Law v Beaudesert Shire Council
[2000] QPEC 90
•24 May 2000
PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND
CITATION: Law v Beaudesert Shire Council [2000] QPEC 090 PARTIES: MICHAEL GRAHAM LAW
(Appellant)
v.
BEAUDESERT SHIRE COUNCIL
(Respondent)
and
FRIENDS OF TAMBORINE MOUNTAIN ASSOCIATION INC. & ORS
(Respondents by Election)FILE NO/S: Appeal No. 4077 of 1999 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 24 May 2000 DELIVERED AT: Brisbane HEARING DATE: 10-12 May 2000 JUDGE: Robin Q.C. D.C.J. ORDER: Appeal Dismissed CATCHWORDS: Appeal by developer against condition attached by Council to rezoning approval – condition limited tourist cabins to 18, appellant sought 35 – appellant contended impacts should be assessed by reference to addition of 17 cabins, Council’s approval being the starting point – contention rejected – proper comparison was between land as is and as proposed to be developed by appellant – unusually large community input did not entitle relevant Development Control Plan to special weight – feelings of local residents could be important in assessing amenity impacts, which are not limited to physical impacts, (which the secluded nature of site served to reduce) – applicability of the precautionary principle considered – although Court had jurisdiction to reduce the cabin numbers permitted by varying the condition, it would be unjust to do so in the absence of any cross-appeal by the respondents by election
(Local Government (Planning and Environment) Act 1990 s. 4.3(1), s. 4.4(5A), s. 7.1(1), s.7.1()(3)
Integrated Planning Act 1997 s.1.2.3(2), s.6.1.2(1), s.6.1.3, s.6.1.23(1)(d), s.6.1.25Arksmead Pty Ltd v Council of the City of Gold Coast & Ors, Appeal No. 4436 of 1999, 10 March 2000
Broad v Brisbane City Council (1986) 2 Qd.R. 317
Leatch v. National Parks and Wildlife Service (1993) 81 LGERA 270, 282
Yamauchi v. Jondaryan Shire Council (1998) QPELR 452, 459.COUNSEL: Mr M. Hinson SC for the appellant
Mr C. Hughes for the respondent
Mr Giffard for the first respondent by election
Ms Langslow for Tamborine Mountain Natural History Association, Friends of Tamborine Mountains and 21 respondents by electionSOLICITORS: Connor O’Meara solicitors for the appellant Corrs Chambers Westgarth for the respondent
In this appeal, Mr Law seeks relaxation of conditions imposed by the respondent Council in its approval of a requested rezoning of land at 135-139 Eagle Heights Road, Eagle Heights to Special Facilities (18 Accommodation Units, Caretaker’s Residence, Refreshment Services, Caterer’s Rooms and Tourist Facilities) Zone. Although a number of conditions were originally in issue, by the time of the hearing, as between Mr Law and the Council, the sole live issue was whether the accommodation units should continue to be limited to 18, as allowed by the Council, or increased to 35, as sought in the rezoning application.
The rezoning application was lodged on 18 September 1997. Given that the land abuts the Palm Grove National Park, an environmental impact statement was required, which was lodged on 27 March 1998, leading to the view being taken at some stages that this was the effective date of the application. It was common ground on the appeal that the earlier date ought to be taken. Either date precedes the coming into effect of the Integrated Planning Act 1997. Notwithstanding the repeal of the Local Government (Planning and Environment) Act 1990, its provisions govern the present appeal. Section 6.1.2(1)of IPA continues in effect the existing planning scheme. See also s.6.1.3, giving effect to the “former planning scheme” as the transitional planning scheme. Section 6.1.25 and s.6.1.23 continue in effect applications such as Mr Law’s and approvals (and the conditions thereof). See in particular s.6.1.23(1)(d). Although “the precautionary principle” as defined in s.1.2.3(2) was not enshrined in legislation before the commencement of the IPA, Mr Hughes, who appeared for the Council, submitted this was a case in which the principle ought to be applied, as a matter of commonsense; it was invoked by Mr Venn, a town planner who gave evidence for the Council. In the particular circumstances of this case, that submission appears to me to be correct, although I do not suggest that ignoring the principle would affect the outcome of the appeal. The precautionary principle, on the basis that it is commonsense, has been applied in the absence of legislative command. See per Stein J in Leatch v. National Parks and Wildlife Service (1993) 81 LGERA 270, 282, quoted with approval in Yamauchi v. Jondaryan Shire Council (1998) QPELR 452, 459.
Mr Law’s application was made under s.4.3(1) of the Local Government (Planning and Environment) Act and it fell to be assessed under s.4.4, in particular by reference to sub-s. (3) from which the following considerations were singled out as important:-
“(a)whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would –
(i)create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;
(ii)detrimentally affect the amenity of the neighbourhood;
(iii)create a need for increased facilities;
...
(f)the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);
(g)the situation, suitability and amenity of the land in relation to neighbouring localities;
...
(j)whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered.”
The “inclusive” definition of “environment” in s.1.4 indicates the wide extent of matters that may be important.
Mr Law is entitled to appeal against the Council’s decision set out in its letter of 10 September 1999, insofar as it incorporates conditions he finds unacceptable, under s.7.1(1)(a) and (b). The court determines the appeal under s.7.1A(3); sub-s.(3)(b) empowers the court to “vary a condition imposed by the local government in respect of the approval” of the rezoning.
