COUNCIL of the SHIRE of HERBERTON v Vance

[2000] QPEC 42

[COUNCIL OF THE SHIRE OF HERBERTON v Vance & Anor]

[2000] QPE 042

PLANNING AND ENVIRONMENT COURT

JUDGE C F WALL QC

No 109 of 2000

COUNCIL OF THE SHIRE OF HERBERTON                   Applicant

and

LEONARD HENRY VANCE and
JULIE ANN VANCE  Respondents

TOWNSVILLE

..DATE 10/07/2000

JUDGMENT

1

HIS HONOUR:  This is an application for a declaration and an injunction relating to the use by the respondents of their land, lot 402 on Crown plan H25327, county of Cardwell, parish of Herberton, for activities of an industrial nature notwithstanding the fact that the land is situated in the rural zone of the applicant's planning scheme.

I am satisfied that the respondents have had ample notice of the application.  They have been served with it and with the amended application.  They have also been advised of the hearing date and they have chosen not to appear to resist the orders sought by the applicant.  In those circumstances, I considered it appropriate to hear the application and if warranted, make orders of the nature sought, notwithstanding the absence of any appearance by or on behalf of the respondents.

I am satisfied that the subject land is within the rural zone in the shire of Herberton.  The table of development for the rural zone appears on pages 32 and 33 of the applicant's planning scheme.  Column 1 lists the development activities which can be carried on in the zone without the consent of the council.  These are, agricultural; animal husbandry; dairy; dwelling house; forestry of a particular nature; home occupation; host farm rural stay of a particular nature; public park; public utility and trade storage building. 

I am satisfied on the material before me that the activities carried out by the respondents, the subject of complaint by the applicant, do not fall within any of these development categories.  Column 2 lists the development activities which may be undertaken only with the consent of the council.  Even if it could be said that the activities being carried out by the respondents come within the home industry activity, one of those listed in column 2 (see also the definition of “home industry” on pages 13 and 14 of the planning scheme), which I doubt, the fact is that the council has not given the respondents' consent to carry out such activities.

The extent to which the activities being carried out by the respondents interfere with the amenity of the neighbourhood by reason of the omission of dust and fumes and noise, such as is referred to in the material, lead me to the conclusion that the activities being carried out go beyond those encompassed by a home industry.

The activities which have been and still are being carried out on the land by the respondents are referred to in the material.  The commencement date for these activities is about early 1997.

In the affidavit of Gordon Kenneth Malcolm, Exhibit GKM1 contains three letters from neighbouring landowners complaining about the respondents' activities on the land.  These letters were written in June 1997 and variously refer to those activities as a trucking and/or earthmoving business, involving numerous old trucks, trailers, trailers loaded with junk, a grader and a bulldozer.  Trucks and trailers were observed to come and go from the property and a grader was observed working on the land.

Mrs Canfield considered that the land was being used a depot for trucks and earthmoving equipment which involved industrial noises and activity she described as being like a junk yard.  Mr and Mrs Horwood referred to the activities as being an earthmoving and truck hauling business, a truck depot and repair yard, including a ramp used for off loading trailers and earthmoving equipment, and a shed being constructed for the repair of numerous vehicles.  They also referred to activities involving banging and welding, all types of vehicles coming and going and repairs being carried out on vehicles.  They concluded, rightly so in my view, that some type of industrial business was being carried out on the land.

Mr and Mrs Braun in their letter referred to problems involving noise pollution, air pollution and other activities pointing towards an industrial use of the land.  They mentioned that trucks, low loaders, graders, bobcats and cars were constantly moved in and out over the day and were intermittently revved and tested.  They also heard metal banging, clanking, hammering and the grinding of power drills.  Fumes from trucks, graders and heavy machinery also interfered with their amenity.  They also observed the building of a ramp for the unloading of heavy equipment and observed the big work shed under construction.  These activities led them to conclude that the respondents were gearing up to use the property, if not already using it, as a truck and maintenance depot.  Complaints received from neighbours of the subject land in the week preceding Monday 23 February 1998 are summarised in the file note of Cameron Stanley, the applicant's planning officer, Exhibit GKM7.  These complaints satisfy me that the respondents were continuing to conduct activities on the land of an industrial nature.  The complaints included grinding noises; chainsaw; revving of trucks; tractors and cars; 20 or so heavy vehicle movements a day; excessive noise and pollution and a perceived use of the land as a contractor's yard for an industrial type activity.

Mr Cameron attended on the property on Monday 23 February 1998.  Mrs Vance was there.  She told Mr Stanley that a loader was temporarily on the property the week before.  Mr Stanley observed two cars, one dozer, one small truck, two trailers and one tip truck on the property.  Only the dozers and the trailers appeared to be in working order.  Mrs Vance admitted to him that the property was used for the servicing of vehicles used in their business.  She also said that the majority of the machinery was kept on the job site.  They appeared to conduct some type of earthmoving contracting business.

