BIM Holdings Pty Ltd v Pine Rivers Shire Council

[2002] QPEC 7

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

BIM Holdings Pty Ltd  v Pine Rivers Shire Council & Ors [2002] QPEC 007

PARTIES:

BIM HOLDINGS PTY LTD
ACN 094 614 196
Appellant

-v-

PINE RIVERS SHIRE COUNCIL

Respondent

and

LINDA HELEN STANISIC
First Co-Respondent

and

ALH GROUP PTY LTD
Second Co-Respondent

and

ALAN SIMONIC

Third Co-Respondent

and
ALAN MAURICE ROSENBERG AND MIYA ROSENBERG
Fourth Co-Respondent

FILE NO/S:

4344 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

  24 January 2002

DELIVERED AT:

Brisbane

HEARING DATES:

3, 4, 5 and 6 December 2001

JUDGE:

Senior Judge Skoien

ORDER:

Appeal dismissed

CATCHWORDS:

Transitional Planning Scheme; whether out of date; tavern use; planning principles, need, amenity.

COUNSEL:

Gore Q.C. for Appellant
E. Morzone for Respondent

Bowie (Solicitor) for Second Co-Respondent

SOLICITORS:

Connor O’Meara for the Appellant
Council Legal for Respondent

Minter Ellison for Second Co-Respondent

1. This is an appeal by BIM against the decision of the Council refusing its application for a material change of use for land to permit the establishment of a tavern.  The co-respondents were objecting submitters to the application.

The Site

1. The site is on Old Northern Road, Albany Creek, opposite its intersection with Keong Street.    It is vacant land and is part of a larger area which has recently been approved for reconfiguration.  A sealed road (on common property) provides access to the site and two additional proposed allotments. Overall the site has an area of 6,016 m².  Under the Pine Rivers Planning Scheme, the site falls within the Neighbourhood Facilities zone.

1. The site generally slopes down quite steeply to the west and north from Old Northern Road. The fall of the land and its relationship to adjoining topography is such that it represents the eastern edge of an amphitheatre which has a generally western orientation over an adjoining park reserve and towards housing both to the west of the site.  Just to the north of the site is the large Woolworths Marketplace on the corner of Albany Forest Drive and Old Northern Road.  Diagonally across its Keong Street intersection is the Albany Hills Primary School.  Another school, the Albany Creek High school, is situated a few hundred metres to the north.

1. Generally speaking housing in the area is all of a high amenity, particularly the low-density area to the west of the site across the park.  Within the recreation reserve immediately adjoining the lower part of the site (that is, between it and Woolworths) is a skateboard/roller blade ramp.

1. Because of its topography the site is, in the main, highly visible not only from Old Northern Road but also across the park from nearby residential areas.  Parts of the site which are not visible from Old Northern Road, are clearly visible from the nearby residential area.

The Proposal

1. The proposal is for a tavern, having a total area of 1,339 m².  It is to have a wide range of components including a licensed restaurant, function rooms, a large bottle shop. 

1. Because of the topography of the site, the development is to be constructed on a number of levels.  At the upper level, immediately off Old Northern Road, are proposed the main bar, bistro dining, function and gaming rooms together with an area for car parking.  At the level below, the bottle shop and drive through facility and some additional car parking are proposed.  On a lower level again is an open area car park.  A total of 108 spaces are planned. The design could be described as striking with angular roofs and design features.

1. The building would present predominantly as a two-storey structure, although the roofline and design creates upper levels which, as indicated by the plans, only provide space for plant room and equipment and architectural features upon which to put advertising devices. The topography of the site would require certain cutting and benching to be provided.  This would necessitate the construction of walls and landscaped batters.  On the evidence the development, when landscaped according to BIM’s intentions, would be quite visually attractive. 

Issues

1. The live issues which were debated on the appeal can be summarised under the headings of planning principles, need, amenity, noise and traffic.

Planning Principles

1. The planning scheme for the Pine Rivers Shire is a transitional planning scheme within the meaning of the term as used in the Integrated Planning Act 1997 (“IPA”) (see ss. 6.1.2; 6.1.3). So although the application was made by BIM under IPA and is to be processed under IPA (s.6.1.28) it is to be assessed according to the matters listed in s.6.1.29(3). Those matters include, importantly the transitional planning scheme and (in this case) the re-zoning provisions set out in ss.4.4(5) and (5A) of the Local Government (Planning and Environment) Act 1990 (“P&E Act”). See IPA, ss.6.1.29; 6.1.30.

