Amenity in Rural and Urban Contexts - A Paper presented to QELA

November 19, 2019

Introduction

 

While planning legislation and planning schemes are important tools in assessing applications they alone will not achieve good planning outcomes without a proper appreciation of the proposal, the land the subject of the proposal and the impacts the proposal will have on the environment in which it is situated

 

In any environment, whether urban or rural, competing land uses are a key planning issue that local authorities are required to manage.

 

In the rural context avoiding land use conflicts and the protection of amenity are key issues and it is important that a range of uses including traditionally intensive uses such as animal industry, horticulture, agricultural and mining uses are protected.  And they need to exist with more non-intensive uses such as ecotourism, residential and less intensive forms of industry.

 

In recent times rural councils have been forced to manage and adapt to a number of new industries that were not anticipated in often out dated planning schemes - for instance housing large numbers of workers in temporary mining camps, rapid development of renewable energy facilities and new forms of tourism.  Amenity considerations and understanding community expectations in these circumstances have the potential to create difficulties.  Having said that the concept of amenity is also extremely relevant in urban environments and is often raised as a relevant ground for refusal in a range of cases including residential, industrial and extractive industries to name a few.

 

This paper focuses on how the courts have applied the idea of amenity and how community expectation fits into that process.  Given it is a regional intensive the paper has focused on a range of cases involving rural land uses/rural land and then considered examples in more urban environments.

 

What is amenity and community expectations?

 

Amenity is not a concept that can be considered in the abstract - it is in part formed by the context of a site and its surrounds and by the notion of reasonableness[1].

 

A good starting point in understanding what the term "amenity" means and one that is often cited in Queensland Planning and Environment Court judgments and other jurisdictions, is the decision of Broad v Brisbane City Council & Anor (1986) 2 Qd R 317.  The decision related to an application for a rezoning from Residential A to Special uses (old persons' home) to allow for the extension of an existing aged persons home on an adjacent property.  One of the relevant criteria under the City of Brisbane Town Planning Act 1964 - 1985 was whether the proposal would "…detrimentally affect the amenity of the neighbourhood…".    It was said by De Jersey J at 326:

 

"There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the residents’ subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one’s perception of amenity."

 

Thomas J at 319-320 noted that;

 

"The wide ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood."

 

In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112, which considered a refusal of a development application for a material change of use for lot feeding of cattle on land located near Muldu, Dodds DCJ summarised the approach to be taken as follows:

 

"[40] A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness . Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity” The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject.…

 

Amenity however does not just include physical attributes.  The court has noted the concept of amenity includes both tangible and intangible aspects.  It was said in Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322, a case in which the court considered a mixed development and tavern at Mudgeeraba, by Brabazon DCJ at 333;

 

"Amenity does not include just the physical appearance of the surrounding.It also includes the emotional or sentimental feelings that people may have about a place."[2]

 

This concept has been discussed in a number of cases including uses such as nightclubs, brothels, taverns and funeral parlours[3].   Alex Gow Pty Ltd v Redland Shire Council [2008] QPEC 52 concerned an application to construct a funeral parlour.  The application was dismissed on appeal as it was found that the proposal was an inconsistent use under the planning scheme and the conflict was towards the major end rather than minor end of the conflict scale[4].  The judge referred to the decision of Broad which used as an example a funeral parlour and described it as a "vivid example of something which may give rise to subtle, but marked, effects upon the amenity of a residential area"[5] 

 

In Vacuum Oil Co Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8 at 138 Sugarman J said;

 

"Amenity‘ is not confined to the negative factor of freedom from physical discomfort through the effects of noise, smell, and the other matters referred to in the proviso to clause 27 of the County of Cumberland Planning Scheme Ordinance‘. It relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as well to those across the road, who may be unaffected by noise etc., as to the adjoining and other occupiers on the same side. Amenity‘ may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence"

 

Wall QC DCJ said in Mills & Ors v Townsville City Council & Anor [2003] QPEC 008 said at page 36-37;

 

"Amenity is the benchmark by which other discreet issues are considered and assessed. Traffic, noise, setbacks, landscaping, roads, access, design, size, bulk, height, appearance, views, ridgelines, building envelopes, verandahs, footpaths, open space, recreational areas and the like are all more or less relevant by reference to amenity in that they are factors by which the affect which a proposal will have on the community and the surrounding area and how it will fit into and impact on that environment is measured.

