Zanow v Ipswich City Council
[2010] QPEC 50
•22 June 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Zanow v Ipswich City Council & Anor [2010] QPEC 50
PARTIES:
DARREN ZANOW AND BRADLEY ZANOW
(appellants)
v
IPSWICH CITY COUNCIL
(respondent)
and
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(co-respondent by election)FILE NO:
P & E Appeal 1500 of 2009
DIVISION:
Appellate
PROCEEDING:
Appeal against refusal of development application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
22 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
11-14 May 2010
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Developer appeal against refusal of development permit for material change of use (MCU) for light industrial purposes – site zoned low density residential and located on perimeter of precinct adjacent to Warrego Highway, devoted to similar uses by Telecom/Telstra since 1980 (uses which ceased lately) – appellants (new owners) in 2003 obtained approval for similar MCU permits approving actual development on part of site and a preliminary approval overriding the planning scheme for the whole of it – approved plan of development established a regime requiring impact assessment for further light industrial development now applied for – 2006 planning scheme perpetuated low density residential zoning – whether 2003 approval meant no conflict arose with the planning scheme – whether sufficient grounds to justify approval notwithstanding conflict – need – whether site suitable for residential use given industrial use of western part and proximity of highway – traffic and amenity issues – expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to highway being forbidden) belied by events, leading to unintended traffic through a residential area – whether the access (of a battleaxe variety) was adequate preponderance of local opinion favouring light industrial development over residential.
Integrated Planning Act 1997 s 3.1.6, s 3.5.5(2)(d), s 3.5.14(2)(a), s 3.5.14(2)(b), s 3.5.14A, s 3.5.14A(2)(a), s 3.5.31(1)(a)
Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, cited
Clark v Cook Shire Council [2007] QCA 139; 152 LGERA 420, considered
Edray Homes Pty Ltd Superannuation Fund v Ipswich City Council [1990] QPLR 237, considered
Fraser v Beaudesert Shire Council [2008] QPELR 548; [2008] QPEC 21, cited
Grosser v Gold Coast City Council [2001] QCA 423; 117 LGERA 153, applied
K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232, considered
Koerner v Maroochy Shire Council [2004] QPELR 211; [2003] QPEC 54, considered
Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191; [2000] QPEC 95, cited
Tadpoles Early Learning Centre v Noosa Shire Council [2008] QPEC 9, considered
Tourism Investments Pty Ltd v Brisbane City Council [1988] QPLR 197, consideredWoolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; [2005] QCA 262, considered
COUNSEL:
J Houston for the appellant
M Hinson SC for the respondent
R Duhig for the co-respondent by election (granted leave to withdraw from the proceedings)SOLICITORS:
Connor O’Meara for the appellant
King & Company for the respondent
Crown Law for the co-respondent by election (granted leave to withdraw from the proceedings)
Background
[1] This is an appeal against the Council’s refusal of a development application seeking a preliminary approval to override the Ipswich Planning Scheme (2006) for a material change of use of land for Local Business and Industry Purposes and also for a development permit (which would permit actual development) for a material change of use for Business and Service/Trade Uses in respect of two of four buildings (each of 450 m2) foreshadowed for the site. It is Lot 2 on RP 135220 located at 217 Pine Mountain Road, Brassall. The site’s designations are Urban Development Area/Urban Residential in the Strategic Plan and part Recreation Zone, part Residential Low Density (RL 02) – Sub Area 2 Zone; the former zoning is attributable to the northern part of the site’s eastern boundary abutting Mihi Creek and accounts for the north-eastern part of the site. Other constraints are a flooding and urban stormwater flow path to the creek bisecting the site west to east and a 50 metre buffer for noise sensitive receptors along the Warrego Highway which forms the site’s northern boundary. The other street frontage is 217 Pine Mountain Road which appears to have been retained as access when subdivision of the northern side of the road occurred. That has produced (inter alia) five residential allotments to the east, all long ago built on and, to the west, three similar ones and a larger site housing a Telstra telephone exchange – all of which sites have Lot 2 as their rear neighbour. The site area is 6.161 hectares. The Department of Main Roads is the neighbour on the west and (south of the creek) on the east, where the larger parcel is one exhibiting similarity with the site in having as its sole access a strip some 20 metres wide fronting Pine Mountain Road. Although enjoying a large frontage to the Warrego Highway, the site does not have lawful access to the highway.
[2] East of the site and north of the Creek are residential subdivisions extending to the highway, a prominent feature of which is lofty acoustic barriers there to reduce impacts of highway noise.
[3] The Warrego Highway, presently four lanes in this locality and said to be likely to expand to six in the next decade, is a dominating feature in the area. Pine Mountain Road is cut by the highway; the old connection may or may not be restored by a bridge in the future. The intersection with Pine Mountain Road lies about 300 metres west of the site. No right turns are available; that is, westbound traffic from the direction of Brisbane may turn left into Pine Mountain Road and traffic may enter from Pine Mountain Road and proceed west along the highway. Both right and left hand turns are available at a relatively new highway interchange at Fernvale Road, to the west. Fernvale Road connects with Pine Mountain Road about a kilometre south of the site. Both roads (with the exception of the Telstra exchange and a disused nursery further west along Pine Mountain Road) pass through exclusively residential development. Both are unsuitable from safety and amenity standpoints to carry the amount of heavy vehicle traffic moving to and from the highway. The court heard that the left only access to and from Pine Mountain Road is being considered for closure (unlikely to occur without public consultation); at some later time, Fernvale Road may be closed off as well. The court was given to understand that long term planning may restrict highway access to upgraded interchanges at the Brisbane Valley Highway and at Kohlo Road. Traffic considerations have played and continue to play a part in the site’s planning history.
[4] In the 1999 Planning Scheme, the Council included the site and the general locality in the Future Urban Zone and a Residential Low Density Precinct. That planning vision was frustrated by special arrangements that accommodated or facilitated use of the site by Telecom, later Telstra. Precisely how the Council lost planning control is irrelevant; it appears to follow from identification of the site in the Queensland Government Gazette of 23 October 1982 as included in the Special Uses Zone “such that use of the site for telecommunications services, defined by the planning scheme as ‘Public Utility’ use would be a use permitted without the consent of Council” (to quote the planning experts’ joint report). Notwithstanding the Special Uses zoning, as noted, the 1999 Ipswich Planning Scheme zoning was Future Urban Zone (and the Park, Sport and Recreation Zone). By that year, Telstra’s use of the site, which may have commenced as early as 1980, had come to an end after being wound down for a number of years. Telstra retained the adjoining telephone exchange lot, which has minimal implications for traffic in the area. That would not have been the case for Lot 2, where numerous buildings were constructed: it was the base for a vehicle fleet including maintenance and emergency response vehicles and heavy equipment used for construction of new Telstra facilities.
[5] After inclusion of the site in the Future Urban Zone in the 1999 Ipswich City Council Planning Scheme, there came into effect the Ipswich Northern and Inner Western Corridors Structure Plan 2001 which showed the site and its surrounds as urban residential, subject to a buffer along the Warrego Highway and abutting the area along and north-east of Mihi Creek, shown as open space in the mapping for Precinct and Sub Area Plan B; those are recognised as Residential Low Density (RL 125) and Environmental Protection (AE) respectively.
The Proposal
[6] The current development application relates to 1.5318 ha in the south-east corner of Lot 2. There is a Precinct Plan in the plan of development proposed which divides the precinct into two zones. The significant one is local business and industry zone which has two sub-areas designated LB17 – low impact and LB18 – low to medium impact and a balance area separating the above from five adjoining residences in Pine Mountain Road and the DMR land at the east. LB17 and LB18 extend the numberings attributed to similarly zoned areas in the planning scheme. LB18 is larger than LB17 and located more remotely from Pine Mountain Road. One of the two buildings presently proposed for construction is in each sub-area, likewise one each of the two further buildings envisaged. The balance of the application area is to be treated as if it were in the local business and industry buffer zone, whose function is indicated by the name.
[7] The Zanows acquired Lot 2 in 1999. They were presented as respected and experienced local developers in an accolade volunteered by Mr Brannock. They saw the acquisition as “unofficial superannuation” and the site as having potential for further light industrial use along the lines of what Telstra had been doing for the past couple of decades or for residential subdivision which doubtless they knew represented the Council’s intent for the site and general area. Historical aerial photography shows steady (but not dramatic) progress of development for detached housing in the area. Darren Zanow, whose evidence I accept, appeared to suggest it might have been a matter of indifference to them what use they made of their acquisition but it was determined, with the Council offering encouragement, to solicit the views of local people, essentially the occupants of the established residences on both sides of Pine Mountain Road and perhaps residential areas further afield. The outcome was popular support for some light industrial use, rather than residential subdivision. Development at that stage appears to have been confined to the western half of the site, to involve the use of two of Telstra’s buildings, one on the northern boundary about the middle, the other on the western boundary (southern part). The Zanows have removed two smaller buildings (interconnected) that Telstra had in the south-eastern corner of the site – which are now intended to be replaced by two slightly larger structures the subject of the development permit currently sought. (The foreshadowed 450 m2 buildings will be located further to the east, right in the south-eastern corner.)
In what order should the components of the application be addressed?
[8] Mr Hinson SC, for the respondent, expressed concern that there not be an outcome of the appeal in which no development was permitted, but the Planning Scheme was overridden. He had understood Mr Houston to be submitting that the first issue for determination was whether there ought to be a preliminary approval varying the effect of the Planning Scheme within s 3.1.6 of the Integrated Planning Act 1997 (IPA), the court then proceeding (in the event of a favourable outcome) to determine the application for a development permit. I understood Mr Hinson to be seeking to ensure that s 3.5.14(2)(b) (to the effect that the decision must not conflict with the Planning Scheme in the absence of sufficient grounds justifying that) would control determination of the appeal. Section 3.5.14A, which prescribes the way in which the part of a development application for preliminary approval mentioned in s 3.1.6 must be assessed, makes no reference to the “conflict” aspect, although sub-s (2)(b) may be seen to reflect what s 3.5.14(2)(a) has to say about a decision which would compromise the achievement of the desired environmental outcomes (DEOs) for the Planning Scheme area. Both s 3.1.6 and s 3.5.14A expressly provide that they apply only to the “part” of a development application seeking variation of the effect of a local planning instrument. Of necessity, there must be more in the development application – in particular the part identifying the development applied for. The upshot of all this is that the court must be aware of the injunction in s 3.5.14A(2)(a) that to the extent the development applied for under other parts of the application is refused, any variation relating to the development must also be refused. It may not matter in which order the court examines issues before it, provided that the result does not offend the injunction just quoted. I am satisfied that the appeal has to be determined in accordance with the principles stated in Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153 at paragraph [38]. That is, “conflict” as explained in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at [23] is to be considered.
