Taylor V Pine Rivers Shire Council & Ors [2006] QPEC 65

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Taylor v Pine Rivers Shire Council & Ors [2006] QPEC 065 PARTIES: DEANNE TAYLOR Appellant V PINE RIVERS SHIRE COUNCIL Respondent And JUDITH ANN BRADLEY First Co-Respondent And PENELOPE MARSH Second Co-Respondent FILE NO/S: BD 3002 of 2004 DIVISION: Appellate PROCEEDING: Appeal by applicant against refusal of her development application ORIGINATING COURT: Brisbane DELIVERED ON: 30 June, 2006 DELIVERED AT: Brisbane HEARING DATE: 2, 3, 5 May 2006 followed by written submissions to 1 June 2006 JUDGE: Judge Robin, QC ORDER: CATCHWORDS: Integrated Planning Act 1997 – appeal against Council’s refusal of development application for material change of use of future urban site to home industry – application considered necessary because of view taken that existing as-of-right parking entitlements for up to four heavy vehicles were available only where the physical acts of manoeuvring vehicles were carried out by persons resident on the site – that view held erroneous – amenity impacts (principally noise) would be the same whether the application were 2 approved or not – noise impacts acceptable given current conditions, but were predicted to cause sleep disturbance (if not sleep awakening) if a developer-subdivider who recently purchased the adjoining land proceeded with a proposal to locate new residences close to the boundary rather than further away – court concerned about entrenching the “established” use for the long term when the area was destined to become “Residential A” COUNSEL: Appellant represented by her husband, Mr R Taylor Mr Skoien for the Respondent Second Co-Respondent self-represented SOLICITORS: Appellant self-represented at hearing, previously represented by Paul Pattison R D Forbes, Shire Solicitor, for the Council Second Co-Respondent self-represented [1] Ms Taylor brings an applicant’s appeal under section 4.1.27(1)(a) of the Integrated Planning Act 1997 (IPA) against the Council’s refusal of an application for a material change of use of her property at 119 Todds Road, Lawnton (lot 24 on RP 108592), which contains 1.0522 hectares, according to her development application which bears a stamp denoting receipt apparently on 28 November 2003. The form 1 IDAS development application records the existing use of the land as residential, the proposal as “home industry, domestic storage and recreation”. The long narrow site contains a new detached house located towards Todds Road; Mr Buchanan’s town planning report accompanying the application says, accurately enough, that it “is very flat and drains to Todds Gully, which is situated at the rear”. The adjoining properties on the same (southern) side of Todds Road, number 117 to the east and (with a house set further back) number 121 to the west are similar in those, and other respects, such as their inclusion (with neighbouring properties on the southern side of Todds Road) in the Future Urban Zone under the relevant transitional planning scheme, a copy of which is exhibit 4: Planning Schedule Shire of Pine Rivers. The first page reveals that it is “The Consolidated Planning Scheme for the Shire of Pine Rivers approved by the Governor in Council on 7 May 1998”. The scheme was originally so approved on 12 May 1988. There have been amendments from time to time. 3 [2] Land to the north of Todds Road, like land considerably further to the east on the southern side and further to the west, particularly in Isis Road, is zoned Residential A, which appears likely to constitute the planning future of the site and all Future Urban land in the vicinity. A proposal to designate land in the general area Special Residential had all of the owners (including the appellant) up in arms, protesting that they wished to preserve the sub-division potential of their properties. The Council yielded. Neighbours’ responses to the proposed use [3] Ms Taylor’s immediate plans for her property (which I do not regard as inconsistent with her joining in the above-mentioned protest) have been another source of consternation to other owners in the area. One of the submissions attracted during the impact assessment process that occurred in relation to the proposed material change of use (a significant one in my opinion) came from the eastern neighbours at 117 Todds Road; “As the owners and long term permanent residents of the property at 117 Todds Road Lawnton we wish to make the following submission on the above development application: Following discussions with the applicant and perusal of the application documentation, as occupants of the closest residence to the proposed development we unequivocally support the application. The Taylors are a caring hard-working couple looking to raise a young family in a low density residential environment. We have noticed no increase in objectionable noise or other detrimental effect resulting directly from their use of the property. The Taylors are highly considerate in the use of their vehicles. The noise