Intrafield Pty Ltd v Redland Shire Council

[2000] QPEC 70

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Intrafield Pty Ltd v Redland Shire Council [2000] QPE 070
PARTIES:	INTRAFIELD PTY LTD ACN 086 279 629 (appellant) and REDLAND SHIRE COUNCIL (respondent)
FILE NO/S:	Appeal No. 4337 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING COURT:	Brisbane
DELIVERED ON:	12 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	McLauchlan Q.C., D.C.J.
ORDER:	Appeal dismissed
CATCHWORDS:
COUNSEL:	Mr C. Hughes for the appellant Mr S. Ure for the respondent
SOLICITORS:	Geoff Klooger &  Associates for the appellant Dunhill Madden Butler for the respondent
Introduction

1. This appeal concerns a proposal to develop land on Boundary Road at Thornlands for a service station and shop.  The applicant applied for a development permit for a material change of use in respect of the land, which is currently zoned rural/non urban in the respondent’s Planning Scheme, and for reconfiguration of a lot by way of subdivision of 5,000 square metres from a larger parcel of 6.658 hectares.  The application was rejected by the respondent.  A submission against the application was made by Mr and Mrs K.F. Wong who are the owners of property located at the north-western corner of Panorama Drive and Boundary Road, Thornlands, approximately 300 metres to the east of the application site.  This site was occupied for many years by the “Round Shop” which provided local convenience shopping and a petrol outlet service.  The area occupied by the “Round Shop” was resumed by the Queensland Department of Main Roads for the purpose of the widening of Boundary Road.  An application has been made for the re-instatement of the previous facilities in a substantially upgraded and modern form, including the re-establishment of a general convenience store and a four pump petrol outlet.  However, Mr and Mrs Wong have since withdrawn as parties in the appeal. 

1. The proposal is to construct a service station and shop on the 5000 square metre allotment sought to be subdivided.  The area of the buildings and associated structures is approximately 800 square metres, excluding areas of hard stand for car parking and manoeuvring purposes.  More particularly, the service station and shop building is to have a total gross floor area of 360 square metres and there is also proposed a canopy area of 410 square metres.  There are to be 18 carparking spaces.  The construction would be located close to the Boundary Street frontage of the site.  The proposed facility would operate 24 hours per day. 

1. The Redland Shire Council 1998 Planning Scheme is a transitional planning scheme and the provisions of s.6.1.30 of the Integrated Planning Act (“the Act”) therefore apply. The application is for development that before the commencement of s.6.1.30 would have required an application to be made under s.4.3(1) of the repealed Act, the Planning and Environment Act (“the P&E Act”), that is to say a rezoning application since both a service station and shop are prohibited uses in the Rural/Non-urban Zone, and a further application pursuant to s.5.1(1) for subdivision. Pursuant to the provisions of s.4.1.50 of the Act, the appellant carries the onus of proof.

1. The issues in the appeal are as follows:

(1)          whether there is a need for the development of the land for the purposes proposed;

(2)          whether there is conflict with the strategic plan and the respondent’s development control plan, and if so whether there are planning reasons to warrant approval despite the conflict;

(3)          whether there is conflict with the intent of the rural/non-urban zone in that both the nominated uses i.e. service station and shop are prohibited uses in the zone;

(4)          whether there is conflict with the Council’s local planning policy relating to the development of land for the purpose of service stations (including combined premises for service stations and shops);

(5)          whether the proposal is contrary in built form to the character and amenity of the locality; and

(6)         whether the proposal conflicts with the subdivision of land provisions of the planning scheme, and whether there is any discretion to permit the reconfiguration.

Need

1. The question of planning need lies at the forefront of the appeal.  Need is a question which is required to be considered under the provisions of the P&E Act, to which attention is required to be given by the transitional provisions of the Act, to the extent that it is relevant to the application. The nature of the proposed use and its proposed location are such that, in my view, need is a matter relevant to the application, and it is made so, in any event, by reason of a provision in a local planning policy of the respondent to which reference will be made.

