Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors

[2021] QPEC 33

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33

PARTIES:

GOLD COAST MOTORSPORT TRAINING CENTRE PTY LTD ACN 144 541 480
(Appellant)

v

GOLD COAST CITY COUNCIL
(Respondent)

AND

MARK LOWE
(First Co-respondent by Election)

AND

ROSS EVANS
(Second Co-respondent by Election)

AND

RAYMOND P BLENKIRON
(Third Co-respondent by Election)

FILE NO/S:

3387 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

2 July 2021

DELIVERED AT:

Kingaroy

HEARING DATE:

22 and 23 March, 31 May, 1 – 2 and 4 June 2021

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.  The development application is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the Appellant seeks a development for an outdoor sport and recreation use being a kart racing and motorsport training facility – whether the proposed development conflicts with the planning scheme – whether the proposed development would detract from the amenity of the local area – whether the proposed development would have an unacceptable noise impact – whether there are sufficient grounds to justify approval despite the conflict

LEGISLATION:

Local Government Act 2009 (Qld) s 251

Planning Act 2016 (Qld) ss 264, 311

Planning and Environment Court Rules 2018 (Qld) r 25

Planning Regulation 2017 (Qld) s 70, sch 22

Sustainable Planning Act 2009 (Qld) ss 311, 314, 326, 341, 493, 495, 587, 590

Uniform Civil Procedure Rules 1999 (Qld) r 428

CASES:

AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

Bell v Brisbane City Council & Ors [2018] QCA 84, applied

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

Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, approved

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, applied

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 21; [2014] QPELR 168, applied

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15; [2013] QPELR 711, followed

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, applied

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, applied

Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, approved

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358; (2011) 185 LGERA 63, applied

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, applied

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied

Matijesevic v Logan City Council [1984] 1 Qd R 599, considered

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

NRMCA (Qld) Ltd v Andrew [1992] QCA 8; (1993) 2 Qd R 706, applied

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; [2008] QPELR 480, considered

Re Earlturn Pty Ltd [2021] QSC 137, applied

Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, applied

Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466, followed

Steendyk v Brisbane City Council & Anor [2016] QPEC 47; [2016] QPELR 868, approved

Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54; [2020] QPELR 504, approved

Ward & Anor v Rockhampton Regional Council & Anor; R C Toole Pty Ltd v Rockhampton Regional Council & Ors [2014] QPEC 67; [2015] QPELR 252, followed

Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, applied

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved

Woolworths Ltd v Maryborough City Council & Anor (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied

Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147; (2014) 201 LGERA 82, applied

COUNSEL:

A N S Skoien for the Appellant
K Wylie for the Respondent

SOLICITORS:

Gannt Legal for the Appellant
Corrs Chambers Westgarth for the Respondent
First, Second and Third Co-respondents by Election were self-represented

TABLE OF CONTENTS

Introduction

What is the relevant framework for the decision?

Is the proposed use appropriate in the Emerging Communities Domain?

Will a decision to approve the proposed development detract from the amenity of the local area?

What is the amenity of the local area?

What are the features of the subject land and the surrounding area?

What was the evidence of the residents about the amenity of the local area?

Is the proposed use within reasonable expectations as informed by the Planning Scheme?

How do the development approvals for the subject land, and the existing use, affect reasonable expectations about amenity?

How does the constructed motorsport facility affect reasonable expectations?

Does the expert evidence cause doubt about the legitimacy of the amenity expectations of the Co-respondents by Election?

What is the evidence about the amenity impact of the proposed development?

Has the Appellant demonstrated that the noise impact will not unacceptably detract from the amenity of the local area?

What is the nature and extent of the conflict?

What grounds does the Appellant rely on to justify approval?

Is there a demonstrated need for the proposed development?

Is the proposed development compatible with the intent for the Rural Precinct of the Inter-Urban Break Structure Plan?

Is the proposed development a type of use that is generally appropriate in a rural setting rather than an urban setting?

Does the Gold Coast City Plan 2016 support approval of the proposed development?

Is there an absence of any unacceptable acoustic, air quality, and visual amenity impacts from the proposed development?

Would the proposed development enhance the environmental or ecological values of the subject land?

Are there sufficient grounds to justify approval of the proposed development, despite the conflict with the Planning Scheme?

Are the disputed conditions appropriate?

Conclusion

Introduction

1. In December 2014, Gold Coast Motorsport Training Centre Pty Ltd (“the Appellant”) applied to the Gold Coast City Council (“the Council”) for permission to use land at 484 Pimpama Jacobs Well Road, Pimpama (“the subject land”) as a kart racing facility and for motor sport training for a variety of vehicles, including motorcycles.  The application was lodged in response to an enforcement notice issued by the Council on 17 October 2014.  The report that accompanied the application indicated that the purpose of the application was to make lawful the use that was already being made of the subject land.

2. The Council refused the development application on 26 July 2016.  On 25 August 2016, the Appellant commenced this appeal against that decision.  During its protracted preparation for the hearing of the appeal, the Appellant changed its development application.  The Council now supports approval of the proposed development subject to identified conditions, provided the Court is satisfied that the proposed use will not detract from the amenity of the local area.  Three residents of the local area have elected to join the appeal.  They are opposed to the development.

3. The key issue for determination is whether the development application should be approved with conditions or refused.

   What is the relevant framework for the decision?

4. The appeal was commenced during the operation of the Sustainable Planning Act 2009 (Qld). Despite the repeal of that Act, the application is to be assessed and decided under that framework.[1] 

   [1]Planning Act 2016 (Qld) s 311.

5. The appeal proceeds by way of hearing anew.[2]  The Appellant bears the onus of establishing that the appeal should be allowed, and the development application should be approved.[3]

   [2]Sustainable Planning Act 2009 s 495.

   [3]Sustainable Planning Act 2009 s 493.

6. The Appellant seeks a development permit for making a material change of use of the subject land for an outdoor sport and recreation use (motor sport and training facility).  The assessment of the application must be carried out against the Gold Coast Planning Scheme 2003 Our Living City version 1.2 amended November 2011 (“the Planning Scheme”).[4] 

   [4]This is the version of the Planning Scheme that was in effect when the development application was properly made.  See Sustainable Planning Act 2009 ss 311, 314.

7. As the development application is impact assessable, it requires assessment against the whole of the Planning Scheme.  Despite that, the parties contend that the outcome of the appeal turns on two provisions.  They are pt 5, div 1, ch 2, s 4.6.1 and performance criteria PC19 of the Emerging Communities Domain Place Code.  Those provisions require consideration of:

   (a)whether the proposed use is appropriate in the Emerging Communities Domain; and

   (b)whether the proposed use will detract from the amenity of the local area.

8. The assessment must have regard to the material received during the application process, including the properly made submissions objecting to the proposed development.  The assessment must also have regard to any development approval for, and any lawful use of, the subject land.[5]

   [5]Sustainable Planning Act 2009 s 314.

9. The development application is to be decided in accordance with s 326 of the Sustainable Planning Act 2009.  As such, the decision must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict.

10. The task for the Court involves an evaluative exercise.  In determining whether there are sufficient grounds to justify approving the application notwithstanding any conflict, the Court is required to examine the nature and extent of the conflict with the Planning Scheme.[6] 

    [6]Woolworths Ltd v Maryborough City Council & Anor (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]-[25].

1. The term “grounds” is defined to mean “matters of public interest” and to exclude “the personal circumstances of an applicant, owner or interested party”.[7] 

   [7]Sustainable Planning Act 2009 sch 3.

2. The Court of Appeal gave guidance on the appropriate approach to the evaluative exercise in Bell v Brisbane City Council & Ors,[8] Gold Coast City Council v K&K (GC) Pty Ltd[9] and Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor[10]. 

   [8][2018] QCA 84.

   [9][2019] QCA 132; [2020] QPELR 631.

   [10][2020] QCA 41.

3. Whether there are sufficient matters of public interest that warrant approval of the proposed development involves a discretionary value judgement.  It is to be made by reference to factual matters confined only by the subject matter, the scope, and the purpose of the Sustainable Planning Act 2009.[11]  The decision should not be made capriciously.  It should assume that it is in the public interest to maintain the terms of the Planning Scheme unless the contrary is demonstrated.[12]  After all, a planning scheme seeks to strike the balance between ecological protection, economic development, and the maintenance of the cultural, economic, physical and social wellbeing of people and communities in a manner that expresses the will of the community.[13]

   [11]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.

   [12]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42] citing Bell v Brisbane City Council & Ors [2018] QCA 84, [70].

   [13]See the observations of Carter DCJ in William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335 [15] and Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54; [2020] QPELR 504, 522 [85]. These observations are apt for planning schemes promulgated under the Sustainable Planning Act 2009. In that respect, see ss 3, 4, 5, 88 and 89 of the Sustainable Planning Act 2009.

   Is the proposed use appropriate in the Emerging Communities Domain?

4. The Planning Scheme area is divided into 18 domains.  The subject land is within the Emerging Communities Domain.

5. The Co-respondents by Election contend that the use is not an appropriate use in the area.  Their position is supported by pt 5, div 1, ch 2, s 4.6.1, which states that:

   “4.6    Default Assessment Categories for the Table of Development

   4.6.1Material Change of Use

   All uses included in Section A of the Table of Development may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the relevant assessment criteria.

   Any use not listed in Section A of the Table of Development, should be considered as undesirable or inappropriate in the domain to which the Table of Development applies.

   Any Material Change of Use not individually listed in Section A of the relevant Table of Development will be treated as impact assessable, except where this would conflict with the provisions of Schedule 8 of the IPA.”

   (emphasis added)

6. Section A of the Table of Development for the Emerging Communities Domain does not include “Outdoor Sport and Recreation”.  That is the use for which the Appellant seeks approval.

