Moule v Cambooya Shire Council; Breydon v Cambooya Shire Council
[2003] QPEC 29
•18 July 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Moule & Ors v. Cambooya Shire Council
Breydon v. Cambooya Shire Council & Ors [2003] QPEC 029PARTIES:
BARRY MOULE, PETER AND KELLY BUCHANAN, DAVID AND PENELOPE MARSDEN, OWEN O’SHEA, HUGH ROSE, JENNIFER LOWE AND RICHARD ST. VINCENT WELCH (Appellants)
v.
CAMBOOYA SHIRE COUNCIL (Respondent)
And
ROBERT BREYDON (Co-Respondent)
FILE NO/S:
47/02
PARTIES:
ROBERT BREYDON (Appellant)
v.
CAMBOOYA SHIRE COUNCIL (Respondent)
And
BARRY MOULE, PETER AND KELLY BUCHANAN, DAVID AND PENELOPE MARSDEN, OWEN O’SHEA, HUGH ROSE, JENNIFER LOWE AND RICHARD ST. VINCENT WELCH (Co-Respondents)FILE NO/S:
6093/01
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
18 July 2003
DELIVERED AT:
Brisbane
HEARING DATE:
26, 27 & 31 March 2003
JUDGE:
Quirk DCJ
ORDER:
I am satisfied that the onus of showing that the application is one which should be approved has been discharged. The appeal by the submitters is accordingly dismissed.
CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING – town planning – submitter appeal – amenity – traffic safety
COUNSEL:
Mr W Everson for the appellants in 6093/01
Mr A Skoien for the co-respondent in 47/02 and the appellant in 6093/01
Mr M Rackemann for the Respondent in 47/02 and 6093/01SOLICITORS:
McCullough Robertson for the appellants in 6093/01
Creagh Weightman for the co-respondent in 47/02 and the appellant in 6093/01
Connor O’Meara for the Respondent in 47/02 and 6093/01
These two appeals were heard together for convenience. The first (6093/01) was by the applicant against certain conditions of approval. That matter has been resolved between the applicant and Council. The second (47/02) was by a group of adverse submitters (most of whom reside in the area) against the respondent’s approval of an application for a development permit for a material change of use (oxy-welding, iron and steel fabricating, spray painting) and for environmentally relevant activities together with a development permit for operational works and a preliminary approval for building works.
The subject land is a small part (described in the application in meets and bounds) of a property (of about 400 hectares) which has been farmed by the family of the applicant for generations. In the early part of the 1990’s the applicant, who is a qualified boilermaker, decided to supplement the farm’s income by plying his trade and undertaking some steel fabrication work.
In 1993 an application for Town Planning consent to use an area of the property (of nearly 4,500 square metres) for a steel fabrication and a welding works was made. It was proposed that two buildings be constructed. In March of that year the Council gave its unconditional consent to the application but limited the approval to one stage (a building occupying 360 square metres). The applicant was advised that a further application would be required before the second stage was to proceed.
The first shed was not constructed until 1997. In April of that year in the belief that his permit had lapsed, the applicant wrote to the Council seeking permission to commence construction. That permit was forthcoming. The exercise was not really necessary because, for reasons which were discussed at the hearing, the permit remained valid. So much was conceded by counsel for the respondent. Construction was undertaken pursuant to a building permit issued by the Council. In fact, the floor area of the structure exceeded the 360 square metres referred to in the town planning consent. Since that time the enterprise has proceeded and has grown.
The intention of this proposal is to allow for that growth, but also to provide better protection for the area’s amenity by enclosing some procedures (e.g., sandblasting) which are presently performed outdoors. As explained in the evidence of acoustic experts who were called, the noise attenuation achieved by such enclosure will be substantial. The proposal will also allow some other activities (e.g., painting) to be done on site whereas presently they require material to be taken to another location.
The proposed development involves modification of the existing building and the construction of another shed on a levelled area below that upon which the current building stands. The proposal had originally referred to two further structures at the lower level, but the building which was intended as a “farm shed” has now been excluded from the proposal. In approving the application the Council has required a substantial reduction in the floor area of the lower shed.
Although the end result will be a greater floor area than is presently used, the co-respondent has agreed to limit the number of employees engaged to a maximum of 12, only a few more than are presently occupied in the business.
