Exquisite Australia P/L v Cooloola Shire Council

[2001] QPEC 39

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Exquisite Australia P/L v Cooloola Shire Council & Ors [2001] QPE 039
PARTIES:	EXQUISITE AUSTRALIA PTY LTD Appellant v COOLOOLA SHIRE COUNCIL Respondent and GRAHAM PETER BRENNAN First Co-Respondent and ELLI SCHLUNKE and SALLY ELIZABETH MACKAY

Second Co-Respondents

and
LEX WALLACE FREIBERG Third Co-Respondent
and
IAN LEATH MACKAY Fourth Co-Respondent
and

GRAHAM PETER BRENNAN Fifth Co-Respondent

FILE NO/S:	4468 of 1999
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	14th. June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	24 & 25 May 2001
JUDGE:	Judge Quirk
ORDER:	Appeal Allowed
CATCHWORDS:	Integrated Planning Act S.3.5.30
COUNSEL:	Mr C Hughes for the appellant Mr A Skoien for the respondent Mr J Houston for the co-respondents
SOLICITORS:	Bowdens Lawyers for the appellants Baldwin Conroy for the respondent Cartright Richardson & Stringer for the co-respondents

1. This appeal is against the respondent’s refusal of an application for development

   approval for the use of land at Kenilworth for the making of furniture proto-types

   and individual one-off pieces of furniture. The subject land occupies an area of

   8.813 hectares and has frontage to Moy Pocket Gap Road. The site is part of an

   attractive undulating rural landscape which looks out (to the east) over the Mary

   River Valley and is itself overlooked by the Kenilworth Bluff which is a short

   distance to the west.

2. The subject land has been attractively landscaped and well maintained. Skilfully

   designed additions have been made to the original homestead and the activities that

   are the subject of this proposal (and which have been going on for some time in the

   mistaken belief that planning approval was not required) are conducted in an

   architect designed structure which blends in well with what is already there on the

   land.

3. A fully detailed description of the proposal is contained in the report of the

   appellant’s town planning consultant, Mr Buckley (Exhibit 1). As he points out, the

   primary function of the enterprise is design, development and experimentation.

   “State of the art” (and computer driven) machinery is used to work and fashion

   timber some of which is locally sourced. There is no mass production of furniture

   and customers do not come to the site.

4. The proposal was originally put forward as a “home industry” but was not

   favourably received by the Council principally because a use so defined is a prohibited use in the Rural zone in which the subject land is included in the

   transitional town planning scheme. Amenity concerns were also expressed as were

   perceived inconsistencies with the Strategic Plan. There were a number of adverse

   submissions from local residents.

5. The appellant now seeks to have the proposal considered as a “cottage industry”

   which is, in the Table of Zones, a discretionary use and is defined as:

   “Cottage Industry –Any premises used or intended to be used for the production of relatively small quantities of arts, crafts, wood craft and the like and;

(a)	is carried out by at least one person residing on the premises and may involve the employment of no more than two others residing elsewhere resulting in a total of three employees;
(b)	does not in the ordinary course of its operation, impose a load on any public utility undertaking which would be uncharacteristic of other uses in the vicinity;
(c)	does not in the ordinary course of its operation, interfere with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products, radio or electrical interference or otherwise;
(d)	does not in the ordinary course of its operation, generate levels or types of traffic which would be uncharacteristic of other uses in the vicinity;
(e)	is based on a use which is relevant to the nature and character of the area eg. in the Old Gympie Character Area- Premises with an historic/heritage base in Rural Areas – a primary production base, etc;
(f)	may include the retail sale of goods manufactured or restored on site and other goods of similar type providing a minimum of 75% of all goods on display are manufactured or displayed on site.

The term includes but is not limited to, uses commonly known as potteries, art studios, leather work, craft and hobby establishments and interpretive displays of collections and memorabilia, bush craft workshops.”

1. The matters raised initially in respect of the Strategic Plan related to some

   statements, selectively chosen, from that part of the document which deals with the

   rural designation. The particular objective was that which sought to preserve the

   Shire’s rural character. Aside from the question of noise (to which specific

   attention was given in the evidence) there was no suggestion, sensibly made, that

   the proposal would pose any real threat to the area’s rural character.

