Gracemere Surveying & Ors v. Peak Downs Shire Council & Ors
[2008] QPEC 97
•20 November 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gracemere Surveying & Ors v Peak Downs Shire Council & Ors [2008] QPEC 97
PARTIES:
GRACEMERE SURVEYING AND PLANNING CONSULTANTS PTY LTD
and
D&B CARNE INVESTMENTS PTY LTD (ACN 068 618 600) T/A CAPELLA HOTEL MOTEL LIMITED
(Appellants)
v
PEAK DOWNS SHIRE COUNCIL
(Respondent)
and
CUPOSA PTY LTD (ACN 001 285 025)
(Co-respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Co-respondent by election)
FILE NO/S:
3460 of 2007
DIVISION:
Appellate
PROCEEDING:
Submitter appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
20 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
8-12 September (including inspection 9 September), 6 October 2008
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.14(2)(b)
Adverse submitter appeal by competitor - hotel/motel/restaurant proposal in Town-Highway Precinct where such uses were to be “minimised” – whether such uses represented conflict with the planning scheme – if so, whether sufficient grounds (by way of planning need) were shown to justify approval
COUNSEL:
A Skoien for Appellants
J H Davies for Respondent
C Hughes SC and M Williamson for Co-respondent
SOLICITORS:
Minter Ellison for Appellants
King & Company for Respondent
Connor O’Meara for Co-respondent
This is an adverse submitter appeal under s 4.1.28 of the Integrated Planning Act 1997 (IPA) against the respondent Council’s approval dated 30 October 2007 of a development application for a development permit for a material change of use (accommodation facility, hotel and food premises) at the corner of the Gregory Highway and Gordon Street at the southern approach to the town of Capella on land which is presently vacant. The development application was made by the co-respondent in the middle of 2006. It bears the onus of showing that the appeal should be dismissed: IPA s 4.1.50(2).
The accommodation component of the proposed development was originally some eighty motel units; this was reduced to sixty-five to avoid an issue under the applicable Peak Downs Shire Planning Scheme (which came into effect on 2 December 2005) by the time of public notification in September 2007. The motel units (and manager’s accommodation) will be in four regularly spaced parallel buildings facing Gordon Street (with the qualification that the two in the middle are extremely close together and oriented back to back), presenting their narrow ends to the highway, which is the site’s street address, 119 Peak Downs Street. The other facilities will be incorporated in a fifth building further to the south, and offset to the west, close to Peak Downs Street, where the balance of the frontage is allocated to parking and landscaping.
The motel/hotel and restaurant/food components come under the following use definitions in the planning scheme:
“…
“accommodation building” means premises used for accommodation units on a single lot and which provides common facilities and includes any restaurant, office and/or manager’s residence on the same site. The term includes uses commonly known as a motel, hostel, boarding house, apartment house and serviced rooms.
…
“food premises” means the use of premises primarily for the preparation and serving of meals and beverages. The term includes restaurants, cafes, kiosks, takeaway shops, fast food outlets (including any drive-thru facility), function or reception centres, outdoor dining associated with any of these uses, and ancillary use of amplified music or speaker systems.
“hotel” means premises which primarily sell liquor for consumption on-site, which may also sell liquor for consumption off-site, provide short-term accommodation or dining/entertainment facilities. The term does not include accommodation building, liquor store or shop.
…”
Accommodation Building is in the “residential use class”; the others are in the “commercial use class” as opposed to rural use, industrial use or community use.
The hotel is intended to have a general licence, introducing an element of competition for the appellant not previously faced in Capella, and also in excess of 20 gaming machines. The appellant currently operates a smaller number. It is not the business of this court to be concerned about the ability of the co-respondent to organise necessary licences to operate under other legislation (although Mr Kleineberg, who provided a “need assessment” for the appellant, urged that it should assume some responsibility for the general licence aspect, being of the view that authorities historically charged with that responsibility are no longer required to exercise it in the traditional way).
There are two other motels presently operating in the town, one of which (the Capella Motel of 18 units), like the appellant, made an adverse submission in the public notification period; it did not join in the appeal. The other is the Bottlebrush Motel which fairly recently doubled its size to 35 units. A larger such facility, the proposed Motel Capella (of 63 or 64 units, depending on whether the manager’s unit is counted), won town planning approval a year or so before Cuposa (the co-respondent); its construction has recently commenced. The representative, Mr Speedy, supports the appeal and gave evidence for the appellant. There is a Universal Accommodation facility of some 145 rooms, “Dongas” of varying levels of amenity, split between land of or adjoining the Bowls Club towards the northern end of the town and other land across the street. The Club provides dining facilities for the clientele of the Universal Accommodation facility, who are typically miners requiring somewhere to sleep while serving their rostered days on at nearby coalmines, but ordinarily live in other centres such as Mackay or Rockhampton. The existing motels, including the appellant’s, have some accommodation of that kind; the appellant has added another 10 units in a similar category by conversion of a newish neighbouring shopping arcade which had fallen vacant. The total number of units is not quite clear from Mr Skoien’s written submission for the appellant, but they will be about 15 or more. The operation, since the Carne Family acquired it about four years ago, has been undergoing a complete refurbishment and upgrading to 3.5 star level – which is continuing. The written outline sums up:-
“4.1.4The renovations to the Capella Hotel Motel will result in the old Capella pub being transformed into a modern country tavern, with all of the services and facilities that accompany an establishment of that type. In particular, the refurbished Capella Hotel Motel will have:
(a)redesigned and renovated public bar areas;
(b)open veranda public bar areas surrounding two sides of the hotel;
(c)a “sportman’s” bar;
(d)a dedicated gaming room;
(e)a new conference room;
(f)a large, modern beer garden;
(g)a children’s play area (with safety matting, fence, play equipment and shadecloth); and
(h)a pleasant, modern restaurant/dining room, with access to all other areas of the tavern, including the public bar areas, the beer garden and the children’s play area.
4.15The hotel facilities at the refurbished Capella Hotel Motel will be larger and more extensive than the hotel facilities envisaged by the proposed development.
4.16The renovations to the Capella Hotel Motel have also already resulted in an increase of ten short term accommodation rooms, from 39 rooms to 49 rooms, at the Capella Hotel Motel. Those renovations have seen:
(a)the number of hotel bedrooms remained the same, although those rooms have been refurbished;
(b)the number of bunk house rooms reduced from 16 old rooms to 9 new rooms;
(c)the collocation of the bunkhouse rooms with the other facilities at the Capella Hotel Motel (previously those old bunk houses had been located at the caravan park, but the new rooms have been constructed at the Capella Hotel Motel);
(d)the increase in the number of standard motel rooms from 8 rooms to 25 rooms (of 3.5 Star quality); and
(e)the complete refurbishment of the 8 existing standard motel rooms (to 3.5 Star quality).”
Mr Skoien’s calculation is that in Capella there exist or are now under construction about 311 rooms of varying standards with a range of accompanying dining options.
