Deane & Ors v Pioneer Shire Council & Anor
[1987] LG 501
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- Deane & Ors v Pioneer Shire Council & Anor[1987] LG 501
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Deane & Ors v Pioneer Shire Council & Anor[1987] LG 501
Deane & Ors v Pioneer Shire Council & Anor[1987] LG 501
IN THE LOCAL GOVERNMENT COURT HELD AT MACKAY | Appeal No. 4 of 1987 |
BETWEEN:
DEANE AND OTHERS | Appellants |
AND:
PIONEER SHIRE COUNCIL | Respondent |
AND:
CAMPUS HOLIDAYS LIMITED | Respondent by Election |
Dates of hearing | – | 22, 23, 24 April 1987 (at Mackay) |
Date of judgment | – | 6 May 1987 (at Townsville) |
Counsel | – | P.O. Land (Appellants) P.J. Lyons (Respondent) T. Trotter (Respondent by Election) |
Solicitors | – | S.R. Wallace & Wallace (Appellants) S.B. Wright, Wright & Condie (Respondent) Macrossan & Amiet (t/a for Feez Ruthning, Brisbane) (Respondent by Election) |
Catchwords
Building control and townplanning – Area outside Brisbane – Pioneer Shire – Application for consent to use land – Seaside Rural “A” land – “Caravan park” as permissible use – Tourist resort having tents as accommodation units – Strategic Plan – No detrimental affect on amenity.
Building control and townplanning – Area outside Brisbane – Application for consent to use land – Service of notice of application on 7 of 10 adjoining owners – Whether substantial compliance with obligation to give notice – No adverse affect – Whether non-compliance should be excused – Local Government Act 1936-1985, s. 33(18).
Local Government Court – Costs – Objectors' appeal dismissed – Respondent council formally applying for costs but conceding subject matter of appeal a legitimate local concern – Weight to be given to Council's concession – Costs refused – City of Brisbane Town Planning Act 1964-1985, s. 31(1).
IN THE LOCAL GOVERNMENT COURT HELD AT MACKAY | Appeal No. 4 of 1987 |
BETWEEN:
JOHN TERENCE DEANE, RAYMOND FOREMAN, EVE ANNE FOREMAN, ALAN WILLIS, PATRICIA MELVILLE WILLIS, ROSALIE ANN SPENCE, BARABARA PEYTON CUNNINGHAM, JAMES EDWARD BROWN, JEFFERY VALENTINE ROGERS, DOROTHY JANE ROGERS, FAYE EDITH JOHNSEN, THUNG SING TIONG, SUAN TING TIONG and JOHN BRIAN NIXON | Appellants |
AND:
PIONEER SHIRE COUNCIL | Respondent |
AND:
CAMPUS HOLIDAYS LIMITED | Respondent by Election |
BEFORE HIS HONOUR JUDGE I.McG. WYLIE Q.C.
JUDGMENT
DELIVERED AT TOWNSVILLE THE SIXTH DAY OF MAY, 1987
1. This objectors' appeal was entered for hearing on March 6, 1987 and on May 6, 1987 I delivered my judgment dismissing the appeal. These are my reasons for that decision.
2. Before considering the merits of the appeal, I will give my written reasons for a ruling which I made at the commencement of the appeal. I found that there had been non-compliance with the provisions of s. 33(18)(a)(v)(A) of the Local Government Act 1936-1985. I also held that there had been substantial compliance with those provisions and, as I found that no person had been adversely affected by such non-compliance, I directed that it be taken those provisions had been complied with.
3. The land the subject of this appeal is described as Lots 100, 101, 102 and 105 on Registered Plan 28102 and part of Lot 554 on Registered Plan C14241 in the Parish of Bassett County of Bassett. Lots. 100, 101, 102 and 105 have been at all relevant times owned by Dolphin Heads Developments Pty. Ltd. Lot 554 is Crown land.
4. On July 18, 1986 the respondent Council approved an application to use Lots 100, 101, 102 and 105 supra for the purpose of 50 tent sites and recreational facilities for camping tours.
5. On December 8, 1986 the application which gives rise to this appeal was submitted to the respondent Council: the use proposed was “Caravan Park - 100 tent sites and facilities (extension of existing 50 site use)”. As will be appreciated, that application encompasses the additional area of part of Lot 554 which was not the subject of the Council's earlier consent.
6. So far as is material, s. 33(18)(a)(v) of the Local Government Act 1936-1985 obliged the respondent Council to serve or cause to be served notice of the application -
“(A) where the land to which the application relates or applies comprises any allotment or allotments, on the owner of any allotment adjoining that land where such owner is other than the applicant; or
- where the land to which the application relates or applies comprises part of any allotment or allotments, on the owner of any allotment adjoining the allotment or allotments of which the land comprises part where such owner is other than the applicant;”
before deciding the application.
The respondent Council undertook the duty of serving such notices.
7. When the hearing of this appeal began, Mr. T. Trotter of counsel, for the respondent by election, properly drew my attention to the fact that it had been discovered that, before deciding the application, the Council had served notice of the application on seven persons only and not on ten persons, as it ought have done. It appears that Council employees did not appreciate that the second application extended also to part of Lot 554.
8. I gave Mr. Trotter leave to file and read affidavits sworn by Mr. J.D. Graham, Mr. V.G. and Mrs. P. Reedman and Mr. T.C. and Mrs. T.A. Atherton.
9. Mr. Graham is the owner of land adjoining the subject land. He was not duly served by the Council with the required notice but he has now been served with such notice. Mr. Graham deposes -
“...I observed the public notice containing details of the said application erected on the road frontage on Beach Road, Dolphin Heads and was at the time of lodgment of the said application by Campus Holidays Limited and at all times thereafter aware of the application lodged by Campus Holidays Limited and in particular was aware of my right to object to the said application by Campus Holidays Limited.
I did not wish at the time of lodgment of the said application or at any time thereafter to object to the said application by Campus Holidays Limited and state that, if I had lodged an objection, I would not have wished to exercise my right to institute an appeal to the Local Government Court against the decision of the Pioneer Shire Council to approve the said application by Campus Holidays Limited.”
10. Mr. and Mrs. Reedman are the owners of land adjoining the subject land. They were not duly served by the Council with the required notice but have now been served with such notice. They jointly depose -
“.. we were at the time of lodgment of the said application by Campus Holidays Limited and at all time thereafter aware of the application lodged by Campus Holidays Limited and in particular were aware of our right to object to the said application by Campus Holidays Limited.
We did not wish at the time of lodgment of the said application or at any time thereafter to object to the said application by Campus Holidays Limited and state that, if we had lodged an objection, we would not have wished to exercise our rights to institute an appeal to the Local Government Court against the decision of the Pioneer Shire Council to approve the said application by Campus Holidays Limited.”
11. Mr. and Mrs. Atherton depose similarly to those persons but add -
“we observed the public notice containing details of the said application erected on the road frontage on Beach Road, Dolphin Heads ...”
Mr. Atherton is a director of Dolphin Heads Developments Pty. Ltd. That company was the applicant for the respondent Council's earlier consent referred to in section 4 of these reasons. As appears in his affidavit filed in this Court on March 27, 1987 on behalf of that company -
- pursuant to contract dated November 7, 1986 that company contracted to sell Lots 100, 101, 102 and 105 to Campus Holidays Limited and that contract was settled on December 22, 1986;
- by agreement dated November 18, 1986 that company agreed to sublease part of Lot 554 (some 4,000 square metres) to Campus Holidays Limited (the company is the lessee of that land from the Crown);
- at the time when the application which has led to this appeal was lodged, that company was aware that an application was to be made for consent to use the land the subject of this appeal for the purpose of “caravan park – 100 tent sites and facilities (extension of existing 50 site use) and consented to and supported the making of such application.
