Ryan v Brisbane City Council

[2005] QPEC 104

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Ryan & Anor v Brisbane City Council & Ors [2005] QPEC 104
PARTIES:	SEAN RYAN and JULIA ANNE RYAN Appellants v BRISBANE CITY COUNCIL Respondent And SAM TORNATORE, MAUREEN ANDERSON and PAMELA ANDERSON Co-Respondents
SAM TORNATORE Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents
MAUREEN ANDERSON Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents
PAMELA HANSEN Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents
FILE NO/S:	851, 885, 902 and 951 of 2003
DIVISION:	Planning& Environment
PROCEEDING:	Appeals
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29, 30 and 31 August 2005
JUDGE:	Alan Wilson SC,DCJ
ORDER:	1 Submitter appeals dismissed
2 Adjourn the applicants’ appeal to the 23rd day of November 2005 for further mention
CATCHWORDS:	PLANNING – PLANNING LAW – Backpackers’ Hostel – noise – balancing amenity
Integrated Planning Act 1997
COUNSEL:	Mr M Williamson of Council for the Appellants in BD 951/2003, and the Co-Respondents in BD 851/2003, 885/2003 and 902/2003 Mr T Trotter for the Brisbane City Council in all matters Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters
SOLICITORS:	MacDonnells for the Appellants in BD951/2003 and the Co- Respondents in BD 851/2003, 885/2003 and 902/2003 Brisbane City Legal Practice for the Brisbane City Council in all matters Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters

1. These appeals concern a backpacker’s hostel at 57 Annie Street, New Farm. In 2001 the proprietors, Mr and Mrs Ryan, sought approval to modify the existing premises. That application was later altered but eventually, on 5 March 2003, Council issued a Negotiated Decision Notice granting partial approval. Mr and Mrs Ryan have appealed against certain conditions attached to that Notice. Mr Tornatore, Ms Anderson and Ms Hansen (the neighbours) have appealed against the whole of the approval. The appeals were heard together.

   History

2. On 9 December 1987, permission was granted to a previous owner to allow the conversion of an existing house to a communal dwelling (youth hostel). On 19 October 2001 the current owners were granted permission for an extension to a community dwelling (backpackers), allowing the construction of a further building at the rear of the original dwelling. The owners later applied to the Brisbane City Council for a material change of use involving modifications to the existing short term accommodation premises (backpackers’ hostel) at the site. This application was amended on 22 October 2002, to incorporate some of the items raised by submitters during the statutory notification period.

3. This amended application was approved by the Council on 16 January 2003, and forms the current approval. A Negotiated Decision Notice was issued to this effect on 28 February 2003.

   The Site

4. The hostel is at 57 Annie Street, New Farm, approximately 140 metres north of the intersection of Annie and Brunswick Streets. It contains two separate buildings joined by an open concrete deck over an area designated for carparks. Both levels of the building nearest the street are used as sleeping quarters, along with the upper level of the rear building. The rear ground level is used for communal and recreational purposes, and also contains a manager’s flat.

   Surrounding Land Use

5. Annie Street contains residential dwellings in various forms and styles. The site is adjacent to a multi-unit dwelling on the southern side, 53 Annie Street, where the neighbours have units. There is a single storey detached house to the immediate north.

   The Proposal

6. The proposal involves various works. The swimming pool at the front, immediately below Ms Anderson’s unit, is to be removed and filled in and the area will then be landscaped. In the front building, some rooms and dormitories are to be altered. The carport, situated at the lower level of the concrete structure between the two buildings, will be topped with a hipped, gable ended roof covering the entire, existing concrete roof slab save for an external walkway on the north-east edge, screened on both sides. New car parking arrangements, including a parking space for a minibus used in the hostel business, are to be put in place.

7. In the Ryans’ appeal, the issues concern the appropriate car parking layout; the time at which outdoor entertainment activities should cease; whether or not amplified music should be permitted; and, lining to the external walkway. Because these issues overlap, and touch upon, the matters which concern the neighbours, it is convenient to deal with those first.

   The Issues raised by the Neighbours

8. There are seven issues raised by the neighbours. It is appropriate to use the headings adopted by them[1], with minor variations.

.

Council has incorrectly interpreted existing use rights to permit an outdoor recreation area, and the use of a minibus

[1] See Exhibit 3.

1. The neighbours contend that under the 1991 development approval, all recreation was intended to occur inside the building. The plans approved in 1991[2] show the area to the rear of the manager’s residence, behind the lower back part of the rear building, as landscaping/outdoor facilities. The plan designates nothing on the site, it is said, for recreation.

