Laogard Pty Ltd v. Calliope Shire Council & Anor

[2008] QPEC 107

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Laogard Pty Ltd v Calliope Shire Council & Anor [2008] QPEC 107

PARTIES:

LAOGARD PTY LTD (ACN 081 424 197)

Appellant

V

CALLIOPE SHIRE COUNCIL

Respondent

And

PETER BURGMANN

Co-Respondent

And

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS[1]

Co-Respondent by Election

FILE NO/S:

BD 2711 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

5 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Inspection and hearing 29 September 2008, at Gladstone; by arrangement, written submissions received from all parties up to 30 October 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING – PLANNING LAW – CONSTRUCTION OF PLANNING SCHEMES – ‘HOME INDUSTRY’ – whether proposal in accord with definition in planning scheme

Integrated Planning Act 1997 s 4.1.50
Calliope Transitional Planning Scheme

COUNSEL:

Appellant self-represented by Mr M Fearns, a director
S Ure for Respondent
D Murray for Co-Respondent

SOLICITORS:

Appellant self-represented
King & Co for Respondent
Kenny & Partners for Co-Respondent

[1]This co-respondent had previously been excused from the proceedings.

[1]      Laogard Pty Ltd is a company which conducts a boilermaking and steel fabrication business on premises in the Pioneer Industrial Estate, which adjoins the Boyne Island Road outside Gladstone.  Part of its business involves the manufacture of industrial bins.  One of its directors, Mr Fearns, is the active worker in the business.  He objected to Mr Burgmann’s application to Council to use his (Mr Burgmann’s) land on the other side of the road, in an area designated ‘rural’, for similar purposes and that lead to this appeal[2].

[2]In which, pursuant to the provisions of the Integrated Planning Act 1997, Mr Burgmann shoulders the burden of showing the appeal should be dismissed: s 4.1.50.

[2]      Mr Fearns, who is not a lawyer, appeared for Laogard.  Although for reasons which follow his appeal has failed it is appropriate to record that he conducted Laogard’s case in a thoughtful and creditable way.   The comment is apposite because it was submitted, for Mr Burgmann, that Mr Fearns was principally motivated by fear of competition and his appeal was devoid of substance and, indeed, frivolous. 

[3]      While it was clear Mr Fearns is annoyed that a similar business has been able to set up outside the industrial estate and suspicious that it will, in truth, be conducted on a larger scale than is usually contemplated by the ‘home industry’ designation attached to its approval, during the case he strove to address relevant planning issues and the applicable planning scheme and his questions in cross-examination, and submissions, focussed on them. 

[4]      He also raised matters which suggested Mr Burgmann may not always have been accurate in documents he submitted to Council about his intentions for the use of his premises or the business he is now permitted to conduct there.  That said, the evidence falls short of establishing either grounds upon which Council should have refused the Burgmann application, or adverse impacts from the nature or conduct of the business which would mean the appeal should succeed.

[5]      Mr Burgmann’s land is at 34 McPherson Road, Boyne Island and contains 3.252 ha.  It lies just on the north side of Boyne Island Road and is surrounded by similar, large home sites in an area zoned, under the relevant planning scheme[3], ‘Rural’.  The Pioneer Industrial Estate, where Mr Fearns’ business is located, is southeast across Boyne Island Road.

[3]The ‘transitional’ planning scheme for the former Calliope Shire, gazetted in 1991 (the Shire has since been subsumed into the new Gladstone Regional Council).

[6]      Mr Burgmann’s property contains a dwelling and, close by, a large shed.  His development application was for a Material Change of Use for an Environmentally Relevant Activity (ERA No 24 – Boiler Making) and Home Industry for a Fabrication and Machining Workshop.  The mains source of anticipated work was said to be fabrication and repairs on box, boat and car trailers; fabrication and repairs to aluminium boat trailers; general repairs on buckets of plant and equipment eg backhoe, bobcat etc; and, machining on lathe and milling of pins and bushes associated with plant and equipment repairs.