1. Evidence was given by Mr Hodge for the appellant to the effect that there was a clear need for the proposal, and evidence to the contrary was given by Mr Norling for the respondent.  Mr Hodge’s evidence satisfied me and indeed, it was not contested, that a service station and shop on the proposed site would be both attractive and convenient for motorists returning to Victoria Point and Redland Bay from the city.   The evidence was to the effect that about 12,000 motorists each day pass the site on their way home, and the evidence was also to the effect that the purchase of petrol and convenience shopping is something typically done on the homeward journey.  The appellant’s proposal is very conveniently sited for this purpose.  There are however other large and modern service stations available to residents of Victoria Point and Redland Bay returning home along either Mt Cotton Road or Redland Bay Road, the latter having taken the bypass from Capalaba.  These are the Liberty Timesaver at Capalaba and the BP Capalaba on Redland Bay Road.  These are both modern well equipped facilities, offering both fuel and convenience shopping.  Mr Hodge was critical of the BP facility in Redland Bay Road, principally because it is situated between two light controlled traffic intersections, but I am not persuaded that that is a serious detriment.  Beyond the proposed site, in Cleveland Redland Bay Road there are several further petrol stations available to meet the needs of motorists returning home.  Two of these are admittedly of less suitability owing to the fact that they are not on the homeward-bound side of the road.  There are also a number of other service stations available to motorists travelling through Cleveland, but it seems to me they are of less significance for the purposes of the present appeal. 

1. There is no real evidence of inadequacy in respect of the two major service stations I have mentioned, or the Shell Select at Victoria Point.  There is, for example, no evidence of queuing or overcrowding at existing outlets.  Of course convenience for the motorist is a major element in establishing planning need, but in my opinion in this case the evidence does not go further than to show that the proposal would be an attractive and additional choice for some of those motorists.  That falls short of showing that the needs of motorists are not at present adequately catered for: William McEwans Pty Ltd v Brisbane City Council (1982) 2 APA, 165 at 170; Prime Group Properties v Caloundra City Council (1995) APER 147 at 149.  Whether or not the proposal, if approved, would be a viable operation, is a matter hotly contested by the two expert witnesses.  If it was, it would achieve this result at the expense of other service stations currently providing the service to the residents of Victoria Point and Redland Bay (although it is not suggested that any of these would be rendered “uneconomic”).  The fact that a number of these commuters would be likely to purchase their petrol supplies and convenience goods at the proposed service station instead of at outlets currently patronised by them no doubt indicates a degree of convenience offered by the proposed outlet in comparison with the existing outlets.  This does not, however, in my opinion, of itself demonstrate that there is a  demand for the provision of a new facility in the vicinity of the proposed service station.  Given an addition to existing choices a number of consumers are likely to avail themselves of it as a matter of human experience.  While this indicates a consumer preference, to an  extent which is, however, debatable, it does not demonstrate inadequacy in the existing arrangements and therefore falls short of showing a planning need for the development. 

1. Apart from the existing facilities there is a proposal for a service station development on the homeward bound side at the intersection of Colburn Avenue and Cleveland Redland Bay Road, and there is the proposal to reinstate service station facilities at the “Round Shop” site which has already been mentioned, although the facilities there will be limited and will be of most use to persons turning left at Panorama Drive and heading north to Thornlands. 

1. The evidence also shows, in my opinion, that there are adequate present facilities for convenience shopping for home-bound motorists, some associated with service stations, and some not.  On the state of the evidence, whether or not there is a planning need for an additional service station, with or without convenience shopping, to supply the needs of commuters returning home to Victoria Point and Redland Bay, remains in contention.  The onus lies on the appellant to establish need for the development and, in my opinion that onus has not been discharged, either in relation to service station facilities or in relation to convenience shopping.

Conflict with Strategic Plan and Development Control Plan

1. The site falls within the rural/non-urban designation in these documents. In the 1998 Strategic Plan it is stated that the rural/non-urban designation indicates the location of the major rural non-urban parts of the shire which are intended not to be developed for urban purposes.  The area is said to include large areas of significant habitat value for koalas and other native fauna as well as land used for agricultural and other rural based activities (particularly the poultry industry).  In recognition of these characteristics any future development or land use within the rural/non-urban designation will need to demonstrate that it does not compromise these important environmental and landscape values.  (The area has also been identified as being critical to the overall maintenance of the landscape character of the shire). 