   [2] Exhibit 1, Tab 9, page 32

2. The Ryans submission is, however, that an area at the back of the site is plainly intended for outdoor recreation, even if that precise term is not used. In the alternative, they submit that as condition (w)[3] of the earlier approval says there is to be a recreation area, so the area designated for outdoor facilities would be the most likely place any outdoor recreation was intended. On either view, it seems most improbable the approval was not intended to encompass an area for outdoor recreation.

   [3] Exhibit 1, Volume 2, page 29

3. The 1991 plans do not mention the use of a minibus. The Ryans contend that a minibus is, and would be expected to be, a normal feature of a backpackers’ operation and that where a planning scheme is ambiguous or lacking in detail it should be construed in a way that places least burden on the landowner[4]. Certainly, it is unsurprising that commercial premises providing short-term accommodation might offer some kind of transport to ferry guests to and from major transport hubs.

   [4] Matejesevic v Logan CC (1984) 1 Qd R 599

4. The current planning scheme, Brisbane Cityplan 2000, envisages a minibus for short term accommodation centres[5]. A town planning expert, Mr Craven, said this Code applies to the current application as it involves a modification to premises which are defined as short term accommodation under City Plan. Mr Craven could not see how removing the minibus would improve the aspects about which the neighbours complain. In fact, on his evidence, denying use of the minibus would result in more traffic using the operation than is currently the case. I do not think Council has made any mistake in permitting its use.

   [5] Chapter 5, page 206, Performance Criteria P6

   Absence of need for outdoor recreation area

5. The neighbours have historical reasons for concern about any proposal to officially designate an area for outdoor recreation. It was not disputed that, in the past, guests at the premises have caused the surrounding residents some disturbance. This is, again, unsurprising - a backpackers’ hostel is normally the short-term residence of young adults, on holidays. Video evidence of guests’ conduct in 2000 and 2001 showed, however, that it was sometimes too noisy, or disturbing or offensive.

6. Whilst the hostel is not in the ideal situation, it has been permitted to operate for a long time. To deny an outdoor recreation area would be unrealistic. Recognising, however, the tension that arises between the nature of the operation and its location in a residential area, conditions should be imposed on any kind of permitted outdoor activity which attempt to balance these interests. This was certainly the view of all the various experts called in the case.

   Amenity

7. In their submissions the neighbours use this term, it appears, to describe detriment to their enjoyment of residential premises. They have, from time to time, had good reason for complaint but, too, quite fairly accept that conditions must be attached to the proposed development to achieve a balance[6]. It is accepted that under the current City Plan a new application to establish a backpackers hostel in this area would most likely be refused, and by today’s planning standards the presence of this hostel is anomalous. As Mr Williamson properly said, ‘…the applicant readily concedes that the use is not glistening in rectitude.’[7]

   [6] Exhibit 3, Paragraph 1.3(1)

   [7] Transcript Page 23

8. The hostel remains, however, a lawful operation and the operators, and their guests, also have a right to enjoyment of its amenity. In truth, the primary problem which might fall under this head concerns excessive noise, and the resolution of competing interests about it was central to the neighbours’ appeal.

   Noise

9. Given the nature of the hostel, there is a reasonable expectation that noise will be generated. In this close neighbourhood, it is not surprising that the noise generated by guests, and their activities, will be sometimes be an annoyance. Under this approval (and in the course of these proceedings) a number of factors have been considered by noise experts, Mr Savery and Mr Kamst, to ameliorate disturbance.

10. Mr Savery’s evidence directed attention to what he called noise triggers. Essentially, a trigger may be the first of a series of noises, not necessarily loud or annoying in itself but, with a heightened level of sensitivity arising from previous usually unpleasant experiences, the listener’s attention, and an expectation, is pricked. The issue of noise must, he thought, be evaluated at a more sensitive level than mere acoustic measurement. The evidence of the neighbours carried a strong implication these triggers have come to operate for them in that, intending no disrespect or criticism, their previous unhappy experiences meant that sometimes quite innocuous noises now have an inappropriate effect on them.

11. From what Mr Savery termed this psycho-acoustic perspective, the aim must be to eliminate or minimise these triggers, and the resulting annoyance. This evidence, with what the neighbours said, was persuasive.

12. The proposed new Noise Management plan is contained in Exhibit 14. The experts largely agree on what is necessary to improve things and reduce triggers, with two remaining areas of contention touching matters addressed in clauses C4.1 and C4.3. The first prohibits hostel guests from congregating in an approved recreation area between the hours of 10pm and 7am. Mr Kamst agrees with the 10pm limit, but Mr Savery prefers 8pm.

13. Mr Savery supports his view by distinguishing the hostel and the activities of its guests from a normal residential environment, where neighbours may have occasional gatherings of friends or family for a barbecue, party or the like, but usually infrequently. In contrast, at the hostel guests are likely to gather much more frequently.

