Wood v Redland City Council
[2011] QPEC 50
•28 March 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wood v Redland City Council [2011] QPEC 50
PARTIES:
REDLAND CITY COUNCIL
(Applicant/Respondent)v
GREGORY M WOOD
(Respondent/Appellant)FILE NO/S:
2394/10 and 3592/10
PROCEEDING:
Hearing of application and an appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
28 March 2011
DELIVERED AT:
Brisbane
HEARING DATES:
15 and 16 March 2011
JUDGE:
R Jones DCJ
ORDERS:
The appellant’s appeal is dismissed.1.
Pursuant to s 604 of the Sustainable Planning Act 2009 it is declared that the use of land described as Lot 42 on RP 118194 and located at 31 Drevesen Avenue, Cleveland (“the Land”) for the purpose of processing, cooking and storage of seafood for sale is unlawful and a constitutes a development offence, in that it involves assessable development for which no effective development permit for material change of use has been issued, and the use is not otherwise lawful.2.
Further, it is ordered that the Respondent by himself, his servants or agents, forthwith cease and not use the Land for the purpose of the processing, cooking and storage of seafood for sale without having first obtained an effective development permit authorising such use.3.
CATCHWORDS:
PLANNING LAW – DECLARATION THAT USE OF LAND UNLAWFUL – CONSEQUENTIAL ORDERS – Application made to regulate use of land – application refused – APPEAL AGAINST REFUSAL – Appellant a professional fisherman – among other things land used for cooking, freezing and storing crabs – Land located in residential area – impact on amenity.
Sustainable Planning Act 2009.
COUNSEL:
Mr Ure of Counsel for the applicant/respondent
Mr Wood appearing in personSOLICITORS:
Norton Rose, lawyers for the applicant/respondent
These proceedings involve an originating application[1] brought by the applicant/ respondent (the Council) seeking a declaration that the respondent/appellant’s (the appellant) use of land located at Cleveland constituted a development offence in that it involved assessable development for which no effective development permit for material change of use had been issued and the use was not otherwise lawful. The Council also seeks an order that the appellant by himself, his servants or agents forthwith ceases using the land for the purpose of processing, cooking and storage of seafood for sale without having first obtained an effective development permit for material change of use authorising such use. The second proceeding arises as a consequence of the action taken by the Council. In response to the Council’s actions the appellant, on, 12 August 2010, lodged an application seeking to regularise the business being conducted on the land. That application was refused and the appellant appeals that decision.[2] A successful appeal on the merits, to all intents and purposes, would make the relief sought by the Council redundant.
[1]2394 of 2010.
[2]3592 of 2010.
Background
The appellant is a professional fisherman. Since the 1990’s he has operated his business from the subject land located at 31 Drevesen Avenue, Cleveland.[3] Drevesen Avenue forms a part of a residential neighbourhood comprising of typical residential development albeit on slightly larger lots, in excess of 800 m2. Under the Council’s 1998 Planning Scheme the land was zoned Residential A. The referred dominant land use was Urban Residential.
[3]The property is more properly described as lot 42 on RP 118194 Parish of Cleveland.
The business or use conducted on the land by the appellant involves the loading of two outboard driven fishing boats, the towing from and to the subject land those vessels and, on return from fishing, their unloading and cleaning. Other uses include cleaning, cooking, freezing and storage of crabs. There was an allegation that at various times the appellant had also sold crabs on a commercial basis from the subject land but that allegation was not pursued in these proceedings. More will be said about these activities below when dealing with the question of amenity.
On 22 September 1997 the Council issued, subject to conditions a Town Planning Consent Permit under the Local Government (Planning and Environment) Act 1990. The use for which permission was granted was “Home Occupation (Cooking and Storage of Seafood)”. Pursuant to condition 2M of the permit it ceased to have effect on 30 August 1998. Upon application by the appellant, on 23 July 1998 the Council amended condition 2M to extend its validity to 30 August 2001. All other conditions remained unchanged.
