Australia: Planning and Environment case updates

INDIGO (PALM BEACH) LAND OWNER PTY LTD v GOLD COAST CITY COUNCIL [2011] QPEC 27

(Robin QC DCJ - 18 February 2011)

Whether substantially different development - whether reduction of a mixed use development represented a minor change - s.350 Sustainable Planning Act 2009

Facts:

The Court was required to determine whether the change in development was a minor change for the purposes of s.350 of the SPA.

The changes involved a marked reduction in the height of the building from 13 levels to 7. There was a resultant reduction in GFA from 6,932m² to 5,468m²; in plot ratio; and in the number of units from 57 containing 97 bedrooms, to 52 containing 81 bedrooms; in open space; and in setback distance to the western boundary from 9.5m average to 7.5m average.

The Court had regard to Statutory Guideline 06/2009.

Decision:

The Court held, that the changes were minor changes, and that:

1. Minds may differ about whether the reductions represented a dramatic change. Some may take the view that the removal of an additional 6 levels was a dramatic change which had obvious benefits in producing a more open amenity.
2. There was a tradition in the Court of accepting as minor change, changes that reduce the impact of developments. It was clear when one read the Guidelines that the changes which cause concern are those which increase the bulk and scale of developments or increase their impacts.
3. It was appropriate to construe and apply s.350 of SPA in that way, particularly if ss.3, 4 and 5 of the SPA were borne in mind as to how the Court, and other entities performing functions, ought to advance the purpose of the Act.

GOLD COAST CITY COUNCIL v GMA CERTIFICATION GROUP PTY LTD [2011] QPEC 29

(Robin QC DCJ - 22 February 2011)

Appeal against a Building and Development Resolution Committee decision - condition of subdivision approval - private certifier approval of building work contrary to condition of subdivision approval - s.479 Sustainable Planning Act 2009

Facts:

This appeal was brought under s.479 of SPA against a Building and Development Resolution Committee decision. That decision, pursuant to s.464(2)(e) of the SPA was to set aside the decision of the Respondent private certifier, and to direct the certifier to decide an application for building work as if there had been no concurrence agency requirements of the Council.

The Co-Respondents had applied for approval to construct a retaining wall on an allotment which had been created under an approval of a reconfiguration application in 2006. That approval contained, in Condition 6, a requirement that retaining structures not exceed 1.2m in height without approval of the Chief Executive Officer. The Co-Respondents proposed a 2m structure.

The Committee's reasons for its decision sought to distinguish a decision of a differently constituted Tribunal in which a decision of the same certifier to refuse a development application for building works for a retaining wall was confirmed on appeal. The reasons here were to the effect that the subject conditions related to the subdivision of the land, and possibly any subsequent proposal that required an operational work or other approval from Council, but was not relevant to filling that was incidental to and necessarily associated with the building of a residence on the land.

The Council contended that Condition 6 was one which attached to the land to which the approval containing it related, and bound the owner, successors in title and any occupier of the land.

Decision:

The Court held, in allowing the appeal and ordering that the Co-Respondent's development application for building works be refused, that:

1. The Council's view was obviously the correct one. Condition 6 attached to the land and bound the owner.
2. The consequence was that under s.84 of the Building Act 1975, a private certifier was constrained in issuing development approvals.
3. It would seem basic that it was not within the Committee's power to make a decision that the private certifier could not have made.
4. It must be a jurisdictional error for the Committee to have made a decision which amounted to the commission of an offence under s.84.

VIDLER v FRASER COAST REGIONAL COUNCIL [2011] QPEC 18

(Robin QC DCJ - 1 March 2011)

Preliminary Issue - application for preliminary approval - whether development involved taking or interfering with a State resource - water in a watercourse - overland flow water - whether a preliminary approval could take or interfere with a State resource - discretionary considerations - s.3.2.1 Integrated Planning Act 1997 - s.820 Sustainable Planning Act 2009

Facts:

In this appeal against Council's refusal of a development application for a preliminary approval, Council contended that the application was not a properly made application on the basis that it was not supported by evidence of a State resource, for water, required under s.3.2.1(5) of the IPA.

Council relied upon the Schedule 4 definition of "water" in the Water Act 2000, and in particular the references to "water in a watercourse" and "overland flow water". With respect to the former, the Council called evidence to the effect that an artificial drain or channel crossing the property constituted a "watercourse" within the Schedule 4 definition which referred to water "in an artificial channel that has changed the course of the watercourse".

