Holcim (Australia) PL v Brisbane City Council
[2012] QPEC 32
•27/04/2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Holcim (Australia) PL v Brisbane City Council & Ors [2012] QPEC 32
PARTIES:
HOLCIM (AUSTRALIA) PTY LTD
(ACN 009 732 297)
(first applicant)and
LIDA AMBROSELLI
(second applicant)and
DESIREE CORONEO
(third applicant)and
ROSS JAMES JOHNSTON
(fourth applicant)and
NICHOLAS KARALOUKAS
(fifth applicant)and
MARK TREVOR WARNOCK
(sixth applicant)v
BRISBANE CITY COUNCIL
(first respondent)and
ARDEN MANAGEMENT GROUP PTY LTD
(ACN 056 870 770)
(second respondent)FILE NO:
2571/2011
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
27/04/2012
DELIVERED AT:
BRISBANE
HEARING DATE:
07/11/2011 – 9/11/2011 and 12/03/12 - 16/03/12
JUDGE:
Searles DCJ
ORDER:
1. Declaration that the Council’s Decision of 15 March 2011 to approve a development application for a material change of use (multi-dwelling unit) and for a preliminary approval to carry out building work is invalid, of no legal effect, and
2. Order Council’s Decision be set aside; and
3. Declaration that the Council’s Negotiated Decision of 14 June 2011 which changed the Decision (the Negotiated Decision) is invalid, of no legal effect, and
4. Order Councils Negotiated Decision be set aside.
CATCHWORDS:
Application for Declaration of invalidity of Council’s approval decision - Sustainable Planning Act 2009- Integrated Planning Act1997- Amenity - Meaning of Amenity - Incorrect consideration of Amenity amounting to Jurisdictional Error – Approval invalid.
COUNSEL:
Applicant: J.E Gallagher QC with M.F Johnston
First Respondent: M. Hinson SC with J. Lyons
Second Respondent: J.D Houston
SOLICITORS:
Applicant: Minter Ellison
First Respondent: BCC Legal Practice
Second Respondent: Herbert Geer Lawyers
INDEX
APPLICATION
NATURE OF APPLICATION
APPLICANTS’ GROUNDS
AMENITY GROUND
HEIGHT GROUND
ORIGINAL DEVELOPMENT APPLICATION
AMENDMENT TO DEVELOPMENT APPLICATION
COUNCIL DECISION ON DEVELOPMENT APPLICATION
NEGOTIATED DECISION NOTICE 14 JUNE 2011
COUNCIL’S REASONS FOR DECISION
PRESENT APPLICATION
STATUTORY SCHEME
PLANNING SCHEME
COUNCIL DOCUMENTS RELEVANT TO ITS DECISIONS
A.ORIGINAL DEVELOPER’S COMPLAINT TO COUNCIL ABOUT HOLCIM OPERATIONS – 21 APRIL 2008
B. PRE-LODGEMENT MEETING WITH COUNCIL – JUNE 2008
C..... LODGEMENT OF ORIGINAL DEVELOPMENT APPLICATION – 15 SEPTEMBER 2008
D. AUGUST 2008 – NOISE REPORT
E. TRAFFIC
F. THE CODE RESPONSES
G. COUNCIL’S VARIOUS ACKNOWLEDGEMENT NOTICES
H. COUNCIL’S APPLICATION SUMMARY 14 OCTOBER 2008
I. COUNCIL ESTABLISHMENT AND CO-ORDINATION (PLANNING GUIDANCE) COMMITTEE PRESENTATION
J. COUNCIL 2008 INFORMATION REQUEST
K. COUNCIL FILE NOTE 1 DECEMBER 2008
L. COUNCIL’S APPLICATION SUMMARY DATED 3 SEPTEMBER 2009
M. COUNCIL LETTER TO CONCRETE BATCHING PLANT – 20 NOVEMBER 2009
N. NCO’S RESPONSE TO COUNCIL’S 2008 INFORMATION REQUEST – NOVEMBER 2009
O..... COUNCIL’S FURTHER ASSESSMENT BASED ON NCO’S NOVEMBER 2009 RESPONSE
P. HOLCIM’S OBJECTION 23 DECEMBER 2009
Q. COUNCIL MEMO 4 JANUARY 2010
R. FURTHER NOTE OF COUNCIL’S PRINCIPAL POLLUTION OFFICER – 20 JANUARY 2010
S. COUNCIL’S APPLICATION SUMMARY 1 FEBRUARY 2010
T. ASSESSMENT NOTES OF COUNCIL’S SENIOR URBAN PLANNER, MS ADRIANA BRAMLEY, 3 FEBRUARY 2010 USEFULLY SUMMARISES EVENTS TO THAT DATE.
U. COUNCIL APPLICATION SUMMARY – 11 MARCH 2010
V. LETTER – COUNCIL TO NCO – 16 MARCH 2010
W. E&C PLANNING GUIDANCE COMMITTEE PRESENTATION – 22 MARCH 2010
X. COUNCIL’S APPLICATION SUMMARY – 18 MAY 2010
Y. NCO’S RESPONSE MATERIAL – 24 MAY 2010
Z. APPLICANTS’ SOLICITOR’S LETTER 21 JUNE 2010
AA. MEMO COUNCIL’S PRINCIPAL POLLUTION OFFICER 23 JUNE 2010
BB. EMAIL MS PATRICIA JENSEN COUNCIL’S REGIONAL MANAGER DEVELOPMENT ASSESSMENT NORTH TO MS BRAMLEY ASSESSMENT MANAGER – 1 JULY 2010
CC. OCTOBER 2010 – REQUEST TO CHANGE DEVELOPMENT APPLICATION
DD. AMENITY
EE. COUNCIL ASSESSMENT OF CHANGED DEVELOPMENT APPLICATION
FF. FURTHER SUBMISSION HOLCIM TO COUNCIL 23 DECEMBER 2010
GG. COUNCIL JANUARY 2011 INFORMATION REQUEST
HH. REPORT OF COUNCIL’S AIR QUALITY EXPERT – KATE STONE ENVIRONMENTAL – 28 JANUARY 2011
II. COUNCIL’S APPLICATION SUMMARY - 7 FEBRUARY 2011
JJ. NCO RESPONSE 15 FEBRUARY 2011 TO COUNCIL INFORMATION REQUEST 28 JANUARY 2011
KK. HOLCIM’S LETTER OF OBJECTION TO COUNCIL – 21 FEBRUARY 2011
LL. COUNCIL’S FINAL ASSESSMENT
MM. COUNCIL’S DECISION NOTICE – 17 MARCH 2011
NN. COUNCIL’S STATEMENT OF REASONS DATED 14 APRIL 2011
OO. NCO REQUEST 15 APRIL 2011 FOR NEGOTIATED DECISION NOTICE PURSUANT TO IPA, SECTION 3.5.17
PP. COUNCIL’S NEGOTIATED DECISION NOTICE – 14 JUNE 2011
QQ. COUNCIL’S REASONS – 12 JULY 2011 FOR NEGOTIATED DECISION
APPLICANTS’ ARGUMENTS RE AMENITY
AMENITY GROUND
PROPER CONSTRUCTION OF P16
MEANING OF AMENITY IN P16
MEANING OF “AFFECTED” IN P16
JURISDICTIONAL ERROR
ARDEN’S RESPONSE TO APPLICANTS’ ARGUMENT THAT COUNCIL FAILED TO TAKE INTO ACCOUNT RELEVANT ASPECTS OF AMENITY
CONSIDERATION OF JURISDICTIONAL ERROR GROUND 3 – FAILURE TO TAKE INTO ACCOUNT RELEVANT ASPECTS OF AMENITY
CONCLUSION RE COUNCIL’S CONSIDERATION OF AMENITY
COUNCIL’S NON-COMPLIANCE WITH IPA S.3.5.13.
DISCRETIONARY CONSIDERATIONS
Application
The Applicants make application pursuant to s 818(2) of the Sustainable Planning Act 2009 (SPA) and pursuant to s 4.1.21(1)(a) and 4.1.22 of the repealed Integrated Planning Act 1997 (IPA), and further or alternatively pursuant to ss 456(1)(a)(7) of SPA for:-
(a) A declaration that the Council’s decision of 15 March 2011 to approve a development application dated 10 September 2008 for a material change of use (multi-dwelling unit) and for a preliminary approval to carry out building work in respect of land at 35 Burdett Street, Albion, Brisbane, Qld, 4010 (more properly described as lot 2 on RP801651, parish of Toombul, County of Stanley) is invalid and of no legal effect, or further or alternatively is liable to be set aside;
(b) An order setting aside the Decision;
(c) A declaration that the Council’s negotiated decision of 14 June 2011 which changed the Decision (the Negotiated Decision) is invalid and of no legal effect, or further or alternatively is liable to be set aside; and
(d) An order setting aside the negotiated decision.
Nature of Application
It is accepted that an application seeking declaratory relief, as here, is in the nature of proceedings for judicial review, so that the court does not embark on a consideration of the merits of the matter but is confined to considering whether, on administrative law grounds, the decision is legally flawed.[1]
[1]Di Marco v Brisbane City Council & Ors [2006] QPEC 35 at [14]-[16].
Applicants’ Grounds
The Applicants rely on two grounds to challenge the Council’s Decision of 15 March 2011 (Decision) and its Negotiated Decision of 14 July 2011 (Negotiated Decision) which may be conveniently called the P16 Amenity Ground (Amenity Ground) and the A4.1 Height Ground (Height Ground).
Amenity Ground
As to the amenity ground the Applicants say that the Council fell into jurisdictional error, in the language of administrative law, in five material respects in arriving at its decision to approve the development namely:-
(a) The Council’s own determinations and assessment reveal that the amenity of the proposed new residential development (proposal) must necessarily be affected by the first applicant’s nearby concrete batching plant operation such that there is non-compliance with Albion Neighbourhood Plan Performance Criteria P16 (P16);
(b) Given the non-compliance with P16, the Council was obliged to apply the statutory test in s 3.5.13(3) and (4) of the Integrated Planning Act 1997 (IPA) which governed the application. Compliance with that test involved consideration of whether there was sufficient grounds to justify the approval despite its conflict with P16. The Council failed to apply that test;
(c) The Council failed to take into account relevant mandatory considerations namely:-
(i) All relevant aspects of amenity as contemplated in P16 within the meaning of that term in P16 namely nuisance, character, visual appearance, way of life, perception, feeling of area, traffic amenity issues (in terms of heavy vehicles operating in the street across from residential units), standard of the neighbourhood and reasonable expectations of residents. Rather than consider those aspects, the Council erroneously limited its consideration of amenity to dust and noise issues;
(d) The Council misdirected itself in a number of respects in relation to critical aspects of P16 and related issues namely:-
(i) The Council applied the wrong test as evidenced in paragraph 21(i)(a)(A)(ii) of its reasons for its Decision.[2] In concluding that the proposal would not detrimentally affect the amenity of the surrounding neighbourhood then P16 required consideration as to whether the concrete batching plant’s operation would affect the amenity of the proposal. That, it is said, reveals a fundamental misdirection of the Council as to the very issue it was required to address. Consideration of the effect the proposal would have on the amenity of the surrounding neighbourhood was an irrelevant consideration; and
[2]Exhibit 20, Vol 6, Tab 81, p 2423.
