Gilbert v Gold Coast City Council
[2005] QPEC 80
•26 August 2005
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Gilbert v Gold Coast City Council & Anor [2005] QPEC 080 PARTIES: WILLIAM JOHN GILBERT
Appellant
and
GOLD COAST CITY COUNCIL
Respondent
and
STATE OF QUEENSLAND
Co-Respondent by Election
FILE NO: 14/2004 PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Southport
DELIVERED ON: 26 August 2005 DELIVERED AT: Southport HEARING DATES: 10, 11 & 12 May 2005 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS: LOCAL GOVERNMENT – Town Planning – appeal against refusal of development application – amenity impacts arising from conflict with the planning instruments – conflict with the policy of the planning instruments placing commercial activities into centres – need – whether sufficient grounds exist to approve the application despite conflict with the planning instruments
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990
Liquor Act 1992
Cases cited:
Arksmead v Council of the City of Gold Coast & Ors [1999] QPELR 322
Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587
Lewiac v Gold Coast City Council (1994) 83 LGERA 224
Weightman v Gold Coast City Council & Anor (2003) QPELR 43COUNSEL: Mr J Haydon – appellant
Mr R Litster – respondentNo appearance by or on behalf of the co-respondent by election
SOLICITORS: Mullins Lawyers – appellant
McDonald Balanda & Associates – respondentNo appearance by or on behalf of the co-respondent by election
This is an appeal against a refusal of a development application. The subject site is located at 22 The Panorama, Tallai. The real property description of the site is Lot 16 on RP 895598, County of Ward, Parish of Gilston. The site is generally rectangular in shape, and comprises a total area of approximately 7.831 hectares. It contains road frontages to The Panorama of approximately 175 metres, to Worongary Road of approximately 500 metres and to Coorumbene Court of approximately 500 metres. The site contains the Tallai Country Club comprising a nine-hole golf course, club house and parking area. The club house is situated in the north-east corner of the site adjacent to the intersection of Worongary Road and The Panorama. The car parking area is situated adjacent to The Panorama frontage, from which vehicular access is gained to the site. The balance of the site contains the existing nine-hole golf course. The site is traversed by overhead high voltage power lines which are contained within an easement approximately 150m wide.
An order was made on 27 January 2005 requiring the co-respondent by election to notify the solicitors for the appellant and the solicitors for the respondent of any disputed issues with respect to the amended application and amended plan on or before 10 February 2005. The order excused the co-respondent by election from participation in the substantive appeal and from compliance with all directions and orders made for the conduct of the appeal if the co-respondent by election failed to notify any disputed issues. No disputed issues were notified by the co-respondent by election and, accordingly, the State of Queensland took no further part in the hearing of the appeal.
The order of the Court of 27 January 2005 also deemed proposed changes to the application as minor and directed that the hearing of the appeal proceed on the amended application and plan described in the report of Mr Reynolds from Humphreys Reynolds Perkins, planning consultants. The original proposal, as refused by the respondent, proposed:
·material change of use for an “hotel” and “park residential development”; and
·reconfiguration of a lot into eight park residential lots.
The modified proposal seeks to:
·delete the reconfiguration of the lot to create eight rural residential allotments;
·retain the existing golf course;
·link the new hotel to the current allotment size, by condition, to ensure the golf course continues to dominate the character of the hotel setting;
·maximise views from the hotel component to the golf course;
·achieve a higher standard of maintenance funded from the improved business arising from the “hotel” improvements;
·enlarge and relocate the pro shop at the clubhouse;
·reduce the size of the hotel extensions as follows:
existing clubhouse 793m2 gross floor area (gfa);
proposed clubhouse 1260m2 gfa;
This represents a 32% reduction in gfa of the area proposed in the original proposal.
The floor space modifications reduce the outdoor area originally proposed by 35%.
The size of the hotel is proposed to be limited, by condition, to ensure it retains its proposed function and character.·the kitchen and service areas are proposed to be enlarged, as compared to the original proposal, to upgrade existing facilities and provide improved levels of service;
·the originally proposed bottle shop is deleted;
·the wine tasting pavilion and wine cellar have been deleted, negating the proposals for bus tours to visit the premises for specialist wine tasting events;
·the outdoor areas have been largely deleted, negating the intent for the premises to be a functions venue;
·car parking requirements are to be complied with.
The disputed issues for the amended proposal were set out by the respondent on 25 February 2005 as follows:
“1. The amended application conflicts with the Strategic Plan that forms part of the Transitional Albert Shire 1996 Planning Scheme (‘the 1995 Scheme’) because:
(a) The land, subject of the application (‘the Land’) is included in the Park Residential Preferred Dominant Land Use (‘PDLU’) areas for the purpose of that Strategic Plan;
(b) The intent for the Park Residential PDLU areas in that Strategic Plan provides, inter alia:
‘Development in these areas is administered through the provisions of Park Residential Zone’;
(c) The intent for the Park Residential Zone in the 1995 Scheme provides:
- By clause 4.2.1.1:
‘The intent of the Zone is to implement the objectives for the Park Residential areas of the Strategic Plan, and to provide areas wherein dwelling-houses can be erected on small rural allotments for the purpose of low density residential living without all normal urban facilities; however, connection to Town water is a pre-requisite for development of these areas.’
- By clause 4.2.1.2:
‘The areas may include some Rural Pursuits (less than the Rural area) provided that Residential amenity is not interfered with. While the provisions of the Park Residential Zone allow for some Non-Residential land uses, such as churches and child care centres etc, the scale and intensity of any such development which is permitted must be consistent with low density Residential character intended for these areas.’
(d) The Table of Development for the Park Residential Zone in the 1995 Scheme, identifies development of a ‘hotel’ as ‘prohibited development’ (i.e. development which may not be undertaken);
(e) Implementation criteria (i) for Park Residential Objective 2 in that Strategic Plan provides that:
‘Applications for development in Park Residential areas will be considered in the context that the Residential amenity of Park Residential area is intended to be of very high order. While provisions of the Park Residential Zone allow for some non-residential uses, such as churches and child care centres, the scale and intensity of any such development, which is permitted, must be consistent with the low density residential character intended for these areas.’
(f) Implementation criteria (1) for Park Residential Objective 3 in that Strategic Plan provides that Park Residential Objective 3 will be achieved through the successful implementation of Park Residential Objective 2;
(g) The ‘hotel’ proposed by the amended application is not consistent with the low density residential character intended for Park Residential areas;
(h) The inclusion of ‘hotel’’ as prohibited development is to be taken, pursuant to s 6.1.2 of the Integrated Planning Act 1997 (‘IPA’), to be an expression of policy, that the use is inconsistent with the intent of the Park Residential Zone, the zone through which development in Park Residential PDLU areas is to be administered;
Further, or in the alternative
(i) The Land is close to Mudgeeraba;
(j) Implementation criteria (iii) for Park Residential Objective 1 in that Strategic Plan, contemplates that Park Residential areas close to Mudgeeraba will rely on the services provided in Mudgeeraba;
(k) Implementation criteria (iii) for Park Residential Objective 2 in that Strategic Plan, reiterates that commercial development not contemplated by implementation criteria (iii) for Park Residential Objective 1, will ordinarily not be approved.
