Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council
[2012] QPEC 22
•30 March 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council & Anor [2012] QPEC 22
PARTIES:
SERBIAN ORTHODOX CHURCH SCHOOL CONGREGATION SVETI NIKOLA
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)and
GREEN BINS
(Co-Respondent)FILE NO:
3561/2010
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 March 2012
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2012 - 2 March 2012, written submissions 9 march 2012 (appellant), 19 March 2012 (co-respondent in reply)
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Submitter appeal by long-established Church (which operates a large licenced function hall and an out-of-hours school) against approval of a waste transfer station on a site separated by a 50 metre wide mutual neighbour - after establishment whole area allocated to a future industry precinct - whether earlier approval of Church gave it precedence and protection against allegedly unacceptable impacts - traffic, ecological, noise, odour, dust, lighting and social impacts of proposal considered - concern about run-off and waterway corridor (Bullockhead Creek) nearby - expert evidence taken from members of the congregation - no conflict with Brisbane City Plan 2000 or South East Queensland Regional Plan - where use applied for already commenced without approval before development application made and continued - where no application to start use before determination of appeal.
COUNSEL:
Mr B. Cupac (member of the congregation) for the appellant
Mr J. G. Lyons for the respondent
Mr A. S. Walls for the co-respondent
SOLICITORS:
appellants are self-represented
Brisbane City Legal Practice for the respondent
Pattisons Solicitors for the co-respondent
The appeal is against the respondent Council’s approval of a development application for a material change of use for “Industry (Resource and Recovery Centre)” on a two hectare site in Bandara Street, Richlands. The Site comprises no. 24 (lot 171) and no. 32 (lot 170 on RP86573), each parcel containing about one hectare. The use, which may be better understood as a waste transfer station, has been conducted on lot 171 since sometime in 2006 when the co-respondent or some related entity purchased the land to permit expansion of Mr Dakin’s business of waste removal by way of skips or bins left at a customer’s premises for filling, which had at the outset been conducted from his home. Mr Dakin identified the proprietor of the business name “Green Bins” as Waste 2 Resources Group Pty Ltd, but it was a company called Dakin Investments Pty Ltd which provided the owner’s consent in the development application made to the Council in September 2008. The Council determined to approve the application on 12 May 2010 and a negotiated decision notice of 18 October 2010 has come to constitute the final approval which became the subject of this appeal. The appeal was instituted by Mr Zoran Lazovic in time on 1 December 2010.
The appeal grounds are that the proposed development:
(1) will compromise achievement of the desired environmental outcomes for the planning scheme area;
(2) conflicts with the South East Queensland Regional Plan 2009-2031;
(3) conflicts with the Brisbane City Council City Plan 2000;
(4) would adversely impact the environment;
(5) conflicts with the planning precedence made by Brisbane City Council for development at 48 Bandara Street, Wacol minute no. 570/69 made on the 4/3/69, “a planning approval for our site”; and
(6) would adversely impact the safety for road users.
What the notice of appeal asserts in support of grounds 4 and 5 reveals that the appeal was instituted to protect the interests of the present appellant, which came to be directly involved when Mr Lazovic passed away on a trip to Serbia.
It is not for the appellant to persuade the court that the appeal should succeed; rather, the co-respondent bears the onus of persuading the court that it should fail. The Council’s stance has been to support the co-respondent. Their efforts, combined or singly, persuade the court that the appeal should fail and that the development application should be approved.
The matter bears a significantly different complexion in the court from that which faced the Council as assessment manager. Mr Lazovic’s submission, which was in the same terms as four other submissions, stated:
“I hereby wish to object to the above proposal of a Waste Transfer Station, as it would involve a lot of heavy machinery and truck traffic through Bandara Street and a lot of dust when concrete and such is crushed at the transfer station.
I would like to see the same type of development carried through that already exists at the end of our street at Bandara Street.
Although this activity is not bothering me at this moment, I don’t think the council should approve this application based on the fact that this would not be appropriate for future development of this area.”
All submissions give a Bandara Street address. The remaining one also objects to a “Schedule 2 – Resource & Recovery Centre ERA82 Waste Transfer Station”:
“I … hereby wish to object to the above proposal of a Waste Transfer Station. This is because the entire neighbourhood will be exposed to dust and potentially harmful chemicals/materials when concrete and such is crushed and processed at the transfer station. In addition, it would involve a lot of heavy machinery and truck traffic through an already busy and noisy Bandara and Bukulla Street.
Crushing concrete and other materials are activities that need to be contained and performed in isolation. It is highly inappropriate to process waste in this area as many residents are likely to suffer deleterious health outcomes.
I sincerely hope the council considers this objection as our concerns are mutual and genuine.”
This appeal represents a hearing or determination anew of the merits of the development proposal. Neither the respondent nor the co-respondent complained of the focus in the appeal on the proposal’s impacts on the amenity available to the appellant’s premises and to those participating in activities there. Although Mr Lazovic had identified himself as the President of the Serbian Orthodox Church, 48 Bandara Street, Richlands, the Council’s officers engaged in the assessment of the development application could have had little inkling of the important issues raised by grounds 4 and 5. If it was being suggested by the appellant that Council officers ought to have informed themselves of features of the locality of the applicant’s site (which is separated from the Church’s land by no. 40 Bandara Street, another in the series of adjacent hectare blocks with a 50 metre frontage) I would not agree; nor would I agree that the Council officers ought to have identified the 1969 approval and considered the implications of it for the assessment, in the absence of some positive indication to do so.
The Church building was completed and consecrated in the mid 1970s. It sits at an angle to the street alignment as a lofty structure in its context on relatively elevated land exhibiting a distinctive architectural style. Beside it on no. 48, on the far side from the co-respondent’s site, is the modest priest’s house, one of a handful of occupied residences in the street, a couple of which (on the opposite side) are closer to the Site. Behind is a large, well-appointed hall used for various purposes such as wedding receptions and other functions (it has a liquor licence); behind that is the “school” building that can be configured in various ways. On the court’s inspection, it was set up as two small classrooms off a much larger open area. Although much was made of the “school” use, this is not a school in the conventional sense, educating children on a daily basis. It offers occasional, but regular teaching of religious and cultural matters, folkloric dancing and the like outside conventional school hours. Open areas on the Church property have been improved by sporting and recreational facilities; there is a large sealed parking area for use by persons attending, but the court heard that when attendances at church services or functions are large, parking occurs in Bandara Street. Services typically take place on Sundays but from time to time there are services on other days, for funerals and weddings, for example. The Church community acquired this site in the mid 1960s when, under the 1965 zoning, it was in the non-urban category. At that time, places of public worship were a use as of right only in Local Business. No. 48 was very much on the outskirts of Brisbane at that time. The environment and amenity would have been essentially rural; single dwellings came to be erected on the twenty or so hectare blocks in the street. In 1978 (see exhibit 38) no. 48 and most of Bandara Street became Future Industry. The Site remained non-urban, no. 32 (separated from the church only by no. 40) representing the eastern limit of non-urban. As Mr Cumming’s social impact statement records, under the 1987 Brisbane Town Plan the Church and other land surrounding was zoned Future Industry, land to the west along the Bullockhead Creek Corridor, including the co-respondent’s, was then zoned non-urban; in 1998 the corridor, excepting the immediate environs of the creek, was designated a potential industrial area between “existing and committed industrial development” to east and west in the Western Gateway Local Area Plan. Brisbane City Plan 2000 designated all of the land “Future Industry”, while protecting the creek, which is the significant environmental feature of the area.
