Calligaris v Bundaberg City Council

[2001] QPEC 64

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Calligaris & Ors v. Bundaberg City Council & Ors [2001] QPEC 064
PARTIES:	ROBERT MARIO CALLIGARIS, WENDY LYN CALLIGARIS, DEBBIE BALSDON, KIERAN JOHN DELANEY, DELLICE FAY DELANEY, WILLIAM STEPHEN DAVIS, PAMELA RUTH DAVIS, DERRICK HOCHEN, DORIS VERA HOCHEN, ALEXANDER JONSEN AND GAYE LORRAINE JONSEN    Appellantsand BUNDABERG CITY COUNCIL  Respondent and C & B GROUP  First Co-Respondent And KILCOR PTY LTD  Second Co-Respondent and QUEENSLAND DEPARTMENT OF MAIN ROADS   Third Co-Respondent
FILE NO/S:	5 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	24 – 26 September, 2001
JUDGE:	Judge Quirk
ORDER:	Appeal dismissed.
CATCHWORDS:	Integrated Planning Act; ss 6.1.29, 6.1.30 Local Government (Planning and Environment) Act; ss 4.4(3). 4.4(5)A Cut Price Stores Retailers v. Caboolture Shire Council (1984) QPLR 126 at 131
COUNSEL:	Mr M Rackemann for the Appellants Mr S Ure for the Resondent Mr C Hughes for the First & Second Co-Respondents Mr R Jones for the Third Co-Respondent
SOLICITORS:	McCullough Robertson Hancock for the Appellants Baker O’Brien Toll for the Respondent Nicolsons for the First & Second Co-Respondents Crown Solicitor for the Third Co-Respondent

1. This is an appeal by adverse submitters against the decision of the respondent council to approve an application for a development permit for material change of use and reconfiguration of a Lot for a showroom (retail hardware, homeware and plant nursery) development.  The site is on the outskirts of Bundaberg close to the western side of Takalvan Street, a major thoroughfare leading into the city. 

1. The land the subject of the application has an area of a little over 2 hectares and is part of a large parcel owned and occupied by the Bundaberg Brothers Sports Club.  The land is presently the locality of a number of sports fields and a large modern and well-appointed clubhouse with a generous area of on-site car parking.

1. As explained by the club’s president, Mr O’Keefe, recent times have not been easy for the club.  It is faced with a substantial debt associated with the re-development of the clubhouse and has experienced difficulties in maintaining the level and quality of services which it provides to the community.  These services are extensive and were detailed in his evidence.  This was not a matter of dispute. 

1. The club proposes to reduce its debt level and provide itself additional funding by the realisation of some of its assets.  Particularly this involves the sale of the subject land, the loss of which, it was pointed out, would not reduce (in any important way) the club’s ability to provide the sporting facilities which it traditionally has.

1. The respondent by election is the intended developer of the subject land.  It is proposed that a new retail hardware, homeware and plant nursery complex be established on the site.  At the time of the application and the council’s decision it was anticipated that the operation of the complex would be in the hands of the “Hardware House” chain, but subsequent corporate re-structuring has indicated that the Bunnings Group might eventually control the facility.

1. Counsel for the respondent by election indicated that some differences in mode of operation might in time call for relatively minor modifications in layout of the proposal.  Necessary application to allow this will be called for.  However, it appears to be accepted that this possibility does not stand in the way of the determination of this appeal on the basis of the current proposal.

1. Details of the proposal, its layout and design can be seen from the material and drawings placed before the court.  It has to be said that the proposal met with an unfavourable response from the council’s planning officer who recommended its refusal.  The recommendation was not adopted by the council and the proposal was conditionally approved.  The council officer in question was not called to give evidence.

1. The appellants are residents of a pocket of residential land which comprises about 18 dwellings and lies to the north of the subject land, across Faircloth Crescent.  No secret was made of the fact that their appeal was supported financially by Mr Presler who is developing a commercial estate in Johanna Boulevard, to the north.  Mr Presler’s motives in so doing, while understandable, are immaterial to the force of the appellants case which must be considered on its merits.