2. The amended application does not adequately address concerns raised by submitters who objected to the original application.
3. Having regard to the provisions of the 1995 Scheme identified in paragraph 1, it is not part of the ordinary expectation of local residents that development of a hotel on the Land, as proposed by the amended application, will be approved.
4. Having regard to the provisions of ‘Our Living City’ – Gold Coast Planning Scheme 2003 (‘the 2003 Scheme’) within which:
(a)the Land is included in the Private Open Space Domain in recognition of its existing use; and
(b)all land surrounding the Land is included in the Park Living Domain;
it is not part of the ordinary expectation of local residents that development of a hotel on the Land, as proposed by the amended application, will be approved.
5. Having regard to the amenity of the area reasonably anticipated by reference to the 1995 Scheme, the Land is not suitable for the development of a hotel.
6. There is an unacceptable risk that development of a hotel on the Land, as proposed by the amended application, will result in:
(a)unacceptable traffic problems for road users; and
(b)unacceptable noise impacts for adjacent premises.
7. The amended application fails to provide appropriate car parking for the proposed hotel.
8. There is no need for the hotel, the subject of the amended application.
9. The amended application must be refused pursuant to s 4.4(5) (a) of the Local Government Planning & Environment Act 1990 (‘the PEA’) because there are no planning grounds to justify its approval despite the conflicts identified in paragraph 1.”
Counsel for the appellant informed me that the scope of the appeal had narrowed significantly, leaving three areas of disagreement viz:
·amenity impacts arising from an alleged conflict with the planning instruments;
·conflict with the policy of the planning instruments placing commercial activities into centres; and
·need.
Town Planning Assessment:
Albert Shire Planning Scheme
The application was made under the Albert Shire Planning Scheme (February 1995) which, for the purposes of the Integrated Planning Act 1997 (IPA) is a transitional planning scheme. The Strategic Plan designation is Park Residential and the zoning is Special Facilities (Public Golf Course, Clubhouse and Associated Amenities).
S 6.1.29 of IPA sets out matters for assessment of impact assessable development under transitional planning schemes. S 6.1.30(3)(b) of IPA requires this application to be decided under s 4.13(5A) of the repealed Local Government (Planning and Environment) Act which provides:
“4.13(5A) The local government must refuse to approve the application if –
(a)the application conflicts with any relevant Strategic Plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”
The Court may give weight to new laws and policies it considers appropriate (s 4.1.52 IPA). Although the application was lodged under the superseded 1995 Albert Shire Planning Scheme, it was decided under the current 2003 Gold Coast Planning Scheme.
The town planners who testified at the hearing of this appeal have both identified the relevant provisions from the superseded Albert Shire Planning Scheme and the current Gold Coast Planning Scheme. With respect to the superseded Albert Shire Planning Scheme, the Strategic Plan identifies the locality within which the subject site falls as Park Residential. The intent for the Park Residential preferred dominant land use is:
“Park Residential areas are intended to accommodate people who wish to live on larger allotments than are found in urban areas, but who nevertheless desire a reasonable standard of accessibility and services. Development in these areas is administered through the provisions of the Park Residential zone. …”
[10] Objective 1 for the Park Residential PDLU areas is:
“To provide opportunities for people who wish to live in a low density residential environment, reasonably close to urban facilities, and convenient to the facilities and attractions offered by the region.” (s 1.4.6.2)
[11] Implementation (iii) for this objective is:
“(iii) In more remote Park Residential areas, for example Bonogin and Ormeau, lower order service centres may be established, however Park Residential areas close to Urban Residential or Village areas will rely on the services provided in urban centres and villages (for example, Nerang, Mudgeeraba, Tallebudgera village and Upper Coomera village). Proposals for new centres within the Park Residential areas which are close to urban centres and villages will not be favourably considered.”
[12] Mr Cumming, a town planning consultant who testified on behalf of the respondent, sees this objective as a clear statement of strategic intent to support existing centres and to prevent the introduction of centre activities into areas which are close to urban or village areas. He notes that Mudgeeraba, which is some four kilometres from the subject site, is specifically mentioned in this context and offers a range of lower to middle order commercial facilities, including hotel facilities, to serve the surrounding population. Mr Cumming observes that Worongary Village, on the Pacific Motorway to the north of the intersection of Worongary Road and Mudgeeraba Road, is a similar distance from the site. Mr Cumming describes the Tallai Park Residential area as not being remote from urban residential or village areas.
[13] Mr Reynolds, a town planning consultant who testified on behalf of the appellant, comments that the proposed development is not a “new centre” and that the Park Residential area will still rely upon the services provided in Mudgeeraba, including the wide range of urban services and the urban hotel facilities in that centre. He suggests that the existing and proposed use would be quite distinct from the facilities offered in Mudgeeraba.
[14] Objective 2, implementation (i) provides:
“(i) Applications for development in Park Residential areas will be considered in the context that the residential amenity of Park Residential areas is intended to be of a very high order. While the provisions of the Park Residential zone allow for some non-residential land uses, such as churches and child care centres, the scale and intensity of any such development which is permitted must be consistent with the low density residential character intended for these areas.”
[15] Mr Cumming considers this implementation to be critical. He points out that churches are generally a benign intermittent land use and that locally based child care centres operate on weekdays and generally within working hours. By contrast, a hotel is of different character to such uses and should be considered a high impact use. Mr Cummings’ professional experience is that hotels draw more residential objection than any other common land use.
[16] Mr Reynolds acknowledges that the planning scheme promotes high quality residential amenity and character in Park Residential areas and sees the existing Tallai Country Golf Course as contributing to that amenity in the local area. Mr Reynolds notes that the proposal is not to alter the character of the existing facility (which has been in operation for over a decade with no noticeable adverse impacts).
[17] Objective 2, implementation (iii) provides:
“(iii) Except pursuant to Park Residential objective 1(iii), rezonings to allow the establishment of industries, commercial development, retirement villages, caravan parks, large-scale recreational complexes, motels, accommodation units or the like in Park Residential areas will ordinarily not be approved. The only exceptions could be small-scale tourist-orientated facilities on major transport routes, provided that the appearance, size and intensity of development would be compatible with the character of the surrounding area…”
[18] Mr Cumming sees this implementation criterion as reinforcing the amenity criterion in Objective 2(i) by stating that non-residential uses will not normally be approved in Park Residential areas, except in remote areas under Objective 1(iii). He considers that a hotel is generally a higher impact use than uses such as motels and accommodation units. Mr Cumming notes that the “only exceptions” are small-scale tourist facilities on major transport routes. He considers it unlikely that the primary market for a hotel in this location will be tourist-related and points out that, in any case, Worongary Road is not a major transport route.
[19] Mr Cumming concludes that there is no expectation that a hotel would be approved in this area under these provisions, nor that commercial uses would be located anywhere else but in nearby centres.
[20] Mr Reynolds, in his report, notes that the implementation provisions of the Strategic Plan state that rezonings to allow “commercial development” will ordinarily not be approved in Park Residential PDLU areas. However, in this case, no rezoning would have been required and the use exists, such that the “ordinary” application of the provision with respect to rezonings ought not apply.