It is understandable that the Church community view with consternation the establishment of industrial uses in Bandara Street. With justification, there is complaint that, typically, such uses start without any development approval even being sought. When the issue arises, very likely by Council intervention, development applications may be made to “regularise” the use, which is suffered to continue. Mr Dakin describes purchasing no. 24 in December 2005 and to being visited by Council Officers around March of 2006 to be advised that a development application must be made. For that purpose, he engaged a town planner and “began the application process”. He says he thought the site was appropriate, as it (like no. 32 which the original owners Bastow had rented) had been completely cleared and used to stockpile soil in an operation using 17 trucks and trailers “seven days a week” based there for some 20 years. During the application process, he says, an opportunity to purchase no. 32 Bandara Street arose so that it could be included in the application.
There is a striking lack of existing development approvals for industrial-type activities in Bandara Street, although inspection shows that they are occurring on multiple sites. A good number of the former residences, like that on the Site, appear to have been turned to service as offices. Ms Rayment’s exhibit 9 lists a number of current development applications accessible on the Council’s website and the stages they are at. The co-respondent’s is relatively well advanced. Some of the applications (for “warehouse” purposes, a number contemplating eight units) appear to be not necessarily calculated to authorise whatever uses are presently being conducted, which include at least one other (green) waste operation.
This consideration does not at all weaken the appellant’s position in this appeal, but the activities of greatest concern would appear to be those of its immediate neighbour, no. 40, where a large-scale operation involving the storage of trucks and trailers and the doing of work on them (said to involve a significant amount of sand-blasting) occurs. Father Bojicic’s affidavit (useful in setting out the multi-faceted nature of activities on the Church premises and the spread of days throughout the year when different activities may be conducted) devotes more space to complaints against the immediate neighbour than to complaints against Green Bins, although it may be difficult to separate out the contribution (if any) of each to the health problems and he and his wife encounter. Another apparently unauthorised industrial use is occurring at no. 14 on the other side of the co-respondent’s site from no. 40 and between the Site and Bullockhead Creek. This appears to be a transport depot well used by heavy vehicles, although the application before the Council (like that for no. 40 at the decision stage) is for a warehouse. Display & sale activities are also referred to in respect of no. 40.
Members of the Church community or former members or associates have given expert evidence in the appellant’s case. The observation was made by Mr Walls, counsel for Green Bins, that these are not really independent experts, which would affect the weight of their testimony. Each of them has professional qualifications and experience to justify receipt of their testimony as expert and I am satisfied there is no bar to the court’s entertaining their expert views. The appellant’s situation may well be that resources are not available to fund the services of outside experts. As it happens, the court can accept what they say in the circumstances of this appeal, given the persuasiveness of what they say. It is not necessary to apply any discounting for lack of disinterestedness. In the end, as will be seen, the planning rules presently applicable are such as to preclude the giving of effect to the views and recommendations advanced. Father Makarov of the Russian Orthodox Church gave evidence from a faith perspective of the importance of a place of worship being located in a tranquil location, beautiful if possible. Dr Marija Radojevic gave similar evidence from the perspective of a psychologist and Danika Bojicic (who is the daughter of Father Bojicic) from the perspective of an architect and fitting a church building into the surrounding environment, being the built environment (which now includes a considerable number of large sheds), that will be added to by a large structure at the rear of no. 32 which the appellant proposes will allow the emptying of skips/bins and the sorting of the contents to occur within an enclosed space. (I accept all of this evidence, subject to the qualification that Dr Radojevic may have been under a misapprehension that storage of waste on the Site, so as to make it a “dump”, was intended; that is not the proposal at all. Materials brought on to the Site in bins of up to 20 tonnes capacity are quickly sorted and removed to appropriate destinations in larger bins (63 tonnes)). I am willing to accept that, regardless of its actual impacts, the mere presence of a waste transfer facility will negatively affect the appreciation of or satisfaction derived from attending the Church premises.
There is little room and there was no real attempt on the part of the appellant to contest the proposition that industrial development is supported for the Site. The appellant pointed to particular provisions in City Plan 2000 as qualifying the Plan’s support for the particular proposal on the co-respondent’s Site, essentially on the basis of incompatibility of the proposed use with its existing “church” use which is relevantly characterised as Community uses, further or alternatively, incompatibility with residential uses. The alternative (i.e. residential focused) approach identifies rather more City Plan provisions that might avail the appellant’s case. On analysis, however, it is clear that some of the provisions relied on do not apply as contended (because the point of them is to restrict the allegedly “protected” uses rather than industrial ones) or at least strongly arguable (if provisions for the protection of “residential areas” are to be restricted to “Residential Areas” in one or other of the categories identified in City Plan) that they do not apply. While in many legislative contexts, especially where terms such as “Court” are defined, the upper case letter can make crucial differences to the way provisions apply, my inclination is to think that in City Plan, for this appeal, the omission of capital letters is accidental and has no effect – i.e. that the interpretation would be the same if upper case were used.
It is convenient to traverse City Plan for the purpose of noting the provisions identified in the appeal as relevant and making some observations upon them. They begin with the strategic planning ones in chapter 2:
“4.3.2.2 The Brisbane—Ipswich Corridor
The Brisbane – Ipswich Corridor includes substantially developed areas at Acacia Ridge and Archerfield and the developing area of Wacol and Darra.
These locations have high accessibility to the regional road network and interstate rail. They are suitable for service, light and general industries and warehousing and transport activities. The key strategic directions are to:
· sequence industrial growth in accord with the economic provision of utility and transport infrastructure
· provide buffers to existing and future residential growth areas
· develop open space corridors along creeks, wetlands and watercourses for flooding, drainage and wildlife.”
