Robin QC DCJ
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 appeal, that:
- 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 the Co-Respondent.
- 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 it.
- 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 lighting.
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.