12. Section 33(18) of the Local Government Act contains provisions whereby notice of a town planning application “shall” be given to the public generally and, in particular, to the person or persons thought most likely to be affected by the proposed use, namely an adjoining land owner. As s. 33(18) provides, such notice shall be given before the local authority decides the application. If the local authority purports to decide an application before those requirements are observed, its decision will be of no effect since it lacked statutory authority to do so. There is power to relieve against the consequences of any non-compliance with the procedures set out in s. 33(18). Section 33(18C)(2), so far as is material provides -
“Where, in respect of -
.........
- an application to a Local Authority for approval, consent or permission to use any land or to erect or use any building or other structure for a purpose permitted by a town planning scheme; or
.........
any provision of this section ... has not been complied with but the Court considers -
- there has been substantial compliance with the provision; and
- that no person had been adversely affected by such non-compliance,
the Court may direct that it be taken that such provision has been complied with and thereupon it shall be taken accordingly.”
13. I was in the bourse of argument referred to three decisions of His Honour Judge Row.
14. In Guse -v- Brisbane City Council (1980) 6 Q.L. 220 the judgment of His Honour Judge Row does not reveal how many abutting owners there were; however it was stated that one of the abutting owners had not been served. The judgment records that it was submitted on behalf of the respondent Council and the respondent by election that, as there had been no service of the relevant notice on one of the abutting owners, there was in fact no compliance with the statutory requirement and so it could not be said that there was substantial compliance.
His Honour correctly observed that the word “substantial” is generally of no fixed meaning and that it was necessary to look to the context to ascertain what meaning ought to be given to it. After referring to various examples of the use of the word in other contexts, His Honour referred to this dictum of Douglas J. (with whom Matthews J. and Sheahan J. agreed) in Pioneer Concrete (Qld.) Pty. Ltd. -v- Brisbane City Council (1979) Qd.R. 358, at p. 363 -
“There can be no question but that if these people were abutting owners, entitled to be served, a failure to serve them seems to be fatal to the respondent's application.”
Pioneer Concrete concerned an application made before the dispensatory provision of s. 22(18) of City of Brisbane Town Planning Act came into operation on December 2, 1978. Immediately after such reference His Honour set out his decision -
“In the context of s. 22(2) of the Act substantial compliance, in my opinion, relates to the degree or extent with which there has been compliance with the statute. The statutory requirement relates to service on the owners of the abutting land and not to some of such services. Where an abutting owner has not been served there has been no compliance with the statutory requirement in relation to that owner. In my view it cannot be said that such non-compliance amounts to a substantial compliance of the statutory obligation under s. 22(2) of the Act.”
15. In Denham Bros. Limited -v- Livingstone Shire Council (1986) Q.P.L.R. 45 the factual circumstances were quite different. In the Livingstone Shire the Council assumed responsibility for giving notice of an application; no obligation was cast upon the applicant. The respondent Council failed to give notice of the application to adjoining land owners at any time before deciding the application. The applicant (as respondent by election) became aware of that and at “very recent times” before the hearing of the appeal caused notice to be given to the adjoining owners. There was put before His Honour Judge Row affidavit evidence demonstrating that each of the six adjoining owners was aware of the application shortly after its lodgment and of his right to object to the application and had never intended to lodge an objection. His Honour said -
“...I do not see that those facts in themselves can be in any way regarded as a form of substantial compliance with a statutory requirement, mandatory in form whereby the respondent is obliged to serve or cause to be served, notice of the application on adjoining owners. The fact that there has been recent service of such material on adjoining owners is of some very limited significance and perhaps may be a distinguishing factor in other decisions which have been made where no such service has been effected ...
The material in the affidavits demonstrates, and I accept, that no person has been adversely affected by such non-compliance. That, however, is not sufficient because before the exculpatory power of the Court can be exercised it is necessary to find that there has been substantial compliance which, on the evidence, I am not so satisfied.”
16. In All-a-wah Carapark Pty. Ltd. -v- Noosa Shire Council (1986) Q.P.L.R. 196 the notice to the only adjoining landowner was to be served by the Council. The application was dated June 14, 1984. The Shire Clerk searched the Council's Rates Book which showed that adjoining owner as “T.A. & J.A. Hook Investments Pty. Ltd.” The application bore the common seal of All-a-wah Carapark Pty. Ltd. and the statement that it was affixed “by Terrence Alexander Hook, a director, and Judith Anne Hook, a director”. The Shire Clerk formed the belief that the directors of T.A. & J.A. Hook Investments Pty. Ltd. were the same as the directors of the applicant so he treated the adjoining owner as though it were the applicant and did not service notice on the adjoining owner. Unfortunately on September 28, 1981 that landowner had changed its name to Villa Noosa Hotel/Motel Pty. Ltd. and subsequently each of Terrence Alexander Hook and Judith Anne Hook resigned as directors. Mr. Hook was the last to resign on January 19, 1984. Once again there was affidavit evidence showing that Villa Noosa Hotel/Motel Pty. Ltd. was aware of the application, had no objection to it, would not have objected to it, and in fact supported the application. His Honour Judge Row found that there had been a non-compliance in relation to the giving of notice to the adjoining owner. Mr. T. Trotter, for the present respondent by election, drew my attention to this statement of His Honour Judge Row in the course of his reasons -
“This is not a case in which only one or some of adjoining owners have not been served with the requisite notice of the application.”
His Honour dismissed the appeal because of such non-compliance.
I was also referred to Spencer -v- Douglas Shire Council (1982) Q.P.L.R. 56 - a decision of His Honour Judge Ambrose Q.C. (as he then was). At.p. 58 His Honour said -
“In my view the posting of a notice on only one of two road alignments cannot be regarded as a substantial compliance with the mandatory requirement of the Act that such a notice be posted on each road alignment and such a failure to comply with the mandatory section of the Act may not be excused pursuant to s. 33(18C)(2)(b) of the Act and in this regard I adopt with respect the approach of Row D.C.J. in Guse & Anor. -v- Brisbane City Council ...”
and “If the land abutting the northern boundary of Lot 7 be an “allotment” within the meaning of s. 33(18)(a)(v)(A) then failure to serve a notice of the application upon the Crown as owner thereof is a breach of this section which cannot be excused pursuant to s. 33(18C)(2)(b) of the Act. In this respect see Randall -v- Brisbane City Council (1981) 2 Q.P.L.R. 65 and Guse -v- Brisbane City Council ...”
It would appear from that report that there was no other adjoining owner requiring to be given notice.
17. I was not referred to Ridgewood Development Pty. Ltd. -v- Brisbane City Council (1985) 2 Qd.R. 48 - a decision of the Full Court which considered the equivalent “substantial compliance” provisions of the City of Brisbane Town Planning Act 1964-1984. The principal judgment was that of Carter J. who, before his elevation, was a distinguished member of this Court. That was an appeal from a decision of this Court that there had been substantial compliance with the provisions of s. 22 of that Act and further that no person had been adversely affected by such non-compliance as there had been. An appeal to the Full Court against a decision of this Court lies only for error or mistake in law or want of or excess of jurisdiction. See s. 28(3) of the City of Brisbane Town Planning Act. That ratio of the Full Court's decision was that the questions of substantial compliance and of adverse affect due to non-compliance were ones of fact. However Carter J. made these observations, at p. 52 -
“Section 22D leaves for the consideration of the Local Government Court the questions whether there has been substantial compliance with the statutory provision in question and whether any person has been adversely affected by the non-compliance. Considerable argument was directed to the question whether there had been “substantial compliance” with the Act by the posting on the land of a notice in the above form.