Notwithstanding the appellant’s criticism of the roads in proximity to the Site, all utility and transport infrastructure required for the project is in place. The roadworks situation will be improved by contributions of works and money required of the co-respondent. Even if the surviving handful (or two) of occupied houses amounts to a “residential area” it could not be contended that Bandara Street is in a residential growth area. Interestingly, one of the dot points for the location dealt with in 4.3.2.1 refers to the strategy to “maintain and develop adequate environmental and safety buffers to Residential Areas giving appropriate consideration to cumulative impacts” whereas, not much further on, 4.3.2.4 Smaller industrial locations envisages low impact, light industries that “will not adversely impact on nearby residential areas”. The appellant placed reliance on 4.3.2.7 Recycling industries which are identified to “have synergies with waste transfer stations” so that they would be encouraged and facilitated to locate at “two major waste transfer stations, on the south side of the Brisbane River at Willawong and on the north side at Nudgee.” This was said to indicate inappropriateness of the co-respondent’s Site, alternatively that buffering along the lines of that characterising the “two major waste transfer stations” is appropriate. These assertions must be rejected. For one thing, the waste transfer station in question here will not be a recycling industry.
The City Plan deals with various “Areas” into which the city is divided, beginning with:
“5 Residential Areas
Residential Areas are the main component of Residential Neighbourhoods in the Strategic Plan.
The Plan has 5 different Residential Areas:
· Low Density Residential Area
· Character Residential Area
· Low–medium Density Residential Area
· Medium Density Residential Area
· High Density Residential Area.
The general location of the Residential Areas throughout the City is indicated on Map C—Residential Areas. Reference should be made to the Scheme Maps to determine the exact Area Classification of a parcel of land.”
Bandara Street is not indicated. Desired Environmental Outcomes for the Residential Areas” follow in 5.1.1. It is unsurprising to find among the desired outcomes:
“2 … Maintain the character and amenity of residential neighbourhoods and the expectations of residents.”
The future industry area is dealt with in chapter 3 in 6.6:
“6.6 Future Industry Area
6.6.1 Intent
The Future Industry Area is generally suitable for future industrial purposes. Land in this Area is generally unserviced and requires considerable investment in transport and other utilities before development can occur. Many lands contain pockets of land unsuitable for development because of scenic or environmental constraints. Development in this Area must be preceded by an industrial structure plan.
6.6.2Desired Environmental Outcomes
1.Land is developed in accordance with an industrial structure plan where applicable and all services are available.
2. Development does not adversely impact on:
· areas of significant historical, architectural, topographical, landscape, scenic, bushland, biodiversity, social or cultural interest
· fauna habitats and fauna movement corridors
· wetlands and waterway corridors
· land with scenic or environmental constraints.
3.Activities including interim uses are compatible with the existing and intended use of nearby areas.”
Levant
The appellant says the Site is one of the pockets having environmental constraints. The appeal proceeded on the basis that there is no “structure plan” covering the current proposal. According to the Level of Assessment Table in 6.6.3 then following,[1] for the impact assessment which is required for relevant development in the Area (unless other arrangements are set out in a Local Plan – not the case here) a proposal is “generally appropriate” for “Industry where in accordance with a structure plan that has been adopted in accordance with the Structure Planning Code”. Any other material change of use is stated to be generally inappropriate, relevant codes being the Structure Planning Code, Industrial Amenity and Performance Code and Industrial Design Code.
So far as the dot points in 6.6.2 paragraph 2 are concerned, while the Church community and local people may well consider there is historical, architectural, social or cultural interest associated with the appellant’s use and buildings, there is no official recognition of these nor anything to particularly distinguish what happens in Bandara Street from what happens in hundreds of similar centres throughout the city. In any event, in the balancing exercise called for in this context in which industrial development is favoured, the impacts of the co-respondent’s proposal, all and any of which the court should consider, are of the kinds which in my opinion are contemplated by City Plan and should not be adjudged unacceptable. As to those dot points, Mr Zambelli’s evidence establishes that the proposal will have no adverse impact on Bullockhead Creek, given the design of it and Mr Caneris’ evidence establishes that the Site has no bushland, flora or fauna or scenic values. It is paragraph 3 that raises a greater potential difficulty for the co-respondent, since it is within contemplation that the development proposal is not compatible with the existing Community and Residential uses in Bandara Street. Compatibility does not require that a proposal facilitate, support or enhance existing uses, which, one would think, rarely will be the effect of any industrial development, that being the kind of development envisaged by City Plan for this location. Compatibility requires that the existing uses may continue, notwithstanding impacts of an industrial proposal, unless the impacts are of a kind or scale to render them unacceptable in context. The joint expert report of Ms Adams, engaged by the co-respondent and Mr Beyers, engaged by the Council, concerning noise, dust, odour and lighting, identified by the appellant as causes for concern, establishes that the proposal should not be rejected for unacceptable impacts in those categories. The appellant did not engage an expert in any of the fields alluded to above, so that the evidence is all one way, evidence which the court, in any event, finds persuasive.
