Ballymont P/L v Ipswich City Council

[2001] QPEC 40

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Ballymont P/L & Or v Ipswich City Council & Ors [2001] QPE 040
PARTIES:	BALLYMONT PTY LTD ACN 010 212 085 and ROBERT LEWIS SIMMONS Appellants v IPSWICH CITY COUNCIL Respondent and MARK STOCKWELL First Co-Respondent and STOCKWELL BUILDING & DEVELOPMENT

Second Co-Respondent

and

THE STATE OF QUEENSLAND

Third Co-Respondent

FILE NO/S:	4096 of 2000
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	15 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	26-28 March 2001
JUDGE:	Judge Quirk
ORDER:	Appeal Dismissed
CATCHWORDS:	Integrated Planning Act 6.1.30(3) Local Government Act (Planning and Environment) Act s6.1.30(3), 4.4(3)(b), 4.13(5), (5A) Kentucky Fried Chicken P/L v Gantidis (1979) 140 CLR 675
COUNSEL:	Mr R Litster for the appellant Mr R Traves for the respondent Mr J Haydon for the co-respondents 1&2 Mr W Cochrane for the third co-respondent
SOLICITORS:	Stephen Goodfellow for the appellant City Solicitor for the respondent Clayton Utz for the co-respondents 1&2 Crown Law for the third co-respondent

1. This appeal is against the respondent’s approval of an application for development

   permits necessary for the establishment of a tavern on land at Yamanto. The

   subject land has frontage to Warwick Road and, in the relevant application, it was

   described as Lots 1 and 2 on RP 187393. The relevant plans indicate that only part

   of this total area will be occupied by the proposal. The proposal is fully described

   in the material before the Court. For the purposes of considering the merits of the

   appeal it is unnecessary to give a detailed description of it in these reasons for

   judgment.

2. The appellant Ballymont is the proprietor of the Yamanto Seven Day Centre which

   is part of the retail/commercial node located near the intersection of Warwick Road

   and the Cunningham Highway. A Woolworths shopping facility adjoins this centre

   to the north. The Yamanto Tavern, which opened in February of this year, is part of

   the Yamanto Seven Day Centre. It has been described as a “medium to large

   tavern” providing 1120 square metres of floor area. The tavern comprises:

· a bottle shop of 158 square metres;

· a sports bar including a TAB facility of 240 square metres;

· a gaming room including 20 gaming machines of 165 square

metres;

· a lounge/bistro of 204 square metres.

A recently approved extension is intended to provide a beer garden of about 162

square metres.

1. The proposed tavern (to be known as the Oasis Tavern) is intended to provide a

   floor area of 1546 square metres and will comprise:

· a liquor barn of 300 square metres;

· a public bar of 200 square metres;

· a gaming room – 35 gaming machines – 200 square metres;

· a bistro of 200 square metres;

· a function room of 250 square metres;

· a beer garden of 150 square metres.

1. The issues which the Court was asked to consider in the appeal were described

   broadly as:

· the community need for and the community benefit from a

proposed hotel; and

·	the impact of that proposal on an existing approved hotel which
has only recently commenced operation.

1. In support of its argument in respect of those matters, the appellant pointed to parts

   of the relevant Strategic Plan and in particular the “Commercial and Community

   Centres Strategy”. Because the relevant town planning scheme is a “transitional

   planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act,

   section 6.1.30(3) of that Act to the application (being one for which town planning

   consent would have been required under the repealed legislation) must be decided

   under s.4.13(5) and (5A) of the repealed Act.

2. Section 4.13(5A) provides:

   “The local government must refuse to approve the application if:

(a)	the application conflicts with any relevant Strategic Plan or Development Control Plan; and
(b)	there are not sufficient planning grounds to justify approving the

application despite the conflict”.