(ii) The Council adopted a report of its committee to the effect that the proposal complied with the intent of the North Precinct of the Albion Neighbourhood Plan when it was not possible for the proposal to so comply.
(e) In any event the Council decision approving the proposal was so unreasonable that no reasonable authority could ever have come to it.[3] That manifest unreasonableness flows from the following:-
[3]Manifest unreasonableness in the Wednesbury sense; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1KB 223, 230 and 234 (Lord Green MR).
(i) The concrete batching plant is located directly across the road from the proposal;
(ii) Residents gaining entry to their apartments will drive immediately past the concrete batching plant and at times have to manoeuvre to avoid heavy vehicles;
(iii) There will be no way the residents can avoid the batching plant’s operations across the road;
(iv) There will be significant amenity issues of traffic and heavy vehicles, visual appearance of an intense industrial use, perception, character, noise, dust, air quality, nuisance and reasonable expectations of residents;
(v) The proposal is premised on the basis that residents will act like hermits in their units with windows and doors shut and air-conditioning on; and on any sensible and reasonable view a large residential complex immediately and diagonally across the road from a concrete batching plant is an incompatible use. A situation recognised by the Albion Neighbourhood Plan.
Height Ground
The Applicants assert that the proposal as approved will necessarily exceed the maximum height limit of RL33AHD mandated in acceptable solution A4.1 in the Albion Neighbourhood Plan Code, in which event the parties all agree, the proposal would be impact assessable and not code assessable as it was.
Original Development Application
The original Development Application was lodged with the Council on 15 September 2008 proposing a new residential development consisting of 277 units across three buildings (160 two bedroom units, 18 three bedroom units and 99 dual-key units across three buildings, with each building of six storeys in height). It is common ground that the proposal was subject to the provisions of IPA and subject to assessment against the Albion Neighbourhood Plan and the Residential Design – Medium Density Code. The site of the proposal (site) is located in the North Precinct of the Albion Neighbourhood Plan.
The site at 35 Burdett Street, Albion is opposite the first applicant’s concrete batching plant which has frontages to Burdett Street and Crosby Road. The Burdett Street frontage has entry and exit points for concrete mixing trucks and other heavy vehicles but there are no entry or exit points onto Crosby Road.
Amendment to Development Application
On or about 20 October 2010 Norris Clarke & O’Brien Pty Ltd (NCO) the town planners who prepared the Development Application, amended the DA pursuant to IPA s 3.2.9 to, amongst other things, remove lot 3 (being 9 Burdett Street) from the DA and to provide for 280 units across three residential unit buildings to be developed in three stages with stage 1 consisting of 59 units, stage 2, 149 units and stage 3, 72 units.
Council Decision on Development Application
On 15 March 2011 the Council approved the application subject to conditions and on 17 March 2011 issued a Decision Notice pursuant to IPA s 3.5.15 notifying the second respondent (Arden) of its decision. In response to a request from Holcim of 24 March 2011 seeking reasons for the Council’s decision pursuant to IPA s 5.9.5(2) and s 32(2)(b) the Judicial Review Act 1991, the Council under cover of its letter of 13 April 2011, provided those reasons and the development approval package.[4]
[4]Exhibit 20, Vol 6, Tab 81, p 2423.
Negotiated Decision Notice 14 June 2011
Pursuant to a request by Arden, through NCO, on 15 April 2011[5], pursuant to IPA s 3.5.17, seeking changes to the conditions and other matters in the Development Approval, the Council issued a Negotiated Decision Notice approving some changes on 14 June 2011.[6] This replaced the Decision Notice of 17 March 2011.
[5]Ibid, p 2532.
[6]Ibid, p 2545.
Council’s Reasons for Decision
Those reasons were[7]:-
[7]Ibid, p 2429.
“The Council:
(A)Upon consideration of the application, the relevant codes under the Brisbane City Plan 2000 and those matters set forth in section 3.5.5, 3.5.11 and 3.5.15 of the Integrated Planning Act 1997 relevant to the application, considers that:
(1)The subject site is suitable for the proposed use;
(2)The proposal would not detrimentally affect the amenity of the surrounding neighbourhood;
(3)The proposal does not detrimentally affect the surrounding road network;
(4)The proposal is consistent with the general intentions of the Brisbane City Plan 2000;
(B)Accordingly considers that were the following reasons and relevant conditions imposed on the development and [sic] it would be appropriate that the proposed development be carried out on the subject land.”
Present Application
On 18 July 2011, six days after the receipt by Holcim of the Council’s Statement of Reasons it filed the present application..
Statutory Scheme
As I have said earlier the application is made pursuant to s 818(2) of the Sustainable Planning Act 2009 (SPA) and pursuant to s 4.1.21(1)(a) and 4.1.22 of the repealed Integrated Planning Act 1997 (IPA), and further or alternatively pursuant to ss 456(1)(a)(7) of SPA.
Planning Scheme
The relevant planning instruments are the Albion Neighbourhood Plan (Neighbourhood Plan) a local plan under the Brisbane City Plan 2000, (City Plan) and the Albion Neighbourhood Plan Code (Neighbourhood Code) and the Residential Design – Medium Density Code (Medium Density Code). The Neighbourhood Plan prevails over the City Plan in the event of a conflict. The plan area is divided into eight precincts the relevant one being the North Precinct. Section 3.3 of the Neighbourhood Plan dealing with the North Precinct relevantly provides:
“The North Precinct is located within walking distance of Albion Railway Station, Albion Village and Crosby Park and therefore will support intensification of high quality residential development. Construction of residential dwellings will occur after the concrete batching plant operation ceases to avoid adverse amenity impacts on new residential development.
…
Expansion of industry and warehouse activities is not appropriate. However, new short-term, non-residential uses located in existing buildings and minor improvements may be supported. Such proposals shall demonstrate that the use will not detrimentally affect the amenity of existing or future surrounding residential uses.
…
…”
The Neighbourhood Code provides that the purpose of the code is to ensure development in the Plan area is consistent with the Development Principles and the Precinct Intents of the Neighbourhood Plan. Within that code are performance criteria P16 and acceptable solution A16 applicable to the proposal. They state:
P16 – The amenity of new residential development must not be affected by the operation of the existing concrete batching plant.
A16 – Construction for residential development does not occur within the precinct until the adjacent concrete batching operation ceases.
Council documents relevant to its decisions
To consider the issues it is necessary to look not only at the Council decision, but also what the Council took into account when arriving at its decision.[8]
[8]Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at [59] – [62]; re Minister of Immigration and Multi-Cultural and Indigenous Affairs Ex-parte Palme (2003) 216 CLR 212 at [105] per Kirby J.
There are six volumes of relevant documents in evidence.[9] I have identified those relied upon by the parties which are of a length that cannot be avoided. They are:-
[9]Exhibit 20.
AOriginal developer’s complaint to Council about Holcim Operations – 21 April 2008
Some five months before the original development application was made, on 21 April 2008 the original developer applicant, Australian Affordable Housing Association (AAHA) lodged a complaint with the Lord Mayor in relation to the concrete plant with respect to truck movements, street blockages, hours of operation, noise levels and air pollution. The Lord Mayor responded advising that the plant’s operations were fully compliant.[10]
[10]Exhibit 20, pp 866 & 868.
B. Pre-lodgement meeting with Council – June 2008
On 12 June 2008 a pre-lodgement meeting was held between Council personnel and representatives of the then proposed applicant AAHA, its architects and Mr Ken Ramsay of NCO.[11] The Council minutes, relevantly, record the following:-
[11]See minutes of meeting, Exhibit 20, Vol 5, p 1831.
“Residential Amenity
‘Residential Amenity – Council considers that this is the primary issue for this proposal. The location of the proposed residential development directly opposite the Concrete Batching Plant represents inappropriate development and would result in unmanageable adverse amenity impacts on future residents.
The draft Albion Neighbourhood Plan is very specific that construction of residential dwellings will not commence until the batching plant operations cease. The applicant has not provided evidence that the batching plant operations have or are about to cease. Council is not able to entertain an application for this proposal until the batching plant operation has ceased.
…
The application is unlikely to be supported, as the concrete batching plant operation has not ceased.’
Noise and air quality
‘Until the concrete batching plant operation has not [sic] ceased, it is not considered that the development can achieve the required standards.’
Amenity
‘It is repeated again, that Council considers this the primary issue for this proposal. The location of the proposed residential development directly opposite the Concrete Batching Plant represents inappropriate development and would result in unmanageable adverse amenity impacts on future residents.
The draft Albion Neighbourhood Plan is very specific that construction of residential dwellings will not commence until the batching plant operations cease. The applicant has not provided evidence that the batching plant operations have or are about to cease.
Council is not able to entertain an application for this proposal until the batching plant operation has ceased.’”
C. Lodgement of original Development Application – 15 September 2008
The original Development Application was lodged on 15 September 2008.[12] It included a report from NCO dated September 2008 (September 2008 (NCO report))[13] which contained the following statements:-
[12]Exhibit 20, Tab 1.
[13]Ibid, p 18.
(a) The proposal results in a development that:
· …
· …
· Meets the amenity criteria for residential development given that the proposal will co-exist with the surrounding industrial uses including the concrete batching plant.
(b) In relation P16 of the ANP code:-
“It is proposed that the residential development co-exists with the concrete batching plant on the basis that the proposal meets the amenity criteria for residential development.”[14]
[14]Ibid, p 36.
(c) In dealing with Key Planning/Environmental issues – urban amenity:-
“A16 of the Albion Neighbourhood Plan Code specifies that construction of the residential units must not commence until the adjacent concrete batching plant ceases operation. However, it is proposed that the multi-unit dwelling development co-exists with the adjacent concrete batching plant on the basis that the following Performance Criteria can be met by the proposal:-
P16 – ‘The amenity of new residential development must not be affected by the operation of the existing batching plant.”
The key potential detrimental impacts identified are as follows:-
· Dust;
· Noise;
· Traffic;
· Visual Reverse Amenity.
The following sections of this report demonstrate that the proximity of the proposed dwellings to the nearby concrete batching plant does not unacceptably impair the living conditions of the prospective residents or unreasonably stymie the operation of the batching plant. …”[15]
[15]Ibid, pp 38-39.
(d) As to dust impacts it was stated that the transmission of dust between the concrete batching plant and the proposed development “is acceptable” by reason of mitigation steps undertaken at the batching plant;[16]
[16]Ibid, p 39.
(e) As to noise:-
“Where required, balconies are to be enclosed with solid balustrades and floor to ceiling wing-walls. Alternative ventilation (air-conditioning) should be provided, where required, to habitable rooms including bedrooms and living-rooms.[17] It was said that the recommendations outlined in the report on noise along with the delaying of development at the corner of the site nearest to the batching plant are considered sufficient to minimise the risk of resident complaints and that the development should not alter the operations of the plant to achieve noise level requirements.”[18]
[17]Ibid, p 39.