Mr Viney’s expert traffic engineering evidence adduced by the co-respondent was met by evidence of Mr Vlaisaljevic, a qualified engineer and active member of the church congregation (I am satisfied that although this affiliation doubtless explains why his expertise was invoked, it has not influenced his professional opinion). Mr Vlaisaljevic has the advantage of being a local resident with years of familiarity with the local road system. Still pictures and “movies” taken by him and selectively presented to the court to illustrate his points (exhibit 32) illustrate the scope for traffic accidents with the potential to injure drivers, passengers, cyclists and pedestrians as well as cause property damage. Bandara Street can be accessed only via Bukulla Street, it being closed off at the far end so as to form a cul-de-sac, rather than link with Fulcrum Street which has many industrial uses and adjoins an industrial area beyond. A consequence is that traffic associated with the Site does not pass (or come within about 100 metres of) the Church property.[2] There is a “kink” in the middle of Bukulla Street (presumably for the purpose of accommodating a low lying “bridge” or culvert (single lane only) across Bullockhead Creek, which traverses the most low-lying terrain in the area. Bandara Street connects at the tip of the kink at a 45 degree angle to the general orientation of Bukulla Street. It seems that drivers of cars or other vehicles (trucks in particular), although not necessarily the co-respondent’s drivers, cannot be relied on to respect the giveway sign installed. Mr Vlaisaljevic considers that the sightlines available to drivers approaching the creek along Bukulla Street from Boundary Street in the west are inadequate. Mr Viney disagrees. He dismisses concerns that when overflow parking related to Church functions restricts the trafficable width of Bandara Street unacceptable increased potential for accidents arises, or may arise from erratic behaviour on the road of someone attending such functions, who may become inebriated. For the moment, while Bandara Street is closed off (a situation that the court assumes will persist), access to it is available by Bukulla Street from the west (leading to Boundary Road) and from the east, to Progress Road in particular, via Terraba Street. The road and bridge are regularly subject to flooding and what seems to me a potentially dangerous situation created by the scouring of gravel constituting the road verges that the eastern (upper) arm of the “kink” and from the Terraba Street end. This it seems can deposit a considerable depth of gravel on the bitumen surface potentially productive of instability for vehicles and not even visible when the road is inundated. The danger could be avoided by use of Terraba Street. Mr Vlaisaljevic’s photographs show that it is liable to flooding in one part as well but it was not said that the serious concerns at the culvert (where damage to guard rails confirms that not all transits by vehicles are incident-free) are duplicated. The heavy and general traffic to be generated by the proposal (even after the anticipated future expansion) will constitute such a minor part of the volumes on the roads that these traffic considerations do not amount to a ground for rejection. Concerns for pedestrians (for whom no provision is currently made and for whom crossing the culvert/bridge involves obvious risk) were overstated in my view, given that it can be inferred that virtually everyone having business at the Church premises will arrive and leave by vehicle. The conditions to which the Council’s approval subjects the proposal will bring improvements, by widening the sealed surface for 150m along the frontage and providing a sealed footpath on that side and proper 9m wide industrial crossings at the entry and exit driveways. Mr Vlaisaljevic’s analysis of the dangers is correct, but the conclusion that it leads to rejection of the proposal does not follow. The court has recognised that, for all manner of reasons, it is unrealistic to expect traffic arrangements to be Utopian or perfect. See Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPELR 593 at [20ff], citing Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPLR 41 at 43. Implementation of the proposal will not make the traffic situation appreciably worse than if Green Bins did not operate from the Site at all. The Site’s calculated contribution to traffic flows in Bandara Street has been and will be modest, even if expansion doubles it. There was criticism of Mr Viney’s traffic counts (as selecting “peak hour” wrongly); no alternative counts were made (or presented, if made); I am willing to accept the ones presented as broadly reliable.
[2]On the evidence the traffic situation in Bandara Street was far worse when it was opened to Fulcrum Street for a time.
An important feature of the present circumstances is that the use has been operating on the Site absent the requisite development approval for about six years, at a low intensity at the outset, which has increased. It is proposed to double present volumes and the co-respondent has obtained approval to conduct an Environmentally Relevant Activity accordingly. The co-respondent derives no advantage from having “got its foot in the door”, as the appellant would see matters, but nor is it to be disadvantaged or penalised in the Council’s or the court’s assessment of the merits of the application because it may have been committing a development offence (something not established). The development application is to be considered simply on its merits. This is old law in the court and its predecessors as noted in Fogg, Land Development Law in Queensland (1987):
“1. Use commenced illegally
Where there is already a use which is unlawful in terms of planning control, it may frequently be regularised by a subsequently successful application for consent.
Of what relevance is the fact of an existing unlawful use to consideration of the application by the local planning authority and on appeal? There is no formal prohibition on an application to legitimise the use. The applicant appellant in Trewheellar v. Gold Coast City Council [1981] QPLR 17 sought consent to convert an existing duplex dwelling to a small animal veterinary hospital and to provide caretaker and staff accommodation. The proposed use required consent under col. IV of the table of zones, and unlawful use of the ground floor for such a hospital had already commenced before the hearing of the appeal. In the course of allowing the applicant appeal, Row D.C.J. said: ‘Whilst the actions of the appellant in establishing the use without the approval of the council cannot be condoned, the commencement of the use without the approval of the respondent is not a matter which should in any way prejudice consideration of the appeal.’
Since the court is conducting a de novo hearing of planning and legal issues, its primary concern is whether consent should issue having regard to matters directly concerned with the impact of the proposed use or development rather that a tangential history of illegality. Although Trewheellar disclosed breach of the necessity to obtain development consent, the zoning in the scheme did not supply any clear principle for deciding the location of such veterinary uses. A similarly generous attitude is not usually demonstrated by the court where the breach consists of instituting a use in breach of the prohibited column of the table of zones, resulting in the need for a rezoning application. The relevance of illegality in these circumstances was explained by Byth D.C.J. in Sci-Fleeet Motors Pty Ltd v. Brisbane City Council [1982] QPLR 231 at 323-33:‘The matter of unlawful use of land arose in this appeal. This court is, of course, concerned with land use. As I see it, it is not the function of the Local Government Court to set out to punish or penalise unlawful using of land. There is a remedy available in the Magistrates Court for that, and the Supreme Court issues injunctions in proper cases. Nor is it the business of the Local Government Court to condone unlawful use of land. Evidence of the fact of unlawful use is admissible in the Local Government Court in appeals such as this appeal, and it is one of the matters which are considered, along with all the other relevant matters in the case.’
The applicant appeal in Sci-Fleet Motors was unsuccessful since the existing unlawful use represented an intrusion of incompatible commercial uses into a residential area, and thereby conflicted with various objectives stated in the Town Plan. Such considerations, coupled with damage to amenity and site unsuitability, will frequently doom an existing unlawful use where the quantum rezoning leap to legality is attempted.”
See now Fogg, Meurling & Hodgetts, Planning and Development Queensland 8605, citing also John Gimpel v Brisbane City Council [1988] QPLR 5, Jenner v Maroochy Shire Council [1993] QPLR 285 and in the Integrated Planning Act context Van Der Valk v Gold Coast City Council [2008] QPEC 29 at [27]. In Gimpel it was stated by Quirk DCJ at 8, “Additional loss or inconvenience suffered as a result of having to discontinue a use unlawfully commenced would be of no moment to this Court, and the determination of a planning appeal”. The authors present this as an empty warning or threat in the absence of a relevant power: “it is the merits of the hearing anew which matter”.
That is clear from the Court of Appeal’s endorsement in Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271 at [29]-[31] of the approach taken by Judge Brabazon in Westfield Management Pty Ltd v Pine Rivers Shire Council [2005] QPEC 015. His Honour considered that in assessing impacts of a proposed development it was relevant to consider whatever evidence had arisen by the time of the assessment as to the extent of those impacts. It may be said that the course of the last six years has indicated that traffic impacts are acceptable; however the Council’s conditions indicate that improvements to the road system (which will be complemented by further works required of other developers in months or years to come) are appropriate to bring things to a truly acceptable standard.
