Maller Holdings Pty Ltd v Gold Coast City Council
[2013] QPEC 51
•25 September 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maller Holdings Pty Ltd v Gold Coast City Council & Ors [2013] QPEC 51
PARTIES:
MALLER HOLDINGS PTY LTD
ACN 120 943 393
(Appellant)v
GOLD COAST CITY COUNCIL
(Respondent)and
NERANG COMMUNITY ASSOCIATION INC
(First Co-Respondent)and
DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Second Co-Respondent)FILE NO/S:
D405/09
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
25 September 2013
DELIVERED AT:
Brisbane
HEARING DATE:
8 July 2013 – 11 July 2013
JUDGE:
Searles DCJ
ORDER:
1. The application is not approved and the appeal is dismissed.
CATCHWORDS:
Application for a Development Permit for a Material Change of Use for a Transport Terminal – transportation and stabling of horses – “Our Living City – Gold Coast Planning Scheme 2003” – Park Living Domain – semi-rural residential area
Absence of proposed use from Table of Development – whether “undesirable or inappropriate” development warrants refusal of the application –– whether proposed use conflicts with character and amenity – Impact of heavy vehicle movements – tangible and intangible impacts –commercial uses intended to service urban populations – whether unsatisfied demand for Appellant’s business exists – whether sufficient grounds for approval notwithstanding conflict/s – public and private interests – absence of negative impact
Relevance of alternate sites – whether conditions too difficult to enforce
Integrated Planning Act 1997
Sustainable Planning Act 2009
Ecovale Pty Ltd v Gold Coast City Council (1999) 2 Qd R 35.
Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370.
Larsen & Ors v Caboolture Shire Council (1980) QPLR 64.
Blue Sky Pty Ltd v BCC & Anor (2010) QPEC 116.
Lewiac Pty Ltd & Ors v Gold Coast City Council (2003) QPLR 385.
Bowlden v Redland Shire Council (1971) 24 LGRA 331.
Lifnex Pty Ltd & Anor v Ipswich City Council (1998) QPELR 517.
COUNSEL:
Appellant: B. Job
Respondent: N. Kefford
First Co-Respondent: S. Holland
SOLICITORS:
Paramount Legal
McCullough Robertson
Spains Lawyers
TABLE OF CONTENTS
The appeal............................................................................................................................. 6
The land and locality............................................................................................................. 6
Surrounds.............................................................................................................................. 7
Application............................................................................................................................ 8
Council initial refusal of application..................................................................................... 8
Subsequent Council decision to support application............................................................ 9
Proposal............................................................................................................................... 10
Proposed activities on land................................................................................................. 12
Submitters........................................................................................................................... 14
Current disputed issues....................................................................................................... 16
Mr Grummitt’s perceived Scheme conflicts....................................................................... 16
Planning Scheme................................................................................................................. 17
Statutory Assessment Regime............................................................................................ 18
Town planning evidence..................................................................................................... 18
Joint planning report........................................................................................................... 19
Mr Grummitt’s joint report opinions............................................................................... 19
(A) Intent for the Park Living Domain..................................................................... 20
Noise........................................................................................................................... 21
Proposed acoustic fence.............................................................................................. 22
Mr Ovenden’s and Mr Reynolds’ response re Intent for the Park Living Domain.... 22
(B) Mr Grummitt’s opinion re conflict with Park Living Domain Place Code......... 24
Mr Ovenden and Mr Reynolds’ response re Park Living Domain Place Code.......... 25
(C) Mr Grummitt’s argument re Key Strategies........................................................ 25
(a) Growth Management Strategy – GM Policy 3............................................... 25
Response of Mr Ovenden and Mr Reynolds re Growth Management Strategy – GM Policy 3 27
(b) Urban Heritage and Character Strategy – UH Policy 2.................................. 28
Mr Ovenden’s response re UH Policy 2..................................................................... 30
Mr Reynolds’ response to Mr Grummitt re UH Policy 2............................................ 30
(D) Mr Grummitt’s argument re Park Living Land Use Theme................................ 31
Response of Mr Ovenden and Mr Reynolds re Park Living Land Use Theme.......... 32
(E) Mr Grummitt’s argument re Desired Environmental Outcomes......................... 32
Response of Mr Ovenden and Mr Reynolds re Desired Environmental Outcomes... 34
Relevance of alternate sites......................................................................................... 34
Individual Report Mr Ovenden June 2013......................................................................... 35
Reasonable expectations................................................................................................. 36
Character and Amenity................................................................................................... 38
Acoustic Fence................................................................................................................ 38
Vehicular Impacts........................................................................................................... 39
Mr Ovenden’s opinion re conflict with the Scheme....................................................... 41
Individual report of Mr Reynolds 19 June 2013................................................................ 42
Evidence of Dr Hassall 25 June 2013 (Maller)............................................................... 43
Dr Hassall’s conclusions re proposal............................................................................... 45
Dr Roberts’ report 25 June 2013 (Maller)....................................................................... 46
Evidence of lay witnesses............................................................................................... 47
Those in favour of proposal........................................................................................ 47
Those opposing the proposal....................................................................................... 47
Parties’ Arguments re conflict with Scheme....................................................................... 51
Maller’s Argument.......................................................................................................... 51
Intent of Park Living Domain......................................................................................... 51
Amenity...................................................................................................................... 51
Character..................................................................................................................... 55
Acoustic fence............................................................................................................ 55
Traffic movements...................................................................................................... 56
Commercial use servicing urban populations?............................................................ 57
Compliance with Growth Management Strategy....................................................... 57
Compliance with Urban Heritage and Character Strategy......................................... 58
Compliance with Park Living Land Use Theme......................................................... 58
Compliance with Desired Environmental Outcomes.................................................. 58
Undesirable or inappropriate use – Agreed Conflict.................................................. 59
Sufficient grounds for approval notwithstanding conflict......................................... 59
Council’s argument......................................................................................................... 59
Intent of Park Living Domain – Urban Activity........................................................ 59
Character and Amenity Impacts................................................................................. 62
Visual impact.............................................................................................................. 62
Impact of commercial vehicles.................................................................................... 63
Noise........................................................................................................................... 63
Presence of turning articulated vehicles...................................................................... 65
Council’s conclusion re character and amenity........................................................... 65
Population Growth Management Strategy – GM Policy 3......................................... 66
Urban Heritage and Character Strategy – UH Policy 2.............................................. 66
Park Living Land Use Theme..................................................................................... 66
Desired Environmental Outcomes.............................................................................. 67
