Mount Gravatt Bus Service v Brisbane City Council
[2001] QPEC 41
•15/06/2001
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Mount Gravatt Bus Service v. Brisbane City Council [2001]
QPE 041PARTIES: MOUNT GRAVATT BUS SERVICE
(ACN 010 232 827) Appellant
and
BRISBANE CITY COUNCIL RespondentFILE NO/S: 4012 of 2000 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 15 June 2001 DELIVERED AT: Brisbane HEARING DATE: 21-22 May 2001 JUDGE: Judge Quirk ORDER: Appeal allowed CATCHWORDS: Environmental Protection Act;
Cherribun Pty Ltd v. Brisbane City Council (1986) QPLR
205;
Integrated Planning Act s4.1.52, 6.1.29, 6.1.30COUNSEL: Mr W Everson for the Appellant Mr C Hughes for the Respondent SOLICITORS: Frank Carroll Solicitor for the Appellant
Brisbane City Legal Practice for the Respondent
This very unusual case involves an appeal against the refusal of an application
which sought to regularise a use of land at Burbank which has been going on for
about twenty-seven years. The land occupies an area of about four hectares on the
western side of Kloske Road.
It is in a semi-rural area which (until the recently gazetted City Plan) has been
zoned Non-Urban throughout the history of planning control in Brisbane. In the
City Plan it is included in the Environmental Protection Area.
Delcie Cole, a principal of the appellant company, gave evidence. She explained
that, in about 1974, she acquired a business which involved the transporting of
children to and from school by bus under a contract with the Department of
Education. At the time she resided on the subject land and has done so every since.
Over the years the demand for services offered by the bus company has increased
and caused a need for the acquisition of further buses.
Mrs Cole explained that, at present, the service which originates from the subject
land (and which involves twenty-seven buses) carries more than 900 school
children from the area to schools which are located as far south as John Paul
College and as near to the city as the Anglican Church Grammar School. Outings
for schools and senior citizens are also catered for.
The importance of the service to the local community was vouched for by a high
level of public support for the proposal (a petition from 365 residents). The good
relations between the company and those which it serves, the high standard of
service provided and the extent to which reliance is placed on that service is
exemplified by the evidence of the principal of the Redeemer Lutheran College.
Such a supportive reaction is hardly suprising when one notes the emphasis which
is placed in public pronouncements upon the desirability of the community’s being
able to resort to public transport. It goes without saying that if the benefits seen in this context are to be attained, such transport facilities must be convenient amd
accessible to the community.
That local governments who might have met this demand for public transport had
not done so, was uncontradicted. On the evidence Brisbane City Council transport
services to the area do not venture east of the Gateway Arterial. Neither Logan nor
Redland Councils are prepared to provide services to the area.
It is also unfortunate to note that, when this matter came to a head, and the Council
indicated opposition to the proposal to regularise the use of this land, Mrs Cole
made approaches to Council representative in an attempt to obtain assistance in
locating an alternative, but acceptable location for the proposal. Her attempts to
obtain such assistance met with no success at all.
Furthermore, no effort was made in the Council’s case to identify any land upon
which a transport facility servicing the area could feasibly be located. There was a
vague suggestion that the proposal might locate in the “industrial areas of
Mansfield, Murrarie and Wakerley”. However, the practical implication of that
suggestion to not appear to have been considered by those responsible for them.
Mrs Coles’ evidence went on to establish that her own efforts to locate an
alternative site that could satisfactorily (and viably) serve as a bus depot for the
area, were also unsuccessful. In her quest for another site she accepted that further
planning approvals might be required. I accept her evidence in that regard.
These cases are not, of course, decided on sympathy, but these matters are relevant
in the context of the public interest and the community advantage that would result
from these services being maintained from this site for the benefit of the local
residents and their children.
The Council’s legal representatives sought to emphasise that, in the determination
of the appeal, the appellant should not gain any benefit from the fact that these
activities have been in place for a considerable period. While there is some force in
that submission, the converse is equally true in that no disbenefit to the appellant’s
case should come into account because of the prolonged use of the land contrary to
law.
Had this not been so, one would have to recognise that this was not a brazen
flouting of existing planning controls. The respondent has, for some considerable
time, been well aware of the activities of the bus company. Necessary licences (eg.
those required by the Environmental Protection Act) have been sought and
obtained. The evidence also indicates that the subject land has been, for at least ten
years, rated as “Commercial/Industrial land”. It was not until very recently that
anyone realised that town planning permission was needed for the activities on site.
