number.
Mr Abnett’s evidence established not only that there is a town planning need (or regional economy need) for Kelly’s Beach Resort to remain profitable but also that to do so, it needs to retain the coach business provided by OZ Experience and Contiki. That was also the effect of the evidence of Mr Doust, the manager of Kelly’s Beach Resort. The continued existence of Kelly’s Beach Resort and its capacity to accommodate visitors provides very large community benefits to the locality in both income and employment. If the resort is not profitable, it will no doubt close down.
The importance of this to any town in provincial Queensland is obvious. It is a matter which town planners should, and do, regard as important whether or not the local planning documents spell it out. This Strategic Plan actually does spell it out. It is not to be regarded as the sole matter of importance. In this case I regard the balance between the expressed aims of tourism while protecting the amenity to be the dominant question. However, the regional economy is a matter which properly should be thrown onto the balance and may even tip the balance. That is perhaps another way of saying what the Court of Appeal said in Arksmead v Gold Coast City Council (2000) 107 LGRA 60 at 65.
Amenity
I have expressed my recognition of the importance of amenity. The evidence here established that the respect in which the amenity of the area might be affected adversely can be considered in terms of traffic, noise and what might be described as “intrusion” into the lives of local residents by guests of Kelly’s Beach Resort.
It is trite to recall that probably all uses of land have some adverse effects on the occupants of a neighbouring residence. Even the most desirable neighbour must occasionally create noise or other activity which to some extent, even minor, is an annoyance to others. Less desirable neighbouring residences may be the site of barking dogs, noisy children, over-loud television or stereo sets, over-frequent lawn mowing, a noisy vehicle. Human activities which disturb others may be annoyingly early or annoyingly late. The perfect neighbour does not exist except for the most tolerant person. So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded.
On this question it is relevant to recall, as I said in para [37] that very many of the surrounding residents came to live in the area knowing that Kelly’s Beach Resort already existed as a holiday, short-term letting establishment at which quite large numbers of guests are likely to be present. It would not be reasonable for them to be critical of the effect on the amenity which a well managed resort of that type is likely to create. While that consideration applies only to those “post-resort” residents, there is a consideration which applies generally to all residents, namely that the tourist resort has, during the life of this Planning Scheme existed as a fact of life, and, as I have found, at least predominantly lawfully so.
From the foregoing it follows it seems to me that there are certain logical difficulties in resisting an application which seeks to regularise the long standing activity on the site and to submit to conditions which are most likely to reduce any adverse impact on the reasonable amenity expectations of local residents.
Mr Challenor, the consultant town planner called by the co-respondent submitters helped them greatly to articulate their objections in conformity with the applicable planning law. I thought, however, that he underplayed the Strategic Plan’s emphasis on the values of tourism to Bargara (and wider areas of the Shire) and also the regional economic benefit provided by the resort. In evidence he argued the illogicality of accepting the validity of an illegal use to support an extension of the use. But, as I have found, the use as a tourist resort has always been legal even if (though I have not decided the question finally) it was maintained in some respects illegally. Ultimately, I thought a better balance was struck by Mr Ovenden, the planner called by Kelly’s Beach Resort and Mr Phillips the Council’s planner, both of whom supported the revised application, subject to the conditions which Kelly’s’ Beach Resort is prepared to accept.
I have paid attention to the objections lodged by the submitters. However some comments have to be made on them. First, I refer back to the remarks I made in paras [60]-[62]. Second, of the apparently large number of objections (146), 81 were by petition, and of the rest, about half came from only three households. Third, there was a substantial number (58) of supporting submitters, both business people and residents. Fourth, I heard evidence from four local residents who were most supportive of the resort and persuasively so. Fifth, those objecting co-respondents who gave evidence did not seem to want to close the resort down; none felt they would have to leave home because of the resort and few, it seems, had ever made a complaint to the management of the resort. Finally, I consider many incorrectly thought that the resort was, or would become, the traditional backpacker resort.