1. A number of issues were initially raised but, as the evidence unfolded, it became clear that those issues which would prove determinative in the appeal were:

§  conflict with the formal planning instruments, including the

Strategic Plan and the reasonable expectation of nearby

residents.

§  Community interest or “need”.

§  Impact upon amenity.

§  Problems associated with traffic.

§  Stormwater management.

1. Because the relevant town planning scheme is a “transitional planning scheme” the application must be dealt with in accordance with sections 6.1.29 and 6.1.30 of the Integrated Planning Act. These sections call up relevant provisions in the repealed legislation.  Importantly, because under that legislation the proposal would have called for a re-zoning, the matter of “need” (as that concept is understood in a planning sense) must be considered.

1. The subject land, being part of the larger area owned by the club, is included in the sport and recreation zone.  In the Strategic Plan the land has been given a “Recreation/Open Space” designation.  It was common ground that the form of development here proposed is not consistent with that zoning or designation.  However, it is the case of the respondents that this is a matter where inconsistencies with the formal planning documents may be overlooked on the basis that there are more than sufficient planning grounds for approving the proposal (section 4.4(5)A of the Local Government (Planning and Environment) Act).   Important among those grounds is that there will be considerable community benefit in allowing this application. 

1. In dealing with the town planning aspects of the case I had the advantage of the evidence of three experienced consultants (Mr Alcorn for the appellants, Mr Ryter for the respondents and Mr Veitch for the respondent by election).

1. In support of the proposal the following points were made:-

1.The zoning and designation of the club’s land are not an expression of any forward planning strategy, but a recognition of the status of the land at the time of the introduction of the relevant planning instruments.

2.          The club land is in private ownership.  A distinction may be drawn between it and other lands designated for recreation/open space purposes, the bulk of which is publicly owned.  The possibility that there might be a departure (when circumstances warrant it) from the historical use of the club land which was the basis of its zoning and designation, cannot be totally ignored. 

3.          It has to be recognised that the zoning of the club land permits uses which involve the erection of structures of some substance (e.g., gymnasiums, squash courts, indoor cricket centres etc) and it is unrealistic to suppose that the club lands present zoning and designation will ensure that it will continue to provide visual relief as land free of development. 

1. It cannot be denied that the predominant character of this locality is commercial/retail on a fairly large scale.  This is readily apparent from the aerial photographs placed before the court (e.g., Exhibit 2).  From the airport entry to Enterprise Street this form of development dominates on both sides of Takalvan Street.  I appreciate that this development is not inconsistent with the zonings and designations found in the town planning scheme, but the fact of its presence and contribution to the area’s character cannot be avoided.

1. With due respect to the residential precinct within Faircloth Crescent, it also appears to be something of a planning anomaly being heavily influenced by the non-residential development that virtually surrounds it.  That is not to say that the amenity of those residents can therefore simply be discarded, but what has occurred in the area is a factor in assessing the consequences of the introduction of the proposed development.

1. The point is also well made that a weakness in the argument that the club’s lands zoning and designation is a basis for any reasonable expectation on the part of resident of this precinct that they will look out over an open and un-developed area indefinitely is demonstrated by the club premises and associated parking on the land.

1. I believe that all of these points have some force and while it is true that a proposal of this kind would not normally be anticipated within this zoning and designation, these constitute planning matters and are factors which may be taken into account in considering whether, on balance, it should be approved nevertheless.  

1. Another factor, and a very important one in the context of a case of this kind, was that the proposed development represented an opportunity for considerable community benefit that would follow the club’s being able to dispose of a part of its land which is not essential to its needs. As already mentioned, to allow this proposal would be comparable to permitting an amendment to a town planning scheme under the repealed legislation. Traditionally, judicial authority indicated that, if a town planning scheme is to be amended, a need (or community benefit) that this amendment be made, should be demonstrated. The criterion of need was recognised by the legislature in section 4.4(3) of the Local Government (Planning and Environment) Act.