Mr Cupak, who presented the appellant’s case, being a member of the congregation of the Church, at the outset sought to have the court make an order to stop the use. It is true that the co-respondent could have made an application to be permitted to start the use notwithstanding that the approval in the Council’s Negotiated Decision Notice is one that cannot be implemented while the appeal is current, placing matters in limbo until the appeal is decided. The appellant did nothing following the court’s intimation on 6 May 2011 that there ought to be an application by it on proper notice and evidence if it wished to stop the use (see [2011] QPEC 68); it was inappropriate to devote time in the appeal process to that aspect now. Prosecution or enforcement proceedings may have been a possibility, but have not occurred. They would represent the proper way to determine whether or not a development offence had occurred and what consequences ought to follow. Local practice and culture see the local authorities (and in consequence, I suppose, the court) taking an indulgent attitude towards developers such as the co-respondent who embark on steps to “regularise” their uses and pursue their applications diligently, eschewing enforcement for prosecutions in situations like the present in the ordinary run of events.
Chapter 4 of City Plan is concerned with local plans and in particular “4 Local Plans for Outer Suburbs”. Relevant of such local plans is the Western Gateway Local Plan which contains specific additional local planning requirements and “[w]here it conflicts with the generic components of the City Plan … prevails.” Relevant Development principles are set out in provisions commencing:
“Western Gateway Local Plan
…2. Development principles
2.1The Western Gateway district is to provide a base for major industrial development and accommodate a diverse residential community. …
2.2The Darra, Inala and Richlands precincts are to contain … housing.
2.3The Inala Civic Centre is to remain the major community and retail focus for the Western Gateway.
2.4Major industrial development is to be concentrated south of the Ipswich Motorway and is to be supported by a specialised retail and commercial centre and an efficient, appropriately designed road network. The impact of industrial activities on residential areas is to be minimised through strict environmental controls and landscaped buffers.”
Although it may not matter in the result, I think that the respondent and co-respondent are correct that “residential areas” are those recognised as such by City Plan, such as the ones alluded to in 2.2. The Site is not (as areas in other precincts such as Sumner and Darra are) recognised as having existing residential development. The intent for the Precinct where the Site is located (despite its Richlands street address) is expressed as follows:
“3.1.4 Wacol Industrial Precinct
This precinct is to become an industrial area of Citywide and regional significance. Industrial activity is to generally be contained by the Ipswich Motorway, the Centenary Highway and elements of the open space and parks network. Residential development within this precinct will not be supported.”
(It might be noted that “industrial area” lacks the upper case letters used where Industrial Areas are identified in Chapter 3 Section 6.)
In the circumstances, the appellant in my view gains no support from the associated performance criteria and acceptable solutions for development, which are:
| “Performance Criteria | Acceptable Solutions |
| Where in the Wacol Industrial Precinct | |
| P9 Industrial activities must provide a buffer (shown as Transitional Area on Map A – Western Gateway Local Plan) between adjacent residential areas to protect residential amenity and industrial activity | A9.1 Vegetated buffers are provided with an indicative width of 30m from the street kerb to the proposed structure. The appropriate width and height of the vegetated buffer will be determined on a site by site basis and should address issues of the height and form of the proposed structure, and the likely impacts of the proposed activity. A9.2 Buffer areas may contain drainage functions and limited carparking” |
Map A in certain places denotes “Transitional area” but nowhere near Bandara Street; it also makes provision about residential developments in some (remote) locations.
Chapter 5 of City Plan contains codes. First to be noted is the Community Use Code, on which the appellant places reliance, in particular for the following:
| “Performance Criteria | Acceptable Solutions |
| P11 The facility must be located to ensure that users are not exposed to harmful air pollutants | A11 The proposal is not within 150m of an Industrial Area” |
The difficulty for the argument is that the Community Use Code has no application in the present case. It would apply if a developer wished to establish a Community use, such as the Church’s activities, within 150m of an industrial area, so that the Church, which for the moment does not enjoy a protective zoning, might have difficulty (if its use were not already well established) in applying for approval to conduct it on its land. It is impossible to read this provision as requiring an applicant such as the co-respondent who enjoys the advantage of an industrial area designation to keep 150m clear of any Community use. The appellant’s “precedence” argument fails in the circumstances.
Here, one might note p 13, not relied on by the appellant, whose land is not adjoining or adjacent to the Site:
| “Performance Criteria | Acceptable Solutions |
| P13 Impacts on the amenity of adjoining uses must be eliminated or mitigated | A13 Where adjacent to a residential use: · Potentially noisy activities such as intensive activity space [sic] are located to minimise impacts and comply with the Noise Impact Assessment Planning Scheme Policy · A 1.8m screen fence and landscaping is provided to maintain amenity for adjoining properties” |
The provision is noted for its tendency to confirm that Community uses may be inimical to residential ones, as Mr Cumming points out in asserting that Community use – industry may be a better combination. (It is not only noise that may create conflict, but also traffic and parking issues.)
The codes which are made relevant to the development application before the court begin with the Industrial Amenity and Performance Code which applies in assessing a material change of use for industry. One reads in s 3:
“The purpose of this Code is to:
…
· ensure that the environmental performance of industry achieves a satisfactory standard for the industrial neighbourhood and, where relevant, for sensitive receiving environments, including residential areas
| Performance Criteria | Acceptable Solutions for Code Assessment |
| … | A1 No Acceptable Solutions is prescribed |
| P2 Emissions of contaminants including air pollutants, noise, vibration, heat, light, radioactivity and electromagnetic radiation must not cause environmental harm or nuisance | A2 No significant emissions of contaminants occur beyond the boundary of the site” |
The performance criteria (which the expert evidence shows will be met if the proposal operates in accordance with the conditions) are relevant but not the acceptable solutions (which refer to the 150m buffer much relied on by the appellant) because they are stipulated only for self assessment or code assessment purposes. Green Bins’ application is impact assessable. I took it to be accepted that the residential uses, at least, constituted sensitive receiving environments or more generally were “sensitive”.
The Industrial Design Code has similar purposes, including:
“· ensure that industrial buildings near residential and other sensitive areas can accommodate a range of industrial uses without unacceptable impacts on the amenity of those areas”
The performance criteria and acceptable solutions begin:
| “Performance Criteria | Acceptable Solutions |
| P1 Buildings must be of a scale and design generally compatible with those of nearby buildings and must contribute positively to the visual character of the area, especially as seen from the street | A1.1 Building height is no more than 15m A1.2 No part of any building or structure is closer than 6m to any road frontage A1.3 The main entry to the building is easily identifiable, and directly accessible, from the street” |
and later state:
| “Performance Criteria | Acceptable Solutions |
| P6 The design of the proposal minimises noise impacts on surrounding uses | A6 The building design and layout locates potential noise sources away from sensitive surrounding uses” |
A large building indicated to be some 40m by 30m is proposed for the rear of the Site where the dumping of bins and sorting of their contents, also the loading of bins in which sorted materials will be taken from the Site can take place in an enclosed space. The Council’s conditions require that it have curtain walls, but the present proposal is to use a large shed that has become available from the airport tunnel project. This has steel walls and is likely to be superior in meeting the indicated function. It is premature to make judgments about this since there is no application for any particular structure. What is proposed in due course and will be necessary to be constructed before the use can lawfully proceed will be decided by some subsequent application for a development permit.