 

The most important part of that environment is the community: the people, the families, the businesses which live and work and coexist in it. They are in fact the environment, the area, the envelope or the footprint in which a proposal must take its place, fit into and be compatible with.

 

Mr Hinson put it correctly when he submitted that ultimately the decision should be concerned with the community's welfare and the community's interests, not just the interests of the applicant for development approval or the submitters against development approval. Planning schemes are community documents which must be interpreted by reference to the relevant community. They do not exist in a vacuum divorced from the community which generate them. They order that community."

 

The observations of Jones DCJ in BTS Properties Pty Ltd v Brisbane City Council & Ors [2016] QPELR 943 at 961 are also relevant when considering urban development.  It was said;

 

“[67] In some cases it is relatively straight forward to identify and describe the negative visual impacts of a proposed development in the context of its urban setting. For example, by reference to height or a manifestly obvious difference in bulk. However, sometimes it is not so easy when the impact is a more subtle one resulting from a combination of variations in height, length, depth and setbacks. In my view, even relatively subtle variations in dimensions can still result in an overall unacceptable negative visual impact. This is such as case. …”

 

There are a number of examples in both the rural and urban contexts where there is a tension between commercial and industrial uses and the maintenance of residential amenity - for instance see Webster v Caboolture Shire Council [2009] QPELR 455 in which a transport depot was proposed in a residential area; Thomas Holdings Pty Ltd v Gold Coast City Council & Ors [1990] QPELR 32 of a proposed introduction of a service station and takeaway food premises into a residential area; Prime Group Properties Limited v Caloundra City Council & Ors [1995] QPLR 147 again where a service station and shop were proposed for a residential zone[6]; and Retirement Properties of Australia Pty Ltd v Maroochy Shire Council [2009] QPELR 149 where the proposal was for a retirement village on a quiet residential street which would introduce non-residential impacts.  It was said in Retirement Properties at [74] that;

 

"The adverse effects on the amenity of the surrounding residential area both contribute to the conflict and independently add weight to the decision that the appellant has not shown the appeal should be upheld."

 

Practically, the impacts usually contribute to the finding of non-compliance with a scheme but then also independently add weight to the question of whether a development should be approved.

 

Community expectations

 

The question then turns to what are community expectations and more specifically what are reasonable community expectations. 

 

There is a difference between the expressions "community expectation" and "community desire"[7]. 

 

Ultimately community expectation will be informed by relevant planning controls in the planning scheme[8].  The community must be taken to consider that development which the council may permit in appropriate cases is a possibility[9].

 

In Bell v Noosa Shire Council & Ors [1983] QPLR 311 Skoein DCJ, as he then was, noted at 313 that:

 

"Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right.He must also be taken to contemplate that such a parcel of land may come to be put to one of the uses permitted with the consent of the local authority."

 

It then follows that it is a reasonable expectation that uses that are permitted with the consent of the local authorities may have some adverse effects on residents[10].

 

Difficulties arise when the community is taken to have read and understood what are often complex and regularly changing planning legislation and planning schemes.  This difficulty is apparent in particular cases where submitters do not appear to have any specific understanding of the relevant planning controls.  In Mansell & Neil Mansell Concrete Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 086 a number of residents raised concerns over a proposed hard rock quarry.  It was observed that the residents who gave evidence had all purchased their properties when the planning scheme identified the area as containing extractive industry resources and that no residents had made enquiries that would have identified this.  The court was of the view that the weight to be given to the residents' fears in respect of amenity concerns was to be assessed in that light[11].

 

The court has also considered the weight to be applied to the number and content of submissions.  While submissions from the community need to be taken into account, an evaluation of their reasonableness needs to be undertaken.  In circumstances where they are purely subjective with no justification it should be accorded little weight[12].

