Hollis v Brisbane City Council

[2000] QPEC 10

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Hollis v Brisbane City Council & Anor [2000] QPE 010
PARTIES:	PETER HOLLIS (Appellant) BRISBANE CITY COUNCIL (Respondent) LIQUORLAND (AUSTRALIA) PTY LTD (Co- Respondent)
FILE NO/S:	P & E Appeal No. 2494 of 1999
DIVISION:	PLANNING AND ENVIRONMENT COURT
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	28th. February 2000
DELIVERED AT:	BRISBANE
HEARING DATE:
JUDGE:	QUIRK DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. In this matter the appellant Mr Hollis made a submission against an application for a development permit for a material change of use of premises at 616 Sandgate Road, Clayfield. The proposal is to establish a detached bottle shop. The application was conditionally approved by the respondent and the appeal is against that decision.

2. The subject land is roughly triangular in shape and has an area of 1050m². It fronts the western side of Sandgate Road and is also bounded by Adelaide and Gregory Streets. The land was formerly the site of a service station but, in 1992, the land was rezoned from the Particular Development (Service Station) zone to the Particular Development (Professional Offices, Interior Design, Display, Gallery, Showroom and Sales) zone. In April 1998 certain modifications to the approval were made to allow minor extensions of existing structures.

3. The site presently carries a single storied structure addressing Sandgate Road with provision of onsite car parking. Access to the site is provided via an entry only driveway off Sandgate Road and a combined entry/exit driveway to Adelaide Street.

4. Residential development is found on the opposite side of Adelaide Street and Gregory Street with some commercial development on the north western corner of Adelaide Street and Sandgate Road. The appellant Mr Hollis resides on the north eastern corner of Adelaide and Gregory Streets. A more detailed description of the area’s characteristics is found in the assessments provided by the consultants who gave evidence.

5. The proposal for a detached bottle shop involved the use of the existing building together with current parking and access arrangements. As a result of consultation with council officers and consideration of submissions made, some modifications to access and parking arrangements were made.

6. The respondent was also concerned that proper account be taken of a possible future need to widen Sandgate Road. To this end two site plans were identified. One could be implemented with the locality in its current configuration. A second showed site layout changes that could be made to accommodate a road widening of Sandgate Road. The differences involve some re-configuration of car parking spaces and loss of a designated service vehicle parking space and some reduction in landscaping on site.

7. Some exception was taken to the approval’s identification of these possibilities (which, for want of a better idea, were called stages 1 and 2). However I regard the exercise as being no more than a demonstration that the approved development could continue without undue offence to the Town Plan (and good planning practice) if and when the need to widen Sandgate Road arose.

8. The proposal is one that would have, under the repealed legislation, required a rezoning of the subject land. The Town Plan is a “transitional planning scheme” within the meaning of chapter 6 of the Integrated Planning Act and the matter must be decided in accordance with s.6.1.29 and s.6.1.30 of the Act.

9. The central issues in the appeal were:

1.	Whether the proposal would be likely to give rise to unacceptable traffic problems for the area.
2.	Whether the proposal would represent an unacceptable intrusion into the area’s amenity.

1. In regard to traffic engineering questions I had the advantage of the views of three experienced consultants – Mr Holland (called by the Co-Respondent); Mr Viney (called by the council) and Mr Brameld (called by the Appellants).

2. Potential difficulties would relate to the adequacy of onsite car parking and the possible creation of congestion at the entry point in Sandgate Road. Congestion could also occur in Adelaide and possibly Gregory Streets as a result of overflow parking.

3. Traffic and pedestrian safety has evidently been an issue for residents to the west of Sandgate Road. Clayfield College is a short distance to the north and a good deal of traffic is attracted to the area at times when pupils are left or collected.

4. In relatively recent times the southern end of Gregory Street has been closed to traffic from Sandgate Road to prevent high-speed vehicle entry to the are and “rat running” along Gregory Street. East of Gregory Street there has been some widening of Adelaide Street with earlier town planning approvals for this site but the street narrows west of the intersection. Parking opportunities in the area are constrained.

5. The impact (in traffic engineering terms) of the proposal depends of course upon the level of activity that it is likely to generate and that was a matter that occupied a great deal of the time spent in the hearing of the appeal. The respondent is part of the Coles/Myer group of companies and plans to establish a liquor outlet of a style that has been used successfully elsewhere under the “Vintage Cellars” banner. In such a facility the accent is on finer wines and associated products rather than on basic liquor requirements. A wealth of data from many kinds of liquor outlets at differing locations was examined in the course of the hearing in an effort to establish the proposal’s likely trading pattern.

[15] A matter that evidently caused some agitation to the appellant related to representations made at one point in time that the proposal would be unlikely to generate traffic at any greater rate than the approved medical centre. Such a prediction can now be seen to be overly optimistic and discarded. It was not advanced before me and the case must be decided on evidence placed before the court.

1. Mr Holland, after wrestling with a mass of sometimes conflicting data provided to him, decided that the better (and in his view acceptable) approach was to focus on those provisions of the Town Plan which deal specifically with onsite parking requirements for this form of development. It was pointed out that the table in s.18 indicated that for a shop of 130m² (as is the case here) 8 car-parking spaces are required.

2. In 1992 a detached bottle shop was included specifically in the definition of “shop”. The evidence indicates that if one takes into account the service bay (which will in all probability be available in peak periods) 11 spaces will be available onsite. The result is that the Town Plan’s requirements are met with a considerable safety margin existing. In view of this level of compliance with a specific development standard it would, in Mr Holland’s opinion, be quite inappropriate to reject the proposal on the ground of inadequate onsite car parking.