Nature and extent of Agreed Conflict........................................................................ 67
Sufficient grounds for approval notwithstanding conflict......................................... 68
NCA’s argument............................................................................................................. 71
Conflict with Park Living Domain............................................................................. 72
Conflict with Park Living Domain Place Code.......................................................... 73
Strategic Planning Intent for Park Living Land Use.................................................. 74
NCA’s conclusion re conflict with Scheme................................................................ 75
Extent of conflict........................................................................................................ 75
Existing non-residential activities present or listed in Table of Development............ 77
Amenity...................................................................................................................... 78
Difficulty of enforcing proposed conditions.............................................................. 81
Sufficient grounds for approval notwithstanding any conflict?......................................... 83
Maller ground 1............................................................................................................... 83
NCA’s response to ground 1.......................................................................................... 84
Maller ground 2............................................................................................................... 84
NCA’s response to ground 2.......................................................................................... 84
Maller ground 3............................................................................................................... 84
NCA’s response to ground 3.......................................................................................... 85
Maller ground 4............................................................................................................... 85
NCA’s response to ground 4.......................................................................................... 86
Maller ground 5............................................................................................................... 87
NCA’s response to ground 5.......................................................................................... 88
Maller ground 6............................................................................................................... 88
NCA’s response to ground 6.......................................................................................... 88
Maller ground 7............................................................................................................... 89
NCA’s response to ground 7.......................................................................................... 89
Maller ground 8............................................................................................................... 89
NCA’s response to ground 8.......................................................................................... 89
Consideration of arguments................................................................................................ 91
Profile of proposed use....................................................................................................... 91
Is the proposed use compatible with surrounding uses?..................................................... 94
Principles governing interpretation of Planning Schemes................................................... 96
Are there any other conflicts with the Scheme apart from the Agreed Conflict?.............. 98
The Planning Scheme Structure...................................................................................... 98
Park Living Domain Intent............................................................................................. 99
Amenity of the Area..................................................................................................... 100
Place Living Domain Code........................................................................................... 102
Growth Management Strategy GM Policy Figure 3..................................................... 103
Urban Heritage and Character Strategy UH Policy Figure 2....................................... 103
Park Living Land Use Theme....................................................................................... 103
Desired Environmental Outcomes (DEO’s)................................................................. 104
Extent of overall conflict with Scheme........................................................................ 104
Are there sufficient grounds for approval of the application notwithstanding the conflicts with the Scheme? 105
The appeal
This is an appeal concerning a development application made to Gold Coast City Council (“Council”) by the Appellant (Maller) seeking a Development Permit for a Material Change of Use for a Transport Terminal (Horse Transport Depot) and Caretakers Residence and Operational Works for Changes to Ground Level.[1] The Operational Works aspect is not in dispute.
[1]Exhibit 2, page 223.
The land and locality
The land, lot 2 on RP136351, is located at 277 Beaudesert-Nerang Road, Nerang, some two kilometres west of the commercial centre at Nerang with access to the Pacific Motorway, approximately 500 metres past that centre.[2]
[2]Exhibit 4, page 3.
It is located on the northern side of the Beaudesert-Nerang Road, approximately 170 metres east from Crane Crescent and 520 metres west of Willawong Crescent, has an area of 2.4 hectares, and is partly cleared, with a large house, associated sheds and a wastewater treatment system. A five metre wide driveway provides access from Beaudesert-Nerang Road to the house in the north-west corner of the property and to a raised gravel, rectangular pad where the proposed use is intended to be situated.
Surrounds
On the southern side of Beaudesert-Nerang Road there are primarily traditional size residential allotments of between 600m2 and 1,000m2, with larger lots of between 4,000m2 and 4 hectares on the northern side where the subject land is located.
The site adjoins Crane Creek to the north, and beyond this are rural residential lots stretching north and west towards the lower slopes of the hills forming the Nerang State Forest. The town planning experts, Mr Ovenden (Maller), Mr Reynolds for (Council) and Mr Grummitt for the First Co-Respondent (NCA), describe the land in their joint report as being located in a pocket of rural residential development bounded by Beaudesert-Nerang Road to the south, the commercial area of Nerang to the east, the Nerang State Forest to the north, and the Beaudesert-Nerang (Mt. Nathan) Road to the west.[3] Mr Grummitt, however, did have some reservations[4] as to the description of it as a pocket given its size.
[3]Ibid page 4.
[4]Transcript of proceedings (10 July 2013, page 35, lines 5-12).
The majority of the lots surrounding the land are currently used for low intensity rural-residential uses including hobby farming and keeping of horses. Typically, the lots are improved with large dwellings separated by patchy areas of vegetation. Adjoining the land to the west is a large property that gains access via Crane Crescent and contains a number of horse stables and paddocks fronting Beaudesert‑Nerang Road, together with a centrally located private dressage facility.
The eastern adjoining site has long-established yards used for keeping horses, and, further to the east on the north side of Crane Creek, with existing access to Beaudesert-Nerang Road, is Paradise Country Tourist Farm. This property has recently been purchased by the Council which intends to create a community facility thereon, although the proposed specific activities are not known. Presently, it is used for the keeping of horses, as are other large properties including lots fronting Beaudesert-Nerang Road west of Crane Crescent and a large property at 185-207 Beaudesert-Nerang Road situated west of where Crane Creek crossed Billabirra Crescent. Other non-residential activities in the immediate locality include a plant nursery, a bulk garden supply outlet and a cattery which, according to the town planners, are uses typically found in such semi-rural environments.
Application
The Application of 12 December 2008 followed the issuing of a Show Cause Notice to Maller concerning the importation of fill onto the site and its use as a horse transport facility without approval.[5] The only relevance of this unlawful use is that some of the lay witnesses make reference to those activities, as will be particularised later.
[5]Exhibit 20, para 3.1.1.
Council initial refusal of application
Council initially refused the application, conveying its decision by notice dated 7 July 2009. The refusal rested on the following grounds:-
(a) “The proposed Transport Terminal (Horse Transfer) would compromise the Desired Environmental Outcomes of Ecol. 4, Soc. 1 & Soc. 5 of the ‘Our Living City’ Gold Coast Planning Scheme;
(b) The proposed Transport Terminal (Horse Transfer) conflicts with the Park Living Land Use Theme of the ‘Our Living City’ Gold Coast Planning Scheme;
(c) The proposed Transport Terminal (Horse Transport) conflicts with the Intent of the Park Living Land Domain of the ‘Our Living City’ Gold Coast Planning Scheme;
(d) The proposed Transport Terminal (Horse Transfer) will produce Inappropriate & Unacceptable impacts on amenity, in particular noise, traffic, hours of operation and privacy;
(e) The proposed Transport Terminal (Horse Transfer) conflicts with the Intent of PC12 & PC13 of the Park Living Domain Place Code of the ‘Our Living City’ Gold Coast Planning Scheme;
(f) The proposed Transport Terminal (Horse Transfer) conflicts with the Intent of PC7 of the Natural Wetland Areas and Natural Waterways Constraint Code of the ‘Our Living City’ Gold Coast Planning Scheme; and
(g) The Applicant has failed to demonstrate sufficient grounds or demonstrated need to approve the development despite the conflict with the Gold Coast Planning Scheme.”[6]
[6]Exhibit 4, page 6.