1. It is not urged that the area of the proposed development includes any significant habitat value for koalas or other native fauna.  Land is used in the vicinity for agricultural and other rural based activities, particularly the poultry industry, but there are also uses of a more urban nature.  In my view the issue of maintaining the “landscape character of the shire” is largely compromised in the vicinity of the development by reason of significant urban or “semi-urban” development.  The portion of the Strategic Plan principally relied upon by the respondent with reference to the rural/non-urban designation is the following:-

“This designation also includes areas which play an important role in the separation of the urban communities within the Shire, both in the physical and visual sense.  It is intended that these areas be precluded from closer settlement so as to maintain this separation.  Land use or development of the site would be restricted to purposes which can demonstrate a contribution to maintenance of the substantial open and rural non urban character of these areas.”

1. The contention of the respondent is that the area surrounding the site performs a “visual break”  between urban areas of the shire.  Professor Brannock for the appellant conceded that the area to the west of Kinross Road did perform such a function but was of the view that that ceased to be the case in the more immediate area of the proposed development, that is to say the area between Kinross Road and Panorama Drive to the east.  I agree with the position put by Professor Brannock.  In particular the southern frontage of Boundary Road within the area mentioned is substantially “urban” in built form.  There are a number of houses built on the road frontage, screened by fencing and landscaping, and an additional number of commercial uses such as a shop for the sale of fruit and vegetables, a nursery, a tennis court, a further nursery, a turf farm and a church.  Immediately to the north of the site the existing Redland Flowers development includes large structures which have an industrial appearance, built up against the Boundary Road Reserve.  In the future, the “Round Shop” is likely to be redeveloped, and according to the Strategic Plan, urban residential development (not merely rural or park residential development) will take place at the eastern end near the intersection with Panorama Drive.  Further, applications for a Telecom tower and a roadside stall with formal carparking are before the Council for approval. There are closely settled residences in Kinross Road, apparently the result of an old subdivision, and there is substantial industry further to the north of that street.  This includes a nursery and cafe, a panels manufacturer, a fruit juice enterprise, a bus depot and a chicken farm.

1. Boundary Road itself is a major urban construction complete with a four lane divided carriageway, internal hard surfaces for drainage, and at least one kilometre of overhead street lighting. 

1. In these circumstances it does not seem to me that the area surrounding the site contributes to a visual break between urban areas of the shire.  In general I agree with Professor Brannock’s view that the area shows a developing urbanisation of the immediate locality. The area could not in my opinion be described as rural/non-urban.  It is an area with both rural and urban elements and its proximity to the Round Shop redevelopment and the proposed residential development in that area and a little further on to Cleveland Redland Bay Road leading to Thornlands, Victoria Point and Redland Bay, suggests a future of increasing urbanisation in this particular area.  These impacts have not been made on the area to the west of Kinross Road which could usefully continue to perform the separation function envisaged in the Strategic Plan. 

1. In brief, although the Strategic Plan records that the rural/non urban designation includes areas which play an important role in the separation of the urban communities within the shire, the area surrounding the proposed development, relevantly the area between Kinross Road and Panorama Drive does not fall within that description.  There is therefore no conflict with the provision quoted of the respondent’s Strategic Plan. 

1. The principal objective of the Development Control Plan which is relied on by the respondent is that which provides for the maintenance of the rural character of  rural/non-urban designated areas.  There are more particular provisions in relation to industries and uses which may be established in these areas and which would provide for the maintenance of that character.  In my view, however, although the area in question has a rural/non-urban designation in the Development Control Plan it does not in fact exhibit a rural character.   It is an area with significant urban elements and has indications of a transition from rural to urban character.  In the circumstances it does not appear to me that the Development Control Plan can be construed in such a way as to require maintenance of a “rural character” which the area in question does not in fact possess.  In my view the Development Control Plan should be construed in this respect to apply to those parts of the designated area which continue to  possess and exhibit a rural character, which the area surrounding the site does not.  I therefore think that there is no conflict between the proposal and the Development Control Plan. 