[18]Ibid, p 4
(f) As to traffic impacts the report said that Burdett Street was of sufficient width to allow vehicles entering and leaving the proposed residential development to manoeuvre around heavy vehicles entering the batching plant;[19]
[19]Ibid, p 40.
(g) As to visual amenity:-
“It is considered that the potential for visual intrusion on the visual amenity and quality of life of proposed new residents due to the proximity of the existing concrete batching plant is minimal given that:
· New residents will be aware of the existing concrete batching plant prior to committing to reside in the area;
· The external façade of the concrete batching plant is made of non reflective material and is a dull / neutral colour; and
· The existing concrete batching plant is only a small facility with a low rise structure and is screened via existing fencing.
These elements combine to ensure that the proposed residential development can integrate effectively with the surrounding environment.”
(h) Reverse amenity:-
“It is submitted that reverse amenity impacts between the proposed residential development and the existing concrete batching plant will not reduce the operational efficiency of the existing plant given that:-
· The concrete batching plant is currently located approximately 60m from residential uses and therefore compliance with residential noise, dust and traffic requirements should currently be applicable to the site. As such, the proposed multi-unit dwelling development should not alter the operations of the plant to achieve adequate standards.
· Proposed signalisation at the intersection of Crosby Road and Burdett Street will improve the safety and management of traffic associated with the plant.
· Reverse amenity issues were previously addressed in the making of the Neighbourhood Plan and extensive community consultation was undertaken given the intension [sic – intention] of the area to transition from industrial to residential uses.
· It is likely that the proposal will improve security outcomes for the batching plant. The introduction of a significant residential use within proximity to the plant will enable surveillance during periods when the plant is closed.
· Given that the existing facility is required to comply with the noise, traffic and dust emissions of their EPA License, it is less likely that residential complaints could jeopardise the operation of the plant.”
(i) As to design features[20]:-
[20]Ibid, p 26.
“Burdett Street and the urban recreation square will be the focus for the community. The wide boulevard streetscape, landscaping and orientation of the buildings encourage pedestrian usage and allow activity to spill out into the public realm” and that “The proposed buildings are strategically sited to ensure each building takes advantage of the outlook and surveillance of [the] street and open space areas, ensuring the liveability of each unit is enhanced”
(j) As to landscaping:-
“Extensive landscaping will be undertaken … to provide an attractive environment that will enhance the liveability and amenity of the development for future residents .. it is recognised that the landscape vision for the urban recreation cannot be achieved until such time as the adjacent land is development [sic] for residential purposes”[21];
[21]Ibid, p 27.
(k) “A high level of amenity is provided for future residents and surrounding existing residents … sufficient private open space, communal space, landscaping, connectivity and communal interaction is proposed to maximise the amenity of residents”[22];
[22]Ibid, p 34.
(l) Conclusion and recommendations:-
“The proposal contributes positively to the site and the locality. The local area is undergoing significant change in visual as well as functional characteristics. The proposal integrates well with the surrounding development in this transitional phase and is expected to improve the long-term outcomes for the area. It is considered that urban amenity has been achieved by the proposed design to enable the development to co-exist with the nearby concrete batching plant operation.”
D. August 2008 – Noise Report
A noise report from Noise Measurement Services dated 20 August 2008 was lodged with the original application. In that report:-
(a) It was said that[23]:-
[23]Ibid, p 336.
“The noise level criteria applicable to this development are contained in the City Plan Medium Density Residential Design Code. The assessment methods for this code refer to the Noise Impact and Planning Scheme Policy, which refers to various Australian Standards including AS2107 and AS3671. The ‘design noise criteria’ referred to in this report are the noise reduction values required to meet the standards and the Council’s criteria.”
(b) In relation to the Council’s declared position at the pre-lodgement meeting in June 2008 that, until the concrete batching plant operation has ceased, it is not considered the development can achieve required standards. The noise report stated[24]:-
[24]Ibid, p 341.
“The Council has indicated that the concrete batching plant is an issue yet does not present any information to substantiate the stance taken, nor indicated the reason(s) why amenity is an issue for a residential activity in this location when the batching plant has existing residential neighbours.”
(c) With respect to Acceptable Solution 25.2 of the Residential Design – Medium Density Code[25] which provides that:-
[25]Exhibit 25, p 183.
“Any air-conditioning plant is located toward the centre of the site”
The report said:-
“Individual ‘quiet’ air-conditioners may be installed, but are not a part of this application.”
(d) In relation to the concrete batching plant[26] said:
[26]Ibid, p 3
“The activities of the batching plant have been observed and the activity is not unusual; that is, there are no activities that would not normally be expected in such an activity. Concrete and supply trucks enter and leave, concrete is batched, vehicles are cleaned.”
(e) As to the balcony areas on the proposed development[27]:-
[27]Ibid, p 358.
“The design of the balcony area indicates that the [sic] ‘enclosed’; that is, the balustrades are solid and the wing-walls and floor/ceiling are also of solid construction. A solid design has been shown to reduce noise within the centre of the balcony area, with a measured 3.5 dB(A) noise reduction over the façade level. This degree of noise reduction is not observed in an open balcony …”;
(f) On the issue of ventilation to habitable rooms[28]:-
[28]Ibid, p 359.
“Under the design calculations doors and windows are closed. Based on previous surveys, if the required noise reduction is higher than 14 dB(A) then there is a need for alternative ventilation to habitable rooms (that is, bedrooms and living-rooms); most commonly mechanical ventilation or air-conditioning.”
E. Traffic
Traffic impact assessment of Lambert and Rehbein – dated 3 September 2008 (September 2008 Traffic Report) was lodged with the original application.[29] That report dealt with access arrangements and the conflict with residents’ vehicles and the heavy vehicles of the concrete batching plant and addressed traffic capacity issues. It states[30] that the existing width of 12 metres for Burdett Street is considered sufficient width for vehicles to/from the subject site to manoeuvre around heavy vehicles entering and exiting the concrete batching plant site.
[29]Ibid, p 369.
[30]Ibid, p 380.
F. The Code Responses
The original Development Application stated in relation to the code responses (2008 Code Responses)[31]:-
[31]Ibid, p 494.
(a) As against P16 of the ANP code that:-
“It is proposed that the residential development co-exist with the concrete batching plant. Refer to s 7 of this report[32] which demonstrates compliance with P16 and to supporting specialist reports and appendix at C”;
[32]Ibid, p 38-41.
(b) As against P3 in the MDC, in part that:-
“All service structures will be contained within the buildings as part of the proposed plant-rooms”[33];
[33]Ibid, p 511.
(c) As against P6 of the Medium Density Code[34], in part that:-
[34]P6 provides:-
“Roof scapes must be attractive and not marred by a cluttered display of plant and equipment.”
“All service structures will be contained within the buildings and are located within the plant rooms. These areas are effectively screened and will not cause visual clutter”[35];
[35]Ibid, p 513.
As against P17 of the MDC[36], in part that:-
[36]P17 provides in part:-
“Development must achieve a pleasant, attractive and manageable living environment, dwellings must receive daylight and allow passage of cooling breezes through habitable rooms”.
“Window placement has been designed to allow for suitable cross-ventilation. In order to meet noise levels, individual rooms will be air-conditioned, where required.”[37]
[37]Ibid, p 520 and 521.
G. Council’s various acknowledgement notices
The Council issued three acknowledgment notices advising the development application would be assessed as code assessable on 30 September 2008[38], 8 October 2008[39] and 17 October 2008.[40]
[38]Exhibit 20, Vol 2, p 544.
[39]Ibid, p 550.
[40]Ibid, p 566.
Council’s assessment of development application as originally lodged
H. Council’s application summary 14 October 2008
The Council’s application summary dated 14 October 2008[41] noted in relation to the identified issues:
[41]Ibid, p 561.
· Reverse amenity to batching plant – Acceptable Solution A16 – team to assess impact of batching plant – noise, dust, particulate [sic], light, traffic.
· Confirmation of final heights – not to exceed 33m AHD – info request for survey certification – failure would require Impact Assessment.
· …
· …
· …
· …
· Front fence – amenity – Applicants’ noise report requires two metre high solid acoustic fence along front boundary.
I. Council Establishment and Co-Ordination (Planning Guidance) Committee presentation
The Council’s E&C Planning Guidance Committee presentation on 24 November 2008 ticked a box next to the words “height”– plans show six storeys & 33m max (subject to certificate from surveyors).[42] In relation to amenity the presentation stated:[43]
[42]Ibid, p 605.
[43]Ibid, pp 606 and 607.
“General intent of Neighbourhood Plan – Residential Development to take place after Batching Plant ceases operation.
Specific Test (Performance Solution) requires appropriate residential amenity irrespective of surrounding uses.
Acoustic Report currently inadequate and does not include Printing Business.
Air Quality – Odour / Dust – not adequately addressed, does not include Printing business or Cemex operating at the full extent of their licence.
Traffic Noise Impacts
Application fails to address the operation and deliveries to and from the adjacent Printing business and potential 24 hour operation of Cemex batching plant.
Reverse Amenity
Cemex have objected to the proposed development and indicated no intention to relocate”
The recommendation of that committee was in the following terms[44]:-
[44]Ibid, p 610.
“That Planning Guidance Committee notes the teams’ preliminary advice:
i.e unable to support the proposed use unless the following issues are satisfactorily resolved:-
“· Acoustic impacts
· Air quality impacts
· Traffic conflicts
· …
· …”
That presentation contains a hand-written notation[45]:-
[45]Ibid, p 633.
“Recommendation accepted – (signature) – 24/11/08.”
J. Council 2008 Information Request
By letter dated 25 November 2008 the Council made an Information Request pursuant to IPA s 3.3.6 (2008 Information Request)[46] seeking amongst other things:-
[46]Ibid, p 644.
(a) Paragraph 1D[47]
[47]Ibid, p 644.
“Provide suitably detailed elevations (including all building finishes), at scale for all elevations of each of the proposed three buildings”
(b) Paragraph 2(a)[48]
[48]Ibid, p 645.
“Provide certification from a suitably qualified Registered Surveyor that the buildings as shown on the proposed plans will not exceed 33m (AHD) as prescribed by Acceptable Solution A4.1 of the Albion Neighbourhood Plan.”
(c) Paragraph 5A[49]
[49]Ibid, p 646.
Information
Submit a revised acoustic report addressing the following:-
“…”; and
(d) Paragraph 6[50]
[50]Ibid, p 647.
Further information re air quality impacts sought.
K. Council file note 1 December 2008
A file note dated 1 December 2008 authored by Mr Richard Hurl, Regional Manager Development Assessment Team North[51] reads:
[51]Ibid, p 649.
“Outcome:E&C Planning Guidance Committee noted the officer’s opinion to Not support the proposal unless the following issues are satisfactorily resolved:-
·Acoustic Impacts
·Air quality impacts
·Traffic conflicts
·…
·…”
L. Council’s Application Summary dated 3 September 2009
This application summary[52] noted some of the issues as:-
[52]Ibid, p 655.
“Reverse amenity to batching plant – acceptable solution A16-10 to assess impact of batching plant – noise, dust, particulate [sic], light, traffic
Confirmation of final heights – not to exceed 33m AHD – info request for survey certification – failure would require Impact Assessment”.