14. As earlier remarked, and as the experts agreed, these proceedings provide an opportunity to strike a balance between the needs of the hostel and its users, and those of the surrounding residents. It is unreasonable to expect the neighbours to undergo, potentially, nightly disturbance from the noise of a group or groups of people until 10pm. Likewise, young guests at the hostel should not be forced to break up social gatherings too early. As Mr Savery said, although 8pm is not ideal for either party, it is an equitable balance between an earlier or later hour, and a fair compromise of the competing interests, and needs.[8]

    [8] T 81

15. The other area of dispute involves the playing of amplified music, which clause C4.3 addresses. Mr Savery maintains there should be no amplified music outdoors at any time. Mr Kamst, however, proposes to it if background music is played and monitored by the onsite manager to ensure the sound stays at an acceptable level, and with a nightly curfew.

16. Mr Savery argued, cogently, that background noise will not remain at a fixed level. He says that, as more people gather and conversation grows louder, the music becomes less audible to those in the gathering. The natural reaction is to turn up the volume. This is the case even with an onsite manager who may also, close to the gatherings, conclude the music is too soft and allow the volume to be increased. This evidence was logical, and persuasive. Constant music is not a feature of ordinary residential life. Nor, I think, is it an important amenity for a backpackers’ hostel. Its potential for continuous annoyance, with occasional louder peaks in the events Mr Savery anticipates, militates against allowing it.

17. The area at the front of the premises presently occupied by an empty swimming pool, just below Ms Anderson’s unit, is to be replaced with a mixture of parking and landscaping, with two options put forward for vehicle use. Option 1 allows parking, but not of the minibus. Mr Kamst preferred option 2, which envisages the bus stopping and parking there, and did not believe there would a problem with noise being emitted by guests alighting from it[9].

    [9] Exhibit 4, page 24

18. Mr Savery believes that any car parking should be kept as far as possible from Ms Anderson’s balcony.[10] From his observations, the hard stand area of a carpark will at times be used as an informal gathering space by hostel occupants. The use of landscaping would prevent this[11]. Option 1 contains more landscaping, and requires the bus to be parked in the driveway, masked from the neighbours by the hostel buildings.

    [10] T 79

    [11] Exhibit 4, page 23

19. Mr Kamst believes that if a minibus is properly maintained, and driven in an appropriate fashion, it should have little impact on neighbours.[12] He agrees that to curtail the noise emanating from noisy guests using the minibus it would be better to load or unload in the driveway of the complex, allowing the building to shield the noise away from residents of 53 Annie Street. Option 1 requires loading and unloading in the driveway. On any view, there are compelling reasons to prefer it.

    [12] T 52

20. The area of the concrete slab to be roofed is not intended to be occupied or utilised. The only place guests might gather is the walkway. To minimise any disturbance that may flow, a timber fence constructed with no gaps, or with overlapping palings, will line the walkway. There is, however, some minor disagreement about its height, and whether it should have acoustic lining.

21. It is agreed that the height should be somewhere between 2.1 and 2.4 metres. This is to not only prevent noise, but also to reduce the visibility of guests[13]. Mr Savery believed the fence should be within this height range and constructed without gaps, and with timber with a weight of 10 or 15 kilograms per square metre. Mr Kamst accepts that the fence along the western side of the walkway should be in the form of a solid timber fence, and be of a height of two metres, to achieve the appropriate degree of attenuation. Again, greater height has the advantage of decreasing noise and improving privacy.

    [13] Exhibit 16, condition 9

22. Mr Kamst does not, however, believe the walkway needs to be acoustically lined, as the area is too small for people to congregate. Mr Savery thinks there is still a need to line the fence with sound absorbent material to buffer any noise from residents at 71 Annie Street, to the east.[14] I accept the need for this acoustic lining to offer some protection to the residents in number 71 because, as Mr Savery says, ‘if we put a solid wall to the west of the walkway, we’re in essence creating a sound shell for any noise that is created to be pushed across in the opposite direction.’[15]

    [14] T 83

    [15] T 83 16 T 157 17 T 54 18 T 113 19 Exhibit 13

23. As to the hours during which the minibus may operate, both experts generally agree that the times contained in Condition 8 of the Negotiated Decision Notice should remain unchanged. The Ryans argued the 7am commencement time should be relaxed to 6.45am which, Mr Savery conceded, would be acceptable.

24. An important point made by Mr Craven is that if an 8pm curfew on outdoor gatherings is imposed, the minibus presents the most efficient way of taking guests off-site to other venues16. This alternative sits comfortably with both the retention of the minibus, and limits on the hours of use of outdoor recreation areas.

[33]     Mr Kamst was persuasive that the presence of on-site management is imperative to any attempt at noise control,17 and I did not understand any other witness to disagree. The current manager, Ms Rogers, concedes there were noise management problems in the past involving a lack of consideration by guests for the neighbours. In an effort to address these problems, Ms Rogers said all outside music was stopped and large groups were not permitted to congregate in the outdoor areas18.

