Delta Contractors (Aust) Pty Ltd v Brisbane City Council

[2017] QPEC 13

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2017] QPEC 13

PARTIES:

DELTA CONTRACTORS (AUST) PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

4844 of 2016

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

15 March 2017, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2017 – 15 March 2017

JUDGE:

Everson DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for a development permit for a Material Change of Use for a warehouse with an ancillary office – site located in residential area

CONFLICT – conflict with planning scheme – whether proposed development conflicts with City Plan 2014 and the low density residential zone code

AMENITY – whether the proposed development will result in unacceptable amenity impacts

GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development despite conflicts

Sustainable Planning Act 2009 (Qld) ss 314, 326, 493, 495, sch 3

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

Elan Capital Corporation Pty Ltd and Anor v Brisbane City Council [1990] QPLR 209

Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82

COUNSEL:

D Whitehouse for the appellant

J G Lyons for the respondent

SOLICITORS:

Ferguson Cannon for the appellant

BCLP for the respondent

1. This is an appeal against the decision of the respondent to refuse an application for a development permit for a material change of use for a warehouse with an ancillary office and preliminary approval for building work (“the proposed development”) on land at 101 Medway Street, Rocklea (“the site”). 

1. The application sought to regularise the unlawful use of the site for some time which resulted in a show cause notice being issued by the respondent on 24 January 2014. 

1. The respondent submits that the proposed development, being an industrial use for a builder’s storage yard carried on in a residential area, conflicts with the planning scheme (“City Plan 2014”), and that there are no sufficient grounds to justify an approval of the proposed development despite the conflict.

1. The site contains four lots, and has a 48 metre frontage to Medway Street and a 52 metre frontage to Albert Street.  It contains an old high set house currently used as an office.  It is at the south eastern corner of an intact precinct of residential development included in the low density residential zone pursuant to City Plan 2014, with the exception of the land immediately adjoining the site to the west which is included in the character residential zone.  An old house is located very close to this boundary.  Land immediately to the north has very recently been improved with the construction of side-by-side accommodation buildings which are designed to provide affordable housing pursuant to the defined use of rooming accommodation in accordance with City Plan 2014.  The southernmost of the two buildings is also very close to the northern boundary of the site.

1. The site is separated from non-residential uses to the south by Medway Street, and to the east by Albert Street.  Undeveloped land to the south west is primarily included in the specialised centre (Brisbane markets) zone with the exception of a small pocket zoned in the rural zone leading to land in the open space zone.  On the other side of Medway Street to the east are industrial uses including warehouses in the industry zone (general industry A).  On the opposite side of Albert Street is the Rocklea fire station, and industrial uses lying within the low impact industry zone.  The site is also subject to flood overlay mapping. 

1. Pursuant to section 495(1) of the Sustainable Planning Act 2009 (Qld) (“SPA”), the appeal is by way of hearing anew. It is an appeal by the applicant for a development application and therefore, pursuant to section 493(1) it is for the applicant to establish that the appeal should be allowed. In accordance with section 326(1) of SPA the decision of the court must not conflict with City Plan 2014 unless there are sufficient grounds to justify the decision.

1. The development application giving rise to the appeal is subject to impact assessment pursuant to City Plan 2014 and therefore it must be assessed against the entire planning scheme, to the extent relevant, as a consequence of section 314 of SPA. In City Plan 2014 section 1.5 states, relevantly:

“Where there is inconsistency between provisions of the planning scheme, the following rules apply:

(a)        the strategic framework prevails over all other components to the extent of the inconsistency;

…

(e)        zone codes prevail over use codes and other development codes to the extent of the inconsistency;

…”

1. The disputed issues in the appeal are, firstly, whether the proposed development conflicts with City Plan 2014 and, in particular, the strategic framework and the low density residential zone code.  Secondly, whether the proposed development will result in any unacceptable traffic or amenity impacts.  Thirdly, whether there are sufficient grounds to justify approving the proposed development despite any conflicts with City Plan 2014.  In this regard, two grounds are nominated.  Firstly, that the proposed development is a more appropriate use of the site than residential uses and, secondly, that this is so because of the risk of flooding.

1. As a starting point, the appellant alleges that there is an inconsistency between the designation of the site pursuant to the strategic framework and the placing of it within the low density residential zone.  This is based on blowing up indicative mapping which is not cadastrally based from City Plan 2014 by the planner who gave evidence on behalf of the appellant, Mr Panaretos.  He asserts that this shows that the site “appears to be within, but at the edge of a Major Industry Area.”  This assertion is made in circumstances where the relevant land use strategy for Specific Outcome 2, L2.1 in Element 1.2 of the strategic framework states that:

“Development for industrial uses is prioritised in the Major Industry Areas … which are zoned to maximise the industrial land use potential of these areas.”

1. Conversely, the low density residential zoning appears consistent with the site being within the Suburban Living Area as indicated in the mapping for City Plan 2014, which is the alternative interpretation of the mapping and, I believe, the correct interpretation.

1. There is absolutely no support for the proposed development in the low density residential zone code which applies to the site as it is unquestionably within the low density residential zone.  The code relevantly states, at para 6.2.1.1 of City Plan 2014, that the purpose of it is to “provide for predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents.”  Applying Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 at 94-95, and reading the planning scheme as a whole, it is clear that the proposed development significantly conflicts with the obvious residential intent for the site.

