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. It also fails to address the unreasonable nuisance the operation of the heavy vehicle business from the property causes in the form of noise, smoke, fumes, chemicals, building waste, stormwater, dust and 6

driveway material, and the environmental impact the heavy vehicle business has on the native wildlife in this area. In addition, the locations of the existing and planned industrial sheds fail to meet Council’s boundary clearance standards and further adversely impact the amenity of my property. The operation of the heavy vehicle business from the property also poses a risk to the safety of pedestrians and motor vehicles on Todds Road.”

(I accept that extraneous activities with concerning impacts may induce the court to

refuse a development application that might otherwise succeed: Reynolds v

Redlands Shire Council [2001] QPELR 184 and that the prospect that conditions of

approval will not be adhered to may have a like consequence: Daniels v Brisbane

City Council [2006] QPELR 13).

[6] Mr Skoien, appearing for the Council, did not rely on such material, although placing it before the court, in line with standard practice. At page 151 of the transcript, in the course of discussion about sleep disturbance and sleep awakening, he submitted that an inference ought to be drawn that Ms Figg sold her property in no small measure due to “…. the Taylors’ operation next door”. He noted that the Hansens were prepared to put up with it, saying in relation to their attitude at 193: “it may say lots of things … I am not sure what sort of relationship exists between the Hansens and the Taylors … they might be friends”. It is not possible or appropriate for the court to guess where the truth lies within the range between the Hansens’ and Ms Figg’s assessments.

[7] I thought Ms Marsh was frank and fair in her evidence. She resides on the other side of Todds Road, at number 124, relatively remotely. I accept her evidence. She professed no expertise, rather confusion about how “heavy vehicles” should be counted where there are separate components, such as trucks, trailers and bobcats and the like, which may be amalgamated in a single assembly. She is troubled about “the amount of equipment that Mr Taylor has or is trying to seek approval for”. An early riser herself, given the demands of her work, she is aware of trucks “warming up” in the early morning - she says about the same time summer or winter. She says that “there is not one heavy vehicle leaving the property but four”; these turn west along Todds Road proceeding to Youngs Crossing Road or via Isis Road to Francis Road, which leads to Gympie Road and represents the appropriate route, rather than 7

travelling easterly along Todds Road past community facilities used by children, including a pre-school. It seems that all of the Taylor vehicles leave in the early morning (maybe as early as 5am on occasions) travelling in a westerly direction along Todds Road. Ms Marsh’s own evidence of her impressions is more than corroborated by Mr Taylor’s own. She responded to suggestions by Mr Taylor in cross examination that she could not be sure she was hearing his trucks: “So you only hear it but you know it by sound?—I will assume that it is your truck because it’s something that’s been … then it drives down the road and comes past my property. So I would assume that it is one of yours that has been warmed up. Okay?—I’m not saying it happens every morning. I am saying that more frequently than not— Yeah?------one of - at least one---- Mmm? ------of you trucks that leaves your property goes past my property. But you don’t look out the window to see?—No, I don’t. I don’t have that much of an obsession with your case. HIS HONOUR: So, you’re saying you hear a truck warming up – how long does that happen for?—Generally, anything from half a minute to may be three minutes---- All right?------and it does vary and it’s very difficult because there are a number of them so is there one going or are three going at the same time? Like I say it’s not an obsession for me, your Honour. It’s a concern for me. Do you notice other trucks? Like, concrete trucks are coming in?— Yes, I do. And are you aware of - well, particularly a concrete truck being garaged somewhere down around number 95 and-----? –95 is quite a long, way away from me, your Honour. I know but are you aware of a concrete truck being garaged there? – No. I know there’s a pink bin truck which is on one of the side streets off Isis Road and I’m only aware of that because he goes back the other way past my property to leave. (Transcript, 132-33)

[8] One of Ms Marsh’s concerns is the preservation of koalas in the area and their

habitat. She could not suggest that the Taylors had done any harm in that regard or

that their activities present any particular threat. At page 127 she acknowledged her

concern about the whole area going to 600 square metre blocks, which would

appear to represent not only the economic imperative but also the Council’s

intentions. Ms Marsh agreed she was expressing concern for immediate neighbours 8

more than for herself, agreeing that “it’s not the sort of neighbourhood where you

expect to find heavy equipment stored and moving about” (126). She deserves

credit for her persistence and sense of responsibility to the local community. She

told the court that, although everyone else has withdrawn from the fray, many are

following this appeal with interest and awaiting its outcome with concern. I have

made a point of setting out at considerable length statements reflecting the concerns

held in certain quarters in the hope of providing assurance that they have been taken

seriously by the court.

A developer becomes the new western neighbour

[9] For whatever reason, Ms Figg has sold her property to a developer, which is now the owner. It is likely soon to become the owner of a similar property immediately to the west, 123 Todds Road and of another abutting it on the rear boundary, having a frontage to Isis Road.

[10] The situation now is that the Taylors’ eastern neighbours support the way in which they have been using number 119 and the proposal that this continue, while the western neighbour, whose attitude could not have been more different, has departed, assuming that conclusion is open from completion of a purchase by Island Ferries Pty Ltd on 17 December 2004. A month earlier, if Mr Finglas’ affidavit is correct, Island Ferries gave instructions for preparation of “an application for an 11-lot subdivision” eventually lodged as proposal for 10 lots (one of which is park) all abutting and likely to accommodate houses, like Ms Figg’s, very close to the boundary of the Taylor land. One lot immediately north of the existing house has been lost to a stub road to facilitate connectivity as more of the area is sub-divided. The Council is yet to determine this latest development application. The proposed “12m wide new half width road” is along the western boundary, being the rational design assuming that the other “half width road” will be provided on the more recently acquired property further west. The consequence is that Island Ferries is planning to locate eight new residences as close as possible to the heavy vehicle 9

related activities on the Taylor land, and in particular to the decomposed granite driveway used by the heavy vehicles, which is hard against the boundary. It would not be expected that Island Ferries would be inclined to locate a new road along the eastern boundary of lot 121, which would attenuate noise amenity impacts on its own and also facilitate use of the separation space to provide other means of attenuation; it would also have the consequence of giving the Taylors half a road if and when the time comes for them to subdivide and indirectly facilitate (at the least) provision of road access for the anticipated 600 square metre allotments on number 125.

[11] This becomes a kind of “reverse amenity” scenario. Island Ferries was in no way committed to its purchase, still less its development proposal, until after it had the means of knowledge (if not knowledge) of the Taylors’ use of their land. It is proposing to introduce eight new households to what is said to be a situation akin to continuing nuisance. It is the Council’s case, even before Island Ferries’ application for material change of use (“subdivision”) is approved (even before it was made), that anticipated conflicts from incompatible land uses should be resolved by stopping or limiting the Taylors’ activities which they have pursued at number 119 since mid-2003. To the extent that those activities are lawful, the Council is in the unenviable position of favouring a corporate developer’s interests over those of an adjoining owner who has much more than a profit-making proposal – who has an established lawful use. It is easy to understand why Mr Taylor describes this as unfair.

