Steensen v Gold Coast City Council
[2007] QPEC 48
•8 June 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Steensen v Gold Coast City Council & Ors [2007] QPEC 048
PARTIES:
NOEL and PENNY STEENSEN
Appellants
V
GOLD COAST CITY COUNCIL
Respondent
And
FRIENDS OF CURRUMBIN ASSOCIATION INC
First Co-respondent
And
STATE OF QUEENSLAND
Second Co-respondent
FILE NO/S:
575/2005
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Southport
DELIVERED ON:
8 June 2007
DELIVERED AT:
Southport
HEARING DATE:
Southport 2, 3, 4 and 5 April 2007; closing arguments, in the form of written submissions, received 23 April (respondent and first co-respondent), 10 May (appellant) and 15 May 2007(respondent in reply)
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Appeal allowed
2 Adjourn the matter for further review at 9:15am on 18 July 2007
CATCHWORDS:
PLANNING LAW – PLANNING AND ENVIRONMENT – PLACE OF WORSHIP – appeal against refusal of development permission for new place of worship – conflict with planning scheme – degree of conflict – whether sufficient relevant planning grounds to overcome conflict – impacts on visual amenity and character – traffic
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990Cases considered:
Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61
Bell v Noosa Shire Council [1983] QPLR 311
Grosser v Gold Coast City Council (2001) 117 LGERA 153
Kentbrock v Gold Coast City Council [2003] QPELR 587
Kotku Education and Welfare Society Inc v Brisbane City Council [2005] QPELR 267
Quinn v Beaudesert Shire Council [2005] QPELR 36
Weightman v Gold Coast City Council (2002) 121 LGERA 161
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337
William McEwans v Brisbane City Council [1981] QPLR 33COUNSEL:
C Hughes SC and M Williamson for appellants
J Houston for respondent Council
Dr B Moon and C Valttila, agents for the first co-respondent, Friends of Currumbin Association IncSOLICITORS:
IPA Law for appellants
McDonald Balanda & Associates for respondent
First co-respondent not legally represented
The places of worship and meeting used by the religious group ‘Jehovah’s Witnesses’ are called Kingdom Halls. This is an appeal against Council’s decision to refuse a development application to build a new Hall in Currumbin Valley. An active local residents’ group has joined Council in opposing the appeal. The second co-respondent, the State, was concerned about some road issues but the conditions it proposes, in the event approval is granted, are not contentious and it was excused attendance at the final hearing.
The manner of worship and meeting, as a congregation, for Jehovah’s Witnesses differs from some other Christian religions. Each Kingdom Hall is generally shared by more than one group or ‘congregation’, each of which is defined by the locale of its members. Congregations meet and worship on weekdays and weekends, mornings or afternoons, and not just on Sundays. Meetings during the week are generally in the evenings. While members attempt to attend weekday/night and weekend meetings, the latter attract greater numbers. Different congregations meet on different weekdays or nights, and at different times on weekends.
The proposed site is some distance into the Currumbin Valley at the corner of Currumbin Creek and Piggabeen Roads, and contains about 5.1 hectares. It is flat and vacant save for a dilapidated, detached farm-house and three small sheds. It lies on the opposite side of Currumbin Creek Road from the creek itself. Piggabeen Road runs off Currumbin Creek Road at an acute angle, in a generally southerly direction. The land immediately across Piggabeen Road from the vacant site, i.e. to the west, contains ‘park residential’ properties – residential blocks with attractive, quite substantial homes.
The proposed structure is a “duplex” hall containing two auditoriums and associated libraries, meeting rooms and amenities. A separate caretaker’s residence, utilising the old farm-house, is also proposed. The building is single storey with a gross floor area of just over 1,000m2. As represented in various photomontages it is of relatively modest, low design and appears (as intended) in a form which reflects the style of a large residential dwelling. It is proposed to contain over 100 car parks, distributed around the site in inter-connecting pockets. All these elements are intended to be screened and enhanced by substantial, carefully planned and detailed landscaping.
The land away to the east and south forms part of the Currumbin Creek Valley and is presently flat, open paddocks stretching across to a ridge line which runs across the horizon in the south. To the north across Currumbin Creek there is quite intensive rural residential/park residential development. To the west, further up Currumbin Creek Valley, there is also substantial park residential development.