3. While I accept the force of this contention, I am not certain that the issue can simply be left on that basis. Reality cannot be ignored and it is noted that s.18.1.2 of the Town Plan envisages that, in certain circumstances, parking provision greater than that specified in the table may be called for. Accordingly an attempt must be made at some appreciation of the likely traffic generation if the approval went forward.

4. I should add that, while I do not question the credibility of the witnesses for the co- respondent, it is the approval (and its reasonable possibilities) upon which one should focus. The intention of an applicant as to a proposal’s mode of operation is less important unless, of course, that mode of operation could be ensured by the imposition of conditions of approval. That does not appear to be the case here.

5. Having said that I believe that it would also be equally inappropriate to take an unduly negative view of what is intended and suppose that a “worse case scenario” in traffic engineering terms was inevitable. Unfortunately that seemed to underlie the case put forward by the appellant and the assumptions made by his consultant Mr Brameld in arriving at his opinion on the matter.

6. Mr Brameld, in concluding that the proposal would potentially create a traffic hazard, anticipated a level of custom that was not supported by other evidence. Undue reliance appeared to be placed on observations made at the Toowong Liquorland store an extraordinarily busy outlet in the western suburbs.

7. It does not appear to be in dispute that, if conditions experienced at that outlet were replicated here, difficulties might occur. I am satisfied on the evidence however that the Toowong Liquorland store is an atypical case at which trade is at a remarkably high level. Why this is so is not entirely clear although some geographical and demographical matters were suggested. It would, in my view of the evidence, be unreasonable to assess this case using that outlet as a benchmark.

8. Of the assessments of the three traffic engineers I believe the prefered approach was that of Mr Viney. He took the trouble to survey activity at a number of outlets which were comparable to this proposal in terms of location and likely mode of operation (assessed objectively).

9. He noted customer numbers and average transaction times. With some level of conservatism he supposed that, in this case, at peak times the average customer would remain onsite for about five minutes. For reasons which he explained he concluded that proposed onsite car parking could accommodate a vehicle generation rate of 100 to 110 vehicles per hour (55 to 60 transactions) assuming that the service bay was not available or 120 vehicles per hour (65 transactions) assuming the likely availability of that bay in peak times.

10. If the proposal was to operate as planned by the co-respondent, on the evidence of its representative Mr Palumbo about 44 transactions per hour during peak period might be anticipated. As can be seen this would be well within the car park’s capacity. (Peak periods are taken to be regular peak periods and not periods of rare and exceptional demands such as Christmas Eve).

11. There was evidence before the court of observed peak periods at other compaable outlets in this part of the city (including two on Sandgate Road). The highest number of transactions per hour noted was 52. It is therefore correct to say that, on this evidence, this proposal could prove to be the most successful bottle shop in the region without the capacity of its on site car parking being excceded.

12. Some criticisms were made of the car parking layout but I accept the evidence of Mr Viney that while some covered spaces besides walls may be constrained they could nevertheless be used. Potential safety difficulties associated with the access arrangements from Sandgate Road were examined but, for the reasons explained by Mr Viney in his evidence, these arrangements are satisfactory and do not provide a reason for rejecting the proposal. There would appear to be no cause for concern about interruption of the free flow of traffic along Sandgate Road.

[28] On the evidence given I am satisfied the traffic engineering concerns do not call for
a refusal of this proposal.

1. Amenity considerations are also linked to the level of activity generated onsite and the time at which that is likely to be at its highest. The appellant called Mr King, an expert in respect of environmental impact. He was concerned at the frequency of noise events from 8p.m. onwards, particularly if cars were required to park in Adelaide Street.

2. However he appeared to work on the assumption that vehicle movements onsite (after 8p.m.) would be of a frequency that was not supported by the evidence in the appeal. This evidence suggested that trade would be dropping off markedly at this period of time. He accepted that an acoustic barrier along Adelaide Street would effectively deal with any noise originating from within the subject land.

3. As to light spillage the evidence suggested that the barrier referred to would largely deal with any headlight sweep and it must be remembered here that we are dealing with a site that has traditionally been used for commercial purposes. Approvals in place allow a medical centre to operate on a 24-hour basis. Having regard to likely vehicular movement onsite into the later night period I do not regard this as a matter that would call for the proposal’s rejection.

4. Need was raised as an issue in the appeal and it is a matter that can be of relevance in a case of this kind. The weight of the evidence on need ( in a town planning sense) was in favour of the proposal. Mr Craven, a consultant to the co-respondent, showed in his evidence to the court that the community’s interests would be served by the provision of such a facility in this area. That a number of local residents would prefer not to see such a development on the site and claim that there needs are being well met elsewhere did not really dispose of the points which he made.

5. Some general provisions in formal town planning documents dealing with the preservation of residential amenity and the introduction of commercial activity into residential areas were referred to. Amenity considerations were dealt with specifically in the appeal and resolved in favour of the co-respondent. It has already been noted that the proposal does not involve the introduction of a commercial activity but the substitution of one form of such activity with another.

6. On the whole of the evidence I am satisfied that the onus of showing that the application is one which should be approved has been discharged. The appeal must accordingly be dismissed. The approval given should stand with a further condition requiring an acoustic barrier along Adelaide St.