Aerial photography from 1958 identified a watercourse traversing the site. Some time around 1984 the channel appeared to have been filled in. Subsequently, by 2004, the northern channel or drain had been reinstated by the digging of a channel in a roughly similar location. The artificial channel now served the function of the northern branch of the creek system illustrated in 1958.

The proponent relied upon the fact that the discontinuity between the natural channel, and the artificial channel, apparently prevailed for years.

Council contended that it did not need to succeed in establishing a "watercourse" given that "water" also included "overland flow water". The proponent contended that pursuant to s.20 of the Water Act he may do whatever may be envisaged by his development. It authorised the taking of water without a water entitlement, including in s.20(6), the entitlement to take overland flow water for any purpose subject to qualifications.

The proponent also submitted that as what was sought was a preliminary approval which did not authorise any actual development, it could not be said to involve taking or interfering with water. In that regard, the Court observed that recent decisions with respect to that issue had been decided differently.

The final issue for the Court was whether relief was available to the proponent under s.820 of SPA. Council submitted that s.820 was not available on the basis that no distinction could be made between cases of development that would be contrary to State Planning Regulatory Provisions, and the case of an application not containing the evidence required with respect to a State resource. The former kind of application could not be accepted for processing by the assessment manager, and it was inconceivable that s.820 could override that situation.

Decision:

The Court held that:

1. A long-standing "natural" watercourse did not need to be in existence, and able to function, at the time when a replacement artificial channel was dug which restored the function of the natural watercourse. A delay of years, was indistinguishable from one of days or less.
2. The view the Court should take was that it was dealing with a watercourse as defined.
3. Even if the "taking" of water was authorised, interference was not.
4. If the envisaged development proceeded, there would be or may be a taking of, or interference with, the State resource of water.
5. With respect to the argument that the preliminary approval did not involve taking or interference with a State resource, the preferable answer was that which adopted the approach in Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112 rather than in Herberton Land Corporation Pty Ltd v Tablelands Regional Council (Unreported), Pack DCJ, 20 July 2010.
6. It would be unhelpful in the circumstances for the Court to now accede to the Council's arguments regarding s.820 of SPA, given that, if a discretion under this section did exist, the present circumstances were not ones making a favourable exercise of the discretion appropriate.

CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT v CLARK [2011] QPEC 20

(Wall QC DCJ - 3 March 2011)

Application under s.505(1) of the Environmental Protection Act 1994 for Orders to remedy offences - environmental nuisance - breaches of Environmental Protection Orders - restraining order - ss.8, 9, 14, 15, 319, 358, 360, 361, 440 and 505 Environmental Protection Act 1994

Facts:

This was an application under s.505(1) of the EPA for Orders, under s.505(5), to remedy offences against the Act by the Respondent, and to restrain the commission of further offences.

The Respondent was the owner of the subject land. It was used by a number of businesses under commercial agreements. Persons leasing parts of the site access the leased areas via a vehicle crossover and common internal vehicular access ways through the middle of the site. The Respondent was responsible for the environmental management of activities carried out on the site's common areas.

The Applicant contended that during dry weather, a layer of dust covered the site. That was blown onto, and accumulated on, Rudman Parade. It turns to mud when it rains, and is trafficked along the road. Further, sediment that was deposited on the roads had the ability to enter water systems. It also referred to common symptoms experienced from dust impacts to people.

The Applicant contended that the Respondent had committed offences against s.361 of the EPA as a result of contravention of Environmental Protection Orders (EPO's) issued in September 2003, August 2008, and October 2008.

The Applicant also contended that the Respondent had committed, and would continue to commit, offences against s.440 of the EPA. It made it an offence to wilfully and unlawfully cause an environmental nuisance, or unlawfully cause and environmental nuisance.