1. In the Ipswich Planning Scheme the land is included in the Commerce and Trade

   Zone. A “hotel” is “an impact assessment (type A)” use in the relevant Table of

   Development. The intent and objectives of that particular zone include the

   following:

“(a)	to provide for the establishment of a mixture of compatible commercial service and trade activities (which includes light and small manufacturing industrial activities) that support and are within close proximity of the Town, District and Neighbourhood Centres while not jeopardizing the retail function of those centres.
(b)	to permit compatible retailing or commercial premises on a controlled basis having regard to the Commercial and Community Centre Strategy outlined in the Strategic Plan;
(c)	to ensure that the scale, type and operating conditions (including hours of operation) of development conserves the character and amenity of nearby residential areas.”

It is difficult to see any conflict between the proposal and those objectives.

1. In the Strategic Plan the land is in an area designated as “Urban Development

   Area”. The stated intent for areas so designated is as follows:

   “The Urban Development Areas represent those parts of the City where it is proposed that urban development will occur or substantially commence during the period up to 2011. For the purpose of the Strategic Plan ‘Urban Development’ means the array of land uses usually associated with urban areas including residential (including Park Residential), commercial, commerce and trade, educational and light and service type industrial development together with park, recreation and sporting type uses and public utility services. ...

   The most common form of development in the Urban development Areas will be residential development. However, subject to detailed development siting requirements, other forms of urban development will be encouraged in appropriate locations.

   As the Strategic Plan is of a generalised, non-cadastral nature it does not permit individual allotment identification of all potential urban uses to be shown. Future urban development shall be determined by the use of Structure Plans, Planning Scheme Policies, Plans of Development and the traditional development approval processes.

   Care must be taken in the design and location of non-residential land uses, facilities and services to ensure that they will not adversely affect the amenity of existing or proposed residential areas....”

2. On the basis of an acceptable level of compatibility with residential development in

   the area (which was not in issue) there would not appear to be any conflict between

   the proposal and that generally stated intent. As Professor Brannock (the town

   planning consultant to the co-respondents) pointed out, urban development areas

   include both residential and non-residential development. The proposed tavern is

   located opposite existing commercial development and is at the entrance to a large

   residential area making it highly accessible to that area, existing and likely future

   employees in the site’s vicinity as well as passing traffic along Warwick Road.

3. As mentioned attention focussed upon the “Commercial and Community Centres

   Strategy” which is found in s.4.4 of the Strategic Plan. The Strategic Plan Map

   indicates a three tiered hierarchy of centres which include the Central Business

   District of Ipswich Centre, Town Centres and District Centres. In the area bounded

   by Warwick Road, the Cunningham Highway and Kerners Road a blue dot

   indicating the position of a District Centre is found. The Strategic Plan, after identifying Yamanto as one of the District Centres has this to say about such

   centres:

   “The District Centres are intended to complement the role of the City Centre and the Town Centres. Therefore, those uses which are more appropriately located within the City Centre and the Town Centres (e.g. major administration and office developments) will not be permitted to be established in the District Centres.

   While it is intended that the existing nominated centres may be permitted to expand to achieve the functional requirements of a District Centre, such expansion will only be permitted if there is a demonstrated need and demand for such expansion, and such expansion is in accordance with the provisions of a Structure Plan for the area concerned”.

4. It is accepted that no cadastral interpretation of the location of the blue dot in the

   Strategic Plan Map is approprite. However some assistance can be had from the

   Southern Corridor Planning Studies and the Draft Southern Corridor Structure Plan.

   These documents indicate that the District Centre is confined to the established

   retail/community area near the intersection of the Cunningham Highway and

   Warwick Road.

5. The subject land is within a non-residential are designated as “Local Employment

   and Services”. For reasons explained by Professor Brannock the proposal appears

   to conform with the intention of that designation. I accept that it would be

   appropriate to deal with this matter on the basis that the subject land is outside the

   Yamanto District Centre as contemplated by the Strategic Plan.

6. Essentially the case made against the proposal was that it involved an expansion of

   the District Centre and that it should not be permitted as there was no

   “demonstrated need and demand for such an expansion”. Emphasis was also placed upon the objectives of the “Commercial and Community Centre Strategy”

   particularly Objective 5 which is:

   “To achieve an overall balance between the desire to satisfy the community’s commercial (including retail) demands and needs and the desire to protect investment and employment within existing centres which provide a good level of service”.