Subsequent Council decision to support application
As a result of negotiations since the July 2009 refusal and the joint experts’ meeting process, Council now supports the application subject to a draft conditions package to accompany any approval.[7]
[7]Exhibit 1, page 52.
Proposal
The draft conditions include the following:-
(a) restrictions on horse transport delivery to and from the site which must not take place between 10pm and 6am on more than one occasion in any 7 day period, and on more than 4 occasions in any 90 day period. Transportation is not to be scheduled to arrive or leave between those hours, with arrivals in that period only permitted as a result of an emergency;
(b) the keeping of records tallying the number of truck movements;
(c) a 30m covenant area from Crane Creek to be rehabilitated and maintained and protected in perpetuity by a registered covenant;
(d) a restriction upon more than 6 horses roaming the property at any one time without a permit under Council’s Local Law, being the maximum number which could roam the site without a permit irrespective of the subject application;
(e) compliance with an approved site based management plan;
(f) trucks to enter and exit the site in forward gear only, not to reverse at night, reverse alarms not to be used between 10pm and 7am, and the use of compression braking within the site prohibited at all times;
(g) other noise attenuation measures, including an acoustic barrier, sound-reducing mats on truck access ramps while loading or unloading horses, use of high pressure hoses permitted only between 7am and 6pm, and requirements that any new mechanical equipment must comply with the stated noise criteria;
(h) landscaping;
(i) keeping of a complaints register with any noise complaint to be notified to the Council within 48 hours of being recorded;
(j) stormwater management; and
(k) waste management.
Maller’s business
Maller, trading as Sydney Horse Transport, conducts the largest horse transport business in Australia[8] stretching along the east coast of Australia and within south-east Queensland. It presently transports between 800 to 1000 horses each week within Victoria and New South Wales and Queensland.[9] Mr Maley, a director of Maller, gave evidence that, of all horses transported, between 50 per cent (400 to 500) and 70 per cent (560 to 700) were current racehorses, and, of that number, some 70 per cent (between 280 – 350 and 392 – 490) were involved in racing in Queensland metropolitan racetracks, namely Gold Coast, Eagle Farm and Doomben in Brisbane and Caloundra on the Sunshine Coast.[10] The balance included horses to be taken to equestrian farms and standard breed horses for the trotting industry.
[8]Exhibit 3, para 2.
[9]Ibid para 13.
[10]Transcript of Proceedings (9 July 2013, pages 10-11).
The proposed facility is to be used to deliver, and temporarily stable, horses to be then transferred in other smaller vehicles to their ultimate destination. That could be anywhere in south-east Queensland from a training or racing facility to a local horse owner/trainer.
The trucks used are both articulated and rigid bodied. The larger articulated trucks are used for interstate transport and are generally loaded with 10 to 15 horses.[11] The smaller rigid bodied trucks range in capacity from six to nine horses. Mr Maley explained that, for reasons of comfort, the trucks are never loaded to full capacity but generally to about 75 per cent capacity.[12] Exhibit 23 is an extract from Maller’s website showing coloured photographs of both rigid and articulated vehicles. Mr Maley in cross-examination identified from Exhibit 23, a website photograph of his vehicles, that, of the bottom three vehicles, the middle and right hand ones were interstate articulated vehicles and the one on the left was a rigid vehicle. There is no doubt they are all large vehicles.
[11]Ibid page 8, lines 14-19.
[12]Ibid page 8, lines 5-10.
Proposed activities on land
Maller moved its administration offices from Sydney to the Gold Coast in 2005 and presently operates on a much smaller site of 1,600m2 at 10 Russell Court, Bundall within the Equestrian Precinct. That site presents significant operational difficulties associated with the manoeuvring of the larger vehicles, resulting from the size and configuration of the site. The larger trucks have to be reversed onto the site, presenting safety issues given the movement of horses and people in the vicinity. When cars are parked opposite that property, which Mr Maley says is common, the manoeuvring of vehicles becomes nearly impossible, to the extent that on race days the property cannot be used.[13] Further, there is no caretaker facility on that site. Such a facility is desirable given some horses are prone to travel sickness. In the current proposal there is a caretaker’s residence intended to be occupied fulltime by an employee who will be responsible for the general property maintenance, assisting with the loading and unloading of horses and organising any overnight accommodation required by drivers. Since having to cease operations on the Nerang property pending the outcome of this appeal, Maller has used a property in Advancetown as the initial delivery site for horses travelling beyond the Gold Coast or where access to the Bundall Precinct is problematic.[14]
[13]Transcript of Proceedings (9 July 2013, page 13); Exhibit 3, paras 23-27.
[14]Exhibit 3, para 29.
Mr Maley said[15] that, in the event of approval, Mondays would be the busiest (sic) days, following weekend racing with typically five trucks, predominantly rigid, accessing the property in response to trainers, for instance, wanting their racehorses taken to spelling paddocks at Beaudesert, Toowoomba or the Sunshine Coast. Other horses would be picked up from and returned to farms.
[15]Transcript of Proceedings (9 July 2013, pages 7-9).
In an average week there would be some days where trucks will not go out at all and others when four to five would be moving. He estimates an average of four to five trucks a day. Of Maley’s present fleet of 32 vehicles, nationally, nine are located in east and south-east Queensland[16], five of which are based on the Gold Coast[17]. The projected four to five truck movements a day would be predominantly rigid rather than articulated vehicles.[18]
[16]Exhibit 3, para 11.
[17]Transcript of Proceedings (9 July 2013, page 9, line 6).
[18]Ibid lines 10-19.
For horses being transported within south-east Queensland a typical departure time would be 6.30am to 7.30am, returning after racecourse stables close around 4.00pm or 5.00pm.[19] As to interstate transport, trucks are scheduled to leave Sydney after the evening peak hour traffic and generally arrive in Queensland between 6.00am and 7.00am. The return interstate journey would commence after 7.00pm given required drivers’ resting period.[20]
[19]Ibid lines 21-26.
[20]Ibid page 10, lines 3-5.
Mr Maley said any on-site truck movements after 8.00pm would be very rare. On average at any given time there would be between six and eight horses in the stables, with not many being kept overnight, and none roaming the property.[21]
[21]Ibid lines 14-15; Ibid page 11, lines 17-21.
Submitters
There were three properly made submissions from the First Co-Respondent NCA, Nerang Riverkeepers and Mr and Mrs Griffiths of 49 Birdlife Court, Nerang,[22] raising the following objections:-
[22]Exhibit 2, pages 600-612; Exhibit 30.
(a) The proposal is for a commercial enterprise in the form of an “Interstate Heavy Vehicle Transport Company” to operate 24 hours per day, seven days per week. An interstate Transport Terminal is inconsistent with the desired outcomes intended for the present and future development of a Domain listed as “Park Living”, and is in direct conflict with the Park Living Domain Key Objectives;
(b) The development works encroach into the riparian zone of Crane Creek. The Applicant cannot guarantee the development will not pollute the water catchment and creek system. Additionally, there is no sewerage to the proposal site. The Crane Creek system is already showing signs of stress due to increased development of its catchment, and its future sustainability is in danger.