1. The video shown by the neighbours19 shows the noise levels, and the conduct of hostel guests, have at times been unacceptable. It is unsurprising they are concerned that change might increase, rather than reduce, previous problems. Their legitimate concerns must, however, be considered in light of other developments since this film was made, in the years 2000 and 2001. The swimming pool is no longer used and is to be removed. An on-site manager has been appointed. There was no evidence of serious, continuing problems (at the level indicated in the video) in later times.

2. There is general agreement between the experts about some other conditions proposed by Mr Savery, with the only dispute relating to condition 20, involving nocturnal access to clothes lines. While the door to the clothes hanging area is to remain closed, it was conceded by Mr Savery that it need not remain locked between the hours of 8pm and 7am, so long as any access between these hours is in the presence of the onsite manager[20].

   [20] T 94

   Traffic

3. The neighbours submit that the carparking area has been principally used for recreation, and that the use of a minibus, in a residential area, is inappropriate[21]. As the maximum number of guests able to be accommodated at the hostel will remain at 56, there will not be any increase in traffic entering or leaving 57 Annie Street.

   [21] Exhibit 3, Ground 1.5

4. Mr Brameld, a traffic expert, says a minibus with a maximum 22 seat capacity is not much larger than a domestic vehicle[22]. It will not be the source of traffic problems. A coach, which can exceed that capacity, could cause problems and should not be permitted.

   [22] T 102

5. Of the differing carparking schemes, the benefits of Option 1 have already been identified. There was no other evidence suggesting the off-street parking it provides is inappropriate.

   Overdevelopment of Site/Conflict with the aims of the Strategic Plan.

6. The final issues raised by the neighbours may be addressed together. All the expert witnesses accept that the current proposal, and these proceedings, provides an opportunity to introduce measures which will, at least, reduce the impacts the hostel has in this residential environment.

7. It is agreed by both town planning experts that this application does not result in any significant expansion of the current lawful use[23]. The original licence was to allow accommodation for 56 people, and remains unchanged[24]. Mr Brown, a town planner, thought there was some ‘intensification’ of the development, by reason of the replacement of the centre car parks with a recreation area. However, he accepts that the offsetting conditions to be imposed will improve the operation of the hostel[25].

   [23] T 130

   [24] T 130

   [25] T 164

1. Mr Craven preferred the words ‘modification’ or ‘change’ because there is not, in his view, any increase in the level of use[26]. Whichever opinion is accepted, the changes cannot fairly be described as overdevelopment. Nor was any conflict with the planning scheme apparent; indeed, parts of Cityplan mentioned by Mr Craven appear to encourage enhancement of the amenity and character of the site[27], in the manner proposed now.

   [26] T 137

   [27] Eg, s3.3.2.2

   The Issues in the Ryans’ Appeal

2. This traverse of the matters raised by the neighbours has concurrently addressed all the issues raised in the Ryans’ appeal.

3. One additional matter arises, concerning garbage collection. All parties agreed condition 19 should not stand.

   Summary of Conditions

4. The conditions to be imposed on the development will be those appearing in the Negotiated Decision Notice of 28 February, 2003, with the following revisions:

•	Condition 7 is to be modified to exclude the use of coach, ie a vehicle with a capacity of more than 22 passengers;
•	Condition 8 is varied to permit a starting time of 6.45am, Monday to Sunday;
•	Condition 9.3 is varied to the form appearing at page (ii) of Mr Savery’s report[28];
•	Condition 13 will apply in the form appearing in the new Noise Management Plan, attached to the experts’ conclave report of 26 August 2005[29], with clause 4.1 requiring an 8pm prohibition on guests gathering in any outdoor area; and Clause 4.3 amended to read ‘amplified music is not permitted in any outdoors areas on the hostel site at any time’;
•	Condition 15 to be reworded, again in the form appearing in the experts’ conclave report of 24 August 2005;
•	Condition 19 is removed;
•	Conditions numbered 20 ,21, 23 & 24 in Mr Savery’s report will apply;
•	Condition number 22 is to take the form agreed at the conclave meeting of 24 August 2005[30];
•	The carparking layout is to be in accordance with Option 1, again as contained in Mr Savery’s report[31].
Conclusion

[28] Exhibit 9

[29] Exhibit 14

[30] Exhibit 16

[31] Exhibit 9, Page 21

1. The appeals brought by the neighbours have, in large part, failed although some variations of conditions for which they contended during the hearing have partly succeeded. In the appeal brought by the Ryans the court has exercised its power to vary the conditions of approval. The appropriate order is that the submitter appeals be dismissed, and that the applicants’ appeal be adjourned to allow preparation of a conditions package which accords with the findings in para [44].