M. Council letter to concrete batching plant – 20 November 2009
By this letter[53] the Council wrote to the manager of the concrete batching plant seeking certain information as to its operation including nature of business, current hours of operation, days per week of operation, average number of vehicle movements per day, future potential for increased operational capacity, whether it was possible for the plant to operate on a 24 hour basis and whether the organisation had any plans to increase operational outputs. That was said to be written to assist the assessment manager in addressing the performance criteria in the Albion Neighbourhood Plan Code in that the amenity of the new residential development must not be affected by the operation of the existing concrete batching plant. That was responded to by a letter dated 23 December 2009[54]
[53]Ibid, p 665.
[54]Ibid, p 823.
N. NCO’s response to Council’s 2008 Information Request – November 2009
(a) By letter dated 24 November 2009[55] NCO responded to the Council’s 2008 information request (NCO’s November 2009 Response), among other things provided Elevation Plans[56] DD.A11 - DD.A13[57];
[55]Ibid, p 666.
[56]Ibid, p 668
[57]Ibid, pp 691-693.
(b) Enclosed a surveyor’s certificate[58] which certified certain plans including plans DD.A11.P3, DD.A12.P3 and DD.A13.P5. Whether they are the same as the abovementioned Elevation Plan DD.A11 – DD.A13 is not clear but may not be of moment;
[58]Ibid, p 696.
(c) Container revised acoustic report (November 2009 noise report)[59] which noted amongst other things that most noise affected units are those facing the concrete batching plant and Burdett Street[60]; that air-conditioning may be installed but is not a part of the Development Application[61] and that doors and windows were assumed closed under the design calculations[62];
[59]Ibid, p 673.
[60]Ibid, p 708.
[61]Ibid, p 712.
[62]Ibid, p 728.
(d) Enclosed an air quality report dated 5 June 2009 (June 2009 Air Quality Report)[63] based on an assumed throughput for the concrete batching plant of 450 tonnes per day.[64]
[63]Ibid, p 674.
[64]Ibid, p 774.
O. Council’s further assessment based on NCO’s November 2009 response
Council’s further application summary dated November 2009[65] identified the same issues as were identified in its pre September 2009 application summary above, namely in relation to reverse amenity – noise, dust, particulates, light and traffic and that final heights were not to exceed 33m AHD.
[65]Ibid, pp 829 and 830.
P. Holcim’s objection 23 December 2009[66]
[66]Ibid, p 831.
By letter dated 23 December 2009 Holcim’s solicitors lodged a detailed objection to the proposal and raised, amongst other things the following:-
(a) as to the Albion Neighbouhood Plan, noted that the proposal conflicts with P16;[67]
[67]Exhibit 20 pages 836 to 838.
(b) as to traffic issues, noted that:
“The Batching Plant has the potential to operate with a production capacity of 110m3/hr – equating to a total of 37 trucks accessing the site each hour from 6am to 6pm and an additional 124 vehicles delivering materials each day. The original Traffic Impact Assessment therefore grossly underestimates the risk of conflicts arising between two fundamentally different uses.”
(c) Attached a review of the traffic issues by Adam Pekol Consulting which concluded, amongst other things, that:[68]
[68]Exhibit 20, pages 840 and 841; the review is at pages 847 to 850.
“The location of the driveways within close proximity to the existing Batching Plant accesses will result in major conflicts between residential drivers and industrial drivers”.
(d) Attached a review of the air quality issues and noted, amongst other things, that:[69]
[69]Exhibit 20 pages 841 and 842; the review is at pages 852 to 853. .
“(b) …New residents are likely to have expectations of a level of amenity comparable to suburban residential areas and hence complaints arising from new occupants with respect to the noise (particularly early morning and at night) and dust emissions would be expected.
(c) The applicant’s own air quality assessment (as completed by PAE Holmes) demonstrates non-compliance with the air quality goal for PM10 for a portion of the site, assuming current throughputs.
(d) The Batching Plant however has an operational capacity of approximately 250 tonnes per hour (based on a maximum production rate of 110m3/hour), which has not been considered in the applicant’s submitted PAE Holmes Report – i.e, in the event that the plant operated at maximum throughput (during normal operating hours) potential throughput could be six times or greater than that considered in the PAE Holmes modelling of air quality.”
(e) Attached a review of the noise assessment raising issues of sub-standard noise amenity.[70]
[70]Exhibit 20 pages 842 to 843; the review is at pages 854 to 856.
Q. Council memo 4 January 2010[71]
[71]Ibid, pp 857 to 859.
Mr Greg Berry the Council’s principal pollution officer completed an assessment of the June 2009 Air Quality Report and the November 2009 Noise Report noting that the Air Quality Report was premised on a throughput of 450 tonnes per day between the hours of 7.00 am to 5.00 pm operation of the batching plant but further noting that the normal hours of operation for the plant were 6.00 am to 6.00 pm and that throughput was not limited to 450 tonnes per day. He concluded in relation to air quality[72]:-
[72]Ibid, p 858.
“Based on the information provided in the Air Quality Report which demonstrated potential impacts above Council’s criteria on the proposed residential development using a throughput of 450 tonnes of concrete per day and the reported potential production capacity of 250 tonnes of concrete per hour it is considered that this proposal cannot be supported in regards to air quality”.
As to noise[73] he noted:-
[73]Ibid, pp 858 and 859.
“It is considered that the noise report does not provide a thorough assessment of the various noise emitting operations and sources which are conducted at the concrete batching plant. These would include truck and front end loader manouvering [sic], aggregate, sand and cement delivery, horns, hooters and alarms, agitator bowl filling, mixing and cleaning, and other mechanical plant and equipment and operations, etc.
…
The report does not provide sufficient details of methodologies, assumptions, model inputs, calculations, etc used to determine the noise levels from the various batching plant activities and operations and the resultant noise levels at the proposed development.
The submission report from the concrete batching plant advises that although the normal hours of operation of the batching plant is from 6.00am to 6.00pm, they can operate 24hours. The acoustic report does not address 24 hour operation of the batching plant.
…
Accordingly, I cannot support this proposed development in relation to air quality…”
R. Further note of Council’s Principal Pollution Officer – 20 January 2010[74]
[74]Ibid, pp 860 to 862.
There is a further note on the Council’s file from Mr Berry to Ms Bramley, assessment manager, dated 20 January 2010 although it is clear that is the incorrect date. The memo refers to Mr Berry having assessed P A E Holmes’ Air Quality Report No. 3866 which report was the subject of the October 2010 request to change the application.[75] In any event that memo concluded[76] that:-
[75]Exhibit 20, Vol 4, p 1342.
[76]Exhibit 20, Vol 2, p 861.
“General
Concrete Batching is an industry which is recognised as having off-site noise and air quality impacts even with best practice management measures in place.
…
Accordingly I cannot support the proposed application.”
S. Council’s Application Summary 1 February 2010
In this document[77] in dealing with the Issues said:-
[77]Ibid, p 865.
“P16 of Albion Neighbourhood Plan – Reverse Amenity to Batching Plant – does not comply – grounds for refusal – impact from batching plant – noise dust particulate [sic] light, traffic.”
T. Assessment Notes of Council’s Senior Urban Planner, Ms Adriana Bramley, 3 February 2010[78] usefully summarises events to that date.
[78]Exhibit 20, p 866.
U. Council Application Summary – 11 March 2010
It is noted that this summary is identical to the above Council’s Application Summary of 3 September 2009 on the issue of reverse amenity.[79]
[79]Ibid, p 910.
V. Letter – Council to NCO – 16 March 2010[80]
[80]Ibid, p 913.
In this letter the Council wrote dealing with air quality and noise and raised the irregularity in the production throughput and hours of operation which Mr Berry identified above. The letter stated in part:-
“Based on the information provided in the air quality report which demonstrated potential impacts above Council’s criteria on the proposed residential development using a throughput of 450 tonnes of concrete per day and the reported potential production capacity of 250 tonnes of concrete per hour it is considered that this proposal cannot be supported in regards to air quality.
…
It is considered that the noise report does not provide a thorough assessment of the various noise emitting operations and sources which are conducted at the concrete batching plant. These would include truck and front end loader manouvering [sic], aggregate, sand and cement delivery, horns, hooters and alarms, agitator bowl filling, mixing and cleaning, and other mechanical plant and equipment and operations, etc.
…
On the basis of Council’s detailed pollution assessment discussed above, the proposed development has not demonstrated the ability to provide suitable compliance with Performance Criteria 16 in the Albion Neighbourhood Plan and its intent. While Council is willing to allow you some time to respond to this letter, Council continues to raise strong concerns that any new development on this site is premature as future residents will suffer from adverse amenity impacts by the lawfully operating concrete batching plant.”
In short the Council’s conclusion was that there were adverse amenity impacts from the batching plant’s operations and non-compliance with P16.
W. E&C Planning Guidance Committee Presentation – 22 March 2010[81]
[81]Ibid, p 916.
The first page of the overheads used for this presentation contains a hand-written endorsement “refuse” after noting the intent of the North Precinct of the Albion Neighbourhood Plan of construction of residential dwellings to occur after the concrete batching plant operations cease to avoid adverse amenity impacts on new residential development. It deals with P16 and A16[82] and as to traffic impacts and air and noise quality reads:-
[82]Ibid, p 920.
“Traffic Noise Impacts – fails to address the operation and deliveries to/from the potential 24 hour operation of batching plant
Air Quality (Odour / Dust) – fails to address batching plant operating at the full extent of their licence
Reverse Amenity – Holcim (formerly Cemex) have objected to the proposed development and indicated no intention to relocate”
The conclusion of the Council’s committee’s presentation was in these words:
“Currently waiting for applicant action
Applicant concerned about Council assessment and delays
Approval or Refusal will be appealed
Batching plant not likely to relocate
Heading towards refusal unless clear cut outcome is achieved for reverse amenity”
X.Council’s Application Summary – 18 May 2010 [83]
[83]Ibid, p 923.
Records – “22/3/2010 – Planning Guidance Committee presentation; refusal supported”. The summary of issues in relation to P16:-
“P16 of Albion Neighbourhood Plan – Reverse Amenity to Batching Plant – does not comply – grounds for refusal – impact from batching plant – noise, dust, particulate [sic], light traffic.”
Y. NCO’s response material – 24 May 2010
By letter dated 24 May 2010 NCO responded to the Council’s earlier letter of 16 March 2010 (NCO’s May 2010 Response). In that response:-
(a) As to air quality issues NCO submitted that the developer had undertaken the required methodologies and investigations to substantiate the current production capacity of 450 tonnes per day for the batching plant upon which it had relied and which was consistent with the production data for the plant for 2008 and it pointed to a Council email to P A E Holmes of 22 May 2009 advising that a production of 450 tonnes per day was an appropriate estimate. It also provided a further air quality report from P A E Holmes dated 30 April 2010 (April 2010 Air Quality Report);
(b) As to noise it provided a further noise report dated 23 April 2010 (April 2010 Noise Report). That report said that air-conditioning noise mitigation was not within the scope of the report[84] and that individual quiet air-conditioners were not a part of the applications[85]. It also noted that the “noise reduction requires alternative ventilation as open windows do not provide adequate noise reduction[86], provided for balconies to be “screened with full height laminated glazing to Burdett Street”[87] and provided that the “balcony/bedroom doors and windows need to be of acoustic grade glazing”[88];
[84]Ibid, p 949.
