The Royal Automobile Club of Queensland Ltd v Brisbane City Council

[2002] QPEC 23

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

The Royal Automobile Club of Queensland Ltd v Brisbane City Council & Anor [2002] QPEC 023

PARTIES:

THE ROYAL AUTOMOBILE CLUB OF QUEENSLAND LIMITED
Appellant

-v-

BRISBANE CITY COUNCIL
Respondent

and

KEN DREW TOWN PLANNING PTY LTD
Co-Respondent

FILE NO/S:

4544 of 2001

DIVISION:

Planning and Environment

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

2-4 April 2002

JUDGE:

Quirk DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

COUNSEL:

Mr J. Haydon for the appellant
Mr M. Rackemann for the respondent
Mr R. Bain QC for the co-respondent

SOLICITORS:

Clayton Utz for the appellant
Brisbane City Legal Practice for the Respondent
Connor O’Meara for the co-respondent

1. This appeal, by an adverse submitter, is against the respondent’s approval of an application for a Development Permit for a Material Change of Use of Land at Eight Mile Plains.  The subject land is a rectangular shaped block occupying an area of 3.77 hectares and having frontage to Levington Road. 

1. It is proposed to use the land as a golf driving range.  Full details of the design and layout of the proposal may be found in the material placed before the court including the reports of the town planning consultants who considered the matter. 

1. In City Plan, the site is included in the Rural Areas.  There was no suggestion that the proposed use was inconsistent with that designation.  It would appear to fall within the definition of “Outdoor Sport and Recreation” and, although the use is impact assessable, it is considered to be “generally appropriate” in the Rural Areas.

1. The planning implications of the proposal were carefully considered by Mr Brown (an experienced town planning consultant called by the appellant) and Mr Taylor, one of the Council’s planning officers.  There would appear to be no planning reason why the proposal should be seen as an inappropriate development for the site provided appropriate attention is given to what proved to be the determinative issue in the appeal.  Evidence of public demand for facilities of this kind was given and it was accepted that community benefit would flow from their establishment on appropriate and conveniently located sites. 

1. The only matter of real dispute was the concerns of the appellant (the occupier of land adjoining to the north) that golf balls might escape from the subject land, enter its property and pose a safety risk for those using its land and a threat of property damage.  I say at once that public safety is always an important element in town planning.  If, in any given case, the evidence indicated that a proposal would give rise to any unacceptable risk to public safety, that would be a sufficient reason for refusing it.  However, the circumstances of every case must be closely examined.

1. In this case, as explained in the evidence, expansion of the RACQ facility into the adjoining rural area has occurred.  The facility is a fairly intense use of the site containing the major elements of the club’s activities and large numbers of staff and visitors attend upon the land.  As part of the approval process in respect of this expansion, there was provided a buffer of 24 metres in width which separates the boundary of the subject land from an earth mound which is 5 metres in width, 1.5 to 2 metres high and already carries a fairly dense cover of vegetation some of which is quite high and will become even more substantial. 

1. When the proposal was under consideration, the potential for golf balls to escape and enter the appellant’s land was a matter that was carefully examined.  Although a “high netting fence” separating the two sites had already been part of the proposal, more specific details were called for.  The result is that the design of the fence along the northern boundary has been fixed (at a height of between 15 and 23 metres) and brought back a distance of 5 metres within the subject land.

1. The teeing areas are to be so positioned that players will be hitting away from the northern boundary and, as an added safety measure, the co-respondent’s consultant, Dr Neal has designed a tee divider which will separate the individual hitting areas so that it will be impossible to strike a ball directly from the tee to the northern boundary.  A safety management plan (a copy of which was placed before the court) will be implemented.

1. The techniques and physics of golf were fully explored in the evidence adduced by both the co-respondent and the appellant.  Opinions came from those who have made extensive studies of the science of club impact and ball flight and from a professional golfer.  What did become clear as this evidence unfolded was that any risk of a ball crossing the fence and entering the neighbouring property would be associated with a ball hit with what is called “slice”.  This involves the ball’s being hit (for reasons that were explained) with an angled club face.  This causes it to spin and curve in its flight. 

1. In this case the problematical shot will have the ball begin its flight away from the fence but curve towards it gaining sufficient height to cross it and enter the neighbouring land.  Estimates as to how often this would occur were various.  The appellant’s witnesses feared that it could happen not infrequently while Dr Neal was of the view that, if his suggested measures were adopted, the risk was virtually negligible. 

1. The difference in approach was attributable to the assumptions made and, in this area, I feel that the appellant’s witnesses may have erred on the side of caution. Quite large numbers of players appear to have been assumed, reliance being placed on overseas usage patterns.  I have to say however that this was not a matter which I regarded as particularly important as the likelihood of injury to any person on the appellant’s land is a matter which must be carefully considered.

1. Of more consequence is the likely fate of any ball which finds its way across the fence and, on the evidence, the possibility that this will happen cannot be excluded.  In these respects, I believe that assumptions made by the appellant’s witnesses were unduly pessimistic.  While I accept the evidence of Mr Rutherford (the professional) that even the best golfers may, at times, impart slice to a shot, the power with which balls would be struck was assumed to be considerably greater than that of the vast majority of likely users of this facility.

1. Insufficient attention was, I believe, also given to the character of a sliced shot.  I accept the evidence that (put simply) such a shot is likely to climb higher and stop more quickly than a properly struck ball.  In this context the distance separating the netting and areas on the appellant’s land where persons are likely to be present must be taken into account.  Firstly there is the 5 metre setback from the subject land’s boundary.  Then a 24 metre buffer area, which in turn is separated from the carpark and walking track by a raised and vegetated mound, is encountered.

1. On the evidence given I accept that of Dr Neal that the possibility of a sliced golf ball penetrating these impediments to its reaching a danger area is negligible.  In this I am comforted by evidence given by a Mr Taylor who worked at another golf driving range (the Tee Trees facility) and explained that balls which escaped to the right of that range were rarely found more than 30 metres from the fence line.  In that case it has to be accepted that measures accepted by Dr Neal were not in place and, furthermore, the tee area was two tiered, there being a second and elevated level from which balls were struck.

1. Anticipating my taking this view of the evidence, the appellant argued that the co-respondent should not be in a position to gain comfort from the buffer area and mounding within the appellant’s land that all potentially dangerous incidents should be contained within the subject land.  At first glance such a suggestion might appear to have some force but it must be remembered that these features were not put in place merely at the whim of the appellant and subject to removal at the appellant’s pleasure.

1. As was made clear by Exhibit 22, it was accepted at the time when expansion of the RACQ operation was under consideration that these buffer areas should be put in place.  Accordingly they must be seen as a planning measure intended to provide an appropriate interface between the Rural Area of which the subject land is a part and the more intensive activities on the appellant’s land.  The result is that the presence of these buffers is something that one may take into account in assessing not only the factual situation but the likely impact of this proposal.

1. For these reasons I find that the probability of public safety being threatened is not, in this case, such as to call for the proposal’s rejection.  On the whole of the evidence I am satisfied that the onus of showing that the application is one which should be approved has been discharged.  Accordingly the appeal must be dismissed.