Cuposa’s site is 12,610m2, and L-shaped, with 80.5m and 82m frontages to Peak Downs Street and Gordon Street respectively. The corner proper is occupied by a residence owned by Mr Patrick, a supporting submitter who gave evidence in Cuposa’s case. For about a decade he has been manager for the Council of the Capella Cultural Centre; it has facilities for conferences and functions, for which an appropriate licence allowing sale of liquor exists. Mr Patrick has been active in attracting shows, roughly monthly, featuring performers respected and popular throughout Australia and beyond: the promotional posters decorating the foyer are an impressive collection. It might be observed that Capella enjoys other facilities of a scale and standard surpassing what would anticipated in a town with fewer than 1000 inhabitants, who would be a third or a quarter of the total Shire population, such as the “indoor equine centre” or “covered arena” which Mr Patrick said was used for shows too big or popular for the Cultural Centre auditorium. The local government has been conspicuously successful in attracting support for establishment of such facilities – only time will tell whether incorporation of the Shire in the Central Highlands Regional Council from 15 March 2008 will presage further such projects for Capella.
At about that time a Council residence in the town became available to Mr Patrick. As the owner of the south-east corner proper of Gordon Street and Peak Downs Street, which lies in the residential precinct of the Town Zone, and is bounded on two sides by the site, Mr Patrick continues to support the proposal, such concerns as he had being alleviated by a development condition requiring some acoustic fencing along the boundary. He sees the proposal as advancing Capella and would doubtless endorse the plaudits of Mr Hughes SC and Mr Williamson in their closing submissions that:
“…
27.The proposed motel is intended to attain at least a four star quality. The level of quality attained by the motel will set it apart from existing motels in Capella in that it will provide all of the following:
(a)rooms that are larger than those currently provided in Capella;
(b)a range of facilities of greater quality than those currently provided in Capella which would include a bar fridge;
(c)a licensed restaurant where patrons will be permitted to select from a moderate list of beers and wines to enjoy with meals; and
(d)air-conditioned rooms with pay television.
28.While the facility will cater for all relevant visitors and workers (including, obviously, miners) the motel accommodation is designed with a point of difference to appeal to a market not presently catered for in Capella…
29.As to the proposed tavern, it is to be of a modern style and is intended again to achieve a point of difference from existing facilities in Capella. The proposed tavern is designed and is to be managed to provide more of a family atmosphere where local parents and visiting families would feel happy taking their children and where the women of Capella will feel more comfortable.
…”
Mr Patrick has experienced difficulty accommodating the personnel bringing touring shows to town and, while continuing to make bookings at existing motels, would be pleased to have another one available. Another periodic visitor to Capella who experiences difficulty in getting accommodation is the Shire’s planner, Mr Gannon.
Mr Patrick’s support, as that of the immediate neighbour on a developed residential parcel in a different precinct, is important. So is the support of Mr O’Brien, the site’s southern neighbour, whose land is in the same precinct as the site, within the Town Zone, namely the Town - Highway Precinct. All relevant land is in the Town Zone. To the west, the site adjoins land in the Town - Rural Residential Precinct; across Gordon Street is Town – Residential Precinct, except for the ambulance station, which is opposite the western end of the site. Between it and the highway is a single large parcel (nearly as big as the site) which for all practical purposes is totally undeveloped, as is the Rural Residential land. That is to say that, Mr Patrick’s aside, all existing residential development is separated from the site by Gordon Street and is remote from the site - access to which will be taken via Gordon Street opposite the large vacant parcel. This is a requirement of the co-respondent by election, as controller of the highway, whose denial of access to it is somewhat at odds with the planning scheme’s intentions for the Town-Highway Precinct. It might be noted that Capella exists essentially on the eastern side of the Highway/Peak Downs Street, which for practical purposes has an east side only – the railway line (and Capella Railway Station) taking up land to the west. Some development exists across the line, such as the remoter equine centre, showgrounds and the golf club, as well as some residential development; about one quarter of the Town-Rural Residential Precinct is there.
It is convenient to set out the planning scheme’s “Assessment Criteria for the Town Zone” in full (the structure and language of the provisions considered as a whole may shed useful light on the meaning of key terms, “predominantly” and “minimised”):
“4.3.2 Assessment criteria for the Town Zone
(1) Town Zone Code
The provisions in this division comprise the Town Zone Code. They are-
1.the Purpose of the Town Zone Code – Section (2); and
2.the Specific Outcomes, Probable Solutions and Acceptable Solutions for the Town Zone – Table 4.3.2. Town Zone.
(2) The Purpose of the Town Zone Code
The purpose of the Town Zone Code is to achieve the following overall outcomes:
1.Capella and Tieri remain as the key service towns which serve the Shire;
2.Commercial, community and public uses are consolidated within, or immediately adjoining Capella and Tieri, ensuring that they are easily identifiable and accessible community centres;
3.The Precincts each perform a different function within the Town Zone and represent distinct areas or groupings of compatible land uses;
4.The availability of land, the amenity, and the operational needs of different uses in each Precinct are not compromised by the inclusion or encroachment of inappropriate development;
5.Land on the boundaries of each of the Precincts is of a nature, design and appearance that respects the scale and nature of uses in the adjoining Precinct;
6.The overall outcomes specific to each of the Precincts within the Town Zone listed below, are achieved:
(a)The overall outcomes sought for the Town-Residential Precinct are:
(i)Land within the Precinct is predominantly used for uses in the Residential Use Class;
(ii)Land is generally provided with urban standard services;
(iii)Development on land which is not intended to be provided with a reticulated sewerage system, uses on-site effluent disposal systems which do not adversely impact on ground or surface water resources;
(iv)Uses that are not in the Residential Use Class such as churches, community facilities, local recreation facilities are only located in the Precinct where such uses are of a scale, size, appearance and built form which is consistent with residential amenity of the area;
(v)Other uses not in the Residential Use Class are not generally located within the Precinct.and
(b)The overall outcomes sought for the Town-Rural Residential Precinct are:
(i)Land is predominantly used for dwelling houses on small rural lots, yet provided with all urban services;
(ii)Low population densities in the Precinct mean that people enjoy a rural lifestyle with accessibility to community facilities;
(iii)The nature of the land within the Precinct is essentially residential and therefore the size and scope of rural activities is limited;
(iv)Uses such as animal husbandry, hobby farm cropping and agriculture are of a scale that do not result in adverse impacts on residential amenity or the environment eg water quality;
(v)New rural residential development is located such that it represents an infill of existing available rural residential land, or is an extension of existing rural residential development;
(vi)The land in the Precinct is afforded an urban standard of road access and a reasonable level of flood immunity;
(vii)Where reticulated water and sewerage is not available, new rural residential development has an adequate supply of potable water and water emergency purposes, and sustainable means of effluent disposal, which ensures that impacts on the ground and surface water resources are minimised;
(viii)the provision of parkland associated with new rural residential development coincides where possible with remnant vegetation on the site to provide habitat corridors or linkages for recreational purposes;
(ix)Small scale commercial uses which provide otherwise unprovided essential day-to-day goods and services to the immediate rural residential community are located within the Precinct, where potential impacts on residential amenity due to traffic, noise, and the built environment are minimised;
(x)Commercial and industrial uses (except for those mentioned above) are not located on land within the Precinct.
