Reynolds v Redland Shire Council

[2000] QPEC 93

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Reynolds v Redland Shire Council & Anor [2000] QPEC 093
PARTIES:	ALLAN REYNOLDS Appellant and REDLAND SHIRE COUNCIL Respondent and RICHARD JOHN COOMBER AND PATRICIA ANN COOMBER Respondents by Election
FILE NO/S:	Appeal No. 1274 of 1998
DIVISION:	Planning and Environment Court
PROCEEDING:	Application to cancel “sunset clause” in a consent order
ORIGINATING COURT:	Brisbane
DELIVERED ON:	26 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	16, 17 October 2000
JUDGE:	Judge Robin QC
ORDER:	Application refused
CATCHWORDS:	Integrated Planning Act 1997 s. 3.5.33 – cancellation of condition – application that the court cancel a “sunset clause” in a consent order permitting a home occupation of screen printing – application refused – while impacts of the use considered above might be acceptable, the court would not add to gross noise (and odour) impacts from other activities of the applicant on his property which had been going on for years and more likely than not would continue.
COUNSEL:	The appellant appeared on his own behalf Mr S Ure for the respondent Mr S Colville (solicitor) for the respondents by election
SOLICITORS:	King & Co for the respondent Steven Colville Solicitors for the respondents by election

1. Mr Reynolds has applied pursuant to s.3.5.33 of the Integrated Planning Act 1997 for cancellation of two conditions included in a consent order made by Senior Judge Skoien on 6 August 1998 which had the effect of allowing his appeal against the Council’s rejection of his application for town planning consent to use his residence at 9 Miles Street, Amity Point “for a home occupation (screen printing)”.  The conditions sought to be cancelled are Condition 5:

“This development approval shall lapse and cease to have effect on 31^st August 2000 unless the Council agrees in writing to its extension, in which case it shall remain valid subject to any conditions specified in the notification advising of the extension.”

and Condition 16:

“A wash down area shall be provided for the washing of brushes, screens etc.  This area is to be of a hard surface and screened so that any spray does not interfere with the adjoining properties.  Collection of water runoff for disposal shall be to the satisfaction of the Manager Environment Protection and the Manager Planning and Environmental services.  Details are to be provided prior to commencement of the use and approved by the Managers, Environment Protection and Planning and Environmental Services.”

The Council no longer insists upon Condition 16. 

1. Mr Reynolds says that he has never availed himself of the approved use because the approval contemplated in Condition 16 was never forthcoming – in which respect he complains of the Council’s lack of co-operation.  The evidence does not enable the court to reach a view about where blame might lie in this respect.

1. The present application was filed prior to the “sunset clause” in Condition 5 becoming operative.

1. The Council had previously granted Mr Reynolds a similar approval, which I was told expired at the end of October 1995.  The unusual background of Mr Reynolds’ activities on his property (which is an 865 square metre residential “B” block accommodating a lowset dwelling surrounded on all sides by similar properties) and a history of difficult relationships with the neighbours, particularly Mr and Mrs Coomber, the co-respondents, and with the respondent Council led to the Council’s rejecting Mr Reynolds’ development planning application lodged 26 September 1997 notwithstanding recommendations that it be approved by the Council’s own planners (see exhibit 7, whose correct date should probably be 9 February 1998) and by the Council’s Environment, Planning & Development Committee (exhibit 8, 17 February 1998) for what may appear to be “political” reasons.  On 25 February 1998, the Council appears to have operated one of its meetings as an “open forum”; presentations, transcripts of which are exhibited to Mr Reynolds’ affidavit as Items 3 and 4, were made by the co-respondent, Mrs Coomber and by Mrs Mackenzie, who gave evidence in the co-respondents’ case.  They are neighbours, Mrs Coomber residing with her husband at 11 Miles Street; Mrs Mackenzie and her family occupy No. 7 (which is owned by other family members) for occasional holiday weekends.  Her affidavit indicates there would have been 12 to 15 such occasions over the last two years.

