Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council
[2022] QPEC 16
•3 June 2022
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16
PARTIES:
CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)and
RIVERMAKERS WELLNESS & RESEARCH CENTRE PTY LTD (ACN 640 084 700)
(Co-respondent)AND
WILMAR TRADING (AUSTRALIA) PTY LTD
(ACN 128 080 455)
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)and
RIVERMAKERS WELLNESS & RESEARCH CENTRE PTY LTD (ACN 640 084 700)
(Co-respondent)FILE NO/S:
3451 of 2020 and 23 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Appeals
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
3 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
28 – 29 and 30 July, 20 – 24 September and 21 October 2021 and further written submissions received 27 May, 30 May, and 1 June 2022
JUDGE:
Kefford DCJ
ORDER:
I order:
(a) By 4 pm on 17 June 2022, the respondent is to provide the other parties with a draft suite of conditions.
(b) By 4 pm on 1 July 2022, each of the appellants and the co-respondent is to notify the other parties, in writing, of its position with respect to the draft suite of conditions.
(c) The appeal be listed for review at 9 am on 8 July 2022.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against Council’s approval of development application – where the appellants contend the development is an inappropriate use of the subject land – where the development application is a change of use from vacant to indoor sport and recreation where the land is in the Industry zone – where the development permit imposes a condition requiring the use to cease after two years – where the appellants operate an abattoir and bulk shipping terminal near the subject site – where a Temporary Local Planning Instrument was introduced after the appeal was commenced – whether the proposed development is an inappropriate use of land – whether the proposed development is consistent with the planning scheme – whether the proposed development is consistent with the South East Queensland Regional Plan – whether the proposed development results in adverse constraints on industrial uses – whether the proposed development impacts on the road network – whether the proposed development has adequate car parking – whether weight should be given to the Temporary Local Planning Instrument – whether the proposed development is within the reasonable expectations of the community – whether there is a need for gym facilities – whether the proposed temporary nature of the approval is relevant – whether the fact the buildings are already constructed is relevant – whether the development application should be approved in the exercise of the planning discretion.
LEGISLATION:
Planning Act 2016 (Qld), ss 3, 4, 8, 23, 27, 43, 45, 59, 60, 66, 230
Planning and Environment Court Act 2016 (Qld), ss 39, 43, 45, 47
Planning Regulation 2017 (Qld), ss 30, 31, sch 24
Planning and Environment Court Rules 2018 (Qld), rr 4, 27, 28, 31, 32, 33
Uniform Civil Procedure Rules 1999 (Qld), r 426
CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, applied
Adpen Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 59; [2020] QPELR 732, not followed
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18, approved
Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 54; [2018] QPELR 265, approved
Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23; [2017] QPELR 530, approved
Brisbane City Council v Cunningham & Anor [2001] QCA 294; [2001] 115 LGERA 326, applied
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, applied
Brown v Logan City Council [2019] 3 Qd R 355, applied
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, approved
Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, approved
Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366, approved
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, applied
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, applied
GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, cited
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33, approved
Indooroopilly Golf Club v Brisbane City Council & Ors (1982) QPLR 13, approved
Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2007] QPEC 109; [2008] QPELR 321, approved
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied
Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved
Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, approved
J Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26; [1973] 1 WLR 560; 71 LGR 273, 25 P & CR 268, cited
Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41, approved
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved
K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved
Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, applied
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied
Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, applied
Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, approved
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied
McDonald v Douglas Shire Council [2003] QCA 203; [2004] 1 Qd R 131, applied
McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42, approved
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved
National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68, applied
Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; [2011] QPELR 786, approved
Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46; [2019] QPELR 96, approved
Pioneer Concrete (Qld) Proprietary Limited v Brisbane City Council [1980] QCA 1; (1980) 145 CLR 485, considered
Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2000] QPEC 95; [2001] QPELR 191, approved
Sellars Holdings Ltd v Pine River Shire Council [1988] QPLR 12, approved
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, applied
Trowbridge v Noosa Shire Council [2018] QPEC 7; [2018] QPELR 501, approved
Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPEC 232; [2002] QPELR 542, approved
Wilhelm v Logan City Council & Ors [2020] QCA 273, applied
Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
D Gore QC and A Skoien for the Appellant in 3451 of 2020
R Anderson QC and N Loos for the Appellant in 23 of 2021
T Sullivan QC and R Yuen for the Respondent
M Batty and S Hedge for the Co-respondentSOLICITORS:
Kinneally Miley Law for the Appellant in 3451 of 2020
Allens for the Appellant in 23 of 2021
Brisbane City Legal for the Respondent
Thynne + Macartney Lawyers for the Co-respondent
TABLE OF CONTENTS
Introduction
What is the applicable framework for the decision?
What issues require determination?
Is the proposed development an inappropriate use of the land?
What is the nature of the use and the scale and form of the proposed development?
What are the relevant assessment benchmarks?
Do the assessment benchmarks support the use of the subject land for the proposed development?
Does the Industry zone code support the proposed development?
Does the River gateway neighbourhood plan code support the proposed development?
Does the Strategic framework support the proposed development?
Does the Indoor sport and recreation code support the proposed development?
Does the South East Queensland Regional Plan support the proposed development?
Does the proposed development strike an appropriate balance?
What are the existing lawful uses in the area?
What was the evidence of the town planners?
Is the evidence of Mr Ovenden reliable?
What is my assessment of the balancing exercise?