[85]Ibid, p 951.
[86]Ibid, p 974 – first paragraph.
[87]Ibid, p 974.
[88]Ibid, p 974.
(c) In relation to P16 of the ANP code it said[89]:-
[89]Ibid, p 933.
“Compliance with Precinct Intent:
The Precinct Intent for the north precinct of the Albion Neighbourhood Plan which is provided under s 3.3, includes the following statements:-
·Construction of residential dwellings will occur after the concrete batching plant operation ceases to avoid adverse amenity impacts on new residential development.
·Expansion of industry and warehouse activities is not appropriate. However, new, short-term, non-residential uses located in existing buildings and minor improvements may be supported. Such proposals shall demonstrate that the use will not detrimentally affect the amenity of existing or future surrounding residential uses.
“It is noted that the purpose of the first statement is ‘to avoid adverse amenity impacts on new residential development’. Based on the Noise and Air Quality Report revisions (refer to the attachments), it is submitted that the proposal meets with the purpose of the Code on the following basis:
· In relation to air quality, residents of the proposed dwellings would be adequately protected, in terms of health impacts, by the current design of the development.
· Subject to appropriate design considerations and acoustic treatments, the proposed development would comply with BCC’s noise requirements. The development is able to achieve the interior and exterior noise amenity and noise reductions as required by Council. The attached Noise Report demonstrates that the noise generated by traffic along Crosby Road is similar to that of the batching plant and by achieving the noise levels for road traffic noise, the development will be effectively mitigated from noise impacts of the batching plant.
The intent to prohibit residential construction until the batching plant closes is expressed to be for the purpose of “avoid[ing] adverse amenity impacts on new residential development.” The applicant has now demonstrated, by the attached reports, that no such adverse amenity impacts on the proposed development will occur or otherwise arises from the continued lawful operation of the batching plant in compliance with ERA requirements. Put simply, the two can clearly co-exist”
…
It is submitted that the Applicant has adequately demonstrated that the subject site is suitable for residential development and can co-exist with the concrete batching plant operation without compromising:
1. The existing lawful use rights of the operation; or
The amenity of the new residential development.”
Council’s assessment of NCO’s – May 2010 Response
Z. Applicants’ solicitor’s letter 21 June 2010[90]
[90]Ibid, p 1010.
This letter made further submissions in the light of the additional material and issues raised since their submission of 23 December 2009. It raised adverse amenity impacts and advised of its historical production rate of an average of 1,000 tonnes per day occasionally doubling. The letter is very lengthy and encloses a detailed objection by Holcim to the proposal. I shall not attempt to detail it.
AA.Memo Council’s Principal Pollution Officer 23 June 2010
This memo from Mr Berry to Ms Bramley the assessment manager followed his assessment of the further information contained in the P A E Holmes April 2010 Air Quality Report. In relation to air quality impacts he concludes that the applicant developer had not demonstrated that P16 of the Albion Neighbourhood Plan Code had been satisfied. As to noise impacts he again expressed the view that the developer applicant had not demonstrated that P16 had been satisfied.
BB.Email Ms Patricia Jensen Council’s Regional Manager Development Assessment North to Ms Bramley Assessment Manager – 1 July 2010 [91]
[91]Ibid, p 1031.
This email relevantly reads:
“Ken Ramsay called me today to find out what Council’s likely decision would be for this application. I indicated that Council is still waiting for DERM to respond but it is more than likely that Council will not support the proposal due to the amenity issues associated with the existing concrete batching plant.
Ken put forward the solution that they remove the units within the impact radius of the batching plant (eg approx. 40 units). I indicate[d] that this still may not be a solution and that the removal of these units could cause amenity impacts on the remaining units…
I also advised Ken that even if this application was supported, the concrete batching plant operators may lodge a declaration in the P&E Court about this declaration.…”
CC.October 2010 – Request to change Development Application [92]
[92]Exhibit 20, Vol 4, p 1238.
This application was lodged by NCO in October 2010 and included a number of supporting reports including one from NCO (October 2010 NCO Report).[93]
[93]Ibid, p 1238.
The following points were made by NCO in its report:-
(a) Extracts from summary of proposed change to development application[94]:-
[94]Ibid, p 1245.
· “Additional assessment and peer reviews have been undertaken in relation to noise and air quality matters and it has now been determined that the maximum emissions line relates to the nearby residential dwellings. This emissions line is illustrated on the attached Architectural Plans and within the specialist reports themselves. The reporting has been undertaken based on an average daily production rate of approximately 1000t. This is the maximum that the batching plant can produce without breaching the dust deposition requirement at existing sensitive receivers. It is noted that the emissions line is already set by the existing dwellings and is therefore also applicable to the site.
· The buildings have been re-designed to locate any new proposed dwelling outside of the maximum emissions line for air quality and noise. This includes the removal of one (1) of the residential towers from the development application.
· The changed application will remove Lot 3 (Corner Burdett / Crosby Rd) from the Development Application in order to comply with the Purpose of the Albion Neighbourhood Plan Code...”
(b)The proposed residential apartments “will orientate to address the Burdett Street frontage and the proposed urban recreation area[95];
[95]Ibid, p 1242.
(c)The proposal[96]:-
[96]Ibid, p 1243.
· “Meets with relevant acceptable solutions and/or performance criteria set out in the primary development codes of the City Plan.
· Provides a good design outcome that will be an asset to both the developing streetscape and the local area.
· Meets the amenity criteria for residential development given that the proposal will co-exist with surrounding industrial uses including the concrete batching plant;
…
· Builds on the built form and character of both the existing area and emerging form recognised by the Albion Neighbourhood Plan;
…
Provides lifestyle benefits from community interaction through the inclusion of an urban recreation square, communal open space and ancillary gymnasium.”
(d)The following were represented as features of the development[97];
[97]Ibid, pp 1246 and 1247.
“Burdett Street and the urban recreation area will be the focus for the community. The wide boulevard streetscape, landscaping and orientation of the buildings encourage pedestrian usage and allow activity to spill out into the public realm. Proposed building setbacks adjoining public open space areas are minimised to encourage interaction between public and private spaces.
The proposed buildings are strategically sited to ensure each building takes advantage of the outlook and surveillance of [the] street and open space areas, ensuring the liveability of each unit is enhanced.
…
Extensive landscaping is proposed to delineate between private and public scapes and to enhance the liveability of the development. A wellness concept is proposed for the development and will include ancillary gymnasium, a lap pool, plunge pool and communal garden areas.”
(e)As to landscaping it was said:-
“Extensive landscaping will be undertaken…to provide an attractive environment that will enhance the livability [sic] and amenity of the development for future residents”, but that the “landscape vision for the urban recreation area cannot be achieved until such time as the adjacent land is development [sic] for residential purposes”.
(f)In relation to the further noise report of P A E Holmes dated 12 October 2010 (October 2010 Air Quality Report) it was said by NCO[98]:-
[98]Ibid, p 1251.
“In summary, this report demonstrates that ground level concentrations of dust and rate of dust deposition at the proposed residences will not exceed guidelines for sensitive receptors…”
(g)As to the further noise report of Noise Measurement Services dated 18 October 2010 (October 2010 Noise Report)[99] lodged with the application NCO stated[100] that the noise mitigation design requires closed windows for noise from the concrete batching plant and the provision of air- conditioning. This introduced air-conditioning for the first time as part of the application.
[99]Ibid, p 1398.
[100]Ibid, p 1252.
(h)As to the further traffic report[101] NCO said[102] and noted that the existing width of approximately 12m for Burdett Street was “considered sufficient for vehicles to/from the subject site to manoeuvre around heavy vehicles entering and exiting the concrete batching plant site.”
[101]Ibid, p 1471.
[102]Ibid, p 1253.
(i)NCO stated that the proposal meets the intent and purpose of the Albion Neighbourhood Plan[103] by:-
[103]Ibid, p 1259.
“Provision of a high quality residential development within an area designated for medium density residential uses;
Achieving the amenity criteria…for residential development opposite existing uses. This will enable the proposed development to co-exist with the concrete batching plant.
Complying with the maximum building height (6 storeys and 33.0m AHD above ground level) to ensure that views from Lapraik Street are not compromised.”
(j)As to P16 NCO said[104] that the proposed residential development can “co-exist with the concrete batching plant”.
[104]Ibid, p 1261.
(k)As to the Albion Neighbourhood Plan Code Appendix E[105] to the NCO report contained the following:-
[105]Exhibit 20, Vol 5, p 1840.
(i) As to A4.1 height[106]:-
[106]Ibid, pp 1845 and 1846.
“The maximum building height is 6 storeys and RL 33.0m AHD. Refer to the attached Architectural Plans (Appendix B). Please also refer to Appendix F – Survey Certification. Jensen and Bowers have provided survey certification that the proposed buildings as depicted on the Architectural Plans will not exceed RL 33m ADH if constructed in accordance with the plans”
(ii) As to the location of structures and plant:-
“All services, structures and mechanical plant (including the lift core, fire stairs and air conditioning) are proposed to be contained within the building and will therefore not visually impact on the appearance of the building. Air-conditioning plant will be contained within the roof form, basement or screened from view on balcony areas as required”
(iii) As to P16 amenity:-
“It is proposed that the residential development co-exist with the concrete batching plant. Refer to section 7.0 of this report which demonstrates full compliance with P16 and the purpose of the Albion Neighbourhood Plan Code”.
(iv)As to P25 of the Medium Density Code[107] it was said that:
[107]P25 provides that:-
“Noise from the development must not adversely affect existing and likely future dwellings on adjacent land.” A25.2 provides that “any air-conditioning plant is located towards the centre of the site”.
“Air-conditioning plant is proposed to be located within the roof void, basement area and on balcony areas, where required.”
(l)A further survey certificate dated 18 October 2010 was included stating that the proposed buildings would not exceed RL33AHD if built in accordance with the plans therein identified.[108] The elevation plans certified were DD.A11 issue D, DD.A12 issue B and DD.A13 issue D which are in the October 2010 NCO report.[109] Those elevations show a clean roof with no structures, screening, air-conditioning and the like on the roof and there were no roof plans the subject of the surveyor’s certification of 18 October 2010.
[108]Ibid, p 1908.
[109]Exhibit 20, Vol 4, p 1293-1295.
DD. Amenity
As to amenity the NCO October 2010 report stated:-[110]
[110]Ibid, pp 1267 and 1268, ss 7 and 8.
“The key potential detrimental impacts identified that pertain to the operation of the concrete batching plant are as follows and are discussed in further detail below:
· Dust
· Noise
· Traffic
P16 and the Purpose of the Code are fully satisfied as outlined below:
· The noise and air quality reporting demonstrates that the maximum emissions line relates to the nearby residential dwellings. The reporting has been undertaken based on an average daily production rate of approximately 1000t. This is the maximum that the batching plant can produce without breaching the dust deposition requirement at existing sensitive receivers and the proposed development. It is noted that the emissions line is already set by the existing dwellings and is and is therefore also applicable to the site.