Dealing with the question whether there had been “substantial commencement” of a building so that a building approval had not become void, the High Court in Day -v- Pinglen Pty. Ltd. (1981) 148 C.L.R. 289 at 299 said:
“We come then to this question of substantial commencement. As has been said, it is a question of degree. The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind.”
In my view the question whether there has been substantial compliance with the requirements of s. 22 of the Act as regards the content of the notice is likewise a question of degree, and that being so it is a question of fact. Section 22D requires the Local Government Court, the Court whose jurisdiction in appeals from decisions of the Council is exclusive (s. 28(2)), to consider the facts of each case where there is suggested non-compliance with the provisions of s. 22 and to determine firstly whether such compliance as there has been is substantial or not. The result in each case will depend upon its own facts and the relevant circumstances bearing in mind “the statutory purpose” or the particular provision. It will always be a question of the degree of compliance and the result will differ from case to case. Between, on the one hand, strict compliance, and on the other, no compliance at all, there will be varying degrees of compliance. It is for the Local Government Court to say whether in the particular case the degree of compliance is substantial or otherwise. That in my view is a question of fact. Similarly the question of any potential adverse affect upon others on account of the failure to strictly comply is for the Local Government Court to determine. That question also, is a question of fact.”
18. I apply those observations in my approach to the question of whether there has been “substantial” compliance with the obligation to serve adjoining owners. This case must be considered on its own facts and not by reference to the facts of or decision in any other case before this Court.
19. Substantiality can be both quantitative and qualitative. Quantitatively, 70% of the adjoining owners in number were served with notice of the application before the Council decided it. But if that 70% owned comparatively less of the adjoining land than the unserved 30% the quality of the compliance would be less. I am satisfied that such a consideration does not arise here. The statutory purpose is to acquaint adjoining owners with the fact of the application. Section 33(18)(d) provides that the notice to adjoining landowners shall contain the information prescribed by s. 33(18)(b)(ii) and (iii) to appear in the public notice to be posted on land. Mr. Graham and Mr. and Mrs. Atherton each depose to having seen the public notice posted on the subject land. Thus they had notice of the application albeit in the capacity of members of the public. Mr. and Mrs. Reedman depose to being aware of the application at the time of its lodgment but do not say how they came to know or whether they knew all the matters which would appear in the public notice. But, since the prime object of notice is to give the adjoining owner an opportunity to object, that object has been fulfilled by their having deposed to their awareness of their right to object. As for Mr. Atherton, his involvement as a director of Dolphin Heads Development Pty. Ltd. gave him knowledge of the application. So, all matters considered, this is not a case of adjoining owners who were at all relevant times unaware of the application.
20. In judging the degree of substantiality of compliance with the obligation to give notice to adjoining owners, I consider that I can have regard to the provisions of s. 33(18)(d)(ii) of the Act which provides that the notice to adjoining owners -
“shall be sufficiently served on an owner if it is sent by post addressed to him at his address as shown in the records of the Local Authority relating to the levying of rates.”
That provision does not prevent personal service on an adjoining owner nor does it prevent demonstrated service at some other place; it simply sets out what will be a statutorily acceptable means of giving notice. While I do not criticise choice of the Rates Book address, it should not be assumed that service by such means will in every case result in the owner receiving notice of the application and, even if he does, will result in receipt of the notice in sufficient time to lodge an objection. Not every owner of adjacent land will reside on that land. Such indeed is the case with Mr. Graham, Mr. and Mrs. Reedman and Mr. and Mrs. Atherton; they all live elsewhere. Resort to the Rates Book will not necessarily disclose the true owner of the land since the land may have been sold or title otherwise transmitted without notice having been given to the local authority. The owner also may not be at the address in the Rates Book any longer, notice of change of address not having been given to the local authority. I allow that mail may be readdressed and letters addressed to a former owner may be passed on, but the notice may be late in reaching the owner. It may then be said that Parliament has selected a means of giving notice to an adjoining owner which focusses on the means of service rather than the fact of actual receipt of notice. I take that potential deficiency into account in judging the degree of substantiality of compliance even though this is not a case where there was a posting of notices to the persons above mentioned.
21. I consider that in this case the degree of compliance was such as to permit of a finding of substantial compliance. The persons not given notice have sworn that they were not adversely affected by the failure to give them written notice of the application. Thus I consider that, in the exercise of my discretion, it was appropriate to give the direction I did.
22. I turn to consider the merits of the appeal.
23. This is an appeal by fourteen persons who had duly objected to the granting by the respondent Council of its consent to the use of 21,835 square metres of land at Beach Road Dolphin Heads in the Rural “A” zone for “Caravan Park - 100 tent sites and facilities (extension of existing 50 site use)”. That application was lodged with the respondent Council by the respondent by election on December 8, 1986. Twenty-three objections were received by the respondent Council before the closing date for objections. A number of those objections were signed by more than one person.
24. The respondent Council had on July 18, 1986 granted consent to Dolphin Heads Developments Pty. Ltd., to use much the same area of land (some 17,385 square metres) for “Caravan Park - 50 tent sites and recreational facilities for camping tours”. That application showed that site buildings were to be three shelter sheds each 6 metres square and three ablution blocks each 4 metres in diameter. It also showed that three employees were proposed to be engaged on the land and that “machinery” proposed to be used on the land would be three tour coaches with chuck wagons while parking provision would be made for six motor vehicles. None of the objectors to the second application who gave evidence before me objected to the granting of consent to that first application. They did not object, it would seem to be, because they understood that the tents would be “pup” tents erected prior to the arrival of each group of campers and struck on their departure and that the stays would be of short duration. The second application is for double the number of tents of larger dimensions which will be more or less permanently standing and there will be a large recreation building, an ablutions block in addition to the ablution areas in the recreation building and four shelter sheds, two tennis courts and a swimming pool. It is to the consequences of such enlargement of the use that they object. I draw no inference adverse to the appellants because they did not object to the first application. Indeed it may be said that the different responses to the applications spring from a reasonable acceptance of the first application as a consequence of town planning of the locality and from a concern for the perceived effect of the second application upon the locality of the subject land.
25. The first application was approved subject to the following conditions -
“1. Undertaking of the proposed use by the applicant generally in accordance with the details shown on the site layout plan.
- Upgrading of the development by the applicant in line with other tourism developments in the locality as and when they proceed, and to a standard to be agreed upon with the Council at the appropriate time.
- Compliance by the applicant with the Council's Camp Regulations and any other requirements of the Council's Health Department.”
Those conditions may have been adequate reasonable and relevant for that approval. That they are less detailed than those imposed upon the approval with which I am concerned reflects, in my opinion, the attention which the respondent Council paid to the objections lodged by the appellants and other objectors and its attempt to accommodate their concerns.
25. The second application which is the subject of this appeal was, on February 3, 1987, proposed to be approved by the respondent Council subject to the following conditions -
“1. The number of tents shall be a maximum of 100 or lesser number applicable following submission of a revised layout plan for separate approval demonstrating compliance with conditions set out herein.