Mr Law’s land consists of 9.185 hectares at Tamborine Mountain. It has a depth of 720 metres, but a frontage to Eagle Heights Road of only 60 metres (on the southern side of the road). The western boundary is straight; that on the east by three “steps” commencing about a hundred metres from the frontage serves to increase the total width of the property at its mid point to a couple of hundred metres, from which it tapers at the rear along a meandering diagonal to a narrow rear boundary of 24 metres approximately. Up to a fifth of the property, in the widest part in the middle, is natural rainforest, effectively a continuation of the national park. The land has formerly been used as a dairy. It contains a house and a historic (now dilapidated) dairy which is intended to be relocated on the land and preserved as part of a touristic enterprise planned by Mr Law. At present, the bulk of the land is “manicured” (to adopt a term used in evidence) pasture, with a scattering of trees, a good number of which are at once large and attractive. Mr Law’s application described the existing zoning of the property as rural. That zoning has been split three ways into Rural Character, Rural Living and Rural Production. The relatively small part of the property at its frontage to Eagle Heights Road is Rural Character, a zoning reflecting the planners’ wish to preserve the impression of a “rural or semi-rural” character of this part of Tamborine Mountain gained by those who travel along public roads such as Eagle Heights Road and Long Road; the balance of the property is Rural Living.
The relevant planning scheme is Development Control Plan No. 1 Tamborine Mountain, gazetted 20 December 1997. It was common ground on the appeal that, notwithstanding the date, Mr Law’s application should be assessed against this DCP.
The original application contemplated the development on the land of a complex roughly in the middle of it comprising a function centre of 540 square metres, a restaurant of 630 square metres and a theatre and barbeque area of 540 square metres and, at the rear of the site, 35 “self-contained units” 25 of two bedrooms, the balance of three bedrooms. It is unnecessary to go into detail regarding other features proposed, such as a manager’s residence and an elevated viewing tower close to the principal buildings, since such matters are not controversial. Some, such as the former, remain in Mr Law’s proposal; the latter has gone, replaced by a differently located elevated viewing area which will be concealed by the rainforest canopy and reached by a ramp forming part of a boardwalk affording visitors a tour of the natural rainforest on the property.
Mr Simson, a town planner working for the Council drafted a report (Ex. 12) recommending refusal of the application for conflict with the DCP, on the basis that the accommodation units proposed were not “minor and secondary to the Tourist Facility” comprised in the three large facilities mentioned, and the further basis that there was “tourist accommodation” on other lots in Tamborine Mountain within 200 metres of Mr Law’s property. Mr Simson was referring to the DCP provisions in s.2.3.6(b) “Implementation”. He gave evidence that in doing so he gave no thought to the possibilities of relaxation of the DCP provisions, which, of course, constitute the relevant part of the Council’s planning scheme as it relates to Tamborine Mountain.
It is necessary to set out pertinent parts of the DCP, which, under “Preliminary” contains a paeon of praise acknowledging the “special and unique” character of Tamborine Mountain. This part of the DCP concludes with a statement of specific aims and objectives including the following:-
“1.7.1 Conservation and Land Management
(a) (i) Aim No. 1
To ensure that future management and development is carried out in an ecologically sustainable manner which preserves and enhances the environment of Tamborine Mountain.
...
1.7.2Landscape Character
(a) (i) Aim No. 1
To preserve and enhance the semi-rural character and amenity of Tamborine Mountain (including both natural and man-made character elements.)
...
1.7.6Tourist Uses
(a) (i) Aim
To encourage the development of tourist uses which by their scale, type and location are consistent with the maintenance of the existing character and amenity of Tamborine Mountain.
(ii) Objectives
(A)To ensure that the landscape characteristics and attributes which combine to make Tamborine Mountain an attractive destination for tourists are not compromised but complemented by compatible tourist development.
(B)To provide limited opportunities for the development of Cottage Tourist Facilities in suitable accessible locations.
(C)To allow limited opportunities for other compatible tourist uses to be established in some rural parts of the Mountain in accordance with the Plan.”
There is an “inclusive” definition of “tourist facility”, which does not expressly cover what Mr Law proposes, but which has been taken, for purposes of this proceeding, to cover it, as opposed to provisions dealing with “commercial development” which is restricted to designated areas. The DCP deals with tourist facilities, and tourist accommodation as follows:-
“2.3.5 Tourist Facilities
(a) Intent
Tourism in the form of day trippers and overnight accommodation is playing an increasingly significant and valuable role in the development of the area and the local economy. It also is having an increasing impact on the semi rural character of the plateau. The existing highly valued character is a dynamic relationship between topography, natural features, rural activities, climate, scenery and views, forested areas and open pastures, quietness and peacefulness, the sense of anticipation due to close vegetation among other attributes. Tourist facilities are encouraged only where they respect and not dominate the landscape character and the recreational experiences received. Tourist areas must complement the semi rural and natural landscape character of the plateau. Care is required to ensure that future developments do not degrade the existing experiences.
It is intended that Cottage Tourist Facilities continue to be clustered at appropriate locations along the main tourist routes and prevented from establishing in the residential areas.
Other appropriate forms of tourist development will only be permitted within some of the rural areas subject to design guidelines.
However as the area has numerous attractions scattered throughout, developments which encourage the concentration of large numbers of visitors in one location should be avoided.(b)Implementation
(i)Council will consider approval for Cottage Tourist Facilities only if they are located within those areas designated on Map DCP-1 Map 2.
(ii)Tourist facilities (apart from Cottage Tourist Facilities) may be permitted within the Rural Living, Rural Character and Rural Production Areas, Special Development Sites 1 and 2, and Escarpment Protection Areas provided they are at least 200m apart. That is, no lot containing a tourist facility shall be located any closer than 200m to another lot containing a tourist facility or approval for a tourist facility.