Inspection of the valley showed that while it retains some rural elements in the sense there are still some pockets of open space, the overall impression is that the area is already dominated by prominent sections of residential development. This inspection also served to confirm the evidence of an expert town planning witness, Mr Reynolds, that the area is plainly in transition from a well-established, predominantly rural residential area to one of much greater residential intensity (seen, for example, at the ‘Lakes’ development to the immediate west, and the ‘Eco-village’ subdivision further up the Valley); and, the evidence of an expert on visual amenity, Mr O’Brien, to the effect that, because of the position of this existing development on the valley floor, the surrounding wide flat areas, and limited ‘viewshed[1]’ the particular site of this proposed development is not visually sensitive, and any visual impact will be ameliorated by the landscaping elements proposed.
[1]A term commonly used by architects, landscape architects, and other persons claiming expertise in visual amenity to describe the outlook from a particular place; the Oxford English Dictionary has ‘…the view of an area from a specific vantage point; a computer model of this. Also: the area that comprises this view.’
As inspection of the Kingdom Halls at Merrimac and West Burleigh confirmed they are, again unlike many other Christian denominations, places of worship which are not designed to be physically prominent or imposing structures and are, rather, understated and designed to blend into their neighbourhood. They bear no religious symbols like statues or crosses, and have no steeple. It was also apparent that the congregations take considerable pride in the appearance of the Halls and both the buildings and gardens (at Merrimac) are attractive and well maintained.
The premises at West Burleigh are, I accept, not the norm. The Hall is in a commercial area, and shared by three congregations. Mr Mintoft, a senior member of one of the congregations using that building said, and I accept, that the premises are too small to properly accommodate the congregations using it as both a place of worship, and for religious instruction. The car parking is also inadequate, and the building and location do not accord with the expressed desire of this religious community, exemplified in the Merrimac Kingdom Hall, to have a facility which is attractive, surrounded by well-maintained and landscaped gardens, and in some kind of harmony with surrounding structures.
As a consequence the senior members of the congregations, called elders, have been seeking suitable alternative accommodation since 1997. The subject site was identified some years ago and a development application was lodged for a Material Change of Use (place of worship, and caretaker’s residence) and reconfiguration of one lot into two in December 2002. Mr Mintoft gave convincing evidence that the site is convenient for each of the congregations, readily accessible via a good road network, and of sufficient size to provide an appropriate building, adequate car parking and attractive landscaping.
The application was made under the provisions of the now superseded 1995 Albert Shire Planning Scheme and was subject to impact assessment. It was refused by Council in September 2005. The long period of time between the development application and refusal encompassed the introduction of Council’s new planning scheme in 2003, promulgated to accord with the Integrated Planning Act 1997 (IPA).
Under the 1995 scheme the land is at the margin of the Open Space/Open Space Corridor and Park Residential Preferred Dominant Land Uses (PDLU) in the Strategic Plan and, is included in the Rural zone where a place of worship is a prohibited use. Under the 2003 planning scheme the parcel is included in the Rural domain where a place of worship is, now, described as “generally appropriate”.
By the time of trial the issues had reduced to the question of conflict between the proposal and the 1995, and 2003 planning schemes (and, of course, the nature and extent of any conflict, and whether or not there might be sufficient planning grounds to warrant approval despite that conflict); whether or not the proposal would have an unacceptable impact on visual amenity and the character of the area; and, traffic and car parking issues.
Although the co-respondent attempted to keep issues like noise and lighting, the risk of flooding and the manner of effluent disposal alive, all had essentially been abandoned by Council as a result of reports obtained from its own experts, and meetings between some of those experts and those retained by the appellant. No expert evidence was called by the co-respondent about these matters. Flooding had not been notified as an issue. The evidence of two expert witnesses on matters of noise and lighting was persuasive they should not remain as issues, and no evidence was presented raising a concern that it was wrong for Council to abandon them.
The dispute between the two senior traffic engineers narrowed, ultimately, to the proper manner of treatment of Piggabeen Road, which would contain the entry and exit point for the Kingdom Hall. Although a great deal of time was spent attempting to calculate the numbers of potential users and, from that, the appropriate number of car parks this issue was, in substance, resolved by the traffic experts themselves. Both Mr Holdsworth, called by the appellant, and Mr Beard, who gave evidence on behalf of the Council, were of the view that realistic congregation numbers indicated slightly more than 100 car parks would be entirely adequate. Mr Holdsworth calculated 103 and Mr Beard between 108 and 112 but he frankly and fairly conceded that 103 “… can accommodate the sort of number that I think is the right number”[2]. That evidence, combined with detailed congregation numbers provided by Mr Mintoft, was persuasive that any number of car parks exceeding 103 would be perfectly adequate.