Decision:

The Court held that:

1. Taking into account the nature, frequency, intensity and regularity with which it was generated, the number of people and businesses affected, their proximity to the activities generating the dust and the character of the neighbourhood, the dust here complained of clearly amounted to an unreasonable interference or likely interference with an environmental value.
2. The evidence established the commission of offences relating to the contravention of the EPO's. The activity - vehicles traversing and entering and exiting the site - caused, and was likely to cause, environmental harm for the purposes of ss.358(d)(i) and 319(1). The Respondent had not taken all reasonable and practical measures to prevent or minimise that harm.
3. The Respondent continued to refuse to do anything to abate the environmental nuisance emanating from the site. He continued to contravene the EPO of October 2008 and continued to commit further offences against s.440. Such offences would clearly continue to be committed unless he was restrained from allowing the site to be used in ways which caused environmental nuisance of the type complained of.
4. Notwithstanding the hardship, both human and economic, to lessees of the site and their employees which would be caused by Orders such as were sought, extensive powers existed to restrain the activities the Respondent was allowing on the site.
5. Absent an Order preventing vehicles traversing the site until a wheel wash was installed and operating, and the roads sealed, further substantial damage to the environment would be caused because of the continuing nature of the Respondent's offending.

SEA WORLD MANAGEMENT PTY LTD v GOLD COAST CITY COUNCIL [2011] QPEC 33

(Robin QC DCJ - 4 March 2011)

Treatment of former Special Facility zoning by Planning Scheme - effective Local Area Plan - s.14(2) Acts Interpretation Act 1954 - s.456(1)(d) Sustainable Planning Act 2009

Facts:

This was an Application for a declaration that, on the proper construction of the Planning Scheme, the making of a material change of use for any of the purposes of recreational centre, tourist facilities, film studio or tourist and local shops on the subject land was exempt development.

In the Planning Scheme, the Domains provided that where the Domain maps included a notation to refer to Part 10, Division 3 of the Scheme, the Table of Development must be read subject to that clause and Part 10, Division 3. It listed certain lots which were zoned Special Facilities under the superseded Planning Scheme. Any material change of use for a purpose specified for the lot in Part 10, Division 3, was exempt development subject to complying with the conditions of approval and a Council approved concept plan identified for the site.

There were no, or minimal conditions of approval and no approved concept plan or control or limit development on the subject land.

In Part 6 of the Scheme, dealing with Local Area Plans, the Scheme provided that the LAP replaced the function of the Domain controls.

The Council contended that particular sites were subject either to Domain controls or LAP controls. The Applicant submitted that there was a third category of sites where development may potentially occur, namely those which had the advantage of a Special Facility zoning.

Part 10, Division 3 comprised a Schedule of 7 lots which had been zoned Special Facilities under the superseded Planning Scheme. It provided that it was intended to preserve use rights in respect of those lots, and that the Division must be read in conjunction with the explanation provided in the Scheme with respect to using Domains, and using Local Area Plans.

On the Scheme's Domain maps, the relevant Special Facility sites were hatched as an indication of the historical Special Facility zoning. They also bore the notation "Refer to Part 10, Division 3".

A change had occurred in respect of the subject site in 2009 when the Oxenford LAP became effective. Subsequent to that, the Domain map now coloured the site orange, depicting the LAP area, and the notation "Refer to Part 10, Division 3" remained.

The Applicant contended that the advantage the Scheme offered in respect of Special Facility zoning was preserved because the notation referring to Part 10, Division 3 appeared on both the original and new Domain maps.

The Council contended that the notation did not have that beneficial effect because the words relied on must be read subject to the heading which referred to a "notation on the Domain map", and that given the inclusion within the LAP, the LAP was the source of development rights and the site was no longer dealt with within a Domain.

Decision:

The Court held that:

1. The declaration sought in the Originating Application should be made.
2. The Council's argument that the inclusion of the land within the LAP overrode the preservation of use rights paid too little regard to the express purpose of Part 10, Division 3. While it was possible that entitlements of landowners could be changed in that way, the changes effective in the Scheme did not have that effect nor were intended to have that effect.

LEWIAC PTY LTD v GOLD COAST CITY COUNCIL [2011] QPEC 23

(Newton DCJ - 11 March 2011)

Development application for aged persons accommodation - conflict with Domain provisions - whether compromise of DEO's - amenity - noise - air quality - visual amenity - traffic - need - s.3.5.14(2) Integrated Planning Act 1997

Facts:

This was an appeal against the Respondent's refusal of a development application relating to aged persons accommodation.