Tourist facilities shall be compatible with surrounding land uses, shall promote the landscape characteristics of the mountain and shall not detract from the semi-rural amenity and character of the locality. Proposals for the development of tourist facilities adjacent to or immediately adjoining a Village Area or Residential Estate may not be supported due to likely impacts on residential amenity.
Proposed developments shall be designed to achieve the following:
. low site coverage
.low rise (preferably single storey and not more than two storeys)
. retention of any existing vegetation
.be visually subordinate to the established landscape characteristics of the site and compatible with the form and line, colour and texture found in the existing landscape
.generous landscaped buffer areas separating any buildings or structures from surrounding properties or from any public road
.do not intrude into longer vistas of undulating semi-rural land or other significant features
.are located on roads other than those which function primarily as residential/rural residential access roads.
(iv)Apart from Cottage Tourist Facilities, only low-key tourist facilities promoting rural activities, arts and crafts, local history, the natural environment or similar themes will be approved on Tamborine Mountain..
2.3.6Multiple Dwellings, Tourist Accommodation and Accommodation Units for Permanent Occupation
(a) Intent
It is intended that in future the only multiple dwellings (other than duplex dwellings) and accommodation units for permanent occupation permitted in the Plan Area shall be units provided for older persons (e.g. pensioners, retirees etc.). Older Persons Housing shall be located in accordance with Section 2.3.2 above. Council does not favour concentrations of such units.
Tourist accommodation (whether self-contained or not) is only encouraged provided it is not major and large scale so as to not detract from, but compliment Tamborine Mountain’s unique landscape character. The types of tourist accommodation preferred, their range of locations and development guidelines are set out below and in the Land Use Character Area provisions in Section 3.0.
Council does not favour a concentration of tourist accommodation at any one location.
Any development for multiple dwellings, accommodation units or tourist accommodation shall protect and not adversely affect the amenity of adjoining properties.
(b) Implementation
(i) Applications for multiple dwellings (other than duplex dwellings) for permanent occupation will be approved by Council only for older persons housing within the North Tamborine Village Area and Eagle Heights Village Area.
(ii)The Planning Scheme for the Whole of the Shire of Beaudesert may allow, through the Table of Zones, a large number of tourist accommodation types in the Rural, Rural Residential and Residential Zones including accommodation units, camping grounds, caravan parks, host farms and motels. However, the development of the full range of accommodation types on Tamborine Mountain has the potential for significant detrimental impacts on the valued landscape character and the environment generally.
The preferred form of tourist accommodation is small scale low impact styles (e.g. Home Stay and Bed and Breakfast types). The uses of Home Stay Tourist Accommodation and Host Farm are preferred due to their low impact and assimilation into the existing dwellings, provided they are undertaken in strict accordance with the provisions of the Town Planning Scheme.
To assist in determining what the appropriate types of accommodation units, the Plan contains definitions of several that are preferred due to their acceptability in terms of impact on landscape character, amenity and the environment generally. Definitions are given for Backpackers Accommodation, Guest House and Motel.
The use of accommodation units, due to their wide range of types, will not generally be permitted within the Plan are except for small scale low impact Backpackers Accommodation and Guest Houses in the Rural Living, Rural Character and Rural Production Areas.
The further development of hotels or taverns will not be permitted within the Plan area however existing hotels may redevelop or relocate. The further development of motels (as defined in the Plan) will not be permitted within the Plan area.
The use of tourist cabins (i.e. self contained individual dwellings for tourists or short term visitors) may be permitted within the Rural Living, Rural Character, Rural Protection, Special Development Sites 1 and 2 Escarpment Protection Areas only where they meet the development guidelines for these areas and they have a similar visual impact on the landscape character and amenity as single private dwelling houses. That is, they should not be visually evident from the road or a public place including Council park, National Parks and the like. They shall also not be evident nor detract from the landscape character and amenity of any area when viewed from any area off the plateau and outside the Plan area.
Caravan parks and large scale camping grounds are not seen as appropriate forms of accommodation due to visual and servicing concerns. Applications for these uses will not be approved within the Plan area. However, small scale, non-intrusive camping grounds may be permitted particularly those with an educational or eco-tourism focus.
The Council does not favour a concentration of tourist accommodation in any one location. Tourist accommodation shall be at least 200m apart. That is, no lot containing tourist accommodation shall be located any closer than 200m to another lot containing tourist accommodation or approval for tourist accommodation.
Tourist accommodation will generally not be approved in association with a Tourist Facility, except for accommodation types indicated above and where the accommodation is minor and secondary to the Tourist Facility.
All applications for Multiple Dwellings, Tourist Accommodation and Accommodation Units for Permanent Occupation shall be accompanied by a planning report which demonstrates to Council’s satisfaction that the proposed development will be in accordance with the existing character of the locality with respect to the following:
· form
· height
· bulk
· architectural style
· building materials
· impact on the amenity of the locality
The design of tourist accommodation outside the Village Areas should have particular regard to the need to retain the semi-rural character and amenity of the area.
Any approval for tourist accommodation shall include conditions limiting the period of occupancy for a period which is appropriate to the style of development.”
There is no definition of tourist accommodation, but DCP 2.1 contains the following definition:
“Tourist Cabins” means any premises which comprise or are intended to comprise self contained free standing accommodation for the exclusive use of tourists or short term visitors including such outbuildings or structures as are, in the opinion of Council, incidental to and necessarily associated wish such accommodation. The use may include the on site accommodation for a manager or caretaker. The use does not include entertainment facilities, refreshment services, an accommodation unit, caravan park, motel or multiple dwelling.”