(c) The development disrupts the natural water flow paths across the lot, which has been further impeded by the construction of a dam on the flow path of an overland tributary of Crane Creek;
(d) The quality of the water in the new dam and the impact of outflows on the Impoundment during rain events are a concern;
(e) The sediment from the fill used for construction of the large hardstand appears to have entered the riparian zone and waterway of the creek;
(f) Trees have already been cleared prior to the lodgement of the Material Change of Use application;
(g) The large amount of imported fill required to re-profile the property and change its topography is objected to;
(h) Slow trucks entering and exiting the property on a regular basis is a road safety issue as the morning and evening sun creates poor visibility on that section of the road. Nerang-Beaudesert Road curves at both sides of the allotment and the driveway is obscured to northbound motorists by trees. Furthermore, street lighting of the driveway area is poor;
(i) The heavy vehicles will create noise and dust issues;
(j) A 30 meter buffer zone between the development and the waterway is insufficient to protect Crane Creek from being adversely impacted;
(k) The application does not specify how long the horses will be held at the site or the number of horses to be kept. The process for treating and removing waste from the feed and manure is not detailed;
(l) The shed proposed for the site is of an inappropriate magnitude for the Park Living Domain.
(m) There is concern as to the number of trucks, and the resulting quantity of fuel, to be stored on the site; and
(n) The development will impede the introduction of new weed species into the surrounding environment.
Current disputed issues
As a result of discussions and the joint experts’ reports process, the issues in dispute have narrowed and were identified in an order of his Honour Judge Wall QC of 29 April 2013 as:-
(a) whether approval of the subject development application would conflict with the Respondent’s Planning Scheme on the bases identified by Mr Grummitt in the joint expert report of the town planning experts dated 3 and 4 December 2012; and
(b) if so, whether there are sufficient grounds to justify approving the subject development application despite the conflict.
Mr Grummitt’s perceived Scheme conflicts
Mr Grummitt in evidence[23] identified the conflicts with the Scheme as:-
(a) impacts upon amenity;
(b) impacts upon character; and
(c) his opinion that the use proposed is a commercial use which services urban populations.
He also relied on the inconsistency of the use, arising from its omission from the relevant Table of Development in the Park Living Domain Intent[24], which in terms of the Scheme[25] renders the development “undesirable or inappropriate” in the relevant Domain. Both Maller and the Council agree this results in a conflict with the Scheme[26] (Agreed Conflict). The Council expressed some concern[27] that Mr Grummitt had introduced a new issue at trial, namely the impact of Maller’s vehicles turning into the land from Beaudesert-Nerang Road in slowing down traffic flow, but Mr Grummitt confirmed that this aspect was part of the abovementioned character impact conflict.[28]
[23]Transcript of Proceedings (10 July 2013, page 45, lines 9-38).
[24]Exhibit 10, page 157.
[25]Ibid page 152, para 4.6.1.
[26]Transcript of Proceedings (8 July 2013, page 23, line 26 [Appellant]; page 26, line 19 [Council]).
[27]Council’s submissions, para 14.
[28]Transcript of Proceedings (10 July 2013, page 57, line 13).
Planning Scheme
The relevant planning scheme is Our Living City – Gold Coast Planning Scheme 2003[29] (Scheme). The land is within the Park Living Domain. Section 4.6.1 of the Scheme relating to that Domain provides:
“Any Material Change of Use not individually listed in section A of the relevant Table of Development will be treated as impact assessable except where this would conflict with the provisions of Schedule 8 of the IPA … Any use not listed in section A of the Table of Development should be considered as undesirable or inappropriate in the Domain to which the Table of Development applies.” (Emphasis added)
As I have said, it is common ground the proposed use is not in section A of the relevant Table, and no conflict with Schedule 8 of the Integrated Planning Act 1997 exists, so the issue is not whether a conflict with the Scheme thereby exists but rather the extent of that conflict and whether any other conflict exists and, if so, whether sufficient grounds exist for approval despite any conflict/s.
[29]Exhibit 10.
Statutory Assessment Regime
At the time the Application was made, the now repealed Integrated Planning Act 1997 (“IPA”) was in force. Pursuant to s 819 of the current Sustainable Planning Act (“SPA”) IPA is the relevant legislation and the appeal must be heard and decided as though SPA had not commenced. IPA s 4.1.50 places the onus upon Maller to establish the appeal should be allowed. The application is impact assessable under s 4.1.52. The court now stands in the shoes of the assessment manager and must determine the matter having regard to those matters set out in s 3.5.5 of IPA and determine the matter in accordance with s 3.5.14. That last mentioned provision provides that the court’s decision as assessment manager must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict. In that context, “grounds” means matters of public interest and does not include the personal circumstances of an applicant owner or interested party.[30] Any such conflict must be plainly identified.[31]
[30]See definition of “grounds”, IPA Schedule 10.
[31]Fitzgibbon’s Hotel Pty Ltd & Ors v Logan City Council & Anor (1997) QPELR 208.
Town planning evidence
The three town planners, Mr Ovenden (Maller), Mr Reynolds (Council) and Mr Grummitt (NCA) provided a joint report[32] and individual reports.[33]
[32]Exhibit 4.
[33]Exhibit 5 (Ovenden), Exhibit 13 (Reynolds) and Exhibit 20 (Grummitt).
Joint planning report
The joint report dated 4 December 2012 sets out the definitions of the two uses proposed, namely:-
“Caretaker’s Residence
Any dwelling used or intended to be used for caretaker purposes, where a person residing in the dwelling is employed on the site and the dwelling is used in connection with an industry or other use conducted on the same parcel of land. The term includes any dwelling unit provided for a person engaged in a use lawfully established on the land. It does not include any dwellings made available for private rental purposes.Transport Terminal
Any premises used, or intended to be used, for the purposes of an airline goods terminal, bus depot, road transport goods terminal, rail goods terminal or a terminal for water-borne goods. This term includes a repository for temporary storage of goods before re‑shipment and a terminal used solely for the garaging and basic maintenance of fleet. It does not include a Transit Centre.”[34][34]Exhibit 4, para 4.1.1.
Mr Grummitt’s joint report opinions
All planners agreed the proposal is to be assessed against the whole Scheme. Mr Grummitt identified the following as relevant:-
(a) the Intent for the Park Living Domain[35];
(b) the Intent for the Park Living Domain Place Code[36];
(c) Key Strategies, namely:-
(i) Population Growth Management Strategy – GM Policy 3[37]; and
(ii) Urban Heritage and Character Strategy – UH Policy 2[38];
(d) Park Living Land Use Theme[39]; and
(e) desired environmental outcomes (DEOs) Soc 1 and Soc 5.[40]
[35]Exhibit 10, page 157, para 1.