1. Mr Reynolds’ application attracted some 11 (hostile) submitters, three of whom shared the surname Mackenzie. 

1. The Council obtained a report of Steven Craven, an independent town planning consultant (exhibit 11, 7 July 1998) which it is convenient to quote extensively, as a useful summary of the situation:

“THE PROPOSAL

The applicant, Mr Reynolds, proposes a home occupation involving screen printing of silk, cardboard, paper and fabric and storage (presumably of materials and finished products).  Mention is also made of printing glass and timber, but not of producing the base glass and timber goods.  It is proposed to utilise a 69 m² area, in an existing garage, shade house and outdoor table.  In his application, he states his aim as making up do-it-yourself silk screen printing kits packed in screen printed boxes.  Doing so will involve –

·     the use of water and spirit based inks and domestic solvents;

·     the use of air brushing tools to be operated from an 8 cu ft air tank, necessitating top-ups from a compressor to be operated in a sound proofed box;

·     the use of a domestic clothes drier to generate heat to dry silk dyes;

·     vehicle movements that are said to be mainly limited to the applicant’s vehicle, though some visitor trips could be expected; and

·     no disposal of industrial or toxic wastes.

The applicant mentions in the application that ‘there would be no noise or dust hazard from the construction of timber and other frames’ and that ‘anything required and not described in this application will be outsourced ie. frames etc &/or any wood products’.  This is the only reference to activities other than screen printing and it suggests that such activities are not part of the proposal to which the application relates.

LAND USE ASSESSMENT

Relevance of the Applicant’s Bona Fide Intentions

My assessment examines the implications of the proposal on its merits as presented in the application, as the Council, and the Court, must do.  Notwithstanding that objections to the application raise concerns about the applicant’s bone-fide intentions, his attitude or the history of his other on-site activities, my assessment has no regard to them, even though there is a suggestion that details in the application do not fully describe the nature of all land uses on the site.

Whether or not there is a question over the comprehensiveness of the application, there is no cause or mechanism for questioning an applicant as to his bona fide intentions, unless it is clear that the use for which approval is sought could not be conducted without associated activities that are not mentioned. This does not seem to be the case here. The application must be assessed on its merits. If other activities on the site are considered inappropriate, the avenue for dealing with them is by way of alleging an offence under the Integrated Planning Act. The Council may of course specify in an approval that it applies only to the components of the proposal for which approval is sought, if necessary excluding other components.

Relevance of the Applicant

It seems to me that this is the crux of the issue, so the following comments are relevant.

If this application is approved, and its conditions will run with the land. 

Another person could purchase the premises and take over the activity without any assessment of that person’s ability to operate lawfully.  Equally, this application could have been lodged by another person and Mr Reynolds could have then assumed the reins.  It follows that the peculiarities of an applicant should not be taken into account in assessing the suitability of a proposed land use

If there is some legal precedent to the contrary, the subsequent assessment would change.

Relevance of the Locality

Amity Point is an unusually peaceful community with, as I understand it, a high proportion of retirees and weekend holiday makers.  It is fair to say that its residents and other people who resort to it do so because it is comfortably distant from the rat-race.  It could be construed that those people have certain claims on amenity that may not be made in normal urban areas.

However, other issues conspire against that position.  Firstly, the town has no formal structure – no segregation of residential, commercial and industrial areas.  The consequence is a need to seriously consider home occupations as an alternative.  As evidence, the Council approved of an application for a home occupation for a mechanic who offers RACQ service.  This is a use which I would not normally expect to be approved as a home occupation.  It also approved of Mr Reynolds’ 1994 application.  Secondly, home occupations may be positive features in Amity, because they may be the only way local residents can afford to offer a local service to their fellow residents.  Thirdly, it is reasonable to expect that the Council may encourage home occupations in the form of B&B’s, art galleries and craft activities as a way of fostering a seaside village image.

Relevance of 1994 Approval

When the Council approved Mr Reynolds’ 1994 application for ostensibly the same use, it indicated that it accepted the activity as a home occupation suited to the site and so created a precedent.  It was subject to a condition that it lapse in 12 months unless extended, suggesting a trial.  However, I understand that Mr Reynolds did not seek an extension, so the basis for the trial was not tested.  The precedent  stands.

Strategic Plan / DCP No 1

Neither document assists in assessing applications for home occupations in establishing clear guidance for assessing applications for development in Amity.

Definition of Home Occupation

The definition relates to floor area relative to the dwelling, employment of residents only, power load, signage, display of goods, load on public utilities and impacts on amenity.

In each respect, screen printing can satisfy the definition provided that it is kept at a small scale; does not operate for excessive  hours; and its potential impacts, such as noise and smell can be managed.  It is however assumed that the proposed 69 m² is larger than permitted under the definition.  It is perhaps pertinent to ask that if screen printing, or similar craft activities, are not  regarded as home occupations, what are so regarded.

SUMMARY & CONCLUSION

Small scale screen printing should be well within the realms of a home occupation.  It should also be appropriate to Amity Point, because it should be relatively inoffensive and should suit the various facets of Amity’s character.