The remaining relevant material in the DCP (whose flavour is best appreciated by considering lengthy ‘slabs’ rather than by focusing on particular phrases) is:
“3.5.2 Preferred Future Land Uses
The preferred dominant land uses in these Areas are agriculture and animal husbandry however some development may be permitted in accordance with the development guidelines and State Planning Policy 1/92., These uses reflect the presence of Good Quality Agricultural Land (GCAL) through much of the Rural Areas. The DCP aims to conserve this GQAL, however some development may be permitted subject to the development guidelines below where the use will result in an over-riding community benefit.
Rural residential development is flexible in its locational requirements, and as such, shall only be permitted subject to the guidelines below where it does not compromise the protection or use of GQAL.
Other uses compatible with the preferred dominant land uses may be acceptable where they satisfy the relevant sections of Section 2.3 and the development and land management guidelines set out in 3.5.3 and 3.5.4 below. The separation of tourist facilities and tourist accommodation is of prime importance in retaining the existing character of the Rural Living, Rural Character and Rural Production Areas.
Tourist facilities, including Cottage Tourist Facilities, may be permitted in accordance with Section 2.3.5. Major tourist facilities will not be permitted.
The preferred forms of tourist accommodation are Backpackers Accommodation, Guest House, Home Stay Tourist Accommodation, and Tourist Cabins in accordance with Section 2.3.6 of the Plan. However the uses of caravan park, hotel, large camping grounds, motels, multi-unit residential facilities (including duplexes and older persons housing), multi unit tourist accommodation and retail development will not be permitted.
Notwithstanding the above statements on tourist uses, tourist accommodation and other non-residential uses, there are some areas of the Mountain where it is considered there should be no further intrusion of non-residential uses. These areas are considered to be highly significant landscape character and amenity areas of critical importance to the maintenance and protection of Tamborine Mountain’s unique natural and semi-rural character.
Accordingly, the Council will not approve uses of a non-residential nature, such as tourist accommodation, tourist facilities, retail, commercial, or arts and crafts related uses, on the following frontages:
· Main Western Road from Hartley Road to the Tamborine Mountain showgrounds;
· Beacon Road from Monte Street to Witches Chase;
· Witches Chase;
· Colville Drive from Witches Chase to Beacon Road;
· Hartley Road from Long Road to Cliff Road;
· Main Western Road from Franklin National Park and Power Parade to the start of the ‘Goat Track’ at the intersection of Tamborine Mountain Road and Lahey Lookout Road;
· White Road from its intersection with Alpine Terrace and Bartle Road to its intersection with Main Western Road; and
· Tamborine Mountain Road from the intersection of Eagle Heights Road to the intersection of Taylor Street
with the exception of those developments that demonstrate, to the Council’s satisfaction, that they have no detrimental environmental impacts and visual impacts on the existing landscape character as perceived from either the road or adjacent properties.
Council will require that any development proposal demonstrates its ability to comply with the guidelines set out in 3.5.3 and 3.5.4.
No advertising hoardings or advertising signs will be permitted except where the activity relates to the activities being undertaken on that land. On one location only one sign per business may be permitted if a proliferation is deemed by Council to be detrimental to the landscape character and amenity.
Any development in the Rural Living Area, or Rural Character Area or Rural Production Area shall be consistent with the existing character and amenity of the Area.
Any development adjoining the Conservation Area shall have due regard of the environmental qualities and landscape character of those areas, as required in Section 3.7.2.”
(The subject land is not within the locations identified and the eight “dot points”, or within the areas designed in Map 2. It might have been open to argue it was GQAL, but no one has raised this in the appeal.)
Section 4.4(5A) of the Local Government (Planning and Environment) Act is:
“(5A) The local government must refuse to approve the application if –
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”
Mr Simson regarded his task as confined to considering whether sub-paragraph (a) applied and concluded (correctly in my opinion) that it did, on both of the grounds identified by him. There was criticism of his somewhat literal approach to the 200 metre requirement, on the basis that the intent of the DCP was served by Mr Law’s proposal; although the boundaries of one or two other lots at Tamborine Mountain containing tourist accommodation fall within 200 metres (as the crow flies) of one of Mr Law’s boundaries, the distance between that other tourist accommodation and what Mr Law proposes is well in excess of 200 metres (as the crow flies) and street distances a person moving from one lot of tourist accommodation to another would have to traverse would be as well. On the other hand, I see no alternative to using direct measurements from lot boundary to lot boundary when the application of the 200 metre requirement is considered, arbitrary as the conclusion reached might seem. As to Mr Simson’s other ground, I agree with him that the tourist accommodation proposed by Mr Law could not be considered “minor” or “secondary to the Tourist Facility”. As proposed, it would be far and away the biggest aggregation of tourist accommodation within the area of the DCP (everyone who expressed a view accepted that “Thunderbird Park”, a similarly large facility, is not comparable, being “¾ of the way down the mountain”; (no-one expected that an approval extant for a large project in nearby Curtis Road was likely to be built;) whether regard is had to comparative floor areas (including surrounding paving), or to building heights, or to land area effectively devoted thereto, it seems to me impossible to say the accommodation was “secondary to the Tourist Facility” – even more impossible if (as has happened) the theatre proposal has been deleted.
As Mr Simson anticipated, his draft report led to negotiations between Mr Law and his representative on the one side, and the Council on the other. It is convenient to set out at length the assessment of the Council’s Director-Town Planning together with the salient parts of his recommendation to the Council of 31 August 1999:-
“Assessment
The Applicant has gone to considerable effort to demonstrate that the proposal is technically feasible and environmentally sustainable. This has been done and this is not the issue. The application was lodged under the previous DCP and requires assessment under its provisions. However the current DCP has weight due to its status at the time the application was lodged.