1. Does the proposed development involve a use that is inherently incompatible?
2. Would the proposed development support and serve the industry area?
3. Does the location of the proposed development provide an appropriate level of accessibility?
4. Would the proposed development compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area?
Conclusion regarding the appropriateness of the land use assessed against the South East Queensland Regional Plan
Conclusion regarding appropriateness of the land use
Will the proposed development result in an unacceptable risk of adverse and unreasonable constraints on industrial uses?
Will the proposed development result in unacceptable impacts on the safety, efficiency, and function of the road network?
What are the relevant assessment benchmarks?
Will the proposed development have an unacceptable impact on the roundabout at the intersection of Colmslie, Lytton and Junction Roads?
Will the proposed development create a traffic safety issue?
Conclusion regarding compliance with the assessment benchmarks regarding traffic
Will the proposed development provide adequate car parking?
What weight should be afforded to the Temporary Local Planning Instrument?
Is a decision to give weight to the Temporary Local Planning Instrument unfair to Rivermakers?
What is the importance of the Temporary Local Planning Instrument?
What is the outcome of an assessment of the proposed development against the Temporary Local Planning Instrument?
Conclusion regarding the weight to be afforded to the Temporary Local Planning Instrument
What are the relevant matters relied on by the parties?
Is there a need for the proposed development?
Conclusion regarding need for the proposed development
Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?
Is the proposed development inconsistent with the extant development approval for low and medium impact industry and warehouse uses?
Is the way the subject land has been developed and fit-out relevant?
Is the proposed development within the reasonable expectations of the community for development in the locality?
Should the development application be approved in the exercise of the planning discretion?
Conclusion
Introduction
On the south-eastern corner of the intersection of Colmslie, Lytton, and Junction Roads at Morningside there is an existing development known as “The Depot”. The street address of the development is 32 Colmslie Road and 500 Lytton Road, Morningside (“the subject land”). Morningside is an eastern suburb of Brisbane on the southern side of the Brisbane River.
The Depot is developed with three large buildings, a service station, a drive-through McDonald’s fast-food restaurant and a central car park. The buildings were constructed pursuant to a development permit that authorised their use for warehouse, low impact industry and medium impact industry uses. They present in a similar manner to that typically adopted for “showroom-style” (i.e., large-format retail) uses.[1]
[1]Exhibit 2.4 p 6 [19].
In April 2020, the Co-respondent, Rivermakers Wellness & Research Centre Pty Ltd (“Rivermakers”), sought a development permit to authorise it to carry out a material change of use of part of one of the existing buildings in the Depot (“the subject site”). They sought approval to make a change from the present, vacant state of the subject site to its use for indoor sport and recreation in the form of a gymnasium and an indoor rock-climbing facility.
The Council granted a development permit by decision notice dated 9 November 2020, thereby approving the change of use. Importantly, it imposed a condition that, in effect, required the use to cease after a period of two years. Rivermakers did not appeal the imposition of the condition that limited its use to a two-year period. It now only seeks a temporary approval for that duration.
The submitter Appellants, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd (together referred to as “ACC”) and Wilmar Trading (Australia) Pty Ltd (“Wilmar”) operate an abattoir and a bulk shipping terminal respectively near the subject site. They each made submissions opposing the proposed development and appealed the Council’s approval of the development application.
ACC and Wilmar contend that the proposed development is an inappropriate use of the subject land as it is patently inconsistent with the assessment benchmarks in the South East Queensland Regional Plan 2017: ShapingSEQ (“the South East Queensland Regional Plan”), Brisbane City Plan 2014 version 18 (“City Plan”), and the Temporary Local Planning Instrument 02/21 – Colmslie Road Industry Precinct (“the Temporary Local Planning Instrument”). They also contend that the proposed development will result in an unacceptable risk of adverse impact on existing industrial uses arising from amenity concerns raised by the customers of the proposed gymnasium and bouldering gymnasium. ACC and Wilmar further contend that the proposed development will result in unacceptable traffic impacts.
Rivermakers disputes those contentions. It contends that an approval is supported by the need for the proposed development, its temporary nature, and other relevant matters. The Council supports Rivermakers’ position.
The issue for me to determine is whether, in the exercise of the planning discretion, the development application should be approved.
What is the applicable framework for the decision?
The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies. In deciding the appeals, the Court must confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[2]
[2]Planning and Environment Court Act 2016 s 47.
The appeals proceed by way of hearing anew.[3] Rivermakers bears the onus of establishing that the appeals should be dismissed.[4]
[3]Planning and Environment Court Act 2016 s 43.
[4]Planning and Environment Court Act 2016 s 45.
There is a broad discretion in determining these appeals.[5] The exercise of the discretion must be based on an assessment that:[6]
[5]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).
[6]Planning Act 2016 ss 45 and 59.
(a)must be carried out:
(i)against the assessment benchmarks in City Plan[7] and the South East Queensland Regional Plan[8] to the extent relevant;
(ii)having regard to, relevantly:
(A) the South East Queensland Regional Plan to the extent relevant and only to the extent that an assessment is not otherwise carried out against the assessment benchmarks in the South East Queensland Regional Plan;[9] and
(B) any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[10]
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise); and
(c)may give weight that the Court considers appropriate in the circumstances to the Temporary Local Planning Instrument, which came into effect on 29 June 2021 and has effect for a period of two years.
[7]City Plan is a local categorising instrument: Planning Act 2016 s 43. Version 18 of City Plan was the categorising instrument for the development in effect when the development application was properly made on 29 April 2020. It was impact assessable. See Exhibit 11.4 p 2 [1].
[8]Planning Act 2016 ss 43 and 45(5)(a)(i) and Planning Regulation 2017 (Qld) ss 30(2) and (3).