7. In Lockyer Valley Regional Council v Westlink Pty Ltd & Ors[14], Fraser JA, with whom White JA and Douglas J agreed, considered an analogous planning scheme provision.  In that case, the provision identified that uses not specifically listed within the applicable table were “not consistent with the purpose of the zone”.  Fraser JA observed that:

   “[33]    Accordingly, the effect of s 4.12(k) is that the proposed use is “not consistent” with the purpose of the zone for which it was proposed. The expression “not consistent” is used as a synonym for the word “inconsistent”, as is suggested also by the general provision in s 1.11(2) that “[u]ses not specifically identified in column 1 of each assessment table are considered to be inconsistent uses.” Having regard also to the context supplied by s 4.9, s 4.10, and s 4.11, s 4.12(k) conveys that the proposed use is inconsistent with the Rural General zone code. The fact that the Planning Scheme eschews any express statement of a “conflict” or “inconsistency” between the scheme and a decision on an application concerning this proposed use, or any particular use, does not detract from that conclusion. Nor does the presence of the specific provision in s 4.11(2)(b) supply a ground for reading down the clear words of s 4.12(k). In the absence of any other provision which qualifies the operation of s 4.12(k) in relation to the proposed use, that paragraph requires the conclusion that a decision to approve the application is at variance with the Planning Scheme.”[15]

   [14][2011] QCA 358; (2011) 185 LGERA 63.

   [15]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358; (2011) 185 LGERA 63, 76 [33].

8. Although neither the Appellant nor the Council directed my attention to pt 5, div 1, ch 2, s 4.6.1 at the commencement of the hearing, both parties now accept that a decision to approve the proposed development would conflict with this provision of the Planning Scheme.  There is no provision in the Planning Scheme that justifies reading down its effect.  The parties accept that, construed in the context of the Planning Scheme as a whole, s 4.6.1 has the effect that a decision to approve the application would necessarily conflict with the Planning Scheme.[16]

   [16]See Exhibit 16.6, Outline of Submissions on behalf of the Appellant, [3.69] and Exhibit 17.5, Outline of Argument for the Respondent Council, [25]-[28].

   Will a decision to approve the proposed development detract from the amenity of the local area?

9. The Co-respondents by Election contend that a decision to approve the proposed development would conflict with performance criteria PC19 of the Emerging Communities Domain Place Code.  It states that:

   “The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of:

   a)   noise;

   …”

10. There is no acceptable solution provided for this performance criteria. 

11. The Appellant and the Council contend that a decision to approve the proposed development subject to the conditions in Exhibit 4.8 would not conflict with performance criteria PC19 of the Emerging Communities Domain Place Code.  The Appellant and the Council agree that the conditions are appropriate.

12. The determination of the dispute on this issue requires consideration of three questions:

13. What is the amenity of the local area?

14. What is the evidence about the noise impact of the proposed development?

15. Will the proposed development unacceptably detract from the amenity of the local area?

    What is the amenity of the local area?

16. To understand the amenity of the local area, it is necessary to first appreciate the features of the subject land and the context in which it sits.

    What are the features of the subject land and the surrounding area?

17. The subject land is an irregularly shaped parcel of land with an area of about 455,710 square metres.  It is located about 4.8 kilometres east of the Pacific Motorway.  To the northeast, it has a frontage of approximately 170 metres to the Pimpama River.  To the north, it has an approximately 1,180-metre-long frontage to Pimpama Jacobs Well Road. 

18. Pimpama Jacobs Well Road is a sealed, two-lane road that links the Pacific Motorway to Jacobs Well village.  The road is designated as an arterial road and carries traffic associated with rural activities, particularly sugar cane farming, the various extractive industry uses in the area, and commuter traffic associated with the Jacobs Well, Calypso Bay and Steiglitz localities. 

19. The bulk of the subject land has been cleared.  There is a scattering of trees along the boundaries of the subject land and a small stand of mature trees in its northwest corner. 

20. The northwest corner of the subject land has been improved by rural sheds and storage facilities.  A motorsport facility has been built on the eastern portion of the subject land.  It includes a reception building, a sealed track, an unsealed track, a gravel car park, and other related facilities.  The motorsport facility occupies about one third of the subject land.  The sealed track is between 140 and 200 metres from Pimpama Jacobs Well Road.  The unsealed track is between 20 and 40 metres from Pimpama Jacobs Well Road.  The reception facility is about 150 metres from the road, and the car park is between 100 and 200 metres from the road. 

21. Apart from the constructed motorsport facility, the subject land presents as a relatively open parcel of land with a generally rural appearance.

22. The subject land is in the southern third of the northern Gold Coast rural area that is generally known as the cane lands.  South of the subject land are large rural lots that are utilised for rural activities (predominantly grazing and sugar cane cultivation). 

23. Immediately north of the subject land is a 17.839-hectare parcel of rural land with a dwelling at its western end.  The dwelling is approximately 300 metres from the nearest part of the proposed motorsport track.  Further north are rural properties that are generally utilised for sugar cane cultivation.

24. To the west of the subject land is a minor topographical ridge.  It sits between the subject land and the developed areas of Pimpama, which are located about three kilometres to the west of the subject land and proximate to the Pacific Motorway.  The ridge is characterised by smaller rural allotments of approximately four to five hectares.  They are used for residential, rural and storage activities.  The residences on the land are well set back from the road frontage.  They are elevated above the subject land but have no direct line of sight to the tracks due to vegetation in the area. 

1. To the immediate east of the subject land are dwelling houses that front Pimpama Jacobs Well Road.  Further to the east are areas of cane cultivation and an extractive industry facility that has temporarily ceased operation. 

2. The Co-Respondents by Election own residences proximate to the subject land.  None of them can see the motorsport facility from their residences due to intervening vegetation.

   What was the evidence of the residents about the amenity of the local area?

3. The First Co-respondent by Election, Mr Lowe, lives at 507 Pimpama Jacobs Well Road.  He moved there with his family in early 1996.  Until around early 2013, Mr Lowe enjoyed an amenity that he describes as “rural living”.  He accepts that the traffic on Pimpama Jacobs Well Road can get noisy at times but says there are times during the weekdays when there is very little traffic and, importantly, there is very little traffic on the weekends.  He and his family particularly cherish the amenity they experience during the weekend.  In his written statement, Mr Lowe describes that from early 2013, the amenity he experienced was adversely affected by operations on the subject land.  His evidence about the impact was as follows:

   “1.The appellant commenced operating around early 2013 and a number of different types of Vehicles were being operated including four stroke Go-karts, and Racing high performance ride on lawn mowers.

   2.The types of vehicles slowly progressed to Motor bikes two stroke and four stoke including dirt bikes, road bikes, high performance race bikes, also High performance go-karts two stoke and four stroke and modified race cars have also operated on the tracks and a highly modified 6 wheel kart with a 600cc Yamaha road bike engine known as the monster kart and owned by the appellant. The noise from this machine dominates the area when it is operating.

   3.All of the vehicles that have been operating at this facility since 2013 are unlawful and are not listed as approved vehicles to operate in the conditions of the 2010 Planning and Environment Court approval Appeal no. 1426 of 2008.

   4.Over the years I have submitted over 800 noise complaints to Gold Coast City Council and to their lawyers also to the Appellant (xtreme karting) and the facility continues to operate unlawfully.

   5.I am appalled and angry that Gold Coast City Council has allowed this facility to continue to operate unlawfully from Planning and Environment Court approval of 2010 Appeal no.1426 of 2008 and therefore a massive loss of our amenity we once enjoyed.

   6.It is my belief the appellant has absolutely no consideration for his neighbours amenity over 800 noise complaints proves that, I also have absolutely no faith the appellant will comply with any court approval based on his past actions the appellant has a total disrespect for the Planning and Environment Court by blatantly continuing to operate vehicles not approved by the Court order of 2010.”

4. The Second Co-respondent by Election, Mr Evans, lives at 598 Pimpama Jacobs Well Road.  He has lived there since late 2003.  He describes the amenity as affected by noise from road traffic.  He says the nature of the road traffic noise is a continuous “droning” slowly rising in volume as a vehicle approaches, and then slowly falling as it passes.  He says the karting business commenced on the subject land in March 2013.  It creates a different noise.  Mr Evans describes how a significant number of the drivers who attend the Xtreme Karting facility on the subject land “rev” their engines excessively when leaving.  He says they churn their wheels, often leaving long rubber marks on Pimpama Jacobs Well Road.   

5. The Third Co-respondent by Election, Mr Blenkiron, lives at 458 Pimpama Jacobs Well Road, on a property adjoining the subject land.  He says that the current unlawful activities on the subject land are disruptive to the amenity of the area.  He describes the amenity prior to the unlawful activity as being that commensurate with a rural setting.  He acknowledges that it includes an ever-increasing volume of traffic along Pimpama Jacobs Well Road, and that the road is part of the heavy haulage route.  He has not noticed an increase in heavy trucks since living in the area but has noticed an increase in light vehicles since the development of a new housing estate in Jacobs Well.  He says that the traffic peaks associated with that development are at the time of school drop off and pick up. 

6. Mr Blenkiron describes a different character of noise associated with the unlawful motorsport facility as compared to that from the regular traffic.  He says that the noise from traffic on the road passes relatively quickly.  He explains that it takes about ten seconds for a truck (and any other vehicle travelling at speed of about 80 km/h) to traverse the stretch of road adjoining his property.  By way of contrast, he says the noise from the events at the subject land, including the noise of karts and motorbikes, lasts in the order of ten minutes.  He describes this as 60 times longer than the noise of a vehicle passing by the front of his home.

7. This evidence of Messrs Lowe, Evans and Blenkiron was not challenged.

8. In its written Outline of Argument, the Council submits that weight ought not be placed on the evidence of the Co-respondents by Election because evidence going to noise impacts must properly be given by experts.[17]  The Council’s submission is not supported by any authority.  I do not accept it.  The Co-respondents by Election can give evidence of what they have heard and experienced. 

   [17]Exhibit 17.5, [58].