[21] Mr Reynolds considers, for the above reasons, that the proposed development is not in conflict with the provisions of the Strategic Plan assuming a high standard of residential amenity is provided.
[22] The zone through which development in the Park Residential PDLU area is administered is the Park Residential zone in which “hotel” is a prohibited development. Mr Cumming considers that this is consistent with the strategic objectives and implementation criteria referred to above. The subject site is located within the Special Facilities (Public Golf Course, Clubhouse and Associated Amenities) Zone of the Albert Shire Scheme. The intent of the Special Facilities Zone is as follows:
“The Special Facilities Zone is intended to be used 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. Consent may subsequently be granted for activities related to the primary activity. Permitted development may not be carried out other than in accordance with a rezoning agreement imposing reasonable and relevant development conditions or a Plan of Development.”
[23] Mr Cumming notes that the particular form of development on the subject land was established by rezoning in 1993. The primary purpose was the establishment of the golf course, clubhouse and associated amenities. He observes that the Special Facilities Zone in the 1995 scheme is a reflection of the 1993 approval. In accordance with this zoning, consent may be granted for activities:
“When carried out in conjunction with a purpose referred to in Column 1 or Column 2, development for any purpose which, in the opinion of Council, is considered to be allied to and compatible with, but supplementary to that particular purpose.” (s 8.1.2 Table of Development)
Mr Cumming’s view is that a hotel is not supplementary to a particular purpose of Public Golf Course, Clubhouse and Associated Amenities. Furthermore, he does not consider that the application links the hotel to the golf course in any substantial way.
[24] Mr Reynolds approaches the zoning of the subject site differently. He notes that under the superseded planning scheme, this Special Facilities zone is tailored to provide for a “public golf course, clubhouse and associated amenities.” As the proposal does not seek to alter the character or impacts of the existing use, Mr Reynolds considers that the proposed development is consistent with this Special Facilities zoning intent. He notes that the level of assessment for uses “allied to and compatible with” the nominated purpose of “public golf course, clubhouse and associated amenities” is consent development. Because the function and purpose of the “clubhouse” is proposed to remain the same and will not change as a consequence of approval of the proposal, the level of assessment in this case is consent development. Mr Reynolds contends that such development did not require rezoning under the former Local Government (Planning and Environment) Act 1990 and that consent uses were subject to public notification and assessment on their merits against the provisions of the planning scheme. They do not attract the policy presumption against such uses under s 6.1.2(3) of IPA.
[25] The term “clubhouse” is not defined under the planning scheme. The term “hotel” applies if premises are the subject of a General Licence for liquor. Mr Reynolds notes that the distinction between a “clubhouse” and a “hotel” is difficult to discern as there can be wide variations in scale and impacts of each. Consequently, a “clubhouse” may present more potential amenity impacts than a “hotel”. Mr Reynolds sees this as an important point in this appeal as the existing use is a “clubhouse” and the proposal intends what he describes as “only modest expansion”. Accordingly, the existing character and scale of the use, as a “clubhouse”, is not proposed to change.
Gold Coast City Council Planning Scheme
[26] The current planning scheme for the area is the Gold Coast City Council Planning Scheme (August 2003). Under this scheme the planning strategy includes Land Use Themes which provide a broad spatial expression to the main initiatives encompassed by the scheme. Council is required to have regard to the Land Use Themes as expressions of broad planning policy when considering proposals for impact assessable development that do not fully accord with the applicable codes.
[27] The subject site is included within the Park Living Land Use Theme. This theme acknowledges the lifestyle and amenity aspirations of those who choose to live in semi-rural or parkland environments on large lots that do not offer the full range of normal urban services. The two main functions of the Park Living Land Use Theme are:
·“to retain and enhance the present amenity of these areas, and manage the expectations for human services, infrastructure and transport so that these are not raised to the same level as that provided in the urban residential areas; and
·to reinforce that these areas have been established with a particular purpose in mind, that is, who choose to live in a park-like environment on large allotments. They are not intended to become the future urban areas of the city. Effectively, these areas are an end state form of development.”
[28] Mr Cumming considers that this intent is consistent with the strategic intents for Park Residential areas in the Albert scheme, that is, recognising the separation physically and functionally of park living areas from urban areas, the retention and enhancement of amenity in these areas and the emphasis on Park Residential uses as a permanent rather than transitional use.
[29] Mr Reynolds notes that the Park Residential Land Use Theme states that land uses must not “significantly” disrupt the character and/or amenity of the area. He considers that this is not proposed in that the social Desired Environmental Outcomes are satisfied as:
1.the design and layout of the development minimises any potential for activities to adversely impact upon the amenity of nearby residential premises;
2.the premises present an opportunity to enhance local residents’ experience of the distinctive character and amenity of the local area, without adverse impact. This enhances the distinction between this semi-rural area from urban areas of the city; and
3.the proposal will improve the quality of design, improving the attractiveness of the development.
[30] Mr Reynolds considers that it is relevant that the subject site is included also in the Public Open Space Domain. This domain is intended for commercial recreation facilities, including golf courses, which mostly include clubhouses. These designations, in Mr Reynolds’ view, provide a reasonable resident expectation that a golf course and clubhouse will occur on this site. He suggests that most residents would be unaware of the type of liquor licence (currently a “Special Facilities” licence and proposed to be a “General Licence”) or the formal planning scheme definitions (in this case “Tavern” under the current planning scheme). Those details are described by Mr Reynolds as technical implementation provisions which have given rise to this development application.
[31] The subject site is included within the Private Open Space Domain of the planning scheme in recognition of the Special Facilities zoning of the site in the Albert Shire Planning Scheme 1995. The planning intent for this domain is as follows:
“This domain seeks to regulate the private open space areas of the Gold Coast City for recreational purposes. These areas include the major recreational theme parks and golf course facilities of the City. This domain also seeks to ensure that there is a high standard of landscape design and a built form which complements the open space character of this domain.
This domain applies to land that is intended to be used for resort open space or for commercial recreation facilities that are predominantly, but not exclusively, maintained as open space. Land included within this domain generally consists of large parcels that may form separate recreation establishments. In many cases, the land included within the Private Open Space Domain forms part of an integrated resort development. Land within this domain is often of importance for nature conservation values which need to be protected.
The Private Open Space Domain applies to private golf courses, major tourist attractions, such as theme parks, and to extensive areas of private gardens. It is accepted that access by the general public to land within this domain is restricted or controlled. It is envisaged that all land is to be subject to a concept plan or integrated Management Plan to guide future development.”
[32] Mr Cumming considers that a primary characteristic for the Private Open Space Domain is recreation where access by the general public is restricted or controlled. He contends that a hotel with a general licence with unrestricted public access and access which does not functionally relate to the primary recreation purpose does not fit this description. He further notes that a Material Change of Use for a Tavern in the Private Open Space Domain is impact assessable and that the code for such domain contains performance criteria regarding amenity protection in respect of noise, hours of operation, traffic, lighting, signage, visual amenity, privacy and odour and emissions. It should be noted, however, that the proposal is not for a Tavern.
