Jewels v Beaudesert Shire Council

[2005] QPEC 21

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Jewels v Beaudesert Shire Council & Anor [2005] QPEC 021

PARTIES:

TONY JOHN JEWELS
Appellant
v
BEAUDESERT SHIRE COUNCIL
Respondent
And
DELTAWOOD PTY LTD
Co-Respondent

FILE NO:

BD3294 of 2004

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

6 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

Appeal allowed, but only to the extent of substituting a further condition concerning landscaping, in the form of Exhibit 3, in lieu of that imposed by the respondent in clause (a) (iii) of its Decision Notice of 3 August 2004

CATCHWORDS:

PLANNING – CONSTRUCTION OF PLANNING SCHEMES – construction of transitional Planning Scheme of Beaudesert Shire Council – whether approved development is ‘aquaculture’ or ‘lot feeding’ under Scheme

PLANNING – AMENITY – VISUAL AMENITY – whether zoning under planning scheme protects visual amenity – landscaping – amelioration of impact on visual amenity

Cases Considered:

Cornerstone Properties Pty Ltd v Caloundra City Council & Anor [2004] QPELR 54

ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1Qd R 352 (CA)

COUNSEL:

Mr Tony Jewels, Appellant in person
Mr W Cochrane for the Respondent
Mr S Ure for the Co-Respondent

SOLICITORS:

The Appellant represented himself
Corrs Chambers Westgarth for the Respondent
Shand Taylor Lawyers for the Co-Respondent

1. This is an appeal against the decision of the respondent Council to approve the use of the co-respondent’s land at Larch Road, Tamborine for aquaculture purposes, namely, breeding and rearing freshwater crustaceans (red claw crayfish) in constructed ponds.  The primary ground of appeal is that the proposed use is not aquaculture (which is a “consent” use on this land) but, rather, lot feeding (which is a prohibited use).  In the alternative the appellant, who owns an immediately adjoining property, seeks changes to landscaping conditions attached to the approval, to reduce the visual impact of the development.

1. The properties owned by the appellant and the co-respondent adjoin at the end of Larch Road.  The appellant’s property is Lot 118 on RP 151363 and contains 4.008 ha.  The co-respondent’s property is Lot 117, and contains 4.014 ha.  The appellant’s land lies to the west, and his residence is close to the north-west boundary of the co-respondent’s land.  The structures associated with the aquaculture facility have been built and are clearly visible from the veranda of his house, and those rooms in it which have north-east facing windows.

1. As an inspection showed, Larch Road is a long apparently quiet rural access road which runs generally west from the Beenleigh-Beaudesert Road, about one kilometre south-west of the village of Tamborine.  Both parcels are at the head of a cul-de-sac at the end of the road, about 400m east of the Albert River.  The surrounding land to the east and south is developed for low-set homes on large allotments, while the land to the north is used for open grazing.  There is a large body of water to the north-east.  Mt Tamborine dominates the outlook to the northeast, and east.

1. The co-respondent’s land already contains a number of large constructed ponds and sheds, tanks, pipes and machinery associated with the proposed use.  There are six ponds each of which is 10m x 10m square.  The crayfish are to be bred and hatched from eggs, and reared in the ponds, which are caged and netted.  The associated machinery filters, aerates and heats water which is moved through tanks, pipes and trenches and the ponds via pumps.

1. The ponds appear as low rectangular walls about 400mm high, covered with a white mesh.  Pipes and fittings can be seen together with small covered washing tanks, small cream coloured sheds and a water tank. 

1. The respondent’s Planning Scheme is a transitional one for the purposes of the Integrated Planning Act 1997 (IPA), Ch 6.  The land lies in an area categorised under that Scheme as Rural Residential A zone, for which the Intent is:

It is intended that this zone will allow for predominantly residential uses on larger rural residential allotments (lot sizes generally between 2 and 10 ha).  Uses in this zone, including rural activities, should be generally compatible with the residential nature of the zone.  Many urban services are uneconomic to provide in this zone.

