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- Unreported Judgment
Tissizis & Anor v Cassowary Coast Regional Council QPEC 68
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Tissizis & Anor v Cassowary Coast Regional Council  QPEC 68
JOHN TISSIZIS & DEBRA LOUISE TIZZIZIS
TABLELANDS REGIONAL COUNCIL
WENDY CSUKARDY AS TRUSTEE FOR THE CSUKARDY FAMILY TRUST
95 of 2018
Planning and Environment
DELIVERED EX TEMPORE ON:
16 November 2018
16 November 2018
Morzone QC DCJ
PLANNING & ENVIRONMENT – appeal against council decision to issue a development permit for a material change of use for medium impact industry.
Planning Act 2016 (Qld) Sch 2, s 45
Planning and Environment Court Act 2016 (Qld) ss 43, 46
The applicants appeared for themselves
R Wallerstein of P & E Law for the respondent
PJ Day of MacDonnells Law for the co-respondent
- The appellants, concerned about the proposed development impacting upon the residential use approximate to the proposal in terms of visual noise, light and other general matters of amenity, appealed against the respondent council’s decision to approve a development permit for a material change of use for Medium Impact Industry (Window Manufacturing – Six Bay Workshop) on land at 27 Station Street, Innisfail in Queensland and described as lot 13 on RP128162.
- The land subject of the application has an area of 1012 square metres and is surrounded by, amongst other things, the appellant’s residence immediately to the north, as well as other commercial and industrial uses in the broader general vicinity. The proposal would involve the construction of a single storey shed on the land, proposed to be used to house business operations of the co-respondent, trading as Windows Warehouse FNQ. Those operations involve the purchasing and display of domestic and commercial windows and doors for manufacturers for sale to owners and builders intended for installation to new and renovated construction in the district.
- A component of the business will involve the manufacture of mainly domestic windows and doors which manufacture is confined wholly within the shed to be constructed. That shed will have a maximum height of seven and a-half metres comprising of six metre high walls and a pitched roof exceeding that height up to seven and a-half metres in total. It will have a gross floor area of 476.71 square metres and cover 47 per cent of the site. It will have a mezzanine office area located above a showroom display area. There are various setbacks to the boundaries of the land proposed, in particular, three metres from the northern side boundary of the land and, therefore, very close to the appellant’s property and residence.
- Once the court was seized of jurisdiction, the parties properly engaged in directions set by the court including alternative dispute resolution facilitated by the court. That process has resulted in the parties attending the court with an agreement reflected in the proposed final proposal and conditions subject of an application for judgment by the co-respondent developer.
- The resolution seeks to implement the original proposal as changed in light of the party’s negotiations. It therefore requires the court’s imprimatur in respect of determining whether those changes comprising the final proposal subject of judgment constitutes a minor change as defined and dealt with in the legislation.
- Pursuant to s 46 (3) of the Planning and Environment Court Act 2016 (Qld) (“PECA’), the court cannot proceed to judgment unless the change is only a minor change to the original application. Schedule 2 of the Planning Act 2016 (Qld) (“PA”) relevantly defines minor change. Here the relevant issue for determination is whether the change results in a substantially different development. The affidavit material sets out in a comparative way the changes that are proposed. These include softening the build form so as to ameliorate impacts upon the visual amenity, as well as other changes so as to ameliorate on noise and light insofar as they are likely to particularly impact the appellants.
- The term, “Substantially different development”, while not defined, is informed as to its width and application by schedule 1 of the Development Assessment Rules. Those rules ought be considered having regard to the individual circumstances of the development and in the context of the proposed change. And as under the former legislation, the assessment involves matters of fact and degree that ought be considered broadly and fairly having regard to the overall development application, and take a common sense practical approach in the assessment.
- Here the proposed changes do not result, in my view, in a substantially different development because they do not trigger other factors such as involving any new use or different use or additional impacts, or result of the application applying to any new parcel of land or any change to the build form of any significant scale, bulk or appearance, or change of the intended proposal and its relevant traffic and interaction, or remove any component that is integral to the operation of the development or impact on traffic flow or transport network, or introduce new impacts as to amenity to adjoining land owners, particularly the appellants, or remove any other incentive or impact infrastructure provisions, location or demand as to its use and traffic or result in significant or unacceptable impacts on adjoining land, or permit a use that creates additional impacts.
