Smalley v Whitsunday Regional Council
[2011] QPEC 105
•05/08/11
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Smalley v Whitsunday Regional Council [2011] QPEC 105
PARTIES:
PHILLIP SMALLEY
(Appellants)V
WHITSUNDAY REGIONAL COUNCIL
(respondent)And
CLIVE HUGHES AND JACQUELINE HUGHES
(Co-respondents)FILE NO/S:
Appeal No 164 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
05/08/11
DELIVERED AT:
Brisbane
HEARING DATE:
12/07/11 – 14/07/11
JUDGE:
Searles DC J
ORDER:
Appeal Dismissed
CATCHWORDS:
Unlawful Use – Storage Premises in Rural Zone – Amenity – Noise – Traffic – Dust and Odour – Surrounding Land Uses – GQAL – Reasonable Expectations of Residences – Need- Economic and Planning – Conflict with Scheme – Sufficient Ground to Overcome Conflict
COUNSEL:
Appellant: T Trotter
Respondent: B Job
Co-Respondent: Jacqueline and Clive Hughes (Self Rep)
SOLICITORS:
Appellant: IPA Law
Respondent: McCullough Robertson
CONTENTS
APPEALS
APPLICATION
ACQUISITION OF PREMISES
Zone and Locality of proposed use
SURROUNDING LAND USE
NATURE OF PROPOSED USE
SUBMITTERS
COUNCIL’S DECISION
ISSUES
STATUTORY REGIME
PLANNING SCHEME
What best describes the use?
Relevance of the existing unlawful use
CONSIDERATION OF ISSUES
AMENITY
(a)Traffic
Mr Sumen’s individual report
Conclusion re traffic
(b) Noise
Existing ambient noise
Conclusions and recommendations of noise experts in joint report
Evidence of residents re noise impactsMrs Hughes
Mr Bell
Mrs Fischer and Ms Fischer(c) Air quality
SUBMISSIONS RE AMENITY
Appellant
Dust and OdourCouncil
Reasonable Expectation
CONCLUSION RE AMENITY
PLANNERS
Joint Planning Report
Matters Agreed
Matters not agreed between planning expertsReasonable Expectation
Mr Ovenden – Council
Reasonable Expectation
Visual amenityNeed
Mr Adamson
Mr Ovenden
Mr Adamson's individual planning report
NEED
Mr Coghlin - Appellant
Mr Norling - Council
Other economic considerations
Planning need assessment
Mr Adamson's opinion of alternative sitesAppellant
Council
CONCLUSION RE NEED
IS THERE A CONFLICT WITH THE PLANNING SCHEME?
Appellant
Council
ARGUMENTS RE GQAL
Appellant
Alternative sites
Council’s responseFirst limb of test
Second limb of test
Arguments re Desired Environment Outcomes
Appellant
Council
CONCLUSION RE CONFLICT WITH THE SCHEME
Rural Zone Code
Good Quality Agricultural – Special Features Code
Natural Features Code/GQAL
Desirable Environmental Outcome
Reasonable Expectation
ARE THERE SUFFICIENT GROUNDS TO JUSTIFY APPROVAL GIVEN THE CONFLICT WITH THE SCHEME?
Appellant
Council
CONCLUSION RE SUFFICIENT GROUNDS
SCHEDULE A
APPEALS
This is an appeal against the decision of the respondent Council refusing a development application for a development permit for a material change of use for a storage shed on land described as Lot 1 on RP 705161 situated at 91 Railway Road, Delta near Bowen, North Queensland. The Co-Respondents were represented by their son Brendan Hughes and Mrs Hughes attended throughout the hearing.
APPLICATION
The application was lodged on 27 August 2009[1] and the proposed use was described as “short term storage of goods and vehicles” which use, according to the application, fell within sub-paragraph (d) of the definition of Storage Premises in the Planning Scheme[2].
[1]Exhibit 2, page 1
[2]See Schedule A, page S 1-14
ACQUISITION OF PREMISES
The Appellant purchased the subject site in July 2008, constructed a shed on it which was completed in July 2009 and then commenced operating his business out of the shed[3]. The application to construct the shed[4] described it as a “Farm Storage Shed – New Farm Shed (Private Use Only) which was incorrect because the appellant acquired the site for the purpose of conducting his current business which was not disclosed to the Council. Approval was given by a private certifier[5]. It follows that when he commenced business operations he did not have Council approval and the operation was unlawful, which it continues to be.
[3]Exhibit 8, Appellant’s statement, paragraphs 19, 20 and 23
[4]Exhibit 20, Paragraph 6
[5]Exhibit 21
Zone and Locality of proposed use[6]
[6]Exhibit 1, Adamson Report, paragraphs 4 to 12
The site is in the Rural Zone, has an area of 2.023 hectares, the shed occupying 0.75 hectares with dimensions of 30 metres x 15 metres. It is set back 20 metres from the frontage of the property to Railway Road and access is gained directly from Railway Road on the eastern side of the shed. On that side is a sealed driveway with a heavy vehicle manoeuvring area. The shed is elevated one metre above the existing ground level with some significant vegetation along the eastern boundary of the site.
To the east of the site is Lauriston Street which runs north-south from a T junction with Railway Road and joins the Bruce Highway in the south at another T junction. To the north of the site across Railway Road is the main north-south rail line for passenger and freight traffic between Brisbane and Cairns, the relevant section of which runs east-west parallel to Railway Road. Across the line running parallel to it is Chandler Road.
The site adjoins a smaller parcel of land of about 2,500 m2 to the east being Lot 1 on RP 729533 containing a dwelling and small buildings with some orchard trees. A Mr Webb who is, sadly, stricken with quadriplegia lives in a small lowset blockwork air-conditioned[7] house on this parcel.
[7]T1.6.25; 1.61.47
On the south-western corner of Railway Road and Lauriston Streets is a larger parcel , Lot 2 on RP 729533 of approximately 2.422 hectares with a house, outbuildings and a small orchard. That is the Co-Respondents’ residence. On the south-eastern corner of Railway Road and Lauriston Street is a larger parcel of 11.104 hectares being Lot 28 on RP 705151 and contains a dwelling. It is being actively farmed.
Immediately to the west of the site is a parcel of some 4.697 hectares being Lot 4 on RP 705160 also being actively farmed. There are a number of large parcels of land to the north of the site on the opposite side of the railway line also being actively farmed
One such parcel is Lot 38 on SP 113324 of 13.97 hectares actively farmed which surrounds a smaller parcel, Lot 1 on RP 715991 of 8,104 m2 again being actively farmed. There are also two smaller parcels of land on Railway Road to the north-east of the site being Lot 2 on RP 722914 and Lot 36 RP 705151 both of which are improved by dwellings and other outbuildings. Those parcels to the north of the site are all zoned Industrial.
Close to the western boundary of the site is the only railway crossing of the main north-south rail line providing the only cross line access from north of the line to Railway Road, Lauriston Street, the township of Delta and the Bruce Highway.
SURROUNDING LAND USE
The land uses surrounding the site are mixed but mostly rural with a number of non-rural uses such as the Department of Primary Industry (DPI) Research Centre, VISY Distribution Depot to the north-east and a sand and gravel extraction business further to the north-east of those sites.
In the Delta township there are a number of businesses including a BP truck stop roadhouse, a Shell service station and shop/roadhouse and commercial businesses including rural service industries.
NATURE OF PROPOSED USE
The nature of the Appellant’s present operation for which he seeks approval, is described by Mr Adamson the town planner he called, and in the Council’s Acknowledgement Notice, the public notification material and the Council Decision Notice as a Storage Shed[8] although Mr Adamson expressed the view that a more apt description would be that of an overnight freight or parcel depot[9]. I shall return to a detailed consideration of the use.
[8]Exhibit 1, Adamson Report, paragraph 27
[9]Ibid paragraph 28
The Appellant describes the nature of his business in his statement[10]. He says large road trucks[11] deliver freight to his premises in the afternoon and evening. The following day he goes to the premises at 4.00am and loads two of his smaller trucks to deliver the freight locally. The first truck contains priority freight serving farmers, plumbers, electricians, mechanics, hospital stores and pharmaceuticals in the area and those deliveries commence at about 7.30am finishing around 9.30am.
[10]Exhibit 8, paragraphs 29 to 41
[11]Exhibit 1, Adamson Report, paragraph 14
The second truck has the non-priority freight which is delivered to the Bowen town area including the CBD and Woolworths Plaza. At about 10.00am the employee loads the first truck, by now empty, with non-priority items for the Delta, Merinda and the Beaches regions and he unloads another large truck which usually arrives between 10.00am and midday. That truck usually contains some priority air freight originating from Mackay which is sorted, stacked and delivered the same day.
At about 2.30pm in the afternoon the Appellant himself completes his second round of deliveries and then returns to the storage shed to sort and load additional freight which has arrived through the day. Typically, he says, a TNT semi-trailer arrives between midday and 2.00pm and its contents are sorted until about 3.30pm ready for despatch the following morning. Any urgent deliveries, for example, machinery parts are made as and when required.
Examples of the items delivered by the Appellant are:-
| Sports goods and pharmacy supplies Avon Vaccines Ear tags for stock Hardware Vaccines for stock Movies (DVD’s, as well as movies for the picture theatres) Safety gear including hard hats and reflective vests for various activities associated Mechanical parts Stationery for commerce, including the office component of the rural industry Bank documents Irrigation (trickle) tape for the controlled release of a desired volume of water per hour Furniture Jewellery Dental supplies Engineering supplies | Doctors supplies Implement teeth, which are devices used by tractors that attach to the back of tractors for working the soil Hospital supplies Seeds for nurseries and farms Pathology Pumps Tyres Tools and sprays Vests for various activities associated with farming and packaging Hair salon products Various types of farm, machinery and components, including very large tyres for tractors Promotional material Legal documents Trace element fertilisers Troughs and tanks made of PVC Stock scales which are used to weigh the cattle at various stages of their grazing cycle |
The Appellant points to the close association between the farming and service sectors of the community with each relying on the other which gives rise to urgent requirements for the delivery of parts to farmers. When the need is immediate it is not uncommon for the farmer to collect the item from the Appellant’s premises.
Examples of urgent deliveries include delivery of air freighted seed to Queensland nurseries, vaccines for livestock to Landmark and Elders and medicine for the local piggery which has to be transferred to refrigeration within 24 hours of despatch from its consignor.