The Structure Planning Code (of which the co-respondent falls foul, having no structure plan) commences as follows:
“Structure Planning Code
1 Application
This Code will apply in assessing any impact assessable development including reconfiguring a lot or material change of use in an Emerging Community Area or a Future Industry Area. Subsequent development applications will be facilitated through the provision of greater detail, including a Structure Plan, at the initial application stage.”
Lack of a Structure Plan does not necessarily lead to failure of the application.
The appellant’s written submissions
The appellant was allowed seven days after completion of the hearing and with the advantage of listening to the other parties’ oral closing submissions to prepare written submissions, which came in within the time allowed. There are 113 numbered paragraphs extending over 22 pages accompanied by much more voluminous attachments. The submission deals with the relevant issues and some others. It is convenient to deal with the contents (suggestive that the appellant has had the advantage of some expert assistance) in order. Paragraphs 1-13 under the heading “Illegal Development – and Fair Hearing”:
· show awareness of Westfield Management Ltd v Pine Rivers Shire Council [2005] QPELR 532 and that this appeal is not about punishment of the co-respondent for having started development allegedly in breach of s 4.1.47 of the IPA when an application under that section to start development notwithstanding the appeal may well have failed as in Roach v Gatton Shire Council (reference not supplied).[3]
[3]The intended reference is presumably to Rauchle v Gatton Shire Council [2007] QPELR 602, which way well have been thought relevant in such an application. There the appeal by a submitter failed. See [2008] QPELR 50.
· refer to an expectation that the Council would have commenced enforcement proceedings.
· apprehend that the court may feel under pressure from the use applied for being already operating in practice to regularise it which would be “undemocratic and unfair”. It goes without saying that the court if it felt any such pressure, is required to resist it and focus on the merits (or lack of merits) of the development application.
· invoke “Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132 at 103” (“two factors alone would have been sufficient to dispose of this appeal – the level of complaints, and the provision of the draft Local Plan”) as some authority for the court in this appeal taking note not only of the number of submissions against the development application but also of the “highest level of complaints” made to the CMC by the Church School (and complaints to police, Council and other Government bodies such as the EPA and the anti-discrimination unit of the Qld Government), and rejecting the development application. Assuming that complaints over and above the submissions (which the court must take notice of) were made – they were not proved – such matters would seem to go more to punishment if (which is not established) the co-respondent has been committing development offences. Reference to Glenella Estates shows that the sentence purportedly taken from it was in fact a quotation from the reasons of another judge in a different matter bearing no resemblance to this one. It is not the number or volume of complaints that counts, but the relevance and merits of them.
· in paragraphs 14 and following complain of incompleteness of the town planning experts’ joint report, in particular in respect of the waterway corridor for Bullockhead Creek. Criticism is wide of the mark in that other experts dealt with relevant aspects. This is one of the instances in which it is contended that “best practice” documents and the like from other jurisdictions ought to be applied in this State which lacks anything comparable. In my opinion the co-respondent ought not at such a late stage in the appeal to have to confront new assertions of this kind. The Site includes no part of a waterway corridor (unlike the adjoining site in Metroplex v Brisbane City Council [2009] QPEC 110); the expert evidence is that operations will not affect the corridor.
· complain that IDAS forms were wrongly completed because in the IDAS Assessment Checklist 2.6 and 2.7 asserted no notifiable or industrial activity was conducted on the Site, contrary to what Green Bins had been doing there for some years. The town planning report accompanying the application in 5.0 clearly disclosed the applicant “has been operating a waste processing facility for several years from 24 Bandara Street” and wished to expand to no 32 as well as “streamlining its operations”; analysis of the Checklist and IPA schedule references there confirms that the questions to be answered relate to contaminated land, which the Site is not.
Paragraph 19ff is about buffers to protect existing residents, “school” and Church. Reference is made to the buffering evident at the Council’s major waste transfer station at Tilley Road. This facility is in a totally different character to the co-respondent’s. It is explained elsewhere that Bandara Street does not relevantly contain or constitute a “residential area” and that the point of “buffering” here is protection of the desired industrial uses, rather than of Residential or Community uses, even those lawfully established.
Paragraphs 29 and the following deal with a fire management buffer and fire protection, which has never been an issue in the appeal, likewise “Need”, dealt with in paragraph 37ff and again in paragraph 108ff. There has been no call for the co-respondent to confront such an issue. There is evidence to establish need, as it happens, need said to be amplified by recent changes at State level calculated to pressure businesses and industry financially to deal with their waste otherwise than by dumping it. Need is essentially irrelevant where, as here, the planning scheme favours the proposal. There is no way in which the court can do anything about costs involved in what are said to be lost or impacted “opportunities” for the appellant’s site. There was no reason for the planning experts to go into such aspects. It is inherent in most development proposals that they may impact on owners nearby. Development has caught up with the appellant, which now finds itself in an industrial area.
Paragraphs 42ff come under the heading Environmental Constraints, explained by a misleading reference to “5.2.2.2 The Intent of Future Industrial Areas” (which ought to refer to 6.6.1, it would seem). Two constraints are pointed to, the waterway corridor and the Serbian Orthodox Church School. These reasons explain the court’s view that the combination of relevant City Plan provisions and the expert evidence shows that the Site is not in or sufficiently proximate to one of those “pockets” mentioned in 6.6.1. The Local Plan does not associate the Site with any environmental constraint, as s 4.2.1 of City Plan foreshadows a Local Plan might do.
The next heading, introducing paragraphs 51ff, is Bias and incompleteness of the Town Planning Expert reports. Those experts are accused, inappropriately, of failing to get into realms which are for other experts, or failing to understand or recognise the importance of amenity and perceptions of amenity (“emotional or sentimental feelings that people may have about a place”) for the long established Church community, and their prior establishment. These submissions, it seems to me, expressly acknowledge the appellant’s central problem, which is with the planning scheme, now City Plan 2000, in the following section:
“[T]he history of the area in 1968, at the time of establishment of the Church School was not addressed in any report.