The potential impacts of the proposal as presented in the application should be managed through attention to scale, compressor noise, and noise generally, fumes, operating hours and screening.  The conditions proposed by the Council’s planning officers generally perform that duty, though the following may also be considered –

·     noise limits could be determined after preparation of an acoustic report;

·     insistence on a large air tank will minimise the frequency of compressor use;

·     fumes, if they are an issue, could be minimised by limiting the volume of chemicals to domestic levels (say, 10 litres total);

·     operating hours could be restricted to business hours, 6 days per week.  Council could also consider a maximum number of hours per week.  Realistically though, a policy determination to that effect should be made to apply to all home occupations in Amity.

The only uncomfortable issue relates to the applicant’s history and bona fide intentions.  In my assessment though, this cannot be considered in assessing the application.”

1. Notwithstanding that it had attracted three favourable reports, Mr Reynolds’ application was refused by the Council.  Mr Reynolds appealed to this court and successfully  so, as shown by the consent order already mentioned.

1. Because of the “sunset clause” and its existence as part of the order, it is for the court, rather than the Council, which has declined to grant any extension, to consider whether or not to cancel the relevant condition, creating a right to pursue a home occupation on the property which would run with the land forever. 

1. The Council, represented by Mr Ure, took the approach that the present application of Mr Reynolds (which the Council opposed) had to be dealt with on its planning merits, and, indeed, was resistant to the suggestion that the court had a wide discretion to do what seemed to best suit the balance of convenience or to do most justice.  The Council’s contention, which I took the co-respondents, represented by Mr Colville, to support, was that adverse impacts on the neighbours’ amenity from Mr Reynolds’ activities at 9 Miles Street over the last couple of years, or a significant part of those adverse impacts, flowed from “screen printing” activities by Mr Reynolds.  Those impacts may be summarized as fumes or odours attributed to solvents (paint, thinners or brush cleaning fluids) and (perhaps) drying paints, and a business of manufacturing frames (involving sawing of wood into pieces, sanding, routing, screwing (by a powered screw driver), tacking (ie hammering) and the like).  Mr Reynolds is adamant that he has done no screen printing, except for a single test piece which he produced in court.  He acknowledged that he had continued in the last two years to pursue an interest in painting (in oils and water based acrylic paints) on canvasses stretched over wooden frames in the traditional way and that his paintings were often left standing in the open or attached to his clothes line to dry.  He denied being involved in any business of sign painting (admitting to a single commission, as a favour to a local real estate agent) or any activity by way of production of decorative frames appropriate to frame paintings or prints, which Mr Comber in particular attributed to him.

1. The Coomber-Mackenzie complaints are chiefly of noise of powered tools such as saws, routers and sanders and of fumes.  Mrs Mackenzie attributes the clogging of insect screens at 7 Miles Street on the side adjacent to No. 9, which she says she notices has occurred every time she returns to No. 7, to Mr Reynolds’ activities.  Unfortunately, the three residences are physically very close, separated by the width of a “boat port”, or less in places.  Noises and odours would be intrusive. 

1. As indicated already, the Mackenzie residence is occupied only intermittently, but the family are entitled to expect their holiday visits to be restful and pleasant.  As between Mr and Mrs Coomber and Mr Reynolds (no complaint appears to be levelled at his wife or children), it has been a sad case of the relationship of neighbours turning sour and remaining sour after an amicable start.  The Coombers moved to Amity Point  in 1972.  Mr Reynolds inherited No. 9 and moved in in 1987.  A friendly relationship turned hostile when Mr Reynolds, before too long, embarked on a program of renovations and alterations, which have changed the original house beyond recognition, and which are still going on.  It was obvious from the court’s inspection that enormous amounts of timber have been sawn, and incorporated in the residence.  Along both side boundaries, Mr Reynolds has constructed decorative fences (two metres high), the lattice  work  of which (in alternating panels) has been covered in recent months or weeks, with the effect of limiting the escape of fumes or odours – which Mr Reynolds says can only  be his wife’s cooking, as he uses no products to produce them – and noises – and to prevent the Coombers from seeing what is being done next to the wall.

1. Mr Reynolds contends the neighbours are malicious.  It seems they have been the cause of the Council instituting proceedings against him on a number of occasions.  The first of which the court heard was a prosecution in Cleveland Magistrates Court in 1994, which failed.  Then came Application No. 3 of 1995 in this court in which declaratory and injunctive relief was sought.  On 9 June 1995, the Council’s application was dismissed upon Judge McLauchlan QC “receiving the undertaking of the Respondent, Allan Reynolds, without admission, not to use the land situated at 9 Miles Street, Amity Point (North Stradbroke Island) ... for the purposes of an industry.”  It seems there was another prosecution in the Magistrates Court in 1997.