9. The Council’s submission is also contrary to oft-cited appellate court authority about amenity expectations.  In Broad v Brisbane City Council & Anor,[18] the Full Court of the Supreme Court of Queensland provided guidance on the concept of amenity, the use that can be made of perceptions of residents and the potential relevance of a development approval to considerations of amenity.  Thomas J, with whom Connolly J agreed, observed the following:

   “I do not think that the concept admits of a tidy “objective or subjective” classification. Many statements can be found in the Local Government Reports indicating the relevance of subjective factors and many others can be found suggesting that the ultimate test is objective. Such views are not necessarily inconsistent. In support of the fact that the ultimate test is objective are statements that the court must bear in mind “that an injury to the amenity must be determined according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity” (Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 L.G.R.A. 153, 168). Again, descriptions of amenity of a neighbourhood as “the quality which it has of being pleasant or agreeable” (Cecil E. Mayo Pty. Limited v. Sydney City Council (1952) 18 L.G.R. 152, 156) and as “that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence” suggest that the ultimate inquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different ways. It is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it.

   It seems to me that the learned trial Judge adopted the above admittedly vague perceptions, not simply as those of an individual but as valid perceptions with which he agreed and which an ordinary person in the neighbourhood might possess. Neither their reception from an individual nor their adoption by His Honour as accurate perceptions reveals any improper subjectivity.

   The real criticism of His Honour’s use of these perceptions is not so much that they were subjective as that they were vague, irrational or incapable of adequate explanation. Common lawyers and men of equity alike have a healthy and long-standing distrust of the mystical explanation, and of the alleged factor which cannot be rationally justified. The question arises whether the use of the present criteria was impermissible or unsafe in principle. I do not think that they were. The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of “atmosphere”. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.

   These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that some matters in this area, although intangible and difficult to articulate, may be real and may properly to (sic) taken into account. Aesthetics may of course be a relevant consideration in a town planning decision although the basis of the opinion may be difficult to explain. It follows that although some of the particular factors upon which His Honour relied were admittedly vague, they were not necessarily invalid or improper considerations. No error of law is disclosed on this point.”[19]

   [18][1986] 2 Qd R 317.

   [19]Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 319-20 (emphasis added).

10. Similar observations were made by de Jersey J (as His Honour then was), with whom Connolly J also agreed.  His Honour found that the reasonable expectations concerning the use to which land would likely be put are relevant factors in assessing detriment to the amenity of a neighbourhood.  His Honour also observed that:

    “Miss Kiefel, who appeared for the Council, relied, in support of her submission, on two decisions of Sugerman J. in the New South Wales Land and Valuation Court. Each involved consideration of the ambit of the expression “injury to amenity” appearing in a planning ordinance. Neither case supports the conclusion that only objectively based views on the likely effect of a proposal on amenity may be admitted into evidence and affect a Judge’s determination of the issue. In Cecil E. Mayo Pty. Ltd. v. Sydney City Council (1952) 18 L.G.R. 152, 156 Sugerman J. described the amenity of a neighbourhood as “the quality which it has of being pleasant or agreeable”. One would think that the assessment of that quality would necessarily involve subjective judgments, and often judgments for which it would be difficult to offer a rational, concrete foundation. In Balgowlah Investments Ltd. v. Manly Municipal Council, supra, he suggested that central to the significance of apprehended injury to amenity is the question of what residents are “justly entitled to expect”. But that question is ordinarily not to be answered by reference to absolute, immutable standards, but will usually itself depend in turn on other “questions of degree”.

    In Vacuum Oil Company Pty. Ltd. v. Ashfield Municipal Council (1956) 2 L.G.R.A. 8, 11, Sugerman J. offered the following observations on the concept of “amenity” in town planning legislation:

    “‘Amenity’ is not confined to the negative factor of freedom from physical discomfort through the effects of noise, smell, and the other matters referred to in the proviso to clause 27 of the ‘County of Cumberland Planning Scheme Ordinance’. It relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as well to those across the road, who may be unaffected by noise etc., as to the adjoining and other occupiers on the same side. ‘Amenity’ may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence.”

    See also Humby v. Woollahra Municipal Council (1964) 10 L.G.R.A. 56, 65.

    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. Knowing the use to which a particular site is or may be put, may affect one’s perception of amentiy (sic).”[20]

    [20]Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 326 (emphasis added).

11. Similar observations were made by this Court in AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors.[21]  His Honour Judge Dodds observed that:

    “[40]A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected (sic) by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corporation Limited v. Pine Rivers Shire Council [2001] Q.P.E.L.R. 350.”[22]

    [21][2007] QPEC 112; [2008] QPELR 342.

    [22]AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40] (emphasis added, footnotes omitted).

12. As is apparent from the evidence of the Co-respondents by Election referred to above, their observations about amenity are not limited to observations about the amenity they enjoyed absent a motorsport facility on the subject land.  They give evidence that contrasts that amenity with their experience when the existing unlawful motorsport facility is operating. 

13. In Leda Holdings Pty Ltd v Caboolture Shire Council & Ors,[23] the Court of Appeal provided guidance on the appropriate use to be made of evidence about an existing unlawful use.  Jerrard JA, with whom McMurdo P and Philippides J agreed, observed that:

    [23][2006] QCA 271.

    ““The unlawful use issue”

    [29]The error asserted under the issue given this heading was the description by the learned judge that the evidence “revealed a significant planning need, albeit by reference to past trading in those stores without planning permission”, that the development had created “no adverse impacts, economic or otherwise”, and that it was clear that “[w]ithin the existing complex ....the existing tenants derive[d] benefit from the operations of Makro and the Warehouse”. Mr Gore QC complains that the reference to that evidence contravened what he described as a principle in town planning cases that while prior unlawful use should not disqualify an applicant for an approval to regularise the use, nor should any advantage accrue to a wrongdoer as a result of the wrongdoing. He particularly referred to the remarks in Kouflidis v City of Salisbury (1982) 49 LGRA 17 by King CJ, with whom Mohr J agreed, that:

    “Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use.”

    [30]The learned judge referred to that principle when remarking that the evidence “revealed a significant planning need, albeit by reference to past trading in those stores without planning permission”, in the context of a reference to a larger body of evidence, including the concession by witnesses called for Leda that there were no vacant retail areas in Morayfield Road where a Makro or Warehouse store could take up a tenancy in the near future; and that an inspection of the stores supported (a named witness’ evidence) that they cater for persons of limited means and meet a need exhibited by that part of the community in the Shire. The learned judge later went on to state:

    “Nor, for the sake of completeness, can evidence of a use previously carried on unlawfully (as occurred here before the proceedings in 2004) be seen in this instance as a significant impediment to later approval. The proper approach in those circumstances was summarised by Brabazon QC DCJ in Westfield Management Ltd v Pine Rivers Shire Council at [22]:

    In my opinion, it is appropriate to look at all factual matters, even those created by a period of unlawful use. They may be for or against the application. To consider them is not to give an applicant a benefit because of improper conduct. Rather, it is to use the best available information about the present merits of the application. The real principle is to ensure that such an applicant receives no benefit merely because the use is already in place. Likewise, hardship to an applicant will usually be irrelevant.

    Save in the very limited respects already mentioned no weight has been given to the earlier unlawful use, this being a case in which the parties’ contentions are to be considered primarily by reference to the planning documents and the legislation.”

    [31]It is clear that the learned judge was well aware of the principle referred to by Gore QC, and cautious about breaching it; the judgment by Brabazon QC DCJ in Westfield Management also refers to a submission that the settled practice in Queensland is to investigate the facts up to the present time, including any unlawful use. Brabazon QC DCJ referred, inter alia, to the decisions in Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 at 208, and to Mt Gravatt Bus Service v Brisbane City Council [2002] QPELR 35 at 36. Those references are to cases in which Planning and Environment Court judges considered it inappropriate to allow any advantage to an appellant as the result of the commencement of a use contrary to the provisions of a planning scheme, but recognised that the fact a use was already underway had some consequences which could be regarded as relevant in the determination of an appeal to that court. One was that it allowed a real assessment of the impact that the proposal under appeal would have on the amenity of the area and on environmental matters, noise nuisance, and the like. I respectfully agree with that approach, and that the learned judge in this matter was entitled to conclude that the development had created no adverse impacts, economic or otherwise, on the evidence; and this Court was not told on appeal of any constraint placed on the use to which the learned judge might put the inspection of the premises. I agree with the learned judge’s own implicit concession, that it would have been preferable to not rely upon evidence of a planning need established by past trading without planning permission, but I consider that to the extent that the learned judge erred in so doing, no error as to the proper principle was demonstrated, and the fact the judge did err in applying it had so little effect on the outcome that that is not a ground for giving leave to appeal.”[24]

    (emphasis added)

    [24]Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, [29]-[31] (emphasis added, footnotes omitted).

1. Having regard to those authorities, I am satisfied that the evidence of the Co-respondents by Election is relevant to my determination of the amenity of the area absent the proposed development.  It is also relevant to my consideration of the potential impact of the proposed development.  It provides available information about the merits of the proposed development without allowing an inappropriate advantage to the Appellant.

2. In determining what weight should be afforded to the evidence of the Co-respondents by Election, it is relevant to have regard to four matters.  First, whether the use is within their reasonable expectations as informed by the planning controls applying in the area under consideration.[25]  Second, the extent to which the reasonable expectations with respect to amenity are affected by any development approval for, or any lawful use of, the subject land.  Third, the extent to which the existence of the reception building and tracks on the subject land affects reasonable expectations.  Fourth, whether, in an objective sense, the independent evidence indicates that the views of the Co-respondents by Election are unreliable.

   [25]AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40].

   Is the proposed use within reasonable expectations as informed by the Planning Scheme?

3. The Appellant submits that the prospect of motorsport activity on the subject land after 2010 was high.  It says the location of the subject land, with limited noise sensitive uses nearby, on a busy and noisy haul route, in a rural setting, makes it ideal for a land consumptive use such as the proposed motorsport facility.  On that basis, it says there could reasonably be an expectation that a motorsport use could locate on the subject land, even if rights under an existing motorsport approval had not been exercised.  The Appellant also submits that the expectation of a motorsport facility on the subject land is also consistent with the location of the subject land in the Rural Precinct of the Inter-Urban Break Structure Plan area.