[7]      As Mr Fearns’ cross-examination of Mr Burgmann revealed, however, although the application did not refer to the fabrication and manufacture of industrial bins that has, in truth, been a major part of the work and Mr Burgmann has already made about thirty of them[4] (and, in breach of one element of the definition of ‘Home Industry’, stored them for some time in the open[5]).  This is also a good part of Mr Fearns’ business and much of his case centred on the labour, materials, noise and other emanations associated with it and his contention that it necessarily involved things which did not accord with the true nature of the approved use.  In his words, Mr Burgmann’s business ‘…could not function within the Home Industry parameters’[6].

[4]T1-27.17-22.

[5]T1-28.4-36.

[6]Mr Fearns’ written submissions of 24 October 2008, page 8, paragraph 6.

[8]      In the Rural zone, however, Home Industry is a ‘consent’ use meaning it may be permitted, subject to provisions of the Integrated Planning Act 1997 (IPA) which make it ‘impact’ assessable.  It is defined, relevantly, to include any industry ‘carried out within the curtilage of an existing dwelling house and by a person resident therein’ which ‘does not interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, …waste water,…oil or otherwise; and, which does not require material, equipment or products to be stored in the open, or the provision of any ‘essential service main’.

[9]      Mr Hegedus, an expert in environmental matters, gave evidence which showed the noise and other possible emanations from the business met appropriate standards and his conclusions were not, in truth, challenged.  Mr Fearns did express concerns that his testing and observations were not undertaken in realistic circumstances, but Mr Hegedus’ report, and his answers in cross-examination, were persuasive that his enquiries and investigations were adequate and appropriate.

1. In particular, evidence about several matters upon which Mr Fearns focussed was ultimately harmless to Mr Burgmann’s case.  While I accept that Mr Burgmann has stored bins ‘in the open’ and only moved them just before the case began, that is not evidence of an impact which should have led to refusal of the application.  At most, it suggests a temporary breach of the terms of approval – and one which, in light of Mr Fearns’ complaint to Council about it, is unlikely to re-occur.  Nor is the location behind the shed of a generator providing three phase power a breach of that term which has, as Council suggested and I accept, a transitory connotation directed towards the preservation of visual amenity. 

1. Finally, the use of that generator does not involve ‘the provision of (an) essential service main of greater capacity than that available in the locality’.  The clause is directed, as Council also submitted, towards ensuring that there is no excessive load upon infrastructure.

1. Mr Fearns’ submissions also contained other assertions which were not, however, supported by evidence.  They include a claim that Mr Burgmann’s business employs, in truth, more persons than he has disclosed; and that it is more bothersome, in terms of noise, to the occupants of nearby properties.  One neighbour, Mr Johnson, gave evidence about the latter to quite the contrary effect and was not contradicted.  The former was not the subject of evidence in any acceptable form. 

1. While, as remarked earlier, Mr Fearns’ concerns have been shown to be in some respects understandable (eg, about the nature of the business, and the storage of bins in the open) they do not show Council’s decision was wrong.  Nor did his questioning of Mr Burgmann establish that the business will, in truth, involve interference with the amenity of the area by noise or emissions and, therefore, unacceptable impacts.

1. Indeed, inspection showed premises plainly capable of operating within the parameters of the approval, and the conditions Council imposed.   The definition of ‘Home Industry’ makes it clear that almost any industry can comply so long as it meets the criteria set out in the definition.  While the business actually conducted may vary somewhat from that described in the original application, approval for an Environmentally Relevant Activity (ERA No 24 – Boiler Making) plainly envisages things like the manufacture of bins and it cannot be said the application had the potential to mislead the Council, or any potential submitter – a conclusion supported by Mr Fearns’ actual submission, and the focus of his case.

1. The evidence shows, then, that the original proposal was not in conflict with the definition of ‘Home Industry’ and, indeed, was in harmony with it; and, that there were no planning reasons for Council to refuse it.  It follows there is no reason to conclude differently from Council and that Mr Burgmann has established, to sufficient degree, that Mr Fearns’ appeal should be dismissed.