Hedley Constructions Pty Ltd v Caboolture Shire Council and the State of Queensland
[2005] QPEC 53
•15/07/2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | Hedley Constructions Pty Ltd v Caboolture Shire Council and the State of Queensland [2005] QPEC 053 |
| PARTIES: | HEDLEY CONSTRUCTIONS PTY LTD (ACN 062 299 334) |
| Appellant | |
| CABOOLUTRE SHIRE COUNCIL AND THE STATE OF QUEENSLAND | |
| Respondent | |
| FILE NO/S: | BD 598/05 |
| PROCEEDING: | Appeal |
| DELIVERED ON: | 15 July 2005 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 11 – 12 July 2005 |
| JUDGE: | Judge Brabazon QC |
| ORDER: | Appeal dismissed |
| CATCHWORDS: | LOCAL GOVERNMENT – PLANNING LAW – Amenity – whether proposal adversely impacts the residential amenity. |
| LOCAL GOVERNMENT – PLANNING LAW – Need – whether the transitional planning scheme makes no mention of ‘need’ – whether a relevant consideration for the Court. | |
| Local Government (Planning and Environment) Act 1990 ss4.4(3)(b); 4.4(5); 4.4(5A). | |
| Cases considered: | |
| William McEwans Pty Ltd v Brisbane City Council (1981) 2 APA 165 | |
| COUNSEL: | Mr M. Hinson SC (Appellant) Mr S. Ure (Respondent) |
| SOLICITORS: | Hopgood Ganim Lawyers as town agents for Williams Graham Carman Solicitors for the Appellant |
| King & Company Solicitors for the Respondent |
The Land
The land at 1 Facer Road Burpengary, near its intersection with Rowley Road, contains a single storey building. The signs indicate that the middle part of the building is occupied by the Woodpecker Tavern. To the left of the Tavern is a bottleshop. To its right is a separate room which contains 30 gaming machines. Inside, the large central room of the Tavern contains both a bar and dining area. It seems that patrons are able to drink at the bar, without ordering a meal.
The name “Woodpecker Tavern” may accurately describe what happens inside. It does not accurately describe the activities that may be lawfully carried on. That is because various decisions of Council, including the most recent of 29 January 2001, allow the building to be used for a licensed restaurant, to a maximum gross floor area of 400m2. That use is to be carried out in accordance with an amended plan of development, limited to a maximum gross floor area of 727m2. The layout plan shows two gaming machines in the bar area.
On 17 September 2003 TW Hedley Pty Ltd, the owner of the land, was granted a gaming machine license, with respect to these premises. Thirty gaming machines were approved.
It is not necessary for this Court to reach any conclusions about the lawfulness of the extent of drinking at the bar, and the presence of the 30 gaming machines. In any event, this appeal is about the wishes of Hedley Construction, to enlarge its operations on the site. The lawfulness or otherwise of existing operations will have no bearing on the outcome of the appeal.
The Application
Hedley Construction has applied to Council to enlarge the building and the operations within it. It requests a material change of use so that the enlarged premises may be used as a “hotel”, which is defined in the town plan. The building would be 498m2 larger. In substance, the proposed is for an enlargement and rearrangement of the existing building, so that it will contain a drive-through bottleshop, a tavern, a similar gaming area, an additional TAB, and an enlarged dining area.
On 25 January 2005 Council refused the application. Was it right to do so?
The Legal Framework
It is important to understand the legal framework which affects this appeal.
The onus is on the Appellant, Hedley Constructions, to show that the appeal should be allowed.
This is a fresh hearing, and the Court is obliged to decide the case on the evidence before it. The Court is not bound in any way to adopt the views of Council. It is the duty of the Court to reach an independent view of the merits of the application.
This Court is not a planning authority. It is obliged to apply the planning instruments adopted by Council.