The Applicant and Council staff have held discussions concerning the compliance of the application with the previous and current DCP. The main issue with both documents is the scale and impact of the development on the landscape values and the environment, including the neighbour’s amenity. The previous DCP clearly allowed such development provided its impact was acceptable. The current DCP also permits such development again in terms of impact but also with reference to the existing developments and separation distance.
The Applicant by letter dated 18 August, 1999 has advised that in light of the concerns communicated to him, he is prepared to amend the application to reduce the impact. In this regard he offered three options and advised that council is able to approve one or all of the options in a Permit. The options involved removing the theatre and reducing the seating in the restaurant.
One of the objectives of the DCP is to disperse tourist uses across the plateau so that they do not affect the overall character of the area. Over provision of tourist uses could result in the attraction of the area being degraded. To achieve this aim the DCP contains provision regarding the separation of Tourist Facilities from other similar types. A distance of 200 metres from boundaries is required. (This provision was not in the display copy of the DCP).
The proposal is in an area with a number of tourist related activities including less than 200m from a Tourist Facility (the Original Avocado). The actual uses are, however, further than 200m apart and in this regard, due to the unique configuration of the lot and its substantial buffering, the Applicant’s submission is supported. That is, that the intent of the DCP is upheld even though there is another Tourist Facility within a 200m distance boundary to boundary.
The major concern is the scale and impact of the proposal which is considered not to conform to either the present or previous DCP. The withdrawal of the proposed theatre is supported but this is not enough to make the impact acceptable. While it is acknowledged that the existing landscaping and configuration assist in concealing the development from the public, this does not justify a large scale development. The Applicant’s further limitation of the restaurant seating and the clarification of the use of the restaurant verandas is also considered warranted.
The development even with the above reductions is still considered to be of onerous size. To satisfy the requirements of both DCPs a reduction in the cabins is also required. The proposed number of 35 represents significant potential substantial population if fully occupied, as they are two and three bedroom cabins. It is appropriate to limit cabin numbers to between 10-15 and to have them clustered centrally on the lot in order for their impact to be acceptable,
In relation to the function room and the restaurant their design is conducive for conferences. It is noted that there is no similar facility on the mountain nor in the area. The provision of such a facility will be of benefit to the local economy and the use is supported provided the impact is acceptable. In light of the above amendments to the development the impact is acceptable. The unique site circumstances assist in this regard. The proposal is now considered able to be supported by Council in light of the requirements of the previous DCP and the intent of the current DCP.
Summary and Conclusion
The application is in conflict with some provisions of the Tamborine Mountain Development Control Plan (1997). The conflicts relate to the separation of the use to other Tourist Facilities and Tourist Accommodation, the combined nature of the proposal and, alternately, to being a Commercial Development outside the Village Centres. In response to these conflicts the Applicant has offered to amend the application., These amendments do not go far enough in removing undesirable impact. The further reduction in the number of units plus the removal of the theatre and the reduced seating for the restaurant render the proposal acceptable in terms of impact in both the previous DCP and the current DCP. The retention of the rainforest area is also seen as critical to the proposal and strict controls will be needed through conditions of approval.
The design of the proposal (as amended) is such that the semi-rural nature of the site is retained and it is low site coverage, low rise and retains existing vegetation. On balance the proposal is able to be recommended for approval in light of the requirements of the previous and current DCPs subject to specific conditions concerning the rainforest and neighbouring properties’ amenity.
Directors Recommendation
1.That Council resolve to approve the rezoning to Special Facilities (15 Accommodation Units, Caretaker’s Residence, Refreshment Services, Caterer’s Rooms and Tourist Facilities) zone of land described as L2 WD 1730 Parish Tamborine, situated at 135-139 Eagle Heights Road, North Tamborine, subject to the following conditions:
Town Planning Department – Beaudesert Shire Council
i)Use in accordance with the Application- Rezoning – Development being undertaken generally in accordance with Plan No. 3497 Sheet 1 Issue B prepared by Inscape Design and received by Council on 19 June 1998 and accompanying documentation, except insofar as it is modified by the conditions of this approval. Any minor changes may be requested by the Applicant in accordance with Section 3.5.24 of the Integrated Planning Act 1997 without the need for a Development Application for a Material Change of Use.
ii)Modifications to Plan of Development – The plan of development is to be modified in accordance with the following. The theatre is to be removed from the plan. The number of cabins is to be reduced to fifteen (15) with the cabins to be sited not closer than thirty (30) metres from the property boundary and to be clumped. The amended plan is to be to the satisfaction of the Director – Town Planning.”
(Additional conditions followed. By the time the appeal came on for hearing, only condition ii), which the Council varied to permit 18 cabins, remained in issue between it and Mr Law.)
It is obscure whether the modifications required were considered to have removed conflict with the DCP – the appeal was conducted on the basis there was no need for any reference to the superseded document. The issue has become irrelevant; even if Mr Hinson S.C. for the appellant did not in the end concede that success of the appeal depends on demonstrating “sufficient planning grounds” as referred to in s.4.4(5A), that is the court’s view. Mr Hinson submitted the proposed development promoted the aim in DCP 1.7.6 “to encourage the development of tourist uses which by their scale, type and location are consistent with the maintenance of the existing character and amenity of Tamborine Mountain”. His argument (supported by the evidence of Mr Vann, Town Planner) was that the qualifications set out in the aim as described presented no obstacle, Mr Law’s proposed development being consistent with the landscape character and amenity of Tamborine Mountain and environmentally sustainable. He asserted there were community benefits in the provision of suitable facilities in the overall development for conferences and in the preservation of the rainforest areas on the land which was integral to the development and could be secured by appropriate conditions. I suppose all of those matters arise in a context where land owners ought to be free to use their properties as they wish, except to the extent that the law cuts down such entitlement.