[9]Planning Act 2016 s 45(5)(a)(ii) and Planning Regulation 2017 s 31(1)(d)(i) and (2).
[10]Planning Regulation 2017 s 31 and sch 24.
This Court has analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council & Ors[11] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[12] The jurisprudence in those cases was endorsed by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[13] Abeleda & Anor v Brisbane City Council & Anor,[14] Wilhelm v Logan City Council & Ors[15] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[16]
[11][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[12][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
[13][2020] QCA 253.
[14][2020] QCA 257.
[15][2020] QCA 273.
[16][2021] QCA 95.
What issues require determination?
The parties agree that the issues that remain in dispute are those identified in Exhibit 9.60.[17] They call for consideration of the following questions:
[17]The issue identified in paragraph 16 of Exhibit 9.60 was withdrawn by Wilmar. Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 11.
1. Is the proposed development an inappropriate use of the land?
2. Will the proposed development result in an unacceptable risk of adverse and unreasonable constraints on industrial uses?
3. Will the proposed development result in unacceptable impacts on the safety, efficiency, and function of the road network?
4. Will the proposed development provide adequate car parking?
5. What weight should be afforded to the Temporary Local Planning Instrument?
6. What are the relevant matters relied on by the parties?
7. Is there a need for the proposed development?[18]
8. Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?[19]
9. Is the proposed development inconsistent with an extant development approval for low and medium impact industry and warehouse uses?[20]
10. Is the way the subject land has been developed and fitted-out relevant?[21]
11. Is the proposed development within the reasonable expectations of the community for development in the locality?[22]
12. Should the development application be approved in the exercise of the planning discretion?
[18]This will address issues 8, 10, 12, and 21 from Exhibit 9.60.
[19]This will address issue 21 from Exhibit 9.60.
[20]This will address issue 13 from Exhibit 9.60.
[21]This will address issue 17 from Exhibit 9.60.
[22]This will address issue 14 from Exhibit 9.60.
The first four questions involve an assessment against assessment benchmarks. ACC and Wilmar identified numerous assessment benchmarks. During the hearing, ACC and Wilmar made it clear that refusal is only warranted by non-compliance with what they identify as the “core” provisions. ACC and Wilmar accept that if I am satisfied that non-compliance with the core provisions do not warrant the refusal of the development application, the provisions that they identify as “context” provisions are not such as would support a refusal of the development application.[23] This concession informed the evidence presented to the Court and the assistance provided in final submissions.[24]
[23]Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 4. Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 9 and 11. Submissions of the Appellant Wilmar Trading (Australia) Pty Ltd p 7 [19].
[24]I consider the concession to be tantamount to an admission in a pleading.
Is the proposed development an inappropriate use of the land?
ACC and Wilmar contend that the proposed development is an inappropriate use of the land by reason of the type of use, and the scale and form of the proposed development.
What is the nature of the use and the scale and form of the proposed development?
The proposed development is an indoor sport and recreation use comprising a gymnasium with a gross floor area of approximately 4,772 square metres and an indoor rock-climbing facility (i.e., a bouldering gymnasium) with a gross floor area of approximately 805 square metres. The gymnasium is to include a ground level and a mezzanine level with five to seven studios for fitness classes, a separate weights area, administrative facilities, and amenities. The use is to be located within an existing industrial building on the subject land.
The Council’s approval included a condition that limited the operation of the proposed development to a period of two years until 9 November 2022.
During these appeals, Rivermakers indicated that it would accept the imposition of the following conditions:
“1.The approval is limited to a period of two (2) years from the date that the approval takes effect.
2.The maximum number of patrons in the gym at any time is to be 300.
3.The operator of the gym will provide information to all customers upon sign up that there are industrial uses nearby that may result in detectable noise and odour impacts from time to time.
4.All windows of the proposed development facing Colmslie Rd will be obscured by at least 50% by permanent structures or treatments.
5.Workers whose place of employment is located within the area to which Temporary Local Planning Instrument No. 2 of 2021 (Colmslie Road Industry Precinct) applies will be entitled to a discount of 40% on membership to the Total Fusion Morningside gym.”[25]
[25]Exhibit 12.7.
Wilmar notes that the gymnasium has been fitted out already, including with equipment that is not related to the use sought by Rivermakers in the development application that is before the Court. The fit out includes treatment rooms, float rooms, saunas, consultant rooms, a food and drink outlet and office and administrative space. Despite the fit out, there is no evidence of a lease between TotalFusion, the proposed operator and lessee, and Rivermakers. The prospect that the use may unlawfully exceed that which is approved may be relevant when considering what conditions should be imposed.[26] It is of less significance to an assessment of the acceptability of the proposed development given that I am to assess the proposed development, not a hypothetical development.
[26]Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, 518; Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, 111 [183]; Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33, [238]-[239].
What are the relevant assessment benchmarks?
In support of their contention that the proposed development involves an inappropriate use, ACC and Wilmar rely on numerous assessment benchmarks that they identify as “core” provisions. They are:
(a)Chapter 3, Part A, Goal 2: Prosper of the South East Queensland Regional Plan:
(i)Element 2, Strategy 2; and
(ii)Element 5, Strategy 1;
(b)in the Strategic framework in City Plan:
(i)the strategic outcome in s 3.3.1 1.h., which relates to Theme 1: Brisbane’s globally competitive economy;
(ii)specific outcomes SO1, SO2, SO4 and SO8 and land use strategies L1.4, L2.1, and L8.2, in Table 3.3.3.1, which relates to Theme 1, Element 1.2 – Brisbane’s industrial economy;
(iii)the strategic outcomes in ss 3.7.1 1.c.i., ii., iii., iv. and v.;
(c)the purpose in s 6.2.5.2 1. and the overall outcomes in ss 6.2.5.2 4.a., b., e., g., 6.a. and 7.a. of the Industry zone code;
(d)the overall outcome in s 7.2.18.3 8.a. of the River gateway neighbourhood plan code; and
(e)the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.