- Each tent shall accommodate a maximum of six persons. Associated buildings shall be used by caravan park guests only.
- The location and spacing of tents including any annexe shall comply with the following:
a. Tents shall be located a minimum of 3 metres apart and 3 metres from any buildings, structure and property line except that such setback shall be increased along the beach frontage.
b. Along the beach front tents shall be set back a minimum distance of 6 metres from the beach designated by the seaward limit of vegetation or to of batter adjacent to the beach whichever is the greater. Reclamation of the Beach shall not be carried out except where approved by Council. In the event of landward change to the beach line, ten setbacks shall meet the above requirements by removal of tents where necessary.
- All buildings including shelter sheds shall be located clear of the erosion prone zone as determined by the Beach Protection Authority.
- The use of land within the erosion prone zone shall be carried out in accordance with the recommendations of the Beach Protection Authority except as varied herein.
- Offstreet parking shall be assessed based on:—
∗ Tent sites - 0.75 bays per tent site
∗ Employees - 1 bay per 2 employees
∗ Visitors - 1 bay per 10 tent sites
∗ Other uses (bar, food servery, kiosk) sufficient bays as determined by Council in accordance with Council's Town Planning Scheme.
∗ Provision for 3 buses.
However based on submissions contained in Sanders Ellick & Associate Pty. Ltd., letter of 2nd February, 1987, the proposed parking of 59 bays and 3 bus sites would be accepted if it can be demonstrated that the use of the land and transport arrangements are as indicated. Where a need for increased parking is evident then such parking shall be provided with subsequent reduction in area available for tent sites. The revised layout plan shall include an area available for additional parking.
- External access shall be provided via. Beach Road by bitumen sealed road 6 metres wide from Ian Wood Drive to the subject land in accordance with plans and specifications approved by Council.
- The subject land shall be drained by an approved system of underground draingage discharging to a lawful point of discharge at the creek/tidal lands to the west in accordance with plans and specifications approved by Council.
- Town water supply will be available in Ian Wood Drive approximately in June, 1987 and water supply works external from Ian Wood Drive via. Beach Road to the subject land. Water supply headworks contributions shall apply in accordance with Council's policy documents. Internal reticulation shall provide adequate provision for fire fighting in accordance with the requirements of the Fire Safety Officer and Council. Any temporary supply shall be to details approved by Council.
- A Council sewerage scheme will be available to receive connections from the subject land approximately between June and December, 1988. Sewerage will be extended to the boundary of the land under Council's scheme. Sewerage headworks contributions shall apply in accordance with Council's policy documents. Any temporary sewerage disposal system shall be to details approved by Council.
- Filling/building floor levels shall be to the following minimum levels and requirements as follows:
Fill to camping areas and offstreet parking | RL 4.5 AH |
Urban areas generally | RL 5.0 AH |
Building floor levels | RL 5.4 AH |
Filling/excavation in the beach erosion prone zone shall not be carried out except with the separate approval of Council and in accordance with recommendations of the Beach Protection Authority.
- Landscaping shall be provided in accordance with a design prepared by an approved landscape architect to Council approval. Provision shall be made for an appropriate landscaped buffer 3 metres wide at the perimeter adjacent to the tent sites.
- Individual allotments are to be amalgamated by survey.
- Internal amenities and services shall be provided in accordance with Council's By-Laws - Caravan Parks - Chapter 45. Where appropriate, additional facilities shall be provided as assessed by Council's Health Department to make provision for the higher anticipated occupancy of tents.
- Noise levels shall be contained to levels recommended by the Noise Abatement Authority and Council.”
26. The appellants' notice of appeal filed on March 6, 1987 contained ten grounds of appeal. At a directions hearing in Brisbane on March 27, 1987, I ordered that the matter in issue in this appeal be identified as those set out in the following grounds -
“1. The granting of the Application would be wrong in and contrary to law.
- The decision to grant the Application is wholly unreasonable.
- The Respondent failed to give any or any proper weight to the objections lodged by the Appellants.
- The said Application failed to conform with the requirement of law as follows and ought not have been considered by the Respondent:—
............
- the statement within the Application that the proposed use of the subject land was “caravan park, 50 tent sites and associated facilities (extension of existing use on adjoining sites)” was inaccurate and misleading in that there was no such existing use.
............
- The Respondent acted on a false and erroneous basis in considering the proposal as an extension of an existing use.
- The proposal is contrary to and inconsistent with the existing use of nearby land, the amenity of the locality, and principles for good town planning.
- The proposal will resulting in over-development of the subject land.
- In approving the proposal the Respondent has taken no, or insufficient, account of:—
- nuisance which will be created for residents in the locality by noise on the subject land and increased traffic flow on and about it;
..............
- The proposal is inconsistent with the proper management of an erosion control area.”
27. Ground 6 did not emerge as an issue at the hearing. However ground 4(b), which was not so identified, was canvassed at the hearing; that ground was -
“(b) it was not accompanied by an environmental impact study report and statement of impact prescribed by the policy statement adopted by the Respondent and applicable thereto;”
28. I am satisfied that the respondent Council considered the second application on its own merits and not on the basis that it was an extension of the use to which consent was given on July 18, 1986. Perusal of the Council's town planners' report to the Council with respect to the second application reveals that the different natures of the uses proposed were noted and commented upon. That disposes of ground 6.
29. The objections referred to in ground 3 of the notice of appeal are individually composed and do not follow any common precedent. A common thread runs through them. I am indebted to Mr. Nolan, the respondent's town planner for the following summary of the objections -
“1) Procedural
– No advertisement stating application of the 5th December, 1986 withdrawn.
– Application not stating that it includes the previously approved 50 sites.
– Matter of objections being unclear with regard to the withdrawn application, i.e. are objection for the withdrawn application still considered for the fresh application?
– Should the application dated the 8th December, 1986 be over ruled by objection, is the existing approval for 50 tent sites automatically withdrawn considering it is now part of the application of the 8th December, 1986?
– An Environmental Impact Study (EIS) has not been conducted.
– This application is not an extension of the previous application for 50 tents intended for “Safari Tours”.
– The application was not accompanied by the authority of the owner of Lots 100, 101, 102 and 105 on RP 28102.
2) Town Planning Definitions
– The proposal usage would constitute a high density development, and it is believed that an Environmental Impact Study is required.
– Permanent tents must be classed as Accommodation Units and therefore are prohibited in a Rural A zone.
– The proposed use is not a caravan park.
– Size and parcel of land is inadequate for the proposed use and density.
3) Amenity
– This application will result in a security risk for permanent residents.
– The natural beauty of the area would be permanently destroyed.
– Low class accommodation will attract undesirable types of people.
– Lowering of tourist standards at Dolphin Heads and reducing the amenity in Eimeo.
4) Traffic/Carparking
– Increased traffic, unsafe condition of road from Eimeo Road School.
– Eimeo Road is not suitable for any excess traffic.
– Camilleri Street is a hazard at present and is not safe for excess traffic.
– Traffic hazard and danger to pedestrians in Ian Wood Drive.
– Increased traffic on residential roadways.
– Carparking - What provision has been made?
5) Services
– This area is not sewered - no details of waste disposal.
6) Environmental
– Type of accommodation not suited to the weather conditions.
– Disturbance of mangroves and sand erosion would cause major environmental damage.
– Inadequate shelter from cyclones in main buildings.
– Danger of snakes entering tents.
– Health hazard due to mosquitoes and the nuisance caused by midges.