· Furthermore, the concrete batching plant is bound by its obligations under the ERA. The facility must be operated so as not to cause a nuisance or breach of regulations.
· The buildings have been re-designed to be located outside of the maximum emissions line for air quality and noise. The redesign achieves P16: “the amenity of new residential development must not be affected by the operation of the existing batching plant” as there will be no ‘residential development’ within the emissions line.
· A small portion of the site is located within an area where air quality indicators exceed acceptable levels. This area is in the south-western corner of the site fronting Burdett Street and relates to the access and servicing area of the development. As P16 refers to ‘new residential development’ and does not differentiate between the dwellings and any ancillary uses it is also necessary to address the Purpose of the Albion Neighbourhood Plan Code.
Although part of the subject site would still be located within the emissions line, compliance can still be achieved with the Purpose of the Code as follows:
o “Construction of residential dwellings will occur after the concrete batching plant operation ceases to avoid adverse amenity impacts on new residential development”. The purpose of the Code is meant to be a broader intent for the area however in this instance it is the other way around. For instance, P16 refers to ‘new residential development’, whereas the Purpose is more specific and refers to ‘construction of residential dwellings. As it is not proposed to establish any dwelling units within the emissions area (i.e. only access / servicing is proposed within this area), the proposal achieves compliance with the Purpose of the Code.
The following Specialist Reports (Refer to Appendix C and to the summary contained within section 2.3 of this report) have been provided to demonstrate that proximity of the proposed dwellings to the nearby concrete batching plant does not unacceptably impair the living conditions of prospective residents or unreasonably stymie the operation of the batching plant:
· PAE Holmes has undertaken an Air Quality Assessment in relation to the changed proposal. Refer to Appendix C – Supporting Reports (Air Quality Assessment Report, reference 3866, dated 12 October 2010).
· Noise Measurement Services has undertaken a Noise Assessment Report in relation to the proposal, dated 15 October 2010, reference 1260-9.
· A Traffic Impact Assessment Report (dated 14 October 2010) has been prepared by Lambert and Rehbein to assess against the requirements of the Transport, Access, Parking and Servicing Code and Policy.
· To further demonstrate compliance with legislated air quality standards, the Applicant has appointed MWA Environmental to review both the Noise Assessment Report and the Air Quality Report. MWA’s Concurrence Statement is attached in Appendix C.
Co-existence between the proposed residential development and the existing concrete batching plant is demonstrated to be possible given that the health, safety and amenity of the users of the land and neighbouring land is not compromised and the quality and enjoyment of the environment are assured.
The enclosed nature of the concrete batching plant along with current dust control and other management measures ensures that the proposed residential uses will result in satisfactory air quality. Further, with the specified noise attenuation measures residential noise levels can be achieved for the development. The road network, proposed signalisation and delineation measures are also adequate to accommodate the proposed residential development.
8.0 Conclusions and Recommendations
The proposal contributes positively to the site and the locality. The local area is undergoing significant change in visual as well as functional characteristics. The proposal integrates well with the surrounding development in this transitional phase and is expected to improve the long-term outcomes for the area.
Urban amenity has been achieved by the proposed design to enable the development to co-exist with the nearby concrete batching plant operation. This is demonstrated by compliance with the relevant performance criteria and purpose of the Albion Neighbourhood Plan Code.
The building orientation and design is planned in response to the proposed and existing surrounding industrial buildings and residential uses. A high quality architecturally designed development is proposed which incorporates design elements to minimise building bulk and provide visual interest.
The proposed development will be a cohesive and inclusive community that accommodates the varying needs of residents. It will be a safe community, where buildings overlook the street and other public spaces. The well landscaped streets and urban recreation area will be the focus of community life, designed for locals and visitors alike to use them with confidence.
A high level of amenity is provided for future residents and surrounding existing residents. The proposal is consistent with the built form and scale expected within the community. Sufficient private open space, communal open space, landscaping, connectivity and community interaction is proposed to maximise the amenity of residents.
This report therefore recommends that the proposed development be approved subject to reasonable and relevant conditions.”
EE. Council assessment of changed Development Application
The Council minutes of 8 November 2010 record a meeting between Ms Adriana Bramley the Council’s Senior Urban Planner with Mr Ramsay and Ms Grainger both of NCO and Mr Gailey of Arden.[111] In relation to amenity those minutes record:-
[111]Exhibit 20, Vol 5, p 1911.
“Amenity study
- New reporting by applicant has come up with a line where particular matter becomes and [sic] ‘environmental nuisance’ under the EP Act;
- He advises the [sic] they have removed all proposed residential development within that line; and
- That in terms of acoustic amenity that all the project meets the EP Act requirements but not BCC Noise standards. Biggest problem for noise is units in SW corner of Building 3 at floors 3 and above – they do not meet outside noise standards but are proposing good quality outdoor space (common rec area) between buildings 2 and 3”
FF. Further submission Holcim to Council 23 December 2010
This letter from Holcim to the Council enclosed a letter from Cement Concrete & Aggregates Australia the peak industry group for Australia’s heavy construction material sector addressed to the Lord Mayor dated 22 December 2010 expressing its opinion as to the possibility of tension arising between the plant’s operations and residents who may live in the proposed development. The Holcim letter foreshadowed a further submission to the Council early in 2011 in relation to the recent changes to the application.
GG. Council January 2011 information request
By letter dated 28 January 2011[112] the Council made a further information request of Arden. It sought in part:-
[112]Ibid, p 1925.
Height[113]
[113]Ibid, p 1926.
“6. Provide all Elevations proposed including internal elevations that were not included in the proposed set of drawings (for example – the East Elevation of Building 2 etc).
7. Annotate all Floor Levels on sections and Elevations to include the proposed finished levels to clearly demonstrate storey heights and overall building heights comply with the height requirements of the Neighbourhood Plan. The annotations should related [sic] to the Survey plan prepared by a registered surveyor. Submissions have been received by Council citing incorrect levels have been used to determine the height.”
Noise
“From a noise perspective, the acoustic report demonstrates compliance with Council’s internal noise criteria provided all windows and doors are kept closed. Further, due to this requirement of openings kept closed, air conditioning is necessary.
The glazing and acoustic treatments required to achieve compliance are quite high, particularly those units facing Burdett St and as such additional measures are to be employed such as sold balustrading, fixed double glazing and solid balcony wing-walls. In some cases, the degree of acoustic treatments may not be practical or difficult to use i.e. very heavy sliding doors and windows.”
HH. Report of Council’s Air Quality Expert – Kate Stone Environmental – 28 January 2011[114]
[114]Ibid, p 1929.
That report concluded that:-
“Kate Stone Environmental agrees that for the concrete batching plant operating at an average production rate of 450 tonnes/day, it is unlikely that exceedances of the BCC’s Air Quality Criteria and DERM’s EPP (Air) 2008 air quality objectives will occur at the proposed development site. Whilst it is understood that production rates at concrete batching plants are variable due to market demand and at times may be more than double the average production rate, the probability that peak production would occur on the same day as worst-case meteorological conditions is low. It is also our experience that these peaks occur once or twice per year. Therefore are not frequent enough to adversely affect sensitive receptors.
Based on the air quality assessment alone, the concrete batching plant is unlikely to cause adverse impacts at the proposed MULTI-UNIT DWELLING, however, Kate Stone Environmental recommends that all complaints information should be reviewed to complete the assessment.”
It is to be noted that the Kate Stone report makes no reference to P16 and the test to be satisfied under it. The qualification of the above conclusion referring to assessment of the complaints information indicates that Kate Stone did not have that information before it and hence it was not assessed.
Further in relation to the contours of predicated ground level concentrations of annual total suspended particulates (TSP) the report noted that:-[115]
[115]Ibid, p 1934.
“Contours were presented for average production 450 t/day and peak production 1,000 t/day, for all pollutants except for PM10. For PM10 contours were presented for a peak production rate of 775 t/day. No justification for reduced peak throughput was provided in the report. Notwithstanding this, agree with P A E Holmes’ assessment that probability of maximum throughput and worst case met conditions would be low.”
II. Council’s Application Summary - 7 February 2011
This summary[116] again noted as one of the issues:-
[116]Ibid, p 1937.
“P16 of Albion Neighbourhood Plan – Reverse Amenity to Batching Plant – does not comply – grounds for refusal – impact from batching plant – noise dust particulate [sic], light traffic.”
JJ. NCO Response 15 February 2011 to Council Information Request 28 January 2011
In this letter NCO, relevantly, responded to the issue of height[117] stating that “the maximum level of RL33m AHD has been annotated in relation to each of the building elevations. In relation to noise issues it said:-[118]
[117]Ibid, p 1954.
[118]Ibid, p 1955.
“Response
Please refer to the attached drawings DD.A13 – building three elevations. A part elevation is provided which illustrates the acoustic glazing in relation to building 3. This includes acoustic glazing to the balcony face and acoustic windows and sliding doors to the southern façade. Annotations have been made in relation to acoustic treatments on elevations and a Floor Plan is provided in relation to the worst affected unit (unit 3509). It is submitted that the above is sufficient to illustrate the appearance of the building with respect to acoustic treatment.”
KK. Holcim’s letter of objection to Council – 21 February 2011[119]
[119]Ibid, p 1991.
This was the objection foreshadowed in Holcim’s earlier letter of 23 December 2010. It contained a detailed submission opposing the proposal. It stated:-
“Our client believes that residential development so close to the concrete batching plant is totally inappropriate and will lead to many future conflicts and complaints.
…
The Albion neighbourhood plan specifically provides that the residential development in the area around our client’s batching plant should not occur until the batching plant ceases operations. Our client has no plans to shut the batching plant as there is a substantial demand for concrete for the many infrastructure and other development projects in the inner city.”
That letter included a town planning report of Humphries Reynolds Perkins Planning Consultants (HRP) dated February 2011.[120] Relevantly the HRP report dealt extensively with the issue of amenity and said:-
[120]Ibid, p 1993.
“[69] Whilst there is likely to be direct environmental impacts there are others that are not so measurable but are residential amenity issues nonetheless. These may include: indirect exposure from activities outside of normal business hours; heavy vehicle movements at nearby intersections; dust deposits on roads; lighting of equipment; odours when walking on footpaths, and the knowledge of the continued presence of the industrial operations and the potential for adverse impacts even if they are not immediately present.
[70] Direct, indirect and perceived environmental impacts affect the senses of residential amenity, quality of life and sense of place. These issues are at the core as to why sensitive land uses are planned and intended to be separated from incompatible land use such as industrial activities.”
“[93] The scale and intensity of the proposed residential development for 280 units or potentially more than 500 residents at a minimum separation distance of 60 metres from a concrete batching plant exponentially increases the probability for conflict.
[94] New residents often have higher expectations than existing residents that are familiar with living within close proximity to industrial activities.
