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

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