Prior to the expiration of the permit the appellant, pursuant to s 4.3.9 of the Integrated Planning Act 1997 (IPA), was issued with a show cause notice. The reasons underlying that notice were that the Council believed that the appellant was selling seafood from the premises and was not otherwise complying with all relevant local Council laws and regulations and/or with the conditions of the permit. As a consequence of that action, on 17 July 2001 the appellant, under to the Oaths Act 1867 solemnly and sincerely declared that he would not sell seafood from the subject land or any adjoining land.
On 23 January 2002 the Council wrote to the appellant advising him that the permit/approval to conduct the business had lapsed. That correspondence emphasised that the existing use of the land permissible under the permit was not to be continued until a development permit had been issued. That permit being a development permit under IPA for the use of the subject land as a “Home Based Enterprise”. On 12 February 2002 the appellant sought approval to conduct the business on the subject land for a further five years. In response to that application, on 14 March 2002 the Council wrote to the appellant advising, among other things:
“Council advises that following consideration of all the facts and circumstances, it is unlikely that approval will be given for the extension of your lapsed application. Council also advises that this use of the premises for the Home Occupation – Cooking and Storage of Seafood is to cease immediately and it is not to recommence until appropriate approvals have been obtained. If the use does not cease Council will be left with no other option than to pursue further enforcement action.”
Notwithstanding not being able to locate any actual application, in August 2002 the Council proceeded on the basis that the appellant had lodged an application seeking to regularise his use of the subject land. And, on 8 August 2002 advised the appellant that:
“I refer to the above application lodged with Council on 22 March 2002.
The sum of $825 was received being the application fee for this application. Council has determined that the existing approval over the site has not lapsed.
A Current Extension of Time for the existing approval (C2881) is currently with Ross Edmonds for assessment. …”
Following that assessment, on 24 October 2002, the Council advised the appellant that:
“Council has decided to change condition 2M to now read:
‘This approval will lapse and will have no force and effect whatsoever on 30 March 2005. No further notice will be given advising of the date the approval lapses and from 31 March 2005 the cooking and/or storage of seafood on the premises will be unlawful.
This approval does not include or extend to the selling of seafood from the property whatsoever.’”
Notwithstanding that the further revised condition 2M of the permit provided that no further notice would be given, as it turned out, the appellant was given notice of the pending expiration of the permit. I should note here that reference was made on a number of occasions by the appellant to the fact that he did not receive some correspondence sent by or on behalf of the Council. While his evidence about these matters was not particularly convincing I do not consider that this in any way affects the outcome of these proceedings.
On 31 March 2005 the appellant lodged a Request to change an existing approval under IPA. In support of his application the appellant included a signed attachment which read:
“I wish to apply to continue to operate my home occupation cooking and storage of seafood at 31 Drevesen Avenue in Cleveland. I have been operating from this address under Council registration from August 1997. I was the first and only fisherperson for years to be registered with the Council and working from home in the Redland Shire. I have been a forerunner in hygiene in land based fishing working from a private home. There has been no breach committed under health or any other Act that covers this operation since approval in August 1997. Since 1997 several fisherpersons have taken up this concept and been Council approved, one in Birkdale as recently as last year. I believe hygiene is very important in food and fishers are food processors.”
On 13 February 2006 the Council advised the appellant that his application was refused. In essence the grounds for refusal were that to extend the use would impact on the amenity of residents in the area and would be “against the reasonable expectations of nearby residents”. It also pointed out that in the opinion of the Council, the use constituted assessable development. On 10 March 2006 the appellant filed an appeal against the refusal. On legal advice, the appellant abandoned that appeal on 5 September 2006.