4. Despite the characteristics of the subject land relied on by the Appellant to submit it is an ideal location for a motorsport facility, the proposed development is considered an undesirable and inappropriate use on the subject land.[26] 

   [26]See paragraphs [14] to [18] above.

5. The Planning Scheme provides additional guidance on the future development of land within the Emerging Communities Domain through a series of Structure Plans.  The subject land is in the Rural Precinct under the Inter-Urban Break Structure Plan.  The purpose of that Structure Plan is:

   “To preserve an area of land with scenic, landscape and environmental qualities with the objective of providing a break in and visual relief to the emerging urban corridor. To contribute also to the achievement of a viable City wide nature conservation network, through the protection of the Pimpama-Wongawallen Major Linkage.”[27]

   [27]Planning Scheme pt 5, div 2, ch 18, s 14.1.

6. The Appellant and the Council submit that active recreational facilities are anticipated uses in the Structure Plan area as they are referenced in the planning outcomes for the Structure Plan area.  In particular, the Council refers to pt 5, div 2, ch 18, s 14.4, which states:

   “The promotion of appropriate, compatible land uses within the Structure Plan area:

   ·     The creation of active and passive recreational facilities which will support the emerging residential development to the north and south of the residential area.

   ·     …”

7. The Council’s reference to this provision ignores important contextual matters.  As is explained in pt 5, div 2, ch 18, s 14.5:

   “The identified local area features and established planning outcomes outlined above relate to the Inter-Urban Break Structure Plan area in its entirety. In order to achieve optimal planning outcomes for the local area it is desirable to divide the Structure Plan into smaller precincts. The Structure Plan area has been divided into five precincts.

   These precincts are differentiated by the nature of the existing settlement pattern, their visual and ecological significance, and consequent ability to support development. The establishment of the precincts enables the refinement of planning controls within the local area, permitting detailed development and environmental controls to be applied to respond to the particular constraints and opportunities presented by each precinct within the Inter-Urban Break. This approach seeks to ensure that the specific development intent of each precinct is achieved and preserved in the future.

   The Structure Plan precincts are:

   ·     Open Space and Landscape Protection;

   ·     Small Lot Rural;

   ·     Low Key Commercial Node;

   ·     Park Living; and

   ·     Rural.”

8. This provision reveals that the outcomes referred to in pt 5, div 2, ch 18, s 14.4 do not apply to all precincts of the Inter-Urban Break Structure Plan.  One must look at the provisions for each precinct to ascertain the extent to which each outcome in s 14.4 relates to a particular precinct.  The purpose and applicable planning measures for each precinct are set out in pt 5, div 2, ch 18, ss 14.5.1 to 14.5.5.  Those provisions indicate that land in the Open Space and Landscape Protection Precinct and the Small Lot Rural Precinct may be used for appropriate recreational and tourism activities.  No such encouragement exists for land in the Rural Precinct. 

9. With respect to the Rural Precinct, the Planning Scheme states that:

   “The purpose and provisions relevant to this precinct are those contained within the Rural Domain and associated codes. It is intended that the existing amenity of this precinct not be adversely impacted upon.

   Most of the areas included within the Rural Precinct are designated Good Quality Agricultural land, and it is intended that the land use within these areas is predominately rural and subdivision is limited. Rural subdivision in these areas will be limited and regulated by the Rural Subdivision – Overlay Map OM1 and the Reconfiguring a Lot Code.

   Rural (and other) land uses occurring within the Rural Precinct should also enhance the desired planning outcomes of the Inner-Urban Break Structure Plan. In particular, land uses and associated activities within the precinct will preserve the landscape character as rural and open, and will ensure protection and rehabilitation of potential wildlife corridors and habitats. Council will encourage alternative, sustainable farming practices, that achieve the objectives of the Inter-Urban Break Structure Plan.

   Implementation

   a)Land uses occurring within the Rural Precinct should comply with the relevant codes, including:

   ·     Rural Domain Code

   ·     the Reconfiguring of a Lot code; and

   ·     other relevant codes pertaining to protection and enhancement of wildlife corridors, conservation and waterways.

   b)Subdivision within the Rural precinct is restricted.

   c)Land uses occurring within the Rural precinct should not compromise the Inter-Urban Break Planning Objectives, having regard to:

   ·     protection of landscape character

   ·     enhancement of an open and rural visual break; and

   ·     protection and enhancement of potential wildlife corridors and habitats.”[28]

   (emphasis added)

   [28]Planning Scheme pt 5, div 2, ch 18, s 14.5.5.

10. Although the Table of Development for the Rural Domain Code indicates that outdoor sport and recreation uses may be anticipated in the Rural Domain,[29] that is only on sites not identified on Overlay Map 2 - Good Quality Agricultural Land.  The subject land is identified on that map as good quality agricultural land.[30]  Further, performance criteria PC10 of the Rural Domain Code stipulates that a proposed use must not detract from the amenity of the local area. 

    [29]Planning Scheme pt 5, div 2, ch 1, s 3.0.

    [30]Exhibit 17.3.

11. As such, when s 14.4 of pt 5, div 2, ch 18 of the Planning Scheme is read in the context in which it appears, it is apparent that active recreational facilities are not an anticipated use on the subject land.

12. The designation of the subject land as part of the Emerging Communities Domain and the exclusion of the defined use of “outdoor sport and recreation” from the Table of Development for land in the Emerging Communities Domain reflects a deliberate policy decision by the Council.  So too does the designation of the subject land as good quality agricultural land and as part of the Rural Precinct of the Inter-Urban Break Structure Plan, which land is not encouraged to be developed for the defined use of “outdoor sport and recreation”.

13. When the Planning Scheme is read as a whole, and in a practical and sensible way, there is a clear planning policy that uses such as the proposed development are not to be established in these areas.  In anticipation that such a use may be applied for, the Planning Scheme sets a high bar by indicating that such uses should be considered as undesirable or inappropriate.

14. For the reasons outlined above, the Planning Scheme lends support to the reasonableness of the expectations of the Co-respondents by Election that their amenity should not be impacted by the type and duration of noise that would be associated with the proposed development.

    How do the development approvals for the subject land, and the existing use, affect reasonable expectations about amenity?

15. As I have already noted in paragraph [8] above, the assessment must have regard to any development approval for, and any lawful use of, the subject land.[31]  The weight to be given to such matters is a question of fact that will be informed by considerations that include, but are not limited to, whether there is an extant right to develop in accordance with any development approval and the impacts that might be occasioned by any lawful use were extant rights to be exercised.

    [31]Sustainable Planning Act 2009 s 314.

16. Pursuant to the Planning Act 2016 (and its predecessors), the Council is obliged to keep a record of any development approvals over the subject land, including those development approvals authorising any use of the land, any operational works (such as those undertaken to establish the two tracks on the subject land) and any building works, such as those associated with the constructed motorsport facility.[32] 

    [32]The Council is obliged to keep a record of such matters under s 264 of the Planning Act 2016 and s 70 and sch 22 of the Planning Regulation2017 (Qld). Similar obligations existed under the Integrated Planning Act 1997 (Qld) and the Sustainable Planning Act 2009 (Qld).

17. The Council tendered a Certificate of the Chief Executive Officer of the Gold Coast City Council dated 1 June 2021 (“CEO Certificate”)[33] with respect to the development approvals over the subject land.  According to the CEO Certificate, the Council records show that the subject land is subject to two development approvals, being:

    (a)a development permit described as being for a material change of use for outdoor sport and recreation facility (WRX driving facility and dirt buggy track), originally given by way of Judgment (per His Honour Judge Searles) in Planning and Environment Court Appeal No. B1426 of 2008 (“the 2010 Motorsport Approval”), and changed by Judgment (per His Honour Judge Jones) in Planning and Environment Court Application No. 943 of 2013, dated 26 April 2013; and

    (b)a development permit described as being for material change of use (impact assessment) for outdoor sport and recreation (paint ball facility), originally given by way of decision notice dated 20 September 2016, and changed on 14 March 2017 and 17 July 2018. 

    [33]Exhibit 17.4.

18. The CEO Certificate also states that the Council records do not show when, or if, development has commenced under either of these approvals.

19. The CEO Certificate was provided under s 251 of the Local Government Act 2009 (Qld), which states that:

    “251   Evidentiary value of certificates

    (1)This section applies to a certificate that—

    (a)     purports to be about the state of, or a fact in, a record of the local government; and

    (b)     purports to be signed by the chief executive officer.

    (2)Also, this section applies to a certificate that—

    (a)     purports to be about the state of, or a fact in, a record of a joint local government; and

    (b)     purports to be signed by the chairperson of the joint local government.

    (3)The certificate is evidence of the matters contained in the certificate.”

    (emphasis added)

20. The Appellant tendered a document that it contended was the 2010 Motorsport Approval.[34]  The Council did not object to the tender.  In those circumstances, I am prepared to assume that the document tendered by the Appellant is a true copy of the 2010 Motorsport Approval.[35]

    [34]Exhibit 2.4.

    [35]Planning and Environment Court Rules 2018 (Qld) r 25.

21. The 2010 Motorsport Approval demonstrates that on 20 January 2010, the Planning and Environment Court approved a development application for a development permit for a material change of use for an outdoor sport and recreation facility (WRX driving facility and dirt buggy track) in relation to the subject land.  The application was approved subject to conditions that were attached to the judgment and marked “A”.  They included the following requirements that are relevant to an appreciation of the extent of the use that was authorised:

“Real Property Description	Lot 1 on WD3475
Address of Property	484 Pimpama Jacobs Well Road, Pimpama
Area of Property	455,710m2
Proposed Use	Outdoor Sport & Recreation (WRX Driving Facility and Dirt Buggy Track)
Further Development Permits	Building Work, Plumbing & Drainage, Operational Works (Landscaping), Operational Works (Civil), Operational Works (Vegetation Clearing)

APPROVED PLANS/DRAWINGS

1Development to be generally in accordance with specified plans/drawings

The development must be carried out generally in accordance with the approved plans/drawings listed below, stamped and returned to the applicant with this decision notice.