A transitional planning scheme is still in force. It is likely that Council’s new planning scheme, presently in draft form, will be adopted on 24 October next. Because the transitional scheme is still in force, the Court is obliged to apply some of the principles set out in the repealed Local Government (Planning and Environment) Act 1990. Under the P&E Act, a rezoning application would have been required, in this case. The P&E Act’s requirements about a rezoning application have to be applied – see, in particular, sections 4.4(5) and 4.4(5A) of the repealed Act.
In this case, the transitional scheme makes no mention of “need”, but need for a proposed planning scheme amendment is something that the Court must take into account, to the extent that it is relevant (P&E Act 4.4(3)(b)).
Another requirement of the repealed Act is this – if the application conflicts with any relevant strategic plan or development control plan, and there are not sufficient planning grounds to justify approving the application, despite the conflict, then the application must be refused.
That instruction to the Court means that it must examine any conflict with the strategic plan or development control plan, see if there are planning grounds which could justify the application, and decide, on balance, if such planning grounds are sufficient to justify approval, despite the conflict.
Transitional planning schemes often contain prohibitions. In this case, the planning scheme has a prohibition against using this land for the purposes of a hotel. However, under the transitional arrangements, those prohibitions lose their emphatic quality, and are taken to be expressions of policy.
While keeping in mind that such prohibitions are now matters of policy, the settled approach of the Court is to act with caution in authorising any departure from the transitional planning scheme.
In this case, a new scheme is in final form, and will soon be adopted. It is also the usual practice to take into account the provisions of the new scheme, on the basis that an approval should not cut across the future planning intentions of Council.
The Strategic Plan
According to the 1993 Strategic Land Use Plan, this land, and the surrounding area, is designated rural residential. As the Plan says:
“Land uses in these areas will be essentially of a residential nature, however, other uses and ancillary to rural residential developments such as agriculture, animal husbandry, general stores and small scale community based recreational facilities together with those which compliment the lifestyle and do impact on the residential amenity of the area will be preferred”.
Here, the evidence is that this proposal goes beyond such a scale, and does not complement the rural residential lifestyle. There is likely to be an impact on the residential amenity of the area, especially with respect to noise (music and unruly patrons) and lighting. That was the effect of the evidence of two local residents. There is no reason to doubt their observations.
The Strategic Plan also sets out to establish a hierarchy of retail facilities throughout the Shire. There is a need to identify a hierarchy of retail facilities, to ensure that orderly development of individual centres and townships occurs within the Shire. The development of local retail centres is encouraged in the number of specified places, including Narangba, which is close to this land. The Narangba retail area is expected to be one of the larger local centres.
The proposal would be inclined to attract clients from the established Narangba area. The development of this land as a local retail centre is not encouraged. It would amount to a higher order facility, providing other than the convenience needs of residents of the local catchment.
At page 30, the Strategic Plan also has the objective of preventing undesirable commercial patterns being established. Relevant factors area:
(a) any adverse affect upon the existing establishments, (b) the convenience of the public to be served by the new development and the adequacy or otherwise of carparking facilities, pedestrian access and public transport access, and (c) any adverse affect on the existing of future residential amenity as a result of a proposal.
In this case, the adverse affects upon amenity have been mentioned. Attention should also be paid to the absence of public transport in this area. Only a school bus stops near by.
The conclave of experts concerned with noise thought that normal patron behaviour in the car park at any time was unlikely to cause a noise nuisance. In relation to irresponsible patron behaviour, it was thought that a package of controls would substantially eliminate such behaviour (such as limitations on trading hours, no musical entertainment external to the building, and the implementation of a behaviour management plan in accordance with the recommendations of the Liquor Licensing Division). Nonetheless, genuine concerns remain about the ability of any authority, including Council, to enforce the implementation of such a plan. Some disturbing noise is likely to increase if this proposal is allowed.
Overall, it can be seen that this proposal is contrary to the intentions of the Strategic Plan.
The Present Planning Scheme
The building is located in the rural residential zone. If the building is to be extended, then it will intrude into a small local shopping zone – see figure 9 to Ms Dryden’s report.