2. The appellant’s submission was that the appeal should be allowed and the

   application approved conditionally on terms set out in the draft order which was

   Exhibit 9. At the hearing the matter upon which attention focussed was that of

   noise from the proposed operations. The appellant has been in consultation with

   (and called evidence from) Mr Moore who is an experienced acoustic engineering

   consultant. The Council has consulted with Mr Winders who also has had long

   experience in this field. Mr Winders was called to support the position of the

   respondent and the co-respondent which was essentially that some modification

   should be made to the proposed conditions. Mr Mackay who owns and resides on

   the property immediately to the north was represented before the Court. The other

   co-respondents did not take part in the hearing.

3. As was earlier stated the operation has been active for some time. In making his

   assessment Mr Moore was able to carry out certain noise monitoring the details of

   which are set out in a series of reports which are collectively Exhibit 7. Similarly

   the work of Mr Winders is found in a series of documents which became Exhibit

4. Both experts agreed that for the purpose of setting an appropriate standard, a day

   time background noise level of 37 dB(A) was a satisfactory starting point in this

   locality. Both also agreed that a noise limit of 5 dB(A) above background was

   satisfactory where this noise limit is expressed as the A-weighted average

   maximum adjusted noise level and is applicable at any noise sensitive place for day

   time noise.

5. Appropriate adjustments for tonality led to a recommendation that noise from the

   proposal should not exceed:

1.	39 dB(A) for sawing; and
2.	40 dB(A) for total routing noise, dust collection noise and air compressor

noise.

1. These standards are reflected in Proposed Condition 1.7 which provides:

   “At no time within the permitted period shall the LAmax,t generated by

   the use exceed

(a)	39 dB(A) for sawing, and
(b)	40 dB(A) for all other noise generated by the use including total routing noise, dust collection noise and air compressor noise

at any point that exceeds a circular arc centred at the Carpentry Workshop such that the arc is no closer than 35 metres from the main existing residence building situated on Lot 3 RP 151415, known as 45 Moy Pocket Gap Road, Kenilworth and currently owned by Ian Leath Mackay and Sally Elizabeth Mackay.

...The LAmax,t shall be either the average maximum noise level of the ... use, or the noise level of the use exceeded 10 per cent of the time, over any 15 minute period of measurement and does not require any adjustment of tonality.”

1. Relying on his assessment, Mr Moore was confident that the stipulated noise levels

   could be achieved if certain recommendations made by him were followed. These

   recommendations are set out in Condition 1.5 which provides:

   “Noise control measures to achieve the noise limits referred to in Condition 1.7 below may include any or all of those recommended in Section 2.1 of the David Moore & Associates (Supplementary Environmental Noise Report – Control Measures for Cottage Industry.) including:

(a)

Discontinue the use of the circular/bench saw and replace it with a quieter saw, eg bandsaw;

(b)

Whenever equipment is being used, ensure that the appropriate louvre windows are closed before the equipment is used. The said louvre windows are to remain closed for the duration of use of the equipment;

(c)

Provide mechanical ventilation in the building where the equipment is used;

(d)

For all sections of external wall of the building, which face the Mackay residence and Moy Pocket Gap Road, and which are clad with a clear corrugated ‘plastic’ sheet, increase the noise level reduction of these sections of wall by one or more of the following:-

(i)	Remove the sheeting and replace it with fixed glass panels, eg minimum 6 mm thick float glass; or
(ii)	Leave the sheeting in place, but add fixed glass panels to the total internal surface of this sheeting – glass to be minimum 6mm thick float glass; or
(iii)	Leave the sheeting in place, but sheet over the internal side of the structural support for this clear corrugated sheeting with material such as 6 mm thick fibrous cement sheet, 13 mm thick plasterboard, of 12 mm thick plywood; or
(iv)	Apply any other acoustic treatment of these sections of the external wall, which will improve the sound transmission class to at least the same extent as the above.