The approval has also given the opportunity to impose further conditions which are intended to safeguard the area’s amenity. It is noted no such conditions are presently in place. These relate to such matters as:
· The development and implementation of a site based management plan
· Controls on external lighting
· The prohibition upon the creation of nuisance by dust and odour
· A requirement that noise emissions not exceed 5 dbA above background noise levels
· The implementation and maintenance of landscape in accordance with a landscaping screening plan and management plan prepared by a consultant
· The construction of a bitumen seal in an area adjacent to the site access and a contribution towards general road upgrading.
The issues raised in the appeal related in the main to town planning, amenity and traffic safety. In the relevant Town Planning Scheme the subject land is included in the Rural A zone. The introductory words of the stated intent for this zone are:
“The intent of this zone is to provide for conservation of the prime agricultural and primary producing areas of the shire. It is intended to accommodate, in appropriate locations, uses allied to agricultural production but prevent non-rural activities where they would encroach upon prime agricultural land. Undue subdivision of prime agricultural land is to be discouraged as controlled by the provisions of this planning scheme.”
What has to be said at once in this case is that the preservation of a high standard rural residential amenity is not a planning strategy supported by the scheme in respect of this area although, as the evidence of the submitters indicates, quite a number of people have settled in it. The maintenance of the high level of amenity was a matter which appeared to assume considerable importance in the submitters’ case.
It could not, on the evidence given, be seriously contended that the proposal represents the threat to the preservation of prime agricultural land and no subdivision of the existing holding is intended. The submitters, in their case, sought to open up a discussion as to whether the existing and proposed use could truly be said to be a use which is “allied to agricultural production”. This involved an examination of the work done by the co-respondent in the past and emphasis was placed on a substantial amount of work which was performed for clients beyond the shire boundaries.
This argument, in my view, misses the point entirely. What is important is that a use of this kind represents an opportunity for those involved in agricultural production in this planning area to have convenient access to engineering services of the kind which this enterprise provides. If its viability and capacity is enhanced by its being able to obtain other work, it represents a positive for the security of its presence and the range of facilities which it is able to offer.
Light industrial uses are discretionary uses in the Residential A zone, although medium industry is a prohibited use. The distinction between these industrial categories is somewhat blurred, but it is noted that “iron and steel fabrication” is specifically identified as a “medium industry”.
The difference between the categories is to relate to two criteria which are found in the definition of “light industry”. These require that such industry:
“· Does not, in the opinion of the Council, by reason of the carriage of goods or materials used or produced thereby, create traffic upon public roads in the locality in which the industry is carried on which causes congestion or danger to users of such roads, or requires roads of a higher standard of construction than those required for the normal development of the locality in which the industry is carried on; and
· Does not, in the opinion of the Council, cause vibration, light, noise, smoke, fumes or hazards likely to cause undue disturbance or annoyance to persons or affect property not connected with the industry.”
Under the regime of the Integrated Planning Act even if the use is of a prohibited use in a particular zone in a transitional planning scheme, its rejection is not mandatory. Impact assessment is called for, although the fact that it is defined as a prohibition must be taken into account. In this appeal there was more than sufficient evidence for a consideration in the context of an impact assessment in respect of this proposal.
Turning to the Strategic Plan, the subject land is included in the “Rural” Preferred Dominant Land Use. The objectives of this designation are:
1. to ensure that development is consistent with the rural character of the shire;
2. to prevent conflict between rural land uses and agriculture;
3. to ensure that development is commensurate with the level of services and facilities which exist in a rural area.
In respect of Objective 1, the Given Performance Criteria are as follows:
“(a)Land use will be rural in nature or be an industry which is related to and supports the rural sector;
(b)Land use will be of a low intensity and scale which is consistent with that of established uses;
(c)Subdivision will achieve the minimum lot size prescribed in Part 8 of the Planning Scheme.”
As I have indicated, I am satisfied on the evidence given that an engineering facility of this kind is related to and will support the rural sector by providing a convenient service for such needs as machinery and steel structure manufacture and/or repair. While efforts were made to exaggerate the intensity and scale of the proposal, I accept the views expressed by Mr. Challinor, an experienced Town Planner, that having regard to the limits placed on floor area and staffing, as facilities of this kind go, it will be of relatively low intensity in scale, and that no inconsistency with established rural uses will arise. Indeed, in appearance, its scale would certainly not be out of character with other types of activities commonly found in rural areas (e.g., produce storage, barns and poultry sheds).