The subject land was contained within the Industry 2 Domain. On the southern boundary of the site, proximate to where the proposal involved 5, 7 and 8 storey buildings, was land within the Industry 1 (High Impact) Zone upon which industry had been established. To the north of the site land was contained within the Residential Choice Domain. Land to the east was within the Fringe Business Domain and the Harbour Town Shopping Centre.

The issues to be considered involved amenity relating to noise, air quality and visual amenity; traffic; need; and general town planning considerations including compliance with the Scheme.

The Appellant submitted that the site was unsuitable for industrial uses; it was suitable for the proposed use; there was no need for the site for Industry 2 Domain purposes; and there was a need for the site to be developed for the purpose of a retirement resort.

The Council contended that the proposal fundamentally conflicted with the Industry 2 Domain provisions, and that the Domain intent made it clear that land suitable for industrial activity was a limited resource in the Gold Coast City area and the intent of the Domain was to provide for the present and secure for the future, land for Industry 2 purposes.

Decision:

The Court held, in dismissing the appeal, that:

1. For a DEO to be "compromised", its achievement must be threatened, imperilled or endangered by a proposed development. In determining what constitutes a "threat", a comparison should be undertaken between the interference occasioned by the development and the scope and nature of the DEO.
2. The proposal clearly achieved DEO SOC.3 regarding the provision of a range of housing choice.
3. Accepting that between 2010 and 2016, the population growth would be 28%, whereas the growth in the population over 65 would be nearly 80%, the need to adequately house that growth was manifest.
4. The benefits offered under the proposal, together with the inability of the Scheme to accommodate a retirement village of the type proposed in the catchment, led to a conclusion that a need for the proposal had been demonstrated.
5. There was an adequate supply of industrial land on the Gold Coast for current, and future, demand. Indeed the existing high level of vacancy within the precinct may well mean that current supply exceeds current market demand. Further, the growth in the level of vacancy with respect to industrial land in the precinct was likely to indicate that the current supply of industrial land may also be surplus to future requirements.
6. Notwithstanding those considerations regarding need, and accepting that in some respects the site was less suitable for industrial use than residential use, a conservative approach was required. Land is a finite resource and once alienated it is very difficult to recover. The Planning Scheme had adopted the strategy of securing industry land for present and future use. The fact that there may be other industrial lands available at present was not really to the point. The strategic planning required that there be a bank of industrial land for future use.
7. Ultimately, the existence of vacant industrial land in the vicinity could not be viewed as a warrant for the conversion of the strategically located parcel to a use not contemplated by the Planning Scheme.
8. The review of the evidence of the expert traffic engineers revealed no suggestion of any traffic engineering issue associated with the proposal.
9. The subject site did not have suitable access to allow it to be developed in a satisfactory manner for industrial purposes.
10. It was likely that the introduction of new residential development on the subject site would unreasonably constrain the productive industrial land. The potentiality of noise and air quality impacts from the Industry 1 (High Impact) uses would be likely to lead to complaints about the Industry 1 impact on the retirement village given the probable excesses over environmental protection policy goals which could be expected to occur. To that extent, the achievement of DEO's would be compromised and the proposal must be refused.
11. In terms of visual amenity, the proposed development of the site gave rise to very few visual impacts of concern. The proposal yielded a better visual outcome than would development of the site for industrial purposes.
12. The Court could not disregard the fact that the area was recognised on the Planning Strategy Map as part of an Industrial Employment Cluster forming one of the specialised Activity Clusters referred to in the DEO and Strategies. The use of the subject site for a retirement village would compromise the achievement of the DEO.
13. The proposal was in conflict with the Scheme provisions relating to the Industry 2 (Low Impact) designation within which the subject site was located.
14. The subject site was suitable for Industry 2 purposes in that it adjoined Industry 1 land to the south and to the west, and that it was proximate to the Harbour Town Centre thus advantaging both the administration of the business and their staff.
15. Ultimately, the issues on which the Appellant had succeeded were not sufficient to persuade the Court that there existed sufficient grounds to approve the proposal despite the conflict with the Industry 2 provisions of the Scheme. That conclusion, together with those relating to the compromise of achievement of some of the DEO's required that the appeal be dismissed.