[33] In respect of the original application, the most specific amenity concerns of resident objectors related to noise, hours of operation and traffic. Mr Cumming expressed the view that these concerns are unsurprising, given the very low density residential development pattern and the planning framework for the area. However, it must remain a matter of some speculation as to how far the concerns expressed in relation to the 2003 application may be validly extrapolated to the amended proposal, the subject of this appeal.
[34] Mr Reynolds observes that under the current planning scheme the Private Open Space zoning is intended to provide for private golf courses, theme parks and other recreational facilities in the City. He has reviewed the zoning of golf courses in Gold Coast City listed in the 2004 UBD street directory and has confirmed that the following golf courses, each with a clubhouse, are located in the Private Open Space zone:
·Parkwood International Golf Club
·Tallebudgera Golf Course
·Tally Valley Golf Course
·Burleigh Golf Club
·Surfers Paradise Golf Club
·Southport Golf Club
·Robina Woods Golf Club
·Helensvale Golf Club
·Arundel Hills Country Club
·Burleigh Palms Golf Course
·Grand Golf Club
[35] As the intent statement for the Private Open Space Domain indicates that the domain applies to land predominantly but not exclusively maintained as open space, Mr Reynolds considers that this suggests that uses complementary to the dominant use as open space would not be inconsistent with the intent for this domain. Furthermore, because a “Tavern” is included in the definitions listed in the impact assessment column, this indicates that a proposal for a tavern in this domain would not be in conflict with the planning scheme provided it complied with the relevant assessment criteria, including the relevant codes. Mr Reynolds is of the opinion that this development application presents an opportunity to tie future development to a concept plan via conditions of approval by tying the clubhouse/hotel premises to the golf course and restricting the future scale and size of the premises to that currently proposed.
[36] Mr Reynolds notes that the Private Open Space Domain Place Code includes a performance criterion (PC 14) to ensure that there are no adverse impacts on amenity. In Mr Reynolds’ view, no such impacts are proposed.
[37] The last-mentioned conclusion is not shared by Mr Cumming who sees a clear differentiation intended by both the Albert Shire planning scheme 1995 and the Gold Coast Planning Scheme 2003 between very low density residential areas and urban areas to the east of Mudgeeraba. Mr Cumming perceives a significant conflict between the amenity intention and expectation encouraged in the planning instruments and the proposal to convert the golf clubhouse into a hotel. He points out that the amenity threshold in a rural residential area is much higher than for an urban area. Mr Cumming envisages that the combined effect of the increased size of the facility, and its designation as a hotel with a general (liquor) licence will alter the local perception of the facility and its relationship to the surrounding community. Whereas the existing clubhouse, in appearance and size, is ancillary to the golf course, Mr Cumming expects that a hotel would be perceived as a stand-alone facility whose primary purpose is general commercial trade, irrespective of whether patrons have any interest in golf or whether they come from the local area.
Need
[38] Mr Reynolds observes that the planning scheme includes several provisions which seek to protect the function of existing centres. Mudgeeraba is identified as a District Centre. The town of Mudgeeraba, situated five kilometres to the east of the subject site, contains a number of licensed premises each of which, in Mr Reynolds’ view, offers a completely different experience to the proposed clubhouse/hotel facility. In particular, Mr Reynolds points to the following factors in support of his conclusion:
1. Mudgeeraba is an urban township, not a semi-rural area;
2. The existing licensed facilities in Mudgeeraba do not have views over semi-rural landscape;
3. The existing licensed facilities in Mudgeeraba do not provide an externalised wide veranda ambience, as available on the subject site;
4. The subject premises are part of a golf course, are oriented to the golf course and contain a pro shop. This provides a special character not available in Mudgeeraba;
5. Mudgeeraba cannot practically meet the local need of the large rural residential population, which extends to the Gilston valley and beyond – it is not convenient to much of that area;
6. The proposed premises are part of a golf course together presenting a semi-rural character, consistent with the semi-rural lifestyle of park residential living, whereas the licensed premises in Mudgeeraba are contained on small urban allotments; and
7. The catchment for the subject site overlaps only a small part of the catchment for Mudgeeraba, as it is situated in a hinterland location.
[39] For these reasons Mr Reynolds sees that the existing and proposed premises provide a hospitality facility which is distinct to the local area, for primarily local patrons. He views the proposal as being part of an update of the existing premises and golf course to improve the services and facilities to the local community and that consequently, the proposal does not conflict with the strategic land use provisions of the current planning scheme.
[40] On the other hand, Mr Cumming considers that the planning instruments do not anticipate the establishment of urban services outside centres except in remote rural residential locations. He points out that Mudgeeraba and Worongary Village are within 10 minutes’ driving time of the Tallai locality, and the location could not be considered remote. Mr Cumming identifies a number of licensed premises in Mudgeeraba, including the Wallaby Hotel, clubs and restaurants. He concludes that there appears to be no real planning need for a hotel in this location.
[41] Mr Kleineberg, is the Principal Liquor Licensing and Gaming Licensing Consultant of his independent consultancy company. He gave evidence on behalf of the appellant in relation to the determination of the trading potential of a premises operated under a General (Liquor) Licence. His methodology was as follows:
·Determine per capita expenditure on alcohol and related services – Australian average;
·Determine the extent of the relevant locality/trade area of the premises;
·Determine the location and services offered by other licensed premises in the locality (if any);
·Determine the number, demographics and socioeconomics of the incumbent resident population and compare to the Australian average. The results of the difference will determine the adjustments to be made to the per capita expenditure;
·Make adjustments on account of the location, exposure and size/type of amenities to be provided by the premises;
·Make adjustments on account of incidental passing traffic and tourist use, if any.
[42] Mr Kleineberg’s report (Exhibit 7) comprises two parts. Part 1 is a need analysis of the proposed premises determining its trading potential conducted under a General (Liquor) Licence. Part 2 of the report submits an analysis of the proposed change from a Special Facilities (Liquor) Licence to a General (Liquor) Licence, exploring the likely attitude of the Liquor Licensing Division and implications under the requirements of the Liquor Act 1992.
[43] Mr Kleineberg reports that his analysis shows a demographically and socioeconomically intact community within the Statistical Local Area of Worongary-Tallai. Having regard to the location of the subject premises, its accessibility, centrality and the lack of directly relevant licensed premises within the SLA, Mr Kleineberg concludes that all of the residents residing in the Worongary-Tallai SLA are directly relevant to the subject premises. The community thus identified by Mr Kleineberg is, in his view, very likely capable of exceeding the per capita expenditure on alcohol and related services. He considers it unlikely that the introduction of the premises trading under a General (Liquor) Licence will introduce social problems, such as alcoholism, into the existing demographic, social and economic structure of the population. Mr Kleineberg does not consider that the mandatory full public interest assessment required to be prepared for the Liquor Licensing Division as part of an application for a General Licence will reveal any social or economic defects of the residents which may prevent the approval of a General Licence.