[2]T145.34
Mr Beard also thought, however, that the entry/exit point for the Kingdom Hall on Piggabeen Road would best be treated by a small roundabout (as opposed to an absence of controls there) and in his report and oral evidence[3] persuasively advanced the proposition that because traffic use on Piggabeen Road is very small, the disparity between that usage and the intermittent, but periodically heavy emergence of vehicles driven by the members of up to two congregations as they leave the premises gave rise to a risk that the drivers of those vehicles would tend to pay inadequate attention to the much lesser traffic on Piggabeen Road, and create a potentially unsafe traffic situation. In light of this evidence the installation of a small roundabout is a sensible and appropriate way to ameliorate that risk.
[3]T151
The question of visual impact was addressed by architects: Mr O’Brien for the appellants, and Mr Chenoweth for the respondent Council. Importantly, while Mr Chenoweth was concerned that the appellant’s detailed landscape plan lacked some information, it was accepted that appropriate conditions of approval could be attached to the proposal to ensure it would satisfactorily screen the proposed buildings from views on both Currumbin Creek, and Piggabeen Road. Plainly, that will take some time but the photo montages (which, I am satisfied, contained realistic representations of the building both with and without landscaping, albeit a few years after actual planting) supported that conclusion. As Mr O’Brien suggested at the experts’ meeting any additional detail relating to species, density, location and size when planted could properly be addressed in conditions of approval.
The other area of dispute between these experts concerned the size and scale of the building, in the general environs of Currumbin Valley. While Mr Chenoweth fairly acknowledged the appellant’s efforts to achieve a design not dissimilar to many rural residential homes in the area, he thought it remained at an inappropriately greater scale than residences in the immediate neighbourhood on Piggabeen Road. While the building is in truth larger than most homes, it mimics the style of nearby housing and would be not much bigger than some residential structures seen in aerial photographs, and viewed in the development immediately to the west during inspection. At the ‘Lakes’ development just to the west some of the houses could only be described as enormous. Those lying directly opposite the site in Piggabeen Road are generally quite large, although not on the same scale. The difference will not, however, create a striking impact: the variation in scale is not great and potential impacts are reduced by the design, and landscaping.
An undeniably important aspect touching the question of visual impact arises from a proposed development variously referred to as the “Co-You”, “Hideaway” or “Devine” development on the surrounding land to the east, south and south-west. That development has an influence which is also relevant to town planning issues, discussed later. Its effect on visual amenity was, the evidence showed, likely to be profound.
The ridgeline further to the west on Piggabeen Road, which sweeps across the south of the viewshed and away to the east will, under this proposal, be occupied by a very large residential development with many homes and apartment buildings. While the development incorporates substantial landscaping and keeps residential development below the ridgeline, two aspects of it are striking: first, much of the flat pasture stretching across from Currumbin Creek Road and the subject site to the ridgeline at the south will be excavated and filled up and become a very large lake; second, the proposal shows a number of large home sites which will face directly onto that lake.
The case advanced by the co-respondent and by an architect called to give evidence on its behalf was that the Co-You development, while changing the southerly and south-easterly outlook from Piggabeen Road from one of flat pasture to water, would nevertheless maintain the existing visual amenity of this part of the valley floor, which would merely take a different form. The submission and the evidence were, with respect, unconvincing. The notion that a lake some hectares in size, bordered by the large residences of the kind which already form a substantial proportion of buildings in nearby parts of the valley would, yet, be analogous to the present bucolic vista is fanciful. The valley floor will be inundated and the effect will be, on any view “… very different from the pastoral character of the immediate vicinity”[4].
[4]Mr O’Brien, T165.31
Mr O’Brien also expressed the opinion that these new lakes would, despite landscaping, inevitably appear as man made and compared them with lakes at the nearby Newman development to the west. It was put to him that the latter were, in fact, natural offshoots of Currumbin Creek, but other evidence showed they had dual qualities in that they were probably formed by a combination of natural ponds, and historical excavations for gravel and rock. The impression gained on inspection coincided with Mr O’Brien’s opinion that they did not have an overwhelmingly “natural” appearance and presented as, more likely, the product (at least in part) of human effort.