The Appellant also referred to Mulgowe Farming Company whose bean and corn growing operation for supply to Woolworths and Coles is located all around Bowen. He delivers seed consignments to that company on a regular basis together with stationary, rubber gloves, fluorescent vests and a large range of various goods associated with packing sheds and daily operations of those companies including machinery parts.
SUBMITTERS
There were two properly made submissions, namely the Co-Respondents Mr and Mrs Hughes and the abovementioned Mr and Mrs Jurgens who own a residence at 49 Lauriston Street which adjoins the site[12] to the south.
[12]Exhibit 2, pages 79 to 87
As well as the formal submitters, statements were tendered by three tenants of Mr and Mrs Jurgens who live on their property, Mr Bell[13], Mrs Fischer[14] and her daughter Ms V Fischer[15]. They all oppose the application. In support of the application were statements from Mr Boyce[16] and Mr Knight[17]. It is common ground that Mr Webb also supports the application[18].
[13]Exhibit 10
[14]Exhibit 11
[15]Exhibit 12
[16]Exhibit 18
[17]Exhibit 19
[18]T1.68.42-45; T1.6.25; appendix B to joint noise report (email from Mr Webb indicating support for the appellant).
COUNCIL’S DECISION
On 23 June 2010 the Council refused the application for the following reasons:
· The proposal conflicts with the Desired Environmental Outcomes, Zoning and identified Specific Outcomes of the Bowen Shire Council Planning Scheme 2006 and sufficient grounds have not been provided in support of the proposal despite this conflict;
· The development is in conflict with Desired Environmental Outcome (d) of the Bowen Shire Council Planning Scheme 2006, failing to protect the economic values of natural resources including good quality agricultural land, extractive and mineral resources, vegetation and water;
· The development is in conflict with Desired Environmental Outcome (e) of the Bowen Shire Council Planning Scheme 2006, failing to provide a benefit to and satisfy an economic demand of residents of the area in which it is located;
· The development is in conflict with Desired Environmental Outcome (l) of the Bowen Shire Council Planning Scheme 2006, the development does not occur in an area which is suitable and compatible with the nature of the development;
· The development is in conflict with Desired Environmental Outcome (m) of the Bowen Shire Council Planning Scheme 2006, adversely affecting the amenity enjoyed by people in the immediate area;
· The development is in conflict with Desired Environmental Outcome (n) of the Bowen Shire Council Planning Scheme 2006, failing to reflect the reasonable expectations of the community;
· The proposed use is an inconsistent use in the Rural Zone of the Bowen Shire Council Planning Scheme 2006;
· The proposal does not comply with Overall Outcome (i) of the Rural Zone Code, significantly infringing on the rural amenity of the area;
· The proposal does not comply with Overall Outcome (ii) of the Rural Zone Code, failing to protect productive agricultural land from development that leads to its alienation and fragmentation, setting an undesirable planning precedent for Council to refuse similar applications on rural land in the future;
· The proposal does not comply with Overall Outcome (iii) of the Rural Zone Code, failing to protect agricultural activities from incompatible uses and land use conflicts resulting from the location of non-rural activities on rural land;
· The proposal does not comply with Specific Outcome 6 of the Rural Zone Code, failing to minimize adverse impacts on the amenity of adjoining properties and residents; and
· Two (2) submissions have been received during the public notification period and some of the grounds of objection contained therein are considered valid concerns from a planning viewpoint.”
Pursuant to an order of his Honour Judge Rackemann of 1 February 2011, the respondent and Co-Respondent identified the grounds of their refusal and objections respectively. The Council’ grounds as notified are:-
“1. The subject land:
(a)Is within the Rural Zone in which the proposed development, comprising Industrial Purposes in the nature of Storage/Sale Activities; Transport: Terminal and Vehicle Depot are inconsistent uses;
(b)is Good Quality Agricultural Land (GQAL) which is intended to be retained for Rural Purposes;
(c)is not within, and does not adjoin, an Urban area.
2.The proposed development will unacceptably detract from the amenity of the locality in that it will produce unacceptable noise impacts upon neighbouring, and nearby, residents as a result of both on-site activities and vehicle movements on the local road network.
3.The number and type of truck movements associated with the proposed development will result in unacceptable impacts on the local road network comprising Lauriston Street and Railway Road which are not designed for those movements.
4.The proposed development is not one which is reasonably expected to occur on the subject land.
5.There is no need for the proposed development to be carried out on the subject land.
6.For the reasons identified in paragraphs 1 to 5 of these grounds, a decision to approve the proposed development would conflict with the Planning Scheme properly construed. In particular, it would:
(a)conflict with the Strategy Framework including the land use pattern identified in section 1.14 whereby:
(i)Rural land is not required to satisfy urban growth;
(ii)unconstrained Urban land in Bowen intended to accommodate urban growth and land uses, facilities and services supporting urban growth;
(b)compromise the achievement of, or conflict with Desired Environmental Outcomes (d), (e), (l), (m) and (n) in section 2.2(1); and
(c)conflict with the Rural Zone Code and in particular:
(i)the purpose of the Code;
(ii)Overall Outcomes (i), (ii) and (iv);
(iii)Specific Outcomes 01, 02, 03, 06 and 016;
(d)conflict with the Natural Features Code and in particular:
(i)the purpose of the Code;
(ii)Overall Outcome (b)(i)(B);
(iii)Specific Outcome 013;
7.There are no sufficient grounds to warrant approval of the proposed development.”
The Co-Respondents’ identified the following grounds:-
“1. The proposed development compromises the achievement of the Desired Environmental Outcomes (“DEO’s”) of the Bowen Shire Planning Scheme 2006 (“the planning scheme”), specifically;
1.1 DEO (d); as the land is identified as containing good quality agricultural land;
1.2 DE0 (e); as there is no need for the proposed development at the land;
1.3 DEO (1); as industrial development in a rural area is considered incompatible development;
1.4 DE0 (m)(i); as the proposed development would have impacts on community health and safety;
1.5 DEO (m)(ii); as the proposed development would adversely affect the amenity of the rural area enjoyed by surrounding residents;
1.6 DEO (m)(iii); as the proposed development would create an increased load on the road infrastructure servicing the land;
1.7 DEO (n); as the proposed development does not reflect the reasonable expectations of surrounding residents as to development acceptable in a rural area.
2. The proposed development conflicts with the Rural Zone Code of the planning scheme, specifically;
2.1 S06; as the proposed development fails to minimize adverse impacts on the amenity of adjacent properties;
2.2 S06; as the proposed development fails to minimize adverse impacts on the health and safety of people using the adjacent properties;
2.3 S011; as the proposed development does not provide appropriate landscaping;
2.4 SOI5; as the proposed development fails to demonstrate an appropriate onsite parking and movement system.
3. The proposed development conflicts with the Natural Features Code of the planning scheme, specifically;
3.1 Overall Outcome (b)(i)(a); as the proposed development represents industrial development alienated from like uses in the Bowen area;
3.2 S013; as the land is identified as containing good quality agricultural land;
3.3 S013; as there is no need for the proposed development at the land.
4. The Appellant failed to provide sufficient grounds to justify the approval of the proposed development, where it conflicts with the planning scheme.
5. The proposed development will have an adverse impact on the amenity of existing residents in the immediate locality. Adverse impacts include;
5.1 Increased noise from trucks, forklifts, workmen and general business operations;
5.2 Reduction in air quality due to vehicle emissions and travel on non-sealed surfaces (dust); and
5.3 Impact on residents’ quiet enjoyment of adjoining lands due to proposed hours of operation.”
ISSUES
The issues to be considered are:-
(a) amenity;
(b) needs;
(c) conflicts with the Planning Scheme; and
(d)if a conflict is found whether there are sufficient grounds to justify approval despite that conflict[19].
[19]Written submissions – Appellant, paragraph 52; respondent, paragraph 24, the co-respondents did not make the final submissions.
STATUTORY REGIME
Given that the application was made on 27 August 2009, before the introduction on 18 December 2009 of the Sustainable Planning Act (SPA), and the Appeal was instituted on 28 July 2010, SPA s 819(5)(b) requires that the Appeal be heard as if SPA had not commenced.
The application was impact assessable under the relevant Bowen Shire Council Planning Scheme 2006 (Scheme) and falls to be determined under s 3.5.5 of IPA. In the event of a conflict with the Scheme, s 3.5.14(2) of IPA mandates that any assessment must not compromise the achievement of the desired environmental outcomes of the Scheme or conflict with that Scheme unless there are sufficient grounds to justify the decision despite the conflict.
PLANNING SCHEME
I have set out in Schedule A to the judgment copies of the relevant extracts from the Scheme.
What best describes the use?
Before turning to the issues I return to the question of exactly what the Appellant’s proposed use of the premises is by reference to the Planning Scheme. As I have set out earlier it was described in the application as storage premises but in Council communications and the public notification as a storage shed. The former is defined in the Scheme, the latter is not. Mr Trotter for the Appellant submitted[20] that the term “storage premises” in the application is inapt and resulted from the Appellant preparing the application without specialist independent advice. He says that the use is best described as overnight parcel depot or a postal service given that the parcels are usually of fruit box size and delivered to the Appellant’s shed, unloaded by forklift and into the Appellant’s two small trucks and then delivered locally.
[20]Written submissions, paragraphs 26 to 29
He points to the definition of “storage premises”[21] and identifies the following elements of the definition which are not in any way descriptive of the subject use:-
“ (a) a builder’s yard or construction or earthmoving contractor’s yard;
(b) a container depot;
(c) a mini storage or self storage facility;
(d) otherwise used for the storage and handling of goods generally in bulk.”Further he says they do not include the likes of:-
“ (a) … inspecting, clearing and routine servicing of vehicles from containers;
(b) storage of goods in covered stacks or enclosed structures not being a building, but being in the nature of silos, bins, tanks (whether or not underground) or transport containers.”[21]Schedule A, pages 1-14
The suggested appellation of overnight parcel depot is not defined in the Scheme but “postal service” is within the definition of Local utility[22] which is a use consistent with the Overall Outcomes of the Rural Zone Code provided, of course, compliance with Specific Outcome 2 is established[23].
[22]Schedule A, pages 1-9
[23]Schedule A pages 3-9 and 3-10
I am not persuaded that the Appellant’s operation fits the description of a postal service which to my mind connotes services beyond the receival and distribution of a transport item. A postal service suggests the provision of the services one would expect at a local post office albeit not a GPO.