Plan No.	Rev.	Title	Date	Prepared by
MLP2310	B	Site Plan (includes setbacks to Good Quality Agricultural Land)	May 2009	McLynskey Planners Pty Ltd
MLP2310	B	Site Plan (includes Carpark Details)	May 2009	McLynskey Planners Pty Ltd

2Decision notice and approved plans/drawings with building development application

A copy of this decision notice and accompanying stamped approved plans/drawings must be submitted with any building development application relating to or arising from this development approval.

…

4Any deviations require further approval

Any proposed deviation from the approved plans/drawings as a result of on-site or in-situ conditions must not be made unless amended plans/drawings are submitted and approved by Council.  The development must be carried out in accordance with the approved amended plans/drawings.

COMPLETION DATE

5Completion date

The change of use to an Outdoor Sport & Recreation (WRX Driving Facility and Dirt Buggy Track) must happen within 2 years from the date of the decision notice). Pursuant to section 3.5.21A of the Integrated Planning Act 1997, this development approval lapses if the change of use does not happen by this date.

…

9Acoustic Impacts Management

aTechnical matters

i        The development shall be designed and constructed in accordance with the acoustic report recommendations outlined in Section 6.0 of the acoustic report (Reference no. WRX0310007/1) dated 3 October 2007 and prepared by Craig Hill Acoustics).

ii       Each Subaru WRX vehicle and buggy to be used on the site shall be tested using a drive-test method to determine the level of noise emitted by the vehicles.

iii      The drive-by test method is to be based closely on the method used for certification of all motor vehicles to Australian Design Rule ADR 28/01 “External noise of Motor Vehicles.”  The drive-by test method is described in Condition 11 of these conditions.

bTesting of each Subaru WRX vehicle and buggy shall be conducted on-site prior to first use on the site and then at least once every 12 months or on receipt of a complaint or at the request of Council commencing the date the approval takes effect.

cA Subaru WRX vehicle or buggy may be used on the site only if the maximum vehicle noise level emitted as measured using the drive-by test method does not exceed the maximum permitted noise level. The maximum permitted noise level for the Subaru WRX vehicle is 78dBA and for the dirt buggy 72dBA.

dThe Subaru WRX vehicle shall be limited to the use of standard mufflers only.

eIf the vehicle or buggy’s maximum noise level emitted when measured using the drive-by test method exceeds the maximum permitted noise level, the vehicle/buggy shall not be used until such time as it complies with the maximum permitted noise level.

fTesting of the level of noise from a Subaru WRX vehicle and buggy shall be conducted only by a person competent to perform such tests and holding appropriate qualifications for such tests. The person must be a member of the Australia Acoustical Society or, if not a member, must be eligible for full membership of the Society. Documentary evidence of the competent person’s qualifications shall be kept on-site with the records of noise-level testing.

…

12General

aAll activities associated with the operation of the approved use are to be conducted only between the hours of 9.00am to 5.30pm, seven (7) days per week.

bA maximum of two (2) Subaru WRX vehicles shall be permitted on the gravel circuit at any one time. A maximum three (3) buggies shall be permitted on the sealed circuit at any one time. The use authorised by this approval is limited to the use of Subaru WRX vehicles and buggies only.

cThe gravel circuit shall only be utilised for driver instruction and not for racing and rally training.

dThe applicant shall bitumen seal the entire length of the buggy track. Works shall be carried out to the satisfaction of the Chief Executive Officer, and at no cost to Council.

…”

(emphasis added)

1. It is apparent from these conditions that the approved motorsport activities were very limited in their extent.

2. Other conditions of the 2010 Motorsport Approval indicate that operational works approvals were required for earthworks associated with the construction of the approved tracks.[36] 

   [36]See, for example, Exhibit 2.4, conditions 19a, 26, 27, 29 and 31.

3. The approved plans reveal that buildings associated with the use included the “WRX Experience Office” and the “Vehicle Storage Compound”.  They also show two tracks: the “Buggy Track” and the “WRX Experience Track”. 

4. The 2010 Development Approval was changed by the Judgment of His Honour Judge Jones given on 26 April 2013.[37] That judgment records that the court was satisfied that the development permit lapsed within the meaning of s 341 of the Sustainable Planning Act 2009 on 16 August 2012.  Despite the lapse, it was adjudged that:

   (a)condition 5 of the 2010 Development Approval be taken to be of no effect; and

   (b)it be taken that the relevant period of the development permit is 4 years, starting the day the development permit took effect.

   [37]Exhibit 17.4.

5. The Appellant submits that, despite the discouragement in the Planning Scheme, the use of the subject land for a motorsport activity should be within the reasonable amenity expectations of the residents of the local area.  The Appellant’s submission is founded on its assertion that the 2010 Motorsport Approval has not lapsed as the use started prior to 20 January 2014.  The Appellant says the commencement of the use is demonstrated by the evidence of Mr Lowe referred to in paragraph [34] above. 

1. On the evidence of Mr Lowe, several different types of motor vehicles have operated on the subject land since 2013.  They include four stroke go-karts, racing high performance ride on lawn mowers, motor bikes (two stroke and four stroke and including dirt bikes, road bikes and high performance race bikes), high performance go-karts, modified race cars, and a highly modified six wheel kart with a 600cc Yamaha road bike engine known as the monster kart.  Mr Lowe was unequivocal that all the vehicles that have been operating at this facility since 2013 are not listed as approved vehicles to operate under the 2010 Motorsport Approval.  That evidence was not challenged.

2. The evidence of Mr Lowe is consistent with admissions made by the Appellant in its Outline of Submissions that:

   “2.30Some key aspects of the history of the use of the land are relevant and can be summarised as follows:

   (a)in January 2010 the Court granted the Existing Motorsport Approval, with a currency period for that development permit of 2 years;

   (b)in early 2013 GCMS commence motorsport activities at the Motorsport Facility on the Subject Land;

   (c)in April 2013 this Court noted that the Existing Motorsport Approval had lapsed, but ordered under section 440 of the SPA the currency period for the Existing Motorsport Approval be taken to be 4 years (starting in January 2010);

   (d)the motorsport activities of GCMS have continued since 2013;

   (e)it is accepted that the motorsport activities of the GCMS have not complied with all of the conditions of the Existing Motorsport Approval;

   (f)in October 2014 Council issued an enforcement notice in respect of the motorsport activities on the Subject Land, alleging that those activities involved non-compliance with conditions of the Existing Motorsport Approval;

   (g)in December 2014 GCMS lodged the Development Application to seek to regularise the existing and proposed motorsport activities on the Subject Land by seeking a further development approval; and

   (h)the motorsport activities have continued on the Subject Land while the extensive investigations into the Proposed Motorsport Facility have been conducted, predominantly in respect of acoustic matters, resulting in the changes to the Development Application to produce the current proposal.

   2.31The motorsport activities that have been conducted on the Subject Land, and those proposed by the Development Application, involve regular use of the facility with karts provided by the operator as well as the use of karts and bikes brought by visitors to the facility.

   2.32The regular use of the Proposed Motorsport Facility would involve various levels of testing of vehicles that use the track, together with limits on the vehicles that can use the track.

   2.33In addition to this regular use of the facility, there has been, and is proposed to be, a single annual racing event held at the facility as a showpiece for karting in the region.”

   (emphasis added, footnotes omitted)

3. The evidence establishes that the use that commenced in early 2013 was materially different to that which was approved.  Having regard to the evidence of Mr Lowe, the use of the subject land in 2013 could not fairly be described as “outdoor sport and recreation facility (WRX driving facility and dirt buggy track)”.  On this basis alone, I am satisfied that the use that was commenced was not the use that was authorised by the 2010 Motorsport Approval. 

4. Another material respect in which the use of the subject land differs from that authorised under the 2010 Motorsport Approval is with respect to the nature of the tracks and their use.  Conditions 1 and 12 regulate the types of tracks approved and their use. 

5. When the 2010 Motorsport Approval is construed as a whole, including the detailed conditions with respect to acoustic impacts and the testing of the vehicles to be used,[38] it is apparent that the limits on the use imposed in condition 12 are material to an appreciation of the use that was authorised. 

   [38]See conditions 9 and 13.

6. A comparison of the approved plans to aerial photography of the subject land shows that the “Buggy Track” is in the general vicinity of the existing dirt track on the subject land and the “WRX Experience Track” is in the general location of the sealed bitumen track on the subject land.  Both tracks have a configuration that is different to that which was approved.  They are also constructed of materials that differ from that which was authorised.  Further, it is apparent from condition 12 that the only racing permitted involved a maximum of three buggies at any one time.  The use described in the evidence, and the admissions, does not accord with this.

7. As the use conducted on the subject land since 2013 could not fairly be described as that which was authorised by the 2010 Motorsport Approval, the Appellant has not demonstrated that the 2010 Motorsport Approval has not lapsed.  In those circumstances, I am not persuaded that the existence of the 2010 Motorsport Approval is a weighty consideration supporting approval of the proposed development.  The existence of the approval does not demonstrate that the amenity expectations of the residents are unreasonable.  

8. Further, even if I were to assume that use of the subject land commenced under the 2010 Motorsport Approval sufficient to prevent the approval from lapsing, I am not satisfied that the 2010 Motorsport Approval provides material support to the Appellant’s case for approval of the proposed development for two reasons.

9. First, the election to construct a different track to that which was authorised under the 2010 Motorsport Approval is objective evidence of the landowner’s subjective intention to abandon its use rights under the 2010 Motorsport Approval.[39]  As such, the re-establishment of the use authorised by the 2010 Motorsport Approval would constitute a material change of use[40] and would likely require a new development permit before it could lawfully commence. 

