(Rackemann DCJ - 12 March 2014)
Planning and Environment – submitter appeal against council's decision to approved a development application for a material change of use to permit a home based upholstery business – procedure where appellant fails to appear – where home based business activities potentially suitable under the planning scheme subject to impact assessment – whether approval would result in adverse amenity impacts
Facts: This was a submitter appeal against the decision of the Logan City Council (Council) to approve the Co-Respondents' development application for a material change of use to permit a home based upholstery business at South Maclean. The upholstery business was operated out of a shed on the Co-Respondents' property in a rural residential type area. The Co-Respondents had already started the business under the mistaken assumption that no approval was required. The Appellant's residence was located to the immediate west of the subject site.
There was no appearance by the Appellant or any person on the Appellant's behalf at the hearing.
The Appellant had alleged in the grounds of appeal that the proposal would cause various amenity impacts including noise, traffic and other environmental impacts, particularly, air pollution and dust. The Notice of Appeal did not rely on any specific contravention of provisions of the relevant Beaudesert Shire Planning Scheme 2007 (Planning Scheme). However, the relevant provisions of the Planning Scheme were the subject of examination by the Council's town planning expert.
The Co-Respondent and Council contended that there would be no significant adverse acoustic, air, quality, traffic or amenity impacts as a result of the proposal. The conditions attaching to the Council approval required, among other things, a limitation on vehicle movements and hours of operation, a limitation of two non-resident employees, and extensive landscaping. Neither the Appellant nor the Co-Respondent engaged experts in the appeal.
The Appellant's husband had acted as the Appellant's agent throughout the appeal up until the hearing. On the day prior to the hearing, the Appellant's husband informed the Court that he had resigned his agency and had recommended that the Appellant have professional advice due to her "medical condition". The Appellant did not seek an application for an adjournment.
Decision: The Court held, in dismissing the appeal:
- While it was the Appellant that had not appeared, the Appellant did not bear the onus in the appeal. The onus lay on the Co-Respondent and the appropriate course was to proceed with the trial and provide the Co-Respondents with an opportunity to discharge their onus in the usual way.
- The proposal would not cause noise or air quality impacts or adverse traffic consequences of any significance given the limited scope of the proposal, the number of employees to be engaged and the limits placed on vehicle movements.
- The Planning Scheme contemplated activities such as the proposal as being potentially suitable subject to impact assessment. To the extent that there might be thought to be any tension with any part of the more detailed provisions of the Planning Scheme, there were sufficient grounds to justify approval for the proposal notwithstanding any conflict, given that the proposal was entirely appropriate and would not result in adverse amenity impacts.
- The development application should be approved subject to conditions which would be amended from those which the Council had set. Those conditions related to the proposal's compliance with the Parking and Servicing Code required under the Planning Scheme.
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