The intent of the rural residential zone is this:
“This zone is intended to cater for rural residential development on allotments. Ranging in size from 2000m2 to 1 hectare. It is designed to cater for residential activities and limited rural activities. The rural activities will be restricted to agriculture and animal husbandry. On allotments smaller than 1 hectare the other uses should be confined to non-commercial activities.”
(This land is 8001m2 in area.)
The intent of the Local Shopping Zone is this:
“This zone is intended for commercial and shopping facilities which
are intended to meet the convenience needs of nearby residents”.Hotels are prohibited uses in both of those zones. Considering the prohibition now as a matter of policy, it can be seen that they are to be discouraged. It is clear that this proposal will take up almost all of the available space that may be used for a building, which could otherwise house businesses meeting the convenience needs of local residents. That is, at least in the first instance, the centre will be wholly used and expanded only for the purposes of the hotel, including the TAB and a licensed restaurant, none of which are convenience facilities. They are all higher order facilities usually found in a district centre.
There was some difference of opinions among the planners as to how much building space might be left over for convenience needs. At the most, it would seem to be about 500m2. That might allow some small operations to be tacked on to the dominant use which is proposed here. Experience on this site shows that they might not be successful.
In short, the proposal receives no encouragement from the transitional scheme.
The Development Control Plan
The site is designated as a buffer area under a Rural Residential Development Control Plan. It forms part of a “community node”.
Objective 7 is relevant:
“In conjunction with rural residential development a system of community facilities including but not limited to local shopping centres and general stores, community halls, child-care centres, places of worship and recreation facilities will be encouraged in appropriate locations as designated on the development control plan map. The indicative locations for such uses are shown on the maps as community nodes.
Generally, community facilities (especially local shopping centres) which are not proposed in the vicinity of the community node symbol, will not be supported by Council …”
The development control plan attempts to ensure that basic shopping needs are provided within community nodes. The spread out nature of rural residential development does not normally have the full range of urban services available. This proposal would mean that the entire building, and its extensions, will largely cover the site, and so frustrate the possibility of basic services being provided to local residents. It is right to say, that the local community’s expectations about how this land might be used, will not be met by the proposed development. It is in conflict with the DCP.
The Draft Plan
The land is described as a Local Centre zone under the draft plan. All of the land is contained in that new zoning. The plan has this intent for a Local Centre:
“The local centre zone generally caters for 1000 – 2000 households located in one community; the zone is intended to cater for a limited number of predominantly food and personal services base retail and convenient stores; the zone generally has a gross floor area of between 500 – 4000m2, local centre zones are located throughout the Shire and are consistent in scale and functioning with residential areas”.
The overall outcome, for the local centres, is expressed this way (see division 3, overall outcomes, section 5.4(3)(b)):
“Commercial uses are of a scale that is compatible with the dominant built form of the surrounding area, are clustered on contiguous land and are located in a function and a manner that services only the convenience needs of a clearly defined local resident catchment”.
The planning area code lists specific outcomes and probable solutions for the local centre zone. Under specific outcome 1, a restaurant is listed as a consistent use and a hotel is listed as an inconsistent use.
In short, it is clear, particularly because of the mention of a hotel as an inconsistent use, that the proposal is contrary to the intent of the draft plan. That is because it would not provide for the convenience needs of local residents. The proposal would make unlikely, or difficult, the carrying on of convenience outlets for local residents.
Need
Need for the hotel and its ancillary services was an issue before Council and in this Court. Expert analysts were called on each side.
Much has been said about the elusive concept of need, in the planning sense. In cases like this, need may be taken into account, as the repealed statute requires, if it is relevant. It should be accepted that it is, indeed, a relevant consideration in this case. It will not be relevant to consider any economic impact on a competitor, such as the Narangba Tavern.