(c)The overall outcomes ought for the Town – Commercial Precinct are:
(i)Land within the Precinct is predominantly used for commercial and business uses including shops, commercial premises, and hotels, concentrated within the major service towns of Capella and Tieri;
(ii)the uses within the Precinct afford the Shire a wide range of shopping, banking, office, medical and professional services;
(iii)Other commercial uses such as indoor entertainment and motels are located within the Precinct where they cannot by their scale or nature locate in the Town – Tourism Precinct and are compatible with other commercial uses in the locality;
(iv)The inclusion of industrial and land consumptive uses such as vehicle showrooms and low impact industries is minimised;
(v)New community facilities are consolidated around existing civic and community facilities;
(vi)Land is generally provided with urban standard services;
(vii)Roads and parking areas are of an urban standard, allow for efficient traffic movement and do not by their location or design compromise pedestrian movement in the Town.
(d)The overall outcomes sought for the Town – Industrial Precinct are:
(i)Land within the Precinct is predominantly used for low, medium and high impact industrial uses including manufacturing, processing, repairing, packing and storage, in locations where they can be effectively separated or buffered from incompatible land uses;
(ii)Land in Hibernia Road / Butter Factory Street area is predominantly used for light and service industries, which are compatible with nearby Rural Residential land and Council’s water storage areas;
(iii)Land in Walsh Street, and Cotherstone Road are (sic) predominantly used for heavier industrial land uses.
(iv)New industrial development in the Shire locates in Capella, as the industrial land at Tieri continues to cater to local needs only.
(v)Land is afforded good access to transport facilities, and is suited to building and vehicle requirements of preferred uses;
(vi)Land is generally provided with urban standard services;
(vii)Development provides for ample on site parking, and on site manoeuvring and loading of heavy vehicles;
(viii)Other uses not in the Industrial Use Class such as service industries and uses which directly serve employees of industrial uses e.g. food premises, are also located within the Precinct where such uses do not have significant impacts upon the operation or amenity of surrounding uses;
(ix)Indoor and outdoor entertainment uses which are unable to locate in other areas due to their nature, scale or impact on amenity due to noise, may be located in the Precinct; and
(x)The inclusion of showrooms and vehicle showrooms is minimised;
(e)The overall outcomes sought for the Town – Tourism Precinct are:
(i)Land within the Precinct is predominantly used for purposes associated with tourism, and uses such as caravan parks, indoor entertainment, motels, food premises and hotels which serve the needs of the travelling public;
(ii)Land is generally provided with urban standard services;
(iii)Development has a high regard for built form appearance and landscaping where adjacent to a major highway, which enhances the amenity of the area and the towns’ image and character, and
(iv)The inclusion of showrooms, vehicle showrooms, and service industries is minimised as they are generally not compatible with other uses in the Precinct.
(v)Land within the Precinct is afforded direct frontage to major highways through Capella township and is suited to building and vehicle requirements of preferred uses;
(vi)Land is generally provided with urban standard services;
(vii)Development has a high regard for built form appearance, landscaping and general presentation to major highways, which enhances the amenity of the area and the towns’ image and character;
(viii)The inclusion of caravan parks, indoor entertainment, motels, food premises and hotels is minimised; as they are generally not compatible with the uses in the Precinct.
(f)The overall outcomes sought for the Town – Highway Precinct are:
(i)Land within the Precinct is predominantly used for vehicle orientated businesses which retail bulky durable goods and require large showroom areas, as well as for retail showrooms and combined retail and warehouse uses;
(ii)Land within the Precinct is afforded direct frontage to major highways through Capella township and is suited to building and vehicle requirements of preferred uses;
(iii)Land is generally provided with urban standard services;
(iv)Development has a high regard for built form appearance, landscaping and general presentation to major highways, which enhances the amenity of the area and the towns’ image and character;
(v)The inclusion of caravan parks, indoor entertainment, motels, food premises and hotels is minimised; as they are generally not compatible with the uses in the Precinct.
(g)The overall outcomes sought for the Town – Community Precinct are:
(i)Land within the Precinct is predominantly used for the provision of community purposes, including municipal services, education facilities, hospitals, meeting halls and places of worship;
(ii)Land tenure is predominantly, but not exclusively, crown land;
(iii)The Community Uses found in the Precinct are protected from the encroachment of incompatible uses and development that would restrict the potential expansion of the facilities;
(iv)Land is generally provided with urban standard services;
(v)Development in the Precinct does not adversely impact on adjoining residential areas;
(vi)The inclusion of uses in the Commercial and Industrial Use Classes is minimised; as they are generally not compatible with the uses in the Precinct.
(h)The overall outcomes sought for the Town – Utilities Precinct are:
(i)Land within the Precinct is predominantly used for the provision of utilities such as treatment plants, Council depots, telecommunication facilities, refuse sites and the like;
(ii)Land tenure is predominantly, but not exclusively, crown land;
(iii)Land is generally provided with urban standard services;
(iv)Development in the Precinct does not adversely impact on adjoining residential areas;
(v)The inclusion of uses in the Residential and Commercial Use Classes is minimised as they are generally not compatible with the uses in the Precinct.
(i)The overall outcomes sought for the Town – Recreation Precinct are:
(i)Land within the Precinct is predominantly used for the provision of public parks, open space, and outdoor entertainment uses including local sporting facilities and venues;
(ii)Land within the Precinct is located in close proximity to residential areas to ensure that the facilities are accessible to the residents they serve;
(iii)Areas of open space and natural habitats within the Precinct are provided such that they form linkages with other open space areas either in the Open Space Zone or the Natural Features and Conservation Overlay;
(iv)Land within the Precinct acts as a buffer between incompatible land uses where necessary;
(v)New development is located adjacent to other existing sporting facilities and open space areas to consolidate access points and to promote pedestrian and cycling linkages through the Precinct and between adjoining Precincts;
(vi)The inclusion of uses in the Commercial (other than food premises) and Industrial Use Classes is minimised; as they are generally not compatible with the uses in the Precinct.
(j)The overall outcomes sought for the Town – Non Urban Precinct are:
(i)Land within the Precinct is predominantly used for the provision of open space around the township of Tieri, and may include some low key agriculture or animal husbandry uses;
(ii)Land within the Precinct may be used for the extension of existing community purposes and utility uses;
(iii)Land tenure is Vacant Crown Land without any newly created freehold parcels;
(iv)Land is generally without urban standard of services;
(v)Development in the Precinct does not adversely impact on adjoining residential areas.”
4.3.2(2)(vi)(f), highlighted in bold type, is directly relevant. The issue in the appeal is whether the proposal conflicts with the Planning Scheme. If it does, by s 3.5.14(2) of IPA, the court (now the assessment manager) must not decide in favour of the proposal unless there are sufficient grounds to justify the decision despite the conflict. It is not contended by the appellant that achievement of DEOs might be compromised, so far as subsection (2)(a) might be concerned. The DEOs appear from Part 3 of the Planning Scheme, which begins:
“PART 3 – FOUNDATION OF THE PLANNING SCHEME
Division 1 – Desired Environmental Outcomes
3.1.1 Desired Environmental Outcomes
(1)The desired environmental outcomes are based on the achievement of ecological sustainability as outlined by the IPA and are the basis for the measures of the planning scheme.
(2)Each desired environmental outcome is sought to be achieved to the extent practicable having regard to each of the other desired environmental outcomes, noting that in many instance there is an overlap between each of the social, environmental and economic elements.
(3)The desired environmental outcomes are written from the perspective of reporting on Peak Downs Shire in 2012. This is the 7 year planning horizon adopted in the planning scheme.