Ms Rayment in cross examination conceded that she was not aware of the content of the 1965 Town Plan, that is the Town Plan in force at the time of establishment of the Church.
The 1965 Town Plan shows that Bandara Street was a Non-Urban zone at the time of the establishment of the Church School. In Part II of Division II - Table of Zones, Column V and line Non Urban states Purposes for which buildings or other structures may NOT be erected or used of for which land may not be used “Light Industry, General Industry, Service Industries, and Warehousing”.
The existing use rights for the Church School grounds from 1968 should be relevant today. However these rights (no industry for 48 Bandara St in 1968) are washed away by Brisbane City Council Current City Plan which shows the Church School site to be Future Industry.
This is a flaw in the current City Plan – the existing use rights of the Church School site have not been protected. 1968 no industry for Church School site, 2012 industry may be permitted for Church School site.
The existing use rights of the Church School also requires other sites in close proximity to follow the 1965 Town Plan, and unreasonable expose the Church School site to industry.”
Mr Lyons, for the Council on the appeal, took the trouble to publicly recommend to the appellant that it take up opportunities imminently arising in the current review of City Plan 2000 to make representations seeking to get recognition of its concerns in future planning arrangements.
Paragraphs 67ff deal with Traffic Impacts, asserting (irrelevantly in my view) that the Council is in breach of a non-delegable duty to provide a safe, reasonable road network, and that under Wyong Shire Council v Shirt (1980) 146 CLR 40, etcetera, it would have been negligent to approve Green Bins’ development. The complaint that accident statistics for the area have not been supplied to the appellant, which asserts that the road in the vicinity of the Site “is at best a hospital trap and at worst is a death trap” may be a hollow one. The appellant pointed to no accidents. Mr Dakin, who runs the Site for Green Bins, is aware of none over the last six years.
Next come submissions (paragraphs 81ff) about the Environmental Protection Regulation 2008 Schedule 2, dealing with “regulated waste”, the category attracting most attention being asbestos. Others are mentioned such as food (and similar items that will decay) and rubber tyres. The conditions binding Green Bins include those in DERM permit no. IPCE 01278708, in part:
“W5In the event of the registered operator of the ERA(s) becoming aware of prohibited waste being commingled in any waste stream the registered operator of the ERA(s) must:
(a)cease accepting such waste;
(b)remove the prohibited waste and store in a proper and efficient manner;
(c)notify the person who sent the prohibited waste to the premises to which this development approval relates of the detection of prohibited waste in the waste received;
(d)as soon as practicable arrange for a person who can lawfully transport such waste to collect such waste;
(e)arrange for the person transporting the prohibited waste to transport such waste to a facility that can lawfully accept such waste;
(f)produce the following records:
(i)type of prohibited waste;
(ii)quantity of prohibited waste;
(iii)date of disposal;
(iv)name and address of the person(s) transporting the prohibited waste to the facility;
(v)name and address of the person(s) who generated the prohibited waste (if such person(s) can be reasonably identified).
…
Waste Composition
W9Notwithstanding any condition of this approval, the only waste accepted at the premises must be Construction and Demolition (C&D), Commercial and Industrial (C&I) and green waste excluding the following:
(a)any liquescent waste;
(b)any regulated waste;
(c)any putrescibles waste;
(d)chemically impregnated timber with the exception of minor amounts of chemically impregnated timber commingling with other waste.
(e)paper product sludges except those with a moisture content of les (sic) than 30%;
(f)contaminated soil;
(g)material that is smouldering or aflame.
Waste Records
A record of all waste must be kept detailing the following information:
a) date of pickup of waste;
b) description of waste;
c) quantity of waste;
d) origin of waste; and
e) destination of the waste.
Note: Trackable wastes as listed in Schedule 1 of the Environmental Protection (Waste Management) Regulation 2000 are not covered by this condition. Trackable wastes have similar recording requirements to this condition in accordance with a waste tracking system established under the above Regulation.”
It was apparent on the afternoon of the court’s inspection of the Site (28 February 2012) that the restrictions in W9, which I accept Green Bins tries to comply with, in particular by instructions to customers, on occasions do not have the intended effect. Odour from putrescent waste was strong on the Site, although not afterwards on the afternoon detectable on the appellant’s land. There can be no guarantee about what customers (or others) might deposit in bins before drivers come to collect them. I accept that Green Bins’ drivers are instructed to refuse to carry away bins containing anything that should not be there and that they have personnel on the Site capable of identifying so that it can be properly dealt with concerning material, such as asbestos that may get there in a bin. In principle, if Green Bins does not do the right thing, action can be taken. Concern that slips may occur, which logic and experience say is well-founded, is not a reason for rejecting the proposal.
The contention in paragraph 92ff that the proposal is a recycling industry subject to locational restrictions under City Plan 4.3.27 is rejected, as is that in paragraph 96 that its impacts cannot be mitigated, it being allegedly a “Utopian idea” to suggest that they can be.
The following paragraphs raised points dealt with elsewhere under the Industrial Design Code, as to which it should be noted that, the Site being Future Industry, it cannot successfully be contended that the s 4.3 restrictions protecting visual and general amenity of an area that are relied on would apply. Section 4.3 only applies to a Light Industry Area or, if “within 150m of a sensitive receiving environment”, a General Industry Area or Heavy Industry Area. The Site is not in any of those categories. No case is made for application here of Victorian guidelines calling for a 300m buffer distance for Waste Transfer Stations or temporary storage of industrial waste.
The appellant’s submissions do not add to the second ground in the Notice of Appeal:
“2)The proposed development conflicts with the South East Queensland Regional Plan 2009-2031
Particulars
a.Section 2.3.2 Air and Noise – because the development will not adequately separate and will not operate to ensure the impacts of air, odour and noise emissions on sensitive land uses (our site) in a way that will meet the objectives of the Environmental Protection (Air) Policy 1997and the Environmental Protection (Noise) Policy 2008 under the Environmental Protection Act 1994.
b.Section 2.3.3 Air and Noise – because the development will not separate sensitive land uses (our site) from activities that generate noise and air emissions. Because not providing adequate separation distances between industry and other sensitive land uses increases the impacts on health, amenity, quality of life and the natural environment that may result from hazards or from air or noise emissions.
c.Section 3.2 Regional landscape areas – because the development will not enhance the principle to focus coordinated planning, management and investment in priority regional landscape areas to optimise multiple community benefits. The development will not support Landscapes important to support preserving sociocultural and historical connections.
d.Section 6.3.3 because the development will not enhance healthy and safe communities or encourage increased physical activity through provision of community greenspace for outdoor recreation, sport and recreation facilities, cycling and pedestrian pathways and networks, and community spaces and facilities.
i.Because the development does not address the Planning Precedence set by the Brisbane City Council in the current local plan and the new draft plan to locate parks next to Schools or community facilities, through the provision of a park at 40 Bandara St, Richlands in the State of Queensland.
e.Section 6.5.3 because the development would have an adverse effect on providing appropriate public space for cultural activities, event and festivals on the planning scheme area.
f.Section 11.4.3 because the development will impact on the Bullockhead Creek Waterway system.
g.Part F Schedule 3 The development in (sic) not in the public interest as the community would not experience significant adverse economic, social or environmental impacts if the material change of use proposal were not to proceed.
i.A waste transfer station development is already operating on the proposed site with no development permits in place. The development has raised perceptions in the community that the development is already breaching the public’s interest.”