ACC and Wilmar say that those core provisions should be understood by reference to the context identified in:
(a)the South East Queensland Regional Plan:
(i)Chapter 3, Part A, Goal 2: Prosper, Element 1, Strategy 5, and Element 2, Strategy 1, and Element 5, Strategies 2 and 5;
(ii)Chapter 3, Part C, Metro Sub-Region, Sub Regional Outcomes, Outcomes for Prosper, Regional Economic Clusters, 8(b) Australia Tradecoast;
(b)in the Strategic framework in City Plan:
(i)the strategic outcomes in ss 3.3.1 1.f, g. and i.;
(ii)land use strategies L1.1 and L4 in Table 3.3.3.1;
(iii)specific outcome SO7 and land use strategy L7 in Table 3.3.4.1;
(c)the purpose in s 6.2.5.2 1. and the overall outcome in s 6.2.5.2 6.b. of the Industry zone code; and
(d)the purpose in ss 7.2.18.3 3.a., c. and e. of the River gateway neighbourhood plan code.
Rivermakers contend that the assessment benchmarks support a finding that the proposed development is an appropriate non-industrial use in an industrial zone.[27]
[27]Written submissions of the Co-Respondent pp 2 – 3 [6].
Do the assessment benchmarks support the use of the subject land for the proposed development?
The applicable zone code is a useful starting point when assessing whether the assessment benchmarks support the use of the subject land for the proposed development. That is because City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[28]
[28]City Plan s 6.1 1.
Does the Industry zone code support the proposed development?
The subject land is mapped as part of the General industry A precinct and General industry B precinct of the Industry zone on Zoning Map – ZM-001-29.[29] As such, the development application is to be assessed against the provisions of the Industry zone code[30] to ascertain whether there is a clear non-compliance or if the assessment lends weight to the decision to approve the development.
[29]The building in which the subject site is located is wholly within the General industry A precinct of the Industry zone: Exhibit 2.02 p 19 [81].
[30]City Plan s 6.1 4.
Rivermakers contends that the proposed development is contemplated by the Industry zone code. It says the code seeks to, amongst other matters, provide for non-industry uses and activities that support industry activities and which do not compromise the future use of premises for industry activities.[31] ACC and Wilmar dispute this.
[31]Written Submissions of the Co-respondent p 3 [6(b)].
The Industry zone code articulates the planning intent for land in that zone, including the subject land. The purpose of the Industry zone is two-fold. Section 6.2.5.2 of the Industry zone code states:
“1.The purpose of the industry zone is to provide for:
a.a varies of industry activities; and
b.other uses and activities that:
i. support industry activities; and
ii. do not compromise the future use of premises for industry activities.
It is uncontroversial that the proposed indoor sport and recreation uses are not industrial uses (be it low impact, service, or medium impact industry uses) or warehouse uses. As such, approval of the proposed development is not consistent with the first stated purpose for the inclusion of land in the Industry zone.[32]
[32]City Plan s 6.2.5.2 1.a.
It is also uncontroversial that the commencement of an indoor sport and recreation use does not, of itself, give rise to a clearly identifiable non-compliance with the Industry zone code. An indoor sport and recreation use is impact assessable in the Industry zone. There is no clear statement in the code that establishment of such a use is inappropriate.
The real controversy is whether the proposed development is consistent with the second stated purpose of the Industry zone.[33] Rivermakers contends that the Industry zone code provides support for the proposed development. It says the proposed development is consistent with the purpose of the Industry zone because:
(a)the proposed development supports industry activities by providing a relevant service and facility to, amongst others, the workers of the industry zone;[34] and
(b)the proposed development is compatible with existing and future industry.[35]
[33]City Plan s 6.2.5.2 1.b.
[34]Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 October 2021) 11.
[35]Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 October 2021) 13.
Those matters are disputed. Assuming, for the moment, that Rivermakers can establish that the proposed development provides support to industry activities and is compatible with existing and future industry, it does not follow that the proposed development is consistent with the purpose of the Industrial zone.
Relevant overall outcomes in the Industry zone code that provide guidance on the type of non-industrial uses and activities that are anticipated in the Industry zone are overall outcomes 4.f. and 4.g. in s 6.2.5.2. They state:
“4.Development location and uses overall outcomes are:
f.Development for a stand-alone office is not accommodated.
g.Development for a use that is ancillary to an industrial use on the same site, such as an office function, or small-scale shop or food and drink outlet that directly supports the industry and workers may be accommodated.”[36]
[36]City Plan s 6.2.5.2 4.
There is a recognisable relationship between the purpose of the Industry zone code to provide for uses that support industry activities and overall outcomes 4.f. and 4.g. of the Industry zone code. These overall outcomes are the specified means of achieving the purpose of the Industry zone.[37]
[37]City Plan s 6.2.5.2 2.
Overall outcomes 4.f. and 4.g. identify the nature of the non-industrial uses and activities that are anticipated. They do so in two ways. First, by expressly excluding certain uses, namely stand-alone office uses. Second, by identifying the types of support uses that are anticipated.
There is a difference between the parties about the proper construction of overall outcome 4.g.
Wilmar submits that the overall outcome speaks to development for a use that is ancillary to an industrial use on the same site. It says that the ancillary use must directly support the industry and workers.