(4)The desired environmental outcomes for Peak Downs Shire are as follows:
Social elements
(a)The Shire’s residential communities are preserved in character, well serviced, enjoy high levels of safety and amenity, able to accommodate growth and offer a range of housing options to meet the diverse needs of all members of the community.
(b)Capella is the main business and economic centre, providing higher order services and a range of community and civic functions;
(c)Tieri is a community that has access to facilities and services that meet local needs.
(d)The park and recreation opportunities for residents and visitors of the Shire have been enhanced and expanded.
(e)Rural residential areas are located and consolidated to provide suitably serviced, alternative rural living options that are close to Capella.
(f)The risks to persons and property due to landslip are minimised.
Environmental elements
…
(j)Development is located and managed where ever possible to ensure the long term protection and conservation of the significant cultural heritage values of the Shire.
…
(n)The spread or increase of weeds and pest animals is prevented through the appropriate conditioning of development to protect natural resources from degradation consistent with the objectives of the Shire’s Pest Management Plan.
Economic Elements
(o)The long term viability of agricultural industries within the Shire is enhanced through measures to protect productive agricultural land from excessive fragmentation and encroachment of incompatible uses.
(p)Natural resources and areas of economic value, such as Good Quality Agricultural Land, extractive materials, mineral resources and native forests are protected and utilised sustainably.”
The use of “minimised” in (f) immediately above will be noted, likewise the arguably stronger term “prevented” in (n). Apropos “predominantly” in (i) and “minimised” in (v) in (f) “The overall outcomes sought the Town – Highway Precinct” in 4.3.2, the Council and Cuposa argue that the former does not mean exclusively, and that the latter does not mean excluded.
The Town – Highway Precinct is comprised of the western part of the town block bounded by the highway in the west, Gordon Street in the north, Burn Street in the east and Johnson Road in the south, with Mr Patrick’s property excised. There are six separate parcels, all with a highway frontage. Immediately to the south is the O’Brien land in two parcels, the larger a “hatchet” block the bulk of which sits behind the smaller, their highway frontages and areas being 20m and 92m respectively and 10,662m2 and 5,578m2 respectively. Together, they form a site much bigger than Cuposa’s, like the next two blocks in the precinct, moving south, each of which has a frontage of 112m and an area of 16,240m2. The remaining parcel at the corner of Johnson Road has a highway frontage of 83.6m, marginally longer than the subject, and an area of 12,122m2, marginally smaller than the subject.
The proposed uses are not among those for which land in the precinct is intended to be “predominantly” used. (One must wonder whether any business person will ever seek to establish one of the favoured uses, with the large centre of Emerald located only 50km to the south and Clermont, which is twice or three times the size of Capella, located only a similar distance to the north, in both cases, along good roads.) The proposed uses are expressly included in the list of those to be “minimised”. Mr Skoien’s argument for the appellant, which can call on support from dictionary definitions, is that “minimised” means reduced to the smallest amount possible which, in the present context, would mean that the proposed (new) uses should not be admitted at all. By section 2.1.23(2) of IPA, a local planning instrument may not prohibit development on, or the use of, premises. It is a matter of speculation whether the draft of the Peak Downs Shire Planning Scheme sought to get as near as possible to a prohibition.
In respect of “predominantly”, the expression used in (g)(ii) and (h)(ii) is “predominantly, but not exclusively” which may, in context, be explicable as a recognition of prevailing land tenures in the town. The pairing of “predominantly” and “minimised” is common in 4.3.2(2), missing only in (a), where (v) says “other uses…are not generally located within the Precinct” and in (j). In (c) to (i) inclusive, “minimised” relates to uses, rather than to unwelcome or adverse impacts.
Whereas “minimised” appears on its own in (b), (c) and (d), in following provisions it is followed by the words, “as they are generally not compatible with the uses in the Precinct”, the reference to uses qualified by “other” in (e) in place of “the”; this last may well represent an unintended difference; it is difficult to attach any particular significance to it. Mr Skoien argues that the words following “minimised” are there as an explanation, and not (as the other parties effectively contended) to provided a kind of test.
In other places, the planning scheme uses the term “discourages” in respect of road design and lighting which are expected to discourage speeding and “illegal acts”. (See Development Design Code S16 at p 150 and S21 at p 154).
The Council and Cuposa derive some comfort from the structure of paragraphs 6(a) and (b) where (a)(iv) and (b)(ix) expressly contemplate uses that are not in the desired use class(es) but can be accommodated in a way “consistent with residential amenity” or “where potential impacts on residential amenity…are minimised”. A standard or test for such uses is stated. Those relaxations are followed by a provision in (a)(v) that other uses “are not generally located” and in (b)(x) that “commercial and industrial uses (except for those mentioned above) are not located on land within the Precinct.” These provisions, it was submitted, by use of “not located” are more prohibitory than “minimised”. Further, it is submitted that the elaboration of provisions about minimising particular uses is intended (and effective) to create opportunities for particular proposals to be let into a precinct although not among the uses earmarked as the preferred ones to “predominate”.
On this basis, it is open to a developer proponent to have an opportunity to show that, whatever may “generally” be the situation, the particular proposal is compatible with the uses existing or desired in the precinct.
“Reverse amenity” concerns might be held regarding the neighbouring business of O’Brien Trading Pty Ltd, a stockfeed manufacturer and grain storage and fertiliser agent. Those activities might be problematic for the amenity of Cuposa’s development or, indeed, for the desired (to this time and for the foreseeable future non-existent) “vehicle orientated businesses which retail bulky durable goods (and) retail show rooms and combined retail and warehouse uses”. The stockfeed, grain storage and fertiliser business has relocated to a new site at an industrial estate developed north of the town. Mr O’Brien says he proposes to reconfigure the company’s land within the highway precinct (estimated as the front third or quarter) into two lots to provide for future commercial uses fronting the highway and that, as to the balance to the east, an application has been made to subdivide it into 24 residential allotments. He has no particular use in mind for the commercial land at the front. He welcomes the Cuposa development. No persuasive case has been made that incompatibility of the proposed motel/food premises and hotel uses with the desired uses need be feared. There were suggestions that large agricultural machinery sales, car showrooms and the like might locate in the precinct and pose or face problems of incompatibility. It is difficult to see why that should be so; there ought to be little conflict on the basis of the vehicle orientated businesses, etc. being likely to trade from 9am to 5pm, when there would be minimal activity on Cuposa’s site. My impression is that “vehicle orientated” refers more to customers and stock getting to the businesses in vehicles (rather than by other means) rather than to businesses dealing in vehicles (the “bulky durable goods” being household appliances and the like). It does not matter to the outcome whether my view is correct or not.
The other established use in the town-highway precinct is a transport business (Darby Transport) located on the large parcel immediately south of the O’Brien operation. Regardless of whether or not it is the sort of use the planning scheme may desire, it is sufficiently remote from the site to make likely mutual impacts of no concern.
It follows from the foregoing that there is no conflict of the proposal with the planning scheme. Indeed, as one moves lower down the planning scheme hierarchy, one finds much to support the proposal. The Accommodation Buildings Code regulates different types of accommodation buildings, including motels and the accommodation component of hotels, whatever the level of assessment, regulating “scale, siting, density and design”. The code consists of its purpose:
“The Purpose of the Accommodation Buildings Code
The purpose of the Accommodation Buildings Code is to achieve the following overall outcomes:
1.Are located where they best serve the accommodation needs of users, particularly visitors to the Shire;
2.Are located and designed to be compatible with the locality in which they are situated and do not adversely impact upon surrounding residential premises;
3.Provide a reasonable level of privacy and amenity to users; and
4.Contribute positively to the streetscape and town character.”