The current version of the Regional Plan was relied on rather than its predecessor. Accepting that, only Part F, containing the regulatory provisions, has mandatory effect, and Schedule 3 must be accounted irrelevant as its role is to provide “how to determine overriding need for the development in the public interest”. There is no occasion for considering “overriding need” here. It is not something the co-respondent has to establish.
As to the Regional Plan provisions otherwise, they set out desiderata for development in all categories in the version in the South East, not all of which can be realised: conflicting aspirations have to be accommodated somehow, usually by a balancing exercise. The Regional Plan in the Sub-regional narrative for Brisbane (pp 17-18) clearly acknowledges the South West Industrial Gateway (SWIG), which encompasses the Western Gateway Area, the Brisbane-Ipswich Corridor (and more) as an Employment (Enterprise) area, along with the CBD, Australia Trade Coast (ATC) and Northern Industrial Region; linking these “related economic activity centres” is said to be the focus of transport investment. My associate has located on the Council’s website the “Brisbane Long Term Infrastructure Plan 2012-2031” in which the CBD, ATC and SWIG are listed as the key districts for economic activity. Table 4.17 sets out SWIG projects including (close to the Site) Boundary Road – Tile Street to Progress Road in year 6-10 (it appears that Boundary Road will before too long be constructed further to the east through the Metroplex site). The present context is Green Bins’ application. I do not consider that the Regional Plan tells against it.
Concrete Crushing
An aspect of the proposal that generated concern was a particular activity of concrete crushing, converting large blocks into very small sizes useful in certain construction projects. Considerations of noise and dust obviously arose. Green Bins no longer proposes to conduct that activity, but it may nevertheless still occur on the Site, conducted by a competent operator licensed by State authorities in that regard. The court was given to understand that crushing by such an operator using its own mobile equipment might occur anywhere where there was a demand for it, presumably in accordance with relevant regulations. In those circumstances, the court can disregard this aspect as not part of the proposal.
The Queen
The appellant sent a supplementary submission by email on 15 March 2012 drawing attention to the Queen’s portrait (observed to be hanging prominently in the Hall) and to prayers for Her Majesty as Head of State being a part of most “Services in the Church”. It is said that noise “nuisance” from the planned increase in truck movements on the Site and other industrial activities is “disrespectful to God and Our Queen”. It may be that in some bygone era, intending developers would (or that it was hoped that they would) forego uses of their own sites out of delicate consideration for near neighbours – or respect for the monarchy or practise of religion and in a context like the present, say “we can’t do that, there’s a church just up the road”, or the like. If a developer like Green Bins declines to acknowledge or yield to sensitivities of that kind, there is nothing the court can or should do about it. There are enough restrictions on what people can do with their own land without courts creating new ones.
It is easy to find precedents for the appellant’s and its congregation’s situation, with which most people in the community would probably sympathise. St Mary’s Catholic Parish, South Brisbane, much in the news in recent times, publishes a History which states that its present heritage-listed building went up in 1893, replacing one of 1864:
“The residential nature of South Brisbane declined dramatically in the 1920s, as the railway and wharves contributed to a more industrial nature. Newer outer suburbs were opening up and these were more desirable areas for families. South Brisbane became an area full of industries rather than full of family homes. People who had had long association with the church no longer lived in the area. By 1964, when the school closed, there was only a small residential area around the church, and by 1980, the church was an island in an industrial area, with a small congregation and no money.”
The appellant is relatively well placed, with the support of a strong Serbian community and congregation, who for the most part would attend from distant locations. The changes in and surrounding Bandara Street (an area “in transition”) are not likely to prove so crushing. The changes will see more industrial, or light industrial uses established, especially over the Church’s back fence, if the approved Metroplex project proceeds on the enormous Sananda Barracks site - only relatively recently vacated by the military, to become available for development. There is not going to be residential development in the area, which the Church might have anticipated in the 1960s, given City Plan’s clear vision for an industrial future. The Plan provisions support the co-respondent’s proposal, rather than the appellant’s attempted use of them to establish conflict. The proposal will have impacts which in the precinct shared by the Site and the Church are shown to be acceptable in their context by the evidence of experts in ecological and wider environmental matters, traffic, also ‘noise, dust, odour and lighting’. Mr Cumming’s social impact report completes the picture. His examination of the planning and development history of the area supports his conclusion that “the general expectation … that the area was not going to progressively develop for industrial uses [is] unrealistic and somewhat surprising”. He argues that such uses and Community (church) uses are not necessarily incompatible, and draws attention to current controversy in Sydney, where the Salvation Army, Australian Churches group and Hillsong Church are battling foreshadowed planning scheme amendments to prohibit churches in industrial zones (which they have found suitable for their needs, it would seem).
The appeal is dismissed.
Impact Assessment Relevant Codes Generally appropriate
1. Building work, operational work or reconfiguring a lot on the site of a Heritage Place or within a Heritage Precinct
2. Industry where in accordance with a structure plan that has been adopted in accordance with the Structure Planning Code
3. Park where not complying with the Acceptable Solutions in the Park Code
4. Reconfiguring a lot to create additional lots where any of those lots are smaller than 10ha and in accordance with a structure plan that has been adopted in accordance with the Structure Planning Code
5. Volumetric subdivision where not associated with an existing or approved building
6. Warehouse where in accordance with a structure plan that has been adopted in accordance with the Structure Planning Code
Heritage Place Code (this Code contains
full details of when development is impact assessable)Structure Planning Code, Industrial Amenity and Performance Code and Industrial Design Code
Park Code
Structure Planning Code and Subdivision Code
Subdivision Code
Structure Planning Code, Industrial Amenity and Performance Code and Industrial Design Code
Generally inappropriate
3. Any other material change of use
Structure Planning Code, Industrial Amenity and Performance Code and Industrial Design Code
3
2
0