But in any event, and consistent with the submissions of the Council, I think the focus should be on the activities constituting the use rather than seeking to fit that activity into a definition within the Scheme. As Mr Job for the Council submitted[24] picking up the opinion of the Council Planner Mr Ovenden as “the proposal is what it is (as described in the application and supplementary information on vehicle movements …) and an assessment can and has been made on the potential impacts associated with the proposal and the acceptability of the use on the site.[25] Of course, in terms of any approval granted, it will be for the use sought namely Storage Premises.
[24]Written submissions, paragraph 49
[25]Joint Report Exhibit 3, Tab 7, para 19
Relevance of the existing unlawful use
Before considering each of the issues in turn it is important to record that the Appellant’s application is one to regularize an existing unlawful use of the land. It is established that an Appellant in such a position should derive no advantage from the fact that he has an existing operation on site already. As the Court of Appeal said in Leda Holdings Pty Ltd v Caboolture Shire Council[26]:
“… those references are to cases in which Planning and Environment Court judges considered it inappropriate to allow any advance to an Appellant as a result of the commencement of the use contrary to the provisions of a planning scheme, but recognize that the fact a use was already under way had some consequences which could be regarded as relevant in the determination of an appeal to that court. One was that it allowed a real assessment of the impact that the proposal under appeal would have on the amenity of the area and on environmental matters, noise, nuisance and the like. I respectfully agree with that approach …’
CONSIDERATION OF ISSUES
[26][2006] QCA 271 at [31]
AMENITY
(a)Traffic
Traffic engineers, Mr Sumen (Appellant) and Mr Patani (Council)_ provided a joint report[27] and Mr Sumen provided a further individual report[28]. In the joint report the experts discussed traffic issues by reference to:-
[27]Exhibit 3 Tab 1
[28]Exhibit 6
· Noise impacts;
· Suitability of the road surface and structure;
· Suitability of the traffic environment;
· Suitability of the proposed access arrangement;
· Suitability of the proposed on-site parking arrangements.
The only issue of disagreement was in relation to the noise impacts.
As to noise, Mr Patane expressed the view that whilst the road widening proposed would reduce the road maintenance needs it would not significantly reduce the road noise on surrounding roads resulting from the deceleration of heavy vehicles approaching the Lauriston Street/Railway Road T junction intersection. Further he considered that the proposed noise barriers may assist in the reduction of noise at the nearby residential dwellings but he did not consider those noise barriers to be practical because:-
(a) they would be out of character for rural land use;
(b) may form a visible obstruction affecting the aesthetics of the area;
(c) they can require high maintenance to ensure noise reduction depending on the type of wall used;
(d) they may not reduce the noise to acceptable levels given the distance between the subject site and other properties;
(e) they are a last choice option when all other options have been exhausted;
(f) they are not expected typically by residents in a rural zoning;
(g) they may reduce site distances around the Lauriston Street/Railway Road curve when placed on the road reserve boundaries; and
(h) they require an assessment by noise experts to assess the noise wall effected.
In effect, aesthetics aside, Mr Patane was venturing into areas better able to be addressed by noise experts which both he and Mr Sumen conceded[29].
[29]Joint Report para 3.1.2
Mr Sumen’s individual report
Mr Sumen’s individual report really did no more than repeat the content of the joint report, and Mr Patane’s objections to the noise barriers, concluding that the issues raised by him were matters for noise experts.
Conclusion re traffic
The upshot of these reports is that there is no issue on traffic apart from the noise aspect which has been dealt with by appropriate experts.
(b) Noise
Noise experts, Mr King (Council) and Mr Savery (Appellant) provided a joint report[30] and Mr Savery provided a Noise Management Plan[31]. In relation to the site, surrounding land uses and sensitive noise receptors, the experts agreed on the following:-
[30]Exhibit 3, Tab 6
[31]Exhibit 14
(a) as to surrounding land uses they marked those on an aerial photograph as follows:-
(i) noise sensitive receptors (residences);
(ii) Queensland Rail main north-south rail line;
(iii) railway crossing (Railway Road, train whistle signs (x 2);
(iv) DPI Bowen Research Station;
(v) Bruce Highway;
(vi) BP Truckstop Roadhouse;
(vii) Shell Service Station and Shop/Roadhouse;
(viii) VISY Packaging Distribution Centre;
(ix) Sand and gravel extraction site;
(b)Between 18 and 25 trains per day (average of 21 trains per day per weekday) pass the site including two coal train pass bys in each direction to the Bowen Cokeworks;
(c) The rail line included whistle signs at a distance of approximately 400 metres from the rail crossing where train drivers were required to sound the train horn at the sign during the day and night when approaching the crossing to warn road vehicles or pedestrians near the crossing of the approaching train;
(d) The VISY Distribution Shed to the north of the rail corridor has semi- trailers delivering packing materials to the shed for distribution to local vegetable and fruit growers. The peak packing season is from May to October during which time 8 to 9 semi-trailers per day make deliveries to the shed. It is quite common in that peak period for one or more semi- trailers to be waiting at the shed to be unloaded at 6.00am when the VISY workers arrive at work by private vehicle. Those semi-trailers travel approximately 960 metres parallel to the rail line from the level crossing on the northern side of the rail line along Chandler Road before turning north towards the VISY Shed;
(e) The sand and gravel business processes sand and gravel from the Don River north of the rail corridor and trucks carting sand and gravel may access the Bruce Highway from the sand and gravel pit by the level crossing to Railway Road and then into Lauriston Street. The number of trucks per day from this enterprise is not known;
(f) The Queensland Department of Primary Industries Bowen Research Centre is on the northern side of the rail corridor and is accessed by staff vehicles and trucks which are mainly four wheel drives and rigid wheel based trucks;(g) Six noise sensitive receptors (residential dwellings) shown on Figure 1 to the report are located in the area near the subject site, of which one is of brick veneer, one of concrete blockwork, one of cement sheeting and weather board and three of weatherboard construction.
Existing ambient noise
Mr Savery inspected the site on Thursday, 17 April and Friday, 18 April 2011 and was present during the arrival in the evening of three line haul truck deliveries to the site (two semi-trailers and one B-double) on Thursday, 17 April between 8.35pm and 9.15pm[32]. He expressed the following opinions in relation to the ambient noise environment he encountered:-
(a)the dominant regular contributor to the ambient noise environment during the day was the traffic noise from the Bruce Highway. In the evening and night the most significant continuous contributor to the existing ambient noise levels were from insects with peak traffic noise events noticeable on the Bruce Highway resulting from the truck traffic;
(b) other noise contributors from short duration noise sources were trains, train warning horns, birds, dogs and local vehicle traffic travelling on Lauriston Street and the associated road network on both sides of the rail corridor.
[32]Joint Report, paragraph 11
Mr Savery also monitored the ambient and background noise of the site between 14 and 18 April 2011 using a Soundbook Type 1 Noise Analyser on a tripod in a position shown in Figure 2 of the joint report. A second noise logger was also set up being a CESVA 310 Type 1 logger. These were both used to measure the ground noise levels.
Based on information provided by the Appellant as to the times, vehicle types and forklift specifications for the typical operations of his storage shed[33] Mr Savery said:-
(a)Line haul freight trucks travel to the shed from the Bruce Highway via Lauriston Street and Railway Road and turn into the site and do a U turn on the turning area before stopping facing the railway line with the rear of the truck approximately in line with the roller door midway along the side of the shed[34];
(b)Items are then unloaded by forklift and carried into the shed for transit storage;
(c)The time at the site between arrival and departure of the trucks is 10 to 25 minutes with an average of 17 minutes;
(d)There may be typically up to 7 line haul freight trucks visiting the shed per day, depending on the day;
(e)As to semi-trailers, one arrives on each of Tuesday to Saturday before 6.00am and two each day from Monday to Friday between 6.00pm and 10.00pm. As to B-Double trucks none arrive prior to 6.00am but one each arrives from Monday to Friday between 6.00pm and 10.00pm[35]
[33]Ibid p 25, appendix A; table 3, p 8.
[34]Ibid 39
[35]Ibid, page 7, paras 37-41.
Mr Savery and Mr King agree the noise sources from the Appellant’s operation fall into three groups:-
(a) truck pass by noise, namely line haul trucks arriving and departing from the site on Lauriston Street and Railway Road;
(b) truck unloading/loading noise sources namely line haul trucks entering the site, doing a U turn, air brake release, sliding door openings, forklift loading and unloading goods, door sliding closed, truck engines starting and truck departure from the site; and
(c) shed sources emanating from the movement of goods inside the shed using a forklift, staff noises, reversing alarms, opening and closing of front roller doors; opening and closing of sliding door, staff vehicles parking on the site and customer vehicles visiting the site on occasions.As to noise times, it is agreed that they are prior to 6.00am, 6.00am to 6.00pm and 6.00pm to 10.00pm.
Conclusions and recommendations of noise experts in joint report
In the result Mr Savery concluded:-
(a) the site may be used as a storage shed without causing adverse impact to the surrounding receptors having regard to the existing ambient environment and the irregular and maximum traffic pass by noise from both rail and road traffic occurring through the day, evening and night;
(b) the number of maximum noise events associated with the line haul truck operators in the evening and night periods, although potentially noticeable to the nearby receptors, have noise levels that are not dissimilar to the existing train or road sources and are therefore not more liable to cause adverse impacts than the existing sources during those periods;
(c) the noise level of the single line haul truck on Lauriston Street accessing the site in the night period generally prior to 6.00am complied with the relevant Guideline, 20% Probability Sleep Disturbance Criteria for closed windows on arrival but in excess of that on departure. He recommends an imposition of a speed limit on Lauriston Street near the intersection with Railway Road to ensure compliance with the Guideline;
(d) a three metre high acoustic and landscaping barrier should be constructed parallel to the eastern boundary of the site to provide attenuation of truck manoeuvring noise on the site and am improved visual barrier to the nearby eastern receptors; and
(e) a suitable noise management plan should be put in place with recommended operating times from 5.00am to 10.00pm Monday to
Saturday, and midday to 6.00pm on Sunday.