The Council’s position
[9] The Council’s Decision Notice (6 May 2009) set out reasons for refusal of the development application which was said to be inconsistent with the provisions of the 2006 Planning Scheme, “sufficient planning grounds to support the application” being lacking. Specific conflicts were asserted in an eight part litany using the formula “The proposal has not demonstrated compliance with …” The first part lists three of the “Desired Environmental Outcomes” set out in Part 3 of the Planning Scheme. These and the related performance indicators are:
“ …
(3) The desired environmental outcomes for the Local Government area are as follows –
…
(f) standards for the built environment are affordable and cost effective and reflect community expectations;
…
(h) the efficient use and extension and safe operation of infrastructure, including the water and sewerage systems and the products of those systems (e.g. appropriately treated effluent and recycled water and sewerage sludges), roads and the Amberley Air Base and the Archerfield Aerodrome are maximised.
…
(j) the health and safety of people, and the amenity they enjoy are maximised, particularly in the urban and township areas where different types of uses are located close together.
3.2Performance indicators
(1)Where development has occurred has it –
…
(f)met established standards for the built environment;
…
(h) avoided adverse effects on the roads …
…
(j) been designed and located to minimise impacts on adjoining residential uses…” (italics added)
Although the statutory language is not taken up, I would take the Decision Notice to be asserting issues within s 3.5.14(2)(a) and s 3.5.14A(2)(a). I am of the view that respectable arguments are available that the proposal compromises achievement of relevant standards for the built environment that reflect community expectations, the efficient use and safe operation of roads and maximisation of the safety of people and the amenity they enjoy. Notwithstanding the importance placed by the IPA on desired environmental outcomes in the sections mentioned above and more generally, there is a striking paucity of determinations against development proposals based upon compromise of achievement of DEOs. The pattern tends to be to assess proposals from the bottom up (rather than from the top down), starting with reference to planning scheme provisions that are most site and use-specific. The thought appears to be that DEOs apply to planning scheme areas as a whole, that matters are required to be looked at broadly, that failure to provide DEOs in respect of particular development proposals in their own local area is not of such concern that the proposal ought to be refused. One wonders whether there is some tipping point or “final straw” such that, after enough problematic development proposals have been approved, there is a realisation that there should be no further instances if the desired outcome is to be achieved for the planning area. Here, 3.2(1) is curiously worded; it appears to contemplate that the development is allowed to happen and once it is there, the extent to which relevant DEOs are achieved or compromised is determined. At that point, presumably, little can be done other than seeking to avoid repetition of what come to be identified as past mistakes. Consistently with cases such as Koerner v Maroochy Shire Council [2004] QPELR 211, at [22], Mr Hinson disavowed presenting any case based on compromise of DEOs, founding the Council’s case on conflict with the Planning Scheme as dealt with in s 3.5.14. Of course, the DEOs come into the picture by way of explaining and supporting following Planning Scheme provisions and are recognised as part of the Scheme.
Components 2 and 3 in the decision notice litany are:-
“The proposal has not demonstrated compliance with the Overall Outcomes for the Urban Areas as a Whole – Part 3 in particular:
oPart 4.3.2(a) – regarding the overall vision for urban areas
oPart 4.3.2(2)(h) and (i) – regarding the amenity of urban areas
oPart 4.3.2(j) – regarding environmental management and greenspace and the minimisation of risks and nuisance to people and property
oPart 4.3.2(o)-(q) – regarding transport and access
oThe proposal has not demonstrated compliance with the Specific Outcomes for the Urban Areas as a Whole – Part 3, in particular:
o Part 4.3.3(2)(c)(e)(i)-(iii), (F)(i)-(iv) – regarding transport and access
o Part 4.3.3(c) - regarding environmental management.”
Mr Hinson’s argument, reflecting practice in appeals like the present, focussed on Planning Scheme provisions for the Residential Low Density Zone:
“4.5.2 Overall Outcomes for Residential Low Density Zone
(1) The overall outcomes are the purpose of the Residential Low Density Zone.[1]
[1]The hierarchy of outcomes sought is a conventional one set out in s 1.19 “The planning scheme seeks to achieve outcomes that are identified according to the following levels – (a) desired environmental outcomes; (b) overall outcomes for zones and overlays, or for the purpose of a code; (c) specific outcomes for zones, overlays and codes; (d) probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.”
NOTE 4.5.2A
Sub-section (1) provides the link between the overall outcomes sought for the zone and the area codes and the IPA code assessment rules which refer to the purpose of the code [see IPA s.3.5.13(2).]
(2) The overall outcomes sought for the Residential Low Density Zone are the following -
(a) The Residential Low Density Zone caters primarily for low density, sewered, urban residential development and associated uses, to the general exclusion of most other uses including unsewered, acreage housing.
…
…
(c) Uses within the Residential Low Density Zone provide a mix of low to medium density housing types and allotment sizes in response to community housing needs.
4.5.3 Effects of Development - General
The specific outcomes which are sought to apply generally throughout the Residential Low Density Zone are set out below.
…
Non Residential Uses
(3) Specific Outcomes
Each non-residential use
(a) fulfils a local community need; and
(b) is accessible to the population it serves; and
(c) where possible co-locates with other non residential uses but does not contribute to undesirable commercial ribbon development; and
(d) does not have a significant detrimental impact on the amenity of nearby residents, including through the generation of –
(i) odours;
(ii) noise;
(iii) waste products
(iv) dust;
(v) traffic;
(vi) electrical interference; or
(e) maintains a scale and appearance in keeping with the residential amenity and character of the locality with adequate buffering or screening to nearby residential uses (both existing and proposed).
4.5.4 Effects of Development within Sub Areas
…
Sub Area RL2
(a)Specific Outcomes
(i) The established traditional inner suburban residential character is maintained.
…(iii) A mix of housing types and lot sizes are provided in greenfield and outer infill areas.
(iv) The creation of additional large lots and the placement of buildings and infrastructure does not prejudice the future rational and orderly conversion of lands for urban residential purposes.
(b)Probable Solution – for sub-section (2)(a)
The overall dwelling density is 10 to 15 dwellings per hectare.
…
4.5.5 Consistent and inconsistent Uses, Use Classes and Other Development
Specific Outcomes
(1)The following are consistent uses, use classes and other development categories in the Residential Low Density Zone –
…
(j) Single residential, if the lot is 450m2 or more in area
(2)The following uses, use classes and other development categories are consistent with the outcomes sought for the Residential Low Density Zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds –
…
(h) general store, if operating between the hours of 6.00 a.m. to 9.00 p.m.;
…
(3)The following defined uses, use classes and other development categories are inconsistent with the outcomes sought and are not located within the Residential Low Density Zone, and constitute undesirable development which is unlikely to be approved –
…
(d) business use, unless a medical centre;
…(k)general industry;
…
(k)service trades use;
…
(t)special industry;
“Table 4.5.1: Assessment Categories and Relevant Assessment Criteria for Residential Low Density Zone – Making a Material Change of Use
| Column 1 Defined use or use class | Column 2 Assessment category | Column 3 Relevant assessment criteria – applicable code if development is self-assessable or requires code assessment |
| RESIDENTIAL | ||
| Caretaker Residential | Code Assessable | |
| Display Housing | Code Assessable if involving only one dwelling Impact Assessable otherwise | |
| Dual Occupancy | Code Assessable where the lot is 800 m2 | |
| Home Based Activity | Impact Assessable if Home industry. Self-Assessable, unless Home industry, if the applicable code for Self Assessable development is complied with. Code Assessable otherwise | |
| Institutional Residential – Inconsistent use class [refer s 4.5.5(3)] | Impact Assessable | |
| Multiple Residential – (a) a caravan park; or (b) involving buildings more than 2 storeys in height; or (c) involving a dwelling density which exceeds the density range for the relevant Sub Area (d) [refer s 4.5.5(3)] | Impact Assessable | |
| Single Residential | Self Assessable if the lot is 450m2 or more in area. Code Assessable if – (a) The lot is less than 450m2 in area; or (b) The applicable code for Self Assessable development is not complied with. | |
| Temporary Accommodation | Impact Assessable |
”
Conflict
Although Mr Houston may have been reluctant to concede it, conflict with the Planning Scheme is clear in this case. The arguments both ways are set out below. The land is zoned Residential Low Density, for which the overall outcome envisaged is that it cater “primarily” for low density residential development and associated uses, others being generally excluded. In the relevant sub area RL 2 of the zone, the specific outcome sought is maintenance of established traditional inner suburban character and a mix of housing types and lot sizes in “greenfield and outer infill areas”. Uses of the general kind envisaged in the Plan of Development for the preliminary approval (likewise in the range of uses for purposes of the development permit identified in the appellants’ Planning Report) are fairly described as business, industrial and service/trade uses. As such they are inconsistent with outcomes sought for the Residential Low Density Zone. Indeed, they are singled out as “undesirable development” in 4.5.5(3) of the Planning Scheme. The non-residential uses contemplated (see paragraph (2)) include nothing accepting of anything the proposal might bring to the site. That the potential uses comprehended in the proposal are inconsistent with those intended for the site and its zone by the Planning Scheme (effectively, since 1999) is underlined by Planning Scheme provisions for the Local Business and Industry Zone, in which a proposal like the appellants’ would be welcomed. In 4.11.5 uses inconsistent with the outcomes sought for that zone, described as “undesirable development”, include display housing, dual occupancy, multiple residential, single residential and temporary accommodation. The view of the Planning Scheme’s drafters is that the two categories of uses do not mix.
Every case depends on its own facts and there are circumstances here that make the conflict less troublesome than might otherwise be the case. The site is suitable for the uses proposed; equivalent ones may have been pursued there since as early as 1980; the site’s proximity to the Warrego Highway (which may be seen as an adverse factor as regards residential use) and its being at the outer edge of its present zone are all relevant factors. Nevertheless, the existence of conflict must be accepted.
Mr Houston has listed the grounds which the appellants contend justify approval despite conflict with the Planning Scheme as follows:
“ …
(a) there was extensive community consultation prior to the application which resulted in the 2003 Approval;
(b) the 2003 Approval recognised the suitability of Lot 2 for
service industry of the kind which are now proposed;
(c)
the 2003 Approval has been acted upon, and the Appellants are
continuing to actively seek tenants for Building 2, which is already half occupied;
(d) while the 2003 Approval remains in force, the balance area of Lot 2 is unlikely to be developed for residential purposes;
(e) The evidence of the need expert in respect of supply of residential land, including land more attractive than Lot 2, does not suggest that there is any demand to support redevelopment of Lot 2 for residential purposes;
(f) The nature of the proposed uses (and buildings to accommodate them) is such that the proposed development would not prevent Lot 2 being redeveloped in the future for residential purposes, should demand justify such redevelopment.