 

A number of recent cases in both the Court of Appeal and Planning and Environment Court have considered the primacy of the planning scheme, in the context of the notion of "public interest".  Bell v Brisbane City Council & Ors [2017] QPEC 26 and the subsequent Court of Appeal decision of Bell v Brisbane City Council & Ors [2018] QCA 84 is an example.  The Bell decisions more specifically dealt with the issue of "public interest" within the realm of the definition of "grounds" in the Sustainable Planning Act 2009 for the purpose of s326(1)(b).  It is relevant to note;

  1. The notion of community expectation was incorporated into the relevant neighbourhood plan (both the overall outcome and performance outcomes);

  2. In the first instance the primary judge found that community expectation was partly informed by the relevant table but not exclusively[13] and that "Expectations may also be affected by other existing and approved development in the locality."[14] .

  3. It was not considered that the proposed height aligned to community expectations;

  4. On balance the primary judge found there was a need for the proposed development and therefore it was consistent with the relevant overall outcome of the code.  Within the context of a SPA assessment, to the extent there was any conflict with the scheme there were sufficient grounds in the public interest to approve the development.

  5. On appeal McMurdo JA said at [66] that "a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of the land".

  6. It was said;

"[70] Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated. Thus in the present case, it had to be assumed that the public interest would be served by confining the development of this land to buildings of a height that accorded with community expectations that buildings would not extend, or at least significantly extend, beyond 15 storeys. That was not an arbitrary limit; it was an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations. The Scheme was unambiguous in providing, within AO1.1, that “[d]evelopment must comply with both parameters where maximum number of storeys and height in metres are specified.”

 

Bell and the more recent decision of Gold Coast City Council v K & K (GC)[15] which also considered this concept of public interest were both decided under the assessment regime in the SPA.

 

These cases continue to have significance in an assessment under the PA but in Parmac Investments Pty Ltd v Brisbane City Council & Ors[16] the court made some relevant observations in respect of Bell including;

  1. the observations of the court in Bell were made in the context of the role of a planning scheme when undertaking an assessment under s326(1)(b) of the now repealed SPA[17]. 

  2. The COA's statements in Bell should not be taken as a statement that the scheme is a complete expression of what is in the public interest.  Further;

"...It is also self-evident given planning schemes are reflective of a point in time, and are performance based.  A performance based planning scheme does not, by its very nature, envisage a single development option or design; rather it presents a series of development parameters that are to be considered and demonstrated by a proposal.  Further, they do not purport to provide for every form of development that may be required to meet the legitimate expectations of the community.  If it were otherwise, the notion of planning need would have no work to do" [18]

 

Further in Ashvan Investment Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [59]:

 

"…Rather, planning scheme provisions are intended to guide development in a city or region in a way that achieves the will of the community (in land use terms) as determined by the elected officials at a particular point in time. The will of the community, in land use terms, cannot be forecast with scientific precision. The land use needs of a city, or region, are dynamic. The statutory assessment and decision making framework under the PA enables considerations of this kind to inform the exercise of the discretion to reach a balanced decision in the public interest about an impact assessable application."

 

Amenity and community expectation - rural examples

 

The court has acknowledged that rural areas cannot be expected to be entirely free of negative influences.  Local residents cannot expect a rural environment to be free of odours and dust which are intrinsically part of rural life[19].  Singh v Beaudesert Shire Council & Anor [2004] QPELR 16 is one case that considered the level of amenity that is reasonable to expect in rural environments.

 

The case concerned an appeal against the Council's refusal of material change of use and an environmentally relevant activity for a poultry farm on land within the Rural Zone.  At the time of the application the proposed use was an "as of right" use in the zone.  The scheme was then amended to make poultry farming a discretionary use.  The amendments to the Planning Scheme tightened control over the location of poultry farms and the emissions of odour, requiring a separation distance of 700m.  There was a myriad of issues in the appeal including odour, noise, dust, water quality, visual amenity, need and consistency with the strategic plan and the intent of the Rural Zone.