Mr King expressed the following views:-
(a) the assessment of noise amenity impacts by Mr Savery is a comprehensive assessment;
(b) however a significant concern with respect to noise amenity is the operation of the Appellant’s facility prior to 6.00am;
(c) sleep disturbance numerical limits would be exceeded at nearby residences by trucks travelling on Lauriston Street and Railway Road. These limits are regularly exceeded as Mr Savery has demonstrated in his assessment;
(d) an appropriate operation period would be between 6.00am and 10.00pmMr King then set out a series of conditions which he considered should be imposed upon any approval and Mr Savery agrees with those except for the starting time of 6.00am, he adhering to his opinion that 5.00am would be appropriate. As I have said Mr Savery has put before the court[36] a comprehensive noise management plan which the Appellant is agreeable to implementing.
[36]Exhibit 14
As can be seen from the above the only issue between the noise experts is not that approval for the operation of the Appellant’s enterprise should be denied but rather that it should be restricted to an operational period from 6.00am to 10.00pm in the view of Mr King or 5.00am to 10.00pm in the view of Mr Savery.
Evidence of residents re noise impacts
Mrs Hughes
Mrs Hughes, in her written statements[37], said that the sounds of trucks braking and accelerating on Lauriston Street and Railway Road was very noticeable, especially if the drivers were using compression braking. She also complains of trucks doing U turns at the site on the gravel surface and said the noise from the forklifts reversing beep was very noticeable. I note Mr Smalley said that his forklift did not have a beeper[38]. Mrs Hughes also complains of the barking of her dog at the trucks which sets of other dogs in the neighbourhood barking. She says once these noises wake her she finds it very hard to get back to sleep. Interestingly she says that she is only awoken by train noises on very rare occasions because she says the train noise in a constant drone whereas the noise from the trucks is shorter, instantaneous and more noticeable. Mr King gave evidence of the phenomenon of persons living next to the likes of a train line becoming accustomed to that noise[39]. Mrs Hughes further said that her husband starts work each day at 4.45am for nine days a fortnight and retires early in the evening at 8.30pm so the noise of the trucks affects him.
[37]Exhibits 13 and 26
[38]T2.3.57
[39]T1.67.8-19
Mr Bell
Mr Bell rents a house from the Jurgens and drove heavy trucks for 35 years. He recently married an American woman who presently lives in a small country town in Tennessee. He is concerned as to the impact the noise will have upon her quality of life when she arrives in Australia. Mr Bell is not opposed in principle to such an operation as the Appellant conducts but is opposed to its present location because of the arrival and departure times of trucks during the day and night, the beaming of their headlights into his residence and generally the noise associated with the trucks.
Mrs Fischer and Ms Fischer
Mrs Fischer and Ms Fischer oppose the operation because of the arrival times of trucks which they say occurs between 2.00am and 3.00am in the morning including Sundays but excluding public holiday, complain of the noise of the forklifts unloading the trucks and of the headlight beams into their home. They also complain of the dogs barking at the trucks when they arrive.
(c) Air quality
Mrs Hughes complains of the smell of diesel fumes from the trucks entering the site. Air quality experts Mr Goodfellow and Mr King (of noise assessment fame) provided a joint report[40]. There were no areas of disagreement between them and they agreed importantly that as far as air quality issues were concerned the application should be approved with the following conditions:-
[40]Exhibit 3, Tab 4
(a) Seal and maintain the heavy vehicle manoeuvring area to minimise dust emissions; or
(b) Periodic use of water sprays on the unsealed heavy vehicle manoeuvring area in accordance with an approved Dust Management Plan to minimise dust emissions.
SUBMISSIONS RE AMENITY
Appellant
The Appellant submits that any amenity impacts are, in the context of surrounding land uses, very minor in the extreme and capable of being adequately dealt with by way of conditions. He points to the existing amenity environment making the points that his southern boundary is 280 metres north of the Bruce Highway, the subject shed 500 metres from the Highway whereas one of the two Jurgens’ residences, which is close to his southern boundary, is 270 metres from the Bruce Highway and 200 metres from his shed. I note that the other residence on Jurgen’s property, rented by Mr Bell, is even closer to the Bruce Highway. Mr and Mrs Hughes’ residence is approximately 70 metres to the east of the Appellant’s shed.
The Appellant says that the very heavily trafficked Bruce Highway, which is unbuffered, carries very high volumes of traffic 24 hours per day and the noise generated from the Highway is at present, heard as a continuous dull background noise at the site.
In addition the railway line, some 35 metres to the north of the site and the northern boundary of the Hughes’ property, has trains at the rate of approximately one per hour for each 24 hours with the sounding of their horns as they approach the railway crossing some 80 metres from his shed and 200 metres from the Hughes’ property.
He further says that all vehicular traffic from the Bruce Highway south of his site, accesses the area via Lauriston Street and then into Railway Road, past the Hughes’ residence and his site before crossing the railway line and heading either east or west from the northern side of that line. That traffic, he says, is associated with the following uses:-
(a) Extensive areas of intensive tomato and capsicum crops which itself involves heavy tractors and cars associated with harvesting
(b) The ‘Visy’ board factory which is about 1 kilometre to the north east: semi-trailers and ‘B’ doubles deliver cardboard boxes and packing to this site about 5 times per day in the season and then the boxes are delivered by Visy semi-trailer to local farmers.
(c) A sand extraction quarry on the Don River about 1.6 kilometres to the north east: apart from the heavy machinery on site, sand is carried past the subject site in either semi-trailers or trucks and dogs (trailers) up to 5 times per day when extraction is in progress.
(d) A large tomato seedling enterprise on Telegraph Road about 1.25 kilometres north east of the subject site: this site employs about 10 or more employees and is subject to truck and car traffic both arriving and departing.
(e) A State Government operated Research Station on Telegraph Road which appears to employ 6 or more employees and involves regular visitation to the site.
(f) Farm machinery and tractors using Lauriston St and Railway Road to carry out harvesting, ploughing, planting and other typical rural activities.
The Appellant says that the extent and intensity of all those uses, namely the traffic involved and the trains in close proximity are very much a part of the existing environment and the resulting noise impacts are to be expected given the location and long standing nature of those activities.
Dust and Odour
As to the other two non-noise aspects of amenity, the Appellant points to the traffic engineers reports and submits there are no traffic issues which would warrant refusal and any issues can be conditioned. Similarly, in relation to dust and odour, he relies upon the conclusion of the joint experts that the application should be approved subject to conditions they identified. In summary, he submits that there is no amenity issue that cannot be conditioned. He further says that he should be allowed to conduct his operations from 5.00am in the morning rather than 6.00am.
Council –
The Council’s submissions start with the proposition that the degree of consensus arrived at between the experts on the amenity impacts is not conclusive of the issue as to whether there is a conflict with the Scheme.[41] That is undoubtedly correct. It is for the Court, with the assistance of expert and other evidence, to determine issues, not the experts.
[41]Bassingthwaite v Roma Town Council (2011) QPELR 63 at [63]
The Council sought to cast doubts on the evidence of the Appellant’s planner, Mr Adamson, and noise expert, Mr Savery. In relation to Mr Adamson, Council referred to an earlier case[42] where it was said by the Court:-
“I also agree with what Mr Adamson separately said in Exhibit 1, page 151, that the erection of barrier:-
‘will be clearly seen from some properties and will adversely impact upon the rural residential character of these properties.’
And that the barrier
‘will most likely diminish views of bushland to the north currently enjoyed by some of the residents.’”
Without more, all that indicates to me is that Mr Adamson, in a different context and presented with another set of facts, concluded differently from what he did here.
[42]Hanson Construction Materials Pty Ltd v Gold Coast City Council (2010) QPELR 242 at [49]. I assume this is the passage as the written submissions did not identify it.
As to Mr Savery, likewise I was referred to an earlier case[43] where the Court said:-
“I was extremely impressed with the evidence of Mr Savery and accept it. He had the advantage of employing more sensitive and sophisticated sound monitoring equipment. The effect of his evidence was to convince the Court of the perceptibility of increased numbers of distinguishable noise peaks associated with passage of additional quarry vehicles. Mr Savery emphasised that the benchmarks the noise experts conventionally rely on do not represent anything real: he would not go along with his ‘adversaries’ approach of identifying anticipated increases in noise levels of 1.8 dB(A) as insignificant on the basis of benchmarks such as a Queensland Department of Main Roads benchmark of 3 dB(A) increase in existing noise levels or a more stringent New South Wales standard of 2 dB for increases in existing noise levels in ‘environmental criteria for road traffic noise’; Mr Savery’s objections included that such standards are developed for different purposes (such as determining when new roads should have associated noise attenuation measures) and do not assist in identifying and evaluating impacts on those living or working in town and their environs of substantially increased movement of heavy trucks….”
[43]Refaka Pty Ltd v Scenic Rim Regional Council (2010) QPELR 392 at [53]
Again, I cannot see that that does other than endorse Mr Savery as a competent and reliable expert. His reference to the benchmarks not representing anything real must be read in the context I have set out. It seems to me that Mr Savery, in this case, has employed similar sophisticated monitoring equipment as he did in that case[44].
[44]Joint report, para 32
The Council points to the agreement reached between the noise experts, Mr King and Mr Savery. It says they did not agree that there would be an absence of noise impacts but agreed on the following:-
(a) That four of the six noise senses of receptors (residences) were timber weatherboard or cement sheeting houses and naturally ventilated;
(b) The noise of the three line haul trucks on Lauriston Street and Railway Road and the subject site upon the receptors during the weekday evening periods, is expected to be noticeable to those residents in naturally ventilated houses on those roads because the traffic volumes between 6.00pm and 10.00pm is expected to be lower in that period. I take the reference the traffic volumes to be normal traffic volumes other than those trucks servicing the Appellant’s site; and
(c) The noise level of trucks in Lauriston Street accessing the site in the night period prior to 6.00am exceeds the Guideline 20% Probability Sleep Disturbance Criteria for closed windows on departure.
The Council also referred to Mr King’s observation[45] that:–
“Sleep disturbance numerical limits would be exceeded at the nearby residences by trucks travelling in Lauriston Street and Railway Road and from noise of truck movements upon the subject site as demonstrated in Tables 6 and 7 where the 20% awakening limit of 57 dB(A) for partially closed windows facing the road is regularly exceeded for the noise events measured by Mr Savery.”