Notwithstanding the lapsing of the authorisation to carry out the use, the appellant continued to operate his business from the subject land for a period of time. That led to the subject enforcement proceedings. That in turn led to the filing of another application by the appellant to regularise his use of the land in August 2010. On 20 August 2010 the Council advised the appellant that it did not consider the application to have been properly made as it was deficient in a number of respects. Including the failure to include a site plan drawn to scale, a statement about how the proposed development addresses the Council’s planning scheme and a statement about the intensity and scale of the proposed use. In response, on 15 September 2010 the appellant provided a document to the Council which relevantly stated:
“In response to Council’s letter dated 20 August 2010 I would provide you with the following statement about how my use complies with the Council’s planning scheme.
My business (cooking and storing seafood) is contained within a Council approved outbuilding and is undertaken by myself the owner and permanent resident of the property and there are no non-resident employees.
My business does not:-
·generate client visitation;
·require any delivery of goods or material, only gas for cooking;
·involve the display of goods or materials related to the use;
·involve hiring out of goods, materials, appliances or vehicles from the site;
·have any signage;
·emit vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, radio, electrical interference, or other environmental emissions;
·generate noise;
·impose an adverse load on utility infrastructure, compared with the existing dwelling unit;
·generate waste water;
·generate waste in excess of the capacity of the 240 litre bin compared with the existing domestic waste production. …”
It was also pointed out that the business only utilised two licensed fishing boats, generated no more than 20 tonnes of seafood per annum on average and that 90% of the appellant’s (and his employee’s) activities were conducted at sea and any operations on the subject land would not have exceeded three hours per day, commencing at or about 9.00 am.
On 19 November 2010 the Council notified the appellant that his application had been refused. The grounds for refusal are extensive however, relevant to these proceedings, the only issues which I consider require specific mention are; conflicts with the town planning scheme and, in particular, impacts on amenity caused by noise and/or odour. A number of other issues were identified including storm water and waste water management and car parking, however these matters were not pursued by the Council. In response to that refusal on 2 December 2010 the appellant filed the notice of appeal under consideration.
On 3 December 2010 Judge Rackemann ordered that the Council’s proceedings and the appellant’s appeal be heard together.
The Council’s Applications
At the end of the day the substantive issues resolve largely around questions of amenity. And, in particular, the impact of noise and/or odour on those living in the reasonable proximity of the subject land.
Under the Council’s Planning Scheme the term “Home Business” means:
“The use of premises for a business activity located either within a dwelling unit, an extension to a dwelling unit, or outside of a dwelling unit but on the same premises”.
It is not disputed that the use of the land would fall within that definition. It is also clear that amenity is a high order objective for residential development under the Scheme.
Pursuant to s 4.24.7 of the Scheme the overall outcomes sought for the Urban Residential Zone are described by five key characteristics, being:
(a) uses and other development;
(b) built form and density;
(c) amenity;
(d) environment;
(e) infrastructure
Under “Amenity” s 4.24.7(2)(c) provides:
“(i) Uses and other development achieves a high standard of amenity by –
…
(e) Eliminating or mitigating impacts associated with light, noise, air and traffic.(ii) The scale, operational attributes and impacts of non residential uses maintains a high standard of residential amenity.”
Under the Urban Residential Zone a Home Business, if not self assessable is code assessable. By reference to s 6.15.4 of the Scheme it is clear that the subject use would not constitute self assessable development.[4] It must therefore comply with the Home Business Code of the Scheme. Consistent with the emphasis on amenity in the Urban Zone s 6.15.3 of the Scheme provides:
[4]See for example A1(b), (e), (i),(j) and (m)
“Overall Outcomes of the Home Business Code
(1) The overall outcomes are the purpose of the Home Business Code
(2) The overall outcome sought for the Home Business Code is the following -
(a) to ensure the use –(i) facilitates business and employment from home in a manner that does not adversely affect the amenity of the surrounding area…”
In these proceedings it is not disputed that a permit authorizing the use is required and that no such permit exists. There is also no doubt that the operation of the business absent such a permit is unlawful. The appellant during his evidence-in-chief acknowledged that what he was doing was unlawful and that was why he ceased operations in July 2010.[5] It is also clear that the appellant is anxious to re-commence operations as quickly as is practicable.