   [39]Steendyk v Brisbane City Council & Anor [2016] QPEC 47; [2016] QPELR 868, 884-5 [69]-[72].

   [40]In sch 2 of the Planning Act 2016, a “material change of use” of premises is defined to include the re-establishment on the premises of a use that has been abandoned.

10. Second, assuming the 2010 Motorsport Approval has not lapsed or been abandoned, the prospect of the subject land being used in accordance with that approval does not persuade me that the proposed development is a use that ought be reasonably expected in the area or that the proposed development will not unacceptably detract from the amenity of the local area.  This is because the proposed development differs from that authorised under the 2010 Motorsport Approval in three material respects.

11. The first material difference is that the maximum noise emission permitted from each vehicle under the 2010 Motorsport Approval is less than that sought to be permitted for the proposed development.  Pursuant to condition 9c of the 2010 Motorsport Approval, the maximum permitted noise level was 78dBA for the Subaru WRX and 72dBA for the dirt buggy.  Further, the Subaru WRX vehicle was limited to the use of standard mufflers only. 

12. In relation to the proposed development, proposed condition 8 states that, subject to condition 14 (which relates to the preparation of the Commissioning Plan), the use must be conducted in accordance with the Noise Management Plan[41] and all requirements of, and all steps contemplated by or arising under, the Noise Management Plan must be fully complied with or implemented.  To the extent that the Noise Management Plan stipulates a maximum permitted noise level for each individual vehicle, it is a much higher limit. 

    [41]Although the condition is not explicit, I assume this is the version listed in the approved plans in condition 2, being the Noise Management Plan dated November 2020.

13. The Noise Management Plan[42] outlines two tests that are to be undertaken to set noise limits for individual vehicles.  They are the static test and the passby test.

    [42]Exhibit 4.4.

14. Section A3.0 of the Noise Management Plan states:

    “In addition to observing the responsibilities in Section 2.0, the Operator must take all reasonable steps to minimise noise emission from the Facility, including all of the following:

    …

    (vi)Other than at times when the Facility is being used for the Special International Karting Event, ensuring that all karts and motorbikes, prior to their being permitted onto any circuits at the Facility, are tested in accordance with the Static Test Procedure detailed in Attachment B, to ensure that they comply with the static noise level limit of 112dBA.

    …”

15. Further detail of the static test requirements is set out in s A4.4 of the Noise Management Plan.  It states:

    “A4.4     Static Test

    Other than when the facility is used for an annual Special International Karting Event, each vehicle must be tested in accordance with the static test procedures of the 2 Metre Max Method in Appendix C of the 2018 Manual of Motorcycle Sport (extracted at Attachment B of this NMP), before being permitted access to any of the four circuits.

    The specific sections of Appendix C of the 2018 Manual of Motorcycle Sport to be complied with are s.1.2.3, s.1.2.4, s.1.3, s.1.4.1 (a)-(d), s.1.4.1(g), s.1.4.2, s.1.4.3(a)-(i), s.1.4.3(k)-(m), s.1.4.3 (o) and s.1.4.3(p).

    Notes:

    (1)For the purposes of this NMP, all references in Appendix C of the 2018 Manual of Motorcycle Sport to “competition and racing” should be interpreted to mean simply and subsequent operation of the vehicle on any of the circuits of the facility.

    (2)For karts, the “reference point” cited at s.1.4.2 of Appendix C of the 2018 Manual of Motorcycle Sport is at a point on the ground directly below the discharge point of the exhaust.

    The static test noise level limit applying under s.1.4.3(p) of Appendix C of the 2018 Manual of Motorcycle Sport is 112dBA. All results shall be rounded to the nearest whole decibel. To remove any, doubt, the 112dBA noise limit applies to the maximum noise level that is recorded when conducting the test in accordance with the static test procedure detailed. The results of all tests are to be kept on the Testing Register.

    All testing must be conducted within the purpose-designed test shelter, located and configured generally as shown in Figures 6-10 at Attachment B of this NMP, with the vehicle positioned at the orientation shown marked on the ground within the test shelter and the sound level meter positioned at the point shown marked on the ground at the test shelter.

    In the case of track-owned vehicles such as hire karts, static testing of each vehicle is to be carried out as follows:

    • An initial test before commencement of use under the Approval.

    • After engine/exhaust related maintenance or repairs to the vehicle.

    • Otherwise every three months.

    In the case of privately owned vehicles, static testing is to be carried out:

    • Each day prior to the vehicle using the facility.

    • After engine/exhaust related maintenance or repairs on a vehicle, if carried out after a static test conducted earlier in the same day.”

    (emphasis added)

16. The maximum noise level limit of 112dBA is specified to apply under s 1.4.3(p) of Appendix C of the 2018 Manual of Motorcycle Sport (provided as Attachment B of the Noise Management Plan).  That provision states that:

    “Motorcycles that do not comply with sound test limits pre-race will not be permitted to enter the course.”  

17. Section A4.4 of the Noise Management Plan does not specify a static test limit to apply under s 1.3.1 of Appendix C of the 2018 Manual of Motorcycle Sport, which states that:

    “No person may compete in any event on a machine whose sound emissions exceed the prescribed levels.”

18. The effect of the provisions of the Noise Management Plan referred to above is unclear.  On one construction, they only require motorcycles to comply with the 112dBA limit.  Alternatively, they could be construed as requiring all vehicles to comply with the 112dBA limit on application of the static test.

19. As development approvals operate, in effect, in rem and may be relied upon by subsequent owners and users of the land, where the approval is ambiguous it should be construed in the manner that places the least burden upon the landowner.[43]  In those circumstances, the Noise Management Plan may be construed as setting a static test maximum noise limit of 112dBA for motorcycles only and as setting no static test limit for the other types of vehicle authorised on the track.  Even if this is not the intended outcome, the 112dBA limit is far greater than the 78dBA limit that applied under the 2010 Motorsport Approval.

    [43]Matijesevic v Logan City Council [1984] 1 Qd R 599, 605.

20. The other test that is prescribed in the Noise Management Plan to set noise limits for individual vehicles is the passby test.  In relation to that test, s A4.5 of the Noise Management Plan states that:

    “Other than when the facility is used for an annual Special International Karting Event, all vehicles are to comply with the passby noise level limit of 95dBA when the vehicle is driven under maximum acceleration past a pair of sound level meters set at a distance of 10m either side of the vehicle centreline.”

21. The 95dBA noise level limit is also considerably higher than the 78dBA limit that applied under the 2010 Motorsport Approval.

22. The second material difference between the proposed development and the use authorised under the 2010 Motorsport Approval relates to the number and type of vehicles permitted on the track at any one time.  Condition 12b of the 2010 Motorsport Approval permitted a maximum of two Subaru WRX vehicles on the gravel circuit at any one time and a maximum of three dirt buggies on the sealed circuit at any one time.  The proposed development involves a significantly larger number of vehicles.  The vehicles permitted are proposed to be regulated by a table of activities, which is referenced in proposed condition 13. 

23. During the annual special international karting event, there is no limit on the number or type of vehicles permitted on the track.[44]  Otherwise, under the table of activities,[45] at any one time:

    [44]Exhibit 4.3.

    [45]Exhibit 4.3.

    (a)the bitumen track may be used for:

    (i)25 karts that are 4-stroke hire karts up to a maximum capacity of 390cc; or

    (ii)25 karts that are 4-stroke hire karts with two engines of 270cc each; or

    (iii)seven karts that are 2-stroke hire karts up to a maximum capacity of 125cc; or

    (iv)eight karts that are 4-stroke private karts up to a maximum capacity of 390cc; or

    (v)seven karts that are 2-stroke private karts up to a maximum capacity of 125cc; or

    (vi)one 4-stroke hire kart up to a maximum capacity of 600cc; or

    (vii)six trike bikes that are 4-stroke private trike bikes up to a maximum capacity of 200cc; or

    (viii)20 motorcycles that are private road registered motorcycles; or

    (ix)two motorcycles that are private non-road registered motorcycles; or

    (x)12 skateboards that are private petrol or electric powered skateboards; or

    (xi)25 electric kart that are private or hire electric karts; and

    (b)the dirt track may be used for:

    (i)12 skateboards that are private petrol or electric powered skateboards; or

    (ii)ten karts that are 4-stroke hire karts up to a maximum capacity of 270cc; or

    (iii)ten quad bikes that are 4-stroke hire or private quad bikes up to a maximum capacity of 250cc; or

    (iv)ten motorcycles that are 4-stroke motorcycles up to a maximum capacity of 250cc.

24. The third material difference between the proposed development and the use authorised under the 2010 Motorsport Approval relates to the annual special international karting event.  Not only are there no vehicle limits associated with this event.  The event also has the potential to attract a significant volume of additional traffic to the subject land on a weekend.

25. The Appellant proposes to counteract the increased intensity of the use associated with the proposed development by the incorporation of two noise mitigation measures that do not feature in the 2010 Motorsport Approval.  The proposed mitigation measures were a global noise monitor limit of 77dBA L_Aeq,event during all activities other than the special international karting event and the construction of two acoustic mounds. For reasons explained in paragraphs [110] to [183] below, I am not satisfied that these noise mitigation measures will ensure that the increased intensity associated with the proposed development will not unacceptably detract from the amenity of the local area.

26. For the reasons provided above, having regard to the 2010 Motorsport Approval, I am not persuaded that the proposed development is a use that ought to be reasonably expected in the area.  I am also not satisfied that the 2010 Motorsport Approval assists the Appellant to demonstrate that the proposed development will not unacceptably detract from the amenity of the local area. 

    How does the constructed motorsport facility affect reasonable expectations?

27. The Appellant seeks to rely on the constructed building and operational works associated with the motorsport facility (such as the constructed tracks) in assessing the reasonable amenity expectations of the locality.  It submits that there is no suggestion that the building and operational works associated with the motorsport facility (including the existing reception building and existing tracks) are unlawful. 