[44] Mr Kleineberg has identified a locality population directly relevant to the proposed premises of approximately 10,000 residents. In his view the site has a large trade catchment area with some trading derived from passing traffic using Worongary Road from persons residing outside the boundaries of the trade catchment area (that is, outside the boundaries of the SLA of Worongary-Tallai).
[45] Mr Kleineberg has identified the Wallaby Hotel and the Woodchoppers Inn (both in Mudgeeraba) as the nearest facilities trading under General (Liquor) Licences. These premises are located some five kilometres from the site, just outside the southern SLA boundary. Other General Licences outside the SLA boundary include the Merrimac Tavern and the Highland Park Family Tavern at distances of five kilometres and 10 kilometres from the subject site respectively. There is also a General Licence within the Robina Town Centre at a distance of 6.2 kilometres from the subject site. Mr Kleineberg notes that all of the above General Licences are located within a town centre and part of a larger type neighbourhood shopping centre or a regional shopping centre.
[46] The relevant residents identified within the catchment area adopted by Mr Kleineberg presently have to travel relatively long distances to the existing licensed premises to enjoy the amenities offered by a facility with a General Licence. These residents have chosen to reside in an area of rural-residential character, seeking some remoteness from the more densely developed suburban areas, town centres and commercial centres within which the facilities trading under General Licences are situated.
[47] The view expressed by Mr Kleineberg is that the subject premises, which are located centrally to the catchment area, can, by operation and amenities, adopt the dual role of a boutique tavern and country club/golf club role in an attractive rural setting. He sees that the proposal reflects the lifestyle of the residents and fitting community expectations in terms of convenience, ease of access and country setting.
[48] A comparison of the operational differences between facilities with a General Licence and a Special Facility Licence was undertaken by Mr Kleineberg in Part 2 of his report. He notes that a General Licence allows liquor to be sold for consumption for both on and off the premises and that this is the type of licence under which hotels and taverns operate. Additional privileges may be applied for:
·approval to operate three detached bottle shops within 10 kilometres, by road, from the premises;
·approval for extended trading hours before 10am and/or after 12mn (if not set by Council Town Planning Conditions); and
·approval to cater for private functions away from the premises.
By contrast, a Special Facility Licence allows liquor only to be served in association with a specified activity that includes provision of a special service to the public and/or forms part of the tourist development of Queensland. Trading hours are specified in the licence, having regard to the nature of the business. Generally, liquor may be served to the public on the premises during the hours specified in the licence and, at times, depending on the application and Licensing Division consideration, liquor may also be sold to the public to take away.
[49] The conversion of the Special Facility Licence to a General Licence will, in Mr Kleineberg’s opinion, allow the subject premises to operate as a boutique tavern type of facility for the golfing community and the local population at the same time. The premises will still offer clubhouse facilities for the retained golf course. As a result of the assessments made in Part 1 of his report, Mr Kleineberg considers that a General Licence introduction for the locality population use as appropriate. He also discerns a need, in amenity provision terms, to potentially serve a residential population of some 10,000 persons and Mr Kleineberg sees the proposed renovations and additions to the existing facilities as providing for that need.
[50] Although not directly relevant to the appeal presently under consideration, it should be noted that Mr Kleineberg states that he has not been able to identify any reasons for the Liquor Licensing Division to refuse an application for a General Licence, assuming that town planning approval for the proposal is obtained.
[51] Mr Coghlin, a property development analyst, gave evidence on behalf of the respondent Council. He notes in his report (Exhibit 19) that under the revised application, it is proposed to increase the size of the clubhouse from 793m2 to 1260m2 gfa, an increase of approximately 59%. The plans for the new development show a new gaming area, a new lounge and a small new function room, in addition to an existing club bar. However, the revised proposal does not contain a bottle shop, wine-tasting pavilion or wine cellar, and outdoor areas have been largely deleted.
[52] As a result of the deletion of many of the originally planned features, Mr Coghlin considers that the revised proposal for the hotel appears to largely duplicate the typical functions of other hotels. Accordingly, Mr Coghlin has defined the main local resident trade area of the proposal as the geographic area for which the proposed hotel would be more convenient than alternative hotels serving a similar function. To determine the trade area population Mr Coghlin has used the ABS 2001 population for the census collection districts that best fit the defined trade area. He concludes that the trade area, in 2001, had a resident population of approximately 2,700 with a forecast trade area population of approximately 3,000 in 2005 and 3,100 by 2016. As the area is designated for low density residential development, the ultimate population for the trade area will not significantly exceed 3,100.
[53] The trade area is dominated by traditional two-parent families with dependent children, enjoying average household incomes almost 40% above the Gold Coast city average.
[54] Mr Coghlin has considered the availability of existing facilities and notes that the Mudgeeraba town centre area hosts four licensed premises (to which should be added the Woodchoppers Inn which was overlooked by Mr Coghlin). The Worongary shopping village contains a dining precinct with seven restaurants including a licensed restaurant. The Merrimac Tavern is situated on Gooding Drive, only slightly further away from the subject site, and includes a bistro. Mr Coghlin considers that the existing hotels, other licensed venues, and restaurants to the east of the subject site are on or near travel routes that most trade area residents would normally use to travel to and from work, school, shopping and other destinations. From observations made by Mr Coghlin, he concluded that the existing hotels in Mudgeeraba and Merrimac had sufficient space in their bistros, bars and gaming rooms to meet existing demand. He also identified sufficient available car parking at each location.
[55] The proposed hotel would cater, in Mr Coghlin’s view, to a trade area population of approximately 3,000, which is considerably less than the average population per venue identified by him in that area of the Gold Coast from Nerang to Mudgeeraba which contains 13 hotels and which has an estimated current population of 110,000. The small forecast increase in the trade area population translates into a commensurately small increase in market demand which, in Mr Coghlin’s view, is not sufficient to support another hotel.
[56] Mr Coghlin does recognise that in some respects the proposed hotel would differ from existing hotels near Tallai:
·The proposal is a boutique hotel, smaller in scale than the nearest existing hotels at Mudgeeraba, Merrimac and Nerang and as such it may have a different character and ambience than nearby hotels;
·The proposal’s location is in a rural area and provides some views. In contrast, the nearest existing hotels are in urban areas and lack this amenity;
·For residents of the defined trade area, the proposal would be closer than alternative hotels, and in that regard provide some benefit in terms of convenience.
[57] Thus, although the proposed hotel is seen by Mr Coghlin as generating some benefit to the local community in offering some additional choice, that does not necessarily indicate a need for the hotel. Mr Coghlin concludes that a wide choice of existing hotels, licensed restaurants and other food services is within a reasonable driving time of trade area residents; that existing facilities have the capacity to serve the market; that the estimated trade area to be served by the proposal has a population considerably below the average trade area population of existing hotels in nearby urban areas; that the trade area population has grown little in recent years and is forecast to increase only minimally in the foreseeable future, so a hotel on the subject site is not warranted by market growth; and that submissions received from residents did not claim a need for the proposal. In Mr Coghlin’s view there is no significant existing need for the proposal, nor is such a need likely to arise in the foreseeable future.
