In brief

The case of Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33 concerned an appeal by Gold Coast Motorsport Training Centre Pty Ltd (Applicant) to the Queensland Planning and Environment Court (Court) against the Gold Coast City Council's (Council) refusal of a development application for a material change of use of land in Pimpama for an outdoor sport and recreation use (motor sport and training facility) (Application). Three residents of the local area opposed the development and elected to join the appeal.

The Court dismissed the appeal and refused the Application. In doing so, the Court emphasised the importance of experts providing the basis for their opinions when giving expert evidence. 

Subject land

The subject land fronts Pimpama Jacobs Well Road, which is a sealed, two-lane road that links to the Pacific Motorway. Pimpama Jacobs Well Road is an arterial road that carries traffic associated with rural activities, extractive industry uses, and commuters from surrounding localities. The subject land is located in the Emerging Communities Domain under the Gold Coast Planning Scheme 2003 (version 1.2) (Planning Scheme). 

A motorsport facility has been built on the subject land. To the north and south of the subject land are large rural lots that are predominately used for grazing and sugar cane cultivation. To the west are smaller rural allotments of approximately four to five hectares, and to the immediate east are dwelling houses that front Pimpama Jacobs Well Road.

Application and issues on appeal

The Applicant lodged the Application in December 2014 in response to an enforcement notice which was issued for the unlawful use of the subject land as a kart racing track. The Application was impact assessable, and ultimately refused by the Council in July 2016. The Applicant appealed the Council's decision in August 2016. Three residents who live proximate to the subject land elected to join as co-respondents in the appeal.  

Notably, the Sustainable Planning Act 2009 (Qld) (SPA) was still in force at the time the Application was decided and the appeal was filed. As such, the Application had to be assessed and decided in accordance with the decision-making framework under the SPA, which required that the decision not conflict with the Planning Scheme unless there were sufficient grounds to justify the decision, despite the conflict (section 326 of SPA). 

The Council ultimately supported the Application at the hearing of the appeal following a change to the proposed development. Consequently, the appeal centred on two key issues: firstly, whether the proposed use was appropriate for the Emerging Communities Domain under the Planning Scheme (First Issue), and secondly, whether the proposed use would detract from the amenity of the local area (Second Issue).  

Approval of the proposed development would conflict with the Planning Scheme

In respect of the First Issue, the parties agreed that a decision to approve the proposed development would conflict with the Planning Scheme as a result of the particular use (outdoor sport and recreation) not being included in the list of appropriate and desirable uses for the Emerging Communities Domain (see [15] and [18]).  

In respect of the Second Issue, the co-respondents asserted that the proposed development would conflict with performance criteria 19 of the Emerging Communities Domain Place Code, which states as follows:

"The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of: 

a) noise…"

Each of the co-respondents gave evidence in the appeal to the effect that the "rural living" amenity of the area had been affected by the kart racing track. Although the co-respondents accepted that the amenity was affected by the traffic noise from Pimpama Jacobs Well Road, the noise created by the kart racing track was longer lasting, and more disruptive.  

In contrast, the Applicant and the Council agreed that the noise impacts could be appropriately managed by way of conditions and the implementation of a Noise Management Plan. 

The Court concluded that approval of the proposed development would conflict with the planning controls relating to noise impacts for the following reasons:

  • The Court rejected a submission by the Council that weight ought not be placed on the co-respondents evidence (see [39]). In doing so, the Court referred to numerous authorities including the decision of Broad v Brisbane City Council & Anor [1986] QSCFC 27; [1986] 2 Qd R 317, where the Queensland Supreme Court stated that whilst "…the ultimate inquiry is an objective one…" "… [i]t is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it." (see [40]). 
  • The Planning Scheme indicates a clear planning policy that uses, such as the proposed development, are not to be located in the Emerging Communities Domain. This lends support to the reasonableness of the expectations of the co-respondents that their amenity would not be impacted by the type of noise associated with the proposed development (see [57] to [58]). 
  • The experts did not identify a noise standard or guideline to support their assumptions about the appropriate noise levels to be achieved at each residence, and their conclusions appear to have been based on the exercise of professional judgement (see [126]). The Court noted that it "is not bound to accept the professional judgment of the experts about such matters" (referencing the decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305) (see [127] to [128]).  
  • The Court noted that a trier of fact "must arrive at an independent assessment of the opinions and their value" and that "[t]his cannot be done unless their basis is explained" (see [129]). 
  • The Court was unpersuaded about the reliability of the experts' professional judgement that the proposed development would not result in unacceptable noise impacts (see [131]). In particular, the Court concluded that there was "a lack of transparency about both the level of noise that the experts say should be adopted as an acceptable standard" and "the basis on which the experts conclude that the apparently agreed level is the appropriate standard" (see [132]).
  • The deficiencies in respect of the acceptable level of noise and the experts' basis for their agreed level were material, and the proof of the expertise of the acoustic engineers was insufficient to overcome the deficiencies (see [157]).   
  • The evidence of the acoustic engineers fell "seriously short" of demonstrating compliance with performance criteria 19 of the Emerging Communities Domain Place Code. The Court agreed with the evidence of the co-respondents that the motorsport facility would detract from the amenity of the local area by reason of adverse noise impacts (see [182] to [183]). 

No sufficient grounds to warrant approving the proposed development despite the conflict

The Court stated that "the Planning Scheme is an expression of the public interest" (at [234]) and that in this case, "the real question to be decided [was] whether the deviation from the Planning Scheme to approve the proposed development serves the public interest to an extent greater than the public interest in certainty that the terms of the Planning Scheme will be faithfully applied." (at [235]).

The Court acknowledged that there was some evidence of a need for, and community benefit deriving from, the proposed development, but that only minor weight ought to be given to that need and benefit (at [219]).  

Ultimately, the Court concluded that there were no sufficient grounds to overcome the clear planning strategy with respect to the subject land. The appeal was dismissed and the Application was refused.  

Important takeaway

An important takeaway from this decision is that, for expert opinion evidence to be admissible, it must satisfy the following criteria (see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 [85]):

  • It must be agreed or demonstrated that there is a field of specialised knowledge. 
  • There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. 
  • The opinion proffered must be wholly or substantially based on the witnesses' expert knowledge. 
  • So far as the opinion is based on facts observed by the expert, those facts must be identified and admissibly proved by the expert. 
  • So far as the opinion is based on assumed or accepted facts, those facts must be identified and proved in some other way. 
  • It must be established that the facts on which the opinion is based form a proper foundation for it. 
  • Finally, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of specialised knowledge in which the witness is an expert by reason of training, study, or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. 

Experts and legal practitioners will need to have regard to the above criteria when preparing (or reviewing) expert reports, affidavits of evidence, giving evidence, or making submissions. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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