 

It was said, in respect of the issue of amenity;

 

"[17] A number of lay witnesses were called. They spoke of difficulties experienced with other poultry farms, near which they reside. I do not doubt their sincerity but problems of this kind in rural areas are not uncommon. Notwithstanding what often seemed to be a contrary perception, it was not reasonable to expect in rural areas an amenity free from displeasing impact. Furthermore it would not be just to set aside the scientifically based evidence which support this proposal because of the problems which residents have experienced in other areas." (emphasis added)

 

The court found that the acceptable criteria had been agreed upon by the experts and could be made the subject of conditions.  The court allowed the appeal. 

 

Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91 was an appeal against the decision of the council to refuse an application for cattle saleyards which was to cater for up to 11,000 head of cattle and incorporate a number of modern state of the art features.  The town already had the largest cattle saleyards in Australia.    The area of the proposed use was broadly described as a mix of rural, rural residential and industrial uses.

 

There were a number of issues in dispute specifically relating to amenity including visibility, odour, noise and lighting.  The experts nominated by the parties participated in joint reports and agreed that the proposal could be appropriately conditioned to adequately control amenity impacts with respect to odour, noise, dust light and visual impact.  Despite the evidence it was said by His Honour Judge Jones:

 

[34] Notwithstanding the importance of the evidence of experts in cases such as this, the concept of amenity is a wide and flexible one not necessarily determinable by reference to the evidence of experts alone. In Prime Group Properties Ltd v Caloundra City Council & Ors Skoien SJDC said:

 

“I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader than that.

 

 

[35] When considering the impacts of the proposal, it needs to be borne in mind that Roma is very much a rural regional town where primary industry and, in particular, cattle grazing plays a particularly important role in the success and sustainability of the town. The residents could be expected to have, within the bounds of reasonableness, a higher tolerance to adverse amenity impacts linked with rural activity or activities than their urban counterparts. That is not, of course, to say that the residents of Roma and its environs will be more robust and tolerant in respect of all negative amenity impacts than their urban counterparts. They may be less disturbed by the odours and noise associated with cattle than their urban counterparts, but more sensitive to traffic noise and light emission. In its surrounding environment though the proposal is not a use which involves an obvious negative quality. This is not a case involving intangible amenity impacts or the consideration of perceptions of a purely subjective character." (footnotes omitted)

 

After considering the impacts from noise, odour, dust, light, visual amenity and local amenity, His Honour  Judge Jones found that;

 

"[63] While the evidence of appropriate experts must of course be respected and given due weight, the court is not obliged to fall in with their assessment of what impacts other people ought find acceptable.[20]Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses.[21]"

 

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34 concerned an appeal against the respondent's decision to refuse an impact assessable application for a transport terminal and ancillary accommodation (8 units) on land at Miles.  The use included an accommodation component for drivers and employees of the business.  The council determined to refuse the application on the basis that it was said to conflict with 2 planning schemes (the Murilla Shire 2006 Planning Scheme and the Western Downs Planning Scheme).  The conflict was said to arise for three reasons:

 

  1. The proposal seeks approval for an industrial activity that should be located in an industrial area - not located in a rural area as proposed;

  2. Given that the use proposed is industrial in nature it will therefore have unacceptable impacts on the amenity and character of the locality; and

  3. There is no overriding community need for the proposal.

 

The 2006 scheme envisaged that some limited industrial uses would occur in the rural zone if the applicant could demonstrate two things - the proposed use is associated with rural production and that the use could not reasonably be established in the industrial zone.   

 

Relevant to the issue of amenity it was said "The level of amenity to be expected for worker' accommodation will be less than a residential area, but there is still an expectation that the level of amenity for the accommodation activity will be protected.  The extent to which amenity is protected will be a matter of fact and degree[22].