Ultimately, the point is peripheral: it is sufficient to conclude, as the evidence compels, that the immediately surrounding landscape (including the outlook of the present houses on the western side of Piggabeen Road) will be dramatically changed be the Co-You development. This accords, again, with the evidence of Mr Reynolds that the Valley, including this part of it, is in a process of transition so far as its character and uses are concerned.
When the appellant’s application was made in December 2002 the 1995 Albert Shire Planning Scheme was in effect. It is a ‘transitional planning scheme’ for the purposes of IPA, so the application fell to be assessed under ss 6.1.29 and 6.1.30. Because the application was one which would have required a rezoning, IPA’s transitional provisions require assessment with reference to ss 4.4(3) and 4.4(5A) of the Local Government (Planning and Environment) Act 1990. If the application involved conflicts with the scheme, those provisions require that it be refused unless sufficient town planning grounds to justify an approval, despite the conflicts, arose. The test to be applied under these provisions has been widely expounded[5].
[5]Grosser v Gold Coast City Council (2001) 117 LGERA 153, at 166; Weightman v Gold Coast City Council (2002) 121 LGERA 161 at 173-4
The respondent Council introduced its new planning scheme, conforming with IPA, in 2003. Weight may be given to its provisions: IPA, s 4.1.52(2)(a), and this is a case in which it is proper and appropriate to refer to, and consider, the provisions of the later scheme. It has now been in effect for almost four years. It addresses the relevant parcel in a different way from the transitional scheme.
For reasons which follow, however, both schemes have also to be considered in light of planning incidents in this locale which render their provisions, to a greater or lesser degree, less than properly reflective of the likely present or future character of the area, or relevant to any impacts of the proposed use.
Under the Strategic Plan forming part of the 1995 Scheme the land is at a junction of the Open Space /Open Space Corridor, and Park Residential PDLUs. The town planners called by the appellant and Council, Mr Reynolds and Mr Venn, could not agree on the interpretation of the Strategic Plan map showing the PDLUs or the one which applied to this parcel. For reasons which follow, the matter is not of great moment.
The intent for the Open Space PDLU shows those areas are not generally intended for building development and should ‘predominantly’ be left in either a natural, rural or recreation state. The Park Residential PDLU involves areas ‘intended to accommodate people who wish to live on larger allotments than are found in Urban areas’.
This parcel does not exhibit any of the qualities contemplated for land apparently intended, under the transitional scheme, to attract the Open Space PDLU – ie, land which has value for reasons connected with ecology, water quality or landscape quality, or because the best use of the area is recreation. The Open Space PDLU designation appears to be related to a meander of Currumbin Creek, rather than a designation deliberately attached to, say, flood prone land[6]. The Park Residential PDLU contemplates non-residential land uses, the scale of intensity of which is ‘… consistent with the low density residential character intended for these areas’ and those residential uses include a place of worship, which is a consent use in the zone.
[6]Exhibit 6, figures 5 and 17
This proposal cannot be said, then, to involve an apparent or serious conflict with either PDLU. The Open Space designation is of little apparent relevance; the Park Residential PDLU always carried a prospect that the land might, indeed, be used for a place of worship and that was always a reasonable expectation[7]. Any conflict with this aspect of this Strategic Plan is, at the highest, minor.
[7]Bell v Noosa Shire Council [1983] QPLR 311, at 313
The zoning provisions of the transitional planning scheme did place the land, however, in the Rural Zone where a place of worship was a prohibited use but the statement of intent for that zone shows that it intends only to restrict (but not prevent) non-rural activities, and some urban uses (like hotel and accommodation premises) which fit in with the ‘low-key rural/natural atmosphere’ are contemplated.
The zoning has, moreover, been much reduced in force or effect both by other elements of the planning scheme, and by the wide-scale residential development in the area, mentioned earlier. The Park Residential zone on the immediate opposite side of Piggabeen Road provides that a place of worship is, as noted, a consent use. The nearby Lakes development to the west, and the extensive rural residential development on the other side of Currumbin Creek, and the Co-You development mean the notion of rurality in the locality has, because of existing approvals, been quite exploded. In all of the circumstances, ascribing any measure of real conflict with the earlier planning scheme to this application is unrealistic.
Under the 2003 scheme the land is identified on the land use theme map as being part Open Space/Nature Conservation and part Rural/Nature Conservation. The scheme also, however, places the land in the Rural domain and identifies a place of worship as an appropriate use in that domain. That signifies, as the appellant submitted, a major policy shift because of a place of worship had been a prohibited development under the previous scheme.