[95] The concern of future conflict was highlighted by the Court in Gray & Anor v Caboolture Shire Council (No. 2) [1985] QLR [sic] 432, by stating that a “buyer…might not appreciate the problem or might not appreciate the magnitude of the problem. Once he did, he might well complain regularly and vehemently.”
LL. Council’s final assessment
This was a three stage process. Firstly a submission was made by Ms Patricia Jensen, Regional Manager, Development Assessment Team North[121] to the Neighbourhood Planning and Development Assessment Committee. The submission is undated. The next stage was a presentation made to the Committee at its meeting on 8 March 2011[122] as to the issue of “Residential Amenity – Noise and Air Quality”. The presentation contains a copy of the site plan with the emissions line marked in red and labelled “Air Quality Impact Parameter” and states:-
[121]Exhibit 20, Vol 6, p 2020.
[122]Ibid, p 2254.
· “Applicant has provided noise and air quality reports to demonstrate that the plant will not have an adverse impact on the residential development. Applicant also carried out third party review of these reports.
· Performance solution based on compliance with Council’s noise and air quality standards and no development within air quality impact parameter”
Following that presentation there was a report of the Committee from its 8 March 2011 meeting[123] the notation “to be presented to Council on Tuesday 15 March 2011”. The report states:-
[123]Ibid, p 2264.
“Change to Application
5. The application was originally lodged in September 2008 and underwent a detailed assessment by Council. In November 2008, an initial information request was issued for the applicant to address geotechnical, air quality, noise and traffic impacts. The applicant provided a response to this request in November 2009 and an additional response in may 2010.
6. After an assessment of these responses, Council advised the applicant that the proposal could not be supported based on non-compliance with air quality and noise requirements. In October 2010, the applicant lodged a change to the application to redesign the development to locate new dwellings outside the maximum emission lines for air quality and noise. This included removal of one of the residential buildings from the proposal, relocation of the access and servicing area, staging of the development and also the removal of Lot 3 (at the corner of Burdett Street and Crosby Road) from the application.
The failure of the Council to properly consider all aspects of amenity is demonstrated, according to the Applicants, on the Council’s own evidence namely:-
The Council’s Reasons for its decision[162] reveals that no consideration was given to these aspects of amenity;
[162]Exhibit 20, Vol 6, p 2429.
The report of the Neighbourhood Planning and Development Assessment Committee[163] adopted by the Full Council in making its decision limited its consideration of the relevant amenity to air quality and noise[164];
[163]Ibid, Tab 73.
[164]Ibid, paras 8 and 9.
Minutes of the Full Council meeting of 15 March 2011 where the development application was debated was confined to issues of noise and air[165]; and
The conditions of approval do not address any aspect of amenity other than air quality and noise.
[165]Ibid, p 2276.
Consistent with the above Council documents the Applicants also point to the submissions made to Council by NCO on behalf of Arden which again confined the consideration of the concept of amenity to issues of dust, noise and traffic.[166]
[166]Exhibit 20, Vol 4, pp 1266 and 1267.
With respect to amenity the Applicants say that, though the Council considered air and noise, those considerations were limited to the internal living of the residents and that the Council failed to consider those impacts on the amenity in relation to the residents’ external living and use and enjoyment of areas in and around the proposed residential complex. They argue that the residents would not be expected to live like hermits and would take advantage of external living areas and external recreation areas and would walk in and around the complex. In short they will not be able to escape the impacts of air and noise from the batching plant merely by closing their doors and windows.[167]
[167]See Hymix Australia Pty Ltd v Gold Coast City Council & Anor [2005] QPELR 583 at [19] where Robin QC, DCJ said:
“--- The acoustic amenity of residents outside their sealed houses should not be forgotten.”
This failure by the Council to consider external aspects of residential living is at odds with the October 2010 NCO report.[168] In dealing with Landscaping for the project it recognises the importance of external living and outdoor use to the question of amenity despite recognising that the landscape vision for the urban recreation area cannot be achieved until such time as the adjacent land is developed for residential purposes.
[168]Ibid, p 1248.
On the issue of traffic which the Council did address, the Applicants point to the Council’s reasons and Committee Report to show that the Council failed to consider the aspect of heavy vehicles operating in close proximity to the proposed residential use, the entry and exit points to which are almost opposite the entry point to the batching plant. Both the October 2010 NCO report[169] and the Traffic Impact Report of Lambert and Rehbein[170] included in that report state that – “The existing width of approximately 12m for Burdett Street is considered sufficient for vehicles to/from the subject site to manoeuvre around heavy vehicles entering and exiting the concrete batching plant site.” Further, it is said, neither report considers the amenity aspect of residents of the proposed development, when walking on the footpath or enjoying the outdoor aspect of the complex, being confronted with heavy vehicles operating across the road at the batching plant. That is an important matter, the Applicants say which the Council did not consider.
[169] Ibid, p 1253.
[170]Ibid, p 1484.
The Applicants’ final point on the Council’s alleged failure to take into account relevant aspects of amenity is that the Council was put on notice as to the relevant aspects of amenity to be considered in relation to P16 by their solicitor’s letter of 21 February 2011[171] which enclosed a Town Planning Report from Humphreys Reynolds Perkins dated February 2011. That report made a detailed submission in relation to amenity and included this statement[172]:-
“Whilst there is likely to be direct environmental aspects there are others that are not so measurable but are residential amenity issues nonetheless. These may include: indirect exposure from activities outside of normal business hours; heavy vehicle movements at nearby intersections; dust deposits on roads; lighting of equipment; odours when walking on footpaths, and the knowledge of the continued presence of the industrial operations and the potential for adverse impacts even if they are not immediately present.
Direct, indirect and perceived environmental impacts affect the senses of residential amenity, quality of life and sense of place. These issues are at the core as to why sensitive land uses are planned and intended to be separated from incompatible land use such as industrial activity.”
Council’s response to Applicants’ argument that Council failed to take into account relevant aspects of amenity
[171]Exhibit 20, Vol 5, p 1991.
[172]Exhibit 20, Vol 5, p 2010 [69]-[70].
The Council denies it fell into error and argues that it, quite appropriately, took a commonsense and practical approach to the interpretation of P16 by focusing on the tangible and measurable impacts upon amenity such as noise and emissions. It says that intangible impacts are subjective and not necessarily weighty. It referred to a statement of Wilson SC, DCJ as he then was in Caltabiano & Ors v Brisbane City Council & Australand Holdings Ltd[173] when His Honour said:-
“Questions of visual amenity are inherently subjective and can be nebulous but the overwhelming impression here, confirmed by the lengthy inspection and the very helpful photomontages showing a visual projection of the proposed buildings and their effect in the “view shed” to the east is one of improvement, by a masking of the relevantly blank, uninteresting and monolithic character of the commercial centre; and I am persuaded the issue of visual amenity is something which tells quite strongly for, rather than against, the co-respondent’s proposed development in its present form.”
[173][2005] QPELR 60 at 64 [24].
The Council referred to statements by de Jersey J as he then was in Broadv Brisbane City Council and Baptist Union of Queensland[174] where His Honour said:-
“The question is whether a resident’s view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use. In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little if any weight. In forming his own view on the likely effect of a proposed development on the amenity of the area, a judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development. …
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 amenity.”
[174][1986] 2 Qd R 317 at 325 and 326.
As to the reasonable expectations of residents the Council says that those reasonable expectations are to be founded on existing town planning controls and the considerations relevant to the determination of any particular application.[175] Council argues that in considering the issue of amenity under P16 two things are relevant:-
[175]See Londy v Brisbane City Council [1998] QPELR 492 at 494B.
The amenity of the proposed development rather than the amenity of the existing area; and
The effects of the operation, not the mere existence, of the concrete batching plant on the new residential development.
Arden’s response to Applicants’ argument that Council failed to take into account relevant aspects of amenity
Arden, like the Council, rejects the allegation that the Council fell into error in making its decision but says that if the decision was incorrect it was an error made in the exercise of jurisdiction and not as a result of jurisdictional error. As did the Council, Arden relied upon statements by de Jersey J as he then was in Broad’s case and also referred to Arksmead Pty Ltd v Gold Coast City Council & Ors[176] where the Court of Appeal said:-
“‘Amenity’, as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), (p. 430) is ‘one of the most over-employed words in the vocabulary of planning jargon …’, but it is accepted that the word refers to ‘that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence’: see ex-parte Tooth & Co Ltd; re Parramatta City Council (1955) 55 SR (NSW) 282 at 306. The concept of amenity is wide and flexible, and intangible factors and subjective considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area affected: see Broad v Brisbane City Council [1986] 2 Qd R 317.”
[176](2000) 107 LGERA 60.
Arden distinguishes Broad and Arksmead from the present case because it says this is not a case where a new use is to be introduced to the area. Rather, it is a case of an existing use of which new residents or potential new residents will be aware. As to amenity in P16 Arden says that it requires an assessment of whether the amenity of the new residential development will be affected by the operation of the existing batching plant and those elements of amenity dealing with perception are not relevant. Rather, the concern is to consider the impacts of the operation of the batching plant and that involves the more usual amenity aspects of noise, dust and odour. These were clearly considered by the Council. As to the Council’s decision Arden argues that it would be dangerous to expect an assessment manager to specifically list every single item or potential item of amenity when, having regard to those upon which the Applicants rely as having been ignored by the Council, many are appropriately grouped simply as perception about which a view might be formulated whether formally expressed or not.
In any event, it is said by Arden, any potential purchasers of the residential units will be perfectly aware of the amenity of the area through direct observation, examination of aerial photographs of the sites and its surrounds, perusal of the community management statement warning them of the reduced level of noise and/or air quality amenity compared with traditional residential areas and, armed with that knowledge will not, logically experience negative perception effects of the batching plant.
Returning to the reasons of the Council, Arden dealt with two aspects of a decision maker’s decision namely mandatory relevant considerations and the level of detail required in a decision maker’s reasons. As to the first it relied on W352 the Minister for Immigration and Multi-Cultural Affairs[177] where French J referred to earlier criteria relating to what is a relevant consideration and said:-
“It has also been said that ‘whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not … encompass a failure especially to mention or grapple with part of the competing body of evidence before the tribunal will relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed’ – Paul the Minister for Immigration and Multi-Cultural Affairs (2001) 64 ALD 289 at 312 (Allsop J, with Heerey J agreeing).[178]
[177](2002) FCA 398 (5 April 2002) at [32].
[178]See also Minister for Planning v Walker (2008) 161 LGERA 423 at 449 at [120].
As to the level of detail required in a decision maker’s reasons Arden referred to the Minister for Immigration and Ethnic Affairs v Wu[179] where Brennan CJ, Toohey, McHugh and Gummow JJ said:-
“It was said [by the Full Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287] that a court should not be “concerned with looseness in the language… nor with unhappy phrasing” of the reasons of an administrative decision maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision.”
[179](1996) 185 CLR 259 at 272.
Further Arden referred to Notaris v Waverley City Council[180] where Tobias JA (with whom Mason P and Hodgson JA agreed) said:-
[180](2007) 161 LGERA 230 at 264.