Having said that, I must also recognise that it would be quire unrealistic to approach
this matter on the pretence that nothing at all has happened on the subject land. A
comparable situation arose in Cherrabun Pty Ltd v. Brisbane City Council (1985)
QPLR 205. The court observed (at page 208):-
“While it certainly would not be appropriate to allow, in a case of this kind, any advantage to the appellant as a result of the commencement of the use contrary to the provisions of the plan, the fact that the proposal in this case is already underway has some consequences which could be regarded as relevant in the determination of the appeal. Firstly the impact that the proposal would have on the amenity of the area (which is not, in my view of the evidence, likely to change markedly in the foreseeable future) is not so difficult to appreciate”.
Similarly in this case, real (rather than speculative) assessment of likely impact in
regard to environment matters, water quality and noise nuisance are able to be
made.
The land is located on a sealed road in a bushland setting. Aside from activities
associated with the proposal, there is a residential dwelling and a tennis court which
are located toward the front of the block. Behind the tennis court some filling has
occurred to establish an unsealed pad upon which buses are parked. Near the
northern boundary there are covered area where some servicing and repair work is
carried out. Only about 30% of the site has been affected by development. The
balance of the land remains in its natural state.
Development in the general area is predominantly residential living upon relatively
large sized allotments. Immediately to the north there is a detached house located
on the most elevated part of its site and approximately 40 metres from the boundary
of the subject land. It is orientated away from the subject land to the north-east.
The relevant application was made on 17 April 2000. At that time the now
superceded Town Plan was in force. Accordingly, the matter must be considered as
provided for in sections 4.1.52, 6.1.29 and 6.1.30 of the Integrated Planning Act,
ie., by reference to the Town Plan which was a “transitional planning scheme” within the meaning of the Act. Such weight as is appropriate must be given to the
City Plan.
As stated under the Town Plan, the land is included in the non-urban zone. It is in
an area which has been classified as:-
“Category A: Natural or semi-natural area having high value for habitat conservation, landscape protection or water quality protection”.
In the relevant Strategic Plan maps the land is shown as being within the “Nature
Based Rural Living Areas” and part of the “Brisbane Green Space System”.
What the Town Plan has to say about these matters involves considerable wordiness
and little purpose would be served in setting out these passages in full in this
judgment. It would not be unfair to say that from this material the following points
can be distilled –
· Land in the non-urban zone is generally intended to be retained in its natural, semi-natural, rural or semi-rural state in order to fulfill one or more of the
following objectives:-
“… .
§
to encourage the retention of those tracts of bushland which, among other things, protect water catchments and drainage systems, and provide habitats … .
§
to ensure as far as possible a high water quality in the water supply catchments of the Tingalpa Reservoir (Leslie Harrison Dam)”
· Lands identified as being in Category A as described above are intended to be retained in their natural, semi-natural state in order to preserve and protect areas of ecological, water catchment and landscape significance. The catchment of
the Leslie Harrison Dam is included in this category to protect both the significant koala habitat values and water quality in the Tingalpa Reservoir. · Because of the ecological and landscape values of the land within this category it is intended that development be limited to large allotment residential use and other activities which, because of their nature and scale, would not adversely impact on either habitat or visual quality of water catchment areas. · Where development proposals are put forward particular consideration will be given to the impacts of the proposal on the ecological values, landscape values, or in the case of the Leslie Harrison Dam catchment, water quality values and the measures proposed to alleviate those impacts. Proposals must demonstrate that the values and constraints of this site have been taken into account at the design stage. Those passages which deal with “Nature Based Rural Living Areas” and “Green
Space Corridors” do not appear to take the matter a great deal further.
Against this background one’s natural reaction might be that an application for a
use of this kind, involving as it does a quasi-industrial component, would have a
good deal of difficulty in receiving a favourable planning response. It has, on the
other hand, to be also noted that the Town Plan has not, in effect “slammed the
door” on uses of a kind that might have a potential to impact adversely upon the
values identified in the Town Plan. This is indicated by the following passages:-
“It is intended that in the consideration of any proposal for development in the non-urban zone, the characteristics and values for which these lands have been identified in the Strategic Plan must be taken into account. To this effect, certain land uses, as outlined below, are considered to be incompatible with the characteristics and values of lands in Category A and Category B and are unlikely to be favourably considered. Applicants will, however, be given the opportunity to demonstrate that the proposal can be accommodated on particular sites without impacting upon the identified values of that site. In this way the proposed categorisation is performance- based. In addition council has specific requirements for development within each category of land which are described below.”