In respect of Objective 2, the given performance criteria are:
(a) development will incorporate measures such as buffer areas and adequate separation between agriculture and other land uses;
(b) measures necessary to prevent conflict, such as separation, buffers, and mitigation, will be provided by the proposed new development.
These criteria demonstrate that the objectives for the rural PDLU are not concerned with the preservation of a high standard of rural residential amenity. In fact, the reverse is the case. If uses that are likely to give rise to conflict (and thereby limit the freedom of operation of agricultural activities), there must be adequate separate or buffering to mitigate this.
In respect of Objective 3, the only relevant criteria is:
“(b)Development will not generate traffic which is beyond the capacity of the road system unless relevant works are carried out to upgrade the road system.”
In the area of traffic engineering I was favoured with the assistance of three experienced consultants in this field, Mr. Beard, (called by the Council) and Mr. Brameld (by the applicant) pointed out that the use of rural roads by heavy vehicles was by no means an unusual phenomenon. It was their opinion that traffic volumes on the part of the road system leading to the subject land from the New England Highway are relatively low and that assessment includes transport vehicles presently accessing the site.
These witnesses believed that site distances were satisfactory having regard to the likely speed environment and that a sensible and reasonable assessment gave rise to no safety issues. It is noted that the Conditions of Approval require certain works to be carried out in the vicinity of the site, and a contribution to general road upgrading.
Mr. Viney’s more conservative approach appears to have been distracted by an incorrect assumption that up to 200 vehicles per day would use the road system following approval in this case. I believe the likely speed environments envisaged by Messrs Beard and Brameld were more realistic than his. Mr. Viney also placed emphasis upon possible conflicts between heavy traffic generated by the proposal and the use of road system by local residents, particularly equestrians. This again involves, I believe, an improper appreciation of the true nature (in a planning sense) of the area.
Evidence was received from a number of local residents. Many of these came to the area after the existing use had established. I accept that their evidence was given in a genuine way and can understand their disinclination to welcome any expansion of a use which they see as a possible threat to a pleasant rural amenity.
However, it has to be understand that, in planning terms, there is a marked difference between rural and rural residential areas (of which this is not one). As experience in this court has shown, many rural activities have the potential to displease residents who seek a rustic and tranquil lifestyle.
Another important feature of the case is that the appeal is not concerned with the introduction of this form of activity, but rather a carefully controlled expansion of the lawful use that has been in place for a considerable period. In such circumstances it is difficult to accept that expectations that a use such as this would not continue on the land are reasonable.
Possible amenity impacts were dealt with in the evidence. Mr. Chenoweth, a town planner with extensive experience in the amelioration of visual impact has been consulted by the applicant. Appropriate landscaping and screening, together with the selection of suitable materials (and colours) for structures has been recommended and a condition of approval requires that the recommendation be adopted.
Other potential environmental impacts (e.g., noise and lighting) were considered by engineers appropriately qualified in the field. Mr. Kamst was called by the Council and Mr. King by the applicant Considerable distances separate the proposal from adjoining residences. Conditions of approval require that noise emissions not exceed 5 dbA above existing background levels and the engineers were satisfied that these standards can be met. It is not suggested that nuisance will be caused by dust or odour.
Whether or not there is any conflict with the Strategic Plan depends upon value judgments being made in respect of factual issues. Uncontested expert evidence in these areas has been given in support of the proposal and I accept it. I do not believe that any conflict with the Strategic Plan would arise but if some conflict could be derived from an overly technical construction of the words of the Strategic Plan then, in my view, there are more than sufficient planning grounds to justify approval notwithstanding.
The more important of such grounds are:
· The proposal involves a reasonable and controlled extension of an existing use which has served and will continue to serve the rural community;
· The approval has enabled the putting in place of a regime of environmental impact control which is not presently existing;
· Uncontradicted expert evidence is that environmental impact will be minimal.
For these reasons I am satisfied that the onus of showing that the application is one which should be approved has been discharged. The appeal by the submitters is accordingly dismissed.
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