ACC submits that the overall outcome anticipates two types of support uses. Firstly, a use that is “ancillary to an industrial use on the same site”. This involves two restrictions, namely: (1) a use on the same site as an industrial use; and (2) a use which is ancillary to the industrial use. An ancillary use is one that is subordinate to the principal use.[38] Secondly, a support use that is a “small-scale shop or food and drink outlet that directly supports the industry and workers”. ACC submits that this involves three restrictions, namely: (1) the use is limited to a shop or food and drink outlet; (2) the use must be “small-scale”; and (3) the use must directly support the industry and workers.
[38]Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, 226 [9].
ACC submits that “small-scale” qualifies both the shop and the food and drink outlet. It says this is supported by the fact that both uses are code assessable in the Industry zone if they have a gross floor area of less than 250 square metres but are otherwise impact assessable.
It is unnecessary to resolve this issue as both Rivermakers and the Council accept that the proposed development is not the type of use anticipated in overall outcome 4.g.[39] The concession is appropriate. The proposed development is not ancillary to any other use at The Depot.[40] Self-evidently, it is also not a shop or a food and drink outlet.
[39]Written Submissions of the Co-respondent p 22 [63] and p 29 [98]; Written Submissions of the Respondent p 21 [119].
[40]Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 17.
For the reasons provided above, the proposed development is not consistent with the purpose of the Industry zone code. Regardless of whether the proposed development is consistent with the goal in s 6.2.5.2 1.b.ii (and the related overall outcome), it is not the type of supporting use that is anticipated in the overall outcomes. Accordingly, the assessment against the code does not lend weight to a decision to approve the proposed development. Equally, the assessment of the proposed development against the assessment benchmarks in the Industrial zone code reveals that there is no clearly identifiable non-compliance with the code by reason of the nature of the use.
Does the River gateway neighbourhood plan code support the proposed development?
The subject land is mapped as part of the River gateway neighbourhood plan area on River gateway neighbourhood plan map – NPM-0.18.3.[41] The River gateway neighbourhood plan code sits alongside the Industry zone code in City Plan. Its purpose is to provide finer grained planning at a local level for the River gateway neighbourhood plan area.[42] As such, the River gateway neighbourhood plan code contains assessment benchmarks that are relevant to the development application.[43]
[41]Exhibit 11.4 p 2.
[42]City Plan s 7.2.18.3.2 1.
[43]City Plan s 7.1 4.
Rivermakers contends that the proposed development is contemplated by the River gateway neighbourhood plan code. It says that the code encourages development of the River gateway neighbourhood plan area as a distinct, mixed-use area supporting additional services and facilities.[44] ACC and Wilmar dispute this.
[44]Written Submissions of the Co-respondent p 3 [6(c)].
The purpose of the River gateway neighbourhood plan code is to be achieved through the overall outcomes, including overall outcomes for each precinct of the neighbourhood plan area.[45]
[45]City Plan s 7.2.18.3.2 2.
Section 7.2.18.3.2 3. contains five overall outcomes. They relate to the whole neighbourhood plan area. The parties contend that three are relevant in this appeal. They are:
“3.The overall outcomes for the neighbourhood plan area:
a.The River gateway area is developed as a distinct, mixed use area, supporting additional housing opportunities, improved connectivity and additional local shops, cafes, services and facilities, as well as small- to medium-scale commercial and industrial development.
…
c.Development does not constrain the ability of existing development to operate.
…..
e.Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”
When read in isolation, the overall outcome in s 7.2.18.3.2 3.a. appears to support Rivermakers’ contention. However, it is not appropriate to construe the provisions without regard to the balance of the code.[46] As I have identified in paragraph [42] above, the purpose of the code is to be achieved through the overall outcomes including overall outcomes for each precinct of the neighbourhood plan area.
[46]Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58] and cases cited therein.
The River gateway neighbourhood plan area contains five precincts, namely: (1) the Morningside precinct; (2) the Seven Hills TAFE precinct; (3) the Cannon Hill/Murarrie precinct; (4) the Minnippi precinct; and (5) the Industry precinct. The Morningside precinct has two sub-precincts, and the Cannon Hill/Murarrie precinct has six sub-precincts.
Although the subject land is mapped as part of the Industry precinct, the proper construction of the overall outcomes for the whole neighbourhood plan area is informed by a full appreciation of the structure of the code, including the overall outcomes for the other precincts.
The Morningside precinct is to provide for a range of residential, retail, and commercial uses along Wynnum Road. The intent is that development will contribute to the revitalisation of the area into a vibrant urban village.[47] Redevelopment of that part of the precinct that fronts Key Street is to be restricted to residential use.[48] An overall outcome for the precinct states that impact assessable uses consistent with the outcomes sought include outdoor sales, industry, or entertainment facilities and, where in the District centre sub-precinct, service stations.[49]
[47]City Plan s 7.2.18.3.2 4.a.
[48]City Plan s 7.2.18.3.2 4.b.
[49]City Plan s 7.2.18.3.2 4.g.
Future redevelopment of the Seven Hills TAFE precinct is to deliver residential, and community uses.[50]
[50]City Plan s 7.2.18.3.2 5.a.
As with the Morningside precinct, in the Cannon Hill/Murarrie precinct, a range of residential, retail, and commercial uses are intended to contribute to the revitalisation of Wynnum Road.[51] Overall outcomes for each of the sub-precincts indicate how that mix across the precinct is intended to be achieved.[52] For example, the overall outcomes stipulate that the large vacant site on the corner of Creek Road and Mitchell Boulevard is to be developed for low-medium density residential development,[53] whereas the Former CSIRO sub-precinct is to be developed as a vibrant mixed use centre accommodating a range of activities, including multiple dwellings, offices, shops, entertainment and open space.[54]
[51]City Plan s 7.2.18.3.2 6.a.
