Material change of use – Transport Terminal (Horse
Transfer Depot) – amenity – compliance with noise
standards - whether conflict with Planning Scheme -
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
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
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
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
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
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
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