– Any spraying for midges and mosquitoes may result in drift of spray being blown on to residential properties.
– Increased noise and pollution.
– Danger of damage caused by windblown debris in a cyclone as tents are not Class I structures.
– Horse riding on the beaches would damage the seafront.
7) Others
– Devaluation of property values.
– Tourists will trespass while gaining access to the beach or climbing the hills to gain a view. The planned number of sites cannot be absorbed in the locality.
– The objections to the Grech application are valid in this case also.
– No guarantee that the site would not be used for caravans.
– A bar in the resort would be a deterrent to many families.
– Bridge appears to be on public beach and would deny boat access to Eimeo Back Creek.”
30. Not all of those matters were agitated by the parties upon the hearing. I will refer only to those which were.
31. As to the objections upon procedure, I should mention that on March 27, 1987 I made an order pursuant to s. 33(22c)(2)(b) relieving the applicant against the consequences of the fact that the application was not accompanied by the consent of the owner of the subject land.
32. In connection with matters of procedure, I will refer to the submission of the appellant's town planner that the application should have been accompanied by an environmental impact study, which it was not.
33. Section 32A of the Local Government Act relevantly provides -
“32A. Environmental Impact. (1) Without derogating from any of its powers under this Act or any other Act, a Local Authority, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, shall take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.
- A Local Authority may, from time to time, adopt by resolution a policy statement prescribing that an application for its approval, consent, permission or authority for the implementation of a proposal of a type specified in such policy statement shall be accompanied by an environmental impact study report and statement of impact and the matters and things which shall be dealt with in such report and statement.
............
- Upon the adoption by a Local Authority of a policy statement under subsection (2), every applicant to the Local Authority for approval, consent, permission or authority in respect of a proposal of a type specified in such policy statement shall accompany his application with an environmental impact study report and statement of impact setting out the matters and things prescribed by such policy statement as being relevant to that type of proposal.”
Subsection (1) was a clear direction to the respondent Council to take into consideration whether the proposed use of the subject land would produce any deleterious effect on the environment; that subsection does not make that the only matter to be considered; environmental impact is one of many matters to be considered and weighed against each other.
34. Pursuant to subsection (2), on November 21, 1986 (shortly before this application was lodged) the respondent Council resolved to adopt this policy -
“Environmental Impact Studies are required to be undertaken in association with a proposal to use, develop or subdivide land where, in the opinion of Council, such use, development or subdivision of land will result in a significant impact on the environment or effect on services, existing business activity, existing industry or public safety.
Any application to Council to use, develop or subdivide land shall, where required, be accompanied by an Environmental Impact Study and the study shall include an evaluation of those matters set out above which are relevant to the proposal to use, develop or subdivide land.
Where an applicant is uncertain whether Council requires an Environmental Impact Study or where such study is required, the applicant is uncertain of the extent of the matters to be included in the study, the applicant should, prior to making the application formally request the advice of Council in this regard.
In making such request the applicant should submit sufficient details of the proposal in order that Council may gain a reasonable appreciation of the proposal and make an assessment of those matters, if any, that should be the subject of study.
Subsequent to receiving a request in respect of the above, Council will advise if an Environmental Impact Study is required and where such study is required will, when requested to do so, list the study parameters in respect of the preparation of the Environmental Impact Study.
In setting the parameters for an Environmental Impact Study, Council will use as a guide, the Classification and Study Parameters as set out in the Department of Local Government Circular dated 17th October, 1973, however, other classifications and study parameters as determined by Council may be appropriate in certain circumstances.”
The key words of the first paragraph of that policy are “in the opinion of Council”. The effect of that paragraph is to require submission of an impact study only where the Council forms the opinion that the proposed use will have a significant impact on the environment. Should the council not form that opinion, in other words should it consider that there will be no impact or that any impact will be at a level lower than “significant”, an impact study will not be required pursuant to the policy.
Section 32A(2) of the Local Government Act only requires an environmental impact study report when the local authority has adopted a policy prescribing the type of application which is to be accompanied by such a report. The Council's policy prescribes the type of application by reference to Council's opinion as to whether or not there will be any significant impact on the environment. If it does not form an opinion that there will be any significant impact on the environment, in my opinion s. 32A(4) of the Act will not apply since then the application will not be “in respect of a proposal of a type referred to in such policy statement”.
35. Section 32A(1) of the Act refers to “any deleterious effect” in the sense of any harmful effect. The policy refers to “a significant impact” in the sense of “inviting attention, noteworthy, of considerable amount or effect or importance, not insignificant or negligible (Concise Oxford Dictionary). A significant impact will not necessarily be a harmful impact. “Significant” refer to factors that are outstanding or crucial, or that have considerable force or effect. The adjective suggests something that is outstanding because it is especially meaningful or excellent. To pick up the policy's reference to “significant impact on... existing business activity”, tourist developments proposed for an area are often lauded for the significant business and employment income they will generate. On the other hand “deleterious” connotes harm and has no positive attribute. The words are not synonyms. As it was not the subject of submissions to me, I will leave open the question whether or not the Council's policy insofar as it refers to significant impact on the environment is truly referable to the policy contemplated by s. 32A. There could be no such debate if the policy were to echo the wording of s. 32A(1) and refer to “deleterious” impact.
35. When considering the application the respondent Council had before it a report by Mr. G.A. Nolan, an engineer and town planner of considerable experience. In the course of giving evidence before me Mr. Nolan impressed by his knowledge of townplanning and engineering problems in the Pioneer Shire and with his sensible practical approach to their solution. He exhibited humane concern for the matters troubling the objectors. He, in that report considered and assessed the “environmental” objections at length under headings such as parking, traffic, storm water drainage, water supply, sewerage, beach erosion, storm surge, and landscaping. His recommendation was that, provided the Council set reasonable and relevant proposals, the application would be unlikely to reduce the amenity of the area, no traffic hazard would be created, and the environment would not be unduly damaged.
36. By its resolution proposing to approve the application, the respondent Council should be assumed to have formed the opinion that the use proposed by the application would not result in a significant effect on the environment such as to require an environmental impact study to be carried out. Because Mr. Nolan's report was before it, the respondent Council should also be assumed to have carried out the duty imposed upon it by s. 32A(1) of the Local Government Act. Now that the parties to this appeal have put all their evidence before me, I can see no reason why the respondent Council should have required an environmental impact study as an aid to its deliberations. Furthermore, I note that, at the hearing of this appeal, the appellants put before me no expert evidence which might have demonstrated any possible adverse affect, notwithstanding that the onus of proof rests upon them (Local Government Act, s. 33(18)(k)).
37. For many decades Eimeo has been a near, and peaceful, seaside retreat for residents of Mackay and its region and also for visitors to the region. Of more recent times it, and other seaside areas to the immediate north, have experienced an upsurge in popularity both for tourist purposes and for permanent residency. Eimeo Beach is wide, sandy, reasonably level and washed by the waters of the Pacific Ocean. It sweeps in a gentle curve between two headlands. The residential area of Eimeo is located at the northern end whilst the Eimeo Hotel - an old fashioned country hotel - is situated a top the northern headland. The attractions of Eimeo were spoken of with enthusiasm and some nostalgia by those witnesses who live there or who maintain longstanding holiday homes there.