1. What constitutes “need” in a planning sense has been the subject of considerable judicial discussion (e.g, Cut Price Stores Retailers v. Caboolture Shire Council (1984) QPLR 126 at 131). However, fundamentally it appears to have been accepted that the issue of need may be decided in favour of a proponent where it is shown that the community’s (as distinct from the proponent’s) interests would be advanced by making the amendment sought.

1. I am satisfied on the evidence given in this appeal that the Bundaberg Brothers Sports Club has a large investment in facilities which are able to and do offer substantial benefit to the community of the city.  I am further satisfied on the evidence that its ability to continue to provide those benefits at a suitable level, or at all, have been placed in some jeopardy.  That position could be reversed substantially by the club’s being able to re-arrange its affairs by divesting itself of land which is not essential to its purposes and thereby enable itself to continue to serve the community as it has traditionally.  I accept that the proposed development represents a fairly unique and advantageous opportunity to do this.  While it was suggested that part of the club’s land might be sold for other more acceptable (in planning terms) purposes, there was no evidence that such a possibility was a reality. 

1. It was also submitted (in the “need” context) that there was no demonstrated lack of land in Bundaberg suitably zoned or designated for the proposed use.  However, reality must again be faced.  The proposal involves a very substantial investment.  It is intended to provide accommodation for a business which will be operated on a very large scale and at what is often described as a “national level”.  To attract such a tenant certain locational attributes are essential, not the least of these being suitable exposure to an arterial road.  The subject land is well qualified in that respect.  Other land which was mentioned in evidence (e.g., Mr Presler’s estate) is not. 

1. I hasten to say that these matters alone could not open the way to re-development  land in any form at all simply to save the club’s position.  They are no more than positive factors to be taken into account in considering the proposal.  The proposal itself must be carefully scrutinised and an evaluation made of its impact on the area’s character and amenity.  The positive features referred to then must be weighed against any detriment that the proposal might represent and the end result will indicate whether approval is justified.

1. Before leaving the Strategic Plan I should refer to a passage upon which reliance was placed.  It is found in paragraph (x) of the implementation provisions to objector 1 (a) of the low-density residential designation (page 1383 of the gazetted copy of the scheme).  It provides:

“(a)       A relatively small number of residents already suffer from the disability of traffic noise, because of their location on busy streets.  Except where a particular locality is already “committed” to uses other than detached housing (and there are few such localities), then it is most important that the amenity of such houses be protected against further deterioration, through the intrusion of incompatible uses adjacent, including:

(a)        Commercial development;

(b)        High density housing;

(c)        Motels;

(d)        Caravan Parks;

(e)        Industry.

1. It would be fair to say, on the evidence given, that the Faircloth Crescent precinct already suffers from the disability of traffic noise because of its location on a busy street.  It is equally true that the precinct is not “already committed to uses other than detached housing”.  Whether the proposal offends the remaining words of the provision of arguable.  What “the intrusion of incompatible uses adjacent” means is not entirely clear.  There is some considerable doubt whether the proposal represents “commercial ribbon development” as that concept is generally understood to involve commercial development which leads to a proliferation of points of access along an arterial road.  What is clear is that this land is already committed to a non-residential use and, on the evidence, arrangements for traffic access are satisfactory.

1. Having said that I would emphasise that I believe it is important to carefully examine the impact of the proposal on the residential amenity of the Faircloth Crescent precinct, recognising the importance (as a matter of general planning principle) of protecting that amenity from unreasonable detriment.  In that context there are a number of important features of the case.  The existing level of residential amenity, while not providing any justification for its destruction, must be taken into account in appreciating the likely impact of the proposal upon it.

1. The major potential sources of adverse impact would appear to be the appearance and building form of the proposal, noise and lighting.  There is no question that the proposal involves a large structure and car parking area.  However, it must also be noted that its visual impact will be felt, in any important way, only in the southern section of the residential precinct. 

1. The majority of residences on the north-western side of Faircloth Crescent will continue to look across an area of the subject land that will be maintained as an open area.  Those residences in the north and north-western part of the precinct will suffer little, if any, detriment from the proposal and are influenced strongly be existing large scale commercial development and the very busy Takalvan Street. 

