(Preston, A DCJ - 11 April 2014)
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Planning and Environment – Applicant appeal against refusal of development application for development permit – material change of use – use for outdoor sports, recreation and entertainment and use for camping ground – traffic generated by uses – proposed limits on customer vehicle numbers – access by single lane rural road with creek crossings – proposed works to upgrade road at crossings and improve signage – whether adverse impacts by traffic on road safety and amenity of neighbours – intersection of access road and State controlled highway – whether adverse impacts on road safety by right run from highway to access road – finality, certainty and enforceability of conditions of approval – whether decision to approve would conflict with planning scheme – whether sufficient grounds to justify a decision to approve despite the conflict
Facts: This was an appeal against the Respondent's (Council) refusal of a development application to establish an outdoor sports, recreation and entertainment facility, comprising an adventure four wheel drive park and camping ground in relation to land at Innisplain, near Beaudesert.
On 12 June 2012, the Appellant purchased the land and commenced using the land as an adventure park. The Council contended that the Appellant's use of the land was unlawful given that it was situated in the Rural Zone, Countryside Precinct under the Beaudesert Shire Planning Scheme 2007 (Planning Scheme). Under the Planning Scheme, a use involving outdoor sports, recreation and entertainment or camping was assessable development and therefore required a development permit under the Sustainable Planning Act 2009 (SPA).
On 26 July 2012, the Council issued a show cause notice under s588 of SPA. The Appellant accepted that a development permit would be required for a material change of use. It was the Appellant's position that the development application would only involve a material increase in the intensity or scale of the use from that of the existing use. The Appellant relied upon the previous owners' lawful use of part of the land for a camping, education and recreational facility which had operated since 1974, and did not amount to a new use of the land.
On 30 August 2012, the Appellant lodged a development application for material change of use over the land. The proposed uses included, amongst other things, short term camping accommodation, four wheel drive activities and competitions, and other recreational activities. The development application was impact-assessable and attracted 132 submissions during public notification.
On 28 May 2013, Council refused the Appellant's development application. All of the concurrence agencies to the application had recommended that the development be approved subject to conditions.
On 26 June 2013, the Appellant appealed the decision of the Council to refuse the development application. Two of the submitters, who owned land near to the development site, elected to become Co-Respondents to the appeal (Mr Halpin and Mr Barbagallo).
During the course of the appeal, the issues in the appeal were narrowed by election of the Council and the Co-Respondents. The primary issues that remained in dispute at the hearing of the appeal concerned whether the development was in conflict with Planning Scheme on traffic engineering and town planning grounds.
In particular, it was contended that the increased traffic by the proposed development would increase risks and cause nuisance to people in the locality, would have unacceptable impacts on the rural character and amenity of the locality, and was not be consistent with reasonable expectations of residents in the locality
During the course of the hearing, the Appellant amended the original application by way of a minor change application to reduce the scope and intensity of the development by limiting the number of vehicles that could access the land.
The Council in response to amended application changed its position and advised that it could support the granting of the development permit subject to conditions.
Mr Barbagallo, in turn, agreed with the changes and did not object to the approval of the development application with the additional conditions.
Mr Halpin maintained the position that the development remained in conflict with the Planning Scheme and that the traffic generated would still have unacceptable impacts on the road system, in particular the Mt Lindsay Highway and Tamrookum Creek Road, and impact on the amenity of the local area.
Decision: The Court held, in allowing the appeal:
- The proposed development, with the number of vehicles per day capped at 20, would not lead to unacceptable impacts on the performance or safety of the intersection or on right turns off the Mt Lindesay Highway.
- The proposed conditions of approval on the issues of bushfire, flooding, water quality, as well as acoustic and air quality were sufficient to ameliorate the adverse impacts of the development.
- The proposed development:
- was of a scale, form and intensity appropriate for the locality;
- was consistent with the reasonable expectations of residents in the rural zone;
- was compatible with existing and adjoining rural uses;
- would not have any unacceptable adverse impacts;
- would minimise risk, nuisance and impacts to people and property in the surrounding area; and
- would not have any unacceptable adverse impacts on the existing rural character, sense of place, or amenity of the surrounding area.
- The proposed development would not cause unacceptable impacts on the performance or safety of Tamrookum Creek Road.
- It was appropriate for the court to set aside the Council's decision refusing the application and approve all of the application subject to conditions.
- The Appellant had discharged the onus of establishing that the appeal should be upheld and that the court should set aside the Council's decision appealed against and replace it with a decision to approve subject to the conditions.
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