The appellant’s case was prepared and presented on the assumption that the starting point was the Council’s agreement to 18 “cabins”. It will be noted that Council increased by three the limit recommended by the Director-Town Planning, who had recommended in accordance with the maximum end of the range he considered acceptable for tourist accommodation. Mr Venn, the town planner engaged by the Council to prepare a report for and to give evidence at the hearing, was strongly in favour of the bottom end of that suggested range, namely 10 cabins. It can be seen that Mr Law and his various advisers have been most successful in their exercise of seeking to persuade the Council to agree to more intensive development.
Using what the Council has agreed to as a starting point, the appellant has, essentially, presented evidence and arguments that the additional impact of a further 17 cabins would not be detrimental. I accept the evidence of Mr Douglas, traffic expert, and Mr Kamst, noise expert, given from their particular standpoints, which acknowledge there must be some increase, albeit modest, in impacts from an additional 17 cabins. Mr Giffard, an objector who represented the Tamborine Mountain Progress Association on the appeal, contended that the environmental clearance given to the development by referral agencies contemplated only 18 cabins, as approved by the Council. It appears to me, however, that those agencies were advising as to the merits of Mr Law’s total application. The appellant’s town planner, Mr Vann, who has been instrumental in designing the overall development, gave his opinion that the visible impact of 17 additional “cabins” was not of concern. His report states:-
“5.2 Number of Cabins
...
Given the size of the subject land, the proposed development exhibits a very low site coverage and overall development density. As discussed above, the cabins are low rise with similar dimensions to single dwellings; and will be sited within a very large and visually unobtrusive property. It appears to be common ground that the subject accommodation is not visible from any public areas off the site, and is likely only to be seen by at most, a handful of neighbouring properties. The differences between 35 and 18 cabins would be difficult to discern even from these properties due to the relative positioning of these properties and the cabins; while the Council requirement for a 30 metre wide landscaped buffer along the western boundary would effectively screen any view of the cabins from the surrounding properties.
As a consequence, the development will have little external visual impact. In addition, the building style and the layout of the development as a whole have been purposefully designed to be sympathetic to the landscape setting.
Therefore, it is considered that the development of 35 cabins does not offend the DCP intentions, as the additional cabins would not detract from the landscape character of Tamborine Mountain.
Potential amenity impacts relate to additional noise and traffic that may be created by the 35 cabins proposed by the applicant, as compared to the 18 cabins approved by Council. Noise could arise from activities of the residents themselves in and around the cabins, and from traffic associated with the cabins.
Due to the location of the proposed cabins in the more private southern part of the site and Council requirements for a 30 metre landscaped buffer, adjoining residents are unlikely to be aware that the cabins are there, let alone discern any amenity impacts from their activities. It is therefore considered that, on a planning basis, there is no likelihood of additional amenity impacts being created by the 35 cabins when compared with the 18 cabins approved by Council.
Mr Vann conceded that 35 was the maximum number of cabins he would support.
The appellant’s case attempted to demonstrate that the objectors who made submissions to the Council, and in particular those associated with adjacent properties, were not concerned with numbers of cabins, but rather with other aspects such as the restaurant and function centre and associated development in the rainforest. I am not persuaded that the silence of objectors on particular aspects of the development proposal, with other aspects being condemned, indicates support for aspects not singled out for comment. Miss Langslow represented the Tamborine Mountain Natural History Association and Friends of Tamborine Mountain and 21 individual respondents by election who appointed her their agent; she is correct in her argument that, given the limited parameters of the appeal, those who elected to become respondents represented by her (including some, but not all of the contiguous land owners) must be taken to oppose any increase above 18 in the number of cabins.
Although the appeal may be regarded as limited to the single issue whether the Court should approve an increased maximum number of cabins above that the Council has deemed acceptable, the Court should not approach the matter as a simple exercise of assessing the impact of additional cabins, which may well be modest in the circumstances. I agree with Mr Hughes’ submission, for the Council, that the necessary comparison (with respect to acceptability of impacts) requires examining Mr Law’s project in its entirety and comparing, on the one hand, his land as it presently is and, on the other hand, the land as it will be after development, whether that be to the extent Mr Law would wish, or to the more limited extent acceptable to the Council. As it happens, the Council went considerably beyond its own planning advice in going as far as it did; its support for the project was conditional upon the cabins being limited to 18, and other cuts, in particular deletion of the theatre.
It is convenient to notice here that the relative “invisibility” of the development from locations outside the subject property, a feature much relied on to support the claim that impacts, especially visual ones, would be minimal, is not conclusive of any issue. There can be impacts in the form of knowledge of people at Tamborine Mountain that the development is there and in the effect of such knowledge upon them. A development is not out of mind, simply because it is out of sight. These “less tangible impacts” may be taken into account. See Broad v Brisbane City Council (1986) 2 Qd.R. 317. At 318-320, Thomas J. said:
“His Honour indicated his agreement with certain views ...that if the institution were to be extended ‘it would have an unmistakable ‘air’ or ‘feel’ to it which would have an adverse effect on a residential amenity’. It was submitted that determination of the question whether the proposal might ‘detrimentally affect the amenity of the neighbourhood’ (a factor that the court is required to take into consideration under s. 8(5)(a)(ii) of the City of Brisbane Town Planning Act 1965-1985) requires a factual inquiry involving identifiable matters, and that it was improper to take into account such non-specific matters as the ‘air’ or ‘feel’ that residents might perceive. Although on the one hand it was submitted that amenity must be tested against the just expectations of neighbours, it was submitted that the ultimate test is objective.
I do not think that the concept admits of a tidy ‘objective or subjective’ classification.
...