CULLEN & COOPER PTY LTD v FRASER COAST REGIONAL COUNCIL [2011] QPEC 41

(Jones DCJ - 17 March 2011)

Material change of use and reconfiguration - subdivision in proximity to waste water treatment plant - whether conflict with strategic plan - whether sufficient grounds to justify approval - minor change

Facts:

This was an appeal against the refusal of an application to reconfigure land into 4 large rural residential lots. The subject land comprised approximately 1.2 hectares. It was proposed to subdivide the land into 4 lots, with areas between 2,000m² to 4,061m².

The development application was lodged under the superseded Planning Scheme. Under it, the land was contained within the Rural zone, and the Park Residential preferred dominant land use area. The application sought approval for a material change of use of the land from the Rural zone to the Park Residential zone, and the subsequent reconfiguration.

To the north-east of the land was the Pulgul waste water treatment plant (WWTP). It was separated from the site by road and a buffer of bushland. Expansion of the WWTP was expected.

The application had been refused on grounds that the application had not demonstrated that the proposed lots would enjoy a reasonable level of amenity commensurate with that expected in the Park Residential zone, or that the proposed lots would not be unreasonably impacted upon by odour originating from the WWTP; inconsistency with s.1.2.15.1 of the Strategic Plan in that it would result in the intensification of odour sensitive land uses within 1,000m of the WWTP; inconsistency with s.1.2.16.1 of the Strategic Plan in that it would result in conflict between incompatible land uses; inconsistency with s.1.2.16.2 of the Strategic Plan by not providing sufficient separation of incompatible land uses; and there were insufficient planning grounds to support approval despite the conflicts.

The Appellant contended that there was no real conflict with the Strategic Plan, and alternatively there were sufficient grounds to justify approval. In particular it contended that the proposal would be compliant with a 600m buffer from the existing WWTP, and would locate additional houses outside a reasonable distance from the WWTP if expanded. The 600m distance referred to was a reference to the position or policy adopted by Wide Bay Water (WBW).

WBW had commissioned a report addressing odour impacts from the WWTP. Part of the report identified the 99.5 percentile odour concentration (odour unit) contours around the WWTP. It identified an area in red in which residents would have reason for complaint about odour. As a consequence of that report, the then Council issued Transitional Planning Scheme Policy No. 25 (TPSP 25). Attachment 2 to the Policy identified the area within which Council would not favour intensification of residential development beyond that which was allowable without impact assessment. The area identified in the Policy was essentially identical to that identified in red in the WBW report. The subject land fell outside that area.

Both parties relied upon expert advice regarding odour emissions. Modelling undertaken by them produced further emission contour plans, and agreed upon an appropriate odour criterion. The subject land lay beyond the agreed contour for average emissions in respect of both the existing, and an expanded WWTP. Under maximum conditions for the existing facility the north-eastern corner of the subject land fell within the contour, and in maximum conditions for the expanded facility the whole of the subject land lay within the contour. The experts agreed that the proposal would not necessarily be a primary constraint to any future expansion of the WWTP as there were a number of sensitive uses which were significantly closer to it. The experts also investigated complaint data and reported that in total, 11 complaints had been received from 3 complainants over the last 5 to 6 years.

There was also evidence that the Respondent had approved subdivision within the 1,000m buffer after the adoption of TPSP 25.

Decision:

The Court held, in allowing the appeal, that:

1. Apparent departures by the Council of its Planning Scheme in terms of approval of other development was a relevant consideration, but not decisive.
2. The primary purpose of the relevant sections of the Strategic Plan was to ensure an appropriate separation of sensitive uses and incompatible uses. The Court did not consider there was any justification for the 1,000m separation prescribed in the Strategic Plan. It was an arbitrary figure. There was no underlying scientific, or other, evidence which could be pointed to objectively justifying that degree of separation.
3. The 1,000m buffer was also inconsistent with the operator's own policy, based on scientific advice.
4. The proposal would not compromise, in any realistic sense, the expansion of the WWTP into the foreseeable future.
5. On balance, the only relevant potential conflicts with the town planning were concerned with the issues related to odour emissions.
6. In deciding the issues involving expectations on perceptions of amenity, the test was one of reasonableness. The likely level of odour impacts had to be considered in a reasonable and not overly sensitive or precious way.
7. The amenity of residents in the future expansion of the WWTP would be adequately protected and catered for by compliance with TPSP 25.
8. The 1,000m separation strategy or policy was overtaken by events, being the scientific study undertaken by WBW and the subsequent TPSP 25.
9. Evidence concerning the modelling results produced by the experts; the science underpinning TPSP 25; the broadly consistent application of that policy as evidenced by the current policy adopted by WBW; the current odour guidelines of the Council; and the apparent application of TPSP 25 by the Council in allowing other residential development within 1,000m of the WWTP was particularly persuasive. The relatively low level of complaints concerning the WWTP at its present level of capacity was also a matter to take into account.
10. The proposal was not in conflict with the Strategic Plan.