Specifically in regard to Category A lands the following appears:-
“Council will generally oppose the re-zoning of lands in this category to zones that provide for higher order uses. In addition, purposes including child care centre, club, display home, educational establishment, filling, garden centre, intensive animal husbandry, landing, place of worship, pleasure ground, produce market, radio station, veterinary hospital, welfare premises, and youth club are unlikely to receive favourable consideration by council where they do not take into consideration the identified values of lands in this category. In order to provide for a performance-based approach to the assessment of application, development proponents will be given the opportunity to demonstrate that individual proposals including those land uses listed above, are consistent with the values of land within this category and that the proposal can be accommodated without impacting upon these values.”
Accordingly, the applicant is entitled to have the application assessed on a
“performance-based approach” with particular attention being given to the impact
upon those values that the Town Plan identifies. In this case the matters which
appear to be of critical importance are –
· Impact upon water quality · Impact upon the environment generally · Impact upon the area's amenity.
Whether or not the proposal is likely to result in adverse impact upon water quality
(which would obviously pose a threat to the dam catchment) is a matter that was
able to be looked at with the advantage of having had the activities in place for
some considerable time.
It has been mentioned that since 1996 the operation has been conducted pursuant to
the terms of a conditional licence issued under the Environmental Protection Act.
On the evidence the observance of those conditions appears to be effective.
Stormwater run-off from areas where the activities take place finds its way into
either of two dams located on the property. Mr Delaney, an environmental
consultant engaged by the appellant, was able to make a close examination of these
dams for any evidence of contaminants. He concluded:-
“Assessment of the qualities of two constructed water bodies that occur on the site down-stream of areas used by the (proposal) indicates that the operation of the (proposal) has had no significant impact upon the capacity of these water bodies to support basic ecological processes and sustain populations of aquatic flora and fauna.
Notwithstanding the above, it is to be noted that petroleum hydrocarbons were detected, at low concentrations, within samples of water obtained from the two water bodies. Potential sources of these petroleum hydrocarbons being stormwater run-off originating from :
§ Upstream areas of the site that are utilised by (the proposal) for
the parking, maintenance and/or refuelling of vehicles; and/or§ Upstream sectors of Kloske Road which extends along the eastern boundary of the site.
In all cases the detected concentrations of petroleum hydrocarbons did not exceed relevant environmental criteria and as such are unlikely to be causative of any material environmental harm. This assessment is consistent with the fact that both of the water bodies support a relatively diverse assemblage of aquatic and semi-aquatic flora and fauna, particularly the western-most water body.”
Attempts by the Council’s witnesses to cast doubts upon the evidence of Mr
Delaney were not particularly compelling. The criticisms of his work seem to focus
upon his not testing for nutrients (nitrogen and phosphorous) or faecal coliforms.
As Mr Delaney explained, with activities of this kind, the likelihood of stormwater
contamination from high nutrient levels is low. The same applies to faecal
coliforms which are usually associated with malfunctioning septic systems the like.
Criticisms were also leveled at Mr Delaney in respect of a number of samples that
he took. What a larger number of samples would have disclosed was not
satisfactorily explained. There was talk of median values to eliminate high and low
anomalies, but the matter of contamination by petroleum hydrocarbons (which one
would expect to be the main cause of concern in this case) was, for reasons which
he explained, satisfactorily examined in the work of Mr Delaney. On the evidence
given on this aspect of the matter I accept that of Mr Delaney and find that, on the
balance of probabilities, the proposal would not adversely impact upon the areas
water quality to an extent which would call for its rejection.
Environmental impact was looked at in the area of general environmental impact
and impact upon the koala population of the area. In general terms, the likely
impact of the proposal on the area’s environmental values were considered by Mr
Delaney. For reasons which he set out in his report he concluded:-
“In respect of this matter it is my assessment, based on surveys of
the site and the view of relevant reference material that;(a) majority of the site is covered in an open forest vegetation that is a mixture of remnant and re-growth vegetation which has some functional nature conservation values, including the provision of koala habitat; and
(b) the balance of the site supports a mixture of residential, recreational and commercial land uses including residential dwellings and associated landscape gardens, a tennis court, car and bus parking and manoeuvering area and a vehicular maintenance shed.
