Zanow v Ipswich City Council & Anor

[2010] QPEC 50

Planning and Environment Court of Queensland|2010-06-22

View original source

General information, not legal advice.

At a glance

Source facts

Court

Planning and Environment Court of Queensland

Decision date

2010-06-22

Source

Original judgment source is linked above.

Judgment (264 paragraphs)

[1]

Developer appeal against refusal of development permit for material change of use (MCU) for light industrial purposes - site zoned low density residential and located on perimeter of precinct adjacent to Warrego Highway, devoted to similar uses by Telecom/Telstra since 1980 (uses which ceased lately) - appellants (new owners) in 2003 obtained approval for similar MCU permits approving actual development on part of site and a preliminary approval overriding the planning scheme for the whole of it - approved plan of development established a regime requiring impact assessment for further light industrial development now applied for - 2006 planning scheme perpetuated low density residential zoning - whether 2003 approval meant no conflict arose with the planning scheme - whether sufficient grounds to justify approval notwithstanding conflict - need - whether site suitable for residential use given industrial use of western part and proximity of highway - traffic and amenity issues - expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to highway being forbidden) belied by events, leading to unintended traffic through a residential area - whether the access (of a battleaxe variety) was adequate preponderance of local opinion favouring light industrial development over residential.

[2]

[24]

[8] Mr Hinson SC, for the respondent, expressed concern that there not be an outcome of the appeal in which no development was permitted, but the Planning Scheme was overridden. He had understood Mr Houston to be submitting that the first issue for determination was whether there ought to be a preliminary approval varying the effect of the Planning Scheme within s 3.1.6 of the Integrated Planning Act 1997 (IPA), the court then proceeding (in the event of a favourable outcome) to determine the application for a development permit. I understood Mr Hinson to be seeking to ensure that s 3.5.14(2)(b) (to the effect that the decision must not conflict with the Planning Scheme in the absence of sufficient grounds justifying that) would control determination of the appeal. Section 3.5.14A, which prescribes the way in which the part of a development application for preliminary approval mentioned in s 3.1.6 must be assessed, makes no reference to the "conflict" aspect, although sub-s (2)(b) may be seen to reflect what s 3.5.14(2)(a) has to say about a decision which would compromise the achievement of the desired environmental outcomes (DEOs) for the Planning Scheme area. Both s 3.1.6 and s 3.5.14A expressly provide that they apply only to the "part" of a development application seeking variation of the effect of a local planning instrument. Of necessity, there must be more in the development application - in particular the part identifying the development applied for. The upshot of all this is that the court must be aware of the injunction in s 3.5.14A(2)(a) that to the extent the development applied for under other parts of the application is refused, any variation relating to the development must also be refused. It may not matter in which order the court examines issues before it, provided that the result does not offend the injunction just quoted. I am satisfied that the appeal has to be determined in accordance with the principles stated in Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153 at paragraph [38]. That is, "conflict" as explained in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at [23] is to be considered.

[33]

[10] Although the statutory language is not taken up, I would take the Decision Notice to be asserting issues within s 3.5.14(2)(a) and s 3.5.14A(2)(a). I am of the view that respectable arguments are available that the proposal compromises achievement of relevant standards for the built environment that reflect community expectations, the efficient use and safe operation of roads and maximisation of the safety of people and the amenity they enjoy. Notwithstanding the importance placed by the IPA on desired environmental outcomes in the sections mentioned above and more generally, there is a striking paucity of determinations against development proposals based upon compromise of achievement of DEOs. The pattern tends to be to assess proposals from the bottom up (rather than from the top down), starting with reference to planning scheme provisions that are most site and use-specific. The thought appears to be that DEOs apply to planning scheme areas as a whole, that matters are required to be looked at broadly, that failure to provide DEOs in respect of particular development proposals in their own local area is not of such concern that the proposal ought to be refused. One wonders whether there is some tipping point or "final straw" such that, after enough problematic development proposals have been approved, there is a realisation that there should be no further instances if the desired outcome is to be achieved for the planning area. Here, 3.2(1) is curiously worded; it appears to contemplate that the development is allowed to happen and once it is there, the extent to which relevant DEOs are achieved or compromised is determined. At that point, presumably, little can be done other than seeking to avoid repetition of what come to be identified as past mistakes. Consistently with cases such as Koerner v Maroochy Shire Council [2003] QPEC 54; [2004] QPELR 211, at [22], Mr Hinson disavowed presenting any case based on compromise of DEOs, founding the Council's case on conflict with the Planning Scheme as dealt with in s 3.5.14. Of course, the DEOs come into the picture by way of explaining and supporting following Planning Scheme provisions and are recognised as part of the Scheme.