73.In addition, potential impacts of the proposed development have been controlled, including to the extent that future residential development on adjoining lots to the east and west is not constrained.”
The 2003 approval
On 18 June 2003 upon an application of the appellants similar to the one of present concern received on 11 September 2003, the Council approved a development permit for making a material change of use of Lot 2 for “Undefined Use – Service Industry (Assembly, Storage, Workshop and Administrative Activities)” and gave preliminary approvals for the carrying out of building work and the carrying out of operational work in connection therewith. There was also a preliminary approval in respect of a proposal for “Light/Service Industry generally in accordance with the Minimum Low Impact Precinct Intent under the Northern and Inner Western Suburbs Structure Plan” for “Making a material change of use of premises (preliminary approval to override the Planning Scheme Section 3.1.6 of the Integrated Planning Act1997.)” The approval contained the following:
“Table of Development for Lot 2 RP135220
| Column 1 | Column 2 | Column 3 |
| Land Use (as defined in the Planning Scheme or clarified thereunder) | Assessment category | Relevant assessment criteria – applicable codes if development is self assessable or requires code assessment |
| Assembling Production; Assembling from components manufactured elsewhere, any of the following products or similar: · Computers · Electronics | Self Assessable 1, 4 | · Commercial and Industrial Code · Landscaping and Fencing Code · Parking Code |
| Assembling Production: Assembling from components manufactured elsewhere, any of the following products or similar: · Small scale equipment · Larger scale equipment (eg vehicles, machinery) | Self Assessable 1, 2 | |
| Bulk Store Warehouse | Self Assessable 1, 3 | |
| Commercial Premises | Code Assessable 4 | |
| Light Industry: As defined by the Planning Scheme and including the following uses: · Cabinet making or shop fitting; · Contractor’s Yard; · Engineering Workshop (light); and · Upholstering vehicles or furniture. | Self Assessable 1, 2 | |
| Light Industry: As defined by the Planning Scheme and including the following uses: · Signwriting; · Wholesale picture framing; and · Wholesale screen printing | Self Assessable 1,3 | |
| Manufacturing any of the following products or similar for wholesale only: · Arts and crafts, excluding heavy metal work; · Dental goods; · Footwear; · Jewellery; · Leather goods (use of processed leather only) and · Optical goods; | Self Assessable 1, 5 | |
| Manufacturing any of the following products or similar for wholesale only: · Keys · Toys; and · Canvas goods, tents, camping soft goods. | Self Assessable 1, 5 | |
| Manufacturing any of the following products or similar for wholesale only: · Keys · Toys; and · Canvas good, tents, camping soft goods. | Self Assessable 1, 5 | |
| Mini Storage Complex | Code Assessable 5 | |
| Research and Associated Technology Activities | Self Assessable 1, 5 | |
| Storage Yards, where limited to approved buildings and storage areas only | Code Assessable 1, 5 | |
| Training Facility (eg educational lectures, presentations and the like) where limited to internal building use only | Code Assessable 1, 5 | |
| All other uses defined in Part 2 – Definitions of the relevant Ipswich Planning Scheme | Assessment Category to be determined in accordance with Table 3.4 – residential Precincts Table of Development under the Northern and Inner Western Corridors Structure Plan or in accordance with the relevant Planning Scheme applicable at the time of submission of a development application. |
1. Any Self Assessable Use that requires approval for an Environmental Relevant Activity shall be subject to Code Assessment for the ERA by the Responsible Authority.
2. Where the use is conducted within Building No. 3 indicated on Approved 01424.SK.04 Issue A dated 25.01.2003 otherwise Impact Assessment is required.
3. Where the development involves only the change of use of an existing or approved building in accordance with Approved Plan 01424.SK.04 Issue A dated 25.01.2003, otherwise Code Assessment is required.
4. Where the development involves only the change of use of an existing or approved building in accordance with Approved Plan 01424.SK.04 Issue A dated 25.01.2003, otherwise Impact Assessment is required.
5. Where the development involves only the change of use of existing or approved buildings 2 and 3 on Approved Plan 01424.SK.04 Issue A dated 25.01.2003 otherwise Impact Assessment is required.”
Building 2 is a new structure developed by the appellants recently. Apparently considerations to do with overland flow of stormwater led to a reduction from the approved GFA of 2,450 m2 to a building with 1,870 m2, divided into six units of equal size, three of which have been taken by a single tenant who commenced operations in February 2010. The other three units remain unoccupied, but one is likely to see a new tenant operating from July 2010. Reference to the footnotes in the table was important for the Council, to demonstrate that impact assessment was required of any proposal for industrial type uses on the balance of Lot 2 outside the existing buildings 1 and 3 and the proposed building 2 - that is, for uses of an industrial or business kind on the eastern part of Lot 2. This is important given that the 2003 approval looms so large in the appellants’ catalogue of grounds that justify overriding conflict with the 2006 Planning Scheme which has come into effect in the meantime. The current application is to be assessed against that Planning Scheme so that the 2003 approval on its own is insufficient to support the present proposal which indeed, in the 2003 approval, was identified as one requiring impact assessment. The public notification exercise has revealed clear division among local residents, some of whom, in the light of experience of what has happened pursuant to the actual development, appear to regret the support they gave to what was proposed in 2002-2003; others have not been disappointed and support the intensification or extension now proposed as preferable to the residential development which the Planning Scheme supports.
Does the proposal compromise future residential use of the site?
There might be noted here a peculiarity of the Amended Plan of Development proposed to form part of the preliminary approval pursuant to s 3.1.6 of the IPA which is dated October 2008. As s 3.1.6 of the IPA contemplates, the Planning Scheme will cease to be controlling:
“This Plan of Development will serve to control future development over the part of the site identified as the Pine Mountain Road Development Precinct (PMRDP). It will ensure that development is consistent with the development principles, the Sub-Precinct intents and the levels of assessment in this Plan of Development.
The Plan of Development provides a framework for the integrated development of the PMRDP with the existing land uses on the subject site and the surrounding land uses.
2.00 OVERALL OUTCOMES FOR THE PRECINCT AND SUB-AREAS
_______________________________________________________2.1 Pine Mountain Road Development Precinct (PMRDP)
…
The intent of this Plan of Development is to:
(a) Ensure consistency with the land uses permitted under the preliminary approval granted in June 2003 over the balance area of the subject site;
(b) Establish land use rights that are consistent with the current planning scheme’s Local Business and Industry zone and Local Business and Industry Buffer zone;
(c) Provide a level of flexibility in the type of business and service/trade purposes that can be conducted in the approved buildings (i.e. enable tenancy changes);
(d) Clearly define the extent of the development parameters; and
(e) Protect adjoining residential uses from adverse amenity impacts.
In order to achieve this, the PMRDP has been divided into Zones and Sub-Areas:
· Local Business and Industry Zone (Sub Area LB17 – Pine Mountain Road, Brassall: Low Impact)
· Local Business and Industry Zone (sub Area LB28 – Pine Mountain Road, Brassall: Low to Medium Impact)
· Local Business and Industry Buffer Zone.
…
Development within the PMRDP is limited to the following parameters.
(a) Maximum gross floor area of 1,800 m2;
(b) Minimum setback distances of 10m from any adjoining property boundary;
(c) Maximum building height of 2 storeys and/or 8.5m above natural ground level;
(d) No buildings or outdoor activities are to be established or conducted within the Local Business and Industry Buffer Zone;
(e) Land Uses to be consistent with the Level of Assessment table in this Plan of Development.
…
Level of Assessment Tables 3.2
The Level of Assessment Table that form part of this Plan of Development specifies the level of assessment applicable to the proposed development and the relevant codes against which the development must be assessed.
All references to relevant assessment criteria refer to the provisions within the Ipswich Planning Scheme. For development affected by an overlay the relevant assessment criteria will be the applicable overlay code or codes under the Ipswich Planning Scheme.
3.2.1 Local Business and Industry Zone (Low Impact)
Table 1
| Column 1 Land Use (as defined in the planning scheme or clarified hereunder) | Column 2 Assessment Category | Column 3 Relevant assessment criteria – applicable codes if development is self assessable or requires code assessment |
| Local Business and Industry | Zone Sub Area LB 17 – | Low Impact |
| “Business Use” for the following or similar type of low impact business purposes: · Broadcasting station · Laundromat · Professional office · Veterinary clinic · Undefined use – Film production studio | 1. Exempt if (a) Within an existing building approved for, or lawfully used for, a business or industry use, and (b) Operating between the hours of 6.30am and 6.30pm; and (c) The requisite number of parking spaces are provided for the use in accordance with Table 12.9.1 of the Parking Code (Part 12, division 9); and (d) Infrastructure contributions have been paid or unused infrastructure credits (including deemed credits) apply at an equivalent rate for the proposed use in accordance with the provisions of Planning Scheme Policy 5 – infrastructure. 2. Code assessable otherwise | · Urban Area Code (Part 4) – particularly the specific outcomes in section 4.3.3 and the Local Business and Industry Zone (division 11) · Commercial and industrial Code (Part 12, division 7) · Parking Code (Part 12, division 9) |
| “Service / Trade Use” for the following or similar type of low impact service / trade purposes: · Warehouse or storage | 1. Exempt if (a) Within an existing building approved for, or lawfully used for, a business or industry use, and (b)Operating between the hours of 6.30am and 6.30pm; and (c) The requisite number of parking spaces are provided for the use in accordance with Table 12.9.1 of the Parking Code (Part 12, division 9); and (d)Infrastructure contributions have been paid or unused infrastructure credits (including deemed credits) apply at an equivalent rate for the proposed use in accordance with the provisions of Planning Scheme Policy 5 – Infrastructure. 2. Code assessable otherwise | |
| Other Material Change of Use (not defined above) | Impact Assessable | · Urban Area Code (Part 4) – particularly the specific outcomes in section 4.3.3 and the Local Business and Industry Zone (division 11) · Parking Code (Part 12, division 9) |
| Other Type of Development as per Column 1, Table 4.11.2 of Planning Scheme | Level of Assessment consistent with Table 4.11.2 (Part 4, division 11) | Relevant assessment criteria consistent with Table 4.11.2 (Part 4, division 11). |
”
The arrangements for Sub Area B 18 are similar. Inconsistently with “Ground (f)” residential development as a Material Change of Use is made impact assessable. In practical terms that represents an impediment to residential development which, otherwise, has for long been seen as a use for the site and its surrounds which could potentially be implemented. The court ought not act to sterilise residential potential in this way. Mr Hinson did not submit that this feature of the appellants’ proposal would defeat it. It is a feature that ought to be removed, in the event that the appeal should succeed, by formulation of appropriate conditions.