The Council pointed to the evidence of Mr Savery[46] to the effect that, on the date he analysed the noise levels, there are no semi-trailer or B-double truck movements on the roads between 4.00am and 6.00am. It also relied on the evidence of the Appellant who could not identify how often semi-trailers gained access to the Visy depot early in the morning before 6.00am but that B-double deliveries where irregular.[47] Mr Smalley went on however, to answer the very next question by saying that in the last 10 days, trucks had been running in and out of the sand and gravel site all the time from 5 o’clock in the morning onwards everyday.[48]
[45]Joint report, para 94
[46]Exhibit 5, p 6, s 7; T 1.44.27-47
[47]T 2.7.5-24
[48]T 2.7.28
As to Mr Suman’s report of traffic movements at the intersection of Lauriston Street and the Bruce Highway for the 12 hour period 6.00 am to 6.00 pm on 9 December 2010,[49] the Council said it showed that the first semi-trailer movement on Lauriston Street was not until between 6.45 and 7.00am. There were 18 such movements in the 12 hour period from 6.00am to 6.00pm which the Council says is consistent with the evidence that the Visy operations are only seasonal and the extractive industry use is sporadic and limited in quantity. The Council points to the supplementary statement of Mrs Hughes[50] who says, that as to whether Lauriston St is the only access to the Visy Sand and Gravel operations, she has witnessed truck and dog type vehicles accessing the Don River from the southern side of the river at what is commonly known as Russells Crossing. Finally on the truck count issue, the Council said that the count of Mr Suman was taken on 9 December 2010[51] when the Appellant was operating normally with three semi-trailers/B-doubles visiting his site between 6.00am and 6.00pm that day. The Council says the Appellants activity was a major contributor to the heavy traffic on that road in that period. It says Table 3 to the joint noise experts reports shows that two thirds of the heavy vehicle traffic generated by the Appellant’s use is outside the hours of 6.00am to 6.00pm. That table shows that, of the 33 line haul truck movements per week as advised by the Appellant to Mr Savery, five arrive before 6.00am and 15 between 6.00pm and 10.00pm.
[49]Exhibit 6, appendix D.
[50]Exhibit 26, para 23
[51]Exhibit 6, Appendix D
Consistent with the Council’s opening point that the opinions of experts is not conclusive of the issue of amenity impacts. Tangible impacts upon the amenity of Mr and Mrs Hughes very relevant. It relies on an observation by the Chief Justice in Broad v Baptist Union[52] who said that the Court will ordinarily “…prefer views from residents which find justification and specific concrete likely effects of the proposed development”. His Honour was there contrasting that type of evidence with that of an abstract fear of loss of amenity unparticularised. There is no doubt as to the importance of the evidence of Mrs Hughes and all other residents who have expressed their views.
[52](1986) 2 QdR 317 at 325
Reasonable Expectation
In the Council’s submission the acceptability or otherwise of any amenity impacts is directly associated with reasonable expectation which is to be assessed having a regard to the Planning Scheme properly construed. In this case it submits the local residents would have an entirely reasonable expectation that the subject land would not come to be used for activities proposed by the Appellant.
The Council pointed to the evidence of the joint noise experts[53] where it was agreed:-
“58.An alternative approach to the Guideline that is used in some jurisdictions is the methodology of Comparison of Like Parameters. In this methodology, existing ambient noise levels may be measured in terms of representative acoustic parameters (eg LMax for a short duration source) and compared to the noise levels expected from the new source using the same acoustic parameters. This methodology is most effective in controlling noise when the ambient noise and the new noise being assessed are noise sources which have similar characteristics regarding frequency spectrum, level time variation, or effect. For example, comparison of existing truck pass-by levels with new truck pass-by levels (similar frequency spectrum and time-level characteristics), or comparison of existing short duration sounds which may cause sleep disturbance with new short duration sounds which may also cause sleep disturbance.
59.The sleep disturbance method of the Guideline and the method of Comparison of Like Parameters will be used to assess the noise from the storage shed operations.”
[53]Joint report, paras 58 and 59
Reference was then made to the evidence of Mr Savery[54] when this exchange took place under cross examination by Mr Job:-
[54]T 1.45.39-50
“QuestionAnd for example, a resident who chooses to take up a residence near a railway line can be taken to expect noise from train pass-bys?
Answer Certainly.
QuestionAnd you wouldn’t suggest, though, that in that instance a nearby land owner has free range to create noise impacts of a similar or even reduced level but from a different source?
Answer No.
QuestionOne form of noticeable noise may be acceptable in a noise amenity sense, whereas another may not be?
Answer Certainly.”
CONCLUSION RE AMENITY
On balance, I’m satisfied that, with appropriate conditions as contemplated by the experts, that the impact of the Appellant’s operations on the locality will not adversely effect the amenity of the area. It is clear to me that the area has had the intrusion of noise from various sources given the train line and trucks working in the other businesses in the area, the proximity of the Bruce Highway and the road configuration from the Bruce Highway down Lauriston Street leading to the T junction at Railway Road. I should say that I have not arrived at that decision easily given the evidence of Mrs Hughes as to the affect on her of the truck noise and the consequential noise of dogs barking at those trucks. However, against the ambient noise in the area I am satisfied proper conditioning can satisfactorily address the impact upon her. Conditions I refer to relate to the reduction of speed of vehicles in Lauriston Street and Railway Road, control over release of compression from air brakes, dust control and the like, and the starting time for the Appellant’s operation limited to 6 am.
PLANNERS
Mr Adamson (Appellant) and Mr Ovenden (Council) prepared a joint Town Planning report[55] and Mr Adamson prepared an individual report[56].
Joint Planning Report
[55]Exhibit 3, Tab 7
[56]Exhibit 1
Matters Agreed
The planners agreed that the relevant parts of the Scheme to be addressed were:-
(a) Desired environmental outcomes (DEO’s) d, e, l, m, and n[57];
(b) The Rural Zone Code; and
(c) Special Management Area Codes - Natural Features Code/Good Quality Agricultural Land (GCAL).
[57]Schedule A, pages 2.1 and 2.2
They set out the following sections of the above Plans[58]:-
[58]See Schedule A for full content
(a) DEO’s
(d) Development protects the economic values of natural resources including good quality agricultural land, extractive and mineral resources, vegetation and water.
(e) Development provides a benefit to and satisfies an economic demand of residents of the area in which it is located.
(l) Development occurs in an area:
i. which is suitable and compatible with the nature of the development; and
ii. in which services and facilities required in respect of the development are existing, planned or provided by the development.
(m) Development does not adversely effect:
i. the communities health and safety;
ii. the amenity enjoyed by people in different areas of this Shire; and
iii. the safe and efficient operation of the transport, energy and other infrastructure supporting the Shire and surrounding region.
(n) Development reflects the community’s reasonable expectations and harmonises with the natural environment and does not prejudice the Shire’s existing scenic amenity, particularly along the coastal plain.
(b) Rural Zone Code
(1) Purpose
(a) The purpose of the Rural Zone Code is the achievement of the Overall Outcome sought for the Rural Zone.
(b) The Overall Outcome sought for the Rural Zone are:
i. Land used for rural activity such as grazing, agriculture and horticulture is protected from development, which in Council’s opinion would significantly infringe on the landscape setting and rural amenity of the Shire;
ii. Land with productive capacity is preserved for a range of existing and emerging agricultural activities significant to the economy of the Shire and is protected from development that leads to its alienation and fragmentation;
iii. …;
iv. Uses and works are located and designed to maximise the efficient use and extension and safe alteration of infrastructure;
v. …; and
vi. …
(c) Special Management Area Codes
Natural Features Code3.17
(1) Purpose
(a) The purpose of the Natural Features Code is the achievement of the Overall Outcomes sought for the Special Management Areas identified on the Natural Features and Resources Overlay.
(b) The Overall Outcomes sought for the Special Management Areas identified on the Natural Features and Resources Overlay are that development of identified places, areas, landscapes, features and sites:
i. is managed to protect the significant values of the various natural features and resources in terms of:-
(A) …
(B) Avoiding alienation;
(C) …
Matters not agreed between planning experts
Mr Adamson – Appellant
Mr Adamson said that, whilst the proposed use of Storage Premises is an inconsistent use in the Rural Zone , nevertheless there are factors he considers should be considered in the assessment of the application namely:-
(a) the site is located close to the Delta township with easy access to the Bruce Highway which is desirable for the type of business proposed ;
(b) while the site adjoins residential properties to the east there are a limited number of dwellings that would be potentially impacted, they are opposite an active railway line and the road network which is used by heavy vehicles from rural and non rural uses in the area gaining access to the Bruce Highway;
(c) the scale of the Appellant's operation is relatively small at .75 hectares of a total site of 2.023 hectares and utilises an existing Farm Storage Shed. As a result there is a minimal, if any, loss of Good Quality Agricultural Land (GQAL) resulting from the proposed use. The remaining portion of the site of 1.273 hectares is available for farming purposes;
(d) the site, whilst it is GQAL, is one of a number of smaller parcels in the locality already fragmented and not currently being actively farmed;
(e) the zoning surrounding the subject site is mixed with a number of parcels in the Industrial Zone, in particular some vacant parcels opposite the site that could be used for the same purpose. All of that industrial land in the locality is GQAL. From a land use planning perspective the establishment of the Appellant's use on that land would not be greatly different from what is proposed by him except that the industrial land opposite the site is being actively farmed;
(f) the character of the area is generally mixed comprising rural, industrial, rural residential and commercial uses in close proximity to the site. A number of those different land uses adjoin rural land. As such the area is not an intact rural area and the site is but one of a number of smaller fragmented rural parcels.
Reasonable Expectation
Mr Adamson expressed the view that, whilst the proposed use is an inconsistent use in a Rural Zone, there are a number of mitigating factors which would support the conclusion that it is reasonable that the residents in the area would have an expectation that the site might be used for a use other than rural. Those factors are:
(a) variation of surrounding land zonings resulting in the rural area not being intact and compromised by the non-rural uses near the site, namely the Visy Distribution Depot and the DPI Research Facility;
(b) the proposed use or another industrial use could potentially be established in Chandlers Road across the railway line from the site in two locations on land already included in the industrial zone which land adjoins rural land;
(c) current amenity of the area is already influenced by truck movements from rural and non-rural uses such as the Visy Distribution Depot and the Sand and Gravel Extraction Business by train;
(d) the Planning Scheme allows other industrial uses such as Landscape Supplies on rural land[59] which would have similar or greater impacts than the proposed use; and
(e) the site is one of a number of fragmented parcels in the locality, has not been actively farmed for some time, and adjoins other fragmented parcels and the rural residential property.