Based on the results of site inspections it is my assessment that the use of the site by (the proposal) has not had a significant on the nature conservation values of the site. In particular it is noted that the manner in which the site’s open forest vegetation has been managed by (the appellant) is superior, from a nature conservation perspective, to the manner in which many adjoining land-owners have managed their properties.
In conclusion it is submitted that the continuation of the (the appellant’s) operations at the site would not have any significant adverse impacts upon the nature conservation values of the site and adjoining locality.
In the Council’s case much was made of the clearing and filling that had occurred
to date, destroying, it was contended, a “high quality habitat area”. It was pointed
out that the site was included in a widely embracing Vegetation Protection Order
and it was suggested that this order has, in the past, been breached. This is not
conceded and whether or not it is so, it is difficult to conclude on the evidence
given. In any event a ruling on this matter would not assist in the determination of
the appeal.
It goes without saying that if the site had remained in an undeveloped form, a better
environmental outcome might have been the result. The realities are that the land is
privately owned as is much of the land in the area. The assumption that a refusal of
the application will somehow undo the environmental consequences of
development that had already occurred is, in my view, a little unrealistic. I accept
the evidence of Mr Delaney on this matter.
Aside from general environmental considerations the impact of the proposal upon
the area’s koala population is of special importance in that the subject land is within
the “Koala Conservation Area”. The area is in fact within the “core habitat area”.
These matters are provided for in State Planning Policy 1/97 (Conservation of
Koalas in the Koala Coast). Evidence was given that, not far from the subject land,
an area has been acquired by the Council and set aside specifically for koala
conservation.
Pursuant to s.4.1.3(3)(A) of the repealed Act, the policy must be considered in the
determination of the application. It was accepted that the operative parts of the
policy are found in the following sections:-
“5.4 In the Koala Conservation Area and Other Major Habitat, development must be compatible with conserving koala habitat
values except where:
· the development is a development commitment; or · it can be demonstrated that there is an overriding
public interest need for the proposed development
and no other site is suitable and reasonably available
for the proposal”.
“5.7 Development proposals would be compatible with
conserving koala habitat values if all the following criteria are met:
· little or no clearing of habitat would be requested; ·
for sites in the Koala Conservation Area, minimal additional night-time traffic movements would be generated on the road network in the Koala Conservation Area;
· any impedance or threats to the movement of koalas
through or across the site would be minimised;
·
there would be no other significant detrimental environmental impacts on the koala habitat values in the surrounding area; and
· koala habitat values would be substantially maintained or enhanced”..
“5.9 Determining overriding need in the public interest will depend on the circumstances of the particular development proposal. The proposal must result in a significant overall net benefit to the community in social or economic terms that outweighs any adverse environmental impacts, and it must be shown that a similar benefit cannot be achieved on other suitable and reasonably available alternative sites. Furthermore, practices and methods employed in any activity approved as an overriding public need must be consistent with paragraph 5.2 and appropriate measures must be taken to protect or restore koala habitat values.”
Evidence of the likely impact upon the koala population was given by Dr Stephen
Phillips whose eminence and dedication in this field could not be questioned. For
the reasons which he explained in his report (Exhibit 7) he concluded that-
“Approximately 30% of (the subject land) has been cleared over time to accommodate the operation of a coach station. The remaining 70% of the land supports a tall open forest community containing koala food trees which in turn contribute to the home- range areas of a small number of koalas. No koala habitat is t be removed as a consequence of a development application for a material change of use. Traffic flow and the proposed construction of an acoustic barrier are not considered to constitute a significant threat to koalas in the local area. A review of both the purposes and principles of state planning policy 1/97 does not, in my opinion, indicate any apparent inconsistencies associated with the development application. Given these considerations I have consequently formed the opinion that the current use of the land is unlikely to be detrimental to existing koala movement patterns and habitat utilisation on the site.”
The force of his evidence was not weakened in any important way by what was said
in the Council’s case. Of the matters specified in clause 5.7 of the Policy only that
of “clearing of habitat” could, on the evidence, have any bearing and this would
depend upon whether one should pretend that the land is not in the physical
condition that it presently is.
No further expansion of the area covered by the relevant activities is intended. If
these is some conflict with the Policy in this respect I am satisfied on the evidence
that it is overcome by the operation of “overriding public interest”. I accept the
evidence in this case that –
§ There is an overriding public interest need for the proposed development and, § No other site is suitable and reasonably available for the proposal. I am further satisfied that, as a matter of fact, for the considerations identified in
clause 5.9 exist in this case.