7. It is stated in Implementation Criterion 2 that:

   “The key to implementing this objective is to consolidate, improve and where necessary enlarge existing centres rather than create new centres which may affect the viability of existing centres”.

8. Implementation Criteria 3 sets out the matters that should be taken into account in

   considering any application which involves the expansion of an existing centre.

   These matters include:

“(f)	whether the establishment of the proposed facility would result in an excess of commercial floor space of the type proposed in the area or would result in an excess of commercial floor space generally and whether the proposal may be premature or inappropriate in that regard;
(g)	the likely impact of the proposed development expressed wherever possible in terms of business closures and job losses, on the existing facilities in the area referred to together with the additional cumulative effect of any approved new commercial developments within the same area”.

1. When one is dealing with a document as wordy as the Strategic Plan, one should be

   cautious about making too much of particular passages of the document read in

   isolation. The Strategic Plan must be read as a whole and a proper appreciation

   gained of the context in which such passages are found. I believe that counsel for

   the respondents were correct in the submission that, when s.4.2 is read sensibly it

   can be seen that its main intention is to prevent the City and Town Centres from

   over development of District Centres.

2. This proposal for a second tavern in this area, while, in a technical sense, it might

   arguably involve an expansion of the District Centre, will not (in my view of the

   evidence) do so in a way that would threaten that intent. The development will no

   doubt have some financial impact upon an element of the existing centre (the

   tavern) but a wider view of Objective 5 suggests that it is concerned with the

   viability of the centre itself rather than individual elements of it.

3. Objective 12 must be noted. It is:

   “To discourage commercial development from locating outside centres where that development would hinder or detract from the development of nearby centres or intrude upon the amenity of existing or future residential areas.”

4. Implementation Criterion 6 provides:

   “In considering applications for the development of land within the Commerce and Trade Zone or for the inclusion of additional land within this Zone the Council will take into consideration the following particular aspects:

   ...

(d)

any adverse effects upon existing commercial ....”.

In obedience to this Criterion I believe that a consideration of any adverse effect

upon existing commercial establishments is justified but again it has to be

recognized that the objective has in mind the potential to “hinder or detract from

the development of nearby centres”. Accordingly, it is debatable whether the

Criterion has in mind adverse effects upon the Yamanto Centre as a whole or

elements of that centre. I believe that the emphasis should be upon the former

proposition.

1. Mr Norling, an experienced economic analyst, in his usual thorough approach,

   made a careful analysis of the trade areas available to both the proposed Oasis

   Tavern and the existing Yamanto Tavern. His evidence indicates that the trade

   areas, to a large extent co-respond. For reasons which he explained he reached the

   conclusion that if the proposal went ahead both facilities would be unlikely to be

   able to provide adequate returns on the investments made in them. In this respect

   his evidence was supported by that of Mr Lewis who operates the Yamanto Tavern.

2. Mr Norling foresaw the possibility of one of the facilities having to close in the

   future. In making these rather grim predictions he seemed to rely a good deal on

   certain suppositions in respect of population base, available liquor expenditure and

   desirable levels of profitability. Most of these suppositions have a traditional basis

   but it has to be accepted that marketing method and the habits and demands of

   patrons of licensed establishments are evolutionary rather than static. I have

   reservations about the pessimistic approach taken by Mr Norling and I am not sure

   that adequate attention was given to the real potential for growth in the area and the

   matter of community interest.

3. In relation to the question of need and demand in a planning sense the matter is to

   be considered more from the community’s perspective and impact upon

   profitability of a commercial competitor is of considerably less importance.

   Notwithstanding the submissions made by counsel for the appellant I believe that

   the well known statements in the judgment of Kentucky Fried Chicken Pty Ltd v

   Gantidis (1979) 140 CLR 675 remain good law.