[12] Part of the Taylors’ complaint is that the elected Councillors have declined to accept the recommendation of relevant Council officer(s) that Ms Taylor’s development application be approved. That recommendation was supported by reasons in the document at page C52ff in exhibit 10. The Councillors gave no reasons other than the grounds set out in the decision notice dated 23 July 2004: “(A) The proposal will have a detrimental impact on the surrounding vicinity with respect to amenity, and specifically noise. (B) The proposal conflicts with the relevant strategic plan and planning schedule and there are insufficient planning grounds on which to justify the approval despite the conflict.”

The material suggests Councillors visited the location. They doubtless took

into account the sensible, reasoned, well-articulated submissions and 10

perhaps less formal representations to like effect. They may well have been

giving effect to the “will of the majority”. Needless to say, that is not on the

basis on which development applications under the IPA are approached. If

it were, precious few development proposals would be allowed to proceed.

Experience suggests that the ordinary person would like to be able to

achieve maximum development of his or her own property, with sites all

around them remaining as they are. (In the case of the Taylors’ use of 119

Todds Road, the wish would be to turn back the clock to 2002.) The

Councillors were doubtless conscious that the likely future development of

the area as residential A would exacerbate, well beyond the current level,

the level of unhappiness flowing from co-existence of uses considered to be

incompatible.

The planning arguments

[13] I think the Council have acted with an eye to the future. The issues are to be resolved, not by consulting the will of the majority, but according to law, consistently with the relevant planning instruments. As it happens, the Council’s planning arguments have been provided by an expert planner bought in for the appeal, Mr Brown. His report, exhibit 2 is typical of his usual skilful work. These are his conclusions: “A. The proposal conflicts with the Strategic Plan and the Central Pine DCP and in my opinion there are not sufficient grounds to approve the Application despite the conflict. B. In terms of the existing surrounding land uses: A. Upon the advice of Mr Kamst the noise impact of truck movements during the early morning would be likely to result in significant sleep disturbance to residents on adjacent properties; B. Heavy vehicle movements associated with the proposed use would be outside the reasonable expectations of residents in this rural residential locality. C. The Site is part of a larger area intended to be developed for suburban residential purposes. 11

D. The proposed development will entrench and intensify a non- residential use on the Site contrary to – I. The intent of the Urban Areas provisions of the Strategic Plan; II. The provisions relating to Precinct R7 of the DCP; III. The intent of the Future Urban Zone; and IV. The provisions of the draft IPA Planning Scheme. E. The logical, desired and expected future subdivision of this larger area (including the Site) can be effected using a number of alternative layouts having regard to existing physical constraints. F. Upon the advice of Mr Kamst the noise impact of truck movements during the early morning would be likely to be significant with respect to both sleep awakening and sleep disturbance to future residents if the adjoining land is subdivided into further residential allotments. G. The proposal impacts adversely upon existing and future likely residential amenity of the locality and is inconsistent with the overall planning for the locality. Residential amenity is likely to be adversely impacted by visual amenity impacts, and noise related impacts. H. The proposal is out of character with the existing and intended development of the locality. I. The proposal is likely to frustrate the orderly planning and development of the locality for suburban residential purposes.”

[14] The appellant’s planning consultant, Mr Buchanan contends that rejection of the proposal would remove “the ability of Respondent to enforce any conditions relating to amenity as the Appellant will revert to their lawful use rights under the requirements for Heavy Vehicle Parking”, in his conclusion summarising his general argument: a) “The proposed Home Industry (for the parking of up to four heavy vehicles) will not increase the number of heavy vehicles that can be parked on the site, or the number of heavy vehicle movements to and from the site. b) The proposed Home Industry use will permit a person who does not reside on the site to collect and return heavy vehicles and allow for basic administration tasks associated with the Appellant’s earthmoving business, such as book keeping, to be performed within the existing detached house. The regulation of these activities through a development permit provides certainty for the Respondent to ensure compliance with their requirements and reduce the need for ongoing monitoring of people on the site and the movement of heavy vehicles. c) The approval of the Home Industry will remove the need for double handling of heavy vehicles and the potential parking of heavy vehicles in the street to achieve compliance with the 12

Transitional Planning Scheme requirements for Heavy Vehicle Parking. d) The proposal to extend a Domestic Storage and Recreation Structure on a residential property is wholly consistent with the intent of the Strategic Plan, Transitional Planning Scheme and Central Pine Development Control Plan. e) Council’s Senior Environmental Health Officer conducted a noise assessment of the use on 28 and 29 January 2004. From the readings taken by Council’s officer, he concluded that “taking into account the general and noise emission criteria, the noise from the operation of vehicles is not considered sufficiently intrusive.” f) The proposal has been assessed by experienced senior planning professionals employed by the Respondent, who recommended to the Strategic and Planning Committee that the application be approved subject to conditions. This recommendation was defeated by a narrow margin when put to a vote of elected representatives in the Respondent’s General Meeting of Council. g) The dismissal of this appeal will not remove heavy vehicles from the site, nor will it force the Appellant to relocate from the site.”

Mr Skoien’s objection to 10(e) and other references to its subject matter

necessitated the calling of the officer, Mr Gorrie.

[15] Mr Buchanan had earlier, as part of his description of the development proposal

stated:

“The existing shed on the site has a gross floor area of 72sqm. The proposed 4.5m x 6.0m extension of this shed will take it to a total gross floor area of 99sqm, necessitating approval under the Scheme for a Domestic Storage and Recreation Structure. This structure also requires Impact Assessment in the Future Urban Zone and was submitted to be assessed concurrently with the proposed Home Industry. The proposed Home Industry component of the application would allow only very minor changes to the nature of Heavy Vehicle Parking that is permitted under the Transitional Planning Scheme. The primary change would allow for an employee of the Appellant to collect and return heavy vehicles to the site, rather than all heavy vehicles movements being restricted to persons resident in the detached house on the subject site or a contiguous allotment. There will be negligible difference between the proposed Home Industry and the conduct of Heavy Vehicle Parking on the site. The process of an employee driving to the site in a private vehicle and collecting a heavy vehicle could in fact create less disturbance on the amenity of the area than a lawful alternative that would involve the 13

double handling of heavy vehicles and possible exchanges of heavy vehicles and private vehicles within the street. While a resident of the site or a contiguous allotment could lawfully drive a heavy vehicle onto the street for an employee to collect, this will lead to a decrease in road safety close to a bend in Todds Road and involve more heavy vehicle movements than a single trip out of the site in the morning and a single trip returning in the afternoon.”