1. The recent development of the land to the north of the site for residential purposes, namely, rooming accommodation, further confirms that there is not only a current planning intent that the site be residential, but that a new residential use has commenced immediately adjacent to it.  There is an intact, discrete residential precinct of which the site forms part.  There is no basis for asserting that it is appropriate to move the residential/industry interface to within this precinct with the result that industrial activities proposed by the appellant would occur immediately adjacent to residential uses.  Indeed, should the appeal be allowed these activities would be permitted to occur in very close proximity to a house on land zoned character residential which must be preserved, and also the new rooming accommodation to the north. I agree with the evidence of Mr Gaskell, the planner who gave evidence on behalf of the respondent, that at present the boundary of the industrial zones on the opposite sides of Medway Street and Albert Street is clear and well defined.  I further agree that the proposed development would encroach into the distinct residential precinct and bring about amenity impacts resulting from its different industrial character.

1. It is important to have regard to two fundamental principles of planning law in weighing the appropriateness of the current boundary between the nearby industrial land and the residentially zoned land including the site.  Firstly, in Elan Capital Corporation Pty Ltd and Anor v Brisbane City Council [1990] QPLR 209 at 211, Quirk DCJ made the very obvious but seminal observation:

“It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane.  It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper [manner] has chosen to adopt.”

1. The other important consideration is the wide concept of what is constituted by “amenity.”  This is confirmed in Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 at 326 where de Jersey J observed:

“There is no doubt that the concept of amenity is wide and flexible.  In my view, it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality.”

1. What the above decisions indicate is that is not for this court to move the boundaries of zones which delineate separate uses unless there are very good reasons for doing so and, further, that in determining what amenity consequences may follow, it is necessary not to construe potential amenity impacts too narrowly.

1. The appellant proposes a number of conditions to limit amenity impacts on the neighbouring residential properties in the event this appeal is successful.  These conditions include buffering and other works, as well as severe restrictions on the hours of operation of the proposed development, and the manner in which it may be carried out. Included in these conditions, it is proposed that the number of heavy vehicle movements would be fixed at two per week, and that the largest truck allowed to visit the site would be a heavy rigid vehicle up to 12.5 metres in length.  These conditions appear to me to be patently unenforceable in circumstances where an approval runs with the land and is binding on successors in title. Restricting a use of this type in this manner appears unrealistic. 

1. It is also proposed that a 3.5 metre acoustic barrier be built along the whole western boundary, and a 4.8 metre high acoustic barrier be built along the northern boundary to satisfactorily mitigate adverse noise impacts. This is also of concern from an amenity perspective. I accept the evidence of Mr Byers, the noise expert engaged by the respondent, that adverse noise impacts to adjoining residences can only be satisfactorily mitigated by the construction of such noise attenuation barriers, particularly having regard to the impulsive nature of noise likely to be generated by activities which are likely to be carried out as part of the proposed development. Even if noise impacts on adjoining residents can be sufficiently conditioned to reduce them to an acceptable level by the use of these large acoustic barriers, and by limiting the intensity of the hours of operation of the proposed development, unacceptable amenity impacts remain. A warehouse, with or without perimeter acoustic barriers, simply has a very different amenity to that of a residential use.  I am, therefore, of the view that unacceptable amenity consequences flow from an inappropriate intrusion of an industrial use into a low density residential zone.

1. For the sake of completeness I should state that, having regard to the evidence of the traffic engineers, Mr Pekol and Mr Beard, I am satisfied that the proposed development will not generate unacceptable traffic impacts for nearby residents.

1. Turning to whether or not there are grounds sufficient to justify approving the proposed development despite the conflicts identified above, it is important to have regard to the term “grounds” as defined in schedule 3 of SPA, namely:

“1     Grounds means matters of public interest.

2     Grounds does not include the personal circumstances of an applicant,
        owner or interested party.”

1. In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 322 at [18], the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council [2003] 2 Qd R 441, which requires the court to:

“1. examine the nature and extent of the conflict;

2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme, and if the conflict can be justified on those planning grounds;

3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict”

1. The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds.” 

1. The first ground which the appellant raises is an amorphous one, that the proposed development is a more appropriate use of the site than residential uses.  In this regard, reliance was placed on the evidence of Mr Panaretos about the absence of infrastructure in the particular residential precinct where the site is located.  In particular, he drew attention to the absence of parks, schools and other infrastructure, which could be safely accessed on foot, particularly by parents with young children. He stated in exhibit 4, paragraph 6.1.6: 

“No safe walking route for a child exists to both the local playgrounds and the nearest primary school, Rocklea State School, where children would not come into contact with high volume, relatively high-speed heavy vehicle and freight (25m B-Doubles) traffic.”

1. Although a network of footpaths would clearly be desirable within the residential precinct in question and better facilities for traversing major roads would significantly improve permeability and safety, the absence of such pedestrian infrastructure and the distance to parks and schools does not, of itself, make the site unsuitable for residential purposes.  Many residential areas in Brisbane have similar constraints.

1. The other planning ground that is raised focuses specifically on the proposed development being a more appropriate use for the site because of the risk of flooding.  However, although the site is subject to significant flooding, I accept the evidence of Mr Gaskell that the current first floor level of the dwelling house on the site complies with City Plan 2014 flood code immunity requirements. So too do existing houses in the vicinity of the site and the new rooming accommodation which has been built immediately to the north.  I also accept the evidence of Mr Gaskell that there is no justification for changing the use of the site from residential to industry on the basis of the risk of flooding, where it is feasible for a dwelling house to be constructed on it which addresses the appropriate level of risk.

1. Turning to the test required of me, I find that the nature and the extent of the conflict between the proposed development and the relevant planning controls, pursuant to City Plan 2014, is major.  The planning grounds which are identified as relevant to these conflicts relate to the constraints on the residential use of the site, which I have identified above.  These grounds do not appear sufficient to justify the major level of conflict and, on balance, they are insufficient to justify approving the development application, notwithstanding the conflict.

1. I therefore dismiss the appeal.