WAW DEVELOPMENTS PTY LTD v BRISBANE CITY COUNCIL [2011] QCA 47

(Muir and Chesterman JJA and Ann Lyons J - 18 March 2011)

Court of Appeal - the Planning and Environment Court summarily dismissed an appeal on the basis of a finding that the development application failed to comply with the State resource entitlement requirements in s.3.2.1(5) of the Integrated Planning Act 1997

Facts:

The Applicant had sought a development approval to extend its existing restaurant use over the footway immediately adjoining the restaurant by way of construction of a deck for use for outdoor dining.

The Council had applied to the Planning and Environment Court for an order dismissing the appeal on the ground that the application was not a properly made application as a consequence of alleged non-compliance with s.3.2.1(5) of the Integrated Planning Act 1997 regarding State resource entitlements. The Planning and Environment Court had struck out the appeal.

The Applicant had applied to the Department for evidence of a State resource entitlement. It had received a response from the Department to the effect that the Department did not require tenure over the subject area for the construction of the deck, and that the activity of outdoor dining was traditionally consistent with the use of a road. It enclosed a copy of a General Authority which referred to uses consistent with a road. It gave examples which included "outdoor dining".

The Planning and Environment Court had determined that the General Authority only authorised development applications "for road purposes" or "consistent with the road" which included outdoor dining. It considered that the letter did not constitute evidence that the Chief Executive was satisfied that the development application may proceed in the absence of an allocation or entitlement. Rather, it referred to the General Authority which only included outdoor dining to which the public had unrestricted access where there were no fixed improvements unless they formed part of the streetscape. It concluded that the structure was not part of the streetscape, and consequently the Appellant had failed to comply with s.3.2.1(5).

Decision:

The Court held, in granting leave to appeal, allowing the appeal and setting aside the order made by the Planning and Environment Court, that:

1. It was impossible to read the Departmental letter as indicating anything other than the Chief Executive's satisfaction that the development might proceed, and that the development did not adversely affect the State resource.
2. It was also clear from the reference to the General Authority and the provision of a copy of it, that the Department regarded the use of the deck for outdoor dining as an acceptable use of the footpath.
3. The tenor of the letter was that the Department did not require the Applicant to obtain an entitlement to the Resource, and was content for the Application to proceed without such an entitlement.
4. On any view, the appeal to the Planning and Environment Court should not have been peremptorily dismissed.
5. The streetscape must include street furniture. Whatever one thought of the aesthetics of the structure, it was an improvement made to a street.

TOMES v TOOWOOMBA REGIONAL COUNCIL [2011] QPEC 48

(Jones DCJ - 23 March 2011)

Appeal against Enforcement Notice - sawmilling activities on Rural Residential zoned land - characterisation of use - whether an agricultural or rural use or an industrial use - words and phrases "industrial activity", "general industry", "agriculture".

Facts:

This was an appeal against an Enforcement Notice requiring the Appellant to cease carrying out sawmilling activities on Rural Residential zoned land.

The Appellant was the owner of the subject land and had conducted sawmilling activities on a commercial basis since 2009. No trees grown on the land were used in the operation.

Pursuant to the level of assessment table for the Rural Residential zone, if the activities were an agricultural use then it would be self-assessable. If it were an industrial use, it was an impact assessable development.

"Agriculture" was defined in the Scheme to mean "the growing and harvesting of crops, pastures, flowers, fruit, vegetables, trees (either native or exotic) and the like on a commercial basis". It included "with regard to trees, the primary processing of trees grown on the property to produce pulp, piles, poles, saw logs, seed, leaf and bark. The term also includes limited secondary processing such as sawmilling ...".

Various industrial uses were identified. Sawmilling was not specifically defined as being an industrial activity. The Council relied upon the meaning of the terms "industrial activity" and "general industry". The former was defined as a use of premises that in the course of any trade or business involved the manufacture, production, processing, repair, recycling, storage or transfer of any article, material or thing. The latter included premises used for a trade or used in an industrial activity not separately defined.