On 9 March 1998, Mr Stanley met with Mrs Horwood, Mrs Braun and Mrs Canfield in relation to the use that the respondents were putting the land to.  Mr Stanley's file note of that meeting is Exhibit GKM8.  The neighbours said that the situation was not as bad as in September/October 1997, but nevertheless seemed to be intensifying somewhat.  Mr Stanley concluded that the land was being used as a contractor's yard.  In his file note, he said that as at March 1998 the activity was minimal, but increased on weekends and at times when equipment was not on a job site; that is in between jobs.

Mr and Mrs Horwood again wrote to the council on 22 March 1999, again complaining about the continued use of the property as a contractor's depot and the use of a shed on the land as a workshop for repairs, service and panel beating of earthmoving equipment and commercial vehicles.  Their letter is Exhibit GKM11 and it refers to the continuous noises associated with banging, grinding, sanding, welding and with exhaust fumes from old commercial vehicles being continually revved every day of the week including Saturdays and Sundays.  They found this activity to have reached an unbearable level. They considered that commercial activities were being carried out on the land.  These complaints are supported by the daily recording sheets attached to their letter.

The council have written a number of letters to the respondents and had meetings with them, but to no avail.

Mrs Vance wrote to the council in September 1997.  I cannot accept what she says in that letter, which is Exhibit GKM5.  The evidence establishes more than an infrequent servicing of machinery and more than the carrying out of minor repairs on machinery.  It also establishes more than a mere storage of certain machinery items on the land.

Mrs Yvonne Horwood has sworn an affidavit and this was filed on the application.  Paragraphs 6 to 9 of that affidavit deal with the position as observed by her in June 1997.  Effectively, but in varying degree, that activity has continued up until the present time.  The photos, Exhibit YH1, represent some of her observations in June 1997.  She also took the photographs YH4 in March and April 1998 and those in YHA8 in March and August 1999.  These satisfy me that the land has been and is being used for an activity of an industrial nature, contrary to the provisions of the Planning Scheme.  In paragraphs 19 and 21, she refers to specific problems she has in relation to the activities carried out on the land by the respondents.  I accept what she says.

In my view, the evidence establishes that these activities are likely to continue, notwithstanding the council's attitude to their continuation as expressed by council officers to the respondents.  The respondents appear to me to be completely ignoring the provisions of the Planning Scheme.  They are, in my view, conducting an industrial type business on and from the land and to do so is contrary to the provisions of the Planning Scheme.

“Light industry” is defined on pages 15 and 16 of the Planning Scheme and, in my view, the respondents are using the land for such a purpose.  “Industry” is defined on pages 4 and 5 of the Planning Scheme and the activities being carried out on the land by the respondents clearly come within that definition as including the breaking up or dismantling of vehicles or heavy equipment; the repairing, renovating or servicing of vehicles and machinery; operations connected with the installation of equipment and services related to vehicles and machinery and the dismantling of motor vehicles and machinery.

The activities certainly go far beyond what is contemplated by a “home occupation” as that is defined pages 12 and 13 of the Planning Scheme and also “home industry” as that is defined on pages 13 and 14 of the Planning Scheme.  The activities being carried out on the land by the respondents would appear to be encompassed by what is referred to as a “contractor's depot or yard” in the definition of “light industry” on page 16 of the Planning Scheme.

The activity carried out by the respondents is clearly causing an interference with the amenity of the area by reason of the emission of noise, smell and fumes within the definition of “light industry” on page 16 of the Planning Scheme.

Giving the term “contractor's depot or yard” an ordinary everyday meaning, it is clear to me that the activities being carried out by the respondents which I have referred to in summary clearly come within this term.

The evidence satisfies me that the respondents are conducting some type of trucking and/or earthmoving business involving a combination of vehicle movements, loading and unloading of machinery, mechanical repairs and panel beating.  Such activities are not allowed in the rural zone.  Such activities, in my view, are also beyond the definition of “home industry” which is an activity allowed in a rural zone with the consent of the council.  In any event, in the present case, there is no such consent.

In my view, the applicant is entitled to relief of the nature claimed.  I declare that the respondents' use of the land, lot 402 on Crown Plan H25327, County of Cardwell, Parish of Herberton, for activities of the nature defined in the Planning Scheme of the Council of the Shire of Herberton as “light industry” are unlawful and amount to a use beyond those uses permitted by column 1 of the Table of Development - Rural Zone in section 3.1.2 of the Planning Scheme for the Council of the Shire of Herberton.

I order that the respondents by themselves, their servants or agents be forthwith restrained and an injunction is granted restraining them from using the land, lot 402 on Crown Plan H25327, County of Cardwell, Parish of Herberton, for activities of the nature defined in the Planning Scheme of the Council of the Shire of Herberton as “light industry” and being activities beyond those permitted by column 1 of the Table of Development - Rural Zone in section 3.1.2 of the Planning Scheme of the Council of the Shire of Herberton unless the respondents first obtain development approval from the Council of the Shire of Herberton.

...

HIS HONOUR:  I do not think the default in appearance by the respondents, which amounts to a default in the Court's procedural requirements, has caused in the circumstances the applicant to incur costs over and above what it would have been likely to incur in any event.  For those reasons, I will not make any order for costs.

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