K and K GC Pty Ltd v Gold Coast City Council - [2018] QPEC 9

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION: K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9
PARTIES: K & K GC PTY LTD AS TRUSTEE FOR K & K
FAMILY TRUST
(appellant)
v
GOLD COAST CITY COUNCIL
(respondent)
FILE NO/S: 20 of 2017
DIVISION: Planning and Environment
PROCEEDING: Appeal
ORIGINATING
COURT: Planning and Environment Court, Brisbane
DELIVERED ON: 1 March 2018
DELIVERED AT: Brisbane
HEARING DATE: 6, 7, 8, 9, 10 and 22 November 2017, 14 December 2017 and
1 and 2 February 2018
JUDGE: Kefford DCJ
ORDER: The appeal will, in due course, be allowed. I will adjourn
the further hearing to allow for the formulation of
conditions.
CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of a development application seeking a
development permit for material change of use for a service
station, coffee shop with drive-through lane and takeaway
food premises – whether there is conflict with the planning
scheme – whether the use will have unacceptable impacts on
the adjoining residential uses – whether the proposed
development will have unacceptable impacts on the character
and amenity of the area – whether there is a need for the
proposed development – whether there are sufficient grounds
to approve the development despite conflict with the planning
scheme – whether the new planning scheme ought be given
determinative weight
LEGISLATION: Planning Act 2016 (Qld), s 311

Sustainable Planning Act 2009 (Qld), s 95, s 314, s 317, s 324, s 326, s 461, s 493, s 495, s 496 s 704
CASES: Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311,
approved
Body Corporate for Kelly’s Beach Resort v Burnett Shire

Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved
Brencorp Properties Pty Ltd v Pine Rivers Shire Council
[1997] QPELR 12, approved
Broad v Brisbane City Council & Baptist Union of
Queensland [1986] 2 Qd R 317, applied
Cass v Gold Coast City Council & Anor [2008] QPEC 32;
[2008] QPELR 556, approved
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, cited

Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, distinguished
Everson v Beaudesert Shire Council [1992] QPEC 22; [1992]
QPLR 129, approved
Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council
[1997] QPELR 208, approved
Gillion v Scenic Rim Regional Council & Ors [2013] QPEC
15; [2013] QPELR 711, approved
Gold Coast City Council v K Page Main Beach Pty Ltd
[2011] QCA 332; (2011) 185 LGERA 55, considered
Golder v Maranoa Regional Council & Ors [2014] QPEC 68;
[2015] QPELR 292, approved
Gorman & Ors v Brisbane City Council & Anor [2003]
QPEC 035; [2004] QPELR 29, approved
Harburg Nominees Pty Ltd v Brisbane City Council & Anor
(No 2) [2016] QPEC 56; [2016] QPELR 979, approved
Hawkins v Ipswich City Council [1998] QPEC 26; [1999]
QPELR 55, approved
Heath v Brisbane City Council & Anor [2008] QPEC 33;
[2008] QPELR 566, approved
Intrafield Pty Ltd v Redland Shire Council [2000] QPEC 070;
[2000] QPELR 337, distinguished
Isgro v Gold Coast City Council [2003] QPEC 2; [2003]
QPELR 414, approved
Jedfire Pty Ltd v Council of the City of Logan & White [1995]
QPLR 41, approved
Kangaroo Point Residents Association Inc v Brisbane City

Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved
Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174
CLR 178, applied
K Page Main Beach Pty Ltd v Gold Coast City Council &
Ors [2011] QPEC 1; [2011] QPELR 406, approved
Lockyer Valley Regional Council v Westlink Pty Ltd as
Trustee for Westlink Industrial Trust & Ors; Keep Lockyer
Rural Inc v Westlink Pty Ltd as Trustee for Westlink

Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied
Main Beach Progress Association Inc & Ors v Gold Coast