[16] If the planners are in dispute as to whether “intensification” of current use is proposed, I would prefer Mr Buchanan’s negative view. The contentious part of the application relates to “entrenching” of the heavy vehicle use. In that aspect, the development application should not have been necessary.

[17] Sympathy factors cannot control the outcome of a planning case. However, it is worth noting some of the Taylors’ history. Mr Taylor told the court (page 24) that for a couple of years he and/or his wife kept at a residential A property in the Shire (704 sqm) “a truck and a trailer and a single truck for two years and the reason for moving was just we thought we were probably pushing our luck in a res A area for that so we decided to move somewhere else so that we could have the required amount of trucks under the town planning scheme” (page 21): “When we initially went to buy the property we inquired to council in regards to heavy vehicle parking on the said property to have what sort of trucks. We were given information regarding to the heavy vehicle parking of future urban and were told that we could have up to four heavy vehicles. They also clarified what they described as a heavy vehicle, it can be a truck or a trailer or a truck on its own. As the truck--- Sorry, is a trailer a vehicle?—If it is split from the truck they class it as a vehicle, yes, under their scheme. But if it’s attached to the truck? – That’s classed as one. That’s only one vehicle?—Yes. So the number of vehicles might be fluctuating if you uncouple------?—If we – yeah, if we had – had four. ---- a trailer? The moment you do that you’ve got an extra vehicle? – Very true. You accept that? – Yes. Yes. We inquired about it. They – they gave us all the relevant information that we thought was required. On finding everything we needed to know we then proceeded to purchase the block. I don’t know if this matters but is the house in joint names?—No, it’s in a singular name. Okay?—Deanne Marie Taylor. So she should be treated as the owner, is that right? – Yes. The loan’s in joint names.”

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The planning instruments

[18] Use rights under the current planning scheme for appellant’s Future Urban zoned land are set out in the table of zones as follows:

Column 3A Column 3B Column 4 Column 5

Purposes for which Purposes for which Purposes for which Purposes for which premises may be premises may be premises may be premises may not be erected or used erected or used erected or used only erected or used without the consent without the consent with the consent of (Prohibited of Council of Council subject to Council (Permissible Development) (Permitted conditions Development) Development) (Permitted Development subject to conditions)

Attached flat Any purposes other Detached house than those referred Domestic storage to in Columns 3A, and recreation 3B or 5 structures (subject to the provisions of Clause 75(A) of Part 7) Estate sales office Heavy Vehicle Parking in accordance with Clause 66 of Part 7 Local utilities Park

[19] Clause 66 is: “(1) Premises shall not be erected or used for the purpose of heavy vehicle parking unless – (a) no vehicle is parked within six metres of any road unless otherwise approved by Council; (b) compliance with such requirements as the Council may impose to protect the amenity of the area, including but not limited to the following: (i) Location of the parking area with regard to the impact on adjoining residents and streetscape; (ii) Road classification and subsequent impacts with regard to residential amenity and safety; (iii) Road construction including paved thresholds, traffic calming devices and footpath crossings; their impact on manoeuvring; and possible damage by regular use by a heavy vehicle; (iv) Safety and movements with regard to manoeuvring of the vehicle into and from the site; 15

(v) Amenity with regard to landscaping requirements, hours of operation, visual impact, noise; and (vi) Whether the vehicle is loaded, and with what substance. (c) The garaging of the heavy vehicle/s is permissible subject to the structure not exceeding 4.0m in height to the eaves and a maximum roof pitch of 1.0m in height, the structure being constructed of suitable materials; and the colour of the structure aesthetically blending with the surrounding environment to the Shire Planner’s satisfaction. (d) Loaded vehicles are to be covered at all times, unless Council determines otherwise. The load shall not be noxious and hazardous, and no ancillary machinery be required including but not limited to refrigeration units. (e) Such premises obtain access from roads which, in the opinion of the Shire Engineer, are capable of supporting the axle loads as defined in the Main Roads Regulations 1987 generated by the heavy vehicle. (f) Such premises shall only be used for heavy vehicle parking by a person or his/her first consanguinity, who is resident in a detached house on the same allotment or an allotment contiguous with the site. (g) All heavy vehicles are to leave the site in forward gear. (h) Maintenance of the Heavy Vehicle/s is limited to minor servicing only. Minor servicing is defined as ‘changing oil and greasing, changing of tyres and the washing of the exterior of the vehicle (not degreasing).’ This specifically does not include degreasing, tune-ups, mechanical repairs, panelbeating, spray painting or any works requiring the use of a grinder. (2) Premises in the Residential A zone shall only be erected or used for the purpose of heavy vehicle parking where: (a) Such premises gain access from a road with a carriageway 7.5 metres or greater unless the heavy vehicle is less than 8 metres in length; and (b) Not more than one heavy vehicle is to be stored or parked on the site at any one time. (3) Premises in the Park Residential zone may not be erected or used for the purpose of heavy vehicle parking unless not more than two heavy vehicles are parked or stored on the site. (4) Premises in the Rural Residential zone shall not be erected or used for the purpose of heavy vehicle parking unless not more than four heavy vehicles are parked or stored on the site. (5) Premises in the Special Residential zone shall not be erected or used for the purpose of heavy vehicle parking unless not more than two heavy vehicles are parked or stored on the site. Length and number of vehicles permitted will reflect specific site constraints and the existing residential amenity of the locality. (6) Any development within a Future Urban zone, Future Rural Living zone, or Rural zone for the purpose of heavy vehicle parking which would but for the provisions of this clause be a 16

permitted development subject to conditions shall be deemed not to be a permitted development subject to conditions but a permissible development if it involves the parking or storing of more than four heavy vehicles on the site.”

[20] It might be noted that “Heavy Vehicle Parking where the vehicle is greater than 8m

in length and in accordance with clause 66” is a Column 4 use for Residential A

zoned land. In that zone, one of the Column 3A uses is “Heavy Vehicle Parking

where the vehicle is less than 8m in length and in accordance with Clause 66”.

There is the prospect, if Island Ferries’ development goes ahead, of heavy vehicle

parking in each of nine residential lots proposed immediately across the Taylors’

western boundary. The definition of “heavy vehicle parking” is:

“any premises not elsewhere herein defined for the storage or parking of heavy vehicles in association with a detached house, subject to the provisions of Clause 66 Division 16 Part 7.”

and “heavy vehicle” is defined to mean:

“ (i) any motor vehicle or trailer designed or adapted for the carriage of goods with a carrying capacity in excess of two tonnes; (ii) any motor vehicle equipped with a lifting or loading device capable of being used for the towing of a motor vehicle, and so used or intended to be so used; (iii) any articulated vehicle; (iv) any prime mover, being a motor vehicle especially designed for hauling a trailer with a carrying capacity greater than two tonnes; (v) any motor vehicle or trailer designed or adapted for earthmoving or road making, including vehicles designed or adapted for excavating materials, the term includes rollers, compressors and other equipment designed or adapted to be drawn behind a vehicle; (vi) any motor vehicle or trailer designed or adapted for agricultural purposes, including the clearing of land; the term includes ploughs and other equipment designed or adapted to be drawn behind a vehicle; (vii) any vessel whose length exceeds 9 metres; (viii) any crane; (ix) any omnibus; (x) any tracked vehicle or other tracked machine; whether or not such vehicle, vessel or equipment is in operating condition and complete;”

17

Have expectations been disappointed?

