Modini v Esk Shire Council

[2003] QPEC 34

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Modini & Ors v Esk Shire Council & Anor [2003] QPEC 034

PARTIES:

DENISE MODNI
JOHN DAVIDSON
GLEN DAVIDSON
JANN WHITE
GAYLE MAREE HANNAH
EVAN BROWN
DULCIE BROWN
KATHRYN ANN McDONALD
JASON SCOTT ZABEL
NEIL SCHNEIDER
HEATHER SCHNEIDER
KEN LESCHKE
TINA LESCHKE
GEOFFREY BEWIS
ROSEMARY BREWIS
Appellants

v

ESK SHIRE COUNCIL
Respondent

And

LYNGOLD PTY LTD –
GEORGE AND LYNNETTE ZAMMIT
Co-Respondent

FILE NO:

467 of 2003

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Planning and Environment

DELIVERED ON:

31 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 & 27 May 2003

JUDGE:

Quirk DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING - town planning - submitter appeal - appeal against council approval of extension of existing greyhound breeding facility - amenity – noise

COUNSEL:

Mr S Ure for the Respondent
Ms D Modini and Mr G Brewis (self represented) for the Appellants
Mr G Zammit (self represented) for the Co-respondent

SOLICITORS:

King & Company for the Respondent

1. This appeal is by a group of objectors against the approval of an application for necessary development permits to allow the extension of an existing greyhound breeding facility at Glamorganvale.  The subject land occupies an area of 15.378 hectares and is rectangular in shape fronting Glamorganvale Road.  Sandy Creek forms a southern boundary of the site.  In 1989 planning approval was given by the Morton Shire (within whose local authority area the land then was) for development for the rearing and breeding of 100 greyhounds.  Pursuant to that approval a complex was put in place and has been active for some considerable time.

1. As stated, this application intends the extension of that activity to allow the boarding of dogs and cats.  A full account of the proposal is to be found in the material placed before the court and in the detailed assessment of it by the respondent’s town planner, Julie Kowaltzke who provided the court with a report and gave oral evidence.

1. It is important to note that attention has been given to visual and acoustic screening of the proposed extensions.  A careful assessment of the likely acoustic impacts of the proposal was made by Mr Kamst an experienced consultant in this field.  He carried out monitoring of the existing activities and found nothing untoward.  He was confident that (provided that the intended ameliorative measures were adopted), the proposal was unlikely to pose any unacceptable threat to the area’s amenity.  His evidence was not seriously challenged in any persuasive scientific sense. 

1. It has to be said that the case mounted by the appellants did not really focus upon the proposed extensions.  Their complaints were more in the nature of resentment of the existing facility and its perceived impact upon their amenity.  In a general sense they were opposed to such a use (and any extension of it) in the area in which they have chosen to make their homes.

1. In fairness to them it has to be said that the area is an attractive one.  Its undulating topography provides extensive views over a pleasant rural landscape to the distant mountains.  One can readily understand their displeasure at any perceived interruption to their enjoyment of their surroundings.  Nevertheless, cases of this kind invariably call for some resolution of conflicting interests and this must be done against the background of relevant planning controls. 

1. The subject land is included in the Rural A zone in the Transitional Planning Scheme for the Shire.  The expressed intent of this zone and the Strategic Plan provisions which relate to rural areas are to provide a clear definition between the land needed or most suitable for urban expansion or rural residential expansion and that required to ensure the retention of viable rural areas in order to support the Shire’s rural/agricultural economic base.

1. In the Planning Scheme the definitions of “kennel” and “cattery” apply to the proposal.  As the table of zones indicates, the kennels are permitted only in the Rural A zone.  A cattery may be permitted in both the Rural A and the Future Residential zones.  In all other zones the uses appear as prohibitions although, pursuant to the regime of the Integrated Planning Act, this can be taken as being no more than a strategic indication of disapproval. 

1. The Shire planner indicated in her report that an on site inspection of the existing facilities was made by herself in company with the Council’s Environmental Health officer.  The opinion was expressed that the facilities were of a very high standard.  The potential for noise from an activity of this kind cannot be discounted.  However the fact that this complex was well managed was apparent to the Council officers.  This was supported by evidence from a senior officer of the Greyhound Racing Authority who gave evidence and had, in the course of his duties, occasion to visit the premises.

1. Notwithstanding the grim picture that the appellants sought to paint about the alleged noise nuisances occasioned by the existing facility, what is noteworthy is a remarkable absence of formal complaint prior to the lodgement of this application.  It has to be said that there were some instances of complaint that were investigated.  These led to no significant action by the local authority. 

1. It is also true that since the application has been made, there has been a substantial increase in complaints about the facility.  In the circumstances some circumspection about this is called for and what is important is that the residents concerned about the proposal had and took the opportunity to voice their opposition to it in evidence.

1. Experience over the years in cases of this kind has shown that there is a substantial subjective element in such concerns.  By that I mean that certain activities provoke quite different responses from different individuals.  When one is displeased or upset at the existence of a use on adjoining land, any physical reminder of its presence (whether by sight, sound or odour (where that is involved)) often tends to provoke a disproportionate reaction.

1. This phenomenon was well illustrated in this appeal.  While the appellants’ witnesses described the existing facility’s intrusion (particularly in regard to noise) in quite strong terms, other residents of the area who were comparably close to the kennels maintained that they were in no real way troubled by them.  The conflict in these accounts does not necessarily involve dishonesty.  What is important in this case is that the scientific evidence was all one way in that the existing facilities had no unacceptably adverse impact upon the area’s rural amenity.  Equally it was improbable that the proposed extensions would have such an impact as would call for the proposal’s rejection. 

1. Many of the concerns expressed by the appellants (particularly by Ms Modini) appear to relate to political dissatisfaction with the Council’s planning for the area.  It was strongly asserted that a proper approach called for controls to ensure that a rural residential amenity of a high standard was achieved and maintained in the locality.  All that can be said about this is that it is not the court’s function to plan the Shire nor is it for the court to offer any instruction to the elected planning authority as to how this should be done.  The court’s duty is to judge the reasonableness of expectations of all parties by reference to the planning scheme in place.  The planning for the area to which the appellants aspire is not part of that scheme.

1. On the whole of the evidence I am satisfied that the onus of showing that the application is one that should be approved has been discharged.  I am satisfied that the conditions attached to the Council approval are sufficient to ensure that an acceptable result will be achieved.  Accordingly the appeal must be dismissed.