[186]

[31] Having regard to the importance which has (in my view properly) been attributed to restricting use of Pine Mountain Road south and east of the site by heavy vehicles associated with it, I consider it undesirable to add to the extent of heavy traffic. (It might be noted that the traffic generated from Buildings 1, 2 and 3 has proved to be considerably in excess of what the 2002 Planning Report informed the Council represented the worst case scenario.) The traffic engineers' figures for anticipated traffic volumes are "rule of thumb" numbers which experience has shown to be associated with the general use classes; actual volumes will depend on the uses which establish and the way in which they are conducted. Mr Viney's survey results were broadly consistent with numbers predicted on the basis of GFA. The conclusion that Mr Beard is to be preferred disregards the possible closure of highway access, which is both too uncertain and too far in the future (should it eventuate) to justify its being taken into account. If the closure happens, it would exacerbate site-related impacts of heavy traffic, in that all of it would use the presently embargoed part of Pine Mountain Road. Mr Viney is correct that, considered against the total traffic movements along Pine Mountain Road, the increase likely to result from implementation of the appellants' current proposal would be sufficiently modest as to be unnoticed; he says trivial. The appellants' difficulty is that they come on top of what is said to be "currently approved" (but vastly exceeds predictions that appear to have been the basis of approval). They are not contemplated, even it would seem, when the approval of 2003 was issued. The suitability of the site for the uses currently proposed and for those approved in 2003 may be accepted, if access considerations are ignored. In 2003 those considerations may well have been addressed on a false or misleading basis. Events have shown that conditions set in 2003 to control traffic movements have proved largely ineffectual. With the benefit of hindsight, it is hard to disagree with Mr Beard's description of the 2003 approval as unfortunate and his assessment of the site, from a traffic standpoint, as unsuitable.

[215]

[40] The appellants produce expert evidence that amenity impacts on residential neighbours flowing from the proposed uses can be adequately managed, in particular by acoustic fences of varying heights up to 3.7 m whose starkness can be softened by landscaping. There remains the consideration that such structures (which limit access to daylight and breezes), being considerably in excess of the standard planning scheme limits of 1.2 m for solid fences, 1.8 m if the fence is at least 30 percent transparent for front fences, 1.8 m for side and rear fences, are out of scale with traditional and expected residential amenity. The most troublesome of the fences is the 3.7 m one close to the boundary of the access strip's western neighbour, 219 Pine Mountain Road which noise experts consider ought to be 3.7 m above the driveway; its eastern twin is proposed to be 3.2 m; the adjoining site on the east is owned by the appellants. Proposed buildings 4 and 5 (the subject of the development permit sought) are to be screened for acoustic purposes by a 2.5 m fence to the south, whose effective height as a noise barrier is greater as the buildings will rest on a partly excavated pad to the north. That fence will be set well back (18 m or so) from the rear boundaries of the more elevated residential properties at 215, 213 and 211 Pine Mountain Road. There is proposed to be a temporary 3 m high mound/acoustic barrier east of the new buildings, well clear of the DMR land. However, the long term proposal when indicative buildings 6 and 7 are constructed behind 4 and 5 is that the temporary acoustic barrier would be relocated some 10 m from the DMR boundary, at a height not specified in Mr McGowan's landscape concept plan. Even if these arrangements are acceptable (which there is reason to doubt, particularly for the highest fence) and effective, there remains the psychological factor for existing and potential future residents of the area of non-residential uses in their midst; for a substantial number or proportion of them that would be unwelcome. It might be noted that in the relevant exhibit showing elevations (not to scale), the extent to which proposed buildings will be visible above the fencing is not depicted; those structures are of a scale to dominate residential development, although they will not exceed the residential height limit of 8.5 m. It is accepted that the industrial buildings are limited in number and footprint, and would not involve the same total clearing and establishment of the sea of roofing expected from "low" density residential development.