1. While, as the Court of Appeal decided in Vynotas v. Brisbane City Council (2001) 112 LGERA 206, those provisions of IPA do not convert this application for material change of use literally into a re-zoning application under the P&E Act, the Court there held that some provisions of the P&E Act (for example s.4.4(5A)) apply. So if BIM’s application conflicts with a relevant strategic plan or development control plan and there are not sufficient planning grounds to justify approval of the application despite that conflict, BIM’s application and this appeal, must fail. The planning scheme itself otherwise has only persuasive relevance (p.211, per Davies JA) but with considerable weight to be attached to it (p.212, per Pincus JA).

1. The site is zoned “Neighbourhood Facilities” under the transitional planning scheme.  Under the Table of Zones the only “as of right” permitted uses in the zone are listed as caretaker’s residence, local utilities, office, park and recycling depot.  Permitted uses which might be subjected by the Council to conditions are listed as carpark, childcare centre and veterinary clinic.  The long list of prohibited uses included such things as local store, late night shop, place of entertainment, shop and hotel.  The uses for which consent was required were not listed, but consisted of all uses not specified elsewhere.  One such use, relevantly, could be a licensed restaurant. 

1. Local utilities, as defined in the planning scheme, are relatively small-scale premises relating to the provision of water, electricity, sewerage or drainage.  A recycling depot, as defined, is also a small-scale operation.  So none of the permitted uses were of a nature which might be expected to generate heavy volumes of traffic, attract large numbers of people or operate until late at night.  In saying that, I have noted that a licensed restaurant could be established.  But that could occur only with the consent of the Council which could be given only after public advertisement and the opportunity for objection.  So the same sort of debate as has occurred here might be expected in such a case, the intensity of which would no doubt depend on the size of the proposed restaurant.

1. As to the prohibited uses, “place of entertainment” is defined in the scheme to include a licensed club, reception and function rooms, and discotheque, uses that are not unlike the proposed tavern here. It is notable that a hotel is expressly prohibited. These prohibitions do not, of themselves, provide the answer to the appeal. The reason for a re-zoning was always to make permitted a use which was prohibited. Furthermore s.6.1.2(3) of IPA provides that a prohibition of a use in a transitional planning scheme is taken to be no more than an expression of policy that the proposal is inconsistent with the intent of the zone in which the use is prohibited.

1. The intent for the Neighbourhood Facilities zone as set out in the scheme is:

“The intent of the Neighbourhood Facilities zone is primarily to cater for non-retail facilities which serve the needs of the local or neighbourhood population, and which are appropriately located in associate with a shopping centre.  Industrial activities are not included in this category because of their potential detrimental impact on the locality.  Operations which may be approved in the Neighbourhood Facilities zone include some community facilities, recreation facilities and support commercial facilities.  Appropriate conditions will be imposed to ensure that development is in keeping with the nature of the surrounding area and may include control of hours of operation and the type and form of development, and the provision of landscaping.”

I am unable to read in that passage any intent that a use such as that proposed by BIM was contemplated for the Neighbourhood Facilities zone.

1. Had this been a re-zoning application it seems likely that the application would have had to be to place the site in the Special Facilities zone, the intent for which is

“The Special Facilities zone is intended to be used at Council’s discretion to accommodate a particular form of development on a particular site, where such development is considered in the circumstances to be desirable, but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered.  It may also be used at Council’s discretion to permit combinations of uses which might not otherwise be allowed under the Scheme.  As a general principle, Council will not approve applications for rezoning to the Special Facilities zone where the proposed use is prohibited in the current zone in which the site is included….”

The concluding words of this statement of intent continue to be an important expression of policy (Vynotas, supra) with direct relevance to this appeal.

1. Section 4 of the Strategic Plan introduces particular “guidelines for development”.  The guidelines applicable to the Albany Creek District are directly relevant to this appeal.  The site is part of a designation for “Neighbourhood Facilities”.

1. Paragraph 3.01 of the Guidelines states that the Albany Creek District “as it exists today” is a predominantly residential area, and evidences an intention to maintain that “essential character”.  The evidence, given before me, and the assistance I gained in understanding the evidence from my inspection of the area, establishes that the intention has been carried out.  It remains an essentially residential area.  The guidelines go on to state that “particular attention will be paid to the maintenance of high levels of convenience, accessibility and amenity in residential areas”.

1. The same paragraph of the Guidelines requires that:

“2.  Non-residential uses must be integrated into the pattern of development in such a way that:

(a)        any potentially detrimental effect on the amenity of residential areas is minimised;……

The only non-residential uses of land which are to be permitted in Albany Creek are those associated with the functioning of a residential district.  In general the Guidelines aim to concentrate these activities into specific areas or centres.”

and gives as one reason for that aim the prevention of intrusion into residential areas of uses which may have a detrimental effect on the amenity of those areas.       

