Quinn v Beaudesert Shire Council
[2004] QPEC 33
•15 July 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Quinn v. Beaudesert Shire Council [2004] QPEC 033
PARTIES:
STEPHEN QUINN
Appellant
V
BEAUDESERT SHIRE COUNCIL
Respondent
FILE NO/S:
1578 of 2003
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court of Queensland
DELIVERED ON:
15 July 2004
DELIVERED AT:
Brisbane
HEARING DATE:
18, 19, 20 and 23 February 2004
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
PLANNING LAW – CONSTRUCTION OF PLANNING SCHEME – AMENITY – appellant refused permission to undertake repair of forklifts in a shed on his rural residential property – how proposed business should be characterised under Planning Scheme – amenity – whether proposal would detrimentally effect the amenity of the surrounding rural residential area
Integrated Planning Act 1997
Beaudesert Shire Council Town Planning SchemeCases Considered:
Baptist Union of Queensland v. Brisbane City Council [2004] QPEC 041
Broad v. Brisbane City Council [1986] 59 LGRA 296
Bunnings Building Supplies Pty Ltd v. Redland Shire Council [2003] QPEC 024
CSR Ltd v. Caboolture SC [2001] QPELR 348
Jones v. Redcliffe City Council [2003] QPEC 061
Lewiac Pty Ltd & Ing Real Estate Joondalup B V v. Gold Coast City Council [2003] QPELR 385
Weightman v. Gold Coast City Council [2002] 121 LGERA 161
COUNSEL:
Mr M Connor, Solicitor, for the appellant
Mr E Morzone of Counsel for the respondentSOLICITORS:
Connor O’Meara for the appellant
Corrs Chambers Westgarth for the respondent
Mr Quinn owns a rural residential property at 169-181 Candlebark Road at Jimboomba. He has his own mobile forklift repair business and sought a development permit from Council to undertake some forklift repair and service work in the shed. Council refused permission for a number of reasons which ultimately devolve to the question whether his activities in the shed would detrimentally affect the amenity of the area.
This Council has a Transitional Planning Scheme, which continues to have effect under the Integrated Planning Act 1997 (IPA) s.6.1.2. The appellant has the onus of establishing that the appeal should be upheld: s.4.1.50(1).
Mr Quinn’s land (Lot 14 on RP 813787) contains 3.44 hectares and has a frontage of about 135 metres to Candlebark Road. A low set brick house is located in the centre of the lot frontage and there are two outbuildings closer to the southern boundary, one of which is a large green Colourbond shed containing about 168 square metres in which Mr Quinn intended conducting the business.
In his application for a development permit he described the proposed business as one involving the service and repair of forklifts. He said, and I accept, that he currently operates a mobile forklift repair business centred in Brisbane. Most of his work is done on forklifts in situ but when that is not possible he uses a workshop facility at Darra. He intends to continue to operate that business irrespective of this appeal and the proposal does not involve, he said, the relocation of it to this site. Rather, he says that in the course of his work he sometimes comes across forklifts which are apparently uneconomical to repair but which he would transport to his shed, and repair there at his convenience. He meant, it appears, that he saw an opportunity for some small profit by obtaining these forklifts at a good price and reviving them at his home.
He proposes transporting them to the site on a truck, and then storing them in the shed. He already owns and uses an operational forklift at the property which will assist in transporting them between the truck, and the shed. The repair work itself would involve mechanical repairs including some grinding and welding and the use of hand tools like hammers, spanners, screwdrivers, pliers, and an electric drill for changing tyres, replacing batteries, changing oil and the like. He denies there will be any spray painting or panel beating work in or around the shed.
When it became apparent that amenity and, in particular, the noise of his proposed activities were vivid issues, he proffered a “noise management plan”[1] in which he gave certain undertakings including one to the effect that the hours of operation would be from 8.00 a.m. to 4 p.m. on Mondays to Fridays only. His evidence that he intended continuing his present business repairing forklifts for others on site and undertaking major repairs at the Darra premises did not sit entirely comfortably with this condition, particularly in light of other evidence that his use of the premises at Darra is unsecured and persists only on a “handshake agreement”[2]; and his frank admission that “later on[3]” he anticipated spending more time working from the shed.
