Harold Samson -v- Brisbane City Council

[1999] QPEC 34

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT BRISBANE

QUEENSLAND

[Harold Samson -v- Brisbane City Council]

[Before QUIRK DCJ]

Appeal No 5397 of 1998

BETWEEN:

HAROLD SAMSON

Appellant

AND:

BRISBANE CITY COUNCIL

Respondent

JUDGMENT

Judgment delivered:              

Catchwords:  

Counsel:    ~

Solicitors:   ~

Hearing Date(s):                   ~

IN THE PLANNING AND ENVIRONMENT COURT
HELD AT BRISBANE
QUEENSLAND
  Appeal No 5397 of 1998
BETWEEN:
  HAROLD SAMSON
  Appellant
AND:
  BRISBANE CITY COUNCIL
  Respondent
  REASONS FOR JUDGMENT -QUIRK D.C.J.
  Delivered the 26^th. day of August 1999

This appeal is against the respondent’s deemed refusal of an application for town planning approval of the modification and use of existing premises at Spring Hill as an hotel.  The application is governed by the Integrated Planning Act but as the current Town Plan was in force at the time of the commencement of that Act, it is to be regarded as a “transitional planning scheme” under Division 2 of Chapter 6 of the Act.  Accordingly s.6.1.30 of the Act requires that the application, being one which would have required an application for rezoning under previous legislation, must be decided under s.4.4(5) and (5A) of the repealed legislation.

Importantly, in the circumstances of this matter, s.4.4(5A) provides that the application be refused 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 site is on the north-eastern corner of St. Paul’s Terrace and Boundary Street.  It occupies 949m².  Existing improvements include a modern 2-3 storey building over a semi basement car park which was developed for mixed use with commercial uses at ground floor level and residential units in the upper levels.  As will be discussed in more detail, this area is subject to the Petrie Terrace and Spring Hill Development Control Plan.  More particularly it is included in Precinct LR3 in which the proposed use is a prohibited development.

The proposal was put forward as involving the use of premises as a hotel subject to a general liquor licence.  The enterprise was intended to have an “adult entertainment theme” and was to include facilities for the sale of “take away liquor”.  Full details of the proposal were given in evidence and it is unnecessary to go into this evidencee as no particular feature of the proposal was especially relevant to the determination of the appeal.

The issues in the appeal were:

1. The proposal’s conformity with the Development Control Plan;

2. Whether there were planning grounds that were sufficient to overcome any conflict with the Development Control Plan.  (This included a consideration of the proposal’s likely impact on the area’s amenity);

3. Whether there was a demonstrated need (in a planning sense) for the proposal.

   The Petrie Terrace and Spring Hill Development Control Plan is a very detailed instrument which identifies, as one of its principal objectives:

“To reverse the decline in population and attract people to live within walking distance of the central business district by improving the amenity and attractiveness of these areas and encouraging an upgrading of the housing”.

The plan explains the intended implementation of its objectives by the use of precinct areas.

“The precincts within the Development Plan replace zones as the basic areal unit, providing a more sensitive instrument for regulating land use and intensity of development.  The physical segregation of incompatible uses and the prevention of development at incompatible intensities is achieved by listing the particular types of development as either permitted, permissible or prohibited and the identification of building bulk requirements for each precinct (2.2.1).”

An intent for residential areas is explained as follows:

“Retention of most of the residential land for a variety of low rise developments some of which permit moderately high intensities concurs with the expressed wish of the majority of the surveyed population for low rise housing (2.3.1.)”

and

“The central low intensity residential areas north of Boundary Street will be buffered from the commercial areas to the east and south-east by a ring of less intensive terraced apartments and commercial premises designed to give the external appearance of residential buildings (2.3.2)”.

The precinct in which the subject land is found is LR3 the intent for which is given in the

Development Control Plan as follows:

“Precinct LR3 acts as a buffer between the detached house precincts to the north and the commercial precincts to the south.

...

In general therefore development for high intensity residential or non-residential purposes is not encouraged but the highest feasible intensities for walk up apartment buildings complying with design code B are considered acceptable.  Bearing in mind the desirability of providing an opportunity for people to live adjoining their place of work, and because the precinct is so close to commercial precincts, up to 50% of the gross floor area may be used for suitable non-residential purposes.”

This statement of intent is reflected in the table of development (4.2) where:

“Business premises occupying not more than 50% of the gross floor area allowable in accordance with design code B where in precinct LR3"

is specified as a permissible development.

The term “Business Premises” is defined in s.30 of the Town Plan but the definition excludes development for the purposes of a hotel.  Furthermore it is not disputed that the proposal is intended to involve the use of well in excess of 50% of the gross floor area of the premises.  Accordingly the proposed use would be “prohibited development - column 4" in the Table of Development. 