The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of ‘atmosphere’. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.
These remarks are not intended to encourage resort to vague statements as justification for an irrational conclusion. But it is necessary to recognise that some matters in this area, although intangible and difficult to articulate, may be real and ... properly ... taken into account.”
and de Jersey J said at 325-26:-
In determining the likely effect of a proposed development on the amenity of a neighbourhood, the Local Government Court is clearly entitled to have regard to the views of residents of the area. 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.
...
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.”
Connolly J. agreed with both sets of reasons. Recently, the Court of Appeal has acknowledged that such an approach may be taken, in Arksmead Pty Ltd v Council of the City of Gold Coast & Ors, Appeal No. 4436 of 1999, 10 March 2000. Paragraph 3 of the Court’s judgment is:
“ ‘Amenity’, as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), is ‘one of the most over-employed words in the vocabulary of planning jargon ...’ (p. 430), 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’: Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1955) 55 S.R. (N.S.W.) 282 at p. 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 & Anor [1986] 2 Qd. R. 317. Such factors and considerations were relevant in this case”.
Their Honours made no criticism of the following statements of a judge of this Court at first instance, which, indeed, are set out in paragraphs 21 and 22 of the judgment:
...
An explanation for the amount of opposition can be found in the evidence about the village character of Mudgeeraba. Not only does it have physical characteristics based on its colonial background, it also has generated a strong community feeling about its future. Those strong feelings have given rise to much of the present opposition. Those feelings should be taken into account, with respect to the amenity issues.
...
Here, the evidence shows that the tavern, the bottle shop, and the car wash, will have a detrimental impact on the amenity of the Mudgeeraba village. Some of the physical impacts are slight and have already been discussed – such as traffic. Inevitably, there would also be some impact from noise and the occasional unruly behaviour of patrons, no matter how well designed the building, or well managed its operation. Such impacts are outweighed by those of a more intangible kind. It is the very presence of a development including a tavern and bottle shop which will be a detriment. ...”
In this case, the evidence shows, to quote Mr Hughes, “that the residents of Tamborine Mountain have a very real perception of their locality – a real sense of place ... (and) that placing the largest tourist accommodation facility in Tamborine Mountain in this locality would impact upon that sense of place.” Members of the community had an unusually large amount of interest in and input into the final form of the DCP. I found it not possible to allow effect to the submission that that historical fact meant this particular DCP commanded any status or potency over and above that enjoyed by any such plan. The authorities mentioned, however, indicate that opinions and attitudes of the local people may be seen as bearing on amenity issues.
At the heart of the issue in this case is the question of how to interpret and apply references in the DCP to “scale” of tourist uses, to tourist accommodation being “not major and large scale” or “low-key”, avoidance of “concentration of tourist accommodation in any one location” and such accommodation associated with a Tourist Facility having to be “minor and secondary to the Tourist Facility”. The appellant’s case was that all these matters should be assessed objectively, in the sense that “major” or “minor” would be judged by reference to tourist accommodation and/or facilities encountered, say, throughout south-east Queensland, so that the mere size of the appellant’s proposal would not cause concern, unless it appeared that the size was damaging in some way, such as “detract(ing) from ... Tamborine Mountain’s unique landscape character”. In particular, Mr Hinson S.C. submitted:
“The proposal is not major or large scale in the relevant sense i.e. it does not detract from landscape character. The expression ‘major or large scale’ does not invite a comparison with, and the making of a judgment by reference to, existing development.”
In my opinion, reference in these matters is not to State-wide or similar conditions, but to Tamborine Mountain conditions, such a conclusion being difficult to avoid when the DCP is read as a whole. There is no escaping the emphasis on preservation of the area’s present valued landscape character, environmental qualities and amenity. Quoting DCP 1.7.6, only those tourist uses are encouraged “which by their scale, type and location are consistent with maintenance of the existing character and amenity” of the area. In respect of location, the peculiarities of the site give Mr Law considerable advantages and limit the “tangible” and observable impacts of an increase above 18 cabins, should the appeal succeed. However, the location advantages do not overcome the consequences of the view I have reached that, in the context of Tamborine Mountain, Mr Law’s proposal, and the tourist accommodation part of it in particular, must be seen as “major”, of a “scale” not consistent with the present landscape character and amenity of the area and not “secondary” to the aspects of the project other than the accommodation. I do not suggest that nothing can be done on Tamborine Mountain bigger than, or different from what is there already.
I was impressed by a couple of Mr Simson’s points, which I mention not because they seem particularly important in themselves, but because they illustrate nicely the point that predicting the impacts of developments fully is probably an impossible task, that there may be consequences not immediately or easily forseeable. Considering the position of neighbouring landowners, he noted that the intrusion of tourist accommodation just 30 metres across the boundary may well inhibit their carrying on their existing rural-agricultural activities, for fear of complaints by tourists regarding smells, spraying, etcetera. At p. 208 of the transcript he said, in relation to one set of (respondent by election) neighbours who grow avocados on their land:-
“Now, from the curtilage of (their) residence, the view is substantially changed. Instead of looking out over an open paddock with rainforest backdrop, all you’ll get is a landscaped buffer hiding some cabins; a complete change.”
Although there was no specific evidence about this, it seems self-evident there is also the psychological impact of knowledge that just behind the fence is, effectively, a sizeable “motel”. (There is no suggestion that the Council has ignored the proscription of “motels” as defined.) The appellant’s proposal envisages 23 buildings, some of one storey, some of two, containing 35 “cabins” in all; there would be four substantial buildings of two storeys, each containing four two-bedroom cabins. Those four buildings, which it is proposed to locate nearest to the avocado farm, were of particular concern to Miss Langslow, who has raised a serious issue whether, as a matter of law, tourist cabins ought not to be free-standing. Mr Hinson’s riposte was that Miss Langslow appeared to be accepting 18 buildings, only a slight reduction from 23. (The larger buildings, however, would be eliminated.) It seems unnecessary for the Court to resolve this issue, which will doubtless be considered by the parties in due course, along with the most appropriate clustering or “clumping” of whatever cabins are in the end approved for construction. No submissions were made by counsel about it.
