BP Australia Limited v Caboolture Shire Council

[2004] QPEC 12

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

BP Australia Limited v Caboolture Shire Council [2004] QPEC 012

PARTIES:

BP AUSTRALIA LIMITED
Appellant
v
CABOOLTURE SHIRE COUNCIL
Respondent

FILE NO:

BD2483 of 2003

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

2 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18, 19 February 2004

JUDGE:

Quirk DCJ

ORDER:

I allow the appeal and order that the enforcement notice be set aside.

CATCHWORDS:

-

COUNSEL:

Mr M Hinson SC for the Appellant
Mr W Cochrane for the Respondent

SOLICITORS:

Hopgood Ganim for the Appellant

King & Company for the Respondent

1. This is an appeal against the giving of an enforcement notice, brought under s 4.1.32(1)) of the Integrated Planning Act.  The appeal is by way of hearing a new (s 4.1.52(1)).  The Council has the onus of establishing that the appeal should be dismissed (s 4.1.50(5)).  In deciding the appeal the Court may make the orders it considers appropriate (s 4.1.54)(1)).

1. The subject land is the site of a very large service centre, complex located on the northern arterial.  The complex has been established on both the eastern and western sides of the Bruce Highway near Morayfield.  It is the western half of it which is involved in this case.

1. In July of 1996 the land, which has a total area of 8.07 hectares, was rezoned from the Special Rural, Rural Residential B and Residential zones to the Special Facilities – Service Centre Zone.  The enforcement notice with which we are concerned alleges that condition 7 (b) of the approval given for the rezoning of the subject land has not been complied with; however, to be fair to the appellant regard must be had to Condition 7 read as a whole:

“(7 (a)    The applicant shall provide a 1 0m wide landscape buffer along the perimeter of the sites.  Such area is to be densely landscaped to the satisfaction of the Manager, Environment & Development.

(b)The applicant shall provide a 4m high sound attenuation fence along the perimeter of the sites, including along the boundaries of the deceleration and acceleration lanes of the Highway.

(c)Prior to opening the service centre, the applicant is to submit a report from a suitably qualified acoustic consultant confirming that the design of the centre including noise attenuation measures are sufficient to meet the requirements of the draft Environmental (Air) Protection Policy as it relates to noise and the impact on surrounding dwellings.  In addition, by agreement with council, one month, three months and nine months after the opening of the service centre, the applicant, at no cost to the Council, is to submit a report from a suitably qualified acoustic consultant detailing the results of noise measurements conducted to test compliance with the above requirements and confirming that these requirements are met.  Monitoring shall be conducted between 10pm and 6am and shall be manned so as to identify the noise sources.”

The Condition is, on any sensible reading of it, intended as a package of requirements to ensure that the developed land is appropriately buffered from surrounding land uses in regard to visual impact and noise attenuation.  It must also be borne in mind that we are here concerned with a development adjoining one of the busiest arterial roads in the State.  Extraordinarily high volumes of traffic (travelling at high speed) use the highway day and night.

1. The complaint which the enforcement notice seeks to address appears to be that a 4m high sound attenuation fence has not been constructed along the entire length of the deceleration and acceleration lanes from the Service Centre to the highway.  Where the fence is absent is largely outside the limits of the subject land.

1. I accept the appellant’s submission that Condition 7 should be read as a whole.  Condition 7(c) involves a carefully crafted performance based requirement in relation to noise attenuation measures.  There is no argument that these measures have in fact been put in place.  The report specifically referred to in Condition 7(c) has been furnished and has been accepted by the Council.

1. As to Condition 7(b) there are a number of unsatisfactory features of it which are readily apparent:

·At best it is ambiguously drawn.  Fundamentally it requires a 4m high sound attenuation fence along the perimeter of the site.  If the word “including” is to have any meaning, its final phrase requires no more than a fence along the boundaries of the deceleration and acceleration lanes where that boundary coincides with the perimeter of the site.  As the appellant submitted, planning approvals ought to be construed in a way which places the least burden on the landowner when ambiguity arises.  (Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51 at 57).

·There are obvious difficulties with a requirement which calls for works to be carried out on land which is neither part of the subject land nor owned by its proprietor.  The evidence suggested that the Main Roads Department is not interested in the erection of attenuation barriers on the land forming part of the road reserve.  Although some evidence was given that the owner of other land adjoining the acceleration lane (yet undeveloped) would understandably be happy if the appellants bear the cost of constructing an attenuation barrier, I am not sure that this satisfactorily answers the difficulty.

·More importantly in the field of effective noise attenuation, Condition 7(b) adds nothing to the remainder of Condition 7.  Following a thorough investigation of the matter, Mr Kamst, for reasons explained in his evidence and his report, concluded that there was no practical or reasonable purpose for the attenuation measures contended for and over and above those constructed pursuant to Condition 7(c).  I accept his evidence on this point.

1. What prompted this enforcement notice appears to have been political pressure brought to bear upon Council members by a number of local residents.  Some of these gave evidence and voiced complaints about the noise situation which exists in the area.  While I do not question their sincerity, their evidence fell short of indicating that the existence of attenuation barriers along the deceleration and acceleration lanes outside the subject land would substantially ameliorate their concerns.

1. The respondent also called in an experienced noise consultant, Mr King.  His evidence indicated that (not surprisingly) further barriers erected outside the subject land might improve the general noise situation for nearby residents.  However whether the noise, which would be so abated, could be attributable to this development was not really clear. 

1. All of this evidence was really beside the point which was determinative in this matter.  This is whether Condition 7(b) required the appellant’s to construct an attenuation fence along the length of the mentioned lanes outside the subject land.  For the reasons I have outlined I find that such a requirement cannot be sufficiently gleaned from Condition 7(b) as drafted.  I regard it as so uncertain as to be meaningless and that it should be disregarded.

1. I find that the onus of showing that the enforcement notice should be sustained and that the appeal dismissed has not been discharged.  I allow the appeal and order that the enforcement notice be set aside.