[36]Ibid page 164.
[37]Ibid page 53 para 2.3.
[38]Ibid page 88-89.
[39]Ibid page 101.
[40]Ibid page 44 (Soc.1), page 37 (Soc .5).
Mr Grummitt expressed the following opinions of the proposal against each of the above Scheme provisions:-
(A) Intent for the Park Living Domain
The Intent for the Park Living Domain is expressed in the Scheme as follows:-
“Chapter 2 – Park Living
1.0 Intent
The purpose of this Domain is to provide a variety of opportunities for low density residential activity within areas of semi-rural landscapes, and to maintain and enhance a parkland living environment as a transitional area between the urban parts of the City and the rural and natural landscapes of the hinterland. Key objectives include:
§ensuring that the Park Living areas of the City are developed and maintained to retain high amenity for residential activity on large lots, while preserving the landscape character and important topographical features of these parts of the City;
§conserving nature conservation values within the Domain;
§promoting the conservation of wildlife habitat;
§protecting Park Living areas from encroachment by urban activity, including commercial uses intended to service urban populations;
§encouraging appropriate productive land uses such as farm forestry; and
§providing for reticulated water supply, electricity and telecommunications services to all residential lots created in this Domain.”
Mr Grummitt considers the most relevant of the above objectives to be the first and fourth.
Noise
Mr Grummitt raised acoustic issues as an impact on the amenity of the area, but at the date of the joint report, 4 December 2012, the acoustic experts had not completed their further joint report of 22 March 2013[41] in which agreement on all outstanding acoustic issues was recorded. Mr Grummitt acknowledged in evidence[42] that the acoustic experts had agreed the noise levels would be within normally acceptable criteria, but he left open the issue of whether the residents would be aware of that noise, which he said was a different question touching upon amenity.
[41]Exhibit 1 page 50.
[42]Transcript of Proceedings (10 July 2013, page 45, line 40 – page 46, line 45).
As to the finally resolved acoustic issue, the final report of the acoustic experts of 20 March 2013 provided that s 8 of the draft conditions dealing with noise[43] be amended to include a condition:-
“that the roof over the truck washroom have a wall constructed along the length as shown in red on the plan attached to the report, which wall is to have a mass density of 12.5kg/m2 constructed ground to roof with no gaps at floor/roof.”
I cannot see that this condition has been included in the draft conditions package, but it can be inserted if need be.
[43]Exhibit 1, page 54.
Proposed acoustic fence
Mr Grummitt expressed the view that the proposed 3m high, solid timber acoustic fence, agreed by the acoustic experts to ameliorate acoustic impacts, would have both a visual impact upon adjoining properties and also an impact on the light and breezes enjoyed by adjoining properties. The latter concerns as to light and breezes were later conceded by him not to be in issue, leaving only the issue of visual impact.[44]
[44]Transcript of Proceedings (10 July 2013, page 54, line 20 – page 55, line 25).
Finally, in relation to the Intent of the Domain, Mr Grummitt said the proposed use as a Transport Terminal was a commercial activity normally associated with the servicing of an urban population, against which the Domain is to be protected in terms of the Intent. That is, the proposal would service the racing industry, whose venues are predominantly located in urban areas, and which provide enjoyment for urban populations. It thereby services those urban populations, giving rise to a conflict with the fourth bullet point objective – “protecting Park Living areas from encroachment by urban activity, including commercial uses intended to service urban populations”.
Mr Ovenden’s and Mr Reynolds’ response re Intent for the Park Living Domain
Mr Ovenden and Mr Reynolds in response assert the 3m acoustic fence requirement does not represent an unreasonable outcome in the circumstances given that surrounding lots have large stables of a similar or larger scale and fences and landscaped screening. In their view, the topography of the site renders it unlikely that the fence would be visible from the road or surrounding properties given the vegetation along the site’s boundaries. Pointing to the abovementioned Intent, they point to the opening words of the statement to the effect that the purpose of the relevant Domain is to provide a “variety of opportunities for low density residential activity within areas of semi‑rural landscape”.
As to the issue of the use being a commercial one intended to service the urban population, they make these points:-
(a) Whilst accepting the use is commercial in nature, it is not overtly commercial;
(b) There are no dominant public views of the proposed activity;
(c) Horse-orientated activities already exist throughout the local area;
(d) The site is within close proximity to urban limits as mapped in the Scheme and within 250-300 metres of the Nerang Local Area Plan boundary;
(e) The site is located on the main arterial road to Nerang centre from the hinterland;
(f) Maller picks up and delivers to a mixture of rural properties and equine precincts rather than residential, commercial or industrial areas;
(g) The business relies on being able to stable horses on-site, an activity generally only appropriate in rural or semi-rural areas or equine precincts; and
(h) The neighbours immediately to the east and west of the site support the proposal, though in cross-examination Mr Reynolds conceded this was an irrelevant consideration.[45]
[45]Transcript of Proceedings (11 July 2013, page 14, line 45 – page 15, line 5).
(B) Mr Grummitt’s opinion re conflict with Park Living Domain Place Code
Mr Grummitt points to the purpose of the Park Living Domain Place Code[46] which is expressed as follows:-
“5.0 Park Living Domain Place Code
[46]Exhibit 10, page 164.
5.1 Purpose
This code seeks to ensure that the Park Living areas of the city are developed and maintained to retain high amenity for residential activity on large lots, while preserving the landscape character and important topographical features of these parts of the City. This code also seeks to:
•conserve nature conservation values within the Domain;
•maintain a distinctive and low density living environment; and
•maintain and enhance a high standard of private residential amenity for residents in a Park Living environment within semi-rural landscapes.”
He says that purpose expresses a clear and strong emphasis upon the preservation of landscape character and the retention of a high standard of private residential amenity. Any negative impacts upon that landscape character or high amenity will result in a conflict with that Intent.
Mr Ovenden and Mr Reynolds’ response re Park Living Domain Place Code
Mr Ovenden and Mr Reynolds identify Mr Grummitt’s concern as the visual impact of the proposed acoustic fence and repeat their response to the alleged conflict with the Intent for the Park Living Domain above to conclude that no conflict would arise.
(C) Mr Grummitt’s argument re Key Strategies
As I have said, the two strategies Mr Grummitt relies upon are GM Policy 3 of the Growth Management Strategy and UH Policy 2 of the Urban Heritage and Character Strategy. Dealing with each in turn:-
(a) Growth Management Strategy – GM Policy 3
This policy is in these terms[47]:-
[47]Ibid page 53.
“2.3 GM Policy 3
Protection of land identified for rural use, nature conservation areas, open space and for other non-urban purposes from urban residential development.