[58] The manager of the Tallai Country Golf Club, Ms Dyer, gave evidence in relation to the operations of the club and her perception of the proposed changes. Ms Dyer has worked at the club since May 2003 and has been employed as manager since February 2005. Her duties include office duties, staff supervision, rostering employees, organisation functions and ordering. She reports directly to the appellant, Mr Gilbert.
[59] The club is open from 8am to 12mn daily, however, on Sundays and Mondays the club frequently closes between 9.30pm and 11.30pm due to low patronage. The club is open from 7am on Sundays for breakfast. Ms Dyer has observed that the daytime trade of the club is generally limited to the patronage of persons using the golf course, local residents and workers employed in the vicinity of the golf club. Ms Dyer regards the club as predominantly locally patronised with the majority of patrons residing in the Worongary-Tallai area. During the daytime members of the local community often meet in the bistro for meals and drinks. Workers employed in the vicinity also utilise the facilities during their lunch breaks. Golfers frequent the club prior to and after completion of golf rounds.
[60] Ms Dyer has noticed that the trade is quieter during daytime hours because the club is situated in an area of high employment and many of the local residents work and are therefore unable to patronise the club during the day. The trade and patronage of the club rises markedly at 4pm when patrons finish work and are able to attend the club. At night time the club is largely patronised by local residents including families. The club offers meals, gaming, pool, functions, keno and TAB facilities. Not surprisingly, the busiest day of trade in terms of gaming is Saturday. The dining room at the club comfortably seats 50 patrons and provides a wide range of food, catering for most palates. The veranda offers additional seating for diners who wish to enjoy the views over the golf course and surrounding areas. The club employs two cooks to cater for diners at the club.
[61] Local service clubs such as the Rotary Club of Mudgeeraba, the Probus Club of Mudgeeraba, the local Lions Club and representatives of Avon use the clubhouse facilities on a regular basis. Local schools within the vicinity make use of the golf course as part of their school golfing program. The clubhouse is a popular venue for weddings, birthdays, engagement parties and anniversaries with such functions generally being held on Friday and Saturday nights.
[62] Ms Dyer comments that the activities provided by the club are generally community-orientated and attract members of the local community. She claims that there is rarely any trouble at the club which is consistent with the relaxed family atmosphere enjoyed at the facility. There are no security guards on the premises as they are not required. Ms Dyer stated that the nearest hotel for local residents is the Wallaby Hotel at Mudgeeraba which does not enjoy a good reputation amongst members of the local community and lacks the friendly family atmosphere of the Tallai Country Golf Club.
[63] In relation to noise levels at the club, Ms Dyer described these as “limited” and as being consistent with the family atmosphere. She is not aware of any formal complaints having been made about the noise from the club although she is aware of one local resident who lives directly across the road from the club and who has made informal complaints on occasions in respect of noise. Ms Dyer states that when she has received these complaints the resident’s concerns have been dealt with immediately to the resident’s satisfaction. She points out that the resident is himself a regular patron of the club.
[64] Two golf professionals were hired by the appellant in February 2005, producing a marked improvement in the quality and appearance of the golf course. The professionals have started a social club for local residents who play golf each Friday. The golf course enables local residents to have an affordable game of golf with a round of nine holes costing $12. The availability of the two professionals also enables local residents to access affordable golf lessons.
[65] Ms Dyer stated that the club is unable to cater for large functions requested by members of the local community and surrounding areas. She has viewed the plans of the proposed changes to the club and believes that if implement, the changes will greatly improve the facilities and services offered by the club. In particular, the proposed opening and extension of the new lounge would provide waiting dinner guests, patrons and families with a more private and relaxed atmosphere in which to sit. This lounge would separate workers who patronise the club bar straight from work, from patrons who may wish to enjoy a drink or meal in a quieter environment. The relocation of the golf pro shop will offer toilets, showers and golf facilities to players in close proximity to the course. The proposed new function room and gazebo would enable the club to better cater for functions by providing privacy to guests and presenting a more appealing venue to people and organisations looking to host functions. The gaming room will be cordoned off from other areas, offering privacy from mainstream patrons. The club bar will be totally separate from other areas, thus permitting families to enjoy entertainment in areas separate from those patrons who just wish to consume alcohol at the club bar.
Town Planning Issues
[66] This application is made under a transitional planning scheme and must therefore be assessed against the Local Government (Planning and Environment Act) 1990.
[67] The Strategic Plan is the principal forward planning element of the planning scheme. It is primarily concerned with matters affecting the use of land and is intended broadly to provide the basis for coherent and consistent land use decision-making through the identification of clear planning strategy for the shire. It deals with broad patterns of land use, taking into account inter alia the way they relate to the shire’s economy and its social environment.
[68] Under the 1995 planning scheme the subject land has been included in the Park Residential preferred dominant land use designation. Development in this PDLU is administered through the provisions of the Park Residential zone. The subject land is not in the Park Residential zone but every parcel of land adjacent to it is in such zone and I accept that this factor must impact on the expectation that people have as to the form of development that might result in their locale. The Park Residential Objective 1 is to provide opportunities for people who wish to live in a low-density residential environment, reasonably close to urban facilities, and convenient to the facilities and attractions offered by the region. Implementation criterion (iii) identifies the nub of the problem with this application in that it recognises that in more remote Park Residential areas (for example, Bonogin and Ormeau) lower order service centres may be established. However, Park Residential areas close to urban residential or village areas are expected to rely on services provided in urban centres.
[69] Park Residential Objective 2 seeks to promote and preserve a high standard of amenity and convenience in Park Residential areas. Implementation (iii) provides that except pursuant to Park Residential Objective 1(iii), rezonings to allow the establishment of industries, commercial development, retirement villages, caravan parks, large-scale recreational complexes, motels, accommodation units or the like in Park Residential areas will ordinarily not be approved. The only exceptions could be small-scale tourist-oriented facilities on major tourist routes, provided that the appearance, size and intensity of development would be compatible with the character of the surrounding area. The existing hotel is not directed towards tourism. This much we know from the agreed position of the economic experts. It is directed towards local patronage. It is contended for the council that the Park Residential Objective 2 does not contemplate the introduction of new development on the subject site in the form of an expanded facility.
[70] The intent of the Park Residential zone is to implement the objective of the Park Residential areas on the Strategic Plan, and to provide areas wherein dwelling houses can be erected on small rural allotments for the purpose of low-density residential living without all normal urban facilities. While the provisions of the Park Residential zone allow for some non-residential land uses, such as churches and childcare centres, the scale and intensity of any such development which is permitted must be consistent with the low-density residential character intended for these areas. The Table of Development for the Park Residential zone includes “hotel” in column 4 (development which may not be undertaken). The Table of Development in clause 8.1.2 for the Special Facilities zone similarly identifies that hotel is a prohibited development unless supplementary to a particular purpose under columns 1 or 2 of the Table. Section 6.1.2(3) of the Integrated Planning Act 1997 provides that a prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.
[71] Counsel for the respondent submits that at the heart of this application is a desire to draw trade from Park Residential areas and that this is not what is contemplated by the provisions of the Strategic Plan referred to above. Mr Litster submits that there is a stark and clear conflict with the Strategic Plan in this regard.