1. It is therefore unnecessary to consider in terms of s.4.4(5A) of the P&E Act whether there are sufficient planning grounds to justify approving the application despite conflict with the Strategic Plan or Development Control Plan. 

The Rural/Non-Urban Zone

1. The statement of intent in relation to this zone reads, relevantly, as follows:-

“This zone comprises predominantly agricultural land but also includes non urban areas of the shire not presently used for and not necessarily suitable for agriculture or other rural production.  Included in the zone is land which is expected to be required for urban development, following rezoning, during the life of the town planning scheme.  Also included is land which is designated for urban development in the Strategic Plan but which is not expected to be required for such purpose during the life of the town planning scheme.”

1. Some of the land in the locality of the site has in fact been used for urban or semi-rural development.  Arguably the site is appropriate for urban development but both a service station and a shop are column 5 uses, that is to say prohibited uses in the zone.  Since the application is assessed under the Integrated Planning Act it does not involve an amendment to the town planning scheme by way of a change of zoning, as would have occurred under the former Act.  A prohibition based on the zoning of the land is prima facie inconsistent with IDAS in which the zoning of land becomes irrelevant except by way of an expression of intent on the part of the local government concerned.   In relation to prohibitions it is provided that a prohibited use is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.  While it may be taken that the use of the site for a service station and shop is contrary to the intent of the zone currently applicable to the land, it is equally true that the Council contemplates the rezoning of some of the land so zoned for the purpose of urban development.  The considerations which would be material upon a rezoning application are material upon an application for a material change of use.  These include the matters stated in s.4.4(3) of the Planning and Environment Act, and in my view in terms of those matters, putting aside the question of need, the proposal is such that it ought to be approved.  The site in its particular location within the Rural/Non-Urban Zone is such that in my view it is appropriate for urban development to occur.  The statement of intent in relation to the zone and the prohibition of service stations and shops in that zone provide no bar to that result. 

The Local Planning Policy

1. The next issue concerns the degree of compliance of the proposal with the Council’s local planning policy ENPE O12 – “Development of land for the purpose of service stations (including combined premises for service stations and shops)”.  The reason for refusal of the application in this respect was stated to be that the proposal is considered to be not “in full compliance” with that policy.  There are a number of policy objectives stated in the policy statement but none of them in my view represents a problem for the appellant except for Objective No. 8 which is:-

“To permit the provision of new service stations only where a need can be clearly demonstrated”.

Apart from this objective, the more significant aspect of the planning policy is in relation to locational criteria, and of these attention is required to the provisions of s.3.2, noting, in passing, that s.3.1(e) recognises that service stations will be established in rural areas.  The relevant portions of s.3.2 read as follows:-

“Service stations shall generally be located within or adjacent to existing and proposed shopping/commercial precincts or in rural/non urban locations which reflect the special circumstances of performing inter centre or inter-township functions, unless otherwise provided for through specific designation within the town planning scheme.

.............................................................................................................

Urban development in the northern and coastal parts of the shire has occurred detached from urban areas in adjoining local authorities.  As a consequence there are locations where the need may exist for the establishment of a service station performing inter centre or inter township functions, namely offering the motorist a service which is not satisfied due to lack of facilities or the remoteness of location.  Remoteness of location would generally constitute a distance of five kilometres and greater.”

1. These provisions clearly contemplate the location of service stations in rural/non-urban locations in the circumstances mentioned, namely, where such facilities perform “intercentre or inter-township functions.”  In my opinion the policy recognises that travel may well be required between urban development in the northern and coastal parts of the shire (including, for example, Victoria Point and Redland Bay) and urban areas in local authorities adjoining the shire, such as Brisbane City.  Because of the distance between these two points of travel there may be a need for the location of a service station specifically to meet the needs of motorists travelling between the two centres.  It does not seem to me to be a sensible construction of the planning policy to limit the number of service stations performing such a function between two urban areas to one, so that, for example, if there is a service station at Capalaba available to motorists outbound from Brisbane City to Victoria Point these locational criteria cannot be prayed in aid of the establishment of a further service station.  Indeed, having regard to the distances involved between the coastal parts of the shire and adjoining local authorities it would be incongruous, if such were the intention, to define “remoteness of location” as generally constituting a distance of five kilometres and greater.  In other words, giving a sensible construction to s.3.2 of the local planning policy I think it contemplates, where the situation requires it, more than one service station performing inter centre or inter township functions between urban areas in an adjoining shire and urban areas in the coastal parts of the shire.