4. Professor Brannock who is not without experience in these matters considered the

   question of community need and benefit. He pointed out that this part of Ipswich is

   one of the highest growth sectors of the city. His opinion was that:

   “From a town planning viewpoint given the extent of residential development planned in the Yamanto area there is scope for the existing tavern to service the residential areas most proximate to its location as well as visitors and employees of the shopping centre and for the proposed Oasis Tavern to service the existing and future residents and employees in its vicinity”.

5. Had it not been for the passages in the Strategic Plan to which reference has been

   made I doubt whether the question of community need would have been of great

   moment in the case. The need was always accepted to be a relevant factor when an

   amendment to a town planning scheme was being sought. This was legislatively

   recognized in s.4.4.(3)(b) of the Local Government (Planning and Environment)

   Act. This case is not one where rezoning would have been called for.

6. Having considered the evidence in the appeal I doubt whether the proposal would

   give rise to any real conflict with the Strategic Plan. I am satisfied that the

   development of a stand alone tavern at this location would not pose any serious

   threat to the fulfilment by the Yamanto District Centre of the role intended for it by

   the Strategic Plan.

7. If any such conflict could be said to exist I am satisfied that sufficient planning

   grounds exist for overlooking that conflict. These include the community benefit to

   an area experiencing considerable growth and the added features that the larger

   tavern will provide (particularly in respect of its greater capacity as a function

   venue). It also affords a high level of convenience that, as Professor Brannock

   explained, will follow the suitable location of the subject land. There is of course the added benefit of choice and variety that the community will enjoy if the

   development proceeds.

8. A matter that was raised, in a peripheral way, concerned what was said to constitute

   unacceptable changes to the proposal. It was argued that these changes were such

   as would (by reason of s.4.1.52(2)(b) of the Integrated Planning Act) prevent the

   Court from hearing the appeal.

9. The changes were identified as follows:

·	a change in the access arrangements to provide access over land
that was specifically excluded as comprising to which the
application relates;
·	the introduction of a drive through facility in addition to the

proposed liquor barn;

· the deletion of the children’s outdoor play area;

· the substitution of a themed sports bar (involving the

introduction of a TAB facility) in lieu of a public bar.

1. It was accepted that whether or not a particular change is minor should be judged

   by reference to the potential for the change to provoke objection of a kind not likely

   to be prompted by the original proposal. The last of the two matters identified

   above can be dismissed at once as being inconsequential. The movement of the

   children’s play area under cover and the change in description of a public bar and

   gaming area to a themed sports bar including a TAB component would be quite unlikely, in any objective and sensible appreciation of the matter, to promote further

   adverse reaction to the proposal.

2. The same could be said for the drive through arrangements for the liquor barn. A

   relatively large liquor barn has always been intended. The provision of the

   opportunity for drive through service at this liquor barn could hardly be said to put

   a different complexion on the proposal from the point of view of a potential

   objector.

3. As to the assertion that there has been a change in access arrangements this does not

   seem to have any real foundation. When the application was lodged initially it

   clearly included a two stage access arrangement. Stage 1 involved two access

   points from Warwick Road. Stage 2 involved the removal of the eastern most

   access from Warwick Road and its replacement with access from the Kerners Road

   Deviation via an access easement from part of Lot 2. It was intended that Stage 2

   be implemented after Kerners Road is gazetted and constructed.

4. There appears to have been some confusion about the local government’s plans for

   Kerners Road. As part of the information request, the Council requested an

   amended traffic report which did not include access from the Kerners Road

   Deviation. The reason given being that there was no certainty that the deviation

   would proceed.

5. Whether or not the proposal should contemplate and cater for the Kerners Road

   Deviation was something quite beyond the control of the applicant. The possibility

   either way was something that the applicant had at all material times recognized. I do not see the matter as one involving a change which should stand in the way of

   the Court’s dealing with the matter.

6. On the whole of the evidence I am satisfied that the application is one which should

   be approved. The appeal is accordingly dismissed.