I have no doubt that over the past years of operation of the resort, local residents have been the recipients or observers of some activities which they genuinely regarded as unpleasant, carried out by people most of whom were probably guests of the resort. It is a matter of regret that such things occur. However I note that none of the incidents complained of were said to occur regularly nor, with one exception, were they serious, objectively speaking. Stones on roofs make that exception, but in that case I wonder whether the culprits were resort guests or someone else, unconnected with the resort, who felt aggrieved about something real or imagined. Certainly there was no evidence from anyone of actual injury or damage.
Good management is, of course, a potent force for peace and quiet. I consider Mr and Mrs Doust want the resort to succeed and I think it likely they understand that an unruly resort is unlikely to prosper. A condition should require a clear sign giving notice of an all-hours phone number to which complaints can be directed.
As I have said (paras [46], [47]) traffic is an amenity issue and what is proposed will be vastly less intrusive than what has been occurring which Mr Tickner’s video illustrated. The 2.4m high acoustic fence (which I consider should run the length of Trevors Road, unbroken, between the two access points) will reduce the noise made by engines, door slams, luggage handling and conversation to acceptable limits even at the relatively early hours of the departure of coaches. The planned 20m return of that fence along the northern and southern boundaries will similarly protect those neighbouring residences.
There was evidence of discomfort felt by residents because the occupants of passing coaches could look into the windows of houses, as well as from the noise of the coach engines. Bearing in mind that the coaches are moving I find the former concept to be most unlikely to cause offence to a reasonable resident. As for the noise, the maximum number of movements, per day or per week, are few and the hours of occurrences neither unreasonably early or late. Again I see no reasonable cause for complaint. I expect even the most secluded residential street would occasionally have a considerably noisier truck, car or motor cycle drive along it than a modern tourist coach.
To the extent to which noise and intrusion will provide an adverse effect on the amenity, I consider that the reason for that effect (that it is part and parcel of tourism in the Shire) must be weighed in the balance and consideration should be given to the question whether there are any benefits to the community which should also be added to one side of the balance. In this case, very large community economic benefits must surely be added. By way of comparison, residents of residential areas who suffer some occasional noise nuisance from landing or departing aircraft must, if acting reasonably, consider the overall economic benefit to the community flowing from an air service. Responsible planning authorities take that into account.
Looking at the balance of the benefits of tourism to the regional economy which the Strategic Plan contemplates as opposed to the relatively minor adverse effects on the residential amenity and judged in the context of an existing tourist resort on the site, I conclude that this application by Kelly’s Beach Resort does not create a conflict with the Planning Scheme. If that conclusion should be wrong then it seems to me to be very clear that the widespread benefits flowing from the resort, the fact that the resort has long existed and the fact that the effect of this change to the resort will reduce any adverse impacts on the amenity, would amply lead to the conclusion that the change of use is justified despite the conflict.
Conditions
I have stated my views on the requirements for extra car parks (other than as set out in ex. 2).
In my opinion, because of the resort’s existing contracts, in June, July and August 2003 coaches should be allowed to start engines at 6.30am, otherwise no earlier than 7.00am. Arrival on site by 8.30pm seems to me to be reasonable. That is not late and the slight noise should not create a nuisance.
Although there would be certain management advantages for Mr Doust to retain the existing mid-frontage opening in the 2.4m acoustic fence to be constructed, I do not see them as outweighing the possibilities of serious noise disturbance, admittedly to only one or two houses. That could lead to substantial ill-feeling, to the detriment of the resort and those residents. The resort management will have to use its ingenuity to accommodate the change brought about by the closure.
A question is whether the proposed site management plan should provide for the manager to live on site, in Unit 16 adjacent to the shop and restaurant building. At present Mr Doust and his wife and child live immediately next door in Larder Street. There is no reason why they should not be allowed to remain living as a family in a larger house than Unit 16. I see no practical impediment to proper resort management from that house, provided the public is adequately made aware of a complaints phone number. A condition should provide that unless the manager is living in the house in which Mr and Mrs Doust now live, the manager’s residence must be on the site in Unit 16 (and Unit 16 should remain generally available for that use when required).
Except as modified herein or by agreement of the parties, the management plan in Mr Ovenden’s report, ex. 1, should provide the basis for conditions to be incorporated in the final order of the court.
Conclusion
In due course I will allow the appeal. In the meantime I adjourn it to allow the parties to attempt to agree all proper conditions.
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