(outcomes expected of accommodation buildings) and the Specific Outcomes, Probable Solutions and Acceptable Solutions for Accommodation Buildings development in Table 6.2.1. Probable Solutions relate to code and impact assessable development, acceptable solutions to self-assessable development. The table commences with:
“
Site and Location S1
Accommodation Buildings are located:
1. in those parts of the Shire that are normally frequented by visitors and tourists, or are adjacent to roads normally travelled by tourists to or through the Shire; and
2. on land that is suitable for the use and of an area sufficient area to accommodate the requirements of this Code, whilst having regard to the following:
(a) The existing development on the site;
(b) The existing and proposed amenity of the Zone/Precinct; and
(c) The topography of the site.
P1.1
Accommodation Buildings are located:
1. in the Town – Tourism Precinct,
Town – Commercial Precinct; or
Town – Highway Precinct; or
2. not more than 500 m from the Town – Recreation Precinct.
P1.2
Accommodation Buildings are located on lots with a:
1. minimum lot size of 1000m2; and
2. minimum primary road frontage of 20m.
P1.3
Accommodation Buildings have a maximum site cover as follows:
1. 50% for all parts of a building or buildings one storey in height; and
2. 40% for all parts of a buildings two storeys in height; and
3. 35% for all parts of a building or buildings more than 2 storeys in height.
“
The proposal is compliant with everything relevant in both columns. Speaking generally, the same applies to Specific Outcomes and Probable Solutions for development density, landscaped areas, car parking and access. The table has some parts specific to motels:
“
Motels Site characteristics S12
Motel development is located on parcels of land of an area that is suitable for the siting of buildings, landscaped open space to screen living and recreation areas, and vehicle manoeuvring and parking, having regard to the following:
1. The existing development in the area;
2. The existing and proposed amenity of the area;
3. The topography of the site; and
4. The number of roads to which the site has frontage.
P12.1
Motels have:1. A minimum site area of 2000 m2;
2. A landscaped area comprising at least 30% of the site; and
3. Sufficient land available for the provision of necessary bus manoeuvring and parking where there are more than 30 units in accord with the Development Standards Code.
Amenity S13
Buildings and facilities are located and designed so as to minimise potential noise impacts beyond the property boundaries, particularly where adjoining residential premises.
Air conditioning units and pool filters are located, enclosed, of a type, or otherwise installed such that they are least likely to cause an environmental nuisance to any adjoining premises.
P13.11
Vehicular access points are located at least 3 metres from any boundary shared with residential premises or land in the Town – Residential Precinct.
P13.2
Restaurants associated with Motels are provided only where the premises are sited within or adjoining the Town – Tourism Precinct, Town – Commercial Precinct or the Town – Highway Precinct.
“
P13.2 is of particular interest as a confirmation that motel and restaurant uses are acceptable in (even adjoining) the Town-Highway Precinct.
The primacy of the 4.3.2 provisions must be acknowledged, but, reading the planning scheme as a whole, it would be difficult to contend that restaurants and motels are intended to be excluded from the Town-Highway Precinct. It is true that there is nothing here to let in hotels in the highway precinct, whereas they are a desired use in the commercial precinct and in the tourism precinct. The fact is, notwithstanding Professor Brannock’s best efforts to identify potential sites for the proposal in the precincts where a hotel is favoured, there is no prospect of a large enough site being located or put together there. If the proposal goes ahead in the highway precinct, it will occupy 17.2% of the land in the precinct. See Mr Ryter’s evidence on Day 3 (p 20) and the cross-examination at p 31 by Mr Skoien. That leaves more than 82% available for the desired uses. I think it would be a strained and artificial interpretation of the planning scheme to find that the proposal was in conflict in the circumstances.
That conclusion is enough to dispose of the appeal, but if it be thought doubtful on the basis that there is a conflict by inclusion of one or more of the separate uses, there are sufficient grounds to justify the court’s reaching the same favourable decision on the application as the Council reached. See s 3.5.14(2) of IPA. Cuposa and the Council presented a case that a planning need existed for the proposed development.
Professor Brannock, who gave evidence for the appellant, was taken to task for seeking (allegedly impermissibly) to assert conflict of the proposal with the planning scheme in respects not included in the identified issues in the appeal. These related to Specific Outcomes S6, S7 and S9 in the Accommodation Buildings Code, S1 in the Commercial Code and S2 in the Development Standards Code. Assuming that these matters can be raised, they were concededly minor. In any event, as to the last mentioned, relating to amenity (in particular noise) aspects of the parking arrangements, I accept the evidence of Mr King that there are no unacceptable impacts on adjoining or nearby residences to be anticipated. If there is noise generated by rowdy patrons, it would be within the site rather than on the street. As to the other matters, I accept the submissions of Mr Hughes SC and Mr Williamson to the effect that, assuming there may be any issues in relation to specific outcomes, these are satisfactorily met by the proposal’s satisfying the related probable/acceptable solutions.
There is no requirement to establish need unless there is conflict with the planning scheme needing to be overcome.
This planning scheme does not require demonstration of need by an applicant, as planning schemes from time to time do, for example Brisbane City Plan 2000 for out-of-centre development in s 4.4.2.6, considered in Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382 at [22] ff; “overriding community need” had to be demonstrated. A requirement of overriding need in terms of benefit to the community is established by State Planning Policy 1/92, considered in J R & O M Breadsell & R O Shaw v Bundaberg City Council [2005] QPELR 209. Historically, need has been made a factor by legislation, as for rezoning applications, by s 4.4(3)(b) of the Local Government (Planning & Environment Act) 1990. As Judge Quirk said in Hughes v Emerald Shire Council [1996] QPELR 110, 112:
“In the gazetted Strategic Plan Map the subject land is shown as being contained in a “Rural Town”. It is within the indicated boundary of the proposed Gemfields D.C.P. The Rural Towns’ objective of the Strategic Plan is stated as being:
‘To recognise the role of rural townships as local service centres for the surrounding rural areas and tourists by facilitating improvements to services and promoting growth at a rate commensurate with genuine demand and Council’s ability to provide infrastructure services.’
The Appellants who are interested in the Anakie Hotel and in a licensed roadside bottleshop located midway between Rubyvale and Sapphire are understandably concerned that the proposal might have an adverse impact on the profitability of their interests. The major issue which was raised in opposition to the proposal was that there was not a demonstrated need for a hotel at Rubyvale. It is generally accepted that where an application for town planning consent is being considered it is not essential that “need” (in a town planning sense) be demonstrated as it must be where an amendment to a town planning scheme is being sought.
The matter of need may, in some circumstances, work in favour of a particular application (Theodorou v Redland Shire Council (1987) Q.P.L.R. 11). Usually however, the fact that a particular proposal might give rise to commercial difficulties for competitors is not relevant unless it is “accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community” (Kentucky Fried Chicken Pty Ltd v Gantidis (1978) 140 C.L.R. 675 at 687).”