2.3.1 Explanation
Non-urban land that is in the vicinity of areas designated or used for urban purposes can be significantly affected by speculative activity. Unrealistic expectations that land will be converted to residential use can unnecessarily inflate land values and provide unsustainable increases in land value for properties intended for non-urban activities, with associated costs for bona fide non-urban activity. In addition, there is increasing pressure on open space and recreation areas, such as golf courses, to be developed for higher order urban purposes. As the City grows, the community places increased importance on the need to protect open space and recreation areas. As there is already sufficient land designated for urban purposes, rural, open space, recreational and other non-urban land should not be encroached upon for residential purposes or other higher order urban uses.2.3.2 Planning Objectives to Support GM Policy 3
GM 3.1 to contain urban development within planned urban designated areas.GM 3.2 to maintain a sharp division or 'hard edge' to the built-up urban area by favouring incremental development rather than dispersed development.
GM 3.3 to clearly show the development intent for those parts of the City that are adjacent to the existing and proposed future limits of urban development.
GM 3.4 to protect open space and recreation areas (such as golf courses) from development of higher order urban uses.”
Continuing his argument that the use is a commercial use closely associated with urban purposes, primarily the Gold Coast Turf Club at Bundall which is essentially a recreation facility for the residents of the Gold Coast, Mr Grummitt says the site is outside the areas planned for urban purposes. That is confirmed, he says, by its inclusion as within the Large Habitat Systems area on Planning Strategy Map PS-3 – Conservation Strategy Plan and exclusion from those areas noted as committed to urban purposes.
It is clear from the policy, he says, that non-urban land should not be encroached upon for residential purposes or for other higher order urban purposes and that areas designated for urban purposes are to have a single “hard edge” to avoid incremental encroachment of the urban into non-urban areas.
Finally, Mr Grummitt considers the type and frequency of the heavy vehicles utilised by Maller represents a higher order urban use not normally expected in the Park Living areas, and that should not be permitted beyond the boundaries of designated urban areas.
Response of Mr Ovenden and Mr Reynolds re Growth Management Strategy – GM Policy 3
Mr Ovenden and Mr Reynolds considered GM Policy 3 as irrelevant as it relates to urban residential development, which is not in contemplation in the present proposal. Lest the court take a different view, they made the following comments:
(a) The use is not closely associated with urban purposes, namely the Gold Coast Turf Club, as Maller picks up and delivers horses from and to a variety of rural properties and equine precincts throughout Queensland and other states;
(b) The use is primarily for stabling of horses and their transfer to vehicles for on-movement, which is compatible with present activities on surrounding sites where there are stables;
(c) Accepting that the Park Living Area is not intended to be developed for intensive urban purposes, Planning Strategy Map PS-3 relied upon by Mr Grummitt does not support that argument. Whilst it identifies conservation values across the site, it does not promote or deter urban development. Further, the map is not cadastrally-based. But in any event, Crane Creek, identified as a habitat area, is to be protected and enhanced by the proposal;
(d) Whilst accepting that the locality is already utilised for low density residential activities, they note the pre-existing earlier encroachments of urban on residential use, namely the Retirement Home, Cattery, Nursery and the Old Paradise Country Tourist Farm earlier referred to. Against that background, the proposed use is not out of character and is consistent with objective TM 2.5 promoting the identification and conversion of residential land that would be more suitable to non-residential purposes especially for employment generation activities;
(e) Finally, in relation to Mr Grummitt’s concern as to the type and frequency of vehicles, which they acknowledge is an amenity concern in Mr Grummitt’s mind rather than a traffic issue, they repeat their argument as to the absence of visual impacts from the acoustic fence, and point out that the vehicles will access the land directly from an arterial road upon which similar such vehicles are expected to travel. Once they are on the site, the activity is well set back and screened from the local area with no obvious public or private views.
(b) Urban Heritage and Character Strategy – UH Policy 2
This policy is in these terms[48]:-
“2.2 UH Policy 2
[48]Ibid page 89.
The conservation and enhancement of urban character.
2.2.1 Explanation
Gold Coast City comprises a number of distinctive character areas, based upon geography, topography, land use and history. The lifestyle and cultural characteristics of its residents have further defined these areas. A broad assessment suggests that at least nine major character areas exist, although these can be further subdivided into localised character areas. (The nine broad character areas are shown on Gold Coast City Character Areas Planning Strategy Map PS10).
New development should respect and enhance the urban character, and aim to strengthen the sense of identity and community in the local area.
2.2.2 Planning Objectives to Support UH Policy 2
UH 2.1 to conserve and enhance the distinctive landscape and history of the sugar growing area in the north of the City, and the special relationship between this area and the traditional town centre of Beenleigh.
UH 2.2 to recognise the existing landscape character of the Albert Corridor in proposed new residential and industrial development.
UH 2.3 to conserve and enhance the natural environment and undeveloped character of the Bay Islands between the Broadwater and the open waters of Moreton Bay.
UH 2.4 to recognise the emerging urban character of Hope Island as a location for resort and recreation complexes of clustered, planned communities. These are of consistent and cohesive architectural expression, placed in a predominantly open space environment, and isolated from the rest of the City.
UH 2.5to conserve and enhance the predominantly open character of the Broadwater and the surrounding coastline, with an emphasis on boating and recreational activity.
UH 2.6 to conserve and enhance Southport's urban character, derived from its role as the traditional administrative and commercial centre of the region.
UH 2.7 to recognise the particular urban character of existing suburban estates.
UH 2.8 to conserve and enhance the unique urban character of the City's canal estates, including the distinctive subdivision pattern and the architectural form of the housing contained within these estates.
UH 2.9 to conserve and enhance the unique urban character of the beach strip and adjacent urban areas between Coolangatta and Main Beach, recognising the presence of specific local character within the beach strip.
UH 2.10 to conserve and enhance the rural landscapes and open space character of Gold Coast City hinterland, its early settlements, river valleys and mountains.”
As to UH Policy 2, Mr Grummitt says that the Planning Strategy Map PS-10 in the Scheme identifies the land as being within the River Valleys Character Area which triggers the operation of objective UH 2.10 above, which speaks of conserving and enhancing this character area. In his view, any land use that does not conserve and enhance the rural landscapes and open space character of the Gold Coast hinterland will conflict with that objective.
Mr Ovenden’s response re UH Policy 2
In response to Mr Grummitt’s concerns, Mr Ovenden points to the draft conditions package which requires substantial rehabilitation and maintenance of the part of the site adjoining Crane Creek and repeats that the proposed use, being essentially the keeping and transportation of horses, is consistent with the surrounding character of the area. He also refers to the tourism strategies[49] and speaks of the land use and development of the city supporting and enhancing those qualities that contribute to its tourism role. He says that the proposal will provide transportation services to and from major racing events on the Gold Coast, which is an important tourist drawcard.
[49]Ibid page 62.
Mr Reynolds’ response to Mr Grummitt re UH Policy 2
Mr Reynolds agrees with Mr Ovenden’s comments but says that UH Policy 2 is of oblique relevance as it relates to the urban character of urban areas and there is nothing in the proposal which will erode the character of urban areas because the use is too minor and hidden away to have any bearing on this policy objective.