38. In the 1970's residential subdivision came to the area of the southern headland and of the coastal ridge running from it back towards another increasingly popular seaside residential area - Blacks Beach. That area has come to be known as Dolphin Heads. The allotments on the ridge have a commanding view north over the intervening country of the ocean and of Eimeo and to the south of the ocean. The allotments run downwards to the highwater mark. A number of new, some quite obviously expensive, homes have been constructed. One common thread ran through the evidence of those witnesses who live there or who own land there - Dolphin Heads fulfilled their notion of a tropical paradise.
39. The land behind Eimeo Beach and between Eimeo and Dolphin Heads is somewhat low-lying. About two-thirds of the way between the two headlands - nearer to Dolphin Heads - and adjacent to the land the subject of this appeal - is a reasonably large tidal creek. It seems to have no name or at least none known to local residents. None assented to the suggestion that it was known as Mudcrab Creek. When I inspected the area I saw the mouth of the creek at low tide. There was a large area of exposed sand and sufficient quiet water for wading. However the evidence was that the creek is very deep at high tide. One consequence of that is that persons who cross the creek at low-tide whilst walking along the beach cannot recross should they make the return journey at high tide. The beach provides the only direct route between Eimeo and Dolphin Heads; by road the journey is circuitous.
40. Adjacent to both the subject land and the beach stands the Dolphin Heads Tourist Resort, a modern, yet in its surroundings unobtrusive, development offering holiday accommodation for a limited number of guests and having a limited hotel licence under the Liquor Act 1912-1984.
41. The Town Planning Scheme for the Shire of Pioneer was published in the Government Gazette of November 26, 1983. Under that Plan land in the Eimeo township is zoned, in the main, Residential “A” with some business, Special Purposes and Public Open Space zones on the foreshore at Eimeo. Land at Dolphin Heads was zoned Rural “A” notwithstanding some recent subdivision there for residential purposes. The Strategic Plan which formed part of the Town Plan showed Eimeo and a narrow coastal strip between Eimeo and Black's Beach, including Dolphin Heads, as “urban”. However, at that time, Eimeo - Dolphin Heads - Black's Beach was not regarded as constituting a recognised residential neighbourhood because -
- road access was poor; in fact there was not a continuous road to Dolphin Heads;
- there was no water supply to Dolphin Heads or Black's Beach;
- there was no sewerage reticulation to Eimeo, Dolphin Heads or Black's Beach;
- Council decided that other neighbourhoods in the Shire had priority for funding of public infrastructure;
- the need for contributions to public infrastructure was foreshadowed.
42. The subject land is included in the Rural “A” zone under the town planning Scheme. According to the Scheme the intent of that zone is to provide areas used or suitable for use for rural production for commercial purposes; it is further provided that, unless exceptional circumstances exist, land zoned rural is reserved for rural production. The subject land is not used rural production; having seen the subject land I find it difficult to contemplate it as being suitable for rural production. There was no suggestion in the evidence that it was so suitable.
43. Notwithstanding that statement of intent, reference to the Table of Zones shows that a variety of uses may occur in the rural zone. Prohibited uses are: accommodation units, advertising hoardings, agricultural showrooms, airline terminals, bulk stores, bus depots, car repair stations, caterers' rooms, catering shops, commercial industries, commercial premises, freight terminals, general industries, heavy industries, hospitals, institutions, junk yards, light industries, machinery showrooms, motor vehicle showrooms, multiple dwellings of all classes, noxious or hazardous industries, off-street car parking, service stations, shops, showrooms, transport terminals, and warehouses. As-of-right uses are: agriculture, animal husbandry, domestic pets, dwellinghouses, lcoal utilities, rural buildings, sports and recreation, stables, stock saleyards, and stock yards. All other purposes for which land may be used or for which buildings or other structures may be erected or used are permissible uses. One possible permissible use suggested to witnesses by counsel for the respondent Council could be a hotel.
44. Putting to one side for the moment possible permissible uses, it is instructive to consider the as-of-right use for the purpose of sport and recreation as it may be considered that the beachside location of the land near a residential area and a holiday or recreational area may be suitable for such a use. “Sport and recreation” is defined for the purposes of the Town Plan as activity which is included in but not limited to this list -
Archery, basketball, boating (land facility), bowling croquet, cycling track, golf, gymnasium, national fitness centre, pony club area, pony trekking, riding school, swimming pool (indoor and outdoor), tennis and youth centre;
and which is not, in the opinion of the Council, likely to cause nuisance or annoyance to persons or adversely affect property not associated with the activity (matters which also have to be considered upon this appeal). The term includes the erection of clubhouses and ancillary buildings associated with the activity.
45. Any such use would involve the congregation of people of all ages and vehicles on the subject land for outdoor activity and, as the last mentioned part of the definition allows, buildings one of which may be a clubhouse where, as may be imagined, meals may be available and meetings and functions held. Apart from the quantity of any use for any such activity a useful comparison may be made between any as-of-right use for sport and recreation of the subject land and the use proposed by the respondent by election or the use for which it already has consent especially when a national fitness centre or a youth centre could be one such activity.
46. Whatever may be said about the reasonable expectations of residents with regard to permissible uses upon nearby land, those persons who reside or own land near to the subject land should always have contemplated that the subject land may be used for one of the as-of-right purposes, including a sport and recreational activity as defined in the Town Plan.
47. Had those residents considered the permissible uses which might be made of the subject land, the range thereof is, as I have said, wide. One such use is “caravan park”, a concept which is defined in the Town Plan in wide terms thus –
“Any land, building or other structure or any part thereof used or intended for use for the parking of caravans and the pitching of tents. The term includes the erection and use of cabins for providing overnight and holiday accommodation and the erection and use of a kiosk for the exclusive use of the patrons of the caravan park where such kiosk and cabins are provided within a caravan park.”
So a caravan park for the purposes of the Town Plan may take the form of a caravan park, a camping ground, and overnight or holiday cabins, or a mixture thereof, with a kiosk to serve patrons. In my opinion given the well-known and long-standing enthusiasm of Australians for camping and, since World War II, for caravanning and their love of sea and sand and given the natural attractions of Eimeo Beach, the possibility that the subject land may be used for a “caravan park” ought to have been within the reasonable contemplation of those residents given the location of the subject land on flat land adjoining the beach, ocean and creek. At the least they should have considered the possibility of a public picnicking spot being developed.
48. The Strategic Plan did anticipate development of a possible tourist facility in the Dolphin Heads area. The Strategic Plan identified in a general way a possible location therefor on the eastern shoreline off Ian Wood Drive at about Lots 76 or 77 (the appellant F.E. Johnsen owns Lot 79). Scaling from exhibit 2, I calculate that possible site to be some 500 to 600 metres south of the Dolphin Heads headland.
49. One of the objectives of the Strategic Plan is “to provide adequate land and opportunity for all forms of tourist and entertainment facilities”. The Council's stated aim, inter alia, is to encourage tourism. I accept the irrefutable logic of Mr. Nolan's statement –
“If the tourist industry is to prosper in Pioneer Shire, it is important that a wide range of accommodation and facilities is available to supply the wide-ranging needs of the public.”
Not all of that public crave or can afford the luxury of a “five-star international” hotel or resort; not all are adventurous youths seeking the economy of a backpacker's hostel; many want family-sized, budget priced accommodation. There are others who wish to experience the thrill of sleeping under the stars, of waking up under canvas, of being lulled to sleep by the rolling ocean and of being awoken by the chatter of birds. The proposed use is in keeping with the above stated objective of the Strategic Plan. I accept Mr. Nolan's statement -
“This proposal caters for a particular market as yet untapped by other tourist operators in Pioneer Shire and broadens the spectrum of accommodation available within the Shire.”