[52]City Plan ss 7.2.18.3.2 6.f. to k.
[53]City Plan s 7.2.18.3.2 6.i.
[54]City Plan s 7.2.18.3.2 6.j.
The overall outcome for the Minnippi precinct seeks a network of shared bikeways and pedestrian pathways to improve circulation and linkages to external features and communities.
The overall outcomes for the Industry precinct are:
“a.Development comprising the consolidation of existing uses is consistent with the outcomes sought in established industrial areas where impacts on existing sensitive zones are managed through separation distances. Separation distances between industry and sensitive zones are a minimum of 250m for medium impact industry and 500m for high impact industry, unless it can be demonstrated that emissions and risks can be quantified and effectively managed to achieve appropriate environmental outcomes.
b.Existing parks and outdoor sport and recreation facilities within the precinct are retained.
c.Pedestrian and bicycle connections to the riverside parks are improved. Development provides for a new off-road pedestrian/bicycle pathway connecting Colmslie Recreation Reserve and Colmslie Beach Reserve.
d.Special industries are not consistent with the outcomes sought.”[55]
[55]City Plan s 7.2.18.3.2 8.
When the overall outcomes for the neighbourhood plan area are read in the context of the overall outcomes for the precincts set out above, it is apparent that the River gateway neighbourhood plan code provides specific guidance on how the distinct, mixed use area is to be achieved.[56] Relevantly, in the Industry precinct, City Plan encourages development that comprises the consolidation of existing uses that are consistent with the outcomes sought in established industrial areas. It also encourages the retention of existing parks and outdoor sport and recreation facilities. City Plan does not encourage, or contemplate, the establishment of the full mix of uses to which reference is made in the overall outcome in s 7.2.18.3.2 3.a. on land in the Industry precinct.
[56]See also ACC’s Outline of Submissions pp 19-21 [61]-[65]. At face value, there is force to these submissions. To support its assertions with respect to the underlying zones, ACC points to exhibit 9.70. That is no more than someone’s opinion (apparently someone from Reel Planning) about the underlying zones. Mr Ovenden was not challenged about the accuracy of the document. If it were inaccurate, I would have expected the Council to take issue with the basis of the tender of the document. It did not. See Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 56. In any event, it is unnecessary for me to rely on this evidence, or to ultimately adopt or reject ACC’s submissions, given my findings above.
Here, the proposed development does not involve the consolidation of existing uses.[57] Accordingly, the assessment of the proposed development against the assessment benchmarks in the River gateway neighbourhood plan code reveals that there is no clearly identifiable non-compliance with the code by reason of the nature of the use.
[57]See Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 18-9.
That said, for reasons provided above, on a proper construction of the River gateway neighbourhood plan code, the assessment against the code does not lend weight to a decision to approve the proposed development.
Does the Strategic framework support the proposed development?
Rivermakers contend that the proposed development is contemplated by the Strategic framework. It says that the Strategic framework seeks to provide opportunities for clusters of supporting services for business and the convenience of workers of industrial areas in accessible locations that do not compromise the ongoing operation of industrial activities in the Major Industry Areas. ACC and Wilmar disagree.
The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.[58] The policy direction is articulated in:
[58]City Plan s 3.1 1.
(a)the strategic intent;
(b)the strategic outcomes for development in the planning scheme area for each of five themes, being:
(i)Brisbane’s globally competitive economy;
(ii)Brisbane’s outstanding lifestyle;
(iii)Brisbane’s clean and green leading environmental performance;
(iv)Brisbane’s highly effective transport and infrastructure; and
(v)Brisbane’s CityShape;
(c)the elements that refine and further describe the strategic outcomes;
(d)the specific outcomes sought for the elements; and
(e)the land use strategies for achieving each of the specific outcomes.[59]
[59]City Plan s 3.1 3.
Under City Plan, the subject land is mapped as part of the Major Industry Area on:
(a)SFM-001 Sub-regional context strategic framework map;
(b)SFM-002 Brisbane CityShape 2031 land use strategic framework map; and
(c)SFM-005 Brisbane transport strategic framework map.[60]
[60]Exhibit 11.4 p 2.
The strategic outcome in s 3.3.1 1.h., which relates to Theme 1: Brisbane’s globally competitive economy, provides guidance about the policy direction for land in the Major Industry Area. It states:
“Brisbane’s Major Industry Areas do not expand significantly during the life of the planning scheme, however they are preserved and will intensify. The importance of Major Industry Areas in generating economic value and employment for Brisbane requires their maximum opportunity to be realised. The Major Industry Areas are used solely for their intended purpose to enable their ongoing operation and to protect them from incompatible land uses.”
The importance of the industrial economy is also supported by the strategic outcome in s 3.3.1 1.g.,[61] which states:
“Brisbane’s industrial economy is a significant generator of employment and economic growth for the city. The industrial economy is largely contained in the Major Industry Areas, which cluster manufacturing, storage, transport and logistics activities, industrial wholesale trade and resource recovery. Brisbane’s Major Industry Areas include activities of potentially high environmental impact.”
[61]See also City Plan ss 3.3.1 1.f. and i.