(D) Mr Grummitt’s argument re Park Living Land Use Theme
The Park Living Land Use Theme[50] is expressed in these words:-
“Chapter 5 Park Living
The Park Living Land Use Theme acknowledges the lifestyle and amenity aspirations of those residents who choose to reside in a semi-rural or parkland environment on large lots that do not offer the full range of normal urban services. This Land Use Theme therefore has two main functions:
•to retain and enhance the present amenity of these areas, and manage the expectations for human services, infrastructure and transport so that these are not raised to the same level as that provided in the urban residential areas; and
•to reinforce that these areas have been established with a particular purpose in mind, that is, for those (sic) who choose to live in a park-like environment on large allotments. They are not intended to become the future urban areas of the city. Effectively, these areas are an end state form of development.”
[50]Ibid page 101.
Mr Grummitt also points to the Planning Intent for this Land Use Theme[51] and to the statement that:-
“In all Park Living areas, land uses that would significantly disrupt the character and/or amenity of the area would be considered inappropriate.”
[51]Ibid para 1.0.
Mr Grummitt points to the two functions of the Land Use Theme, namely to retain and enhance the present amenity and to reinforce that Park Living designation is an end state form of development which he says is reinforced by the reference to the hard edge in GM Policy 3 referred to above. This, he says, reinforces the necessity for any land use to retain and enhance the existing amenity.
He repeats his argument that the proposed use is an urban use intended to service urban populations, and the necessity of the significant draft conditions package to mitigate impacts on the present amenity demonstrates the proposed use is out of character with the present amenity of the area. In that conditions package he points particularly to the restrictions on transport movements and the proposed acoustic fence. That is what the relevant Land Use Theme seeks to retain and enhance. The use constitutes a conflict with the Land Use Theme.
Response of Mr Ovenden and Mr Reynolds re Park Living Land Use Theme
Mr Ovenden and Mr Reynolds repeat their earlier position that any impact on the amenity of the area will be negligible and that the proposal will maintain the existing character of the area and will protect and enhance existing ecologically significant areas. They repeat their earlier point concerning the existing encroachment of other uses into the area. As to the conditioning of limiting transport movements and the construction of the acoustic fence, both, they say, will allow the proposal to operate without any negative impact upon surrounding residential amenity.
(E) Mr Grummitt’s argument re Desired Environmental Outcomes
Mr Grummitt sees a conflict between the proposal and desired environmental outcomes (DEOs) Soc 1 and Soc 5.[52] He relies on the following parts of the Scheme dealing with the relevant DEOs:-
[52]Exhibit 10, pages 34 and 37.
“1.0 DEO Soc. 1
The establishment, conservation and enhancement of local character and the promotion of a distinctive local identity and sense of place for the various communities of Gold Coast City.
1.2 Planning Objectives To Support DEO Soc.1
Soc.1.1to preserve the distinctive character of designated rural and non-urban areas, thereby facilitating a clear distinction from urban areas.
1.3 Planning Measures to Support DEO Soc.1
This DEO is particularly important to the Key Strategies for Urban Heritage and Character and City Image and Townscape.”
“5.0 DEO Soc.5
The maintenance of residential amenity, through the minimisation of any environmental harm or adverse social impacts occurring from the construction and operation of commercial, community, tourism, industrial and extractive industry activities.
5.1 Explanation
Gold Coast City's competitive strengths are strongly linked to its attractive lifestyle attributes. Residential amenity translates to good quality of life. In a context of competing activities and rapid urban growth, it is important that these lifestyle values are identified and considered in land use and development decision making.
The Planning Scheme is able to provide considerable influence in this regard. Initially, it is able to position the various land uses so as to separate conflicting activities, through the Land Use Themes, Domains and LAP provisions. It is then able, through the application of the various codes for assessing development proposals, to further minimise potential conflicts through controls on construction activity, the design and layout of the development and the nature of its operations.
5.2 Planning Objectives to Support DEO Soc.5
Soc.5.1.to ensure that land uses that have the potential to conflict with residential amenity are adequately separated and/or buffered from residential areas.
Soc.5.2.to ensure that the design and layout of development minimises any potential for activities to adversely impact upon the amenity of nearby residential premises.”
Mr Grummitt considers that the proposal is a commercial activity of the type the above DEO seeks to protect against by minimising environmental harm or adverse social impacts. As to its reference to the protection of residential amenity from negative impacts, he considers the impacts upon visual amenity are an issue.
Response of Mr Ovenden and Mr Reynolds re Desired Environmental Outcomes
Mr Ovenden and Mr Reynolds rely on earlier arguments set out above and repeat that any impact on the residential amenity would be negligible.
Relevance of alternate sites
In the joint report, Mr Grummitt raised what he considered were relevant other Domains and Local Area Plan Precincts where the proposed use is contemplated by the Scheme. He raised that as relevant to the issue of whether sufficient grounds for approval exist notwithstanding any conflicts, but I shall deal with the issue now. It is accepted by Mr Ovenden and Mr Reynolds[53] that the proposed use does not neatly fit the definition of Transport Terminal but is the ‘best fit’ description for the proposed use. That is apparent from the definition of Transport Terminal.
[53]Exhibit 4, para 3.1.5.
Mr Grummitt identified the following Domains and Local Area Plan Precincts as relevant as alternative sites for the use:
(a) Fringe Business Domain;
(b) Industry 2 (Low Impact);
(c) Coomera LAP - Fringe Business;
(d) Nerang LAP – Industrial; Fringe Business; and
(e) Yatala LAP – General Impact Business and Industry; Low Impact Business and Industry; and Future Business and Industry.
Mr Ovenden in his individual report[54], to which I shall shortly refer, expressed the opinion that the focus of the court should be on the merits of locating the use on the subject site rather than consideration of alternative locations. I agree with him. As long ago as 1999, Fryberg J in Ecovale Pty Ltd v Gold Coast City Council[55] made the point that the function of this court was to resolve appeals in individual cases, and that the court was not a super planning authority called upon to embark upon an enquiry as to the suitability of other sites for a particular use.[56] Although the facts of that case differ from the present, the principle applies and is an important one. Proper consideration of any alternate site will necessarily involve detailed expert appraisal of the site before any worthwhile consideration of its status as an alternative site can occur. But simply pointing to other broad areas within a planning scheme which may contemplate a particular use does not properly address the issue. The extent of the exercise of considering alternate sites and its impact on the length and cost of appeals lends a strong foundation to the principle annunciated in Ecovale. In this case, no specific alternate sites were identified. Rather, reference was made only to other Domains and Local Area Plan Precincts where it said the proposed use would be more suitable. I do not intend spending time considering those other areas raised by Mr Grummitt.
[54]Exhibit 5, para 3.1.6.
[55](1999) 2 Qd R 35.
[56]See also Baptist Union of Queensland v Brisbane City Council & Anor [2002] QPEC 041 at [68].