[59]Schedule A, pages 3-9 and 3-10
For the above reasons, Mr Adamson says the proposed development would not compromise or conflict with the relevant DEO's. In his view the proposal satisfies economic demand, provides a community benefit and does not result in any meaningful loss of GQAL. It is compatible with the surrounding land uses and does not alienate other rural land, does not significantly affect the production capacity of the land or impact upon the rural or scenic amenity of the area generally. In all the circumstances he considers that it is reasonable that the site might be used for a compatible use other than rural, particularly given that conditions can be imposed to vet any adverse impacts on the amenity of the area.
Mr Ovenden – Council
Mr Ovenden expressed the following views:-
(a) The proposed use is industrial in nature and should be established on Industrial Zone land;
(b) It is also GQAL and must establish an overriding need test in terms of public benefit[60]. He acknowledges that the alienation of GQAL is confined to the front section of the site which could also be alienated if the shed and immediately adjacent land was utilised as a part of a farming operation;[60]Schedule A, pg 3-100, Specific Outcome 13, Good Quality Agricultural Land Special Management Area
(c) he acknowledges that the site sits in a somewhat mixed zoning and land use context with adjacent railway activity but says the residents in the area still have a reasonable expectation, having regard to the zoning of the subject site, that it would be utilised for rural purposes;
(d) he queries whether any realistic conditions could be imposed to control the hours of operation of the proposed use;
(e) as to the DEO's, in his view the proposal will compromise their achievement because the proposed use:
(i) does not protect the economic value of GQAL;
(ii) while providing a broad economic benefit to the Shire, does not provide any tangible benefit to or satisfy an economic demand of the residents in the Delta area of the Shire;
(iii) is not located in an area suitable and compatible with the nature of the development;
(iv) has the potential to adversely affect the community's health and safety amenity and the safe and efficient operation of the road network;
(v) does not reflect the community's reasonable expectations for land use and development in this location of the Shire.
Reasonable Expectation
Mr Ovenden's view is that any reasonable land use expectation of residents of the area is directly linked to the Overall Outcomes of the Rural Zone which do not contemplate industrial activities occurring in that zone. In his view there is a healthy supply of industrial zoned land in the Shire and whilst he acknowledges there is a mix of zoning and land use in the locality, that, in itself, does not justify a further intrusion of a non rural use into a Rural Zone. As to Mr Adamson's reference to other industrial uses contemplated in the Rural Zone, Mr Ovenden says that those particular activities are appropriately located in a Rural Zone and complimentary to rural activities, subject to conditions.
For all the above reasons Mr Ovenden considers the proposed use is inconsistent with the Overall Outcomes (purpose) and Specific Outcomes of the Rural Zone Code and the Overall Outcomes of the Natural Features Code.
Visual amenity
The planners agree that there would be no visual amenity impacts resulting from the proposed use.
Need
I am yet to deal with the issue of need but it is appropriate here to record the views of Mr Adamson and Mr Ovenden who, at the time of preparation of the joint report, had seen the joint expert's report. In summary those need experts agreed that there was a strong economic need for the proposed use to operate in or adjacent to Bowen[61] but did not agree on planning need.
[61]Economic Expert's Joint Statement, Exhibit 3, Tab 5, para 38, pg 10
Mr Adamson
Mr Adamson preferred the views of the need expert, Mr Coghlin, and expressed the view that there was a need for proposed use on the site because:-
(a) there is a strong economic need for the proposed use in or adjacent to Bowen;
(b) there appears to be a lack of suitably zoned industrial land in the Bowen area available for the proposed use;
(c) A significant portion of the Appellant’s current business (approximately 25%) serves the existing local rural industry and the site is therefore well located for this purpose and provides easy access to the Bruce Highway to service other areas: and
(d) even if there is a shortage of suitably zoned land in the locality, the use of other rural land east of the Don River that is not GQAL is not necessarily more desirable and it is not reasonable to assume that this land is available.
Mr Ovenden
Mr Ovenden supports the conclusions reached by Mr Norling, the need expert, as to the healthy supply of industrial zoned land in the Bowen/Delta area that could accommodate the proposed use. Given that the land is GQAL, even if industrial zoned land was not available or logistically suitable for the proposed use, it would be appropriate to direct the proposed activity onto rural land that is not GQAL, of which land there is an extensive supply. In summary Mr Ovenden agrees that there is a strong need for the proposed use in or adjacent to Bowen but disagrees there is a lack of suitably zoned land available for the use.
Mr Adamson's individual planning report
Mr Adamson's further report was designed to address more detailed issues addressed in the joint report. I shall not repeat what he has already said. As to the issue of need Mr Adamson has inspected certain land identified by the need experts as suitable alternative land. I shall deal with his opinion on those sites when dealing with the need expert reports. Apart from that Mr Adamson's further report really amplifies his earlier views and conclusion and does not require a detailed analysis.
NEED
Mr Coghlin (Appellant) and Mr Norling (Counsel) prepared a joint report[62] on planning need. As I have already stated they both agreed that there is a strong economic need for proposed use to operate in or approximate to Bowen[63]. They also agreed that there were fourteen alternative sites, thirteen of which were vacant industrial zoned sites (1-13) and (site 14) which recently received approval for a Material Change of Use from Rural to Industrial zoning. Eight are located east of the Don River and five to the west. In addition to that land Mr Norling identified Rural zoned land not designated GQAL which he regards as better alternatives to the abovementioned industrial zoned land for the proposed use.[64]
[62]Exhibit 3, Tab 5
[63]Exhibit 3, Joint Report, paras 24 and 38
[64]Ibid para 32
Mr Coghlin - Appellant
Mr Coghlin investigated each of the fourteen sites with the following results:-
| Site No | Status |
| 1. | Not for sale |
| 2, 3, 4 and 5 | Owned by Queensland Government and subject to Native Title |
| 6. | Not for sale |
| 7. | Vacant house. Unable to speak to owner. No sign property for sale. |
| 8. | Only available for lease. |
| 9, 10 and 11 | Not for sale |
| 12 | Industrial zoned section of a larger farm. Unable to contact owners. GQAL land less convenient to Bowen. No indications it is for sale. |
| 13. | Not for sale. |
| 14. | Appropriately zoned and for sale. 3.3 hectares. Not known if subdivision would be considered. |
As a result of those enquiries Mr Coghlin concludes that of the fourteen nominated potential alternative sites only site 14 is potentially available but it is not clear whether it can be subdivided and what other conditions, if any, may be required for site access and Bruce Highway access.
As to the rual Zoned non GQAL sites, Mr Coghlin's response is:
(a) there is no guarantee whether any of the rural sites would be available for sale;
(b) most are substantially larger than the Appellant requires;
(c) they lack the appropriate zoning so that to secure a site would require subdivision rezoning and the owner's willingness to relinquish portion of his land to the proposed use which would be unrelated to the balance of the property; and
(d) some of the properties have potential additional constraints relating to access to the Bruce Highway.
Mr Norling - Council
As I have said, of the thirteen sites with industrial zoning, eight are east of the Don River and five to the west. Mr Norling's view is that, due to GQAL issues and improved economic efficiency of the business, the reduction of travelling times for the smaller trucks and vans to the Bowen township, the eight to the east provide better locational opportunity. Mr Coghlin agrees in principal but says that those considerations are of minor importance for smaller sites which have relatively limited agricultural potential and for sites in the Delta area which are convenient to Bowen despite being west of the Don River.
Mr Norling says that in addition to the industrial land identified as alternatives, the rural zone non GQAL land he identified is in extensive supply to the east of the Don River and any application for a Material Change of Use would be likely to be more favourably received by the Council as being in accordance with the Planning Scheme. Hence he sees the land east of the river as having the potential to be more economically efficient for the proposed use offering reduced travel times and not infringing GQAL.
Other economic considerations
Mr Norling regards the present site as creating economic inefficiencies due to fragmentation of activities and points to the protection of GQAL from fragmentation and/or encroachment on the Scheme. Mr Coghlin generally agrees with him but says the proposed use is located on one of several relatively small properties with multiple ownerships in its immediate vicinity and only some of the land is being used for agricultural purposes. In his view the land has already been fragmented and hosts a variety of uses.
Mr Norling also believes that the use of rural land for industrial purposes would undermine the productive capacity of agricultural activities on the surrounding rural land thus failing to protect productive agricultural land from development in breach of Rural Zone Code Overall Outcome 1(b)(ii). Mr Coghlin's view is that agricultural productive capacity has already been compromised near the site by small land holding much of which is used for other than agricultural purposes.
Planning need assessment
Mr Coghlin's view is this:-
(a) there is an insufficient supply of suitably zoned industrial land available in and around Bowen. Of the fourteen abovementioned sites only one is available for sale. It is considerably larger than what is required by the Appellant;
(b) none of the non GQAL rural sites identified by Mr Norling have been identified as being for sale and even if they were there is no guarantee they could be subdivided and rezoned as the Appellant would require. Further there would be little benefit and a substantial economic cost to the Appellant in essentially having to relocate from one rural site to another;
(c) while there may be some potential economies in locating the business closer to Bowen, benefits would be minimal;
(d) the site is smaller and the associated impacts of loss of GQAL are minor. Agricultural productive capacity has already been compromised near the site by the small land holdings earlier referred to so that in practical terms the impact on GQAL land supply are minimal; and
(e) given the absence of readily available suitably zoned alternative land there is a planning need for the use to be conducted at the site.
Mr Norling concludes that the agreed economic need does not translate to a planning need because:-
(a) it does not protect GQAL land;
(b) there are a large number of alternative sites;
(c) the subject site involves economic efficiencies in the operation of the business; and
(d) the sites fragments GQAL activity potentially leading to economic inefficiencies in those activities.