28. The Appellant has not provided any authority to support a suggestion that the Court should have regard to any lawful works.[46]  In any event, the Appellant’s submission about the lawfulness of the building and operational works is not supported by the evidence.

    [46]Section 314 of the Sustainable Planning Act 2009 only requires the assessment to have regard to any development approval for the subject land, and any lawful use of the subject land.

29. The Appellant tendered a copy of the development application dated December 2014.[47]  The brief description of the proposed development given on the application forms is “Change of use from Outdoor Sport & Recreation Facility (WRX driving facility and dirt buggy track) to Outdoor Sport & Recreation (Motor Sport and Training Facility)”.  The application forms describe the current use of the premises as “Outdoor Sport & Recreation Facility (WRX driving facility and dirt buggy track)”.  The forms also indicate that the proposed development does not include new building work or operational work, rather the Appellant intends to reuse existing buildings on the subject land and to reuse existing operational works on the premises.  In that context, the only “current approvals … associated with this application” that the Appellant lists is as follows:

    [47]Exhibit 6.1.

List of approval reference/s	Date approved (dd/mm/yy)	Date approval lapses (dd/mm/yy)
PN183001/01/DA3/-(P3)	20 January 2010	exercised

(referred to herein as “the 2010 Motorsport Approval”).

1. The report that accompanied the development application indicates that the development application is a response to a show cause notice issued under s 590 of the Sustainable Planning Act 2009 and the subsequent enforcement notice.  The report identifies that the application seeks a rearranged track layout compared to that approved under the 2010 Motorsport Approval.

2. Under s 587 of the Sustainable Planning Act 2009, it was an offence to give the Council a document containing information that the person knew was false or misleading in a material particular.  In those circumstances, it is reasonable to infer that the Appellant regarded the information provided as part of the development application to be accurate at the time it was given. 

1. He says that management of the Appellant advises that it is the only karting track at the Gold Coast that meets the highest Australian Karting Association standards.  As such, the Appellant tells him that it is the only karting track at the Gold Coast with the technical qualifications to host national and international karting events sanctioned by Karting Australia.  No evidence was produced verifying this assumption. 

2. Second, Mr Coghlin opines that amongst Gold Coast karting tracks, the proposed development is best able to extend the breadth and impact of local motorsport as an industry and visitor attraction in that:

   (a)it is used as a professional motorsport venue, in contrast to other local karting tracks which are primarily recreational facilities;

   (b)the manager of the Norwell Motorplex advised that the proposed development has value as an entry level motorsport from which participants can advance to full-size motorsport facilities like Norwell Motorplex;

   (c)the Appellant advises that it is a preferred local venue for professional drivers to maintain driving fitness in the off-season; and

   (d)the proposed development has enhanced the profile of major Gold Coast motorsport events – most notably the Gold Coast 600 – through associated events featuring professional drivers.

3. No evidence was produced verifying these assumptions.

4. Third, Mr Coghlin relies on the fact that the track is an established venue for non-motorsport events.  He says it hosts events that have been sponsored or endorsed by the Council, school boards and charitable institutions.  He also says it provides a venue for testing and trialling new technology and vehicles, including use by the local Griffith University racing team for its racing cars.  It provides a safe off-road venue for driver education for schools. 

5. Fourth, Mr Coghlin says that the supporting role of the existing facility in events such as Race of Stars during the Gold Coast 600 Supercars event contributes to Gold Coast tourism by extending the potential length of stay of intrastate, interstate, and overseas visitors.  By establishing a motorsport hub within the Gold Coast area (along with complementary motorsport facilities such as Norwell Motorplex), it is creating a destination that offers “hero experiences”, which Mr Coghlin says is an aim of the Gold Coast Destination Tourism Management Plan 2014-2020.  A copy of that document was not placed in evidence before me.

6. The fifth matter relied on by Mr Coghlin is that the proposed development is the only facility in Gold Coast City capable of hosting major karting events, plus various other motorsport and non-motorsport events.  He says that in 2020, the existing facility generated around 11,450 visits from kart users alone, plus additional visits generated to various motorsport and non-motorsport events.  He says that most of these visits were by patrons living outside Gold Coast and hinterland area.

7. Finally, Mr Coghlin opines that there are no suitable alternative sites for the subject use.  Mr Coghlin’s assessment considers only those limited number of sites identified by Mr Norling in the Joint Experts Report on Need as being preferable sites under the Planning Scheme.  Mr Coghlin’s conclusion that there are no suitable alternative sites is informed by his decision to disregard any site that is:

   (a)now in a zone where karting uses would be regarded as an inconsistent use; or

   (b)flood affected and which would require a flood assessment; or

   (c)potentially affected by environmental constraints; or

   (d)proximate to residential uses.

8. Mr Norling opines that there is a moderate to strong level of community and economic need for the existing kart tracks on the subject land to continue operations.  He says that each of the sites identified in the Joint Experts Report on Need as potential alternative sites remain theoretically able to accommodate an outdoor sport and recreation use as a consistent use.  Nevertheless, he opines that presently there is a moderate to strong level of need.  His opinion is informed by his assumption that, in Gold Coast City Plan 2016, there are no suitable lands that are ranked higher than the subject land to accommodate karting tracks of a similar scale and operation. 

9. The temporal constraint on Mr Norling’s opinion is informed by two matters.  First, there is an extant development application for a motorsport facility at 1416-1462 Stapylton Jacobs Well Road, Woongoolba that is currently in the referral period.  Second, in the Joint Experts Report on Need, the experts agree that s 3.2.3 of Gold Coast City Plan 2016 states that the Council would investigate the City’s agricultural cane lands for their suitability for use as a “tourism-related adrenalin precinct”.  The experts understand that this term is used to include one or more motor sport facilities.  The experts note that s 3.5.4.1 of Gold Coast City Plan 2016 expands on this planning intent, stating that:

   “the suitability of an area within the city’s agricultural cane lands will be investigated for use as a tourism related sports adrenalin precinct. Until this investigation is undertaken, and any amendments to the City Plan are completed, this area is to maintain its intent as a natural resource area.”

10. Mr Norling also opines that the need for the proposed development is strengthened by the fact that it already exists on the subject land and has a proven demand. 

11. I accept that if the proposed development were approved, it would provide a facility that is of some benefit to the community.  It would contribute to the general economy in the City of Gold Coast, including the tourism economy.  However, I am not persuaded that the need could properly be regarded as of any great moment for four reasons.

12. First, the nature of the facility, being a kart racing and motorsport training facility, limits the potential for the facility to play a significant role in terms of fulfilling any substantial public or community need or in providing a benefit of significance.[122] 

    [122]It can be contrasted with a use that provides for the daily essentials of ordinary life for which the bar should not be set too high: Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; [2008] QPELR 480, 485 [30].

13. Second, those who wish to enjoy this type of outdoor sport and recreation use have a range of options.  In the Joint Experts Report – Town Planning, Mr Reynolds identifies that there are a significant number of other motorsport facilities located within the Gold Coast local government area and other parts of South East Queensland.  He provides details of them in Attachment C of the Joint Experts Report – Town Planning.  They include many motorsport facilities that exist or are approved in the Gold Coast City local government area, as well as others that exist or are approved in the local government areas of Brisbane City Council, Redland City Council, Logan City Council, Ipswich City Council, Moreton Bay Regional Council, Southern Downs Regional Council, Sunshine Coast Council and Lockyer Valley Council.[123]  As is apparent from the evidence of Mr Norling, the proposed development is a type of use that draws patrons from a vast geographic area.  In his individual statement, Mr Norling notes that 41 per cent of patrons originate from the Gold Coast, 36 per cent originate from Greater Brisbane and at least 15 per cent are assumed to comprise tourists.[124]  As such, the existence of other facilities identified by Mr Reynolds is relevant. 

    [123]I accept that the list was produced some time ago.  I have placed more weight on the list produced by the need experts referred to in paragraph [213], which those experts verified recently.

    [124]Exhibit 12.1 p 4 [16].

14. The need experts also identify a list of potentially competitive karting facilities that they inspected and provide a summary of the characteristics of the facilities.  They include:

    (a)Ipswich Kart Club, located in the Ipswich Motorsport Precinct at Willowbank.  At the time of the Joint Experts Report on Need, the experts noted that the Ipswich Kart Club was in the process of upgrading its facilities to meet the highest standard set by the sport’s national governing body;

    (b)Archerfield Kart Hire, located adjacent Archerfield Airport;

    (c)Kingston Park Raceway;

    (d)Norwell Motorplex;

    (e)Slideways Go Karting World (formerly LeMans);

    (f)Slideways Nerang; and

    (g)Game Over in Helensvale.

15. I accept that the proposed development has several different characteristics to the other existing facilities and, as such, presents another choice to the market.  However, that does not, of itself, demonstrate that there is a strong need for the proposed development. 

16. Third, I am cautious about the reliability of the opinions expressed by Mr Coghlin and the matters that Mr Norling says strengthen the need for the proposed development.  Both need experts support their opinions by reference to the existing unlawful use.  They were apparently oblivious to the caveats imposed on this Court, whereby no advantage can be given to the Appellant because of an unauthorised use.[125] 

    [125]See the observations of Jerrard JA in Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271 referred to in paragraph [44] above.

17. In addition, I do not accept Mr Coghlin’s opinion that there are no suitable alternative sites.  The basis on which he discards each of Mr Norling’s identified sites as suitable alternatives is that they have constraints that are similar to those that apply to the subject land.  The subject land falls within the Designated Flood Affected Area on Natural Hazard (Flood) Management Areas – Overlay Maps OM17-12 and OM17-13; Major Linkages (Land & Water Based) area on Conservation Strategy Plan – Overlay Map OM20-1; Scenic Tourist Rotes – Land on Scenic Tourist Routes – Overlay Map OM22-1; and Good Quality Agricultural Land area on Good Quality Agricultural Land – Overlay Map OM2.[126]

    [126]Exhibit 17.3.