[1]Exhibit 9
[2]T p.43 ll 50-60
[3]T 30.29
His proposed conditions also contained a provision that the maximum number of deliveries of forklifts, or collection of them from the site would be two per week and, again, his present circumstances and admitted future intentions render permanent adherence to that proviso a little uncertain. These remarks do not reflect upon his credit – he was an impressively frank witness – but, rather, the fact that his future plans are, not surprisingly, fluid attracted concern that any change to his present business arrangements might compel him to consider doing more work in the shed than the noise management plan presently envisages.
Council’s officers recommended approval of his application, subject to conditions, but that advice was rejected by its Planning and Development Committee and on 15 April 2003 Council determined to refuse the application on the basis that:
It is contrary to the intent of the Home Business provisions due to the impact of the activity on the amenity of the adjoining residences.
In these proceedings Council advanced expanded reasons for refusal comprising some 19 separate but interrelated issues[4]. As the evidence fell out at the hearing, and was analysed in subsequent written submissions by the parties’ legal representatives the principal issue became one which concerned compliance, or conflict with, clause 32 of the Planning Scheme (‘Home Business’), and principally, issues of amenity.
[4]Exhibit 3, pp 5-9
The appellant contended that although the business might occasionally involve activities exceeding noise limits imposed by clause 32, any conflict with the Planning Scheme would be minor and, on a proper reading of the whole Scheme, the proposal qualified as a Home Business and should be permitted. Against that, Council contended that because the proposal could not meet the requirements of clause 32 it was not a Home Business and, rather, should be categorised under the Scheme as General Industry and, therefore, an inappropriate use in a rural residential area; and, in any event, that it would have unacceptable impacts on the amenity of the surrounding area (and, that the conditions proposed by the appellant to ameliorate those impacts were impractical, and unenforceable).
A preliminary issue concerned the weight, if any, to be given to the recommendation for approval from Council staff. The appellant submitted it should be given some weight, commensurate with the fact it was not tested by cross-examination, and referred the judgment of Robin QC, DCJ in Jones v. Redcliffe City Council [2003] QPEC 061:
In some appeals, I have found internal local Government reports of this kind the most helpful ones, perhaps because, as Mr Hughes put it … at that relatively early stage there may be ‘more light and less heat as far as the debate is concerned’.
In context, His Honour’s remarks do not suggest he was necessarily of the view these reports have weight but, rather, that they might, in circumstances which would generally be unusual. After the passage set out above, he said:
In most appeals, the need for caution to be exercised in regard to such reports is clear, given that the authors of them are usually not available for cross-examination. The author of this one may well have been exposed to (even if not infected by) the enthusiasm for proposals such as the present clearly harboured by the Council and expressly set out in the DCP
In Bunnings Building Supplies Pty Ltd v. Redland Shire Council [2003] QPEC 024 Skoien SJDC analysed a similar submission at paragraphs [17]-[21] and included, in his deliberations, references to earlier cases in which this court had expressed some concern when a local authority did not act on the advice of its technical staff. His Honour discounted those concerns, firstly because these reports are generally untested by cross-examination and were, therefore, hearsay, and secondly because they were irrelevant in an appeal of this kind. At paragraph [20] he said:
… on an appeal de novo all that seems to be irrelevant. The developer carries the onus on the appeal and that is so whether the appeal is brought by the developer or the submitters. See IPA s.4.1.50. It is the court which must decide, on the evidence properly placed before it, whether the onus has been satisfied. This principle was recognised by Quirk DCJ in CSR Ltd v. Caboolture SC [2001] QPELR 348 at paras. [7] – [9]. In reaching its conclusion it would be strange, to my mind if the court ignored the rules of evidence. Finally … the Council before me led credible expert evidence in support of its refusal.
These remarks apply here. There was no evidence suggesting Council’s decision was perverse and, although the officer’s report was admitted as an exhibit it is, in this case, no more than an expression of an untested opinion, to be considered in the light of expert evidence led by Council in the appeal which, whatever other criticisms were advanced about it, was not suggested to be incredible. In those circumstances the recommendation does not aid the appellant in discharging the onus upon him.
Two other issues raised by Council – emissions, and traffic – may also be disposed of before the import of the Planning Scheme is considered, since both were the subject of largely uncontradicted expert evidence from the appellant’s witnesses, and were not addressed by evidence from the Council and only cursorily in Mr Morzone’s written submissions. The list of disputed issues[5] asserted adverse impacts from:
… the noise, dust and airborne emissions produced as a result of the proposed development.
… the nature of the traffic being heavy vehicles carrying industrial loads and undertaking industrial waste removal.