from vehicles arriving at and leaving the property is unnoticeable compared to base level traffic noise emanating from the street. Todds Road is a 60khr link road between Gympie Road and the developing areas of Joyner and Warner. The Taylors quiet, well maintained, slow moving vehicles are no match noise wise for the morning and afternoon procession of tradesmen vehicles and trailers, cement and delivery trucks, truck driving school vehicles, high exhaust note vehicles and motor bikes… not to mention the morning chorus of Crows and Cockatoos. In summary, the application is supported without reservation. Yours sincerely 4 Keith & Dianne Hansen” [4] Part D of the Appeal Book prepared by the Council contains a couple of dozen adverse submissions (some from couples) in very different vein, and a petition with some 33 signatures making “formal objection to the rezoning of the above property to Home Industry”. The submitters included Ms Bradley, the first co-respondent, who withdrew from participation at the appeal, and the second co-respondent, Ms Marsh, who has stayed the distance. She represented herself at the hearing and gave evidence. The longest submission came from Ms Figg, the owner of 121 Todds Road. It runs to 28 pages. [5] It is important to note that Ms Taylor and her husband (who presented the appeal on her behalf, on the withdrawal of her solicitor on the record who, presumably with the assistance of Mr Buchanan, had attended to preparation to the point of hearing) have had no opportunity to test Ms Figg’s assertions, just as the Council has not tested the Hansens’. She says she purchased no 121 in June 2001, a couple of years before the Taylors came on the scene. Although concerned to preserve her potential to subdivide, her immediate intention was to be to run her horses there. She became hostile to Mr Taylor, accusing him of deriving enjoyment from panicking the horses by noises associated with heavy equipment on number 119. There is complaint about “building waste, dust and driveway material, noise, smoke, fumes, stormwater and chemical nuisance”, of which only noise (the subject of a detailed submission with the following subheadings: Loud banging Loud beeping Engine noise Brake noise and compression brake noise) has attracted the support of the Council or been the subject of any evidence, expert or otherwise, before the court. There is a section entitled “Other behaviour” complaining of aggressive, threatening or intimidating behaviour by Mr Taylor 5 towards Ms Figg and her dogs and horses, also towards a couple of other women. The submission concludes: “On weekends and public holidays, R. & D. Taylor and several other people drive a rally car/dune buggy around the property at high speeds, doing ‘donuts’ and related activities that are inappropriate in a residential area. This activity sends clouds of dust over my property and frightens my horses witless. Once again R. Taylor’s response at these times indicates he finds this amusing. While perhaps not directly related to the development application, I believe this contextual information sheds light on how the owner is likely to behave if Council were to approve the development application, given the seeming disregard the owner has for community standards of acceptable behaviour. Monitoring and enforcement Given the practices of the owner over the last 12 months while this activity has been unlawful, I question the likelihood of the owner adhering to any conditions that Council were to prescribe in approving the development application. I ask Council to consider if it is prepared to monitor and enforce the observance of the conditions on an ongoing basis if it approves the development application. Conclusion In summary, Council should refuse the development application as it conflicts with Council’s Strategic Plan and Development Control Plan and Town Planning Scheme on a number of separate bases, and there are not sufficient planning grounds to justify approving the application despite this conflict. In addition, the use of the property is industrial rather than residential in nature, and this use is inappropriate, out of place and incompatible with the dominant urban use and residential amenity of the Todds Road area. Approval of the development application would adversely affect the future development potential and future subdivision patterns of the surrounding properties, and in particular, any future subdivision of my property. Approval of the development application would result in substantial financial costs to me, in the devaluation of my property, in mitigating the unacceptable visual, environmental and noise disturbance, and in reducing the risk of injury to my valuable livestock. In addition, the development application is fundamentally flawed as it fails to address the unreasonable adverse impact the operation of the heavy vehicle business from the property has upon the amenity and character of the surrounding residential area and of my property.

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