When industrial type uses were originally proposed, much was said to indicate that such uses might be temporary; the site’s long term future as residential being acknowledged. The planning report forming part of the 2002 development application stated as follows:
“…
This Development Application is being submitted for the reuse of the site for Service industry type purposes as an medium term use until such time as there is a demand to redevelop this site for residential purposes or as an alternative to provide a Minimal-Low Impact Precinct (ILI). It is proposed to use the site for activities that involve assembling, storage, limited workshop activities (northern building only) and associated administrative activities.
In support of the application are the following key issues for consideration :…
4. The proposed use will not limit the redevelopment potential of the land to fulfil the intent of the Structure Plan to provide a stock of land for future residential development.
…
6.There needs to be recognition that the market demand for residential lots in the Brassall area, and surrounds, is minimal at present. It is not anticipated that there will be a demand to redevelop this parcel of land for residential purposes within the medium to long term, if it is at all suitable for residential purposes. This is particularly applicable, as there is still a substantial stock of nominated urban development land available to meet the population growth pressures. Much of this land is located in the Tables of Development for the Residential Low Density and Environmental Protection Precincts, an Undefined Use (including General Industry as an example) is subject to Impact Assessment, type B. Type B comprises development which is undesirable and inconsistent with the intent of the precinct. Exceptional circumstances need to be demonstrated before a Type B development may be approved. [Pages 1-2]
…
The key aspect of this proposal is for:-
(a) the medium term use of the land for a non-residential use, with less adverse effects than those associated with the former Telstra Depot, which operated over the past twenty years. Based on the nature of the use, and in particular, the reuse of the existing on-site infrastructure, the proposal will not limit the opportunity to redevelop the land for residential purposes, consistent with the Structure Plan intent, at the time where there is a genuine demand for such land. The Strategic Plan recognises that the land earmarked for future residential development may not be needed within the nominated timeframe.
This proposal will prevent a valuable economic resources from lying dormant in the interim years. Apart from the submission that the site is not ideally suited to residential development, it is unlikely that there will be a shortage of more suitable residential land in the Ipswich area over the next 25 to 30 years that will see development pressures placed on the subject site; [pages 10-11]
…
6. There needs to be recognition that the market demand for residential lots in the Brassall area, and surrounds, is minimal at present and, it is not anticipated that there will be a demand to redevelop this parcel of land for residential purposes within the medium to long term, if it is at all suitable for residential purposes. This is particularly applicable, as there is still a substantial stock of nominated urban development land available to meet the population growth pressures. Much of this land is located in areas with greater amenity than the land along the Warrego Highway, being one of Queensland’s busiest highways, particularly for trucks.
The question is raised as to whether the best use of the site is for residential development. An alternative option would be for the establishment of a Minimal-Low impact Precinct, given the characteristics of the site and the desires of the local community.” (page 21)
A certain amount of repetition will be noted.
It is true that the first extract indicates that the proposed use is not presented as a long term one. The others couple indications that the proposed use will have a limited life with an invitation to the Council to review the Planning Scheme designation. The appellants’ vision for their site was indicated in the background/site history section of the report at page 4:
“… Prior to the introduction of this Structure Plan, the site was zoned Future Urban. The current owners of the site submitted a letter of objection to the Council at the time that the Draft Structure Plan was placed on public display for comments. This submission opposed the rezoning of the site. Council rejected the submissions.
Under the repealed Local Government (Planningand Environment) Act 1990, government authorities were permitted to establish land use without undergoing the necessary planning processes applicable to private developers. Council’s reasons for rejecting the submission were based on the argument that Telstra set up its operations in contravention of the Council’s planning scheme and that the establishment of this non-residential use would have constituted a ‘spot rezoning’. Recognising the Telstra industry operations in the proposed Northern and Inner Western Structure Plan would set a precedent for future non-residential development in an area that Council sees as a developing residential area.
…
Given the following issues for consideration, there may not be the apparent certainty that non-residential development would not have been approved had an application been submitted:
·the site has been used for non-residential purposes since the first building was established on the site in approximately 1980;
·at the time, Council’s planning scheme was not so definite on the future use of the site for residential purposes (as per the current Benchmark Development Sequencing Strategy);
·the site has reduced residential amenity due to its location adjacent to the Warrego Highway;
·there is significant other locally available land with greater amenity values;
·the amenity of land along this highway will continue to decrease based on future highway usage. It is estimated that the traffic will increase at a rate of 4% per annum (reference: Viney Traffic Engineering). By the year 2011 this will represent a 48% increase on current traffic volumes;
·there are three (3) large parcels of land that have the potential to provide a suitable buffer between the Warrego Highway and the existing residence;
·the site offers excellent accessibility to the highway;
·the best use of this land should be for a use that recognises the adverse effects of the highway (in terms of its impact on amenity); the opportunities of the highway for access; and the protection of the amenity of the existing residents.
Based on the above, it is submitted that the best use of this land is not for residential purposes. Furthermore, the local residents have made it clear that they do not want to see the site developed for residential purposes.”
Mr Houston objected to the court’s using this report for purposes of construing the 2003 approval. That objection was well founded. Once a development approval is forthcoming, it runs with the land as part of the law applicable in the local area. It must be construed standing alone without reference to extraneous material unless such extraneous material is somehow incorporated in the approval. See Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318. Future owners of the site and others interested in development there are not ordinarily going to have access to material such as the report; development rights should not be construed by reference to it. Mr Houston amplified his objection by submitting that the report may tell only part of the story, so that it should not be taken as an indication that the Council, in issuing its 2003 approval, placed reliance on assertions in the report; it was said there may be other, more relevant documents. While there may be something in such a submission had the appellants been strangers to events in 2002 and 2003, that is not the case, and it seems reasonable to assume that the appellants could have obtained and placed before the court any documents they had tending to undercut the effect of the Amended Planning Report of October 2008. That aspect of Mr Houston’s submission I found unpersuasive.
It may well have been open to the Council to impose a time limitation on the duration of industrial/service/business uses, but they did not do so. See s 3.5.31(1)(a) and cases such as Fraser v Beaudesert Shire Council [2008] QPEC 21; Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191; [2000] QPEC 95.
Coupling of the current development application with the 2002 one and what was said of it in the accompanying Planning Report tends, in my view, to cast doubt on assertions that approval will not prevent the development of Lot 2 for residential purposes, should demand justify such redevelopment. What happens in the future would depend entirely on the attitude taken by the appellants or their successors, which would not necessarily be to accommodate even the most pressing demand that the site be turned over to residential uses. No suggestion is made that the 2002 application was presented otherwise than in good faith. Even if it had been devised as a way of the appellants getting a foot in the door, so to speak, for long term industrial use of Lot 2, that would have no consequences for the fate of the later application and this appeal.
Non-fulfilment of part expectations regarding traffic impacts from site
While unwilling to place weight on protestations the appellants may have made at any time suggesting preparedness to entertain residential uses for Lot 2, I think there is relevance in the other respect in which events may have belied the 2002 Planning Report. That is in relation to traffic, of which it was said:-
“ …
v Staff Vehicles: Sedan or utilities will access the site during operational hours.
v Delivery Vehicles: The delivery of containers with tractor parts (approximately 3 tractors per container) and the dispatch of tractors will generally result in one articulated vehicle or body truck accessing the site per day. In peak periods a maximum of two trucks would access the site.
v Access Routes: It is proposed to limit delivery truck access to the site from the Warrego Highway end of Pine Mountain Road. There are highway Interchanges to the west and east servicing directional needs. This will prevent truck movements heading sough east along Pine Mountain Road, into more densely settled residential areas.”
The report gave that example of the way in which what seemed the most likely use at the time (tractor assembly) would “minimise adverse impacts on the residential surrounds” under the heading “Vehicle Numbers and Access Routes”.
Later on, the relevant “potential impacts” were analysed as follows:
“
vThe Warrego Highway and associated traffic is visible from the rear of the residential properties fronting the eastern side of Pine Mountain Road.
vThe highway has significantly high truck usage, particularly at night time. Noise from the highway is audible at the subject site and nearby residences.
vDue to the accessible entry and exit to the Highway, trucks currently use this section of Pine Mountain Road. It is assumed that trucks would only use this access route if it provides a short cut or is the shortest route to their designation.
vThere are approximately fourteen (14) residences between the access point to the subject site and the Warrego Highway.
10.1.2Community Concerns
During the additional community consultation carried out by the Applicants prior to the lodgment of this application, the surrounding residents have identified that they would like the following issues addressed or conditioned as part of an approval. The residents have made it clear that they would prefer to see the proposed development instead of residential subdivision;
vTruck movements to and from the site are to be limited to access from the Warrego Highway (ie left in and right out access only). This will prevent trucks travelling south past the majority of residential properties fronting Pine Mountain Road.
…
The residents were very clear in their view that they did not want to see a residential estate established on this site as the traffic impacts would be significantly worse than the proposed development. This can be illustrated using a subdivision proposal of 60 lots as a conservative example (a lesser yield than illustrated in Appendix D). Based on the general guide that each dwelling will generate 10 vehicle trips per day, the proposed estate would generate 600 vehicle trips per day. All trips would have to enter and exit at the Pine Mountain Road frontage.
In comparison, the proposed development will generate (as a worse case scenario) a significantly less daily rate. Using the maximum of 20 staff members, the likely number of trips will be 40 (arriving and departing work). However, a figure of 80 will be used to cover possible lunchtime trips. Heavy vehicles and delivery trucks will be limited to five (5) vehicles per day. This would represent ten (10) truck vehicle movements per day. The maximum number of trips generated to and from the site on a daily basis would therefore be 90 (including 10 truck movements). This is approximately one sixth (1/6th) of the rate for the proposed residential estate and represents a worst case scenario.” (pages 16-17)
The subsequent Council approval, which had not taken up the opportunity of limiting duration, did pick up the report’s suggestions – Condition 28 requiring, among other things, that:
“…
(e) The existing access driveway from Pine Mountain Road to the site shall be upgraded generally in accordance with Council’s Standard Drawings SR.14. A raised directional island or equivalent shall be constructed within the driveway to provide left in/right out movements only to Pine Mountain Road for commercial vehicles. The width of the driveway shall be in accordance with AS2890.2 2002 and shall be sufficient to accommodate the manoeuvres of the largest anticipated vehicle to access the site.
(f) All heavy vehicle traffic generated by the development shall be directed towards the Warrego Highway.