1. It is hardly surprising that once the point is reached that it is the Council which institutes proceedings, the focus has been on claims that Mr Reynolds is conducting “an industry”, or something like it, unlawfully.  Of course, whether that has been happening is not an issue for the court now.  Some photographic evidence tendered during the re-examination of Mr Coomber suggests there may have been an industry or business of manufacturing frames, but that photographic evidence goes back years and says nothing about the last two years.  As to that period, there is in evidence a diary kept by Mrs Coomber (exhibit 18) entitled Diary No. 4, commencing Wednesday, 24 June – “9 am fumes in our house” and running to Sunday, 15 October 2000 – “12.35-12.40 jigsaw”.  The diary, likewise the summary of it exhibited to Mr Coomber’s affidavit, was written by Mrs Coomber, but Mr Coomber swore he was privy to the making of the entries and vouched for them.  I would infer from its description of which the diary  which essentially (but not exclusively) records Mr and Mrs Reynolds’ activities, particularly those causing annoyance, is the fourth of its kind. 

1. The evidence suggests that, with a view to assembling “chapter and verse” the Coombers have been keeping such diaries since the late 1980s.  The entries cannot be taken as completely accurate.  A number require serious qualification.  Thus,  a reference to a 1.2 metre “fan”, which appears to describe machinery, turned out to describe a “fan” in the sense of a painted object.  The diary contains argumentative material, such as intimations that the conduct of particular kinds had been going on for years.  This millennial year begins with the lament:  “Now it is the year 2000.  Back in 1989 Dick said AR will still be a problem & he is!!”.  There are entries (of which I do not think I should take any notice) purporting to describe activities by Mr Reynolds by way of poisoning the Coombers’ plants (observed by them).  However, broadly speaking, I would accept the detailed observations of dates, times and noisy activities and identification of equipment operated as accurate.  The diary is entirely inadequate to establish anything remotely resembling operation of a frame manufacturing business.  Mr Ure relied on an entry for 28 July1999 in which there was nothing more than tacking canvas onto a frame approximately 3 foot by 3 foot and supposed observations of routing a frame or frames on 17 and 19 April 2000.  Even if there were significant framing activities going on, which has never been proved against Mr Reynolds, I would find it impossible to regard that as part of screen printing or (on its own) evidence that Mr Reynolds conducted a home occupation of screen printing in an unacceptable way.  The activity is not shown to have anything to do with screen printing. The respondent and co-respondents have presented no evidence which would lead the court to reject Mr Reynolds’ denials that (except to the limited extent he volunteered) he has engaged in screen printing.

1. Generally speaking, I accept the force of Mr Craven’s opinions.  However, the court has had the benefit (which he did not) of fairly and detailed evidence of Mr Reynolds’ activities at 9 Miles Street calculated to impact in an obtrusive and upsetting way on his neighbours, and of that impact.  The really serious impact seems to be the noise one.  The Coombers never know whether they will be subjected to noise from next door, or, once the noise starts to happen, how long it will last.  Mr Coomber put it graphically when he said:

“Well, it’s more or less ruined our enjoyment of our home.  We  -  if we try to sit out on the back verandah the then we’d – Allan starts the saw up.  It might be only one cut but we don’t know it’s going to be one cut, so what do you do?  You know the heart jumps and your stomach nerves bounce around.  We move inside.  It’s not always just one cut.  It can go for ages and we have to move in close the doors and try to get away from the sound.  And we can’t get away from the sound entirely.  You’d still get it through the house.”

(page 57 of the transcript).  They have had to put up with this (and smells) for years.  While Mr Coomber, who is to an appreciable extent acting in defence of the interests of his wife (in my assessment), was not inclined to accept it, I think that he and his wife are, or (understandably) have become highly sensitive to noise and odour intrusion emanating from Mr Reynolds’ place.  The court cannot overlook that it has never come to an end for any appreciable time.  Annoying as construction activity next door may be, it is part of modern life that construction activities next door are something all of us may have to put up with.  Mr Coomber agreed he had renovated his place over a period of six months or so.  No one would anticipate the amount of renovation/maintenance/alteration type of activity Mr Reynolds has engaged in – which it seems to me represents the bulk of the noisy nuisance activity.  I was most unimpressed with his cross-examination of the witnesses against him along the lines that they had a “choice” as to how they reacted to his activities, as to whether to be philosophical about them or angry.  He was insistent upon his right as a householder to do work on his place, taking the attitude that impacts on neighbours were of no concern.