Again, too, any conflict with the scheme has to be considered in the context of significant and deliberate planning decisions by Council which have already affected the nature of the locality in a significant way. After the 2003 scheme was introduced Council nevertheless resolved to permit the large Co-You development. It dealt with that application as one made under the superseded planning scheme and, by so doing, elected under IPA (s 3.2.51) to permit development under the previous scheme zoning in a way which, obviously, undermined the integrity of the 2003 scheme (which had included the Co-You land in the rural domain).
Nor does the 2003 scheme accurately reflect actual existing land use patterns. There is existing Park Residential development included, for some reason, in the Rural domain; and, of course, large scale urban development, comprising 530 dwellings, on the Co-You land which is also in that domain. So, too, are the Park Residential detached houses south of Piggabeen Road, and the new development at The Lakes.
In truth, then, conflict with the 2003 scheme is also nebulous. The proposed use is in fact one which is considered appropriate in the domain, subject to compliance with applicable codes [8] but neither the designation nor the codes have, in truth, any real relevance to existing or approved developments.
[8]The rural domain place code – which, as the evidence of the town planner Mr Reynold’s showed, indicates that a place of Worship is a consistent use.
Council argued that the proposal would have an unacceptable impact on visual amenity, and the character of the area. It was unable, however, to identify any notable unacceptable impacts save that screening the proposed development, by landscaping, would result in a loss of open space and a change to the rural character of the land. The submission has to be considered in light of the earlier finding that the dramatic change to the valley floor to be wrought by the Co-You development, involving conversion of the present pastures to lakes, surrounded by housing, makes this claimed impact one which cannot fairly be described as unacceptable, or, indeed, serious or notable. Even in the Rural domain the parcel could have been developed with a substantial house, and trees.
The possibility of adverse impacts must also be considered in light of reasonable expectations for the relevant area, against the background of the planning documents[9]. For reasons already explored, the possibility that a place of worship might arise on this site under either the transitional or new planning schemes falls fairly within the ambit of things which would not be unexpected. So much is confirmed, indeed, by the original submission made by the correspondent by election, which indicated acceptance of the idea that the land is suitable for a place of worship and that it was an acceptable community activity[10].
[9]Quinn v Beaudesert Shire Council [2005] QPELR 36 at 40; Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61
[10]Exhibit 37
None of the experienced, expert witnesses called by council were able to identify any unacceptable impacts on amenity flowing from the size and scale of the proposal. That is unsurprising: the photo montages[11] are persuasive that the buildings on the site will be well screened by vegetation; are attractive and designed in a way which reduces any impression of visual bulk; will be built in a style which is not unsympathetic with nearby dwellings; and, albeit that it will take some time for the landscaping to establish itself, the development is unlikely at any point to approach anything like a condition which could reasonably be described as visually offensive.
[11]Exhibit 8
The evidence of the lighting and noise experts shows there are no unacceptable impacts in the areas they addressed. While there will be an increase in traffic on Piggabeen Road, the estimated flow remains well within acceptable limits for a road with its dimensions and designation and can, by dint of conditions putting the conclusions reached earlier into effect, be appropriately managed.
Even if meaningful conflict with either planning scheme had been found there are planning grounds which would readily overcome the conflict. The most compelling of these is need – the need for a conveniently located place of worship to advance and promote religious, social and cultural wellbeing for this religious group. The evidence showing details of the numbers and location of worshippers[12] confirms there is a large population of this religious community in this part of Queensland, pressing this need.
[12]Exhibit 12, Exhibit 22
The evidence of Mr Mintoft was persuasive that there is ‘…a latent and unsatisfied demand on the part of persons effected by the planning scheme which is not been met nor being adequately met by the scheme in its present form’[13] . The group has searched long and hard for an alternative to its West Burleigh premises, which are too small. This site is convenient to the congregations which use it; has good access from the road network; is of sufficient size to ensure the Kingdom Hall can be appropriately landscaped in a way which both provides an attractive amenity for those in the congregation, and for the benefit of the community at large; and, provides all other appropriate, convenient and safe facilities for the group.
[13]William McEwens v Brisbane City Council [1981] QPLR 33, at 34; and, see Kotku Education and Welfare Society Inc v Brisbane City Council [2005] QPELR 267 at 279.