Mr Adamson's opinion of alternative sites
Returning to the individual report of Mr Adamson, he sets out the results of his investigations of the abovementioned fourteen alternative sites and says:-
| Site No | Status |
| 1, 2, 3, 4 and 5 | Not for sale. Native Title issues. Not available for development in the near future. Should not be considered further. |
| 6. | Subject to flooding. Fronts Betzels Lane. Currently vacant, low lying with minimal floor levels that apply. Clear of vegetation. Area generally suitable for the proposed use. Could be developed but considerable works would be needed to be undertaken on site. Betzels Lane and possibly Bruce Highway to allow development. Currently not available for purchase |
| 7. | Appears not to be for sale. Low lying, subject to storm surge hazard, not within the Don River flood plain area. Access directly from Bruce Highway. Considerable works would be required to allow access in both directions. Access restraint and extent of works beyond being suitable for the scale of proposed development. |
| 8. | Available for lease. Currently vacant. Subject to storm surge hazard but not in Don River Flood Plain Aare Access directly from Bruce Highway. Considerable works would be required for access in both directions which may be beyond suitable scale of development proposal. |
| 9. | 1.65 hectares. Not for sale. GQAL. In Don River flood plain area. Potentially affected by storm surge. Presently being developed for a transport dept. Area in excess of what is required. Site not subdivided or developed to allow other industrial uses. |
| 10. | GQAL. Don River flood plain area. Potentially affected by acid sulphate soil Eventually affected by storm surge. Development approval for reconfiguring into nine industrial allotments granted February 2009. Site not developed. Unlikely upon development that it could accommodate proposed use. |
| 11. | 1.82 hectares. Not for sale. In Don River flood plain area, potentially affected by storm surge and acid sulphate soil. Surrounded by other rural parcels being actively farmed. Suitable size for the proposed use but traffic and amenity impacts on the area would be similar to the present. From town planning perspective present site more desirable. |
| 12. | 43.5 hectares. GQAL. In Don River flood plain area. Partially affected by storm surge hazard and acid sulphate soil Large area well in excess of requirements. Significant amount of work and cost would be involved in developing site. |
| 13. | 31.5 hectares. GQAL. Don River flood plain area. Partially affected by storm surge hazard and acid sulphate soils. Industrial zoning. Part of a larger farm currently under development. Not for sale. Larger than required. |
| 14. | Preliminary approval for industrial development. Fronts Betzels Lane and Bruce Highway. Currently vacant. Low lying with minimum floor level that would apply. A number of development permits still required. Area considerably larger than is required. Needs analysis still required to be submitted to Council. It appears Council is concerned there is a lack of available larger parcels of industrial land in the Bowen area. |
I have not included all comments in relation to each site.
Appellant
The Appellant points to the evidence of both need experts to the effect that there is a strong economic need for his existing business to operate in or adjacent to Bowen and points to his own evidence in his statement[65] which details the nature and extent of his business. He also relies upon Mr Adamson’s opinion of the shortage of suitably zoned land.
[65]Exhibit 8, paras 34-41
As to the test for need, the Appellant referred to Fabcot Pty Ltd v Gold Coast City Council[66] where it was said:-
“[55]As observed by Skoien DCJ in Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPELR 126, “need” does not mean pressing need, critical need, wide spread desire, or anything of that nature, observing that a thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community: at 131.
[56] It is also important to note the principle expressed by Quirk DCJ in Landel Pty Ltd & Anor v Ridgeland Shire Council [2002] QPELR 402, that economic need requires that weight must be attributed to the interests of the community to a greater extent than those of existing operators of retail facilities: at 405.
[57] As for a factual basis for economic need, or not, the economic experts who prepared the Joint Economic Report also gave oral evidence, speaking, primarily, to their own individual reports.
[58] Before considering the different approaches they had, it is worthwhile to note that Wilson SC DCJ in Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 7 remarked that, when the need which is to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high, adding that, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy that need, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need of that level are not onerous: at 485 [30].
[66](2011) QPEC 85
As to the meaning of the term “overriding need” in the Scheme, the Appellant says terms such as “overwhelming or overriding” need have been described as motherhood statements referred by Williams JA in Yu Feng Pty Ltd v Brisbane City Council[67] where he said:-
“[26]…what will constitute an ‘overwhelming need’ will vary enormously. There would almost be an infinite variety of facts which could impact upon the decision whether or not there was an ‘overwhelming need’ for a proposal under consideration.”
In the Appellant’s view, where there is no unacceptable amenity impacts and the proposal involves supplying the daily essentials of life to the community, the bar for determining the existence of an overriding need should not be set too high.[68]
(b) The turnaround areas are not disproportionate to typical farmhouse or machinery shed turnarounds and are reversible;
(c) The productive capacity of the land is not being reduced;
(d) It does not result in conflicts with other rural uses;
(e) The land could not be fairly called valuable agricultural land;
(f) The concept of overriding need just means – “that the community’s interests which are served by the proposal can be seen to outweigh the community’s interest in preserving the land for agricultural use”[98]; and
(g) It is not reasonably practical to locate the proposal on any other site; and
(h) The site’s features make it desirable for the proposed purpose.
[98]McCosker v Emerald Shire (1996) QPLR 114 at 116
Alternative sites
In relation to those underutilised non GQAL rural sites and not valuable Agricultural Land[99] the Appelant says that all of those sites would involve Impact Assessment and similar objection and appeal rights resulting in the same grounds of refusal raised in this matter. Of those sites, the Appellant relies upon the evidence of Mr Coghlin[100] who said that only one of those sites was available at a price of $895,000. The Appellant says that it is undeveloped and unsuitable for his purpose.
[99]Joint Planning Need report, Exhibit 3, tab 5, para 25 2
[100]T 1.76.15-30; T 1.77.1-30
As to this non GQAL rural land, Mr Adamson said it should not necessarily be reasonably considered as an alternative given that the present site does not involve any meaningful loss of GQAL resulting from the proposed use.
Other 14 sites
Of the other 14 sites, Zoned Industrial, identified by Mr Norling, the Appellant says only one is available for $1.6 million dollars but is not developed to be suitable for his use.
The Appellant says that none of the alternative sites are capable of accommodating his proposed use so that he has satisfied Specific Outcome 13(b)(ii) in establishing that:-
“The proposal cannot be located on alternative sites that are not identified as good quality agricultural land…”.
Council’s response re GQAL conflict
In response to the Appellant’s arguments on the issue of GQAL, the Council points to the importance of GQAL by reference to a statement in Rich v Central Highlands Regional Council[101] where it was said:-
“It has, for some time, been well recognised that good quality agricultural land is a finite resource which requires appropriate conservation and management for the longer term. So much was expressly recognised in State Planning Policy 1 of 1992. That policy, in turn, is identified as being appropriately reflected in the … Planning Scheme.”
The Council makes the point that under the present Scheme even a dwelling house is only potentially consistent with the Rural Zone Code if it accommodates a household involved in the dominant purpose[102]. Specific Outcome 13, according to the Council, reflects and overriding objective of retaining GQAL for rural purposes.
[101](2010) QPELR 599 at 600
[102]Rural Zone Code Specific Outcome O2(a)(iii); Schedule A, page 3-10
The Council identifies in SO 13 the two limbed test to be addressed in relation to any use not for rural purposes which is the proposed use. To use the land for non rural purposes it must be proven either:-
(a) That the land is not actually valuable agricultural land; or
(b) That there is:-
(i) An overriding need in terms of public benefit for the proposal; and
(ii) The proposal cannot be located on alternative sites that are not identified as good quality agricultural land including if:
· The proposed location has features that make it desirable for the proposal; and
· The features are not available in areas not identified as valuable agricultural land.
First limb of test
As to the first limb (a) above, the Council says that the fact it has not been farmed in recent times does not mean it does not have productive capacity and relies upon the evidence of Mr Coghlin[103] who acknowledged that the smaller parcels of land can be farmed in isolation from larger holdings as, for example, productive hobby farms. The site, the Council says, is in the midst of an area being extensively and actively farmed including parcels on smaller or similar sizes. The site was, according to Mrs Hughes[104], farmed by the predecessors to the Appellant, Mr and Mrs Bottril, who were both self sufficient farmers on the land and were still farming the site when Mr and Mrs Hughes purchased their property in 1990.
[103]T 1.79.37-60
[104]Exhibit 26, para 20
As to the evidence of the Appellant that he has not been able to secure a water allocation, the Council refers again to the evidence of Mrs Hughes[105] that local Council water has been connected to two blocks of farming land of approximately 33 acres leased by Mr and Mrs Hughes to a Mr Turner who farms the land. The pipe that supplies Mr Turner with water runs adjacent to the Appellant’s property. The water in question is used solely for irrigation purposes. Similarly, according to Mrs Hughes, land to the west of the site owned by a Mr Nane, also has a supply of town water used to irrigate that land.
[105]Exhibit 26, para 9
Further, the Council says, Mr and Mrs Hughes themselves have orchards on their property and send fruit to market and that, as Mr Coghlin agreed[106], shows that smaller parcels in rural settings can be share farmed. The Council pointed to Mr Coghlin’s further evidence that the fact that an existing farm holding may not be viable does not, of itself, justify the use of the land for non agricultural purposes.[107]
[106]T 1.80.1-5
[107]T.1.80.45
In summary, the Council’s argument is that the fact that a land owner chooses not to farm GQAL, does not result in the land not being productive or representing an economic source. In the Council’s view, the proposed use would alienate this GQAL for use for rural purposes.
Second limb of test
Council submits that the very fact that the land is identified as GQAL is indicative of its economic value for agricultural purposes and it would not be appropriate for the intention of the Scheme which appropriately reflects State Planning Policy 1/92 – Development and the Conservation of Agricultural Land, to be defeated by an argument that the site lacks economic value because it is not presently being farmed. By parity of reasoning, the Council points to the reference in the Scheme to extractive and mineral resources which it says retain economic value irrespective of whether, at any particular time, they are being actively exploited. For those reasons, the Council says the proposed use would compromise the achievement of DEO (d) which is aimed at protecting the economic values of, relevantly, GQAL. It would also conflict with that DEO and with Overall Outcome (1)(b)(ii) of the Rural Zone Code and with the purpose and Specific Outcome O13 of the Natural Features Code.
Arguments re Desired Environment Outcomes
Appellant
For convenience I set out relevant DEO’s:-
2.2(1) The Desired Environmental Outcomes for Bowen Shire are:
(d)Development protects the economic values of natural resources including good quality agricultural land, extractive and mineral resources, vegetation and water.
(e)Development provides a benefit to and satisfies an economic demand of residents of the area in which it is located
(l)Development occurs in an area;
(i)which is suitable and compatible with the nature of the development; and
(ii)in which services and facilities required in respect of the development are existing, planned or provided by the development
(m) Development does not adversely effect
(i) the community’s health and safety
(ii)the amenity enjoyed by people in different parts of the shire; and
(iii)the safe and efficient operation of the transport, energy and other infrastructure supporting the shire and surrounding region
(o)Development reflects the community’s reasonable expectations and harmonies with the natural environment and does not prejudice the shire’s existing scenic amenity, particularly along the coastal plain.