[5] Exhibit 3, pp 5-9
The uncontroverted evidence of an engineer with expertise in the assessment and monitoring of air quality, Mr King[6], showed the proposal could operate without adverse air quality impacts for other residences, and any fumes and odours from the workshop operation would be “…quite local and have minimal potential to cause impact at off-site residential areas”; and “…odours from engine exhausts would be minor and similar to that of traffic on Candlebark Road.”
[6] Exhibit 6
A very experienced traffic engineer, Mr Holland, concluded[7] and I accept that any increase in vehicle traffic on Candlebark Road caused by the appellant’s proposed activities would be insignificant; would not create a traffic hazard; and, is unlikely to affect amenity. As he also relevantly observed, under clause 32 a Home Business is permitted to include the parking, storage and/or maintenance of up to two heavy vehicles and should that occur in any premises on Candlebark Road it would involve up to 500 truck movements per annum (compared with 200, under the appellant’s proposal).
[7] Exhibit 10
A “Home Business” is defined in Part 1 of the Transitional Planning Scheme[8] as “…any industrial, trade, business or professional activities … which complies with the intent and requirements of Part V Division XI Clause 32.”This land is situated in the Rural Residential A Zone under the Scheme, for which the Scheme expresses an intent that:
[8] Exhibit 4, p.4
It is intended that this zone will allow for predominantly residential uses on larger rural residential allotments (lot sizes generally between two and ten hectares).
Uses in this zone should be generally compatible with the residential nature of the zone. Many urban services are uneconomic to provide in this zone.”
This site containing 3.44ha is, then, at the smaller rather than the larger end of the range of allotment sizes envisaged for the zone.
The Table of Zones included at Division III of the Scheme indicates a Home Business is a Column V or prohibited use on land containing less than 1.2 hectares and a Column IV use otherwise (permissible, subject to obtaining Council’s consent), but one which requires impact assessment. The Town Planners (Mr Vann for the appellant, and Mr Venn for Council) agreed that the distinction based on the area of the lot reflected a concern to ensure that buffer distances would be available on larger lots to ameliorate the adverse impacts on amenity which might arise from such things as home businesses[9].
[9] Exhibit 14 (Mr Venn’s report) paras. 2.3.10-12; evidence of Mr Vann, T129.1-10
It is also relevant that home businesses are prohibited in all residential zones other than Rural Residential A on allotments larger than 1.2 hectares and in the Rural and Rural Industry Zones; and, that the intent for the Rural Residential A Zone provides that uses within it, including rural activities, “… should be generally compatible with the residential nature of the zone.”
While s.3.5.7 of the Strategic Plan promotes, as an objective (Economic Objective 6) the growth of home based economic enterprise within environmental and amenity limits, Mr Venn has pointed to other provisions of the Strategic Plan which, I accept, emphasise an overriding concern to preserve the amenity of residential and rural residential areas:
(a) Rural Residential Objective 2, contained in s.4.6.3 seeks to ensure that development will “conserve the intrinsic character of the existing rural residential areas, especially where that character is coherent, established and of high quality.”
(b) Rural Residential Objective 7, in s.4.6.8 seeks to promote a high standard of design, safety and amenity in rural residential areas; and
(c) Environmental Objective 3 in s.3.3.2, seeks to promote “… a high standard of amenity in residential and rural residential areas; in particular to promote the qualities of quietness, safety, country atmosphere, visual attractiveness, privacy and clean air.”
Clause 32(1) speaks of confining impacts from home businesses to a level which does not “…detrimentally affect the amenity of the area”. Clause 32(1)(b) refers to this kind of use as “…generally less compatible with higher amenity residential areas …”. This site is located near the head of a cul-de-sac and surrounded by properties with detached low set dwellings also set forward on their allotments. This fairly close residential environment and the absence of other non-residential land uses in the area encouraged Mr Venn to suggest this was, indeed, a “higher” amenity residential area. Indeed, he categorised the site as exhibiting “the highest form of rural residential amenity”.