[5]T2-34 L 10 to 35
Carrying out assessable development without a permit is an offence.[6] For the reasons I have given and for the reasons I am about to give concerning the appellant’s appeal I am satisfied that an offence for the purposes of SPA has been committed.[7] I am also satisfied that this is an appropriate case for making the declarations sought by the Council.
[6]s 578 SPA
[7]s 604 SPA
The appellant’s appeal
Not surprisingly, the substantive issues in the appeal also revolve largely around questions of amenity. And, in particular, the impact of noise and/or odour on those living in the reasonable proximity of the subject land. As I mentioned earlier, the Council had previously raised concerns about matters including stormwater and parking but they are no longer in dispute.
The material relied on by the Council indicates that from time to time complaints had been received about the appellant’s activities on the land. However, it would seem that the most persistent complainants are from those located immediately either side of the appellant’s premises. The level of complaint could not be said to be high. No complaints have been made by the neighbours adjoining the rear boundary of the subject land, and they are as close, if not closer to the offensive activities carried out by the appellant as any other neighbours. It is also tolerably clear that there is support for the appellant being allowed to conduct his business, including support from a number of nearby neighbours.[8]
[8]Refer to Exhibits 9, 10 and 11
Notwithstanding that level of support however, the expert evidence does reveal that from time to time the operations of the appellant would impact on residential amenity in a significant way.
Mr King gave evidence about the odour impacts of the appellant’s business. In my respectful view Mr King’s evidence was not only thorough but very fairly put. His opinion was to the effect that none of the activities carried out by the appellant in the course of his business would be such as to prevent it continuing provided they were adequately dealt with. In that regard Mr King referred in particular to the need to maintain a strict cleaning regime and adequate exhaust ventilation. At page 5 of his report[9] Mr King reports:
[9]Exhibit 7
“On the basis of my inspection and review of the documentation I consider that the facility has the potential to operate such that adverse odour emissions do not result provided specific control measures are implemented.
Of primary concern is the odour from crab cooking and the as-installed exhaust recirculation system which does not appear to provide a normal process of filtration, dilution and vertical discharge to promote dispersion of cooking odours.
I note the applicant’s comments that an exhaust canopy was not installed due to the presence of the overhead rail to carry laden crab baskets from the cooker to sink area. However, I consider that it would be possible to engineer an exhaust canopy constructed around the rail to allow rail use and to also provide exhaust extraction and filtration. Such a system should be installed as a condition for any development approval to provide an engineering control of cooking odours.
General housekeeping measures as described by the applicant appear appropriate and should form the basis of appropriate conditions.”
Mr King at pages 5 and 6 of his report set out a number of “recommended conditions” should a decision be made to allow the use to continue.
Turning then to the issue of noise. A noise impact assessment was carried out by Dr Hayne. As was the case with Mr King, Dr Hayne also gave very thoughtful and balanced evidence. Dr Hayne’s evidence was to the effect that any noise associated with the operation of plant and/or equipment on the premises could be adequately dealt with. The major concern centred around the movement of the two fishing boats when departing for and returning from fishing. That involved four vehicle movements (including towing of boats) which usually occurred, in the case of departures, in the early hours of the morning. At pages 10 and 11 of his report[10] Dr Haynes reports as follows:
[10]Exhibit 6
“• Noise emissions from activities associated with the departure and return of the boats during the night-time period exceed both the acoustic quality objectives contained in the EPP (Noise) and sleep disturbance limits.
·In my opinion, the level of noise associated with the preparation and departure of the two boats followed by the return of the boats every night would be unacceptable in a residential area. Achieving compliance with the limits would not be practical due to the excessive barrier height required.
·Noise emissions from the refrigeration plant exceed Council limits. However, it would be possible to acoustically treat this plant and any future items of mechanical equipment to achieve compliance with these limits.