1. The Planning Scheme contains a Table of Zones, with columns showing different uses which are, variously, “as of right”; permissible, subject to the notification of conditions; consent uses; and, prohibited uses.  Aquaculture, which the co-respondent contends (and the Council accepts) is the proper description of its proposed activities, falls by default into the table for the Rural Residential A zone in column IV, a consent use (because it is not listed in columns III or V).  Lot feeding (which the appellant says is the more accurate description) is listed in column V, a prohibited use.

1. IPA s 6.1.30 requires that an application for a column IV use be assessed as would a consent application under s 4.12 of the former legislation, the Local Government (Planning & Environment) Act 1990.  A column IV use is one considered to be appropriate in the zone, provided that any adverse impacts can be ameliorated to an acceptable degree such that existing and/or future amenity is not compromised.  Column V uses are generally considered inappropriate.  Under the IPA regime all uses, whether consent or prohibited, are required to undergo the same assessment, but the effect is that a use falling into column V would be deemed to conflict with Council’s planning philosophy, reflected in the Scheme.  Conversely, uses in column IV may be categorised (in the terms found in IPA schemes) as ‘generally appropriate’ in this zone.

1. The Scheme defines aquaculture as:

Any premises used or intended to be used for the commercial production of fish, crustaceans or the like where the combined area of the ponds is greater than 200m².  The term does not include animal husbandry as defined herein.

1. Lot feeding is defined in these terms:

Any premises used or intended for use for the keeping of livestock in pens or yards and the feeding of such livestock with prepared food as distinct from grazing.  The term does not include animal husbandry, commercial kennel, commercial stable, coursing or trialling track, hobby kennel, piggery, poultry farm or veterinary hospital as defined herein, the practice of supplementary feeding, nor the temporary holding of stock for periods of less than 30 days.

1. At first blush, activities involving breeding crustaceans in ponds seems to quite clearly fit into the definition of aquaculture. Against that, the “lot feeding” definition uses terms commonly associated with land based animals, not creatures which live in water – livestock, yards and pens.  Similarly, the activities contained in the exclusions from that definition (animal husbandry, stable, piggery, etc) are all associated with land based domestic and farm animals.  The primary activity associated with lot feeding – the actual feeding of livestock in a particular manner – focuses attention upon the word “livestock” which is defined in the Macquarie Dictionary to mean the “… horses, cattle, sheep and other useful animals kept on a farm or ranch”.

1. Mr Venn, the town planner who gave evidence for the co-respondent also said, and I accept, that it is common practice in planning schemes to qualify a definition by noting exclusions to it, so that confusion does not occur between one definition and similar uses defined elsewhere; but uses that are distinctly different and would not ordinarily attract confusion are not highlighted in this way.  Here, the drafters of the Planning Scheme do not appear to have foreseen that confusion might arise about the distinction between aquaculture, and lot feeding.  That is unsurprising. 

1. The appellant directed particular submissions to the dictionary meanings of the words ‘livestock’ and ‘pen’ in an effort to show they might reasonably apply to crustaceans and the ponds in which they would live, but the attempt strains the ordinary meaning of those words which, in planning schemes, are construed in a practical, commonsense way: ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352 (CA) at 356; Cornerstone Properties Pty Ltd v Caloundra City Council & Anor [2004] QPELR 54, at 62.

1. Support for the construction propounded by Council and the co-respondent can be found elsewhere in the Scheme, too.  Even the smallest feedlots must be located well away from neighbouring houses (400 metres)[1], but no similar provision is attached to aquaculture nor, sensibly, would that be expected. 

   [1]Planning Scheme: Exhibit 2, p 65

1. It is abundantly clear from the definitions and other relevant parts of the Planning Scheme that activities involving the intensive breeding and harvesting of creatures from the watery sphere are to be classified as aquaculture.  That construction sits comfortably, too, with the principles to be applied when interpreting these schemes. 