In the Appellant’s submission his proposal advances the achievement of the above DEO’s and says that the only conceivable one that could be said to raise legitimate concerns is sub-paragraph (d) above dealing with GQAL. There is no dispute that the land is GQAL[108]. In relation to that categorisation, the Appellant in support of his proposal says:-
[108]Scheme Overlay Map O2, Exhibit 4
(a) There is no evidence that the site has any economic value of good quality agricultural land such that it should be protected;
(b) It has not supported agriculture or grazing for many years;
(c) It comprises only 2.03ha whereas the minimum subdivision allowed in the Rural Zone is 60ha[109];
[109]Schedule A, page 3-11
(d) It does not have access to water for irrigation which is essential to crop growing in the Bowen climate;
(e) No subdivision is involved;
(f) The only permanent loss of land is under the shed and docking area. Any farm or rural enterprise would be expected to have such a shed and turning area for machinery;
(g) The existing house was removed to make way for the shed;
(h) The loss of land in total is miniscule, (if any) and in the context of this Scheme, could not be said to be the legitimate object of the Scheme to protect the productive agricultural land;
(i) In any event, the loss of GQAL is not “Holy Writ” or fatal. The Council has recently approved two developments on GQAL in Lauriston Road[110].
(j) Further, two other lots of GQAL land have been included in the Industrial Zone.[111]
(k) Those recent approvals support the contention of both Mr Adamson and Mr Coghlin that there is an unusual shortage of appropriate land in the area.
[110]Planners joint report, Figure 1, sites 9 and 10; Exhibit 23 (Transport Depot and Caretakers Cottage – Geoff Richards Refrigerated Transport); Exhibit 24 (Nine lot industrial subdivision – Bartec Rural Services Pty Ltd)
[111]Sites 12 and 13, joint planning need report, Figure 1; Adamson report, Exhibit 3, paras 66-69
The Appellant says that, more importantly, is Statement 2.1(2) of the Shire Wide Outcomes[112] which provides:-
“(2)Ecological sustainability for the Shire will be advanced if each DEO is realised to the extent practicable having regard to all other DEO’s.”
The Appellant does not concede that there is any conflict with the DEO’s but says, if there is, it is minor, that development of various kinds is envisaged on GQAL and that each proposal is to be examined by reference to the negative and positive factors before an appropriate balance in struck and arriving at a decision.[113]
[112]Schedule A, page 2-1
[113]Glasshouse Mountains Advancement Network Inc v Caloundra City Council & Excel Quarries (1997) QPELR 438 at 441
Council – DEO’s
I have already set out the Council’s view and its argument in relation to the Rural Zone Code, that the amenity impacts are such that DEO(m) is compromised or at the very least conflicted with.
CONCLUSION RE CONFLICT WITH THE SCHEME
Rural Zone Code
The proposed use is not a Rural Purpose within Specific Outcome 1, compliance with which would have made it a consistent and preferred use in the Rural Zone. By reference to the Nesting of Defined Uses in the Scheme[114]. Turning to Specific Outcome O2, uses, not being Rural Purposes, deemed consistent with the Rural Zone if the use can be said to:-
(a) be compatible with surrounding Rural Purposes by being of similar scale, intensity and character; and
(b) support preferred uses; and not adversely affect the amenity of the locality.
As I have earlier said each of those criteria must be read conjunctively.
[114]Schedule a page 3-9
In the event the criteria are met then the following uses are consistent with the Rural Zone:
(a) residential purposes;
(b) extractive industries;
(c) landscape supplies;
(d) local utility;
(e) major utility;
(f) outdoor recreation; and
(g) telecommunications facility (medium impact)
But it is not argued by the Appellant that proposed used falls within any of those deemed consistent uses. The only use faintly argued was the Local Utility on the basis that the proposed use could be said to be a postal service within that definition. I have already found against that argument. Given that non conformity of use, it is strictly unnecessary for me to decide whether or not the abovementioned criteria have been satisfied, but in any event I am not satisfied that the use is compatible with the surrounding Rural Purposes by reference to its character. Specific outcome O2 is not satisfied.
Specific Outcome 03 expressly provides that unless the particular use is within Specific Outcome 01 or 02 it is not to be established in a Rural Zone and is in conflict with the Rural Zone Code. It follows from the above that the use is in conflict with the Rural Zone Code.
Good Quality Agricultural – Special Features Code
The relevant Scheme provision is Specific Outcome O13-Special Features Code- within the Special Management Area Codes.[115] The purpose of the GQAL Special Management Area is to retain GQAL for rural purposes in two ways:-
[115] Schedule A p3-100
(a) by conducting other uses only if:
(i) they are not irreversible; and
(ii) do not reduce the productive capacity of the land; or
(iii) alienate its use for rural purposes; or
(iv) result in land use conflicts with adjacent existing rural uses; and
(b) avoiding the use of GQAL for non-GQAL uses unless it can be proven that:
(i) the land is not actually valuable agricultural land; or
(ii) there is an overriding need in terms of public benefit for the proposal and:-
· The proposal cannot be located on alternative sites that are not identified as GQAL including if:-
· The proposed location has features that make it desirable for the proposal; and
· The features are not available in areas not identified as valuable agricultural land. (emphasis added)
I am not persuaded that the land lacks productive capacity just because it has not been farmed for some time and is a smaller lot. The concept of Good Quality Agricultural Land must be understood. It is land which has been identified and characterized as such. The fact that the owner of such land chooses not to utilize it to its potential, does not, in my view affect its productive capacity. Nor do economic factors as to the financial viability of farming a particular piece of GQAL. The concept relates to the quality of the land not the economic viability of its exploitation. The Appellant spoke of the lack of water allocation but I am satisfied from the evidence of Mrs Hughes of the use of local water in the area by other farmers that, if it became an issue, water could be secured for the site.
As to the Appellant’s argument that all that is being sought is no more than what could be sought if the land was being used for farming purposes, a consistent use, that is correct. But that does not assist the Appellant because he is not and has never intended to use the site for farming purposes. As to the productive capacity of the land I accept the Council’s argument, consistent with the above, that a decision by an owner not to farm a piece of GQAL does not thereby destroy or reduce its productive capacity. This site, in the past has been farmed.
By reference to the criteria in Specific Outcome O13 I find:-
(a) that the proposed use conflicts with the adjacent existing rural uses given that it is an industrial use;
(b) that it has not been demonstrated that the land is not actually valuable agricultural land; and
(c) that, whilst the strong economic need may well be an overriding need in terms of public benefit, the proposed use can be located on alternative sites not identified as GQAL.
Natural Features Code/GQAL
For the above reasons it is clear to me that the proposed use is in conflict with the Natural Features Code.
Desirable Environmental Outcome
For the above reasons I am satisfied that the proposed use conflicts with DEO(d) as not protecting the economic values of the GQAL and with DEO(l) as being a development in an area which is not suitable and compatible with the nature of that development. I am not satisfied that there is any conflict with DEO(m).
Reasonable Expectation
As to DEO(n) I am satisfied that the proposed use does not reflect the reasonable expectations of the community and hence conflicts with this DEO. Despite my finding as to the potential protection of the amenity impacts by conditioning, I accept the Council’s argument that, by reference to the Scheme zones, the reasonable expectation of the residents of the area would be that the site would be developed for rural purposes. That is different for example to what I see would be the expectations of those residents living closer to the Bruce Highway and the township of Delta where there are closer industrial developments. In terms of the question of reasonable expectation, the focus must be on the area proximate to the proposed use.
The effect of the above is that I find that the proposed use conflicts with the abovementioned DEOs of the Scheme. I am not satisfied that the DEOs have been compromised, notwithstanding the decision in Aldi Stores v Redland City Council.[116] There the Court of Appeal preferred the approach of this court in Webster v Caboolture Shire Council[117] on the test to be applied to questions of compromise. Prior to that decision it had been said that for a development to compromise the achievement of a DEO, there would have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire-wide basis had plainly been compromised[118].
[116] [2009] QCA 346 at [19]
[117] (2009) QPELR 455
[118]Koerner & Ors v Maroochy Shire Council (2003) QPELR 211 at [25]
In Webster Brabazon QC, DCJ took a different and narrower view giving detailed reasons for his approach[119]. Although the Court of Appeal’s endorsement of that approach was obiter dicta it was a unanimous decision to my mind to points the way to the future interpretation of this issue.
ARE THERE SUFFICIENT GROUNDS TO JUSTIFY APPROVAL GIVEN THE CONFLICT WITH THE SCHEME?
[119] (2009) QPELR 455 at 466
Having found that there is a conflict with the Planning Scheme but no compromise I am obliged by IPA s 3.5.14 to determine whether there are sufficient grounds to approve the application despite the conflict.
Appellant
Mr Adamson considers that the following are relevant to that question:-
(a) the character of the area is mixed and it is not an intact rural area. The proposed use does not significantly worsen this situation;
(b) there are a number of parcels in the immediate locality which are GQAL but in the industrial zone adjoining rural land which if available to the Appellant would present an outcome similar to that under consideration;
(c) although the site is GQAL it could not be realistically used for that purpose given its shape, the location of the existing shed and the location of dwellings on the adjoining site;
(d) the impacts caused by the proposed use can be mitigated by the erection of sound attenuation barriers and the limitation on hours of operation so that the amenity of the area will not be worsened. It is already influenced by other truck and train movements;
(e) the proposed sound attenuation barrier including mounding fencing and landscaping will also improve the visual amenity of the adjoining residential property to the east;
(f) there is a need for the proposed use to be located on the subject site given:-
(i) the strong economic need identified by the need experts;
(ii) a lack of available industrial land in the locality suitable for the scale of the operation proposed;
(g) there is a community benefit in allowing the proposed use given
(i) it fulfils a strong economic need;
(ii) partly serves the local rural industry uses in the area; and
(iii) provides employment and economic benefits generally.
In evidence Mr Adamson confirmed that the above matters were not grounds in their own right and that need was the only ground he relied upon[120]
[120] T2.63.9-27.
Council
Mr Ovenden's view is that in the context of the supply of industrial zoned land elsewhere in and around Bowen, the nature of the proposed operation its use as storage premises is unacceptable. Further the interests of the local community are not served by the ad hock expansion of industrial uses at the expense of local rural amenity. In his view there are not sufficient grounds to warrant approval given the clear conflict with provisions of the Scheme.
CONCLUSION RE SUFFICIENT GROUNDS
Given my findings on need I am not persuaded that there are sufficient grounds to justify approval of this application notwithstanding the conflict.
The appeal is dismissed.
SCHEDULE A
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