[21] The Council has adopted a resolution regarding what should be treated as a single “heavy vehicle”. Mr Taylor appears to have explained the effect of it accurately in his evidence in chief at page 21 of the transcript, set out above.

[22] It might be observed that the Taylors did not assert there was any formal written advice from the Council regarding their use rights. I would infer that Council staff, in a helpful spirit, gave advice of the kind described over the counter, so to speak. Mr Taylor faced no challenge in respect of that evidence. It does not appear that the planning instruments were misrepresented to him in any way. Even if they have been, I think it doubtful in the extreme that any use rights could be asserted on the basis of some kind of estoppel, Council’s right and duty being to enforce its planning instruments.

[23] The Taylors’ activities at 119 Todds Road generated complaints from the outset. They operate excavators and bobcats; they have trucks and trailers large enough to transport them to job sites. Although almost all new development these days will require use of such equipment, it seems that most people prefer not to be reminded of that; they do not want to see such equipment parked in their neighbourhoods. Negative rather than positive feelings appear to be engendered by the sight of it. I doubt whether this has always been the case, in the Shire of Pine Rivers or generally. Thus, Mr Brown asserts in relation to conflict with the Central Pine DCP that the proposal represents “an industrial form of development which is not intended by the DCP”: “58. The proposal does not maintain the character of existing (and intended) suburban residential development in Precinct R7. It conflicts with the surrounding existing and future character due to the nature of the proposed activity, its adverse visual impacts and its potential for adverse noise impacts. It is inconsistent with the character of Precinct R7, being a use having an industrial character.”

It was suggested for the Council that the use that should have been applied for was

Contractor’s Depot. 18

[24] In my opinion, the amenity expectations of residents of and newcomers to the area must be assessed in relation to what the planning instruments permit, in particular by way of heavy vehicle parking.

[25] The Council wrote to Ms Taylor on 13 August 2003 reporting complaints about “storage of three (3) heavy vehicles in conjunction with an earthmoving business.” The letter noted the definition of the lawful use (in the Future Urban zone) of “detached house” which did not “involve the parking or storage on or in the vicinity of the site of any heavy vehicle or more than one vehicle which is not a heavy vehicle”, drawing attention to Clause 66, especially 1(f). The letter went on to opine that a “home industry” was being conducted (“not lawful unless a person has Development Permit”): “You are therefore requested to cease the use of the premises for the purpose of ‘Home Industry’ within 7 days from the date of this letter, or conversely lodge a Development Application for a Material Change of Use. For your information the cost of the application will be $7,240.

It should be noted that the making of such an application does not guarantee that Council approval will be granted.

Should you decide to lodge an application, you might wish to engage a qualified town planning consultant to act on your behalf.”

The letter went on to threaten the issue of a “nuisance abatement notice” in

respect of noise.

[26] As will appear, I do not consider that the Taylors’ operation necessarily involves any non-compliance with Clause 66. While their activities may also be characterised as Home Industry, in my opinion it is indefensible for the Council to select that categorisation (or some other, such as Contractor’s Depot) for the purpose of closing the operation down, if it may lawfully be carried on without a formal change of use (formerly rezoning) to home industry. In some ways, home industry may be seen as less appropriate, as in respect of that zoning, the Table of Zones provides: Column 3A Column 3B Column 4 Column 5 Purposes for which Purposes for which Purposes for which Purposes for which premises may be premises may be premises may be premises may not be erected or used erected or used erected or used only erected or used without the consent without the consent of with the consent of (Prohibited 19

of Council Council subject to Council (Permissible Development) (Permitted conditions (Permitted Development) Development) Development subject to conditions) Attached Agriculture Any purposes Contractor’s flat Home other than depot Detached Industry those referred Heavy house to in Vehicle Display Columns 3A, Parking home 3B or 5 Estate sales office Home occupation Local utilities Park Domestic storage and recreation structures (subject to the provisions of Clause 75(A) of Part 7)

The Council are apparently encouraging a prohibited use of heavy vehicle parking, rather than an as of right one in the existing zone. Mr Brown refers to s6.1.2(3) of the IPA: “A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”

[27] “Home Industry” is defined as follows: “any premises which but for the fact that the terms exclude home industry premises, would be:- a. a detached house; and b. one or more of the following: 1. commercial services; 2. car depot; 3. service industry; 4. heavy vehicle parking, where not more than four heavy vehicles are stored on the premises at any time; 5. warehouse; 20

6. retail nursery; 7. cattery; 8. veterinary hospital; 9. recycling depot, where:- A. the site has an area of not less than 2000 square metres; B. at least one of the persons engaged in carrying out the activity is the registered proprietor of the site, and resides in the detached house; C. not more than three persons are at any time engaged in carrying out the activity; D. the activity is located and carried out in such a way that it does not detrimentally affect the amenity of the area; without limiting the generality of the foregoing, the activity does not produce noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or anything else which is a nuisance to any person, or affects property, not connected with the activity; the term does not include a home occupation;”

[28] The point of the Council’s reference in the letter to Clause 66(1)(f) is that the men who do the driving of the trucks to and from the Taylor property, being “three employees that come to the site” and Mr Taylor himself “and one other employee that keeps his (truck) with him” do not have the consanguinity relationship referred to. One wonders exactly what the drafter had in mind. Strict dictionary definitions focus on connection by birth (Macquarie Concise), lineage or blood (Australian Concise Oxford). The Oxford English Dictionary Online says consanguinity is: “1. The condition of being of the same blood; relationship by descent from a common ancestor; blood-relationship. (Opposed to affinity, ie. relationship by marriage.)”