 

The court was satisfied that it fell within the exception to the general rule that industrial uses are to be located in the Industry Zone.  Once it is appreciated that there should be a reasonable expectation that a use, such as that proposed, may occur in the Rural Zone, it is then necessary to look at the potential impacts of that use:

 

  1. The expert evidence confirmed that the proposed development, if appropriately conditioned, would have no unacceptable impacts on amenity (operating hours, noise, headlights/light, dust and vehicle movements);

  2. In response to the Respondents argument of intangible impacts on amenity the court noted that it must be considered in the context of the use being reasonably expected.  It was said that the rural zone is a working zone:

"it is not intended to provide a high level of amenity consistent with a residential area or rural residential zone… An area of this character is likely to be dusty and influenced by the noise of plant, equipment and trucks utilised for a primary production purpose. A dominant feature of the locality is the Leichardt Highway that carries substantial volumes of traffic, including heavy vehicles"[23]

 

The court pointed to the character of the locality on several occasions including when assessing whether there were adverse amenity impacts.  The character was said to be influenced by the existing pattern of subdivision which were large rural holdings, not rural residential lots, the existence of the highway which was described as dominant, the largely vegetated edge of the highway, that the site is presently a gap in the vegetated edge of the Highway and that a council depot located on the highway in the general vicinity of the site presented as an industrial use[24].  The depot, like the existing development on the land and adjoining land to the south (which was described as an eyesore) all form part of the existing character of the highway in this locality.

 

The proposal was found to be consistent with this character and that the consistency could be assured through appropriate conditions.

 

Furthermore, it was accepted by the court that particular design features ensure the character of the area was maintained - for instance the low key and low rise nature of the built form, the setback distances, and the provision of a vegetated buffer to provide some screening.  In fact it was found that it would contribute positively to the visual qualities of the rural zone by incorporating the landscape buffer in a location on the highway where the vegetated edge was missing.

 

The application was approved.

 

Amenity and community expectation - urban examples

 

Parmac Investments Pty Ltd v Brisbane City Council & Ors[25] was another case where the expert evidence alone was not determinative of amenity impacts.  The appeal was made against the council's decision to refuse an application for a service station. Uncontested evidence was led by the appellant's witness in respect of noise and light.

 

The appellant argued that the proposed development ought to be within the reasonable expectations of the local residents given the provisions of the environmental management zone code which envisaged service stations in the zone in limited circumstances.  The surrounding residential homes were also in the environmental management zone.

 

In respect of noise, the appellant's expert was of the opinion that there was no reason to refuse the application on the basis of acoustic impacts.  The environment in which the service station was proposed was described as being subject to elevated noise levels 24 hours a day, 7 days a week and that the character of the noise, being primarily vehicle generated noise, would be similar to what was already in existence[26].  It was said by Her Honour that:

 

"[146] These particular noises (referring to noises such as people talking and car doors slamming), although fitting within regulatory noise criteria, will be noticeable, particularly during the later night periods when the background noise levels will be noticeably quieter than during the day. The night-time noise levels would be in the order of fairly standard suburbia night time noise levels.

 

[147] Those noise impacts are also not of a character that the residents might reasonably expect to hear 24 hours a day with the regularity that might be expected from a service station use (as compared to from a neighbouring residence)."

 

In respect of the issue of lighting;

 

"[155] The lighting analysis prepared by Mr King identifies that the proposed development would comply with the requirements of AS4282:1997.On that basis, Mr King opined that lighting associated with the proposed development would not detract from the existing amenity nor result in lighting that offends, in regard to light-spill or glare, when viewed from surrounding residential areas".(footnotes omitted).

 

By reference to a number of provisions of the Australian Standard it was acknowledged and reproduced in the judgment that, amongst other things, it is rarely possible to contain light within the boundary of a property; whether that light spill is intrusive to others involves subjective considerations; lighting is often the focus of complaints as it is highly visible; outdoor lighting will generally have some effect on the environment; "Light impact can be a subjective thing.  The degree of response depends, in part, on the nature of the surrounding developments, the novelty of the installation, and the frequency and times of operation"; and even when technical parameters are met it will not necessarily ensure that there will be no adverse reaction from those affected[27].