Finally, the question of noise impact must be considered. The person directly
affected in this respect is the next-door neighbour, Mr Thompson. I accept his
evidence that certain activities on the subject land are audible to him when he is in
his residence. As he explained, what particularly troubles him is the “warming up”
period when the engines of buses are run for a short period before they go out on
their morning schedules.
While I understand his concern, it is noted that, of all the residents in this non-urban
area, Mr Thompson was the only who objected to his proposal which has been a
feature of the area for some considerable a time. In fairness to the appellant, it also
has to be noted that Mr Thompson built his house in 1980 (when the proposal was
in place). He sold in 1985 but re-purchased the house in 1994. This takes
something off the edge of the reasonableness of Mr Thompson’s professed
expectations. I appreciate that, in recent times, there has been some expansion of
the proposal but, bearing in mind that at the time of re-purchase it was assumed that
the proposal was lawfully conducted, the possibility of this would not have been
inescapable.
In any event, noise impact received attention from appropriately qualified experts.
For the appellant the matter was considered by Mr Larsen, who, for reasons
explained in his report (Exhibit 8) concluded:-
“The assessment has been carried out to determine compliance with Planning Policy 19.10 and the Noise Impact Assessment Planning Scheme Policy from the Brisbane City Plan 2000. Assessment has found that the potential for noise impact at the nearest adjacent residence to the north is minimal under both Policys’ noise criteria. Potential excesses of the criteria noise levels have been noted. There exists an opportunity to improve the noise amenity of the nearest adjacent residence to the north with the enclosing and/or shielding of the workshop areas as per the options presented on Figure 7 (of the report) in addition to the predicted compliance achieved with the existing situation, an additional 10-20 dB(A) attenuation of the workshop noise at the nearest residence to the north would be possible with appropriate enclosing and shielding of the workshop area. These works would also act to further reduce potential noise impact from other site activities with improved structures and/or acoustic fence screening acting as potential noise barriers. The predicted noise impact during the most sensitive of time periods ie., nighttime from 10pm to 7am, when sleep disturbance may occur, has been shown to be minimal and within the “regularity” of the noise levels provided by the ambient noise environment from sources other than that attributed to the subject site’s operations,. It is thus concluded that noise amenity considerations do not constrain the approval of the development.”
Mr Kamst, who gave evidence for the Council, carried out tests on the Thompson
land and detailed his finding in his report (Exhibit 15). He had to concede that:-
“If the operations are carried as I observed it during the site visits,
the likelihood of any sleep disturbance is small.”
He added however that:-
“If noise are normally higher than those obtained from my site visit or if the bedroom windows are open to a significant extent, then sleep disturbance is more likely to occur. A compounding factor is the low frequency component of the bus noise ie., the rumble. Little research has been carried out into this aspect, however, the W.H.O. (1999) document states that special attention should be given to noise sources with low frequency components since these noise sources are likely to cause sleep disturbance at lower noise levels than noise sources without these components.”
In cross-examination he conceded that he had not carried out any measurements of
these low-level noise sources and Mr Larsen, when questioned about them, said that
during his assessment his equipment had the capacity for a “octave band analysis”
and he did not note “anything that was a significant low frequency noise source”. I
accept the evidence of Mr Larsen and find that, provided his recommendations are
accepted, the proposal should not be ruled out on the ground of noise nuisance.
About other matters there was really little contest. Mr Beard, an experienced traffic
engineering consultant, was (as explained in Exhibit 9) satisfied with the proposal
provided some “tidying up” of the site access driveway arrangements were made. It
is also noted that no further expansion of the use will be permitted and that some
screening to soften the visual impact of the proposal from the road is intended.
These matters should be dealt with in the conditions of approval.
As I said at the outset, the case was a very unusual one. One might have been
excused for forming a negative first impression of the compatibility of this form of
use with what the planning documents intend for the area. However, as these
documents make clear, the application is entitled to an “performance based
assessment” and it had the advantage of being able to have made a more exacting
examination of the impact of the proposed use upon such matters as water quality
and environmental considerations.
There was also the matter of the considerable community benefit with the use
involved and this would have, in my opinion of the matter, out-weighed any
inconsistencies with the planning documents that might arguably have arisen.
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. The appeal must
accordingly be allowed.
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