This strategic outcome is supported by specific outcomes SO1, SO2, SO4 and SO8 and land use strategies L1.1, L1.4, L2.1, and L8.2, in Table 3.3.3.1. They state:
“3.3.3 Element 1.2 – Brisbane’s industrial economy
Table 3.3.3.1—Specific outcomes and land use strategies
Specific outcomes
Land use strategies
SO1
Brisbane’s Major Industry Areas and Strategic Inner City Industrial Areas are protected to ensure their integrity and effective operation.L1.1
Brisbane’s remaining zoned land suitable for high-impact industries is reserved for these purposes.L1.3
Lower impact industrial activities serve as buffers, locating between high impact industrial activities and sensitive land uses.L1.4
Existing lawful industries continue to operate with certainty and are protected from encroachment by sensitive land uses. Proposed expansions of these industries meet relevant health, safety and environmental standards.SO2
Brisbane’s Major Industry Areas and Strategic Inner City Industrial Areas are optimised to provide the widest range of industrial uses in order to maximise the economic opportunity for the city.L2.1
Development for industrial uses is prioritised in the Major Industry Areas and Strategic Inner City Industrial Areas which are zoned to maximise the industrial land use potential for these areas.…
SO4
Brisbane’s Major Industry Areas include clusters of supporting business services and a range of services and facilities for the convenience of workers.L4
Major Industry Areas provide opportunities for clusters of supporting services for business and the convenience of workers of these areas. They are in accessible locations, serviced by public transport where possible and do not compromise the ongoing operation of industrial activities in these areas.SO8
Brisbane’s industrial lands are protected from encroachment by office or other non-industrial-based uses.L8.1
Major Industry Areas and Strategic City Industrial Areas are protected from encroachment of office parks and large-format retailing: these uses are adequately provided for elsewhere in the plan.L8.2
Land uses other than industrial do not compromise the existing or potential industrial uses that occupy land in the Special industry zone, General industry C zone precinct or General industry B zone precinct of the Industry zone.L8.3
Mixed industrial service and business administration uses will be promoted on land appropriately zoned at the Australia TradeCoast, Cannon Hill, Wacol and Richlands to accommodate personal and administrative services supporting businesses or employees of that Major Industry Area and where serviced by public transport.L8.4
The co-location of administrative functions with industrial uses may occur within a site where directly related to the principal use of the premises and the design, interface and functionality outcomes for both administrative offices and industrial functions are achieved.
The importance of preservation of industrial land for its intended use is also highlighted by specific outcome SO7 in Table 3.3.4.1, which states:
“3.3.4 Element 1.3 – Brisbane’s population serving economy
Table 3.3.4.1—Specific outcomes and land use strategies
Specific outcomes
Land use strategies
SO7
Brisbane preserves opportunities for low impact industry throughout the city in support of a strong population and economic growth.L7
Industrial premises in the Low impact industry zone or General industry A zone precinct of the Industry zone are protected from encroachment and incompatible uses.
The strategic outcomes for the CityShape theme provide further guidance about the intended planning outcomes for land in the Major Industry Area. Section 3.7.1 1.c. states:
“c.Brisbane’s Major Industry Areas are significant employment generators for the city and Queensland which:
i.accommodate a significant amount of economic activity generating employment;
ii.comprise low, medium and high impact industrial-based economic development that is always evolving with Brisbane’s changing economy;
iii.are protected and are able to evolve to support Brisbane’s industrial economy, global business and innovative start-ups;
iv.are serviced by small-scale commercial uses that support workers and provide business services;
v.do not provide opportunities for non-industrial based land uses that are otherwise adequately provided for elsewhere in the city or other parts of the region other than critical infrastructure;
viare serviced by major transport infrastructure which provides for:
A. more sustainable travel modes such as public transport, walking and cycling;
B. efficient freight, air and sea transport within the city and to key freight access points and routes to and from the city (shown below in Figure C).”
As is observed by Rivermakers, specific outcome SO4 and land use strategy L4 of Element 1.2 of the Strategic framework contemplates the location of non-industrial uses that provide services and facilities for the convenience of workers in Major Industry Areas. So does the strategic outcome in s 3.7.1 1.c.iv. However, it is appropriate to construe the provision in context, including that provided by the other provisions extracted above.
The other provisions extracted above reveal a strongly expressed policy directed at the preservation and protection of industrial zoned land so that the opportunity for its use for industrial purposes is maximised. Consistent with that policy, the strategic outcome in s 3.7.1 1.c.iv. contemplates that commercial uses that support workers and provide business services will be small-scale. Otherwise, the land use strategy in L8.3 of Element 1.2 indicates that land considered appropriate to provide administrative services supporting businesses or employees of the Major Industry Area will be appropriately zoned to accommodate those personal and administrative services.
As such, when specific outcome SO4 and land use strategy L4 of Element 1.2 of the Strategic framework and the strategic outcomes in s 3.7.1 1.c.iv and v. are read in context, they do not provide the extent of support for the proposed development contended by Rivermakers.
In addition, the proposed development is discordant with the planning intent in strategic outcome s 3.3.1 1.h. to preserve industrial land for use for its intended purpose so that its maximum opportunity to generate economic value and employment for Brisbane is realised.
A finding that the proposed development does not accord with strategic outcome s 3.3.1 1.h. is supported by the assessment of the development application against the specific outcomes and land use strategies that implement the strategic outcomes. Specific outcome SO1 seeks to ensure that Brisbane’s Major Industry Areas are protected to ensure their integrity and effective operation. City Plan outlines five land use strategies that are intended to ensure that outcome. Land use strategy L1.3 and L1.4 are relevant to the subject land. Approval of the proposed development will not result in non-compliance with land use strategy L1.4. That said, the proposed development does not protect the Brisbane’s Major Industry Area in the manner encouraged by land use strategy L1.3. Land to the north and east of the subject land is in the General industry B zone precinct of the Industry zone. That land is contemplated for uses that involve high-impact industrial activities.[62] The land to the south of the subject land is in residential zones on which sensitive land uses are contemplated. As such, inclusion of the subject land in the General industry A zone precinct of the Industry zone, and encouragement of its use for lower impact industrial activities, is consistent with land use strategy L1.3. Approval of the proposed development does not advance that strategy in the manner contemplated.