Competitor Objectors/Submitters and Appellants
The experience of the court is that commercial competitors with an interest in defeating, delaying or limiting particular development proposals are often active in proceedings before it. It is unsurprising that commercial competitors are likely to have the incentive, the will and the means to mount a case in opposition to the proposed new development. However, they are limited to arguing planning issues, among which may be need. The commercial protagonists here have made a point of ensuring the court is aware of the “history” of the other. Mr Carne runs the Capella Hotel Motel with his wife; they previously owned the Rubyvale Hotel sought to be (and in the result) re-established after the surrender of a licence in the 1960s and subsequent destruction of the premises by fire; he was asked to recall an association with Mr Hughes SC (no relation) in Hughes v Emerald Shire Council [1966] QPELR 110, when they saw off an appeal by Mrs Hughes’ Anakie Hotel (located some 20 kilometres away). Mr Webb, the principal of Cuposa Pty Ltd, was reminded that it unsuccessfully opposed a development proposal in Beachmere incorporating a tavern, similar to a proposal of its own for the area, on the basis that there was room for one such, but not for both, and that its proposal was superior. See Comkey Pty Ltd v Caboolture Shire Council [2006] QPELR 399. The background is interesting, but, as Mr Skoien says, the parties’ commercial rivalry is irrelevant to the merits of the development application the court has to consider.
It is convenient to reproduce the last half of the joint expert report of the planning need experts engaged by the parties, Mr Kleineberg for the appellant, Mr Gannon (also called as a planner) for the Council and Mr Norling for the co-respondent:
“Licensed Facilities
30. Cappella provides the following licensed facilities:
(a)Capella Hotel Motel has the only General Licence in Capella. It provides a public bar and a lounge/restaurant. The hotel is undergoing an $800,000 modernisation program and a drive-in bottle department is nearing completion. Five gaming machines are provided in the public bar and lounge/restaurant.
(b)Capella Bowls Club holds a Club Licence. It comprises an older-style bar and a more modern small restaurant (which provides only buffet meals).
(c)Capella Golf Club holds a Club Licence, but has a restricted set of opening hours.
(d)Capella Tennis Club holds a Club Licence. Inspections failed to reveal a clubhouse.
(e)Capella Cultural Centre has a Special Facility Licence, providing considerable flexibility as to how to serve its patrons. It was not open during our inspections. It operates about 5-6 times per month with an average attendance of about 100 people. If the auditorium and courtyard are functioning, then up to 500-600 people might attend. Some functions are for 30-40 people only. The experts note that the full potential of this license is underutilised.
31.There are presently about 1,363 General Licenses in Queensland, which has a population of 4.182m. Therefore, the average population per General Licence is around 3,100 persons. However, this overall average masks the wide variations that exist across the State. Some General Licences are located in extremely small towns or service a very sparse population (less than 500 persons). Kleineberg notes that General Licensed premises within small towns are either very old, “written off” depreciated hotel buildings or very small newer developments not bigger than a larger dwelling at capital expenditure well below the $1m mark. Within a suburban area (providing little employment), it is usual for General Licenses to serve populations of between 5,000 and 7,000 persons.
32.It is relevant to note that there are a number of examples where very small towns are serviced by more than one General Licence. Examples include:
(a)Alpha has two General Licences, the Alpha Hotel & Motel and the Criterion Hotel, yet has a town population of only 629 persons and a rural population of 341 persons.
(b)Cooktown has three General Licences, the Cooktown Hotel, the Sovereign Hotel and the West Coast Hotel, and has a town population of 1,417 persons and a rural population of 1,137 persons.
(c)Gayndah provides three General Licences, the Burnett Hotel, the Golden Orange Hotel Motel and the Grand Hotel Gayndah, and has a town population of 2,056 persons and a rural population of 902 persons.
(d)Miles has three General Licences, the Hotel Australia Miles, the Queensland Hotel and the Windsor Hotel, and has a town population of 1,371 persons and a rural population of 1,495 persons.
(e)Mitchell has five General Licences, the Court House Hotel, the Hotel Mitchell, the Hotel Richards, The Blue Pub and the Western Hotel, yet has a population of only 1,262 persons and serves a rural population of 558 persons.
(f)Monto provides two General Licences, the Albert Hotel Monto, the Grand Hotel and the Waratah Hotel, and has a town population of 1,395 and a rural population of 1,123 persons.
(g)Springsure, which is about 60km south of Emerald, has two General Licences serving a town population of 868 persons and a rural population of 590 persons.
33.Based upon a quantitative assessment of need only, there is insufficient population to support a second General License to Capella at the present time. Norling and Gannon state that other qualitative factors are relevant in the assessment of planning need for a General Licence whereas Kleineberg disagrees that there are any qualitative factors or quantitative factors that even remotely indicate the need for a second General Licence in Capella.
Planning Need
34.Norling and Gannon agree that there is a strong level of planning need for the proposed motel accommodation units for the following reasons:
(a)The current short-term accommodation facilities in Capella are unable to meet current and projected demand.
(b)The proposal would improve the range and choice of short-term accommodation facilities with Capella.
(c)The proposal would extend Capella’s role in servicing the needs of the surrounding mining industry.
(d)The subject site is well located on the Gregory Highway to provide for the short-term accommodation needs in this area.
35.Kleineberg strongly disagrees with 35(a) and (c).
36.Norling and Gannon also agree that the proposed motel accommodation units should be serviced by a licensed facility so that it can provide meals and beverages for its guests. Whilst a Residential Licence is often used by motels for this purpose, a General Licence allows for a greater range of services and typically operates over a broader range of opening hours and is also a popular licence accompanying motel accommodation (usually referred to as a hotel/motel, eg the Capella Hotel Motel).
37.Kleineberg agrees, if it eventuates (the project), it may have a Residential Licence or On Premises Licence only. A General Licence only allows for a greater range of services to the general public. Opening hours are the same per each licence under the Liquor Act. Meals can be provided without a Liquor Licence.
38.Norling and Gannon agree that, whilst the current and projected future population is not sufficient to support a second General Licence in Capella on a quantitative assessment basis only, there is a modest level of planning need for the General Licence element of the application for the following reasons:
(a)The proposal would provide additional choice within a town dominated by a single General Licence.
(b)The proposal would provide a more competitive environment in the town, which is likely to lead to improved levels of service, facilities and prices to the community.
(c)The General Licence element of the proposal would provide an enhanced level of service to guests of the motel component of the proposal.
(d)The provision of a second General Licence to a town of this size is not without precedent, as noted by the examples of multiple General Licences provided in small towns provided in paragraph 25.
39.Kleineberg disagrees with the following and states:
(a)There is no level of planning need for an additional General Licence in Capella.
(b)The town has ample licensed premises, the Special Facilities Licence in the Cultural Centre is grossly underutilised.
(c)The advent of a second General Licence will, very likely, cause a reduction in the quality of services which will eventually lead to one premises suffering blight, especially if the Special Facilities Licence is trading within its potential.
(d)A Residential Licence or On Premises (Meals) Licence would provide exactly the level of service to guests and their visitors of the motel component of the Cuposa Tavern as a general license would.
(e)The provision of a new, additional General Licence to a town of Capella’s size is very rare indeed.
40.Norling and Gannon also note that the liquor licence element of the application requires a decision by the Liquor Licensing Division of Queensland Treasury. That decision involves the assessment of public need and social impact and it is understood that assessment of the development proposal should not usurp the proper role of that Division to make its assessment. Norling and Gannon agree that the allocation of a liquor licence would be appropriately decided pursuant to the Liquor Licence Act 1990; but acknowledge that this is a legal issue best left to legal experts.