[231]

"Accepting as conclusive evidence the registration of the subject land and a certain building area as a lawful non-conforming use, the existing development is accorded protection under the provisions of s. 28 of the Town Plan. The Town Plan, within its provisions, contains significant constraints in relation to that lawful non-conforming use, with particular regard to an increase in its intensity. Whilst the Town Plan, within its terms, gives protection to existing lawful non-conforming uses, the planning philosophy as exhibited in the Town Plan and in planning policy 28.01 of the Respondent, are indicative that the planning strategy of the Respondent is that, in the long term, a non-conforming use should relocate to a more appropriate site where the particular use would not affect the amenity of the immediate neighbourhood or create any land use conflict. Such a principle accords with accepted town planning philosophy, and is reflected in many of the accepted text books on town planning. For example, Fogg "Land Development Law in Queensland", at p.665 Et Seq. At p.385, the learned author refers to the difficult problems that may be caused where a rezoning is sought to allow an existing non-conforming use to become entrenched by obtaining a formal rezoning of the land on which the use is carried on. Such an approach has been reflected by the Court on many occasions, and is in conformity with the general planning theory relating to the phasing out, in the long term of non-conforming uses. Approval of the subject application would be contrary to the provisions of planning policy 28.01 of the Respondent to which considerable weight should be given, having regard to its conformity with generally accepted town planning philosophy and principles. Mr Mellish gave evidence that, if the rezoning were not approved, the existing use would continue into the future, with little likelihood, if any, of its relocation. That fact itself does not negate the planning principles which ought properly to be applied to the application for rezoning, whereby it is not desirable to approve of a rezoning which would result in the entrenchment of a lawful non-conforming use.

[259]

[51] Need was an issue, although the Council's expert in the field, Mr Brown was not required for cross-examination. He and Mr Coghlin produced a joint report. It reveals differences of view in respect of both need for residential land in the area and the need for additional land available to be used as if zoned Local Business and Industry. That zoning is to be distinguished from Regional Business and Industry. The former zone's intended outcomes include "providing local employment opportunities as a means to ensure that there is a high level of employment self-containment across the city". That intended outcome, Mr Coghlin argues, is compromised in Brassall which has no land zoned for industrial uses, the nearest Local Business and Industry Land being in Pine Mountain to the north-west and North Ipswich to the south-east, both of which are fully occupied with the exception of 900 m2 of vacant land in the North Ipswich zone. The nearest vacant land so zoned is five kilometres away by road in West Ipswich across the Bremer River and the railway line. As Mr Coghlin says, an activity requiring a Local Business and Industry Zoning desirous of establishing in Brassall would have to locate elsewhere. He says the proposal is too small to affect the value or absorption of existing land so zoned elsewhere in the city. While Mr Coghlin may be right that "the north west region of Ipswich is deficient in such land in comparison to other regions of Ipswich", Mr Brown's view is that "local" in the intended outcome refers to a geographical area larger than a suburb, but smaller than "regional". He contends that the proposed uses are clearly more consistent with the intended uses for the Regional Business and Industry Zone than with what is intended for the Residential and Density Zone, also that the absence of land zoned local business and industry or local business and industry investigation area within Brassall does not of itself suggest a need, moreover that proximity of such zones to Major or Neighbourhood Centres is specified as a key intended outcome for such zones. The views of the Council, as planning authority, appear to coincide with Brown's. That is the position I incline towards. For the purposes of argument, I have proceeded on the basis that the "need" asserted by Mr Coghlin exists in the sense described elsewhere.[2]

Zanow v Ipswich City Council & Anor

At a glance

Court

Decision date

Source

Judgment (264 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)