…
·Noise emissions from cooking and associated activities on the site are unlikely to be an issue as they are conducted within the outbuilding and occur during the day time.”
Relying on the evidence of Mr King and Dr Hayne, Mr Gaskell, the town planner relied on by the Council, gave evidence that the business conducted on the land was in conflict with the Scheme for various reasons including conflict with the Council’s Urban Residential and Home Business Codes. At page 17 of his report[11] Mr Gaskell relevantly concludes:
“107 The home business the subject of this appeal is considered to conflict with the Redland City Planning Scheme including:
108 • the Urban Residential Code, in that the proposal does not maintain a high level of amenity, and the application has not shown how noise or air emissions are mitigated…
109 • the Home Business Code, in that the proposed use impacts on the amenity of the surrounding area in relation to noise, odour, traffic…”
[11]Exhibit 8
The appellant’s response
The appellants written response to the matters raised by the Council are set out in paragraph 12 above. The appellant’s assertions concerning noise and odour are contradicted by the expert evidence. As the evidence of the appellant unfolded it became tolerably clear to me that he knew and understood that his activities were in conflict with the objectives of the Scheme concerning residential amenity and that to continue or recommence his business on the premises he would have to address the issues raised by Mr King and Dr Hayne.
On more than one occasion the appellant stated that he had to put in place a “site management plan” and work through the issues raised by the experts with the Council. He also acknowledged that, in particular, he had to address the noise issues associated with moving the boats. In this regard he originally proposed parking the vehicles and boats on the street. Later in his evidence he proposed moving both boats off site and into an industrial area. At one stage during proceedings the appellant stated[12]:
“Well, the boats can be addressed. As I said, I’m not asking you to grant me the appeal but I’m asking to suggest to the other side or whatever or – you know, they put their case up, I’ve put my case up. The boats are the problem. We have to address the boat situation and there’s no doubt there’s an industrial area up the road and there’s heaps of properties up there with locked fences and that and I could pay rent for my boats to be put in there and leave ‘cause they’re right alongside a residential area and one side of South Street’s residential, it’s acreage, and the other side is industrial, you know….”.
[12]At T 2-59 L35-47
On the evidence before me it appears that there are at least reasonable prospects of the appellant being able to satisfy all of the concerns raised by the experts. However, the fact remains that as it operated in the past and would operate in the absence of these matters being addressed, the use of the premises was and would be in conflict with the Scheme.
This case has unfortunate consequences for the appellant and his family. It is highly likely that the dismissal of his appeal will cause financial hardship for the appellant and his son-in-law who is employed in the family business. While the SPA recognises that a use can continue despite conflict with the town plan there must be sufficient grounds to justify the use despite the conflict.[13] However, such grounds for the purposes of the Act exclude the personal circumstances of the appellant and are concerned with matters of public interest or benefit.[14] Public interest or benefit was not a live issue in these proceedings. There are no other reasons which would justify allowing the use to continue in its current form.
[13]See ss 326 and 329 of SPA
[14]Schd 3 of SPA – definition of “grounds”
For the reasons given I have concluded that the Council has established that the appeal should be dismissed[15] and is entitled to the relief it seeks.
[15]s 493(6) SPA
Accordingly I order as follows:
1. The appellant’s appeal is dismissed.
2. Pursuant to s 604 of the Sustainable Planning Act 2009 it is declared that the use of land described as Lot 42 on RP 118194 and located at 31 Drevesen Avenue, Cleveland (“the Land”) for the purpose of processing, cooking and storage of seafood for sale is unlawful and a constitutes a development offence, in that it involves assessable development for which no effective development permit for material change of use has been issued, and the use is not otherwise lawful.
3. Further, it is ordered that the Respondent by himself, his servants or agents, forthwith cease and not use the Land for the purpose of the processing, cooking and storage of seafood for sale without having first obtained an effective development permit authorising such use.
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