41.Kleineberg objects to the simplification of paragraph 41 and clarifies the following:
(a)The Liquor Licensing Division is not basing a decision to approve, or otherwise, an application for a liquor licence on an assessment of “Public Need”. Research is required and a report must be submitted to prove “Public Interest.” The Liquor Act was changed, in that regard, in approximately 2002-2003. Since this change to the Liquor Act and the introduction of the National Competition Policy, the Division has become considerably more lenient to approve applications for general licences which have Town Planning approval.
(b)In fact, I believe that the planning regime of Local Governments indeed should usurp the role the Division since the changes to the Act (Section 116) and show individual case by case responsibility in that regard.
42.Kleineberg states that there is no planning need for the motel accommodation units element for the following reasons:
(a)At the time of the Census on Tuesday, 08 August 2006, the Census of Population & Housing, Table B01, page 2, the information provided under “Count of Persons in occupied private dwellings (a)”, (a) = based on place of enumeration and meaning “present on Census night but may not live there” shows a total of 731.
(b)Below that there is “Count of persons in other dwellings (a) (g)”, (a) is as above and (g) “includes non-private dwellings” and “migratory, off shore and shipping C.D.’s, shows a total of 81. this figure relates mainly to motel and “donga” occupancy.
(c)I conclude, based on the above data, that on a normal working day (a Tuesday) on the 08 August 2006, the total occupancy of all motel units and “dongas” existing in Capella (I estimate approximately 200) only 81 were occupied.
(d)That leads me to the conclusion that there is also no planning need for the proposed motel accommodation units, especially taking into consideration that more motels may be planned for Capella.
43.Kleineberg states that there is also no planning need for the General Licence element for the following reasons:
(a)The catchment area population is too small for both premises to operate.
(b)In the advent of two General Licenses operating in the town, both premises would have to economize their services before one would suffer blight, causing a lowering of service standards.
(c)The Capella Hotel Motel is located and redesigned in accordance with the needs and expectations of the catchment population.
(d)The advent of the proposed development would trigger a contest for survival between the two premises to the detriment of the catchment area population.
(e)The granting of a General Licence would be inappropriate for the Cuposa proposal in this case due to the lack of need for such a licence on account of insufficient population numbers to generate a minimum of need to sustain both licences. I would find it appropriate, if the Cuposa proposal goes ahead, the subject building is being scaled down and operated under a Residential or “On Premises” Licence (Restaurant Licence) with a bar set-up for diners and alcohol service to the motel units by either delivery or bar fridge.
(f)There is no need for a second General Licence until the population within the catchment ara approaches 8,000 to 10,000 residents.
Economic Impact
44.Norling considers that the likely impact of the motel component of the proposal would not be significant for any single property due to:
(a)There being four existing and one approved establishments to absorb the impact, as well as other short-term accommodation establishments in the region.
(b)There being strong growth in the demand for short-term accommodation due to the strong growth of the surrounding mining sector and the general move to non-resident workforces by that sector.
(c)New competition is healthy in this sector, as it promotes refurbishment and improvements to the existing stocks.
45.Norling considers that the General Licence element of the proposal would not significantly affect the operation of Capella’s licensed facilities, with the exception of the Capella Hotel Motel, due to these operations serving specific markets at limited operating hours. A new restaurant would be a welcomed facility in Capella which has limited public eating venues. The General Licence element of the proposal is likely to cause a significant adverse impact upon trading levels at the Capella Hotel Motel. Norling has been provided with the financial reports of the Appellant for the years ended 30th June 2005 to 2006 and the trial balance for the year ended 30th June 2007. These reports show strong trading results characterised by a 47% increase in total sales from 2005 to 2007, a 58% increase in total gross profit for the same period and significant positive levels of annual operating profit. Consequently, it is Norling’s opinion that the Capella Hotel Motel is well positioned to absorb impact occasioned by the proposed facility. It is also Norling’s view that, if there were to be any diminution in services offered at the Capella Hotel Motel occasioned by the proposed development, that loss is likely to be more than made good by the new facility.
46.Kleineberg states that:
(a)the Owner if the Capella Hotel Motel, CIDAQMERE Pty Ltd (Directors Mr and Mrs Carne, who are also directors of Carne Investments Pty Ltd, the Licensee of the Capella Hotel Motel), has expended the following amounts for capital expenditure and refurbishment expenditure and on the Hotel since late 2004:
TABLE 1: Expenditure on Capella Hotel Motel
Date
Approximate Expenditure ($)
Renovation and re-equipment of hotel kitchen
Oct-Nov 2004
200,000
Purchase of adjacent shopping arcade
May 2005
100,000
Completion of conversion of arcade into motel units
October 2005
500,000
Completion of managers’ quarters refurbishment
November 2005
15,000
Refurbishment of the 15 bedrooms on the first floor
August 2006
120,000
Structural work in connection with the replacement of the bunk houses (the bunk houses are leased)
December 2006
250,000
Refurbishment of existing 8 motel units
March 2007
120,000
Refurbishment of male and female toilets
March 2007
60,000
Hotel alterations and additions
In progress
800,000
Total Expenditure
2,165,000
(b)Dissecting the accommodation income from the overall 2005/2006 (sales) using a realistic estimate by applying a 60% occupancy rate for the accommodation provisions at an average of $90 per night the income for that financial year is approximately $985,500 which represents a proportion of 32.77% of overall sales. The overall sales achieved quoted at $3,007,340 are therefore reduced by $985,500, the balance of which is $2,021,840, the amount of sales directly related to the operation of the Hotel section of the complex. The cost of sales proportion for the Hotel section is considerably higher than that the Motel/Accommodation section provided.
(c)Kleinberg is therefore of the opinion that the operation relating to the Hotel trading areas most relevant to the General License is performing only within the trading potential of the population catchment area assessed.
(d)The results are rendered considerably worse if the expenditure as set out above has to be serviced as debts attracting interest payments to lending institutions.
(e)Therefore, Kleineberg does not agree that the Capella Hotel Motel is well positioned to absorb any negative impact inflicted by the Cuposa proposal. Kleineberg maintains his opinion that there is no planning need for the Cuposa proposal as the Capella Hotel Motel is responsibly maintaining, upgrading and adding good quality amenities in excess of what I believe might be commensurate with the expectations of the catchment area population.
47.Kleineberg has requested financial trading information from the Capella Cultural Centre. This information is not yet available and he reserves the right to make additional comments once received.
Conclusion
48.Norling and Gannon conclude that there is a strong planning need for the motel element of the proposal and that there is a modest level of planning need for the General Licence element of the proposal.
49.Norling further concludes that the General Licence element of the proposal is likely to cause an adverse impact upon the trading levels of the existing Capella Hotel Motel. It is Norling’s opinion that the Capella Hotel Motel is well positioned to absorb a negative impact occasioned by the proposed facility. It is also more likely that, if there were to be any diminution in services offered at the Capella Hotel Motel occasioned by the proposed development, that loss is likely to be more than made good by the new facility.
50.Kleineberg concludes that there is no need for either element of the proposal and that its approval would create an unacceptable impact upon the Capella Hotel Motel and other accommodation providers to the detriment of the relevant population as the quality of amenities and services will suffer to such a severe degree that commensurate services to the public may not be maintained.”