(g) No vehicle access is to be taken directly to the Warrego Highway in relation to the approved use.”
In due course, the permitted new use(s) commenced. A development permit was subsequently applied for and obtained to allow construction of Building 2. Such construction is now complete and tenants have begun to establish there. The Council’s Decision Notice is dated 23 December 2008 (decision date 20 December 2008). See exhibit 30. It was accepted that one of the requirements was a sign at the mouth of the access road in Pine Mountain Road instructing vehicles leaving the site to turn right (that is, towards Pine Mountain Road), to be qualified by further signage indicating “Heavy Vehicles Only”. The evidence was that “heavy vehicle” is to be understood as including anything that has at least one axle with four wheels.
The sign is not there. Mr Zanow said this was through an oversight, also that consideration was being given to an application to the Council to remove the relevant condition or requirement. Indeed, there may well be a similar application in respect of Condition 28(f) from 2003. There is expert support for removing the 28(e) requirement of a raised directional island. As constructed, the driveway does not conveniently accommodate the manoeuvres of the semi-trailers which, in small numbers, access the site. The driveway cannot accommodate a semi-trailer and an opposing vehicle. The evidence shows that manoeuvring of semi-trailers occurs in Pine Mountain Road, indeed also in the form of reverse manoeuvres along Rarma Street (across Pine Mountain Road from the site access) to facilitate entry to the site via the access. There is a potential for delay, confusion and even accidents to occur from time to time.
While the appellants may be without the authority or ability to achieve the result intended by Condition 28(f) and its more specific December 2008 supplementation, on the evidence they have done nothing about this.
Traffic
The traffic engineers engaged by the parties have been helpful to the court in their joint and individual reports. They say classification of Pine Mountain Road is a difficult exercise given modern notions of road or street hierarchies, that it is probably best classified as a residential collector street with its role amplified by the connections to the Warrego Highway which attract a good deal of traffic associated with the highway. Traffic may increase if the broken connection to Pine Mountain Road north of the highway is re-established by a bridge. It was common ground that current access arrangements at the site do not accommodate “the largest anticipated vehicle to use the site, a 12.5 metre heavy rigid vehicle [which] would not be able to negotiate entry/exit to/from the site without having to cross on to the wrong side of the road which is an unacceptable outcome.” The traffic experts disagreed on the following:-
“1. Suitability of the site
Mr Viney notes that the site was previously used as a Telstra depot which would have generated heavy vehicle movements and that the existing approved uses also generate heavy vehicle movements. The anticipated increase in traffic flow due to the proposed use (ie the preliminary approval floor area of 1,800 square metres) will be approximately 162 vehicle movements per day (ie 81 vehicles in and 81 vehicles out) which he considers to be an acceptable level of increase. This compares to an estimated generation rate of approximately 250 vehicles per day for the existing buildings when they are all fully tenanted. He also notes that building 2 has been constructed with a GFA approximately 575 square metres less than was shown on the approved plan. Consequently, the vehicle generation level approved to date by Council is approximately 302 trips/day compared to the total generation level now proposed of 412 trips/day. He expects, based on the survey data, that approximately 18 percent of the additional vehicle movements would be large commercial vehicles. Taking account of the past and existing uses on the site, the absence of any alternative access to the site and the significant existing under-utilisation of the site area, Mr Viney considers that, subject to the advice of the experts in relation to noise mitigation, this is an appropriate use of the site.
Mr Beard considers that the 2003 approval was unfortunate in that it has re-established an industrial use of a site totally reliant on access via what should function in the longer term as a residential collector street, with a driveway neither well designed nor located relative to other features. In his opinion, the traffic generated by the existing development on the site already has a significant adverse impact on the amenity of properties adjacent to and opposite the site access driveway, and it would be unacceptable to approve further development which would significantly worsen those adverse impacts. He does not consider that any appropriate, enforceable conditions could satisfactorily mitigate these impacts. Further, if the floor area of industrial premises on the site increases, it is inevitable that more large trucks, including semi-trailers, will visit the site. He also notes that Mr Viney’s survey has demonstrated that 66 percent of site generated traffic movements are to and from the south, despite the condition of the current approval requiring all truck traffic to be directed to and from the Warrego Highway.
Further, he considers that the adverse impacts of the existing and proposed development on the site will be relatively more pronounced if the highway access is closed as expected, because background traffic volumes in Pine Mountain Road will reduce.
2.Design issues
It was agreed that design issues in relation to the site access driveway remain to be resolved, but that these issues appear capable of resolution provided the threshold issue in respect of issue (1) is overcome.”
As it happened, Mr Viney’s survey was conducted on a day when no semi-trailer visited the site in either the morning peak (ending 8.45 am) or the afternoon peak (ending 5.30 pm).
Having regard to the importance which has (in my view properly) been attributed to restricting use of Pine Mountain Road south and east of the site by heavy vehicles associated with it, I consider it undesirable to add to the extent of heavy traffic. (It might be noted that the traffic generated from Buildings 1, 2 and 3 has proved to be considerably in excess of what the 2002 Planning Report informed the Council represented the worst case scenario.) The traffic engineers’ figures for anticipated traffic volumes are “rule of thumb” numbers which experience has shown to be associated with the general use classes; actual volumes will depend on the uses which establish and the way in which they are conducted. Mr Viney’s survey results were broadly consistent with numbers predicted on the basis of GFA. The conclusion that Mr Beard is to be preferred disregards the possible closure of highway access, which is both too uncertain and too far in the future (should it eventuate) to justify its being taken into account. If the closure happens, it would exacerbate site-related impacts of heavy traffic, in that all of it would use the presently embargoed part of Pine Mountain Road. Mr Viney is correct that, considered against the total traffic movements along Pine Mountain Road, the increase likely to result from implementation of the appellants’ current proposal would be sufficiently modest as to be unnoticed; he says trivial. The appellants’ difficulty is that they come on top of what is said to be “currently approved” (but vastly exceeds predictions that appear to have been the basis of approval). They are not contemplated, even it would seem, when the approval of 2003 was issued. The suitability of the site for the uses currently proposed and for those approved in 2003 may be accepted, if access considerations are ignored. In 2003 those considerations may well have been addressed on a false or misleading basis. Events have shown that conditions set in 2003 to control traffic movements have proved largely ineffectual. With the benefit of hindsight, it is hard to disagree with Mr Beard’s description of the 2003 approval as unfortunate and his assessment of the site, from a traffic standpoint, as unsuitable.
One proposition that commanded the assent of all the relevant expert witnesses (planning and traffic) was the unsuitability of the access to cater for a mix of service/industrial and residential traffic. I confess to some mystification why this should be so, apart from issues of congestion when large trucks are negotiating the access. There will be the same mix of traffic in Pine Mountain Road, exacerbated by the greater volumes of traffic unconnected with Lot 2. Accepting the experts’ approach, what may be taken from it is that (perhaps unless 215 Pine Mountain Road is made available by the appellants to enhance access) 1.5 ha of Lot 2 will not be used for anything if it cannot be used for light industry. This is the same “sterilisation” argument which says that existing industrial activities on the western half of Lot 2 which the appellants want to conduct there preclude their carrying on any other kinds of uses elsewhere on Lot 2. The remedy is in their own hands, in the sense that, at some convenient time, the present light industrial uses can be ceased and the whole of Lot 2 used for residential development. The only constraint in that regard would be the highway. Experience with other residential developments abutting busy highways (including next door to Lot 2) shows that impacts from the highway can be managed satisfactorily.
Effect of 2003 approval on “conflict”
Ill-advised or not, the 2003 approval establishes a planning regime for Lot 2 for the benefit of anyone with the standing and inclination to take maximum benefit from it. It is a development approval for Lot 2 to which regard must be had in carrying out an impact assessment under s 3.5.5(2)(d) of IPA. Standing alone, it is unlikely to have determinative effect in the impact assessment which will be conducted in the ordinary way, referring to the broad impacts of the further proposal. Whether the 2003 approval overrides the 2006 Planning Scheme with the consequence that there is no conflict with the current proposal is an interesting question. Mr Perkins’ assertion of conflict was supported by the following points in the joint experts’ report:-
“Conflict with the strategic and zoning intent for residential development on the site:-
·Over at least the past 10 years, the site has been strategically identified (in Strategic Plans and Structure Plans and Studies) as being intended for residential and recreational purposes;
·The 1999 planning scheme, in place after Telstra vacated the site, included the site in the Future Urban Zone;
·The 2001 Ipswich Northern and Inner Western Corridors Structure Plan included the site in the Urban Residential Zone, which envisaged that the site be used for low density residential development;
·The current planning scheme includes the site in the Residential Low Density Zone and the Recreation Zone. It is intended to be used primarily for low density residential purposes;
·Under both the 1999 and 2006 Ipswich Planning Schemes, large areas of land to the south-west and east of the site, within approximately 5 to 10 kilometres of the site, respectively, are zoned by Council for the purposes of local and regional business and industry (low impact and medium impact uses);
·Accordingly, the planning intent of Council was that at the cessation of the Telstra Depot use of the premises the site was intended to be used primarily for residential purposes, with open space use intended to preserve the riparian corridor in the north east corner of the site;
·Evidence of the locality achieving the planning scheme intent for residential development can be illustrated by way of Figure 4, which shows the location of three recent development permits issued by Council for reconfiguration for the purposes of detached residential dwelling purposes, plus the location of a recently lodged development application for same, within close proximity to the subject site. A summary of these development permits and
| Site | Council Reference | RPD | Address | Decision Date | Development Summary |
| 1 | 5769/2009 | L2 and L4 on RP8372 | 152 and 156 Pine Mountain | At Information Request Stage (PD-online) | · 28 lot subdivision for residential detached dwellings · Lots range in area from 469sqm to 743sqm. · New road dedication. · Parkland dedication. |
| 2 | 8465/2006 | L2 RP141954 and L2 RP177766 | 174 and 160 Pine Mountain Road, Brassall | 23-12-08 | · 46 lot subdivision for residential detached dwellings. · Lots 1 – 45 range in area from 456sqm to 972sqm with median area at 500sqm approx. · New road dedication. · Balance area vacant land. |
| 3 | 2487/2007 | L1 RP224547 | Lot 1 North High Street, Brassall | 21-5-09 | · 27 lot subdivision for residential detached dwellings · Lots 1 – 20 and 22 – 27 range in area from 540sqm to 875sqm. · New road dedication. · Parkland dedication. · Balance vacant land. |
| 4 | 9926/07 | L921 SP179317 | 93 Heritage Drive, Brassall | 10-7-09 | · Emerald Hills Estate Stages 13 to 17 · Development Permit for 116 lot subdivision for residential detached dwellings. · Preliminary Approval for 32 lot subdivision for residential detached dwellings. · New road dedication. · Parkland dedication. |
development application is provided in the following table:
In his individual report, exhibit 3, Mr Brannock opines (paragraph 5.2) that there is no conflict with planning scheme provisions. In respect of the DEOs invoked by the Council, he says they are not compromised by the proposal (a conclusion difficult to avoid if compromise is assessed by considering the effect of a particular proposal on a citywide basis, as per Koerner); he notes that the proposed new buildings will essentially be on the slab of demolished Telstra buildings (i.e. not a “virgin” part of the site), that they will comply with relevant building standards and be used in accordance with appropriate conditions; as he says DEO 3.1(3)(j) recognises that differing uses can be located close together. In similar vein he notes that 4.5.2(2)(a) refers to “primarily” rather than “exclusively” low density urban residential development and associated uses (although the leeway allowed may relate to other residential uses comprehended in the “mix of low to medium density housing types and allotment sizes” in the following paragraph (c)). In the joint report the following comments were made on Mr Perkins’ assertion of conflict, which rely heavily on the 2003 approval:
“ ● In spite of the planning intent of the 1999 Planning Scheme and the 2001 Northern and Inner Western Corridors Structure Plan, the Ipswich City Council in 2003 (after Telstra had vacated the site) supported a development application for:
oDevelopment Permit for Material Change of Use for ‘Undefined Use – Service Industry (Assembly, Storage, Workshop and Administrative Activities) permitting the use of the site for Service Industry (Assembly, Storage, Workshop and Administrative Activities); and
oPreliminary Approval pursuant to section 3.1.6 of IPA for Light / Service Industry generally in accordance with the Minimal Low Impact Precinct intent under the Northern and Inner Western Corridors Structure Plan.