1. The appellant did not anticipate activity of this sort in the area, but that is a not infrequent complaint in the context of modern, complex planning schemes.  If the activity is lawful, the fact it is surprising to other residents may not be determinative or, even, of particular relevance.  As Skoien SJDC has said:

Because the proposed use is a consent use, it is obviously one which, in the overall scheme of the town plan, should be permitted in an appropriate case.  Otherwise it would have been a prohibited use…  Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which the land may be put as of right.  He must also be taken to contemplate that such a parcel of land may come to be put to one of those uses permitted with the consent of the Local Authority.  Those are the expectations which he must be taken to have in relation to that parcel of land.  So while it may be that… the development of a consent use… would have an adverse psychological effect on those residents who have built permanent homes in the area, in that they have a particular image of the area, I cannot see that fact alone as being properly very persuasive in the mind of a town planning authority.  The consent use was always possible…[2]

[2]Bell v Noosa Shire Council [1983] QPLR 311, at 313; A Enborisoff & Associates v Caboolture Shire Council [1994] QPLR 254 at 257

1. The appellant’s other complaint, concerning visual impact and the methods which have been proposed to ameliorate its effects upon the appellant’s land, received some support from Mr Venn and the town planner called by the respondent, Mr Ryter.  Inspection confirmed the works do have a visual impact, at least close up, but not on the surrounding area in general.  That impact must be measured, of course, in light of the fact that a number of agricultural and animal husbandry uses could lawfully be established on the land of which many, as Mr Venn points out (his report, para 4.5.3) would involve structures including sheds and tanks, farm machinery, pens and yards and, with such rural pursuits as orchards and fruit trees, mesh and shading for protection.

1. Nothing in the Planning Scheme protects views in rural or residential areas, but the respondent imposed a condition requiring the entire facility to be:

… enveloped by a dense planting of native trees and shrubs in such combination and height upon maturity so as to provide a complete visual screening of all structures and ponds to maintain environmental values and acceptable public amenity levels.  The screen formed by the vegetation shall be fully maintained and any disease affected or dead vegetation continually replaced, as required.  No mature vegetation forming part of the screen shall be cut back, cut down or removed without the written consent of the Council.  Undergrowth shall not be allowed to accumulate so as to provide a vermin harbourage or create a fire hazard[3].

The condition required that 50% of all this screening vegetation is to be mature after five years, and 90% mature after 10 years.

[3]Development Application Decision Notice: Exhibit 1, 3 August 2004

1. The appellant was not, as I understood him, opposed to the imposition of a condition which would ameliorate visual impact, but had a preliminary objection to the placement of the ponds and facilities near his boundary.  The absence of protection of views in the Scheme, and the nature of the lawful uses of land in this zoning mean there is, however, no basis upon which it could be found that the particular location of the facilities on the co-respondent’s land is unlawful, or offends the applicable planning law.  Again, as Mr Venn pointed out, other ‘as of right’ uses on land could be equally likely to involve structures of considerable size (eg, large sheds) without significant limitation upon their placement.

1. Otherwise, concerns arose about two aspects:  the time taken for the vegetation shield to grow, and potential loss of views from the appellant’s property across the Albert River valley to the east, towards Mt Tamborine.  Mr Ryter suggested the latter concern could be overcome by limiting the maximum height of the screening vegetation to 4m, and Mr Venn believed that trees and dense planting were not necessary and that a hedge populated by lilly pilly or similar plants, positioned between the edge of an embankment and pond wall, to a maximum height of 1m, would be more effective in screening the pond mesh, but not impeding views to the mountains.

1. When the hearing began these concerns and suggestions had been incorporated into a revised condition about landscaping on the co-respondent’s land (Exhibit 3) which, I accept, is the best possible response to the appellant’s complaints in the sense that it will camouflage the ponds, but yet maintain the distant views which he and his wife cherish.

1. The appeal is allowed, but only to the extent of varying the conditions attached to the approval to substitute the new landscaping condition in Exhibit 3, for that previously imposed.