An inspection of the site and this part of Candlebark Road suggested, however, that this categorisation of the amenity put it at too high a level and, although the question may essentially be one of semantics, I was led to prefer Mr Vann’s evidence that while the area is pleasant, and has a good amenity, it is not “outstanding, or best ever”[10]. I also accept Mr Vann’s opinion that, in this case, the proper planning test to be applied to the question whether or not the proposal involves impacts which detrimentally affect amenity involves considering reasonable expectations for the amenity in the area, and the issues set out in the Planning Scheme. As Brabazon QC, DCJ said in Baptist Union of Queensland v. Brisbane City Council [2004] QPEC 041 at para. [129]:
It is natural enough that such residents would wish to maintain the existing, relatively undisturbed nature of the area. However, from a town planning point of view, their expectations must be reasonable in light of all the planning provisions applying to this land. When judged in that way, some concerns might not be maintainable. In principle, expectations should be based on a full and impartial understanding of all aspects of the planning control. They will include, for example, the possibility that consent might be given for a variety of uses in the area, some more attractive than others.
[10] T109.42-45
The question arises in the context of objections from some neighbours (and support, or at least a lack of opposition, from others). The impression of the area is one of typical rural residential activity: there was evidence of the keeping of animals, the growing of crops and the parking of heavy vehicles, and the kinds of occasional noisy activities not unexpected in these areas – power driven garden equipment; repairs on vehicles, boats and the like; and, children on trail bikes. These are of course familiar sounds, reflective of that amenity; but the particular noises which might emanate from the appellant’s proposed business will, however, be essentially industrial and may for that reason be discordant and intrusive, for reasons which are not, as Thomas J has said, easily described :
The wide ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic, and physical effects that it is likely to produce.[11]
[11]Broad v. Brisbane City Council [1986] 59 LGRA 296 per Thomas J at 299
As de Jersey J said in the same case, at 305:
There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is, or may be, put may affect one’s perception of amenity.
Clause 32(2)(f) addresses noise emanating from home businesses in detail:
(f) The activities must not create injury to, interfere with or disturb the amenity of the neighbourhood by way of visual appearance or emissions including, but not limited to, ash, dust, electrical or radio interference, fumes, grit, light, noise, oil, soot, odour, smoke, steam, vapour, vibration, waste water, or waste products.
In relation to noise, regard will be given to the following matters:
- the characteristics of the noise;
- the intrusiveness of the noise;
- the time at which the noise is made;
- the frequency of occurrence of the noise;
- the duration of the noise;
- the location where the noise can be heard;-other noises ordinarily present at the place where the noise can be heard;
-normal background noise levels for the area;
-legislative requirements in relation to noise.
Noise must not exceed the background level by more than 5dB(A) when measured at a noise sensitive place in accordance with AS1055 – 1989 Acoustics – Description and Measurement of Environmental Noise.
In situations where the activity is likely to generate a noise nuisance, it will be the applicant’s responsibility to demonstrate compliance with above noise provisions.
The Council may ask the Applicant for an Acoustic Report from a suitably qualified Acoustic Consultant if considered necessary to demonstrate compliance to the provisions.
Clause 33 does allow some discretion to Council to waive or modify compliance with these requirements. It provides:
33. Discretionary Provisions
Despite clauses 30, 31, and 32, Council may waive or modify compliance with any of the requirements contained within those clauses if a use or proposed use complies with the relevant statement of intent, and if Council considers that relaxation or modification will not result in contravention of the relevant intent having regard to:-
(a) the type of activity and the extent to which the activity achieves the ‘intent’ of the domestic use business, home occupation or home business provisions as the case may be;
(b) zoning;
(c) land area;
(d) setbacks;
(e) topography, vegetation and landscaping;
(f) existing and prospective development in the area;
(g) the likely effect on the area’s amenity, character and landscape values;
(h) the cumulative impact of development;
(i) the provisions of any relevant Development Control Plan.
It is Council’s desire to achieve a balance between the provision of opportunity for home-based business and industry and the protection and preservation of residential amenity, character and lifestyle. Consideration of requests for dispensation or modification of the requirements contained in clauses 30, 31 and 32, will be assessed with full recognition being given to Council’s desire to achieve this balance. Consequently, Council will generally only consider requests for dispensation or modification where the subject use is contained wholly within the existing dwellings, or is office and/or professionally based and is not an industrial or retail type activity (other than in relation to a designated storage area for a “Home Business”), and has no visual or noticeable impact on existing lawful uses, the area’s amenity or landscape character.
In addition Council will consider requests to use in excess of the permissible area under clause 30, 31 and 32 as the case may be, for outdoor equestrian training activities where the use otherwise fully complies with the requirements of that clause.
Notwithstanding the above, Council may require compliance with higher standards than contained within clauses 30, 31 and 32 where it is considered that compliance with such higher standards is necessary to achieve the intent of the Home Occupation and Home Business provisions.