1. Mr Gore’s submissions accept that these Guidelines contemplate only one site for a commercial activity such as a hotel, the site now occupied by the Albany Creek Tavern.  That seems to me to be correct.  He submitted, however, that the Guidelines, which were prepared in 1978, are out of date and have been overtaken by events.  He submitted that while in 1978 one tavern site was adequate and it was thought that would remain so, there is now a community need for a second tavern and there is no available vacant appropriately zoned site.

1. I will discuss need later, but turn now to the question of alternative site. The obviously appropriate zoning for a hotel in Albany Creek is the Commercial Zone. All of the seven sites which make up the Commercial Zone are in the Albany Creek District Centre at the intersection of Albany Creek Road at Old Northern Road where the Albany Creek Tavern is in fact situated. According to Mr. Norling who gave evidence of need on behalf of BIM, none of the other six are large enough for a hotel and anyway, all are in actual commercial use. Mr Buckley, the Council’s consultant town planner, gave evidence of the possibility of a developer acquiring and if necessary “re-zoning” (or its IPA equivalent) to permit another tavern in or near the Albany Creek District Centre.

1. Mr Gore submitted that Mr Buckley’s approach is contrary to principle in that it is not the court’s function to determine whether better sites exist for the proposed development but whether this site is appropriate.  That is true  (Queensland Adult & Dumb Society v. Brisbane City Council (1972) 26 LGRA 380 at 386; Green v. Moreton Shire Council (1985) QPLR 328 at 330). It would be intolerable if the entire appeal enquiry had to be embarked upon not just for the proposed site but also for one or more alternative sites.

1. However, the apparent lack of availability of an alternative site cannot justify the inappropriate location of the proposed use on a particular site.  That can still be the position even though evidence establishes a need for the proposed use in the area containing the site, assuming of course that the need is not so great as to outweigh the factors which argue that the use is inappropriate.

1. It is the obvious fact that this planning scheme is a very old one.  However it has been amended from time to time and was consolidated in 1998 and I assume its relevance was considered on each of those occasions.  In general  it seems to have served its purpose well and perhaps the fact that it has stood so long indicates that very fact.  Other than its failure to provide for another hotel site in the Albany Creek area there was nothing led which would satisfy me that the scheme has failed to perform its proper functions and certainly nothing to establish that the site itself should be developed for an intensive commercial use.

1. I am not prepared to find that the BIM Proposal actually conflicts with the Strategic Plan so as to raise for consideration s. 4.4(5A) of the P&E Act.  I do consider, however, that the planning scheme as a whole emphasises that care should be taken to protect residential amenity and that the intent for the zone in which the site stands (to which considerable persuasive weight should be attached, Vynotas, supra) discourages the proposed tavern use.

Need

1. Mr Gore submitted that this issue argues strongly in favour of BIM’s proposal.  The concept of “need” has often been discussed, in planning appeals, for example in Roosterland Pty Ltd v. Brisbane City Council (1986) QPLR 515 thus:

“`Need’ in planning terms, is a relative concept, it does not connote pressing urgency but rather relates to the general well-being of the community.  A use is needed if it would, on balance, improve the services and facilities available in a locality.”

1. Using the conventional approach Mr Norling defined a probable “catchment area” for the proposed hotel, identified the liquor outlets and licensed restaurants now available to serve that area and estimated the likely demand within the catchment area for the goods and services which the tavern would offer.  He compared that demand with the demand which is, in the industry, considered sufficient to support a tavern of this type.

1. His catchment area has a population of about 22,000 and is growing.  There is only one establishment with a general liquor licence, the Albany Creek Tavern (which is about 2 km from the site) which offers similar facilities to those proposed by BIM on the site.  It is one of the more successful taverns in the Brisbane area.  Nearby is a well-patronised licensed restaurant.  Then there are four detached bottle shops in the area, one of them being only about four hundred metres from the site but in the Woolworths centre which limits its ability to trade late.  All in all, he considered that the need for another tavern in the catchment area could indeed be described as “pressing”.

1. Mr Norling’s evidence showed that a second tavern in the catchment area should trade very successfully.  But that concentrates more on the point of view of the operator than the community (cf. Theodorou v. Redland Shire Council (1987) QPLR 11 at 14). Furthermore I consider he paid insufficient attention to the availability of comparable services located towards the centre of Brisbane to and from which many of the area’s residents travel daily. There was no evidence from anyone living in the area of any difficulty or inconvenience presently being felt about the lack of a local liquor outlet or of a licensed restaurant.