The Council has taken the attitude that in (1)(f) “parking by a person” refers to the physical actions involved in controlling a vehicle to manoeuvre it into a position where it is parked. Its approach is that only a blood relative of a resident may occupy the driver’s seat to carry out that function. I disagree with that interpretation. In my opinion, premises may be used for “… parking by a person” where that person instructs an agent to park a vehicle on his or her account. In my opinion the focus is on the person’s use of the premises rather than on any driving activity, the identity of the driver being immaterial. It is not possible to state exhaustively when a person would be carrying out the use. The vital factor may be 21

ownership of vehicles, but it may be something different, such as controlling what is done with vehicles that may be owned by a lessor or hire purchase company. The Appeal Book, exhibit 10 contains a section devoted to “customer requests”, Part F, a record of various complaints, including some which were assessed as not of concern, for example use of fill on the site which a person contended may lead to pollution of a nearby watercourse. More than once, documents contained language by a Council officer to the following effect: “Property is zoned future urban Mr Taylor is allowed to store up to 4 heavy vehicles Mr Taylor has one employee who drops the trucks off at the property in the afternoon. As he does not reside at the property this is technically in breach of planning requirements under the scheme. Mr Taylor would be required to apply for an MCU to continue doing this.”

[29] In my opinion, the officer was correct in regarding the breach as technical. It is rather Gilbertian that, to avoid the breach, Mr Taylor could ferry heavy vehicles off and back on to the site, handing them over to and accepting return of them from other employees of the business off the site. This would not only inconvenience him, requiring him to get up earlier to have engines turning over, dealing with them one at a time; it would extend the duration of noise associated with that activity and transfer to Todds Road the function of handing over vehicles, with implications for safety and the generation of noise from Todds Road itself. The point of obtaining approval for “Home Industry” use becomes one of accommodating use of employees (other than residents of no. 119 solely) for “parking” on the site.

[30] Another imperative has been said to be authorising the “office” use of the dwelling there. In my opinion, this is similarly a “technical” matter. I accept Mr Taylor’s evidence that there is no signage whatever at no. 119 Todds Road, that customers never come there, that correspondence comes to a post office box. I would not expect the amount of paperwork generated by the business to be substantial. In my opinion, it brings the whole concept of planning controls into justified disrepute where people are running such a small-scale enterprise in ways that would attract no notice whatever from outside to force them, at what might be prohibitive expense, into making different arrangements for the sake of resolving complaints about supposed unlawful activity. 22

Noise

[31] What Mr Brown says regarding noise is dependent upon the work of Mr Kamst,

author of the Acoustics Report, Exhibit 3. What Mr Brown says about expectations

of residents may be true factually, but in planning terms, expectations must

accommodate what the planning instruments permit; currently, that is set out in

Clause 66.

[32] Mr Kamst made two visits to the site recently, the results of which are recorded in

his Table 4.2:

Location Date Time L90 Leq Truck Range Truck Comments (hours) dB(A) idling, dBA 03/02/06 0535-0358 Background noise level prior to trucks leaving 03/02/06 0538-0542 43 Idling: 3 min 30 sec 03/02/06 0542-0543 43-50 Trucks moving on site: 1 min 30 sec 03/02/06 0543-0547 41 Background noise C1 level after trucks left 21/03/06 0535-0543 53 Idling: 8 minutes 21/03/06 0543-0544 51-60 Trucks moving on site: 30 sec 21/03/06 0543-0550 42 Only obtained noise level after trucks departed since it rained until just prior to A1 trucks leaving.

Location A is the residence on number 121, location C is the residence on the other side of Todds Road from numbers 123 and 125. No measurements were made from residence B, being the Hansens’; it appears that, although they are closest to the truck manoeuvring area (just across the boundary from their house), they experience no concerning noise impacts. Mr Kamst has also prepared Table 4.3:

Predicted Internal Noise Levels Associated with Truck Movements (Assumes 10 dB(A) reduction from outside to inside bedroom) Residence Scenario Idling Lmax* ** Leq* A Current 43 50 B Current 47 55 C Current 33 41 23

A Future case 44 51 1/2 B Future case 46 55 1/2 C Future case 1/2 33 41 F1 Future case 1/2 40 64 F2 Future case 1/2 42 64 F3 Future case 1/2 45 64 F4 Future case 1/2 46 64 F5 Future case 1/2 49 63 F6 Future case 1/2 52 59 F7 Future case 1/2 40 47 F8 Future case 1/2 43 50 F9 Future case 1 49 56 F10 Future case 1 47 54 Bolded numbers in the idling Leq column indicate exceedance of maximum AS2 107 noise limit Bolded numbers in the Lmax column indicate exceedance of the sleep disturbance noise limit Bolded and underlined numbers in the Lmax column indicate exceedance of the sleep awakening noise limit

[33] The impacts he anticipates were explained earlier in his report: 37. “In terms of continuous noise, AS2107-2000 entitled “Acoustics – Recommended design sound levels and reverberation times for building interiors” the recommended satisfactory and maximum design Leq sound level for bedrooms and houses and apartments near minor roads are 30 dB(A) and 35dB(A) respectively. 38. The Leq is the noise level, which contains the same amount of acoustic energy as the actual fluctuating signal obtained during a sample. It may be thought of as an “average” noise level. 39. The AS2107-2000 noise limits correspond fairly well with the World Health Organisation (WHO) recommendation which states that “if negative effects on sleep are to be avoided the equivalent sound pressure level should not exceed 30 dB(A) indoors for continuous noise”. 40. With respect to the maximum noise levels (Lmax) from trucks, WHO suggests that “sleep disturbance effects have been observed for maximum noise levels of 45 dB(A) or less”. 41. Other research material (see for example Eberhardt et al, 1987) suggests that sleep awakening can occur at maximum noise levels of 55 dB(A).”

He confirms in paragraph 61 that “the L90 noise parameter in Table 4.2 refers to the

background or ambient noise level (technically it is the noise level exceeded 90% of

the time)”. He notes the exceedance by 11, of which he says in paragraph 63 that “a

noise level increase of 10dB(A) is perceived as a doubling of loudness by the

average person”. 24

[34] The residences indicated by the prefix F in Table 43 do not exist; they represent residential development which Island Ferries or purchasers in its proposed subdivision may choose to undertake on lot 121. Mr Kamst offers some pertinent general information in line with common experience that people who live in noisy locations, such as near railway lines or busy roads, become used to the noise: “8. Significance of Truck Noise Events 43. Another question to be answered is the effect of the truck noise on nearby residents, since it occurs for a relatively short time (typically no more than 10 minutes) during the early morning. 44. The odd occurrence of an early morning noise with the potential to disturb sleep may not be significant for nearby residents. 45. In this case we are dealing with a commercial operation which, if approval were obtained, would cause truck noise to be emitted for a period of up to 10 minutes during the early morning every working day of the year. 46. If the noise levels were sufficiently high that sleep disturbance or sleep awakening were to occur, then this could occur in excess of 250 days per year. 47. It is known that disturbed sleep may affect a person’s mood and ability to perform tasks, as well as feeling tired during the day. 48. It is also known that people may habituate to a particular noise source (eg trucks on road, aircraft) and that while a person may be woken up initially by a particular noise source, such awakenings tend to decrease with time. 49. Habituation therefore means that even if the noise levels due to a noise source are sufficiently high, a person may not awaken as the result of that noise source. Nevertheless a person would react physiologically (as evidenced for example by increased heart rate, increased blood pressure) to such a noise source. No habituation has been found for physiological reactions. 50. It has been shown that noise causing physiological reactions may also affect a person’s mood and ability to perform tasks, as well as feeling tired during the day. 51. In view of the above, if the noise levels exceed sleep disturbance or sleep awakening limits, the impact would be significant for nearby residents.”