There is no reason to expect anything other than that the proposal will bring an attractive addition to the locality like, for example, the Kingdom Hall at Merrimac. It can be provided with no unacceptable impacts on amenity and indeed, impacts which can not unreasonably be described as beneficial. In light of these findings, additional planning grounds supporting the proposal include the absence of impacts and, in truth, the enhancement of amenity[14].
[14]A proposition consistent with the elements of ‘planning grounds’ discussed by McLauchlan QC, DCJ in Kentbrock v Gold Coast City Council [2003] QPELR 587, at para [31]
Council’s submissions press the proposition that the land was included under the transitional planning scheme in the Open Space PDLU because it is flood prone. While that might be true, the exercise described earlier involving figures appearing in Exhibit 6 shows that the PDLU designation may equally relate to nothing more sinister than a meander of Currumbin Creek. The argument is, in any event, less then compelling. Whatever planning philosophy underlies the designation, it is one which is primarily to be ascribed to land which should ‘predominantly’ be left in a natural, rural or recreational state. That is not, historically, what has occurred – nor, in particular and importantly, what is to happen to the balance of this part of the valley floor under the Co-You development.
Attempts to show that approval of the Co-You proposal involved State Government involvement and an earlier ‘Special Facilities’ zone under the transitional scheme do not detract from the conclusion that approval of the Co-You development, and the other developments in the valley which have been mentioned, means it is inescapable that this part of Currumbin Valley can only properly, now, be described as an area which is in a rapid rate of transition from a rural valley character to a semi-urban or suburban setting.
In the course of his evidence Mr Reynolds sought to elicit some support for the proposal because the land is within the Hinterland Area shown in a map under the 2003 planning scheme. Despite Councils protests, this is not an unreasonable approach. The land was included in the Hinterland density map in the 1995 scheme, in a locality where the subdivision ratio was shown as one lot per 0.8 hectares – meaning, in practical terms, that under this control, reconfiguration of the subject parcel into 5 or 6 house sites was always possible.
Submissions made on behalf of the Friends of Currumbin suffer the disadvantage that they are at odds with the original submission made by that group in response to notification of the development application[15]. That earlier submission agreed a place of worship is an acceptable community activity, but expressed concern that the use of the site would include other types of activities over and above worship. As the evidence shows, that fear is unfounded; the Jehovah Witnesses worship in a quiet, undemonstrative way; do not use the premises for any other purposes like large meetings, or rent them out for other community purposes; and, limit the size of congregations. The only submission otherwise made about impacts concerned traffic. That relevant concern must be judged against the reasonable expectations for the locality which, again, involved contemplation of the proposed use on this site.
[15]Exhibit 37
Otherwise Dr Moon’s submissions advanced a proposition, put to a rather startled Mr Reynolds in cross-examination, that the town planner’s reading of the planning schemes was obfuscatory and typified a ‘post modernist agenda’. It is said, as I understand the submission, that Mr Reynolds’ evidence about town planning issues did not properly focus on the necessary ingredients or components of the planning scheme to ‘advance comprehensivity’ and, rather, involved excessive deconstruction and analysis of discrete parts. This ignores, with respect, the many previous careful pronouncements of this Court about the way planning schemes are read, helpfully summarised by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council[16].
[16][2004] QPELR 337, at 342
As His Honour said, the relevant principles include an approach to construction which best achieves the apparent purposes and objects of the schemes; reading them in light of the proscription in IPA against the prohibition of development; reading them broadly, and not pedantically, and mindful that strategic plans set out broad desired objectives, not every one of which must be completely met before a proposal can be approved; and, remembering that they are not drawn with the precision of an Act of Parliament and statements of intent, or aims or objectives within them are not intended to provide anything more than guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate. The exercise Mr Reynolds took did not seem to offend these principles. In any event it is a matter for the Court, not town planners, to construe planning schemes. That is not to say, of course, that the work of town planning witnesses in referring the Court to relevant parts of schemes is not of assistance.
The co-respondent’s submissions do address questions of visual amenity, traffic and social impacts (with particular reference to traffic) but do not contain anything not properly and helpfully traversed by Mr Houston, who appeared for the respondent Council. For reasons already explored, they are not persuasive that meaningful conflict arises vis a vis the planning documents; or, that any of the impacts are unacceptable, unexpected or serious, or will have an adverse effect on amenity.
Refusal of the application was, then, incorrect. The appeal will be allowed, and the matter otherwise adjourned to enable preparation of conditions of approval which reflect these conclusions.
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