·The Ipswich City Council did not raise economic need as an issue in assessing that application and made a reference to the following planning strategies of the 1999 Planning Scheme as justifying approval of that application in spite of it being inconsistent with the intent for the residential low density precinct.
· Urban Development Strategy – Objective 3
· Urban Development Strategy – Objective 4
· Employment (Industry) Strategy – Objective 1
(refer to details in Council Report dated 29 May 2003)
· In terms of Section 3.1.6(1)(b) of the Integrated Planning Act 1997 (IPA):
The application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
· Furthermore, Section 3.1.6(1)(6) of IPA states that:
To the extent the preliminary approval, by doing either or both of the things mentioned in subsection (3) or (5), is different to the local planning instrument, the approval prevails.
· While the Planning Scheme zoning and intent for the site may be for low density residential use, the 2003 approval overrides that intent, within the scope of the conditions of approval, permitting Light / Service Industry on the site consistent with the Minimal Low Impact Precinct Intent under the Northern and Inner Western Corridors Structure Plan.
· The Minimal Low Impact Precinct Intent identifies desirable uses as including:
Storage/distribution, warehousing, research and laboratories, white good reception and distribution centres, trade sales, equipment hire, small scale repair and maintenance premises, clean manufacturing and high technology industries (e.g. computer, laser, energy, robotics, electronic, medical and communications technology) and support businesses, commercial, service/trades and community services/activities.
· Surrounding residents also supported the 2003 application for development that was inconsistent with the planning intent for low density residential.
· The 2003 approval effectively established an existing approved inconsistent use on the site.
· The application is for an expansion of this existing use right.
· The applicant proposes a rational use of a site on which there is an existing approved use.The site is unsuitable for residential use given the fact the site is occupied by an existing non-residential use.
· The previous notifiable activity, together with existing development, could make redevelopment of the site for residential use costly (and potentially financially unviable). The extent of remedial work necessary is a matter to be addressed by other relevant experts.
· The Concurrence Agency Response from the Contaminated Land Unit (CLU) of the EPA supported the 2003 application because it did not involve changing the land use from an industrial use to a sensitive use on land used in the past for a notifiable activity. A residential use would be considered a “sensitive use”.
· Whilst there would appear to be a need for service industry in this area, this will be addressed in detail in the economic expert report.”
(Apropos need, the evidence establishes that the proposal could be expected to succeed in attracting tenants who would presumably find the site convenient; it is not shown that their enterprises could not be satisfactorily accommodated elsewhere. Nonetheless, accepting that it is not shown that absent the proposal some planning or community need will go unmet, it is convenient to assume that “need” for the proposal, as a potential ground for overcoming any conflict with the Planning Scheme, exists.)
Notwithstanding the overriding effect of the 2003 preliminary approval, the Planning Scheme (2006) remains the planning scheme, which, has the force of law. In my opinion, the proposal conflicts with the Planning Scheme, to which, indeed, one is driven back by the requirement for impact assessment. The 2003 proposal does not purport to change or have the effect of changing the Planning Scheme itself. A developer who proposed low density residential development on Lot 2 would surely not run the risk of being told that his proposal conflicted with the Planning Scheme because of the existence of the 2003 approval. Surely a developer proposing some third use for Lot 2 would face potential submissions that there was a conflict with an attempt for low density residential, rather than with the Medium/Low Impact Precinct intents. The importance of the 2003 approval, independently of its significance for s 3.5.5(2)(d), is as constituting a ground under s 3.5.14(2)(b).
Mr Brannock’s grounds in his report (Exhibit 3) are expressed rather differently from Mr Houston’s:
“(i)Any conflict with the Residential Low Density Zone is diminished by the current use of the site for an existing, active, viable and approved service industry use.
(ii)The site has been used historically for industrial purposes, including industrial activities by Telstra between 1990 and 1999.
(iii)The 2003 approval re-established a Service Industry use on the site. Under IPA, the 2003 section 3.1.6 Preliminary Approval overrides the provisions of the planning scheme within the context of that approval.
(iv)The application is for a limited expansion (1,800m2) of low impact industrial uses that are consistent with the existing approved use. The total site coverage over the entire site, for both the existing and proposed use, will be only 7.5% in terms of gross floor area.
(v)The scale and visual impact of the buildings nearest the existing residential will be mitigated by dense landscaping within a 16.7 metre buffer area. This is wider than the 10.0 metre setback to residential development required in the Planning scheme for the Local Business and Industry Zone.
(vi)The proposed development will not result in any unreasonable visual, noise, traffic or odour impacts.
(vii)The mitigation measures will provide a more attractive setting for the residential neighbours to the south through the attenuation of noise impacts from the access driveway and the Warrego Highway by acoustic fencing and extensive landscaping.
(viii)The site is not ideally suited to residential use, given that it is occupied by an existing active, viable, service industry use, subject to a previous notifiable activity and located adjacent to a major road.
(ix)The site is suitable for the proposed development. It slopes down to the northeast, away from the residential properties, and the building platform will be at a lower level. This will reduce the visual height and scale of the proposed buildings which will be a maximum of 8.5m consistent with a residential height limit.”
That a proposal will do no harm or have no adverse impacts is not a ground for present purposes. I accept that need, in the limited sense established, is a ground, as is the 2003 preliminary approval which may be seen as opening the door to the uses contemplated there. Unsuitability of the site for residential development – when it is (let it be assumed) suitable for the proposed development – would be a ground, but unsuitability is not established on the evidence. I took on Counsel to suggest that there might be a benefit from alleged disadvantages of the site leading to some residential lots being made available at reduced cost.
I find it a curiosity that the appellants rely on their own use of Buildings 1, 2 and 3 as precluding the use of the balance of Lot 2 for low density residential, to the point of threatening sterilisation of the site if it cannot be used for service/industrial purposes. It might be different if what happened in Buildings 1, 2 and 3 were under the control of an independent owner. The uses in Buildings 1, 2 and 3 may jeopardise residential development on the DMR land to the immediate west; replication of similar uses on the eastern part of the site will jeopardise residential development of DMR land to the east of it. In my view that is the case notwithstanding the screening measures in place and proposed. The Department’s intentions for its sites are unknown. What is clear is the Council’s planning intention expressed in successive planning schemes for a residential future.
Amenity
I accept Mr Houston’s submissions about amenity which commenced with the analysis of the notion, coupled with community expectations in Tadpoles Early Learning Centre v Noosa Shire Council [2008] QPEC 9 at [13] – [14]. I accept the submission that “the amenity and character of the local area, while predominantly residential, is also influenced by heavy traffic on the Warrego Highway, the existing approved industrial/trade use on Lot 2 and non-residential traffic use of Pine Mountain Road as a result of its connection to the Warrego Highway. I do not think the court, given the zoning of the land, is entitled to act on a contention that residential development on Lot 2 would have an adverse effect on amenity or character, notwithstanding the disruption that residential development would bring until houses are in place, vegetation matures etc.
The appellants produce expert evidence that amenity impacts on residential neighbours flowing from the proposed uses can be adequately managed, in particular by acoustic fences of varying heights up to 3.7 m whose starkness can be softened by landscaping. There remains the consideration that such structures (which limit access to daylight and breezes), being considerably in excess of the standard planning scheme limits of 1.2 m for solid fences, 1.8 m if the fence is at least 30 percent transparent for front fences, 1.8 m for side and rear fences, are out of scale with traditional and expected residential amenity. The most troublesome of the fences is the 3.7 m one close to the boundary of the access strip’s western neighbour, 219 Pine Mountain Road which noise experts consider ought to be 3.7 m above the driveway; its eastern twin is proposed to be 3.2 m; the adjoining site on the east is owned by the appellants. Proposed buildings 4 and 5 (the subject of the development permit sought) are to be screened for acoustic purposes by a 2.5 m fence to the south, whose effective height as a noise barrier is greater as the buildings will rest on a partly excavated pad to the north. That fence will be set well back (18 m or so) from the rear boundaries of the more elevated residential properties at 215, 213 and 211 Pine Mountain Road. There is proposed to be a temporary 3 m high mound/acoustic barrier east of the new buildings, well clear of the DMR land. However, the long term proposal when indicative buildings 6 and 7 are constructed behind 4 and 5 is that the temporary acoustic barrier would be relocated some 10 m from the DMR boundary, at a height not specified in Mr McGowan’s landscape concept plan. Even if these arrangements are acceptable (which there is reason to doubt, particularly for the highest fence) and effective, there remains the psychological factor for existing and potential future residents of the area of non-residential uses in their midst; for a substantial number or proportion of them that would be unwelcome. It might be noted that in the relevant exhibit showing elevations (not to scale), the extent to which proposed buildings will be visible above the fencing is not depicted; those structures are of a scale to dominate residential development, although they will not exceed the residential height limit of 8.5 m. It is accepted that the industrial buildings are limited in number and footprint, and would not involve the same total clearing and establishment of the sea of roofing expected from “low” density residential development.