Each party adduced highly technical evidence from engineers with expertise in measuring sound – Mr Moore for the appellant, and Mr Kamst for the Council. They agreed that the noises associated with the pickup and delivery of forklifts would exceed the limits set by clause 32(2)(f) (ie exceed the background level by more than the prescribed decibels) and Mr Kamst said, and I accept:
… The noise associated with the loading and unloading of forklifts would be perceived at the neighbouring residential properties as intrusive and uncharacteristic with respect to existing noise sources, readily audible and readily identifiable as commercial[12]
[12] Exhibit 15, para. 66
Mr Kamst’s report, and the first report from Mr Moore[13] also agreed that without any ameliorating measures noise created in the workshop (from hammering and grinding) would also exceed the limit and Mr Kamst said that with the roller door to the shed open, the excess would be high. In his second supplementary report[14] Mr Moore concluded that by partly closing the door to the shed and parking Mr Quinn’s mobile van in the doorway noise levels could be significantly ameliorated, in a way which both he (and Mr Kamst) found surprising. Some time and effort was devoted to showing these measurements by Mr Moore were inaccurate or unreliable but I do not think the question needs to be resolved. I am satisfied the proposed business involves activities generating noises of an industrial type which exceed, in some instances significantly, the limit prescribed in clause 32(2)(f). I am also of the view, for reasons expanded later, that the ameliorating measures are impractical. In particular, as Mr Quinn fairly agreed, closing the door in summer would make the workplace intolerable[15].
[13] Exhibit 7
[14] Exhibit 8
[15] T47.50-60
It was contended for the Council that the imperative “must not” in clause 32(2)(f) means that, once an adverse finding about noise is made, the proposal cannot comply with the requirements of clause 32 and cannot therefore be defined as a home business, and indeed, it is properly defined as a General Industry use which is inappropriate in the Rural Residential A zone. Clause 32 and the strictures it contains are to be considered in the context of the discretion which arises under clause 33 and the intent it expresses that:
It is Council’s desire to achieve a balance between the provision of opportunity for home based business and industry and the protection and preservation of residential amenity, character and life style.
It is this desire which explains Council’s ability to waive or modify such things as noise limits; but that discretion is itself tempered by the following passages in clause 33:
… Council will generally not support significant variations to these requirements. Councill will generally only consider requests for dispensation or modification where the subject use is contained wholly within the existing dwellings, or is office and/or professionally based and is not an industrial or retail type activity, and has no visual or noticeable impact on existing lawful uses, the area’s amenity or landscape character.
…
Notwithstanding the above, Council may require compliance with higher standards than contained within Clauses 31 and 32 where it is considered that compliance with such higher standards is necessary to achieve the intent of the home occupation and home business provisions (my emphasis).
On their proper construction clauses 32 and 33 mean that notwithstanding Council’s desire to encourage home businesses, that encouragement will usually cease at the point where there is significant non-compliance with one or more of the requirements clearly set out in clause 32(2). I am satisfied that some of the noises which would emanate from Mr Quinn’s proposed business would, even with the ameliorating measures he proposes, exceed the stipulated noise limit. I am also satisfied those noises, even if limited to week day working hours, will be perceived by local auditors as intrusive, and will be reasonably characterised by them as associated with “industrial type activities” (clause 32(3)(i)).
These findings mean there is little scope for the exercise of the discretion under clause 33 and compel the conclusion that, having regard to the definition of “home business” and the meaning and effect of clause 32, the proposed use does not fall within the definition.
Mr Quinn’s proposal faces another difficulty: although his activities would be of an industrial type, he intends performing them in a single shed with a large open space containing an area exceeding the 50 square metre limit imposed by clause 32(2)(c)(i), (although he is also permitted a further 50 square metres for storage of materials associated with the business). As figure 3 to Mr Vann’s report[16] shows, and as inspection revealed, the shed is comprised of one large open area with no division between the two areas. Mr Quinn said he is likely to be working on more than one forklift at a time, but even with the best of intentions on his part it is difficult to see how the artificial distinction between the workshop and storage areas will be maintained.