It might be noted that the appellants solicited views about the proposal in the form of a “Petition for Proposed Tavern”. Two sheets of the petition were made available on disclosure featuring eight ticks in the “against” column, 62 or thereabouts in the “for” column. This may not have been the response the proponents of the petition anticipated. There is a certain amount of levity in a lot of the comments, such as “Hope we get the concrete!” Two others favoured the prospect of a “pub-crawl” and “more barmaids”. Other comments reflect the arguments in the case about the desirability of competition, greater variety, “more food options”, insufficient population in the town, and the like. Only 3 of 80 respondents commented that the town was too small. In the result, the “petition” found at pp 194-195 of the “Appeal Book” is not really of assistance to the court.
The proposed restaurant (food premises) has attracted positive support from a number of local residents dissatisfied with the standard of what would otherwise be available in Capella. A particular complaint concerns the standard of behaviour and dress attributed to some of the clientele, especially those who appear to have come from heavy work still in work attire. A more genteel ambience is craved by those who gave (unchallenged) statements, to enhance their own dining experiences and/or encourage them to bring children. This anecdotal material serves to establish a need for the more up-market restaurant facility the co-respondent says it will establish. Mr Webb suggests there will be dress codes enforced, and the like. One might well harbour some misgivings about the long term effectiveness of such efforts. The appellant’s case is that the refurbishment of the Capella Hotel Motel will bring it more up-market. Nevertheless, the evidence of the witnesses Carroll, Sutton and Becker, while personal to them, is persuasive that an additional restaurant would significantly add to the facilities offered in Capella. There was no suggestion that competition in this sector of the market would be destructive.
The destructive competition aspect is more concerning in respect of the general licence and accommodation components, and the appellants, with Mr Kleineberg’s support, press it. He predicts the failure of the existing hotel motel or of the new one. The consequences of a commercial failure can be inconvenient, cruel to proprietors, staff, existing or future consumers, even the community, whether at national level or within a small town. An example on the larger stage may be found in the collapse of Ansett Airlines. Events surrounding that illustrate the price (at least short term) of a competitive market system. We are in an era when around the globe governments are suddenly spending billions to ensure private enterprises are able to survive in the free market. The idea is that particular failures should be prevented or cushioned. The causes of failure may well be more complex than simple competition in the market, being contributed to by competitors’ exposure to debt, and the like, which the evidence shows to be part of the picture in this appeal, too. The Kentucky Fried Chicken v Gantidis principle establishes for this court that what is to be avoided is not the failure of a particular player in a market, but rather an outcome which sees a net reduction in the facilities which the community will end up with. Although one can speculate that there may eventuate two struggling businesses, each offering sub-standard facilities and services, rather than a single victor left on the field, there is no reason to predict that outcome in Capella. Mr Kleineberg’s understandable assertion of a certain injustice in the appellant’s being rewarded for doing the right thing by Capella in upgrading at considerable cost (by funding needing to be serviced) by suddenly facing unexpected and possibly crushing competition is not entitled to weight in planning terms. Of course it is true that the capital investment put in jeopardy has been increased. I expressed a view during the hearing that “blight” from failure of ventures seemed less concerning in the case of vacant motel rooms than in the case of vacant shops, much more in the public gaze, conveying a depressing, grim message of wasted expenditure, even of economic decline.
Ultimately, Mr Kleineberg’s approach is too cautious, leading to his underestimating the size of the market for a general licence and for motel accommodation in Capella. He uses census figures to which are applied national consumption rates for alcohol. The rates for Capella may, of course, be higher, and almost certainly are. Further, the market is not limited to the permanent population of the town and district, but includes relatively high numbers of mine workers residing in Capella as required by their employment rosters, not to mention others brought to the area in connection with the booming coal mining industry. Mr Kleineberg correctly says that no-one knows how long the good times will go on; there have been fluctuations historically. If there are to be problems, they will not be that the coal runs out, but rather the loss of markets, new regimes to do with limiting or taxing use of carbon and the like. My view, consistent with that which I understand Mr Norling and Mr Gannon to advance, is that, while acknowledging uncertainty in the longer (or even the middle) term, the court should assume continuation of the coal industry at about the present levels. What may happen is expansion.
On the basis of Fielder Gillespie Ltd [1984] 2 Qd R 339, the appellants made available the trading figures for the Capella Hotel Motel. Confidentiality must be respected, and the contents will not be revealed in these reasons. The actual trading figures of the business are multiples of the notional ones calculated by Mr Kleineberg; they show that while the new competition would affect profitability, it would not affect viability. (It is one of the features of the local economy at present, the evidence suggests, that things are going so well that staff are hard to find for accommodation businesses; Mr Carne, Mr Taylor and Mr Carmody all depose to serious concerns about retaining staff in their businesses; the culprit may be the allure of the mines.)
The Fielder Gillespie material which is helpfully summarised in exhibit 15, in my view dispels any fears that Capella would potentially be worse off by way of facilities and services, should Cuposa’s proposal go ahead. That same comment applies to the motel operation as well as to the general licence one.
While projections of the number of travellers requiring accommodation in Capella may not be more than a few rooms per night, the reality is that, thanks to the mines, current demand for accommodation appears to exceed what is available on the busy nights of the week. Mr Speedy’s yet to be constructed Motel Capella is on the market (exhibit 26), a feature being “55% occupancy guaranteed from day one” thanks to an agreement with a mining company; he says he requires a 75% occupancy rate in order to get a return. Mr Carmody’s Universal Accommodation Centre (with 145 demountable rooms) had an arrangement with a mining company to lease 100% of the accommodation, which ran until December 2007. He says he is now “at the mercy of the market”, but “currently operating at average occupancy of 65-70%” compared with 25% to 100% (actual) under the old lease arrangement. He says “the miners’ union do not like miners travelling more than 45 minutes for their accommodation”; the miners are doing it: “they have no choice but to use Capella”. Mr Taylor of Capella Motel has 100% occupancy currently and for the rest of the year (average monthly occupancy 70%). He is concerned that, if new miners’ accommodation is established Dysart, Middlemount or Tieri, he will lose his present high occupancy. He fears competition for staff from the “new” motels and expansion of the Bottlebrush Motel will harm him. Taking the approach that things in the coal industry will continue as they are, these deponents in the appellants’ case are, it seems to me, understandably enough, mounting nothing more than an argument against competition. What they say about their actual experience really tends to confirm the views of Messrs Norling and Gannon as to the need for additional motel accommodation in Capella. I accept the views of those economic experts, likewise their opinions regarding the modest need for the general licence element of Cuposa’s proposals. The evidence (perhaps Mr Gannon’s in particular) would suggest that, notwithstanding its relative remoteness from most of the mines, Capella may have the important advantage as a supplier of accommodation over the other towns of having developed over its history in the traditional incremental way rather than being established fully-fledged as a “company town.” The current judgment is said to be that a town like Capella works better as a centre for miners to stay in.
If there be a requirement upon the co-respondent to overcome conflict with the planning scheme because the components of the proposal offend the injunction that those uses be “minimised”, then the established need for an increase for those uses in Capella, given that there is no land suitably designated to accommodate them, provides sufficient grounds under s 3.5.14(2)(b) of the IPA.
The appeal will be dismissed.
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