It was emphasised in the appellant’s case that the Integrated Planning Act has moved away from the concept of “prohibited development” to an approach whereby all proposals are entitled to be considered on their merits.  However I believe that the respondent is correct in arguing that, in dealing with this matter, it must be recognised that, at the very least, the proposed development as an hotel, should be seen to be a form of development not favoured by the Development Control Plan.  A reading of the plan as it relates to precinct LR3 explains why this is so.

In the course of the evidence attention was given to the capacity of the subject site developed as proposed to function as a buffer between detached house precincts to the north and commercial precincts to the south.  This, it will be remembered, is one of the specifically stated intents for development within the precinct.

It was pointed out that the site is located on a very busy intersection both Boundary Street and St Paul’s Terrace carrying heavy volumes of traffic.  However, as the majority of the allotments comprising LR3 have frontage to one or other of these roads, this could hardly be a matter which makes the precinct’s intent less important for this site.

The argument for the appellant went on to suggest that the site is found at an interface with commercial development and in a part of the precinct where residential amenity is at its lowest.  In his evidence, the appellant’s town planner Mr Ferros described the area around the intersection as having a “developing service role”.  It is true that the Alliance Hotel and adjoining retail facilities are found on the south-western corner.  The St Paul’s Tavern formerly stood on the south-eastern corner but is now defunct.  Attempts to revive this site commercially appear to be at an embryonic stage at best.  In any event both these sites are found within High Rise Commercial precincts.  Land at the north-western corner of the intersection was occupied by a shop but it has ceased to function as such and is to be part of a new residential development.

If one examines the Development Control Plan, the conclusion that Boundary Street is seen as a demarcation between commercial and non-commercial development is hard to escape and underlines the importance of the plan’s intention that future development in LR3 be capable of providing a buffer to detached house precincts to the north and north-west.

The area’s attributes and the proposal’s likely impact on its amenity was subject to close examination in the evidence.  Traffic and acoustic engineers were called by both sides.  For the purpose of deciding the case I am prepared to accept that there are no traffic engineering considerations that would warrant the proposal’s rejection.  I accept that relatively few patrons would arrive and depart in their own vehicle although those that do might place some pressure on the availability of kerbside parking in the area.

Similarly I accept that reasonable controls could be put in place to deal with noise events and undue annoyance from lighting.  However the proposal would remain a commercial enterprise and its success would depend largely on its ability to attract patronage.  To suppose that it would be able to be conducted with little outward indication of its presence would involve an unrealistic appreciation of the very nature of activities of this kind.  Having regard to intended hours of operation there would be such indications of activity at the site as would make it plain that a non-residential use was being conducted there.  I am not satisfied, on the evidence, that the proposal would be able to contribute appropriately as a buffer of the kind intended by Development Control Plan for precinct LR3.

The matter of need was canvassed in the appeal and received the careful attention of two experienced analysts, Mr Kleineberg and Mr Norling.  I was reminded that the issue of public need is to be addressed by the Chief Executive under the Liquor Act 1992 before any general liquor licence could issue, but by reason of s.4.4(3)(b) of the Local Government (Planning and Environment) Act “the need for the proposed planning scheme amendment” is a matter that should be considered in the appeal.

On any view of the evidence the Spring Hill area is well served with general liquor licences.  In the locality selected by Mr Kleineberg for his study, 11 premises with such licences were identified.  Even on his approach this could not be regarded as an underprovision.  Mr Norling was firmly of the opinion that, for reasons that he explained, there was no demonstrated need for a further general licence in the area. 

However a distinction was sought to be drawn between the proposal and existing general licences on the basis of the intended “adult entertainment theme” of the undertaking.  I am prepared to accept that such an undertaking might prove attractive to certain sections of the community.  The evidence indicates that other similar facilities exist and have proved popular.  What was lacking however  was a demonstration of community need for such a facility in precinct LR3.        

It is important in this case that, whatever attractions such undertakings might have for the community, it would be likely that patronage would be drawn from an area much wider than the immediate locality.  On the evidence given there was no basis shown for a finding that the community’s interests require a departure from the Petrie Terrace and Spring Hill Development Control Plan to allow the development to occur in a precinct where such development is not intended.

Also lacking was an indication of any necessary connection between a general liquor licence and the intended “adult entertainment theme”.  It would appear that such undertakings are associated with other types of licences but it is a matter best dealt with by the Licencing Authority and further discussion of the point is not necessary for the purposes of disposing of this appeal.

On the whole of the evidence I am satisfied that the proposal is in conflict with the clearly stated planning strategies of the Development Control Plan and I am not satisfied that good planning reasons have been shown to justify an approval of the application despite that conflict.  I am not satisfied that the onus of showing that the application which should be approved has been discharged and the appeal must accordingly be dismissed.