1. Of course, these proceedings are not about whether such activities can or should be stopped or limited.  Mr Ure submitted that they are relevant in establishing Mr Reynolds’ inconsiderate attitude towards his neighbours and that no-one could feel any assurance that, if allowed to continue (or commence, assuming Mr Reynolds is correct about the situation over the last two years) the home occupation of screen printing there would be operated in compliance with other relevant conditions  which, in the order of 6 August  1998, include:-

“The use ... shall at no time interfere with the amenity of the neighbourhood by reason of noise, dust, odour, waste water, waste products or otherwise.”  (Condition 2) and

“Noise from activities at the premises shall not cause nuisance to persons at neighbouring premises.”  (Condition 12)

1. One might also note Condition 15:

“The approval for the home occupation for screen printing does not include the ability to construct timber frames or undertake framemaking.  No commercial frame making is permitted on the subject property”.

1. I am prepared, for purposes of these proceedings, to go along with Mr Craven’s approach that the assumption ought to be made that Mr Reynolds will comply with applicable conditions, and would conduct the home occupation of screen printing in accordance with the particulars set out in his application.  Likewise, I think that this court ought to accept Mr Ure’s concession that this court is not in the position of having an unfettered discretion to exercise.  Effectively, the town planning evidence suggests that Mr Reynolds’ original application ought to have succeeded, other things being equal. 

1. The matter does not end there, however.  Mr Reynolds agreed to the sunset clause.  On general principle, he bears the onus of persuading the court that he should be relieved from his agreement.  All he has to rely on, in my opinion, is that he never had the benefit of the two years of the use, or of the “trial” for two years, if the “sunset clause” is construed as providing for a trial, so that the parties might see how the use for the home occupation of screen printing worked out in practice.

1. Assuming that Mr Reynolds has not been pursuing the use (if he had been pursuing it with the consequences the other parties complain of, the “trial” must be counted a failure), this court faces the task of assessing the likely impacts, and their acceptability for the amenity of Amity Point in general, and the nearby residents in particular.  In my opinion, it would be wrong for the court to try to estimate the impacts of screen printing, considered separately, and make an assessment as to the acceptability of them.  In other contexts, such an approach might be realistic, but, here, the probability is that those impacts will come on top of continuing gross impacts of the kinds that have afflicted the neighbours.  Those may be something the court can do nothing about, but the question is whether the court ought to take the course of permitting them to be added to.  In my opinion, it ought not to. 

1. I specifically invited Mr Reynolds to say whether he would be prepared to accept cancellation of the “sunset clause” if it were replaced by a new condition that the use for the home occupation of screen printing of his premises must cease, should there be any renovation, remodelling, or alteration of his residence.  In technical terms, it seems to me such a condition could be justified, on the basis that the court, having accepted the premises in their state now, accepted their suitability for the home occupation, but would not be prepared to allow Mr Reynolds open slather (indeed, any scope) to alter the premises, potentially rendering them less suitable to house the home occupation.  Mr Reynolds rejected any such condition out of hand, relying on his right to do what he wished with his residence (he was not challenged when he asserted in his evidence that he had obtained a series of permits, to the extent that these were necessary, for all works he had undertaken); he went further, and volunteered that as his children grew, it would be necessary to modify the house to suit their and the family’s changing needs.

1. I should make it clear that, were the question whether the impacts of the  home occupation of screen printing, as described in the application, were acceptable, this court would be inclined to replace the sunset clause with a new one which would extend the operative date, so as to give Mr Reynolds the two year trial he says he has not had.  Given that he is attempting to sell the property, I would not be inclined to make an order having the effect that the home occupation use could continue forever, running with the land – there could be unacceptable risks of a transferee operating the use in an unsatisfactory way.  Approvals of uses for a restricted time are not without precedent: Stuy v Beaudesert Shire Council (1985) QPLR 376; cf Filardi v Logan City Council (1998) QPLR 233.

1. As indicated, in my opinion, the court, in the unusual circumstances of this case, should start with the unusual level of adverse amenity impacts which the existing activities at 9 Miles Street have on the amenity of the neighbourhood, impacts that will continue unabated, on the balance of probabilities.  Even if additional impacts of the proposed use were small, there would be some.  The court ought not to do anything that would add in any appreciable degree to the existing level of adverse impacts on neighbourhood amenity. 

1. In the circumstances, Mr Reynolds’ present application for cancellation of Condition 5 included in the order of 6 August 1998 must be refused.