[62]City Plan s 6.2.5.2 7.b.
Additionally, approval of the proposed development does not advance the planning outcomes sought in specific outcome SO2 and land use strategy L2.1 of Element 1.2 in Table 3.3.3.1. It does not prioritise industrial uses, nor optimise use of the Major Industry Area for the widest range of industrial uses.
For reasons discussed in detail later, I am satisfied that the proposed development will not compromise existing industrial uses.[63] As such, there is no clearly identifiable non-compliance with land use strategy L8.2 of Element 1.2 in Table 3.3.3.1. However, the proposed development does not find support in land use strategies L8.1, L8.3 or L8.4. It also sits uncomfortably with the planning intent in specific outcome SO8 that industrial lands are protected from encroachment by office or other non-industrial based uses.
[63]See paragraphs [185] to [201] below.
As for ss 3.7.1 1.c.i., ii., iii., and iv., although the proposed development does not give rise to a clearly identifiable non-compliance with those provisions, equally the provisions do not lend support to an approval. The proposed development does not advance the employment generating role of Brisbane’s Major Industry Area in the manner encouraged by the strategic outcome in s 3.7.1 1.c.
It follows that assessment of the proposed development against the strategic outcome in s 3.3.1 1.h., and specific outcomes SO1, SO2 and SO8, having regard to all of their supporting land use strategies, and the strategic outcomes in ss 3.7.1 1.c.i., ii., iii., and iv., does little to support the case for approval of the proposed development.
For the reasons provided above, assessment of the proposed development against the Strategic framework does not support approval of the proposed development. Rather, the proposed development is at odds with the strongly expressed planning policy to preserve and protect land in the Major Industry Area from encroachment by non-industrial use and to prioritise and maximise its use for industrial purposes. However, for reasons explained in paragraphs [164] to [181] below, the proposal to limit the duration of the approval to a two-year period significantly reduces the extent to which an approval would offend the planning policy.
Does the Indoor sport and recreation code support the proposed development?
In support of their contention that the proposed development involves an inappropriate use, ACC and Wilmar rely on the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.
The Indoor sport and recreation code contains assessment benchmarks for impact assessable development applications seeking a material change of use for indoor sport and recreation. The purpose of the code is to assess the suitability of that type of development. The purpose is to be achieved through the overall outcomes. They include the overall outcome in s 9.3.11 2.b., which states:
“Development ensures that facilities are appropriately located and designed.”
Despite maintaining the provision as a key provision informing the real issues in dispute, ACC submits:
“This is a generally expressed provision, and the code does not provide further relevant guidance. In the result, a judgment about whether the gym is “appropriately located” will turn on the other Core provisions discussed above.”[64]
[64]ACC’s Outline of Submissions p 27 [85].
Wilmar did not address the provision, other than to quote it as a provision that reflects a “theme” about locating non-industrial uses in other areas of the city. No submissions were made explaining the assertion that the provision reflects the theme. It is not evident that it does.
I do not accept ACC’s submission that the Indoor sport and recreation code does not provide further relevant guidance about the appropriate location of indoor sport and recreation uses. The performance outcomes and acceptable outcomes in the code contain benchmarks for the location of such uses to ensure acceptable levels of privacy and amenity for residents in neighbouring residential dwellings.[65] They also encourage such uses at a location that is highly accessible to the intended users, rather than at a location where the use is solely accessible from a minor road.[66]
[65]See City Plan s 9.3.11.3 – performance outcome PO1 and acceptable outcomes AO1.1 and AO1.2.
[66]See City Plan s 9.3.11.3 – performance outcome PO3 and acceptable outcome AO3.
Here, the proposed development is separated from residential dwellings such that there would be no unacceptable impact on the privacy and amenity of the residents. Further, the proposed development is adjacent to a major road, namely Lytton Road, which is used by significant volumes of traffic associated with nearby residential areas. Lytton Road links residents with the local recreational facilities and other services in the area, and the Gateway Arterial.[67] In those circumstances, I am satisfied that the proposed development complies with the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.
[67]Exhibit 2.02 p 33 [151].
Although other provisions of City Plan also inform the overall appropriateness of the location of the proposed development on the subject land, an assessment of the proposed development against the Indoor sport and recreation code supports its approval.
Does the South East Queensland Regional Plan support the proposed development?
Rivermakers contends that the proposed development is supported by the South East Queensland Regional Plan. It submits that the regional plan seeks to accommodate a mix of commercial uses in major enterprise and industrial areas. This is to give workers and enterprises an appropriate level of access to amenities and facilities and to reduce trips out of the area without compromising the role and function of major enterprise and industrial areas.[68]
[68]Written submissions of the Co-respondent p 2 [6(a)].
ACC and Wilmar contend that assessment against the South East Queensland Regional Plan tells against approval of the proposed development.
Chapter 4 of the South East Queensland Regional Plan sets out how the plan is to be delivered. It identifies that, in accordance with the Planning Regulation 2017, development is to be assessed against the following parts of the South East Queensland Regional Plan, to the extent relevant:
(a)Chapter 3, Part A: Goals, elements and strategies; and
(b)Chapter 3, Part C: Sub-regional directions.[69]
[69]South East Queensland Regional Plan p 152.
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