All of these factors are relevant to the balancing exercise which the court is required to conduct under s 3.5.14 of IPA. In my opinion a similar balancing exercise is required under s 3.5.14A when the assessment manager (now the court) decides whether the effect of the planning scheme for the land ought to be varied – here, varied cumulatively upon what the 2003 preliminary approval achieved. Notwithstanding the observation of their relative antiquity by Mr Houston, three decisions of Judge Row exemplify the approach which I think may and ought to be taken in the present appeal, notwithstanding changes that have happened, particularly changes in the legislation. I will elaborate on these decisions, below.
I agree with the submission that intensification of non-residential uses on Lot 2 is akin to a spot rezoning conflicting with the planning scheme which jeopardises potential use of the land for the purposes intended. In Tourism Investments Pty Ltd v Brisbane City Council [1988] QPLR 197, a rezoning from future urban to Particular Development (Retail Warehouse) was refused. The Council conceded a community or public need for the proposed facility. The reasons state at 200:
“Independent of such concession the evidence of Mr Hunter establishes the need in the relevant sense for the proposed development. The subject land is located in an area where there are high annual residential growth patterns, with the percentage growth being much in excess of the Brisbane average. It is also evident from the material contained in the Economic Impact Assessment that this sector of the city is one of the major residential growth areas with anticipated residential growth likely to continue in the future. I am further satisfied that there does not exist within the locality any existing appropriately zoned land. Such findings in themselves do not necessarily warrant approval of the application. Of more significance, in my opinion, are the general town planning considerations which arise, having regard to the existing zoning of the subject land and the intent of the Future Urban zoning in this locality.
The primary intent of the Future Urban zone under the existing Town Plan is the provision of a stock of land for normal suburban development consisting of predominantly detached housing.”
And at 201:
“The rezoning of the land to a particular development zone undoubtedly creates in one sense a spot zoning. What is of significance is whether the proposed use is one that would be compatible with the existing zoning and development in the locality. The subject land is located, not on the fringe area which is appropriately zoned for existing and future residential development, but is well within that relatively large area of land which is zoned either Residential “A” or Future Urban. Accepting that the future urban land is potential Residential “A” land, the existence of the proposed Particular Development zone would be inconsistent and incompatible with the zoning and probable future development of the area. The proposed development is non-residential in character, and would be of a significant size and bulk as to be out of character with the existing and probable future development in the locality. Whilst significant attempts have been made by the architect to reduce the incidence of the size and bulk of the building, which I am confident would be successful to some extent, the building nevertheless will present as out of character with the existing and probable future detached housing in the locality. In those circumstances the proposed rezoning would constitute a spot rezoning, which is not appropriate.
The existing amenity of the area is one that is adversely affected by the relatively large traffic volumes on Compton Road, and by the existing non-residential uses. The cessation of the extractive industry use, whilst it would doubtless improve the amenity of the area, in itself is no reason for approving the proposed rezoning. Whether the proposed rezoning is approved is a matter independent of the cessation of the existing extractive industry use.”
The present respondent was the successful respondent in Edray Homes Pty Ltd Superannuation Fund v Ipswich City Council [1990] QPLR 237. The headnote reads:
“Application was made by the Appellant to rezone land from the Residential 1 Zone to the Special Facilities (Vehicle Sales Premises) Zone. The Appellant proposes, if the application is approved, to use the subject land in conjunction with an existing car sales yard established on two adjoining lots, the use of which is registered under the Respondent’s town planning scheme as a lawful non-conforming use. The subject land had previously lost its lawful non-conforming use status.
Subsequent to the application being made, a new town planning scheme was gazetted. The planning philosophies as exhibited in the superseded town planning scheme and on the policy plan have been reproduced in similar provisions in the subsequent town planning scheme and strategic plan.”
At 239-40 one reads:
“The amenity of the area is significantly affected by traffic noise generated by vehicles using the Cunningham Highway. In addition to the lawful uses that may be made of the subject land under the 1989 town planning scheme, other residential uses could, with the permission of the Respondent, be made of Lots 13, 14 and 15. The use of such Lots, for example, for dual occupancy or multi-unit development, could, with adequate design techniques, provide a satisfactory form of development whereby the effect of traffic noise from Cunningham Highway could be reduced. The situation under the 1989 town planning scheme should be contrasted with that, wherein under the 1976 town planning scheme, the only permitted or permissible use for each Lot, was for a single family unit. The 1989 town planning scheme made provision for consent for development on Lots exceeding 800 square metres.
The development in the neighbourhood which is predominantly residential in character and in nature, is of a reasonable standard. The proposed rezoning and subsequent development of Lot 13 as part of the existing car yard, I am satisfied would not adversely affect the amenity of the neighbourhood particularly the adjoining property to the west to a significant extent. The provision of conditions relating to landscape, lighting and other matters would reduce the incidence of visual amenity although the activities associated with a car sales yard would in themselves affect the residential amenity. That adverse affect by the use of Lots 14 and 15 is currently part of the existing amenity. Approval of the rezoning would not significantly increase the existing adverse affects on amenity. On the opposite side of the Cunningham Highway there is a significant area of land which is zoned Special Business which is substantially developed for non-residential purposes. Such land is separated by the Cunningham Highway from the existing use on Lots 14 and 15. In such circumstances it could not be considered to be within the same locality when considering whether there is adequately zoned land in the locality.
I prefer the town planning evidence given by Mr Blowers, the chief Town Planner of the Respondent, to that of Mr Wann, an experienced Town Planning Consultant. Mr Wann failed to give sufficient weight to the fact that the proposed rezoning would result in an entrenchment of an existing non-conforming use and that such an action is inconsistent with the planning philosophies and strategies of the Respondent as reflected in both the 1976 and 1989 town planning schemes. His view that the rezoning would consolidate the non-conforming use, I am satisfied is inconsistent with the provisions of the 1976 and 1989 town planning schemes in relation to the non-conforming use provisions. Whilst the proposed rezoning may create a more satisfactory situation than that existing, that in itself is not of particular significance when considering a rezoning application. Improvements can be made to the existing development on Lots 14 and 15 without the rezoning of the subject land, Lot 13.
On all of the evidence the Appellant has not established that the application should be approved and the appeal upheld. The proposed rezoning is contrary to the provisions of the 1976 town planning scheme and the designation in the policy plan. It is in conflict with the provisions of the 1989 town planning scheme and Strategic Plan. The Strategic Plan sets out broad guidelines which are particularly relevant in a rezoning application as they are indicative of the planning philosophies and strategy adopted by the Respondent in the planning of its local area.”
That the local government and not the court is the planning authority has often been expressly recognised in decisions in this court and on appeal from this court.
I agree with Mr Hinson that, effectively, the appellants are seeking to entrench a non-conforming use, which is a problematic exercise. K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232 concerned an application for rezoning from Non-Urban to Particular Development (General Industry – Metal Fabrication) to facilitate expansion of an existing use. His Honour said at 235-36:
“Accepting as conclusive evidence the registration of the subject land and a certain building area as a lawful non-conforming use, the existing development is accorded protection under the provisions of s. 28 of the Town Plan. The Town Plan, within its provisions, contains significant constraints in relation to that lawful non-conforming use, with particular regard to an increase in its intensity. Whilst the Town Plan, within its terms, gives protection to existing lawful non-conforming uses, the planning philosophy as exhibited in the Town Plan and in planning policy 28.01 of the Respondent, are indicative that the planning strategy of the Respondent is that, in the long term, a non-conforming use should relocate to a more appropriate site where the particular use would not affect the amenity of the immediate neighbourhood or create any land use conflict. Such a principle accords with accepted town planning philosophy, and is reflected in many of the accepted text books on town planning. For example, Fogg “Land Development Law in Queensland”, at p.665 Et Seq. At p.385, the learned author refers to the difficult problems that may be caused where a rezoning is sought to allow an existing non-conforming use to become entrenched by obtaining a formal rezoning of the land on which the use is carried on. Such an approach has been reflected by the Court on many occasions, and is in conformity with the general planning theory relating to the phasing out, in the long term of non-conforming uses. Approval of the subject application would be contrary to the provisions of planning policy 28.01 of the Respondent to which considerable weight should be given, having regard to its conformity with generally accepted town planning philosophy and principles. Mr Mellish gave evidence that, if the rezoning were not approved, the existing use would continue into the future, with little likelihood, if any, of its relocation. That fact itself does not negate the planning principles which ought properly to be applied to the application for rezoning, whereby it is not desirable to approve of a rezoning which would result in the entrenchment of a lawful non-conforming use.
The subject land is within a significant area which is developed predominantly for low density residential dwellings which are of a high quality and well maintained. The existing use is completely out of character with the predominant land use in the locality. The existing use is a significant, visual intrusion into the amenity of that low density residential area. The untidiness of the existing use and the noise that is associated with that use, are incompatible with the peace and quiet of a low density residential area. Accepting that the proposed development of the subject land would, as a consequence, bring within a building many activities which are presently carried on outside of the existing building, does not, nevertheless, produce a significant improvement in the various incompatible elements of the development to the existing rural/residential use. That such uses will continue, but will be contained within a building, will have little significant affect on the noise that presently emanates from the site. The development presents as a non-residential development, and the nature of the activities, including the nature and character of the traffic that visits the site, demonstrate that such a use is non-residential and industrial in character.
The reasonable expectations of residents in the locality is that development on the subject land in the long term would conform with the intent of the non-urban zone and would accord with the provisions of the relevant policies of the Respondent. The proposed rezoning with the proposed extension and the use of the land for industrial activity is inconsistent with the reasonable expectations of people within the locality, which is zoned non-urban. The landscaping proposals, whilst they will, to some extent, ameliorate any adverse visual effect, are matters which could be carried out independent of the rezoning. Similarly, it may be said that the proposals as set out in the evidence of Mr Jones in relation to the provisions of an adequate and proper drainage system, could be carried out independent of a rezoning of the subject land. Little effort has been taken by the owners and/or occupier of the land, up to the present time, to reduce the adverse visual effect or to provide adequate and proper drainage of the subject land.
I am satisfied that the proposed rezoning and subsequent provision of extensions would not result in any significant increase in traffic flows and that consequently the proposed rezoning, if approved, would not be likely to create a traffic problem or exacerbate any existing traffic problem in the locality.
The town planning approach adopted by Miss Terry, who was called on behalf of the Respondent, and Mr Dawson, Deputy Shire Planner of the Respondent by Election, I find more preferable to that of Mr Higginson. Mr Higginson failed to give adequate and proper weight to the provisions of the planning policies of the Respondent in relation to the planning strategies.”