[35] He concludes with the following discussion: “12.1 Current Scenario 72. At residences A and B for the current scenario the internal Leq’s are predicted to exceed the maximum noise limit of 35 dB(A). 25

73. At residence B the sleep awakening limit would just meet, while the sleep disturbance limit is predicted to be exceeded at residences A and B. 74. At residence C both the internal Leq noise limit and the sleep disturbance limit would be met. 75. As a result sleep disturbance is able to occur at 2 residences. 76. Some acoustic measures may improve the situation, however no such treatments have been included in the proposal and it is unlikely that appropriate standards for sleep awakening and sleep disturbance due to noise would be met by some measures involving works on the subject land.

12.2 Future Scenario 77. At residences A and B for the future scenario the internal Leq’s are predicted to exceed the maximum noise limit of 35dB(A). 78. At residence B the sleep awakening limit would just meet, while the sleep disturbance limit is predicted to be exceeded at residences A and B. 79. Due to their relative proximity to the subject land the Leq and Lmax noise limits would be exceeded at all of residences located on allotments F1-F10. In other words both the continuous noise limits and the maximum noise limit which protect sleep are predicted to be exceeded. 80. At 7 of these residences the sleep awakening limit is also predicted to be exceeded. 81. It is emphasised that such occurrences are able to occur every working day in the year. 82. Some acoustic measures may improve the situation, however no such treatments have been included in the proposal and it is unlikely that appropriate standards for sleep awakening and sleep disturbance due to noise would be met by some measures involving works on the subject land. 83. In my opinion the above illustrates that the proposal has the potential to significantly affect sleep for a number of (future) residents surrounding the subject land. 84. While at present the 2 trucks tend to leave together, there is no necessity for them to do so. This means that 2 separate episodes could occur every workday. 85. I understand that if the approval were granted 4 trucks (or other heavy vehicles) could be parked on the subject land, leading to a further increase in the number of episodes. 86. This report assesses the likely noise impacts of the use of the site for Home Industry on the basis notified to the Respondent that the Home Industry will be limited to heavy vehicle parking.

13. Conclusion 87. The noise impact of the truck movements during the early morning, typically between 5am and 6am, would be: 26

I. Significant with respect to sleep disturbance for the current allotment layout; and II. Significant with respect to both sleep disturbance and sleep awakening if future subdivision of the allotments adjoining the subject land occurs.”

[36] The concerning aspects relate essentially to future development on lot 121, which,

in principle, can be designed to limit it appropriately. Island Ferries and their

consultants will no doubt study Mr Kamst’s report with interest. If acoustic fencing

along the boundary is considered appropriate, no doubt ways can be found to

require it. The Taylors might make some contribution.

[37] Mr Skoien suggested it would not be appropriate to condition residential

development on covenants requiring noise attenuation measures in new residences,

as occurs when some defence is thought necessary against noise generated by major

public infrastructure: cf Hymix Australia Pty Ltd v Gold Coast City Council [2005]

QPELR 583 at [19].

[38] What troubles me about Mr Kamst’s work is the theoretical nature of it. As to the

present situation, there is a complete lack of evidence that the Taylors’ activities are

creating noise nuisance at a level that would concern the court, assuming that

planning instruments limit the use. If any inferences can be drawn from the

Hansens’ letter, those serve to alleviate noise concerns that might otherwise be held.

While Ms Figg’s submission gives rise to opposite inferences, those are greatly

weakened by the report of Mr Gorrie which appears in exhibit 10 at pages C25-C31.

Following complaints by Ms Figg, he attended with appropriate noise monitoring

equipment on 28 and 29 January 2004. He has relevant tertiary qualifications and

experience; at that time he was the Council’s Senior Environmental Health Officer,

charged with undertaking investigations with a view to issuing any appropriate

noise abatement notice. His work appears to have been carefully done. Difficulty 27

was encountered in achieving noise readings in excess of bird noise. Mr Gorrie

considered that “there was only a small if any increase in noise from the background

noise”, Ms Figg, understandably, expressing “that she felt the noise from the trucks,

even though it was quieter than the birds, was more intrusive as it was not a

‘natural’ sound”. Mr Gorrie considered that noise from operation of the vehicles

was not “intrusive enough to warrant serving an abatement notice under Division 3

of the Environmental Protection Regulation 1998” and that the party receiving such

a notice could successfully appeal the giving of it. Mr Gorrie was planning to attend

on a third occasion to take additional noise readings; Ms Figg apparently decided

not to pursue the matter.

[39] Mr Gorrie is now interstate. Arrangements were made for him to give evidence by

telephone in the appellant’s case on the second day. Before the evidence was taken,

with the court’s approval, Mr Skoien, who objected to Mr Gorrie’s being treated as

an expert, organised on a precautionary basis a “conclave” between him and Mr

Kamst. To an extent, Mr Gorrie deferred to Mr Kamst’s expertise. In the end, it

didn’t seem to me that the situation came down to conflicting expert evidence. Mr

Kamst is essentially concerned with the future, with what might happen if Island

Ferries’ current proposal is implemented and results in new housing. There is no

evidence of concerning noise impacts actually happening. Mr Gorrie gave useful

background evidence that noise complaints about trucks and the like have been a

relative rarity in Pine Rivers Shire, when compared with the level of complaints

about air conditioners and swimming pool filters.

[40] Mr Kamst’s very proper concerns for the future are ones about which the Council

and others may be well placed to institute appropriate precautions if they believe

that the Taylors’ current use of no. 119 will continue indefinitely. Mr Brown’s view 28 of the undesirability of entrenching (it is not clear to me how it would “intensify”, except by enlarging an existing shed) a non-residential use is sound. It is the

Council’s approach to the situation which has prompted the development application. Entrenchment may be avoided, for example by imposition of a condition under section 3.5.31(1)(a) of the IPA placing “a limit on how long a lawful use may continue”. There is some tension involved here with the principle that development approvals run with the land. The Full Court dealt, without comment, with an approval valid for a period of five years in Matijesevic v Logan

City Council [1984] 1 QdR 599. A five year time limit was deleted in Filardi v

Logan City Council [1998] QPELR 233, but a limit of that kind was approved by the court in Stuy v Beaudesert Shire Council [1985] QPLR 376 and, but for other circumstances, might have been ordered in Reynolds v Redland Shire Council

[2001] QPELR 148; see [22]. See also Curtis v Pine Rivers Shire Council [1989]

QPLR 111 and Croghan v Redcliffe City Council (1971) 24 LGRA 322. See now

Coominya Sand & Gravel Pty Ltd v Esk Shire Council [2006] QCA 208, at [24]. In

McKay v Brisbane City Council[1980] 2 QPLR 99 the right to use for a particular purpose was limited to Dr McKay, as well as being limited to two years. (Mr

Taylor’s written closing submissions did not respond to my request that a submission be made regarding an appropriate time period, if a condition of the kind under discussion be contemplated. It would be contemplating a period of 5 years or thereabouts; if the Taylors needed longer, they might well be able to apply, if possible demonstrating a record of not creating unacceptable impacts. He had already indicated that the appellant would be content with a condition limiting the use to use by her.)