Evidence was given in respect of amenity impacts upon a neighbour.

Decision:

The Court held, in dismissing the appeal, that:

1. Central to what was meant by agriculture was the growing and harvesting of trees on a commercial basis. However, the definition also included within the meaning of the term, the primary processing of trees "grown on the property". The "limited secondary processing" included in the definition was directly associated with, or related to, the primary processing as identified. That was, the Scheme envisaged that under the definition of "agriculture" some limited secondary processing such as sawmilling was permissible to carry out the production of, by way of example, poles and logs.
2. The business of sawmilling fitted quite comfortably within the definition of an "industrial activity". It involved the processing of solid material.
3. On the facts, the sawmilling use to which the land was being put could in no way be described as "limited secondary processing". It was the primary use of the land. It was secondary to nothing.

REDLAND CITY COUNCIL v WOOD [2011] QPEC 50

(Jones DCJ - 28 March 2011)

Application for declaration - appeal against refusal - processing, cooking and storage of seafood in a Residential zone - amenity

Facts:

These proceedings involved an Originating Application by the Council seeking a declaration that Mr Wood's use of land constituted a development offence as it involved assessable development for which no effective development permit existed. It also sought orders restraining the use of the land for the purpose of processing, cooking and storage of seafood for sale without a development permit. There was also an appeal by Mr Wood against the Council's refusal of a development application which sought to regularise the business being conducted on the land.

The Appellant was a professional fisherman. Since the 1990's he had operated the business on land which formed part of the residential neighbourhood within the Residential A zone. The business involved the loading of fishing boats, the towing of them from and to the land; and the cleaning, cooking, freezing and storage of crabs.

It was not disputed that the use of the premises constituted a "home business", and that a permit authorising the use was required. There was evidence that from time to time complaints had been received about the activities on the land. There was also support for Mr Wood being allowed to conduct his business, including from a number of nearby neighbours.

Decision:

The Court held that:

1. An offence for the purposes of the SPA had been committed.
2. This was an appropriate case of making the declaration sought by Council.
3. Notwithstanding the level of support for the use, the expert evidence revealed that from time to time the operations on the land would impact on residential amenity in a significant way.

JENSEN BOWERS GROUP CONSULTANTS PTY LTD v GOLD COAST CITY COUNCIL [2011] QPEC 49

(Wall QC DCJ - 31 March 2011)

Billboard advertising sign - weight to be given to amended Scheme - character considerations

Facts:

This was an appeal against the refusal of a code assessable development application for approval to erect a billboard advertising sign at Mermaid Beach. It was proposed to relocate the sign from the Fringe Business Domain, to the subject land within the Tourist and Residential Domain. It was to be cantilevered over the roof of a motel and illuminated at night.

The application was assessed under Planning Scheme provisions in force at the time; Version 1.1. Since then, Version 1.2 had come into force. Under it, the land was within Precinct 2 (Residential) of the Broadbeach Local Area Plan.

On the eastern side of the highway, the Local Area Plan included properties in different Precincts and Domains. The subject site was within 100m of 4 separate Precinct areas, as well as the Local Business Domain.

The Court had regard to the Advertising Devices Specific Development Code (ADC) in both versions of the Planning Schemes. It also had regard to the relevant Land Use Themes and Domain provisions.

Decision:

The Court held, in dismissing the appeal, that:

1. The application should be decided by reference to the Scheme as it is now, rather than as it was. The result was a Scheme with an ADC which was less prescriptive than Version 1.1, and a Local Area Plan which now included the land in the Residential Precinct.
2. The application conflicted with the Planning Scheme in a number of respects. The inclusion of the site in the Residential Precinct of the Local Area Plan reinforced the correctness of the refusal.
3. The sign would not complement the design of the motel, would dominate the streetscape of the locality, and would not be compatible with signage on adjoining sites. It would not complement the local character of the area.
4. A sign on the site would also be inconsistent with the preferred future development pattern of the Local Area Plan, and the desired residential character of Precinct 2. It could not be described as a "low intensity commercial use".
5. The application conflicted with the applicable Codes and the Local Area Plan and there were no grounds to warrant approval despite the conflict.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.