Mr. Long, the respondent by election's town planner made the same point in his report.
50. Since 1982 the respondent Council has approved a number of development proposals with respect to land at Dolphin Heads although not all have proceeded.
Lot 94 is at the intersection of Ian Wood Drive (which runs to the beach) and Beach Road and itself runs down to the beach. On July 15, 1983, the Council granted its approval for the erection of 10 holiday units, manager's residence, reception/kiosk, coach depot, watersport hire and recreation facilities. This is the site of the Dolphin Heads Tourist Resort.
On May 2, 1984, the Council gave its approval for an application encompassing Lots 95 to 98 (on the beach front) and Lots 103 and 104 which adjoin the subject land and are surrounded on all other sides by the unnamed creek. The approval was for –
Lot 95 | – | Restaurant and Shop |
Lots 96-98 | – | 54 units |
Lots 103-104 | – | 46 holiday units, reception/games room, restaurant, shop, recreation facilities. |
This project has not been proceeded with.
On August 16, 1985, the Council gave its consent to use Lots 96, 97 and 98 (included in the preceding approval) for the purpose of a holiday park including four caravan sites, four tent sites and a picnic area. An appeal against the conditions to which the approval was subject was filed in this Court on September 13, 1985 but has been placed on the abeyance list.
Lot 99 which adjoins the beach at the end of Beach Road and which is opposite Lot 105 of the subject land is an existing use for boat hire purposes.
In addition there is the approval given by the Council on July 18, 1986 for the use of the greater part of the subject land.
51. Such applications reinforce my impression, gained during my inspection, of the eminent suitability of the Beach Road land for holiday accommodation or for seaside activity. They also illustrate that the respondent Council sees such activities as suitable for that area. Moreover they ought to have alerted local residents to the type of use which may be made of land in that area when turning their minds to the matter of their expectations for Dolphin Heads.
52. Although neither the Beach Road area, nor the subject land is located at the site suggested by the Strategic Plan for a tourist development, I am satisfied that it is consistent with the planning strategy that the contemplated tourist development for Dolphin Heads should be located at Beach Road which is a comparatively short distance away.
53. It may also be commented that because of the residential development that has taken place on Ian Wood Drive southwards from Mrs. Cunningham's land it is unlikely that a tourist development will take place at the general site suggested in the Strategic Plan map although only time will tell if that be so.
54. The Strategic Plan states that it is not intended that tourist resort developments be allowed to establish and proliferate without reasonable and relevant planning controls. Objective 4 of the Strategic Plan attempts to ensure a high standard by requiring development to meet with the following criteria –
- There is protection or enhancement of the natural amenity;
- Adequate car parking facilities are available;
- There is a high degree of accessibility without interference with residential neighbourhoods;
- Adequate services are available.
55. I am satisfied by the evidence of Mr. Ellick, the respondent by election's architect, and of Mr. McConnell, its landscape consultant, and by what I saw on my inspection that the development easily satisfies the first of those requirements. To illustrate the expense to which the respondent by election is prepared to go, Mr. Peckham estimated that landscaping would cost some $200,000-00 and Mr. McConnell said it would involve some 2,000 trees and shrubs together with ground cover. He thought screening of the site should be achieved within two years.
56. I find that adequate car parking facilities are to be provided.
57. The question of traffic difficulties raised by the objections was not the subject of expert evidence on behalf of the objectors it was dealt with by Mr. Nolan and Mr. Long in their reports. I accept the evidence of Mr. Peckham, a director of the respondent by election, that guests at the resort are expected to arrive both by their own vehicles (some 60%) or by coaches and that emphasis will be placed on keeping the guests at the resort. Some guests will, of course, take the opportunity to go on day trips, some in their own vehicles and some in coaches. Mr. Long performed an exercise based on 100% occupancy. His conclusion was 200 vehicles movements a day or an equivalent to 25 to 30 vehicles during the evening peak hour. The actual movements cannot be accurately known because the occupancy rate can be expected to be lower and the actual vehicle/coach mix will vary from day to day. Nonetheless I am not satisfied that the traffic movement generated by the proposed use will be such as to adversely affect the amenity of the locality.
58. During my inspection I saw Council roadworks underway in the area. I also heard from Mr. Nolan of the respondent Council's present and proposed roadworks planning. I am satisfied that not only will such work improve accessibility to the subject land and to Eimeo and Dolphin Heads but also that the area can expect a much higher level of traffic generally. I accept Mr. Long's opinion that the additional traffic generated by the respondent by election's proposal will form only a small proportion of overall traffic usage in the area in the future.
59. I am satisfied that adequate water supply and sewerage services are or will be available to the proposed resort
60. I had the opportunity to walk about the subject land at a time when work was well under way preparing the site under the earlier Council approval. Pathways had been laid out and paved with paving stones, tent sites had been established and compacted and concrete rectangles laid at what will be entrances to tents. Instant lawns were being laid. Building work was underway with respect to toilet blocks, covered barbeque and picnic areas and the central building.
61. I also had the opportunity to inspect a tent pitched on tent-site. The tents - some five metres square - are of a colour which should serve to camouflage their presence amongst the trees and shrubs growing on the site. Inside, the front half of the tent serves as a living area with refrigerator, table and chairs whilst the rear half provides three sleeping areas, one having a double bed, the other single beds. The tent was airy and fully flyscreened; there was an awning extension at the front entrance to allow for shady, outdoor relaxation. The tent had a self-floor resting on a compacted bed of sand.
62. I was impressed by the work which I saw and with the obvious care to make the site attractive and at one with the character of the area.
63. At the time of my inspection I was shown the proposed site for an environmental lake to be built to the rear of the subject land. That is to be constructed on land leased from the Crown by Dolphin Heads Development Pty. Ltd., and is not yet approved. The lake does not form part of the instant proposal but the respondent by election is negotiating for a right to use the lake, if built, for water sports.
64. The respondent by election's application contemplated 100 tent sites with each tent being capable of accommodating a maximum of six persons. This led the objectors to presume the on-site presence of 600 persons and to complain of “people pollution” having regard to the possible activities of those persons both on and off the subject land. Such a presumption ignores what may be considered as the basic facts of life in the tourism and accommodation industry. There are peak and off-peak seasons. Further there will be single persons and couples among the guests and it may be expected that these - and other groups as well - will be accommodated in individual tents, leaving a number of empty beds in those tents. I accept the evidence of Mr. Peckham based on his experience with this type of accommodation that an average occupancy rate of 60-70% could be expected. It emerged during the hearing that, as the result of redesign, there would only be 99 tents on site.
65. It is clear that much of the objectors' concern with the “people pollution” from the proposal flowed from the assumption that 600 persons would be on site constantly. I do not consider that such assumption is a realistic one I also accept Mr. Peckham's evidence that the marketing of the resort will be directed towards the “average Australian family” and that young, single persons will be discouraged. This policy in my opinion goes a long way towards allaying fears expressed by the objectors that an undesirable class of person may be brought into the area. While the respondent by election cannot be expected to control or regulate the off-resort activities of its guests, I am confident that it will endeavour to ensure that the existence of their resort causes as little trouble as possible to local residents.
66. Some of that concern originated in experiences some of the objector witnesses have had in the past. Persons who have strolled along the beach on the south eastern side have found their way back cut off at high tide; they then enter the private residential land seeking a way back. It may well be that instances of such intrusions will continue and that some will be resort guests. I do not consider that such a possibility is sufficient reason not to permit the proposed use. The beach is in the public domain and those residents who are fortunate enough to own land running down to the high water mark can take the simple remedy of erecting a fence or other barrier if they wish to delineate their boundaries.