Of course, conditions are commonly used to address identified potential adverse impacts presented by a particular proposal to ensure they are properly managed. Compliance with accepted noise limits does not mean noises are removed. Noises will be heard despite compliance. That may be acceptable if its duration is acceptable. But this proposal has the potential to expose the area to noise generating activities, albeit within commonly accepted limits, for upwards of 16 hours per day given that the 10pm – 6pm limit on the arrival and the departure of vehicles does not extend to all attendant activities. That concern is not one which should be further conditioned. Rather it points out the inappropriateness of the proposal in this Domain.
Rather than the proposed use being in harmony with the Intent of the Park Living Domain, it is an acknowledged commercial activity which is sought to be integrated into this semi-rural setting. I do not accept the opinions expressed by Mr Ovenden and Mr Reynolds that the existing amenity will not be impacted. As I have pointed out, their evidence is inadequate to support their conclusion of compatibility of uses. The matters I have set out demonstrate to me that the use is entirely inappropriate in the Domain and conflicts with the Intent of the Domain.
The uniform theme running through the Scheme in relation to the Park Living Domain is the importance of the maintenance of the residential amenity of the domain. Any impact assessable use in the Table of Development must, upon proper assessment, be consonant with that important objective before it will be approved. Maller points to the Sport and Recreation and Refuse Transfer Station uses to argue that, as they are contemplated by the Scheme, their presence informs the reasonable expectations of residents in the area.
Whether any particular impact assessable use is appropriate to a particular site will depend on the facts of the particular application. It may well be there is a suitable area within the Domain for a Refuse Transfer Station. It is not determinative of this case.
I mention the Refuse Transfer Station because it is the use with the most potential to impact adversely on the amenity and character of the Domain given its nature. I do not see that any other impact assessable use in the Table is in that category.
Place Living Domain Code
For the same reasons, I consider the proposal conflicts with the Place Living Domain Code as representing a use antithetical to the maintenance of a high standard of residential amenity. It is a commercial activity pure and simple. The fact that it compares favourably with the activities of other Transport Terminals more in accord with the definition of that use in the Scheme does not alter my view.
Growth Management Strategy GM Policy Figure 3
Urban Heritage and Character Strategy UH Policy Figure 2
I do not consider that there is a conflict with either of the above policies. GM Policy 3 is clearly intended to contain the urban creep into non urban areas and the proposed use is not an urban use. As to Mr Grummitt’s reliance upon UH Policy 2, particularly that policy’s planning objective UH2.10 to conserve and enhance the rural landscapes and open space character of the hinterland, I see no conflict as the proposal does not threaten the rural landscapes or open space character of the area. Indeed, the conditions package contemplates substantial rehabilitation and maintenance of that section of the site adjoining Crane Creek. There is no conflict with UH Policy 2.
Park Living Land Use Theme
I consider a conflict also exists with the Park Living Land Use Theme. When one considers the two functions of that theme, the following elements emerge:-
(a) To retain and enhance the present amenity;
(b) To manage the expectations for human services, infrastructure and transport so that these are not raised to the same level as that provided in the Urban Residential Areas;
(c) To reinforce that these areas have been established with a particular purpose in mind that is for those who choose to live in a park-like environment on large allotments; and
(d) Those large allotments are not intended to become the future urban areas of the city but are effectively an end state form of development.
For the reasons I have outlined, the proposed use does not retain or enhance the present amenity of the area and is not consistent with the reinforcement of the purpose for the park-like environment on large allotments. To my mind, the commercial activity proposed is antithetical to the aspirations reflected in those functions. I repeat my rejection of the opinion of Mr Ovenden and Mr Reynolds that the use will in any way maintain the existing character of the area. That is not to say I accept Mr Grummitt’s interpretation of the meaning of the end state form of the development (d) above. On that issue, I prefer the meaning attributed by Mr Ovenden and Mr Reynolds.
Desired Environmental Outcomes (DEO’s)
I do not see any conflict with DEO Soc.1. As to DEO Soc.5, no environmental harm will flow. As to whether it is a use that fails to maintain residential amenity by the minimisation of adverse social impacts from its operation as a commercial activity, I am inclined to think it is. The adverse social impacts I see flowing from the introduction of this commercial activity is the year-round continual activity, which in my opinion can do naught but adversely impact on the social temper of the area. I do not speak here of environmental harm. The prospect of tension between those operating the business on site and residents of the area is what I refer to. To introduce an unacceptable use into such an area risks an unnecessary erosion of social cohesion in that area. That is a matter of common sense and does not need evidence to support it. I do not say that is a significant conflict, but it is more than minimal.
Extent of overall conflict with Scheme
Whatever epithet is employed to describe the Agreed Conflict, I do not see it as merely a technical conflict or insignificant as argued by Maller and the Council. The use is deemed by the Scheme to be undesirable or inappropriate. Whilst that is not, and under IPA, cannot be, a prohibition, nevertheless it is the relevant starting point in addressing the nature and extent of the conflict it represents. Doubtless without the conditions package it would have been a very significant conflict, but even with that package I consider the conflict to be more than a minor one. I am of the same view concerning the other conflicts I have found.
Are there sufficient grounds for approval of the application notwithstanding the conflicts with the Scheme?
Grounds are defined in IPA Schedule 10 as matters of public interest which do not include the personal circumstances of an applicant owner or interested party.
In Weightman v Gold Coast City Council[180] Atkinson J, with the agreement of other members of the Court, chose the following approach to weighing the sufficiency of grounds against the conflict with the Scheme:-[181]
“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act[182], the decision maker should;
1. examine the nature and extent of the conflict;2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.[183][180][2003] Qd R 441 at 453 [36].
[181]Her Honour was concerned with s 4.4(5A) of the Local Government (Planning and Environment Act) 1990 in similar but not identical terms to IPA s 3.5.14(2)(b), which itself was amended by s 37 of Act No. 11 of 2006 which refers to sufficient grounds rather than sufficient planning grounds.
[182]
[183][2003] Qd R 441; (2002) 121 LGERA 161 at [8].
I have already set out the grounds relied upon by Maller supported by the Council as being sufficient to overcome conflicts with the Scheme. There is no need for me to address each of the grounds relied upon because I accept the submissions of NCA in relation to each of them, with the exception of ground 5. That the provision of ecological benefits to the area is mandated by the proposal itself does not, in my view, detract from the fact that such benefits would clearly be in the public interest. However, having regard to all submissions, I am not satisfied that the grounds advanced by Maller, individually or collectively, are sufficient to overcome the conflicts with the Scheme constituted by the Agreed Conflict and the others I have found. If I be wrong as to the existence of the conflicts found, other than the Agreed Conflict, whether as to all or fewer, I am still of the view that nothing put forward by Maller is sufficient to overcome that Agreed Conflict.
For the above reasons the application will not be approved and the appeal is dismissed.
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