(e)

For all sections of external wall which face Moy Pocket Gap Road and which consist of the hard plastic sheeting (two sheets of plastic with a small air cavity between, which allows ingress of filtered light), increase the noise level reduction of these sections of wall by one of the following methods:-

(i)	Remove the plastic sheeting and replace it with fixed glass panels, minimum 6 mm thick float glass; or
(ii)	Leave the plastic panels in place, but add fixed glass panels to the total internal surface of this sheeting – glass to be minimum 6 mm thick float glass; or
(iii)	Leave the sheeting in place, but sheet over the internal side of these structural supports for this plastic sheeting with material such as 6 mm thick fibrous cement sheeting, 13 mm thick plasterboard, or 12 mm thick plywood; or
(iv)	Apply any other acoustic treatment of these sections of external wall which will improve the sound transmission class to at least the same extent as the above”.

1. Proposed Condition 1.8 provides:

   “Details of all proposed alterations, modification, and additions to the approved buildings pursuant to these Conditions are to be submitted, for approval by Council, as noise control measures.”

2. There was no disagreement about the appropriateness of the standards selected and

   Mr Winders accepted that once Mr Moore had assembled a proposal in respect of

   the noise attenuation measures to be adopted (and the relevant sound power levels

   were established) the efficacy of the proposed noise attenuation measures could be

   tested by appropriate modelling.

3. The only real difference of opinion between the two experts was in the more

   conservative approach of Mr Winders who believed it desirable that all of the

   measures (and not only those that would be sufficient to achieve the identified

   standard) referred to in Condition 1.5 should be put in place. He doubted whether

   substantial costs to the appellant would be involved in that.

4. While there is always something to be said for a conservative approach when

   matters of environmental management are involved, it must, on the other hand, be

   borne in mind that s.3.5.30 of the Integrated Planning Act provides:

“(1)

A condition must –

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

(2)

Sub-section (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment management or concurrence agency".

1. If it is accepted that the standards identified in Condition 1.7 are acceptable

   standards, it is difficult to see the justification in requiring the appellant to go

   beyond doing what is necessary to achieve those standards whether the costs

   involved in so doing are substantial or otherwise. I would not interfere with the

   proposed conditions in that regard.

2. The second matter of substance related to the reference in Condition 1.7 of the

   “main existing residence” on Mr Mackay’s property. Mr Mackay is concerned that

   while it may be that protection will be afforded to existing residence, his

   opportunity to construct a new or additional residence on other parts of his land

   would be affected by the proposal.

3. I fully understand his position and sympathize with it. However justice must be

   done not only to Mr Mackay but also to the appellant. To attempt to meet Mr

   Mackay’s concerns would, in my view of the matter, introduce an undesirable element of uncertainty into the approval. As I understand it the Mackays have been

   on the land for about 20 years. They have established their residence not far from

   the roadway in an attractive and interesting setting. This setting has been

   complemented by other landscaping features including a lake.

4. There is presently no indication if when or where any additional dwelling might be

   constructed. The proposed conditions impose an obligation of some substance upon

   the appellant and I believe the appellant is entitled to know at this stage what is

   involved in compliance with those conditions and, as I have identified, any

   uncertainty as to what would be called for would not be appropriate.

5. Furthermore notwithstanding the low background noise levels experienced in the

   locality, the town planning scheme recognizes the area as being a rural area and, on

   the evidence, noise events associated with rural activities, the movement of heavy

   truck and quarry vehicles are continually being experienced. Activities on the

   subject land are limited to the period of 8 am to 5 pm on weekdays (Condition 1.6)

   and, on the whole of the evidence, I am satisfied that the proposed conditional

   approval achieves a satisfactory result.

6. The final matter relates to the period of six months provided for the finalization of

   the matters referred to in s.2 of the draft order. Mr Houston (for Mr Mackay) made

   the point that as the use has been in place for some time, it was desirable that

   arrangements for its lawful continuation should be finalized more expeditiously.

   The point was well made but, on the other hand, it has to be also recognized that,

   until virtually the last moment, the appellant was facing the possibility of an

   outright refusal of its application.

7. In the circumstances I believe that the six months period contemplated by the draft

   order will allow Mr Moore and the Council’s consultants a comfortable and

   reasonable period to be satisfied that the appropriate arrangements are in place.

8. On the whole of the evidence I am satisfied that the onus of showing that the

   application is one which should be approved has been discharged. Accordingly the

   appeal will be allowed in the terms set out in Exhibit 9.