These “old” cases are instructive in demonstrating that an established and confirmed planning intent pursued by the planning authority is not lightly overridden, even where a proposal appears to have no adverse effects and may exhibit some positive grounds for assessing it as a good idea that might represent a better use of the subject site. Setting aside all the reservations I have about amenity (including traffic) impacts for existing, future and potential future residential uses in the locality in this part of Brassall, reservations which Judge Row did not share in the matters before him, I am unpersuaded that the appellants’ development application ought to be approved, either in respect of the development permit sought or the preliminary approval.
Popular opinion
I do not regard the considerable support for the proposal among local residents who have expressed a view as a ground strengthening the appellants’ case. It is a matter of speculation whether it truly represented a majority view in 2002-03 or represents a majority view now. Be that as it may, the expressions of support are in large measure in defence of legitimate private interests, in my assessment, rather than being in private or individual assessments of what is in the general or public interest. The supporters of the proposal (rather like the opponents) value their present environment and amenity and do not wish to see it changed. The appellants’ proposal, for the supporters, probably represents the lesser of two evils. I think they would prefer to see no development. The proposal will lead to very modest site coverage, compared with residential development. One supporter appreciates the opportunity to run horses on the site and expects that to continue. Another, in cross-examination on day three expressed a view to which I am personally sympathetic, which I think is more widely held and also reflected in the views of those who fear the traffic impacts of residential development at the likely intensity on Lot 2:
“In paragraph 11 of your statement you say that you don’t object to the proposal and you can see some advantages, including the potential for some screening from noise from the Warrego Highway?-- That’s correct.
All right. Would you accept that if the land was developed for residential purposes, that would also give you some screening from noise from the Warrego Highway?-- Yes, it may, but in my opinion, it wouldn’t be as high as the screens that the Zanows said they’re going to do, and also I - from my view, I’d rather not look at residential houses behind me and with respect to residential, comes a lot of noise as well.
Why wouldn’t you like to look at residential development behind you?-- Oh, that’s just my opinion.”
This is a planning appeal, not a popular referendum. We are in an era of apparently inexorable population growth and increasing demand for housing. Regrettably, sustainability, etc must be pursued in a context of growth. Residential development must be expected and accommodated in favourable locations like Brassall, however much those living there already might reject it.
Mr Hume gave evidence by telephone. He resiled from his stance as a submitter against the proposal (“having an industrial development in the middle of the residential area does not make sense”). On reflection, observing that Lot 2 was on the edge of the residential area and now appreciating that he had earlier misunderstood the proposal as one that might involve “heavy industrial” uses, he now feels assured “that anything that had to be changed would have to be changed through Council … that the development would be regulated and would be kept an eye on”. He had thought that there were too many trucks “rumbling past our door” as it was, but was also of the view that all or most of the site-related heavy traffic came in and left by the highway and would continue to do so – “it wouldn’t be a problem down our end at 176 Pine Mountain Road”. If there were additional trucks from the proposed development past his place he thought that
“(T)here won’t be a movement of large trucks. It would be more movement of small body trucks, which would equate to probably about the same as what we are going to get with all the developments of the houses and everything that are going in round the area come to anyway.”
Mr Caneris was another adverse submitter to change camps. That has not been the case with Mr and Mrs Lake of 219 Pine Mountain Road, the western neighbours to the site’s access. It is they who would be most affected by the proposed 3.7 m acoustic barrier just across their western boundary. It does not appear whether they are aware of this proposed noise-attenuation measure; there is certainly nothing suggesting it takes away their concerns or would be an acceptable change to their eastern outlook.
Telstra and expectations
It is difficult to attach any particular significance to Telstra’s former use of the site. I agree with Judge Row’s general approach that current ideas are that non-conforming uses and the like ought to be phased out. If “lawful”, such uses may continue indefinitely, which would have had a significant effect on the expectations of those in or contemplating coming to the area. When Telstra left and any “public utility” use ceased, the expectations would be expected to change too. Some might contemplate that a new owner would seek to take advantage of the infrastructure established there and introduce new uses involving similar physical activities on Lot 2. I would think that most would consult the planning scheme provisions in the 2001 Northern and Inner Western Corridors Structure Plan and (when it was introduced) the 2006 planning scheme, meaning that expectations would be of residential development, which might be unwelcome to many. One’s experience is that the works necessary to establish a residential sub-division and then to construct a few score residences may be highly disruptive for years. It is little wonder that the appellants have garnered the support they have.
Expectations will also be affected by the 2003 approval (in particular in the Site Intent and Table of Development for Lot 2). The December 2008 development permit established that the 2006 planning scheme’s reaffirmation of the residential designation did not preclude additional physical development of the kind that could be expected in the Local Business and Industry Zone. The terms of the intent and table development are set out in Mr Houston’s written submissions paragraphs 20 and 21:
“20. Condition 1 of the “Conditions of Assessment Manager (Ipswich City Council) – Preliminary Approval to override the Planning Scheme, for Light/Service Industry generally in accordance with the Minimal Low Impact Precinct Intent under the Northern and Inner Western Corridor provides:-
1. Site Intent
This site is intended to accommodate a mix of small to medium sized business and low impact industrial activities which do not generate:
(a) High volumes of heavy or articulated traffic;
(b)Movement and handling of materials outside normal business hours; or
(c)Noise, air, dust and any other emission/impacts or cause safety risks unacceptable in an area close to residential development or other sensitive land users.
It is envisaged that the site is likely to be developed for a diverse range of business and industry activities, including small scale manufacturing industries, which demonstrate appropriate environmental outcomes with minimal to low impacts on the surrounding area. It is intended that the low density of the site be maintained and characterised by low rise, well landscaped development, exhibiting integrated building form hosting multiple tenancies and opportunities for shared access parking.
Maintenance or residential privacy and amenity of surrounding residential precincts is paramount and is achieved by appropriate location of low impact uses further away from residential land uses than minimal impact and well attenuated uses which act as an intermediate buffer. This includes orientating emissions generating activities and outdoor storage areas away from nearby residential impact.
21. “Under the Table of Development for Lot 2:-
(a) a range of light industries, Manufacturing and Assembling Production Uses, Bulk Store, Warehouse and Research and Associated Technology Activity are Self Assessable when conducted in specifically identified approved buildings (i.e. Building 1, Building 2 and/or Building 3), subject to, in some instances, Environmentally Relevant Activities being subject to Code Assessment by the responsible authority;
(b) commercial premises, mini storage complex, storage yard (in approved building and storage areas) and training facilities (in identified buildings) are Code Assessable;
(c) identified Self Assessable or Code Assessable uses in the Table of Development which did not meet the requirement of being a specifically identified building is either Code Assessable or Impact Assessable; and
(d) uses not fitting in the defined category are to be assessed:-
(i) in accordance with Table 3.4 – Residential Precinct Table of Development under the Northern and Inner Western Corridors Structure Plan; or
(ii) in accordance with the relevant Planning Scheme applicable at the time of submission of the development application.” (footnotes omitted)
Need
Need was an issue, although the Council’s expert in the field, Mr Brown was not required for cross-examination. He and Mr Coghlin produced a joint report. It reveals differences of view in respect of both need for residential land in the area and the need for additional land available to be used as if zoned Local Business and Industry. That zoning is to be distinguished from Regional Business and Industry. The former zone’s intended outcomes include “providing local employment opportunities as a means to ensure that there is a high level of employment self-containment across the city”. That intended outcome, Mr Coghlin argues, is compromised in Brassall which has no land zoned for industrial uses, the nearest Local Business and Industry Land being in Pine Mountain to the north-west and North Ipswich to the south-east, both of which are fully occupied with the exception of 900 m2 of vacant land in the North Ipswich zone. The nearest vacant land so zoned is five kilometres away by road in West Ipswich across the Bremer River and the railway line. As Mr Coghlin says, an activity requiring a Local Business and Industry Zoning desirous of establishing in Brassall would have to locate elsewhere. He says the proposal is too small to affect the value or absorption of existing land so zoned elsewhere in the city. While Mr Coghlin may be right that “the north west region of Ipswich is deficient in such land in comparison to other regions of Ipswich”, Mr Brown’s view is that “local” in the intended outcome refers to a geographical area larger than a suburb, but smaller than “regional”. He contends that the proposed uses are clearly more consistent with the intended uses for the Regional Business and Industry Zone than with what is intended for the Residential and Density Zone, also that the absence of land zoned local business and industry or local business and industry investigation area within Brassall does not of itself suggest a need, moreover that proximity of such zones to Major or Neighbourhood Centres is specified as a key intended outcome for such zones. The views of the Council, as planning authority, appear to coincide with Brown’s. That is the position I incline towards. For the purposes of argument, I have proceeded on the basis that the “need” asserted by Mr Coghlin exists in the sense described elsewhere.[2]
[2]See [33].
Is there a need for Lot 2 as residential land? It is assumed that Lot 2 in total could accommodate 50 to 60 detached dwellings (the proposal now under consideration relates to about half of Lot 2), on which basis Lot 2 equates to between 1.6 percent and 2.4 percent of the estimated aggregate new dwelling supply in the Brassall area. That reduces to 1 percent if the Chuwar future urban area north of the Warrego Highway is brought in. Depending on the assumptions made, Chuwar might accommodate 2,500 to 3,100 dwellings of the total 4,600 to 5,800 for Brassall. That is said to represent several decades of supply “based on the average absorption rate in the Brassall area over the past three years”. Mr Coghlin’s opinion is that in the local area there is no pressing or significant need for more residential land, Lot 2’s potential contribution is very small and would not have any significant impact on supply or prices of dwellings in Brassall. Mr Brown considers that “future urban” land should not be counted in a supply of zoned residential land for the purpose of demonstrating limited need, given that the planning scheme intention is that land zoned residential be used prior to the use of land zoned “future urban”. That there may be a limited need for additional residential land in the Brassall area he says is largely irrelevant as it does not demonstrate need for the appellants’ proposed uses which conflict with the planning scheme. He anticipates land use conflicts resulting from industrial uses being located within a residential area.
The planning scheme may not represent a perfect or the best allocation of land to particular classes of uses. As the Court of Appeal said in Clark v Cook Shire Council [2007] QCA 139; 152 LGERA 420 at [32]:
“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme. It is important not to minimise the force of this consideration. In the striking of the overall balance in a planning scheme, there will be ‘winners and losers’ so far as individual interests are concerned.”
The question in this appeal is whether the planning scheme’s effect ought to be overridden to a greater extent than has already happened. It is not shown that the city or Brassall in particular is being deprived by the restrictions in the planning scheme of any facilities that they ought or could reasonably expect to have.
The appeal will be dismissed.