From the start of the appeal, Miss Langslow and Mr Giffard indicated they accepted the Council’s approval of 18 cabins, albeit with reluctance, because they and those they represent would have preferred to see fewer. It was, I think, something of a surprise to them when the discussion s.7.1A(3B) exposed the Court’s jurisdiction to reduce the approval below 18; in the end, they requested the Court to proceed in this way. There was evidence in the case from expert witnesses the Court accepts (Mr Venn and Mr Simson), which could be seen to justify reducing the approval to as few as 10 cabins. In the absence of any formal cross-appeal seeking variation downwards of the limit set by the Council, it would be a travesty, in my opinion, for the Court to act in that way, even though there might be jurisdiction to do it. Common justice would require the Court to indicate to Mr Law that it was contemplating resolving his appeal for an increase in the number of cabins approved as a vehicle for ordering a reduction. He would have a right, in that situation, to withdraw the appeal. For these reasons, I have not contemplated making the kind of order the respondents by election ultimately asked for (in an appropriately diffident way). I should also make it clear that it has not been necessary for the Court to determine, as contemplated in s.4.4.(5A) whether the Council had sufficient planning grounds to justify its approval of the rezoning applied for on the conditions it set. This was not an appeal instituted by an applicant or by an objector within s.7.1A(2) in which the applicant needed to establish that his application should be approved or allowed, even though the Council had already been so persuaded. Even Mr Venn’s report, at paragraph 5.2.2 (acknowledging the existence of planning grounds justifying departure from the DPC) and at paragraph 5.2.6 (somewhat reluctantly agreeing to go as high as 18 units) indicates the Council’s decision could be supported. I express no views.
I agree with Mr Venn’s conclusions in paragraph 5.2.1:
“5.2.1 The proposal, as advanced by the Applicant, is at variance with the provisions of the Development Control Plan in the following respects:
a)The scale of the tourist facility proposed could not be described as ‘low-key’;
b)The scale of the accommodation component could not be described as ‘low-key’;
c)The accommodation component is not sub-ordinate to the tourist facility;
d)The site is within 200m of another allotment containing a tourist accommodation;
e)The intensity of development is in excess of that expected of a rural environment;
f) The intensity of development proposed is to be more
expected in an urban residential context;
g) The development si not consistent with the stated intent of
protecting the semi-rural character of the environs;
.......
5.2.8All the disputed conditions pivot about the notion of over-development and its implications for the character of the area. The semi-rural character and low-key nature can only be realistically and effectively promoted by:
a) Limiting the number of accommodation units to a level in the vicinity of 10-15;
b) Restricting the hours of operation of the restaurant and function room complex;
c) Restricting the on-site car parking accommodation;
d) Restricting the intensity of restaurant and function room development;
e) Avoiding dispersion of accommodation units around the site.
(While it may be premature to apply the principle mentioned as a matter of law, I note with interest the following paragraph:-
“5.2.9The application of the ‘precautionary principle’ would dictate, in a sensitive environment such as this, that intensity should be limited as suggested in this report. Over time, it is always possible for an application for further units to be made if appropriate, having regard to the assessment of known impacts.”)
If it matters, the intensity of development permitted by the Council (a fortiori that desired by Mr Law) is well in excess of anything that might follow subdivision within the existing zonings. Further, although the case is not decided on this ground, there is much to be said for the view that the proposed development in the local context includes “concentration of tourist accommodation” on its own, before reference is had to what lies within a 200 metre radius , and the very considerable amount of tourist accommodation within a 300 metre radius.
It is possible to adopt Mr Hughes’ summary of what he identified as “the tangible impacts” of Mr Law’s proposal based on the evidence of Mr Venn:-
“(a)Increased visitation (more people on the site and in particular more people on the southern most one third of the site):
(b) The opportunity for different types of visitation (large parties and bus tour packages involving accommodation);
(c) A much more significant built form atypical in the Mt Tamborine area at a concentration which necessarily involves a built form dominating the green space or semi rural atmosphere as seen both on the site and from off the site;
(d) More traffic (12% more traffic distributed throughout each day):
(e) More noise created by more noise sources on the site including more motor vehicles (movement, car door slams, engine starts) and more human activity. While not all of activity will be unacceptable some will be obvious and the opportunities for anti-social behaviour have simply increased.”
For reasons revealed above, the “less tangible impacts” are also of significance. The appellant, who bears the onus of persuading the Court his appeal should be allowed, has failed to satisfy that onus. There are insufficient planning grounds to justify the Court’s endorsing what he wishes to do, inconsistently with the requirements of the DCP.
The appeal is dismissed as it relates to condition (ii) set out in the Council’s letter of 10 September 1999. Mr Law has not pursued the appeal in respect of condition (xiii), which limited operating hours. Exhibit 16 sets out the terms of the Council’s agreement with Mr Law as to acceptable versions of the original conditions (x), (xix) and (xxi). While the respondents by election were not parties to such agreements, and are not bound by them, they raised no particular objections. The Court, in those circumstances, should be willing to incorporate those agreements, which on the face of things are unexceptionable, in its final orders. Before those are made, the parties will have an opportunity to consider these reasons and negotiate with a view to resolving matters still in issue such as the disposition of the approved cabins on the site.
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