29

Conflict with strategic plan or DCP

[41] I do not agree with Mr Brown that there is conflict with the intent of the Future

Urban zone, as suggested in DII of his Conclusions. The planning scheme provides:

“24. The intent of the Future Urban zone is to identify areas that may be developed within the foreseeable future for residential uses at urban densities and other urban uses. The precise nature of the most appropriate development will depend on the nature and timing of interim development and on Council’s forward planning intention as indicated in the strategic plan or any relevant development control plans. This zone includes land which is capable of being serviced but for which the provision of services may be premature until areas included within urban zonings are substantially developed and occupied. It is intended that development which may prejudice the implementation of future subdivision patterns, servicing, or potential land use activities will not be permitted.”

[42] In respect of the strategic plan, Mr Brown refers to objective (a) Urban Areas: “to enhance the amenity of existing and proposed urban areas” and goes on to set out the text relating to implementation: “(i) to enhance amenity of existing and proposed urban areas, Council, through the zones indicated on the scheme maps, where possible, will segregate incompatible uses or alternatively use less incompatible uses as a buffer between incompatible uses. The Home Industry Zone may be used in this capacity, for example. (ii) Council, in administering the Schedule and Table of Zones in the Scheme, will have due regard to the impact of non- compatible uses on the urban area.”

Given the established (and in my view, lawful) use of the site based on Clause 66, I

find it difficult to understand the asserted conflict. The invitation to consider the

Home Industry Zone is rather superfluous in the circumstances.

[43] In respect of the DCP (Central Pine Development Control Plan) section 5 contains objectives, implementation provisions and intent statements, provision (ii) providing that any rezoning, subdivision or consent application may be favourably considered by Council only if it complies with the town planning scheme, bylaws and Policies 30

and “(B) is in accordance with the intent for the precinct”. In respect of the relevant Precinct (R7) Mr Brown isolated the following: “(vii) Precinct R7 (A1) Further development is intended to maintain the character of the existing Residential A and ancillary purposes in the precinct. (A2) It is Council’s intention to maintain the character of that portion of Lawnton zoned “Special Residential”, ie. located around Bray and Akers Roads. In particular, Council will not approve subdivisions or other forms of development which in its view will adversely affect that area’s amenity. Subject to this overall aim, Council may support applications for the subdivision of properties which: (i) are greater than 8000m² in area; and (ii) are to be subdivided into allotments, none of which are less than 4000m² in area.

Council will not support applications for subdivision which do not comply with these requirements.

(B) Open space and parkland in this precinct shall be located as follows: • Along Four Mile Creek forming part of the creek’s open space corridor; • Along parts of the North Pine River; • Along Todds Gully as part of an open space corridor north to the North Pine River; • On land held by Council to be developed as a major sporting complex and presently used partly as Les Hughes Park, partly as a refuse tip and partly as vacant land; • Within about 400 metres radius of every residential allotment; (C) Pedestrian/bicycle routes along open space corridors linking schools, shops and railway stations will be provided in this precinct. (D) Additional development of retail facilities in this precinct shall be limited to local level only and shall be in accordance, with the criteria referenced to in the intent for Precinct R2 (see Section 5 (ii)(G)).”

[44] I have difficulty in regarding uses specifically authorised (without Council consent) as adversely affecting amenity, incompatible or the like. I make that observation fully aware that present or future residents will not welcome advantage being taken of Clause 66. This appeal gives rise to the familiar exercise of considering whether there are conflicts with any relevant strategic plan or development control plan and, if so, whether there are sufficient planning grounds for approval of an application, 31

notwithstanding, under s.4.5(5)(A) of the Local Government (Planning & Environment) Act 1990, and, assuming Mr Brown is right about it, s. 4.4(3) - specifically (a)(ii) “detrimentally affect the amenity of the neighbourhood” - were the proposal approved, also (b) (relating to balance of zones and need) and (g) (“the situation, suitability and amenity of the land in relation to neighbouring localities”). The only conflict seriously suggested relates to noise, and that is of potential concern only for the future, if Island Ferries should persist in bringing residents to the early morning noise. I would accept, for the purposes of this appeal, that the proposal is difficult to support, considered as new development; the amenity requirements for the Urban Locality embody expectations of “a high standard of residential amenity in the residential areas … a high level of visual amenity at the interface between residential areas and commercial or industrial areas”, etc.

[45] The court does not find a conflict with the current planning instruments in the appellant’s proposal.

[46] I invited submissions from the parties as to the appropriateness of approaching ambiguous provisions in planning instruments favourably to land owners, which Matijesevic v Logan City Council [1984] 1 QdR 599, at 605 establishes in respect of ambiguous provisions in planning approvals. Such an approach is taken in Canada. See re LDCM Investments Ltd v Town of Newcastle (1975) 80 R (2d) 504, 510-511, referred to in Friends of Currumbin Association Inc. v Gold Coast City Council [2006] QPEC 059 at [33]. I think that approach is appropriate, although it is only rarely that a court may be driven to it. Mr Skoien countered by reference to instances of limitations, sometimes not entirely clear in their terms, construed in ways unfavourable to the wishes of those wishing to make use of their land, notably where Home Occupations are involved: see Grasso v Stanthorpe Shire Council [1996] QPELR 107, on appeal [1996] QPELR 363, O’Sullivan v Council of the City of Toowoomba [1996] QPELR 113, on appeal (1996) 90 LGERA 432 and Fyre v Caboolture Shire Council [2004] QPELR 533.

