Material change of use – Transport Terminal (Horse Transfer Depot) – amenity – compliance with noise standards - whether conflict with Planning Scheme - grounds
Facts: This was an appeal regarding a development application for a material change of use for a Transport Terminal (Horse Transport Depot) and caretaker's residence on land at Nerang. The proposed facility was to be used to deliver, and temporarily stable, horses to then be transferred to their ultimate destination.
The subject land was located on Beaudesert-Nerang Road which carried approximately 11,700 vehicles per day. It was contained within a pocket of rural residential development within the Park Living Domain. The majority of lots surrounding the land were currently used for low intensity rural-residential uses including hobby farming and the keeping of horses. Adjoining the land to the west was large property containing a number of horse stables and paddocks and a private dressage facility. The eastern property also had yards for keeping horses. Further to the east was a former tourist farm which had recently been purchased by the Council with the intention of creating a community facility. It was presently used for the keeping of horses.
The Council had originally refused the application, but at the hearing of the appeal was supportive of it. A draft conditions package had been prepared which included restrictions upon the hours of operation for horse transport delivery; a limit of a maximum eight truck movements per day; a riparian covenant area; an approved site based management plan; noise attenuation measures; landscaping and stormwater management.
The issues in dispute had narrowed and were identified as whether approval would conflict with the Planning Scheme upon the basis identified by the co-respondent's town planner in a joint expert report; and if so, whether there was sufficient grounds to justify approval of the application. The alleged conflicts with the Scheme involved considerations of impacts upon amenity and character, and whether the proposed use was a commercial use which serviced urban populations. The parties' acoustic experts had agreed that noise levels would be within normally acceptable criteria.
The intent for the Park Living Domain included the retention of high amenity for residential activity and, protecting areas from encroachment by urban activity including "commercial uses intended to service urban populations". The Court also had regard to higher order provisions of the Planning Scheme.
Both the proponent and Council agreed that the identification of the use as undesirable or inappropriate in the Domain resulted in a conflict with the Planning Scheme.
Decision: The Court held, in dismissing the appeal, that:
- The proposed conditions would not involve unreasonable enforcement demands upon Council. One must proceed on the assumption that conditions will be observed. Lifnex Pty Ltd v Ipswich City Council (1998) QPELR 517 referred to.
- The Court rejected the suggestion that the proposed use was compatible with other existing uses in the Domain.
- The proposed use was not a commercial use intended to service urban populations.
- The proposed use was at odds with the character of the surrounding area, did not represent an opportunity for low density residential activity within a semi-rural landscape, and did not maintain the existing high amenity of the area.
- Residents of the area still enjoyed a high level of amenity despite some compromise from the traffic noise on Beaudesert-Nerang Road.
- Noise levels would be abated to fall within acceptable limits, landscaping and rehabilitation would positively add to the environmental landscape, and the proposed acoustic wall would have little if any negative impact on the visual amenity of the area.
- The aspects of the proposal that would adversely change the character and amenity of the area was the nature of the use, the size of vehicles, attendant activities, hours of operation and the constancy of the use. Noises would be heard despite compliance. The use was entirely inappropriate in the Domain and conflicted with the intent of the Domain.
- For the same reasons the proposal conflicted with the Park Living Domain Code and the Park Living Land Use Theme.
- There were not sufficient grounds to justify approval despite the conflict.
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