 

In concluding on the issue of lighting impacts:

 

"[157] In this case, I am not satisfied that the lighting associated with the proposed development will not have an unacceptable amenity impact given:

  1. the low-key nature of the surrounding developments and the “dark” environment that presently exists;

  2. the proposed development involves 24-hour lighting of the subject land;

  3. the proposed development is not consistent with the outcomes of the Environmental management zone and is not one that ought reasonably be expected by the residents; and

  4. as noted in paragraph [66] above, the proposed development will stand out as a beacon in stark contrast to the adjacent landscape."

 

Despite the proposed development complying with the relevant criteria in respect of noise and lighting it was determined by the court that the appeal be refused, including on the grounds of lighting and noise amenity.

 

Another interesting example in an urban environment is Tadpoles Early Learning Centre v Noosa Shire Council & Ors [2008] QPEC 9 where the decision of Broad was distinguished.  The case concerned a proposed child care centre on land at Sunshine Beach.  The facts of Broad were distinguished on the basis that the trial judge in Broad described the proposed development as a "very large building indeed, one which is quite out of character with the other buildings in the neighbourhood".  Furthermore, the area of the proposed development in Broad was a general appearance of a quiet street of detached houses[28].

 

The subject land of the proposed development was zoned Detaching Housing and the proposed community use was inconsistent.  The appeal was allowed and in dealing with the issue of amenity it was noted that factors relevant to the question of amenity included "…the location of the site on busy roads, and at the very edge of a residential area with a mixed housing and units character. In the 1970s the site was actually the subject of an approval for a petrol station and caretaker’s residence; that is still the sort of use which, on inspection, suggests itself for the site. It simply does not present as presently suitable for residential purposes, whether single or multi-unit.[29]

 

Concluding on this issue;

 

[15] In light of the factors mentioned earlier touching this property (both historical, and current) it is difficult to see how any reasonable analysis of the various factors now affecting this site, and its designation under the current planning scheme, could have led to an expectation that it would necessarily be developed for ordinary residential purposes."

 

Holcim (Australia) Pty Ltd v Brisbane City Council [2012] QPEC 32 is an example where an industrial use was seeking to protect itself from residential development in an urban environment.  The proceedings concerned a development application for a residential multi-unit dwelling proposed in close proximity to a concrete batching plant run by Holcim.  The Brisbane City Plan recognised the concrete plant in its planning scheme.  Relevant performance outcomes included that "the amenity of new residential development must not be affected by…"[30] the operation of the plant.  An accepted solution was that residential development would not occur on the site until the plant ceased operating.

 

The code assessable application was approved by the council and a range of conditions were imposed to minimise a number of potential impacts on the new residents.  Holcim, was successful in seeking a declaration that the decision was invalid on the basis that the council failed to consider the broader amenity impacts, in a Broad v BCC sense.  Holcim argued that there were two aspects to the consideration of amenity - the physical senses namely air quality, noise, traffic and nuisance but also on the quality of life, comfort and pleasantness of the new residents.   While the matter did not deal with the merits of the proposal it was said:

 

"[48] To emphasise the point, the Applicants postulated the reverse situation to the present case where, for instance it was proposed that a concrete batching plant be developed across the road from an existing residential development. The Applicants ask rhetorically whether it could be seriously contended that, in that event, consideration of the concept of amenity would be limited to aspects of noise, dust and traffic only to the exclusion of such aspects as visual appearance, way of life of the neighbourhood, intangible and subjective aspects of standard or class of the neighbourhood, the reasonable expectations of residents of the neighbourhood and the feeling of the area.'

 

A relevant observation was made at [69];

 

[69] The batching plant is a long established industrial use in the area and, as with other industrial uses in Brisbane, it has been exposed to what may be called urban creep whereby the urban development of the city in a particular area slowly but surely creeps closer to the industrial use. In some instances the industrial use is left with no alternative but to relocate. Some would say that is a good thing. But that is not what the City Plan says as reflected in the Neighbourhood Plan."

 

The court determined that council confined its focus in the assessment to air quality, noise and traffic.  However it was obliged to consider all aspects of the concept of amenity before reaching a final decision.

 

Concluding thoughts

 

Protection of amenity is a fundamental town planning principle.

