(Jones DCJ - 28 May 2013)
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Appeal against decision to refuse application for a development permit for a material change of use – land located in Town Zone – Rural Residential Precinct – land used for residential purposes and storage and supply of building materials – whether use of land conflicted with planning scheme – whether sufficient grounds existed to warrant approval despite any conflict – whether noise was capable of being dealt with by appropriate conditions.
Sustainable Planning Act 2009 (Qld), s 493(1)
Facts: This was an appeal against Council's decision to refuse a development application for a development permit for a material change of use for a bulk store (building materials), on land located at 8 Campbell Ford Drive, Emerald.
Constructed on the land was a large house, swimming pool, gardens and a 278m2 shed.
The use of the shed was at the heart of the dispute. At the time of the hearing of the appeal, the shed was being used by the Appellant for both private and commercial purposes. In the event that the appeal was successful, the whole of the shed and its surrounding curtilage could lawfully be used for commercial purposes.
The commercial use of the shed involved the receipt, storage and distribution of building materials associated with the building business operated by the Appellant and her husband (such as tiles, doors, underlay / carpet, lighting, shelving, timber joinery and other hardware items). The building materials were delivered once a week for timber items and less frequently for other materials. An employee of the Appellant attended the site to manage the arrival, unloading and loading of materials, which occasionally required the use of a forklift.
The development application was impact assessable and required public notification. No adverse submissions were made.
The substantive issues in the appeal were:
- whether the proposed use was in conflict with the Emerald Shire Planning Scheme;
- if so, whether there were sufficient grounds to justify approval despite the conflict; and
- in the event that the proposal was found not to be in conflict with the planning scheme, whether the proposal be approved on a merits assessment basis.
The subject site was located within the Town Zone – Rural Residential Precinct under the planning scheme. The land to the immediate east was contained in the Light Industrial Precinct, the land to the south within the Rural Residential Precinct and to the north within the Residential Precinct.
Council alleged that:
- the proposal conflicted with the Desired Environmental Outcomes, the overall outcomes of the Town Zone and the Town – Rural Residential Precinct, the Specific Outcomes of the Town Zone Code and the Overall Outcomes and Specific Outcomes of the Development Standards Code under the planning scheme;
- the proposal would have a negative economic impact on Emerald's industrial areas and would set an undesirable precedent of encouraging industrial development to occur within Emerald's rural residential areas;
- Council had approved a number of industrial subdivisions which could meet market demand;
- the development would impact on the amenity of the Town Zone – Rural Residential Precinct;
- there were no sufficient grounds to overcome the conflicts with the planning scheme;
- the proposal would have unacceptable visual amenity impacts; and
- the proposal would have unacceptable amenity impacts in terms of noise.
The Respondent also submitted that if it were found that the proposed use was not in conflict with the planning scheme then on a merits based assessment of the amenity impacts on the surrounding land and residents, the appeal ought to be dismissed.
The Appellant denied that there was a conflict with the planning scheme but said that if there was, then there were sufficient grounds to approve the proposal despite it.
Decision: The Court held, in allowing the appeal, that:
- It was uncontroversial that the planning scheme must be construed as a whole and in a broad, practical and common sense way which best achieved the apparent purpose and object of the scheme.
- There were a number of features of the subject land which distinguished it in a material way from the other rural residential lots making up the estate. Having regard to the unique principal characteristics of the subject site, approval of the proposed use would not establish an undesirable precedent.
- The overall outcomes sought for the Rural – Residential Precinct were that it was to be "predominantly" used for housing and that commercial and industrial uses were "generally" not to be located within the Precinct provided no warrant, in the assessment of any development application, for a decision maker to proceed on the basis that there was an underlying presumption that the application ought to be refused.
- The proposed use was not in conflict with the planning scheme in any material way and the reasonable expectations of residents would not be unacceptably compromised.
- Noise associated with the use was not of itself a sufficient reason to refuse the appeal. On balance, the operational impacts and the visual impacts were not, of themselves or together with noise, sufficient to refuse the appeal.
- The negative impact on amenity could be addressed by the imposition of an appropriate suite of conditions.
- The appeal should not be refused on a merit based assessment.
- The appeal should be allowed subject to the imposition of appropriate conditions.
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