[16] Exhibit 1
Even if I was not satisfied that the provisions of clause 32 disqualify the proposal as a home business I would nevertheless find that the impact of it would detrimentally affect the amenity of the area, and that the discretion arising under clause 33 does not avail the appellant. He seeks approval for the form of home based activity which, the Planning Scheme shows, is perceived to have the highest impact[17], in a residential area exhibiting the ordinary elements of a rural residential amenity with consequences which are in conflict with the clearly defined limits on that kind of activity. The appellant has failed to persuade me that Council’s decision should be set aside.
[17] Mr Venn’s report, Exhibit 14, s.2.5
It was nevertheless suggested that proposed conditions and limitations on the business which he advanced could be transformed into conditions attached to an approval which would satisfactorily mitigate the impact of excessive noise. These appear in his application, and Exhibit 9 which offers the following “management criteria”:
1. Hours of operation from 8.00 am to 4.00 pm Monday to Friday only.
2. All service and repair work on forklifts to be conducted within the designated “workshop area” of the metal shed.
3. Maximum number of deliveries of forklifts to be serviced or repaired and collection of repaired and serviced forklifts is two per week. These deliveries and collections are conducted by a tilt-tray truck.
4. During delivery or collection of forklifts, noise sources, particularly impulsive/short duration noise sources, such as the banking of chains, to be controlled to the lowest practicable level, for example:
(a) the applicant or applicant’s representative should be present to supervise delivery/loading of forklifts;
(b) wherever possible, chains should be p laced, not dropped or thrown.
5. Drivers of tilt tray trucks coming to the home business to be advised to keep noise to a minimum, for example:
(a) approach the site along Candlebark Road slowly;
(b) drive slowly in the driveway;
(c) tilt the tray slowly.
6. Forklifts to be repaired or serviced to be stored inside the shed, to a maximum of four forklifts at any one time.
7. Van containing all of the primary tools for service and repair of forklifts to be parked in or across the large roller door of the metal shed.
8. For all forklift service and repair work, small roller door and access door to be kept closed, as well as the window in the northern wall of the metal shed. Large roller door can be open for all forklift service and repair activities in the shed.
9. Noise generated during forklift service and repair to be kept to a minimum. Some examples of noise suppression measures include:
(a) If a metal part has to be cut off, cut off using oxy rather than angle grinder.
(b) If an item has to be hammered, place the item to be hammered on a resilient surface, eg rubber matting, timber, in lieu of directly onto the concrete floor.
(c) When possible, use a “compound” head hammer in lieu of a metal head hammer.
10. Impact wrench not to be used on site.
Many of the proposed limitations are, in the context of Mr Quinn’s business and the work practices involved in it, impractical or likely to be enforceable, and would require the local authority to police them – that is, they are conditions deemed to be unworkable and against which the court has previously turned its face[18]. The use of the van as an acoustic barrier may only be practical while the appellant continues his mobile repair business which he says, he will eventually cease[19]. Other conditions are similarly dependent upon the continuation of his present business arrangements and practices and, if he begins to work more from his home noise generating activities will, it may safely be presumed, increase. His submissions about noise impacts, and the conditions he offers are, then, specific to him and his current circumstances and cannot form a sensible basis for the future conduct of a genuine home business which he, or a subsequent owner would be obliged to conduct within the strictures of clause 32. I was not persuaded that the offer of these conditions was sufficient to attract the leniency permitted by clause 33, or remove the conflicts his present proposal has with clause 32.
[18] Lewiac Pty Ltd & Ing Real Estate Joondalup B V v. Gold Coast City Council [2003] QPELR 385 per Newton DCJ at 401
[19] Exhibit 5, para. 19
IPA s.3.5.14(2) requires that an assessment manager’s decision (here, that of the Council) must not conflict with the Planning Scheme unless there are sufficient planning grounds to justify the decision. The appellant’s submissions did not specifically raise countervailing planning grounds to what I have found to be conflicts with clause 32, no doubt because it was thought the prospects of persuading the court to exercise the discretion arising under clause 33 might be stronger. In any event, it was not suggested that despite the conflicts there existed, nevertheless, sufficient planning grounds to warrant approval. The application of the tests posited in Weightman v. Gold Coast City Council [2002] 121 LGERA 161 suggest the conflicts are serious and significant and the planning grounds which might be sufficient to overcome them and “justify” approval would need, then, to be commensurably strong. Here, it might be said that the Planning Scheme evinces an intention to encourage home businesses, but little more. The fact it does so within clearly prescribed parameters means, I think, that this measure of encouragement falls a long way short of the sufficiency necessary to justify approval, despite the conflict.
For these reasons, the appeal is dismissed.
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