[72] Counsel for the appellant submits that there is no conflict with implementation criteria (iii) of Park Residential Objective 1 because a new centre is not proposed. There is no warrant, in my view, for restricting the implementation criteria to circumstances that involve the establishment of a new centre. New development in the form of an expanded facility is clearly contemplated by the provision.
[73] Part 5, Division 1, Chapter 2 of the current planning scheme sets out the new regime for land use assessment. Impact assessable development is divided into two categories (4.6.1). Firstly, those listed in the Table of Development in the Domain “may be considered as appropriate.” Secondly, those uses not listed in the Table of Development “should be considered as undesirable or inappropriate” in the Domain.
[74] The application falls for assessment under the now superseded transitional planning scheme (the Albert Shire Planning Scheme of February 1995) because that was the planning scheme in force when the development application was made. However, it is appropriate to give significant weight to the current planning scheme (Lewiac v Gold Coast City Council [1994] 83 LGERA 224). Counsel for the appellant submits that if the expectation for the subject land is for a golf course and clubhouse, then it would have been put into the Park Living Domain where “tavern” is an inappropriate form of development and Outdoor Sport and Recreation (including golf and ancillary clubhouse) is appropriate development subject to impact assessment. Mr Haydon contends that by placing the subject land into the Private Open Space Domain the planning authority has recognised Tavern and Outdoor Sport and Recreation as appropriate development subject to impact assessment. Therefore, it is submitted, there is no conflict with the Private Open Space Domain. As Mr Haydon puts it, “if there was a conflict before [under the superseded 1995 planning scheme] then it has gone into a merit assessment [under the current planning scheme].”
[75] If an assessment of the application were being made solely under the current planning scheme it may well be that the application for the Outdoor Sport and Recreation and tavern is capable of being approved, subject to conditions, so that the assessment manager’s decision does not conflict with the planning scheme. Mr Haydon points to Part 5 of Division 2, Chapter 2 in the Park Living Domain Code for reconfiguring a lot which provides for code assessment if the average area of the lots is at least 8,000m2 and no lot is less than 4,000m2. He observes (accurately) that the existing and proposed development is on 7.8304 hectares, which is well in excess of the minimum lot sizes for the surrounding rural residential area. It may be accepted that the existing facility makes a positive contribution to the existing amenity. Mr Hardon contends that with the imposition of reasonable conditions, so will the proposed tavern and golf course. He notes that the condition’s power allows conditions to be imposed despite the planning scheme (section 3.1.30[2]). Once amenity conditions are imposed on this development, it is submitted, the “decision” will not conflict with the planning scheme, and there will be no need to look at planning grounds.
[76] The alternative submission made by counsel for the appellant, is that the planning grounds in Exhibit 27, together with other merit issues referred to in his written submissions (and also taking into account the matters canvassed in the report of Mr Reynolds [Exhibit 3] at paragraphs 5.2.12 to 5.2.15), support a finding that there should be an approval subject to reasonable conditions.
[77] In my opinion, the primary submission made by Mr Haydon that there is no conflict with the Albert Shire Planning Scheme 1995 must be rejected. There is a clear conflict with the centres philosophy. That conflict cannot be overcome by reference solely or even significantly to the current planning scheme. The application must be refused if there are not sufficient planning grounds to justify the approval despite the conflict. In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, this Court is required to examine the nature and extent of the conflict; determine whether there are any planning grounds which are relevant to the part of the application which conflicts with the planning scheme and if the conflict can be justified on those planning grounds; and determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application, notwithstanding the conflict. [See Weightman v Gold Coast City Council & Anor (2003) QPELR 43]
[78] The conflict in the present case must, in my opinion, be regarded as a major one, arising from an absolute prohibition of developing a “hotel” in the Park Residential zone. The significance of the nature of the conflict is that it demonstrates that the considered planning grounds of the respondent Council showed an express intention to forbid a “hotel” development in this zone. It is against this background that the planning grounds advanced by the appellant as sufficient to justify approval of the application, notwithstanding the conflict, must be considered.
[79] Exhibit 27 sets out in tabulated form the planning grounds relied on by the appellant in this regard. The table is reproduced below:
Planning
GroundsRelevance to intent of Planning Scheme Provisions Retention of a
high standard of amenityProtection
of existing centre’s
functionsFacilitating a distinct character from urban areas Promoting a high
design standard1. The development will provide a distinct character unique to its semi-rural setting √
√
√
2. The development will better meet a demonstrated community need. √
√
3. The golf course will be retained in the long term as an integral part of the development. √
√
√
4. The development will be carried out under an approved concept plan. √
√
√
5. The development will be conducted with reasonable conditions controlling noise and other activity. √
√ 6. The proposal will improve functional and visual linkages with the golf course. √
√
√
√
7. The premises will be modernised. √
√
√
8. The golf course will be better maintained. √
√
√
9. The premises will avoid being subject to blight and disuse. √
√
[80] The matters said to favour approval of the proposed development and contained within the report of Mr Reynolds are set out hereunder:
“5.2.12 The planning scheme promotes high quality residential amenity and character in park residential areas. The existing Tallai Country Golf Course contributes to that amenity in this local area. It has been in operation for over a decade with no noticeable adverse impacts. The proposal is not to alter the character of the existing facility or to create adverse impact upon the surrounding area by way of noise or other disturbance. A separate report addressing noise has been prepared for the Court by Mr Sasho Temelkoski.
5.2.13The site is suitable for the use intended because of the following characteristics:
1.it is a large site, including a golf course, providing an open landscape character to the clubhouse building;
2.the size of the site provides a significant buffer across the golf course;
3.the clubhouse building is oriented internally within the site, not to the external road boundaries;
4.there exist significant and established landscape buffers to the external road boundaries, adjacent to the clubhouse building;
5.there is only one allotment opposite the site on The Panorama. It contains a house which is set back from the roadway, buffered from the road frontage, does not ‘address’ The Panorama and contains infrastructure for a commercial scale nursery operation;
6.the allotments opposite the site on Worongary Road also contain houses set well back from the roadway and buffered from the road frontage. Worongary Road is a through road with high traffic noise, due to vehicle speed in this locality; and
7.access to the site is convenient from a safe road (The Panorama) passing only one allotment access (refer above), having accessed the site via a major distributor road (Worongary Road).
5.2.14In addition to the suitability of the site for the proposed purpose described above, other important considerations in assessing amenity in this case include the following:
1.the existing operation already trades from 8am to midnight;
2.this proposal represents an opportunity to implement best practice management measures to improve upon existing amenity;
3.the proposed development will not perceivably add to noise or traffic above that existing or possible under the existing approval;
4.the impacts from the existing or proposed development fall within acceptable levels, having regard to the high standard of amenity intended; the location of the building on a major road and large allotment; and the orientation of the premises internally within that allotment;
5.the issue of amenity must be considered in context of the golf course, as the clubhouse building is set in a dominant landscaped context. The proposal is to maintain the golf course and together, the clubhouse and golf course contribute significant amenity to the local area. Specifically, the General Licence sought by the applicant will provide the necessary business confidence to further invest in the golf course maintenance program, further improving the amenity of the area. The open spaces, landscaped grounds and ‘breathing space’ provided by the development is entirely consistent with the open landscape character and high amenity sought in Park Residential areas;
6.the clubhouse/hotel building is not oriented at all to Worongary Road. This frontage is heavily landscaped and no loading or outside areas are oriented in this direction. Consequently, the houses on the eastern side of Worongary Road are well buffered from the building;
7.the clubhouse/hotel building is also not oriented to The Panorama and significant vegetation is established as a buffer to that frontage. The single property opposite is well set back and also heavily screened from this frontage.