1. Furthermore, Mr Norling’s evidence does not really argue specifically for the subject site.  The need would be as well filled if a second tavern were established in or near the Albany Creek District Centre.  Then, patrons would conveniently be able to choose between it and the existing tavern;  there could well be the ability to make use of existing car parks which are not otherwise heavily used in peak tavern times; the availability of taxis would be greater; the nearby presence of other commercial facilities could be a benefit.  Finally, residential amenity would be less compromised.

1. Of importance is the fact that a very large number of residents who live near this site object to the establishment there of a tavern.  When all is said and done, the BIM tavern would reduce by only a few minutes and a few kilometres the distance of those residents from liquor outlets and licensed dining premises whether from the establishments identified by Mr Norling or those towards Brisbane.  It seems to me that it would come as a surprise to the 150 or more objectors (though not to the one supporter) to be told that, contrary to their views they actually need the proposed tavern on this site.

1. So, while I accept from Mr Norling’s study that a need has been established I do not accept that it is a pressing need.  Still, this issue supports the BIM proposal.

Amenity

1. Mr Gore Q.C. conceded, pragmatically, the hurdle BIM faced on this issue.  As he said, few developments face opposition from residents of the intensity faced by applicants for taverns.  This is no exception.  There were over 150 objecting submissions (and one submission in support) to this application, virtually all from residents of the immediate or near-immediate vicinity of the site.  An unusually large proportion of the objections were not pro forma ones.

1. Planning legislation has long allowed objections to applications for land use to be made and has attached weight to them. Historically these have mainly been objections but were sometimes statements of support. Under IPA the neutral term “submission” has been adopted to cover both of these and under IPA submitters may actively join in the process. Submissions can be made by anyone, whether or not the submitter has a direct or proximate interest in the land concerned. A submission by a person with no legitimate interest, that is, a mischievous submission is very rare. Submissions by people with no close connection with the land are not, by that feature alone, mischievous. They may reflect a deeply held philosophical belief in what is proper in the circumstances and provide very great assistance to the planning authority. Environmental issues, for example, often generate such submissions.

1. When the proposal is for a commercial development of the site such as a tavern, it is common for a submission (in opposition) to be lodged by a commercial competitor.  In such a case the main issue raised is generally the need for the facility, although the competitor will often add strings to his bow such as amenity, traffic etc.  But the planning authority, or the Court, has long been used to taking into account the fact that the submission is based on economic considerations.  That does not invalidate the commercial competitor’s submission; it merely puts it in its proper context.  The second co-respondent ALH is a commercial competitor which conducts a tavern at Albany Creek.  In this appeal, unlike Arksmead v. Gold Coast City Council (1999) QPELR 322 (at 333) there is no suggestion that ALH orchestrated the opposition to BIM’s application to the Council.

1. Generally submitters are local residents and their submissions, mostly in opposition to the development, reflect the concerns they have for their lifestyle.  Very occasionally one hears views expressed by such submitters which could properly be described as selfish.  That was not so in this appeal.  Their evidence was of a genuine concern for the quality of the area generally and therefore of their lifestyles but that, to me, did not reflect selfishness.  It is not selfish to want to preserve a pleasant lifestyle.  Their subjective view of the amenity of the area, provided it is a reasonable view and honestly held, is a legitimate concept for consideration by a planning authority and this court.  See Broad v Brisbane City Council (1986) 59 LGRA 296 at 299 (per Thomas J) and 305 (per de Jersey J).

1. This was not an example of NIMBY (“not in my back yard”).  That term properly describes the case where something essential, (for example a hospital, a school or an electrical substation) undoubtedly has to be established somewhere in the area.  The question is not whether the use is needed in the area (that is conceded);  the question is whether it will be in this back yard or the back yard of someone else.

1. The NIMBY criticism can seldom be raised when something like a tavern is mooted.  The facilities offered by a tavern in the form of on-site or off-site alcohol sales, dining and entertainment are, I accept, an attraction which many people may desire, but unless those facilities are completely absent from an area their provision could not be described as essential or even, in the ordinary sense of the word (as opposed to the planning sense) “needed”.  Their availability on this site would simply bring them a few kilometres or a few minutes closer to the local residents. 

1. The local objecting submitters fear a degeneration of their lifestyle because a tavern is proposed for their immediate locality.  Their fears are the sorts of emotions which cannot easily be expressed by an ordinary person.  In summary though, I understood them to be saying that, albeit with occasional exceptions caused by antisocial elements at the skate bowl and in the park, they enjoy a calm, peaceful lifestyle.  They fear that this will change so that (not every night, but sometimes) there is likely to be noise, light, and anti-social activity which will disturb them.  And while this will not occur nightly and may occur only occasionally those occasions will be unpredictable.  So instead of living a peaceful existence, they will feel on edge.