 

Amenity includes both tangible and intangible impacts.  Intangible impacts, including ones perception of amenity are to be assessed by reference to the reasonable expectations of the community - which are informed by the relevant planning controls contained in the planning scheme.

 

The court has acknowledged that rural areas cannot be expected to be entirely free of negative influences.  Local residents cannot expect a rural environment to be entirely free of odours and dust which are intrinsically part of rural life as are a diverse and intensive range of uses.

 

As with all assessments, it will ultimately come down to the individual circumstances of the application including the proposed use, the site and its surrounds and the relevant planning scheme.

 

Some of the key takeaways are that;

  1. Amenity is not an issue that will always be the exclusive domain of the expert evidence, for instance Bassingthwaighte and Parmac Investments referred to above in addition to a number of other decisions in this court, for instance in Mooloolah Commercial Pty Ltd v Caloundra City Council (2005) QPELR 648 at [61] and [92], where despite agreement between experts, the court said it would not import the opinion of the expert in determining what is the communities reasonable expectations for a particular site;

  2. Amenity is informed by the planning controls relevant to a site and to the notion of reasonableness;

 

Under the Planning Act, when the assessment manager is considering a range of relevant matters, they will need to balance the relevant issues in dispute to determine whether to grant an approval. Amenity and community expectation will need to be informed by and balanced against planning scheme provisions and other relevant matters such as the need for a particular proposal. 

 

The planning scheme is relevant in informing reasonable community expectations. However, existing and approved development will still be relevant in understanding a site and the potential amenity impacts of a proposal.

 

At the end of the day the concept of amenity is one that by its nature will never be subject to a strict set of rules - it is wide and flexible and it will ultimately come down to a judgment call after assessing the evidence and the weight that is to be applied to it - but it will not always be the exclusive domain of the expert evidence.

 

 

 

[1] Bell v Noosa Shire Council [1983] QPLR 311

[2] This statement was approved by the Court of Appeal in Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [2000] QPELR 285 at 286

[3] For examples see Novak v Woodville City Corporation (1990) 70 LGRA 233; Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301; Dixon v Burwood Council [2002] 123 LGERA 253; Bim Holdings Pty Ltd v Pine Rivers Shire Council [2002] QPELR 363; Bad Girls Maroochy Pty Ltd v Chief Executive [2004] 2 Qd R 352; and Alex Gow Pty Ltd v Redland Shire Council [2009] QPELR 116

[4] Alex Gow at [32]  

[5] Alex Gow at [27]

[6] The court found in Prime Group that the proposed development did not cause any unreasonable impacts to residents in respect of noise, light or odours however found that it did impact on the amenity of the residents.

[7] Morris Corporation Pty Ltd v Whitsunday Regional Council [2011] QPEC 129 at [253]

[8] Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 at [159] and [160] and Wattlevilla Pty Ltd v Western Downs Regional Council [2015] QPELR 21 at [96]

[9] See Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58 at [53]

[10] See Harris v Scenic Rim Regional Council ([2014] QPEC 16

[11] Mansell v Maroochy at [122]

[12] See Harris at [220] 

[13] Bell v Brisbane City Council & Ors [2017] QPEC 26 at [70]

[14] Bell at [71]

[15] [2019] QCA 132

[16] [2018] QPEC 32

[17] Parmac at [26(a)]

[18] Parmac at [26(c)]

[19] Murphey v Beaudesert Shire Council (2004) QPELR 270 at 277 [53] and Ogilve v Wambo Shire Council 1995 QPLER 202 at 203 K-L

[20] [49] Australian Capital Holdings Pty Ltd v Mackay City Council (2008) QPELR 224 at para [51]

[21] [50] Mooloolah Commercial Pty Ltd v Caloundra City Council (2005) QPELR 648 at [61] and [92].

[22] Bilinga Beach at [86]

[23] Bilinga Beach at [119]

[24] Bilinga Beach at [123]

[25] [2018] QPEC 32

[26] Parmac at [144]

[27] Parmac at [156]

[28] Broad at 321

[29] Tadpoles at [12]

[30] Holcim at [15]

 

 

 

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