Likewise, the economic impact on the Applicant for the proposal is also irrelevant. I accept what was said in William McEwans Pty Ltd v Brisbane City Council (1981) 2 Australian Planning Appeal Decisions 165 at [170]. There, Judge Carter of this Court put it this way:
“It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than an exercise in entrepreneurial skill, the effect of which is to give the Applicant some commercial advantage. Nor the land be rezoned in favour of the entrepreneur who seeks to create the need by the use of his land in the manner he desires. 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 nor being adequately met by the scheme in its present form. If the need can be met by the proposal for rezoning and is therefore of advantage to the community and does not thereby deny or otherwise affect the satisfaction of community needs in other respects to its disadvantage, the rezoning can be justified because it is consistent with the community will. The fact that the applicant thereby secures a commercial advantage for himself in these circumstances is really a matter of no relevance.”
It can be readily accepted, in an abstract way, that the local community here has a need for both licensed restaurants and taverns. They are things which improve the physical well being of the community. Their presence improves the services and facilities available in a locality.
In this case, because of the planning considerations which are against the proposal, it is helpful to see if there is an actual need for the expansion of the present licensed restaurant. Different views were expressed by Mr Donnelly (in favour of the expansion), and Mr Coghlin (who was against it).
It is necessary to take into account the existing facilities in the area. Mr Coghlin’s appendix 1 is a useful starting point. The Narangba Valley Tavern and bottleshop is about five minutes drive to the south. The Burpengary Tavern, near the highway, is a rather longer drive to the east. On the western side of the highway, and not so far away, is Shaun’s Bar and bottleshop. Near the railway line, to the east, and probably about five minutes away is a bottleshop and food store. To the north, about six kilometres away, is a bottleshop. At the top of the plan there is the Morayfield Tavern about seven kilometres to the north.
Basically, Mr Coghlin’s evidence should be accepted. That is to say, he was right to criticise Mr Donnelly’s analysis, which was designed to show that there was a need for additional facilities on this land because of the known trading performance of the Woodpecker Tavern. He asserted that, because its trading performance ranked fairly low compared to other outlets, there was a need that should be fulfilled. It is difficult to follow his reasoning.
As Mr Coghlin explained, turnover is not necessarily the best way of judging need. Overall, he though that the effect of an expanded operation on this site would be to attract sales from competitors rather than supply an unmet need.
Mr Coghlin also had the advantage of visiting the Woodpecker Tavern on a Friday evening. He observed no delay and had no difficulty in obtaining a table at dinner time.
In the result, there is no demonstrated need for the expansion sought by the Applicant. While that is in no sense fatal to the application, it is a factor to be taken into account.
Conclusions
The evidence of Ms Dryden, a planner, should be preferred to that of Ms Hanelt. Overall, Ms Dryden’s views seem to be much more firmly anchored in the Council’s own planning instruments, whereas Ms Hanelt, on the other hand, had some difficulty in escaping their impact. She did accept that a Tavern would not normally be located in the lowest order centre in a commercial hierarchy, which this is. Also, her approach was that this application creates an opportunity to consolidate the piecemeal approvals which had been given so far. As she put it: “The existing situation of approvals and development is piecemeal. The majority of the activities on site have been approved. Approval of this application allows both consolidation and regularising of the approvals and the development”.
It is true, when one keeps in mind that this is basically an application for a rezoning, that the limitations of an existing zone cannot control the outcome of the application. However, in this case, it is clear that Council’s overall planning intentions do not favour the intensification of this use, as requested by the Applicant. It is not a case where the zoning has turned out to be inappropriate, and should be changed, for some good reason.
The application does conflict with the strategic plan and the development control plan. There is no reason which would justify approval of the application, despite those conflicts.
The planning considerations would clearly be sufficient to dispose of this appeal, even if the questions of amenity and need were resolved in favour of Hedley Constructions. Mr Hinson did all he could to bring out those aspects of the evidence which were in favour of the application, but even he was unable to disguise the lack of merit in the applicant’s case.
The Council’s decision was correct. The appeal must be dismissed.
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