1. The road reserve of Faircloth Crescent is of a generous width and on the side opposite to the residences there is a border of well-established tress which already provides a visual buffer.  Careful attention has been given to landscaping and screening of the development and this was explained in the evidence of the landscape architect, Jennifer Neals, whose opinions I accept.  I am satisfied that the proposal will represent a form of development which is comparable to the development which dominates this locality and that satisfactory attention can be given to ameliorating its visual impact upon the Faircloth Crescent residential precinct.

1. As to noise and lighting, I had the advantage of the evidence of two very experienced consultants, Mr Rumble and Mr Winders.  Their investigations indicated that this is anything but a quiet area.  Whether noise emanating from the proposal is likely to exceed acceptable limits was a matter of some debate, the main difference in the competing approaches being one of method.

1. Mr Rumble, in expressing his satisfaction that likely noise levels would be acceptable, relied on an approach which was based on that adopted by the Environmental Protection Authority, Mr Winders, in his more conservative assessment, relied upon the traditional “background plus” approach.  It was also submitted with some force that he failed to allow adequately for the attenuating effects of buildings and others structures and the paths likely to be taken by heavy vehicles traversing the subject land.

1. Similarly, with lighting it is not at all clear that Mr Winders, in his evidence, sufficiently appreciated the likely screening effects of the existing vegetation and the proposed landscaping and screening.  The applicability of the standards which he believed should be imposed was questionable.  On the evidence given I am satisfied that the amenity issued should be decided in favour of the proposal. 

1. As to potential traffic problems, the major issues seem to be resolved before evidence was given.  The Queensland Department of Main Roads, which was nominally a co-respondent to the appeal, withdrew when questions relating to the arrangements for access from Takalavan Street to the subject land were resolved. 

1. Mr Brameld, the appellant’s consultant, accepted that the signalisation of the point of entry which is the subject of an intended condition and the co-ordination of that signalisation with other devices in Takalvan Street, would lead to an acceptable result.  It would also appear to constitute a community benefit providing safer access to the club premises and development on the other side of Takalavan Street. 

1. The only remaining concern involved the possibility of customer parking in Faircloth Crescent, and the possibility of motorists crossing the (not particularly effective) barrier between the Crescent and the service road fronting the subject land.  That both of these matters were undesirable was not disputed.   Whether they were likely to occur was the subject of debate.  On the evidence I have concluded that I should accept the views of Mr Brameld that an effective pedestrian barrier should be maintained along the entirety of the north-western leg of the Faircloth Crescent, and that any development permit should be subject to a condition to reflect this.

1. I also accept Mr Brameld’s opinion that motorists should not be tempted to avoid any congestion at the point of exit into Takalvan Street by departing via the service road and Faircloth Crescent.  This could be readily achieved by improving the effectiveness of the existing barrier and would involve relatively little expense.  This should also form part of the conditions of approval. 

1. Problems relating to stormwater drainage have been largely resolved.  It is intended that formal arrangements be made to accept stormwater runoff from the southern end of the Faircloth Crescent residential precinct and allow it to be drained across the subject land.  Mr Winders also advocated additional measures (Humeceptors etc.) to ensure appropriate quality of water runoff from the site.  While I accept that such measures might prove advantageous, I accept the submission of both the respondent council and the respondent by election that arrangements for the overall maintenance of water quality in the catchment is a matter best left to the respondent council.

1. There were some other matters mentioned in the course of the appeal which, (although not contentious) will require some reformulation of the proposed conditions.  I will not intrude into these areas unless the necessity arises. 

1. On the whole of the evidence I am satisfied that while the proposal involves some conflict with the town planning scheme, sufficient planning grounds (including the demonstrated public benefit that approval of the proposal will constitute) exist to overlook such conflict.  On the whole of the evidence I find that the onus of showing that the application is one that should be approved has been discharged and the appeal will accordingly be dismissed.  I will adjourn the matter to allow for the formulations of appropriate conditions of approval.