1. The evidence establishes that the noise produced by this tavern would usually be within acceptable limits.  But as everyone knows, excesses sometimes occur.  Reasonable hotel patrons would depart at a proper hour, would converse quietly and would drive away quietly.  But sometimes, some of them would not be reasonable.  They would talk loudly and inappropriately, leave noisily and possibly behave like vandals.  This would, I accept, happen only occasionally but the local residents would have no way of knowing if a particular night were to be “the night”.  All of that would reduce the enjoyment of a resident of the amenity of the area, and would be unreasonable.  A view similar to this was taken by Quirk DCJ in Bartlett Estates v Redland Shire Council (1986) QPLR 22 at 26; and Brabazon DCJ in Arksmead (supra).

1. Two matters of importance on this issue were advanced in evidence, first the ability of security guards retained by BIM to control anti-social behaviour of tavern patrons and second whether the use of alcohol is becoming more responsible especially in taverns such as that proposed, so that the likelihood of anti-social behaviour is remote.

1. As to the first proposition, I am not aware of any legislation which would allow even the best motivated security guard employed by the tavern to do anything more than enforce certain contractual rights and duties which exist between the tavern and its patrons.  So they could deal with unruly guests on the premises but could not control their behaviour off the site.  As I have said, it is off-site behaviour which is of most concern.  This court should do nothing which might be interpreted as an imprimatur for private security officers to adopt, even usurp, the statutory powers of the Police Service.

1. As to the second proposition, there was discussion in the evidence which dealt with the question whether modern approaches to the consumption of alcohol in our society are such as to reduce or even remove concerns that there will be some anti-social behaviour by patrons. 

1. The pattern of drinking in Australia is so well known as to be the subject of judicial notice.  Statistically Australians drink alcohol heavily.  Regrettably, it is often done in binges and at that time the indulgers often behave anti-socially, sometimes to the extent of criminal behaviour. 

1. Some other cultures exhibit an attitude to alcohol consumption which is far more socially acceptable than that which has prevailed in Australia.  I accept that taverns of the type BIM propose look to encourage that sort of socially acceptable behaviour by establishing a civilised, family atmosphere.  The fact remains, however, that at present our society has not entirely taken up the concept of the tavern as a quiet family entertainment area.  Patrons of taverns do sometimes misbehave to the detriment of the neighbourhood.  The evidence of Sergeant Ames establishes that.  He gave examples based on his actual experience of the commission of anti-social acts by tavern patrons and his concern, for example, of such acts taking place in the grounds of the two schools near the site.

1. The facts of this case distinguish it from that of Renard Developments Pty Ltd v. Caloundra City Council (2001) QPELR 218. In Renard the proposed tavern was much smaller; it was in a Special Business Zone;  it was surrounded by commercial uses and was near a police station.  There was no suggestion that its operation would degrade a residential amenity.

1. Thus I am unable to conclude that a tavern on this site, despite the best efforts of its manager, would not be the source of unpleasant disturbance from time to time.  Therefore I find that the fears expressed by the objecting residents are not fanciful or overly pessimistic.  On the contrary the evidence given by the local residents who were called by the Council was calm, logical and persuasive.  It reflected not only their experiences in living in the area but also their expectation that the site would, in accordance with its zoning, not be developed for some intensive commercial use.

1. In my view the probability that a tavern and its associated facilities on this site would unreasonably degrade the amenity of the area is so great as to be decisive of the appeal. The remaining two issues, noise and traffic, certainly do not argue in favour of the proposed tavern.  The applicable planning principles tend to argue against the tavern.  While need argues in its favour, it does not do so with sufficient force to overcome the factors against it, particularly amenity.

Noise and Traffic

1. In the light of what I have said, supra, these  two issues can be dealt with shortly.

1. The concern about noise does not relate to on-site noise.  BIM’s revised plans have properly dealt with earlier concerns on that point.  The remaining concerns relate to off-site noise from vehicles and pedestrians departing the tavern at night, over whom BIM’s servants and agents would have little or no control.  I am quite sure that on occasions they would be a nuisance to nearby residents.  This, really, is an aspect of amenity, which I have discussed earlier.

1. As to traffic, the evidence raises some justifiable concerns about the proposed numbers of car parks (which I find, would be somewhat inadequate at times of heaviest demand), and about some awkward traffic movements on site.  While these aspects are certainly rather unsatisfactory they would not of themselves amount to a reason to dismiss the appeal.

Conclusion

1. The appeal is dismissed.