67. Fears were also expressed as to the noise which may emanate from the resort principally because there had been some mention that it would feature a “bar”. They gave instances of noise intrusion from bands performing at the Eimeo Hotel, which is a public hostelry. I accept Mr. Peckham's evidence that his company proposes to seek only a limited hotel licence under the Liquor Act or some comparable resort licence for the purpose of supply of liquor only to guests at the resort and that only background music will be played; there will be no dance floor in the restaurant area and no amplified music. Nor will the resort have a public address system. Members of the public will not have access to the resort's facilities. Purchases in the restaurant and of liquor will be paid for by means of tokens purchased on arrival or from time to time in the style of the Club Mediterrainee operation. The resort's permanent staff of day and night managers and security guards will pay attention to noise considerations in the interests of guests and so, indirectly, of local residents. I accept Mr. Peckham's evidence that the respondent by election's comparable resorts in Western Australia have not evoked any complaints as to any noise.
68. I consider that the question of noise was adequately dealt with by the imposition of condition 15 of the Council's proposed approval. Indeed I am satisfied that if conducted in accordance with Mr. Peckham's evidence, the proposed resort will not constitute a noise nuisance.
69. I am satisfied the questions of any possible beach erosion have been properly considered by the respondent Council and where and to the extent necessary are adequately dealt with by the imposition of conditions 3(b), 4, 5, and 11 of the Council's proposed approval.
70. What I have written above deals with matters raised by counsel for the parties during their addresses. Other matters were also mentioned during the evidence. That I have not mentioned them in this already too long judgment does not mean I have not given serious consideration to them.
71. Upon this appeal the appellants must establish to my satisfaction that the application should be refused and their appeal upheld. It should be apparent from what I have written that not only have I not been so satisfied but indeed I consider the Council's decision to have been the correct one. That decision accords with the provisions of the Town Planning Scheme and the Strategic Plan; it will bring to the Shire a novel but thoughtfully planned concept which will enable many thousands of people to enjoy the beach and the ocean as well as the scenic tranquillity of the ocean; the requirements of the relevant laws and bylaws and also the views of those who reside and will reside in the area have been taken into account by carefully framed and reasonable and relevant conditions; the amenity of the locality will not be adversely affected and indeed may well be improved.
72. I dismiss the appeal.
Costs
74. The respondent Council, by its counsel Mr. Lyons, formally applied for an order for costs in its favour if the appeal were dismissed. However Mr. Lyons added that the Council accepted that the subject matter of the appeal raised matters of legitimate local public concern. What those concerns were, had become apparent during the evidence. The question of the proposed use had been debated at meetings of the Dolphin Heads Progress Association and opinion there and in the community was divided on the merits of the application. The number of objectors and the number of persons prepared to pursue those objections in this Court bear testimony to the depth of the concern. The proposal is for a use novel in Queensland and certainly for one which is a far call from the camping ground of days gone by. It is to the credit of the respondent by election that its executives were prepared to travel to meetings of the Progress Association and to pitch a display tent in order to allay doubts. Apart from the novelty of the use (and the present proposal was for a use different in degree from that with respect to which Dolphin Heads Development Pty. Ltd. had earlier gained approval without objection) it became clear that local residents were concerned to preserve the character of their beloved area. I did not contrue that concern as opposition for its own sake to development in any form: it was concern to preserve the amenity of the locality and to ensure and be satisfied that any development fitted in happily with the character and amenity of the area.
75. The respondent Council is the local governmental and townplanning authority for the area. I accept that it is in a better position to assess the depth of local concern occasioned by an application for town planning approval and the merit of such concern than I. I consider that I should give great weight to the Council's concession in this regard.
76. In the exercise of the discretion conferred on me by s. 31 of the City of Brisbane Town Planning Act 1964-1985, I determine that in the circumstances applying in the case of this appeal there should be no order for costs. The Council's application is refused.
77. The respondent by election did not seek an order for its costs.
THE LOCAL GOVERNMENT COURT | No. 4 of 1987 (Mackay) |
BEFORE JUDGE WYLIE Q.C.
TOWNSVILLE, 6 MAY 1987.
BETWEEN:
JOHN TERRANCE DEAN | Appellant |
-and-
PIONEER SHIRE COUNCIL | Respondent |
-and-
CAMPUS HOLIDAYS | Respondent by Election |
JUDGMENT
HIS HONOUR: In the matter of Dean, appellant, Pioneer Shire Council, respondent and Campus Holidays Pty. Ltd., respondent by election, the parties may no doubt recall that late in 1985 the Minister for Local Government introduced into Parliament a bill for an act which, if passed, would have abolished the right of persons who had duly objected to a granting by a council of consent to a town planning application to appeal to the Local Government Court against the council's decision to grant such consent. After considerable public agitation and debate that bill was, in my opinion, properly withdrawn. However, some of the motivation for the proposal was not without merit and one consequence of the withdrawal was that His Excellency the Governor-in-Council saw fit to amend the rules governing the practice and procedure regulating the practice of this Court so as to provide that an objector's appeal to this Court should be heard and determined within two months of the appeal being set down for hearing. “Determined” means precisely that. Not only must the appeal be heard but a decision must be reached within that time. That time frame imposes rigorous demands upon all associated with an appeal, upon the parties in assembling their evidence, upon the Court in fitting a hearing into an already crowded schedule and upon the Judge who must, after evidence and argument, find time to give the matter consideration and to prepare reasons for his decision.
The two months' deadline in this case expires today. The appeal hearing concluded but five working days ago. In the interim I have been fully occupied dealing with other matters. However, just as the parties made every effort to honour their time limit so must I. I have drafted my reasons for judgment which must now be typed up since they are too lengthy to deliver orally. I will be on circuit in Cairns during the next fortnight and expect to be able to deliver my written reasons to the parties on my return. However, it is in everybody's interests that my decision should be made known today.
In summary I find that:
- the proposal of the respondent by election, Campus Holidays Pty. Ltd., was one to which, in accordance with proper town planning principles, it was appropriate that the Pioneer Shire Council give its consent and not one which will be detrimental to the existing or future amenity of the area of Dolphin Heads and Eimeo;
- the consent was made subject to reasonable and relevant conditions which are designed to meet and overcome objections raised to the proposal;
- the grant of consent accords with the existing town plan, the Shire's strategic plan for the area and with the proper and orderly development of the locality;
- an environmental impact study was not required before the Council considered the application;
- the appellants have not, to use the language of s. 22(8) of the City of Brisbane Town Planning Act, established that the application should be refused or their appeal upheld.
I dismiss the appeal.
By s. 31(1) of the City of Brisbane Town Planning Act the Court may make such order as it thinks fit as to the costs of any proceeding before it. The respondent by election did not seek costs against the appellant objectors if the appeal were dismissed. The Council did formally ask for such order in that event, but found itself by its Council unable to submit that the objectors had not raised on the appeal matters of legitimate public concern. In view of that concession on behalf of the relevant town planning authority and because (i) some of the objection derived from an incomplete understanding of exactly what the applicant proposed to do on the site, misunderstanding in part deriving from its prior application for approval for a more limited use (ii) the objections were reasonably put before me, I have decided that no order for costs should be made upon this appeal.
So the formal orders, will be: appeal dismissed, no order as to costs, and the reasons when reduced to written form will be made available to the parties.