“As the primary judge correctly observed…, the Council was at great pains to inform itself before making its decision. As his Honour also noted, there was an intensive and far-reaching investigation over some 13 months which resulted in a “plethora of information available to the Council in order to enable a full and proper assessment of the impact of height, floor space ration, size, overshadowing, solar access, car parking and vehicle access.” In my opinion, the evidence comprising the contents of the Council’s files on the application provide ample support for this finding.
Although it may be true that in the relevant reports there is no numerical reference to the relevant provisions of DCP2 or, for that matter, DCP14, the nature of the control and its detail was clearly referred to in the various reports in terms of the maximum permissible floor space ratio, the overall height of the building, the permissible external wall heights and set backs. AS Hodgson JA, with whom Ipp JA and Davies AJA agreed, said in Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [53]:
… so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not.
Furthermore, as a general proposition, material in the possession of the Council will be treated as being in the possession of the councillors: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] per Ipp JA, with whom Spigelman CJ and Sheller JA agreed.”
In conclusion on this issue Arden says that the Council appropriately addressed the amenity impacts of the batching plant on the proposed development and properly assessed the development against the Albion Neighbourhood Plan Code including P16.
Consideration of jurisdictional error ground 3 – failure to take into account relevant aspects of amenity
As to the matters to be taken into account by a decision maker, in Minister forAboriginal Affairs v Peko-Wallsend Ltd[181] Mason J said:-
[181](1982) 162 CLR 24 at [39]-[41].
“Two questions now arise in the proceedings before this court.The first is whether the Minister was bound, in making his decision pursuant to s11, to have regard to the respondents’ submissions, so that his failure to do so amounted to a failure to take into account a consideration relevant to the exercise of the power. The second question, which only arises if the first is answered in the affirmative, is whether relief should have been refused on discretionary grounds.”
“(A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...
(B) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. ...
(C) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ....
(D) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned ...
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ....
I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. .... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”
Subsequently in Lansen & Ors v Minister for Environment and Heritage & Anor[182] the Full Federal Court said:-
“[90] There are, as Mason J said, two questions. The first question is in two parts: first, did the Minister fail to have regard to a consideration he was bound to take into account; and secondly, was the consideration which the Minister failed to take into account so insignificant that the failure to take that consideration into account could not have materially affected his decision.
[91] The second question, which is whether the relief should be refused on discretionary grounds, only arises if the two parts of the first question are respectively answered “yes” and “no”.”
[182](2008) 163 LGERA, 145 at [90]-[91].
As to the Neighbourhood Plan of which the Neighbourhood Code forms part, I have already set out s 3.3 which speaks of the construction of residential dwellings occurring after the concrete batching plant operation ceases so as to avoid adverse amenity impacts on new residential development. Performance Criteria P16 provides that the amenity of the new residential development must not be affected by the operation of the existing concrete batching plant. Read with s 3.3, P16 is clearly designed to guard against any adverse effect on the amenity of any new residential development resulting from the batching plant’s operations.
As I have said, Acceptable Solution A16 provides one way of complying with P16 namely to delay the construction of residential development within the relevant precinct until the batching plant operation ceases. That is not the only way in which P16 can be satisfied, but given the evidence that Holcim has no present intention of ceasing operation of the batching plant operation, Arden must look to an alternative method of satisfying P16.
The batching plant is a long established industrial use in the area and, as with other industrial uses in Brisbane, it has been exposed to what may be called urban creep whereby the urban development of the city in a particular area slowly but surely creeps closer to the industrial use. In some instances the industrial use is left with no alternative but to relocate. Some would say that is a good thing. But that is not what the City Plan says as reflected in the Neighbourhood Plan.
That Plan expressly recognises the existence of the batching plant and its operations and implicitly accords to it a respect and consideration borne of its longstanding prior existence in the area and the, relatively, recent growth of surrounding urban development. It expressly recognises the entitlement of the batching plant to continue its operations and limits the construction of residential development in the area by expressly providing in P16 that such new residential development must not be adversely affected by the batching plant’s operation. There is no prohibition on new residential development in the area but the authors of the Plan have seen fit to ensure that any occupants of that development not be subject to a reduction in amenity standards usually expected in a residential area, as a result of the operations of the batching plant.
In any application for new residential development in the area, the issue of amenity is of prime importance. Recognition and acceptance of that by the Council is redolent throughout its documentation..
Broad’s case and others have dealt with the concept of amenity and those elements of the concept pleaded by the Applicants have been accepted by the Council namely:[183]
[183]Amended originating application, para 25.
The physical senses such as air quality, noise, traffic and nuisance; and
The perception, character and visual appearance of the Concrete Batching Plant’s Operations in close proximity to the proposed new residential development.
There can be no doubt from the Council documents that Council confined its focus on the question of amenity in P16 to air quality, noise and traffic. As to its consideration of traffic issues, I accept the appellant’s argument as to their limitations as I have outlined above.
The Council was obliged, in assessing the Development Application, to properly address the concept of amenity. It did not do so. To say, as the Council says that it took a commonsense approach and concerned itself only with tangible aspects of amenity is not to the point. It may well be, in a particular case, after the concept of amenity has been properly considered, that some elements present as of lesser importance than others but that does not relieve the decision maker of the obligation to give proper consideration to all elements of amenity before arriving at a decision. Put another way, it may well be that, depending on the nature of the development and the surrounding uses, that a proper consideration of amenity leaves the decision maker with the view that the only relevant aspects of amenity in a particular case are, for example, noise and air quality. But that does not relieve the decision maker of the obligation to give proper consideration to all elements of the concept and to provide reasons why any discarded elements are so discarded. I am not speaking here of a treatise on each element but some evidence that proper consideration has been given to each element in arriving at the final decision.
The words of Skoien SJDC in Lomas v Gold Coast City Council[184] are apposite:-
[184][2007] QPELR 539 at [30], [37] and [38].
“[30] In cases such as these, where no detailed reasons are given by the decision makers, the Court is in a difficult position. It is faced with the task of concluding what the delegates did consider (usually, as here, there is some statement, for example, in the actual decision) which provides evidence of that. Then, a failure in the actual decision to refer to other clearly relevant facts or to relevant law may at least give rise to the suspicion that those facts or that law were not adverted to and that is an easier conclusion to draw if those facts or the law are clearly contrary to the decision.”
…
“[37] The material before me does not disclose that any attention was given by the two delegates to possible material differences in approach to development of the land by the application of the two schemes, that is the question I pose in para[34]. As I have said the relevant parts of the scheme, arguably at least, establish that such differences do not exist. One would expect, if such attention had been given, that somewhere there would be a record of it or at least a statement such as "notwithstanding the similarity of some relevant passages in the two schemes there are the following important differences ...." and "notwithstanding the conditions of approval, in some respects they are not what the 2003 scheme requires". Again I stress that the delegates are not necessarily required to justify their decision by setting out, in reasons, their consideration of these matters. But it should comfortably appear that they have adverted to them and given them real and genuine consideration. The absence of any such statement makes me suspect that no attention was given to the material similarities. In SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9; Besanko J, sitting as a member of the Full Federal Court, hearing an appeal from a judicial review decision in an immigration matter by a Federal Magistrate, in para[26] put the matter this way:-
"In terms of the content of the obligation to have regard to the charge sheet and its contents, the Magistrate referred to it as an obligation to have 'meaningful regard' to these matters. Different expressions have been used in the cases and the precise expression used does not appear to be decisive. In Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 at 220 [23] North and Madgwick JJ referred to whether the Magistrate had really examined a particular matter and in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 93 [212] Madgwick J referred to the need to give a matter real and genuine consideration. I would put the matter in the following way. In a case where a matter is mentioned by the decision-maker, the Court's assessment of the nature and quality of the decision-maker's reasons and of the importance of the particular consideration or matter in the context of the case may nevertheless lead the Court to conclude that the decision-maker has not given the matter genuine consideration and therefore has failed to have regard to it. (See also Centro Properties Ltd v Hurstville City Council (2004) 1345 LGERA 257 at
[37] per McLellan CJ, summarising the principles drawn from the NSW Court of Appeal decision in Weal v Bathurst City Council (2000) 111 LGERA 181.)
[38] Given the matters I have discussed I consider that the decision of the delegates, and therefore the Council, that "the proposed land uses have the potential to undermine the intent of [relevant provisions of the 2003 scheme] as set out in my para[3](j)1, failed to take into account relevant considerations which should have been weighed.”
Conclusion re Council’s consideration of Amenity
In my view the decision of the Council has miscarried because of its failure to properly consider the concept of amenity in P16. It failed to take into account relevant matters other than those of noise, air quality and traffic on a limited basis. It cannot be said the omission is insignificant so as not to have materially affected the decision. It was at the core of the Council’s considerations. That failure constitutes jurisdictional error so as to invalidate the Council approval decision.
As to the Council conditions, it is unnecessary for me to deal with the substantive nature of them given my finding as to amenity. Suffice is to say that, given that finding, it follows that those conditions were of a similar limited vision and could not be said to have the effect of securing compliance with P16. Whether on a merit review they do, is not for decision today. It follows that the conflict with P16 remains.
Council’s non-compliance with IPA s.3.5.13.
IPA s 3.5.13 provides:-
“3.5.13
Decision if application requires code assessment
1.This section applies to any part of the application requiring code assessment.
2.The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.
3.Subject to sub-section (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to:-
(a) The purpose of the code; and
(b)If they are not identified in the planning scheme as being appropriately reflected in the planning scheme:-
(i)State planning policies, or parts of State planning policies; and
(ii)For the planning scheme of a local government in the relevant area for a State planning regulatory provision – the provision; and
(iii)For the planning scheme of a local government in a designated region – the regions regional plan.
4. However, if the decision is made under sub-section 3(a) and the assessment is against the code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”
Given that the conflict with P16 was extant despite the conditions which purportedly addressed it, the Council’s statutory obligation was to seek to identify sufficient grounds to justify approval despite the conflict in accordance with s 3.5.13. It did not do so, but, rather, granted approval notwithstanding. That constituted another jurisdictional error leading to invalidity.
Given the above findings there is no need for me to consider the height ground.
Discretionary considerations
Council has not put forward any submissions as to discretionary considerations. Arden argues that I should decline to make any declarations or orders because there is no utility in remitting the matter to the Council for a fresh decision since, even if the Council has proceeded on an incorrect basis with respect to amenity impacts, it is clear those impacts will be appropriately managed. Although it is not a matter for present determination, I do not share that confidence. I do not consider there are any discretionary matters which would justify my ignoring what I see to be a fundamental error by the Council in its important decision making process. Accordingly the declarations and orders sought by the Applicants will be made.
I accordingly order:-
1. A declaration that the Council’s decision of 15 March 2011 to approve a development application dated 10 September 2008 for a material change of use (multi-dwelling unit) and for a preliminary approval to carry out building work in respect of land at 35 Burdett Street, Albion, Brisbane, Qld, 4010 is invalid and of no legal effect and is set aside; and
2. A declaration that the Council’s negotiated decision of 14 June 2011 which changed the Decision (the Negotiated Decision) is invalid and of no legal effect, and is set aside.
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