- Having so found, it seems to me that it is appropriate that the court then consider the application as changed for the purposes of finalising the proceeding if appropriate in terms of the judgment. That reflects the party’s resolution. The issues in the appeal related to height and bulk of the proposed building and its visual appearance, proximity to the appellant’s adjoining land and residence, amenity of the area and surrounding residential uses, detrimental impact on amenity in terms of noise, and other manufacturing impacts, and whether the proposal was an overdevelopment of the site in terms of size and place.
- The appeal is brought pursuant to s 43 of the PECA and is subject to ss 46 (2) to (5) of that Act. It must proceed by way of hearing anew. In the end, the court undertakes an assessment as if it were the assessment manager for the development application by reference to the relevant considerations and pursuant to ss 45 of the PA and 46 (2) of the PECA.
- These matters have been comprehensively supported in the bulk of the material that has been provided in support of the application for judgment. The relevant planning scheme is the Cassowary Coast Regional Planning Scheme 2015 version 2. The land is located in the township zone and Innisfail local area plan (business fringe precinct). The relevant assessment benchmarks for the development application have been out in the material and include matters of state planning policy, regional plan, and various scheme provisions.
- In considering the relevant material, the court is obliged to assess the matter against appropriate benchmarks as prescribed by those instruments. In particular, my concern has been in the context of the appeal to have particular focus on the height, bulk, and scale of the development of the shed, the visual appearance of that structure, its placement on the land proximity to the boundary and other site coverage, and the use for which it is to be put and how that use might impact upon the amenity of the area, in particular, the appellant’s adjoining residential use.
- In this case, by negotiation, the parties have paid particular attention to developing conditions which better address matters of amenity. These include specific noise mitigation measures, a landscaping buffer supplementing the appropriate setback, the reduction of vehicle loading and unloading noise impacts, the implementation of operating hours, both in terms of business activity and movement, as well as air conditioning, management and containment of noxious and offensive odours, and the elimination of external lighting.
- Further, consideration of the matter involves particular concern about the industrial component of the development when assessed against the relevant assessment benchmarks, having regard to the extent, if any, of non-compliance. In short, there is particular tension as between the proposed development and the circumstances of the appellant because of the town planning approach to the particular area and the creep effect of the industrial uses that have evolved vis-a-vis the area and the appellant’s enjoyment of their residential use.
- Of the practical components involved in the proposed use, there are equivalent, if not worse, impacts imposed by permissible uses. That, of course, is no reason to permit the proposed development but places it into a particular context. It is clear that the commercial component of the development and the proposed shed would comply with the relevant assessment benchmarks within the scheme. Indeed, the scheme does allow for larger sheds to be constructed on the land.
- Matters such as bulk, size, visual appearance, noise, and availability of alternative better identified land have, it seems to me, been appropriately addressed within the resolution of the parties and the supporting material that is expected to show the court of the merits of the application. In addition, it is clear the development will comply with the purposes and relevant assessment benchmarks for other related codes that are engaged, such as the Acid Sulphate Soil Code, the Coastal Protection Code, Flood Hazard Code, Heritage Code, Landscaping and Park and Access Codes.
- Having regard to the whole of the application and its particular and specific components in relation to the site and surrounding mixed uses, including the appellant’s proximate residential use, this is an appropriate case where the court is obliged to allow the application. Having regard to the mitigating matters incorporated into the application by the minor change resulting from the parties’ negotiation, it seems to me the conditions do further galvanise the merits of the application, as well as provide, as best as can be achieved, mitigating measures in terms of amenity, in particular, visual, noise, light, and dust in respect of the appellant’s residential use.
- And in circumstances where there ought be good will continuing from this court’s process, the appellant’s ought reasonably and genuinely expect that the co- respondent developers will properly adhere to the conditions of the proposed approval subject of the judgment and be able to provide, from time to time, respectful communication and responses as between them and the operators of the co-respondent’s land so as to address any adverse impacts in compliance with the conditions set out in the development approval subject to the judgment.
- For those reasons, I give judgment in terms of the draft, and in particular, having been satisfied that the changes are minor, the appeal is allowed on the application as changed. The changed application is approved subject to the conditions and plans attached to the judgment, and each party will bear their own costs.
Judge Dean P Morzone QC
- Published Case Name:
Tissizis & Anor v Cassowary Coast Regional Council
- Shortened Case Name:
Tissizis & Anor v Cassowary Coast Regional Council
 QPEC 68
Morzone QC DCJ
16 Nov 2018