18. Further, it was apparent from the cross-examination of Mr Coghlin that his opinion was informed by information provided to him by the Appellant that he did not independently verify and the accuracy of which is questionable.  During re-examination Mr Coghlin indicated that even if the information provided by the Appellant was incorrect, it would not change his opinion.  This only causes me to further doubt the reliability of his opinion.[127]

    [127]The relevant information indicated that a competitor facility was changing its facilities in a manner that would make it less attractive as an alternative option.

19. Fourth, to the extent that there is a need for further motorsport facilities, it seems that the Council intends to investigate the best location for such uses.  There is no evidence of a pressing need that warrants cutting across the Council’s future planning for such facilities.[128] 

    [128]Although the contents of Gold Coast City Plan 2016 was not proved by the Council, it did not suggest that the evidence of Mr Norling about the contents was incorrect.  As such, it is reasonable to infer that the quotes from Gold Coast City Plan 2016 were accurate.

20. For the reasons outlined above, I accept that there is some evidence of need for, and community benefit deriving from, the proposed development but find that it is of minor weight only.

    Is the proposed development compatible with the intent for the Rural Precinct of the Inter-Urban Break Structure Plan?

21. The Appellant has not demonstrated that the proposed development is compatible with the intent for the Rural Precinct of the Inter-Urban Break Structure Plan.  For the reasons provided in paragraphs [47] to [58] above, I do not accept that active recreational facilities and tourist facilities are anticipated uses within that part of the Inter-Urban Break Structure Plan area occupied by the subject land.  The proposed development is not a use that is intended under the Planning Scheme to complement the rural or open landscape character of the local area.

    Is the proposed development a type of use that is generally appropriate in a rural setting rather than an urban setting?

22. Assuming that the proposed development is a type of use that is generally appropriate in a rural setting rather than an urban setting, this is not a ground that tells in favour of approval in this case.  This is because, for reasons I have already provided, the proposed development will unacceptably detract from the amenity of the local area in which it is proposed.

    Does the Gold Coast City Plan 2016 support approval of the proposed development?

23. In its written Outline of Submissions, the Appellant summarised the issues arising from the grounds it relied on.  The summary made no reference to Gold Coast City Plan 2016.  As such, it appears that the Appellant has abandoned the ground referenced in paragraph 4 of Exhibit 2.8.

24. In any event, the Appellant has not established that Gold Coast City Plan 2016 supports approval of the proposed development.  Gold Coast City Plan 2016 was not placed in evidence before the Court. 

    Is there an absence of any unacceptable acoustic, air quality, and visual amenity impacts from the proposed development?

25. The Appellant alleges that there will be an absence of any unacceptable acoustic, air quality, and visual amenity impacts from the proposed development.  It says this is a matter of public interest.

26. In Lockyer Valley Regional Council v Westlink Pty Ltd, Holmes JA (with whom White JA and Atkinson J agreed) observed that:

    “It may be accepted, as Grosser says and Palyaris implies, that the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration. In any case, Grosser and Palyaris, it should be remembered, were concerned with a different expression, “planning grounds”, and hence a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are now relevant. It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity. The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.”[129]

    [129]Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, 323-4 [25].

27. As such, the absence of detrimental impact on amenity is a matter of public interest to be weighed with other grounds in considering their sufficiency.

28. The evidence of Messrs Welchman and Galvin about the absence of adverse air quality impacts was unchallenged.  They opine that, subject to compliance with an appropriate dust management plan, the proposed development can be conducted such that adverse impacts on the health and amenity of sensitive receptors are avoided.

29. There was also no challenge to the evidence of Mr Curtis that, with the conditioned landscaping treatments and works, the proposed development would:

    (a)have no unacceptable visual amenity impacts;

    (b)maintain the anticipated rural character of the area; and

    (c)provide a positive contribution to the visual amenity of the local area after five years when the landscape buffer is established.

30. In those circumstances, the absence of adverse air quality and visual amenity impacts from the proposed development sound in support of its approval.  

31. For the reasons provided above, including at paragraphs [182] to [183] above, the Appellant has not demonstrated that the proposed development would not occasion unacceptable acoustic impacts.

    Would the proposed development enhance the environmental or ecological values of the subject land?

32. The Appellant alleges that the proposed development will enhance the environmental or ecological values of the subject land.  It says Dr Watson expresses a firm opinion that the proposed landscaping, rehabilitation, and conservation works would significantly increase the ecological values of the area.[130]  The Appellant submits that this ground, consistent with the views of Mr Curtis regarding positive contribution to visual amenity,[131] is strong justification for approval of the proposed development despite any conflict with the Planning Scheme.  It submits the strength of the ground is supported by consideration of the specific purposes for the Inter-Urban Break Structure Plan and the Rural Precinct under the Inter-Urban Break Structure Plan.  Those purposes are heavily directed toward preservation of landscape character and protection and enhancement of ecological features.

    [130]Exhibit 11.9, p 11 [51].

    [131]See page 41 of the Exhibit 11.5.

33. Dr Watson’s evidence was not challenged.  His conclusions are summarised in paragraph [184](d) above. 

34. I accept that from an ecological perspective the proposed works in the conservation and landscape buffers will be an improvement on the current state of the subject land.  However, given the outcomes the Appellant says are sought under the Inter-Urban Break Structure Plan for any development in the Structure Plan area, of itself this ground is not a particularly weighty consideration in support of approving a development that is considered to be an undesirable use and that will detract from the amenity of the local area.

    Are there sufficient grounds to justify approval of the proposed development, despite the conflict with the Planning Scheme?

35. It must be accepted that the Planning Scheme is an expression of the public interest in terms of land use and that, prima facie, ensuring development conforms with the Planning Scheme is in the public interest.  It is apparent from the Planning Scheme that use of the subject land for outdoor sport and recreation is not considered to be in the public interest.  The proposed development is also not considered to be in the public interest as it would detract from the amenity of the local area.

36. In this case, the real question to be decided is whether the deviation from the Planning Scheme to approve the proposed development serves the public interest to an extent greater than the public interest in certainty that the terms of the Planning Scheme will be faithfully applied.[132]  This is not determined by a general weighing exercise, but by considering whether there are identifiable public interest reasons why the terms of the Planning Scheme should not prevail such that it is appropriate to override the public interest in its application to the subject land. 

    [132]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 646 [67].

37. I am not persuaded that the combined weight of those grounds established by the Appellant is sufficient to overcome the clear planning strategy with respect to the subject land.  The Council has made a deliberate planning decision to categorise an outdoor sport and recreation use as an undesirable and inappropriate use on the subject land.  It has also made a deliberate planning decision to protect the amenity of the local area.  In this case, it is not in the public interest to subvert the planned outcomes for the subject land nor to approve the proposed development given it will detract from the amenity of the local area.

    Are the disputed conditions appropriate?

38. Considering my findings about the appropriateness of the proposed development, it is unnecessary for me to consider the issues about conditions in any detail.  It suffices to say that I was not satisfied that the conditions proposed by the Appellant and the Council were entirely appropriate.  Below I identify a few of the inadequacies.

39. Had I determined that it was appropriate to approve the proposed development, I would have imposed an additional condition to require the operator to capture closed circuit television camera footage of the activities on each of the tracks.  It would be reasonable to require the maintenance of that material for a period of two years.  A video recording of this nature would assist with ensuring compliance with the proposed limits on the number and types of vehicles that are proposed to be permitted.  I consider this type of condition to be a reasonable requirement in response to the proposed development given the history of unlawful conduct of a motorsport facility on the subject land.[133]  

    [133]Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, 518; Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, 111 [183].

1. If I were minded to approve the proposed development, I would have also requested further submissions about the appropriateness of a condition requiring the operator to provide noise data and closed circuit television camera footage to any person who requests it within a reasonable period of receiving a request for such data or footage.  At first blush, a condition of that nature might seem excessive.  Ordinarily one would expect the Council, as proper guardian of development rights and amenity expectations in this local government area, to ensure that any unlawful development is brought to account.[134]  However, for reasons unexplained, the Council has apparently been content to allow the deliberate breaches of planning law on the subject land to continue.  It has acquiesced in the continued unlawful operation of a motorsport facility on the subject land since it issued an enforcement notice on 17 October 2014.  The unfortunate attitude of the Appellant as a corporate citizen carrying on business in the City of the Gold Coast, and the even more troubling attitude of the Council as proper guardian of development rights and amenity expectations in the area, are not immediately relevant to the merits of this application.  They would not be a reason to refuse an otherwise meritorious development (if such a development was proposed).  However, they may be a reason to carefully consider the extent of conditions that are appropriate.[135]

   [134]NRMCA (Qld) Ltd v Andrew [1992] QCA 8; (1993) 2 Qd R 706, 712-3.

   [135]Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, 518.

2. I would have also required a condition in the nature of the draft condition 9 attached to the Appellant’s Outline of Submissions.  That condition requires the automated light system for the global acoustic monitoring device to be visible to drivers of vehicles on the tracks and requires the drivers to immediately leave the track if the red light is activated.

3. Several other conditions proposed by the Appellant and the Council are also unsatisfactory.  They are poorly drafted and open to challenge, particularly in terms of the timing of compliance with the conditions.  For example, condition 36 requires a copy of an approval for a covenant management plan to be provided with any future operational work development applications.  Condition 5 requires one such application to be made within one month of the grant of the subject approval.  Despite that, condition 35 does not require the covenant area management plan to be submitted to the Council until six months after the date of the subject approval.  This is but one example of the difficulties with the proposed conditions.  In general, the difficulties are attributable to adoption of a drafting style that assumes that the operator must commence the proposed development under the approval from the date the approval is granted, rather than imposing conditions on the basis that the proposed development will not be lawful until all necessary approvals are in place, including those for building and operational works. 

   Conclusion

4. The Appellant has not discharged the onus in the appeal.  The appeal is dismissed, and the development application is refused.