8.the physical changes proposed to the building are minor, such that a person travelling past the site would find it very difficult to discern a change to the current use. Consequently, impacts on perceived amenity will not be adversely affected; and
9.the opportunity to experience the semi-rural character and amenity of the local area from the existing and proposed premises is an amenity in its own right.
5.2.15For these reasons, the proposal will provide acceptable amenity. It presents an opportunity to present improved amenity to that existing, should best practice management measures are (sic) imposed by conditions of approval.”
[81] Counsel for the applicant, in his written submissions, takes issue with the respondent’s town planning consultant who suggests, at 5.15 of Exhibit 20, that the new intent “is consistent with” the 1995 planning scheme. Mr Haydon submits that Mr Cumming is incorrect in holding that the Private Open Space Domain is “in recognition of the Special Facilities Zone”. He contends that it is more than that because it includes the tavern and the outdoor sport and recreation as impact assessable development, assessed on their individual merits. I accept the submission of Mr Haydon in this regard.
[82] The issue of need forms the second of the planning grounds in Exhibit 27 and is extensively discussed in Mr Haydon’s written submissions. This issue is particularly relevant as the application is, as described by Mr Litster, “in the character of a rezoning”, thus necessitating a consideration of the issue. The observations of Brabazon QC DCJ in Arksmead v Council of the City of Gold Coast & Ors [1999] QPELR 322 at 328 are of considerable assistance in approaching the issue of need in this case:
“It must be kept in mind that it is community need that is to be investigated, not the commercial need of a developer, or the needs of those who oppose a development. Need must be distinguished from demand, which is not the same thing. There may be some demand for a certain proposal, but an objective view of it can show that there is no community need, in the planning sense, for it to be implemented.
The question of need usually will not involve a moral judgment about the desirability of some community activity. There may be a need for something even though a portion of the community disapproves of it. That is why, in one of many descriptions of need in the planning sense, words are chosen which do not reflect value judgments:
‘The basic assumption must be that there is in existence at the time of the application…a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all, or not being adequately met, by the planning scheme in its present form. (See Williams McEwans Pty Ltd c Brisbane City Council (1981) 2 APA at 165).
It must also be kept in mind that, where consent for a hotel development is in issue, another statutory body is responsible for investigating the public need for that hotel. See s 116 of the Liquor Act. That section requires the liquor authorities to be satisfied that the approval applied for is ‘necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates’.”
[83] Counsel for the respondent submits that at the heart of the application is an intention to draw trade to this development from Park Residential areas. There is some force in this submission, particularly when it is seen that the entirety of the identified trade area in Mr Kleineberg’s report is covered by the Park Residential preferred dominant land use. Furthermore, parts of Mr Kleineberg’s trade area are relatively remote from the site and situated closer to other existing general licensed facilities. I am unable to accept Mr Kleineberg’s evidence that the relevant residents identified within the catchment presently have to travel relatively long distances to existing licensed premises to enjoy the amenities a general license is offering.
[84] It is clear, on any view of the evidence, that numerous generally licensed premises are already in existence within close proximity to the subject land. Mr Reynolds seeks to distinguish the proposed development from the existing licensed facilities by emphasising that the latter do not enjoy views over semi-rural landscape, nor do they provide an ambience equivalent to that offered on the subject site. Counsel for the respondent submits that points of distinction of this nature cannot overcome the clear, sensible, adopted planning strategies of a local authority. Mr Litster contends further that the existing facility has not, on the evidence, been shown to be over-trading and that the owners of the existing facility could increase trade by carrying out internal modifications without expanding the existing facility and without changing the form of licence that is currently approved.
[85] I do not overlook that part of Mr Kleineberg’s evidence where he observes that the catchment for the subject site which he identifies overlaps only a small part of the catchment for Mudgeeraba, as it is situated in a hinterland location. However, even by reference to Mr Kleineberg’s catchment, it is clear that Mudgeeraba and Worongary Village are within 10 minutes’ driving time of the Tallai locality and the location cannot be considered remote. The evidence of Mr Cumming is to be preferred in this regard.
[86] The evidence before the Court fails to establish the existence of a latent unsatisfied demand on the part of those affected by the planning scheme which is not currently being met at all, or not being adequately met, by the planning scheme in its present form.
[87] With respect to the planning grounds (other than need) set out in Exhibit 27, it should be noted that most add little, if anything, to the position that would be reached by carrying out a refurbishment of the existing facility. Thus, the golf course will, it seems, be retained under the existing arrangement. There is no evidence to suggest that it is uneconomic or unviable to retain the golf course in its present form and excellent condition as part of the existing development. The ground that “development will be carried out under an approved concept plan” would not, in my view, add significantly to the present position should the development remain in its current form. The ground that “the development will be conducted with reasonable conditions controlling noise and other activity” adds nothing to the existing conditions on the proposal under the 1993 rezoning approval which generally require no adverse impact on amenity. The ground that “the proposal will improve functional and visual linkages with the golf course” refers to the proposed internal reconfiguration of the building to allow the dining room and veranda to more effectively integrate with the outdoor area. This can be achieved under a building application in relation to the existing premises. Similar comments apply to the ground that “the premises will be modernised”. The ground that “the golf course will be better maintained” seems to attract little support from the evidence of the manager which acknowledges the commendable and successful steps taken recently to improve maintenance and promotion of the golf course. There is no evidence to suggest that these improvements cannot be continued in conjunction with the existing, or refurbished, facility. The final ground that “the premises will avoid being subject to blight and disuse” finds no support in the evidence which clearly establishes that the existing facility attracts patronage from the local area and will continue to do so. There is nothing to suggest that the facility is presently under-trading.
[88] Those matters referred to in the report of Mr Reynolds and contained within paragraphs 5.2.12 to 5.2.15 relate to amenity issues. Generally, they may be considered as identifying the absence of negative amenity effects resulting from the proposed development. For example, the ground that “the proposed development will not perceivably add to noise or traffic above that existing or possible under the existing approval” does not amount to a positive planning ground supporting approval. Whilst the proposal may be accepted as providing satisfactory amenity, because impacts on perceived amenity will not be adversely affected, I am unable to accept that this provides a ground or grounds sufficient to justify the clear conflict with the planning scheme. (See Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 at 593).
[89] In my view, little weight can be given to the planning grounds identified as relevant to the application. I find that there is conflict between the application and the Albert Shire Planning Scheme of 1995 and that there are no sufficient grounds to approve the application, despite the conflict. The appeal is accordingly refused and the decision of the respondent council confirmed.
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