1. Viewed in this light I do not think that the policy statement presents a problem to the appellant, apart from the stated objective that a new service station be permitted only where a need can be “clearly demonstrated”.  There are only two service stations providing convenient “inter-centre” facilities to outbound motorists being the Liberty at Capalaba and the BP at Capalaba which are respectively 5.2 kilometres and 5.8 kilometres from the site.

Amenity

1. The next issue is whether the proposal is contrary in built form to the “predominantly rural character and amenity of the locality.”  It is a matter of opinion whether or not the immediate locality of the proposal, that is to say the stretch of Boundary Road between Kinross Road and Panorama Drive, displays a predominantly rural character and amenity.  As indicated earlier there is a mixture of uses in the locality including uses of an urban character.  It is arguable that the predominant character of the locality is rural or “rural/industrial” or “semi-rural” but having regard to the totality of uses, including proposed uses towards Panorama Drive, it does not appear to me that the construction of a service station on the site proposed would strike a discordant note.  The mixture of uses indicates, in my opinion, a transition in this locality from rural to urban (or “semi-urban”).

Conflict with the Subdivision of Land Provisions

1. Subdivision of land is dealt with in Chapter 25 of the Planning Scheme. Minimum areas of allotments are prescribed in the various zones in the town planning scheme area. With respect to the Rural/Non-Urban Zone the minimum area is 20 hectares. There are also minimum frontages stipulated, and in respect of the Rural/Non-Urban Zone the minimum frontage is 200 metres. The area of the lot to be subdivided for the proposed service station and shop is 5,000 square metres and the proposed frontage is 100 metres. There is provision for relaxation of these requirements by the Council, relevantly –

“(b)where it considers such variation to be necessary because of the location, size, shape or topography of the subject land, and where it considers that the proposed allotments would be satisfactory for the use or uses permissible within the zone in which the subject land is included.”

Obviously this is not a case where the proposed use is permissible within the present zone.  However, the above provision is intended to apply also in cases where there is an application for amendment of the town planning scheme by changing the zoning for the land in question.  This is the way in which the matter would have proceeded under the Planning and Environment Act but that procedure of course no longer applies under the Integrated Planning Act where applications for change of use are processed on a basis which pays no regard to the table of zones except so far as, in a transitional scheme, the zones offer an indication of the intent of the Council with respect to the use of the land. A change of use no longer involves a change of zoning. The discretion reposed in the Council to vary the provisions in relation to minimum area and minimum frontage is premised upon the continuing relevance of the table of zones, and in that respect it is inconsistent with Chapter 3 of the Integrated Planning Act. The use or uses referred to in s.15.1(b) of Chapter 25 of the Planning Scheme (quoted above), insofar as they refer to uses consequent upon a rezoning therefore are inconsistent with the expression “use or uses” under the Integrated Planning Act which in such a case simply refer to a use consequent upon a material change of use. In the light of that inconsistency the expression “use or uses permissible within the zone in which the subject land is included” in paragraph (b) above is to be read as if it provided “use or uses permissible with respect to the subject land”. This result flows from s.6.1.2(2) of the Integrated Planning Act which provides that if a provision of a former planning scheme is inconsistent with Chapter 3, to the extent the provision is inconsistent, Chapter 3 prevails, unless Chapter 6 states otherwise. It follows that if the application in the present case is successful then the discretion exists to reconfigure the lot of which the site forms part for the purposes of the proposal.

1. In the result there is no conflict between the proposal and the respondent’s Planning Scheme, and conflict only in one respect with the relevant local planning policy.  However the failure of the appellant to demonstrate need for the development means that the appeal must be dismissed.