[47] Particular reliance was placed on O’Sullivan, characterised as a “decision concerning the identity of the user” in relation to the issue of whether non-residents may perform driving tasks in relation to the parking of heavy vehicles owned and/or operated by residents for purposes of Clause 66. There a solicitor’s practice was a Home Occupation which was required to be “undertaken only by persons resident”. 32

The difficulty that arose concerned secretarial personnel, in relation to whom there might be argument as to whether they were undertaking the relevant “business, occupation or profession”. It was said in the Court of Appeal that “in a strict sense only a solicitor admitted to practice as such could be said to be carrying on the “undertaking” in question.” What was decisive of the case was that the activity must “not involve an on-site attendance of more than 2 persons at any one time in addition to any domiciled resident”. What was decisive in O’Sullivan was the condition imposed by the Council that: “The operation of this Home Occupation is approved for the applicant personally and not any successor in title to the land or occupier of the premises. The home occupation is to be undertaken by only persons resident therein and shall not involve an on-site attendance of more than two persons, as clients, at any one time in addition to any domiciled resident therein.”

[48] The above provision was construed to permit presence of clients, but not of staff. The case does not bear on the identity of those who may carry out the actual physical actions involved in parking heavy vehicles. As appears elsewhere, as far as the evidence goes here, the actions of the actual drivers would be characterised as those of agents of the appellant. In my view this does not depend on adopting any favourable approach to construction. Subject to there being no difficulties (other than de minimis exceptions) from the counting up of “heavy vehicles”, in my opinion the parking activity has always been lawful under Clause 66 and Column 3A of the Table of Zones for the Future Urban zone. The use of employees did not necessitate a material change of use to Home Industry. Nor, in my opinion, did the alleged “office”. The use of No. 119 Todds Road in connection with paperwork transmitted via post office boxes and presumably posting boxes seems to me so insubstantial as to make it fanciful to contemplate what would be done in relation to this relatively modest earthmoving business should be described as an office. There is no impact whatsoever outside the detached house.

[49] Where the Canadian approach to construction of planning instruments may come into play concerns the Council’s contention that it may impose conditions or requirements to protect amenity within Clause 66 of a kind which would have the effect of cutting it down, for example by limiting the number of heavy vehicles to, say, one. In my opinion, notwithstanding that Mr Buchanan may appear to have made some concession, it is not open to the Council to cut down the use rights 33

conferred by Clause 66 in that way. There would remain plenty of scope for regulation consistent with respecting the use rights conferred by the clause (not only in respect of numbers of heavy vehicles invited by Clause 66(6)). As a matter of interest, it appears that there never has been any request for the Council to nominate conditions under Clause 66, and that the Council has never had cause to seek to do that. Here, I am speaking generally for the whole local government area, of course, not in respect of the Taylors’ operation alone. I understood Mr Brown to concede that if the Council’s approach were correct, that removed the distinction the Table of Zones draws, apparently deliberately, between Column 3A and Column 3B. In both instances, he contended, what was provided for was not “permitted development” as Column 3A states, but Permitted Development subject to conditions. That cannot, it seems to me, be right, which is not to say that “requirements” which do not take away the substance of the use rights conferred by the clause generally, cannot be set by the Council under Clause 66 (1)(b).

Where to from here?

[50] Mr Skoien suggested the genesis of Clause 66(1)(f) lay in a desire to treat sympathetically small family operations in which people with the indicated blood relationship lived in the same place, all operating or owning their own heavy vehicles. Whether that is correct or not does not control the meaning, in my opinion. The words must be construed according to their natural meaning, and not read down in some exercise of seeking to ensure that no more is let in that the drafter might have had in mind. It may well be that the Taylors are testing the limits of what is permitted, that, the business having expanded so much, there is potential for development offences to be committed. No more than four of the five trucks may be parked on number 119 at any time; offences may occur if combinations of “heavy vehicles” are disassembled (except in de minimis ways) so that a count of separate “heavy vehicles” would show more than four. This appeal has been conducted on the basis that for practical purposes, heavy vehicle movements between the site and the road will be limited to departure in the early morning and return in the afternoon. If there were more frequent movements, that might well be a concern, and kind of thing the Council could control under Clause 66. It seems not possible to preclude occasional additional movements during the day to 34

accommodate emergencies, or even planned events such as medical or other appointments, necessitating a driver’s return.

[51] Some concerns may flow from the apparent expansion of the Taylor business. When the Council officer’s report looked favourably on parking of two heavy vehicles, Mr Buchanan’s response was to advise that parking for three was now required. By the time of the appeal, Mr Taylor made it clear the requirement was for four, and that the business, indeed, had a fifth vehicle, which (I accept) is parked elsewhere, so that at no time will there be more than four assembled “rigs” at number 119.

[52] The court finds itself in an unusual situation in this appeal. It is in agreement with Mr Buchanan’s position that, essentially, the material change of use application seeks nothing which cannot be achieved while the site has its present planning status. The development application, which Ms Taylor appears to have been forced into making by the Council, thus appears unnecessary. I am doubtful that the considerations just mentioned would justify refusing the appeal as a matter of discretion. The best argument against the appeal is Mr Brown’s, that there ought not to be entrenching of a use that bodes to become increasingly incompatible (in the sense of uncongenial to local residents) over the years. The appellant bears the onus of showing that the appeal should succeed. In the circumstances, the entrenchment difficulty does not stand in the way of the appellant satisfying that onus, given that a condition may limit the duration of the approved use. Mr Buchanan is correct that the opportunity to impose suitable conditions may be seen as an advantage of the development application’s having been made.

[53] No criticism of the Council’s officer is intended by the observation that the conditions proposed for the Report of the Strategic and Planning Committee Meeting held on Tuesday, 8 June 2004 (which can be found in exhibit 10, pages C43-44 – also C58-59) are probably inadequate. They have the appearance of being a standard form to a considerable extent. They do not suit the case in their limitation to storing no more than two heavy vehicles on-site at any one time (this being accompanied by a note “that the temporary uncoupling of trailers or offloading of bobcats/dingoes/excavators etc for the purpose of washing, rearranging, servicing or storage within the shed, shall not contravene this condition”). The hours of operation (6 a.m. to 7 p.m. Monday to Saturday, excluding public holidays), are inappropriately stated, and not only for precluding 35

earlier movements off site. Otherwise, the Council should have the opportunity to propose for consideration by the Taylors (and the court, if common ground cannot be reached) of other relevant and reasonable conditions to protect local amenity. It may be that, in light of these reasons, the parties are able to arrive at some modus vivendi which makes it unnecessary for the court to pronounce any formal order allowing the appeal and ordering that the development application be approved. The Council may well be willing to resort to use of Clause 66 on the basis of its having effect, as determined by the court, such that the identity of drivers of heavy vehicles (so long as the vehicles are those of a resident on the site) is immaterial.

[54] The parties are invited to consider these reasons and to approach the court, if necessary, if they are able (or not able, as the case may be) to find common ground as to some suitable order(s). It is appreciated that attention has not been paid to the implications of the new or enlarged structure proposed, which Mr Buchanan acknowledged required impact assessment; the parties may wish to give attention to these, as well as to the possible noise attenuation measures.