Submitter appeal by long-established Church (which operated
a large licensed function hall and an out-of-ours school) against
approval of a waste transfer station on a site separated by a 50
metre wide mutual neighbour – after establishment whole area
allocated to a future industry precinct – whether earlier
approval of Church gave it precedence and protection against
allegedly unacceptable impacts – traffic, ecological, noise,
odour, dust, lighting and social impacts of proposal considered
– concern about run-off and waterway corridor (Bullockhead
Creek) nearby – expert evidence taken from members of the
congregation – no conflict with Brisbane City Plan 2000 or
South East Queensland Regional Plan – where use applied for
already commenced without approval before development application
made and continued – where no application to start use before
determination of appeal
Facts: This was a submitter appeal against
Council's approval of a development application for a material
change of use for a waste transfer station on a two hectare site at
24 and 32 Bandara Street, Richlands.
The waste transfer station had been operating from 24 Bandara
Street since 2006. The development application had been made in
September 2008, following the receipt of advice from Council, in
order to "regularise" the use. After lodgement of the
development application, the Co-Respondent purchased 32 Bandara
Street, and included it in the development application.
The Serbian Orthodox Church operated from premises at 48 Bandara
Street, Richlands. The Church had been operating on that site since
the mid 1970s under a 1969 approval.
Under City Plan 2000, both the subject site and
the Church site were located within the Future Industry Area.
The grounds of appeal were that the proposed development:
would compromise achievement of the desired environmental
outcomes for the planning scheme area;
conflicted with the South East Queensland Regional Plan
2009 – 2031;
conflicted with Brisbane City Plan 2000;
would adversely impact the environment;
conflicted with the planning precedence made by Council in
approving development of the Church site in 1969; and
would adversely impact the safety of road users.
Decision: The Court held, in dismissing the
Notwithstanding the Appellant's criticism of the roads in
proximity to the site, all utility and transport infrastructure
required for the project was in place. The roadworks situation
would be improved by contributions of works and money required of
While the Church community and local people may well consider
there was historical, architectural, social or cultural interest
associated with the Appellant's use and buildings, there was no
official recognition of these, nor was there anything to
particularly distinguish what happened in Bandara Street from what
happened in hundreds of similar centres throughout the city.
The proposal would have no adverse impact on Bullockhead Creek,
given the design of it and the evidence established that the site
had no bushland, flora or fauna or scenic value.
Compatibility did not require that a proposal facilitate,
support or enhance existing uses, which rarely would be the effect
of any industrial development which was the kind of development
envisaged by City Plan for the location. Compatibility required
that the existing uses may continue, notwithstanding the impacts of
an industrial proposal, unless the impacts were of a kind or scale
to render them unacceptable in context. The evidence was all in
favour of the Co-Respondent and was, in any event, persuasive.
For all manner of reasons it was unrealistic to expect traffic
arrangements to be Utopian or perfect. Implementation of the
proposal would not make the traffic situation appreciably worse
than if the Co-Respondent did not operate from the site at all. The
site's calculated contribution to traffic flows in Bandara
Street had been and would be modest, even if expansion doubled
As to the fact that the use had been operating on the site
absent the requisite development approval for about six years, the
Co-Respondent derived no advantage from having "got its foot
in the door", but nor was it to be disadvantaged or penalised
in the Council's or the Court's assessment of the merits of
the application because it may have been committing a development
offence (something not established). The development application
was to be considered simply on its merits.
It was not considered that the South East Queensland Regional
Plan told against the application.
The proposal would have impacts which in the precinct shared by
the site and the church were shown to be acceptable in their
context by the evidence of experts in ecological and wider
environmental matters, traffic and also noise, dust, odour and
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about your specific circumstances.
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