City Council & Anor [2008] QPEC 37; [2008] QPELR 675, approved
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305;
(2001) 52 NSWLR 705, applied
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, cited
MPR Constructions Pty Ltd v Redland Shire Council [2001]
QPEC 68; [2002] QPELR 256, distinguished
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional
Council [2014] QPEC 024; [2014] QPELR 479, approved
Parmac Investments v Brisbane City Council [2008] QPEC 7;
[2008] QPELR 480, approved
Petroleum Design and Management Pty Ltd v Mackay City
Council [2004] QPEC 20; [2004] QPELR 593, approved
PMM Group Pty Ltd v Noosa Shire Council [2005] QPEC 79;
[2006] QPELR 144, approved
Prime Group Properties Limited v Caloundra City Council
and Darracott & Ors [1995] QPLR 147, distinguished
Ross Nielson Properties Pty Ltd v Brisbane City Council &
Anor; Yu Feng v Brisbane City Council & Ors [2007] QPEC
3; [2007] QPELR 323, cited
Thomas Holdings Pty Ltd v Gold Coast City Council & Ors
[1991] QPLR 32, distinguished
United Petroleum Pty Ltd v Gold Coast City Council & Anor
[2018] QPEC 8, approved
Vanglow Pty Ltd v Council of the Shire of Albert (1991)
QPLR 68, distinguished
WBQH Developments Pty Ltd v Gold Coast City Council
[2009] QPEC 54; [2009] QPELR 746, approved
WBQH Developments Pty Ltd v Gold Coast City Council
[2010] QCA 126, considered
Weightman v Gold Coast City Council & Anor [2002] QCA
234; [2003] 2 Qd R 441, applied
Westfield Management Limited v Pine Rivers Shire Council
[2004] QPELR 337, approved
Westlink Pty Ltd v Lockyer Valley Regional Council (No 4)
[2013] QPEC 35; (2014) 198 LGERA 1, cited
Wincam Developments No 3 Pty Ltd v Brisbane City Council
[2004] QPEC 5; [2004] QPELR 474, cited
Woolworths Ltd v Maryborough City Council (No 2) [2005]
QCA 262; [2006] 1 Qd R 273, applied
Zappala Family Co Pty Ltd v Brisbane City Council & Ors
[2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR
686, applied
COUNSEL: M A Williamson QC with M J Batty for the appellant
M F Johnston with T Jackson for the respondent
SOLICITORS: Connor O’Meara Solicitors for the appellant
Hopgood Ganim Lawyers for the respondent

Table of contents

Introduction .......................................................................................................................... 6
The subject site and the locality ........................................................................................... 6
The proposed development .................................................................................................. 7
The issues ............................................................................................................................. 8
The decision framework ..................................................................................................... 10
Gold Coast Planning Scheme 2003 .................................................................................... 11
Undesirable nature of the fast food premises and take-away food premises uses.............. 13
Appropriateness of the service station use ......................................................................... 13
Setbacks .............................................................................................................................. 14

Impact on residential character and amenity ...................................................................... 21

Meaning of amenity ........................................................................................................ 23

Identification of the “local area” .................................................................................... 25

Submissions and evidence of the residents ..................................................................... 25

Will amenity be unreasonably degraded? ....................................................................... 27

Noise, air quality and lighting ....................................................................................... 30

Visual amenity and character ........................................................................................ 32

Traffic ............................................................................................................................ 42
Litter, crime and congregation of undesirable individuals ........................................... 44

Conclusion regarding amenity impacts .......................................................................... 44

Traffic impacts ................................................................................................................... 44

The proper construction of performance criterion PC13 and the nature of the dispute.. 47

Traffic safety issue .......................................................................................................... 50

Demonstrable need required by the 2003 Planning Scheme .............................................. 60
Conclusion regarding appropriateness of the service station use ....................................... 62
Nature and extent of conflict .............................................................................................. 62

Grounds .............................................................................................................................. 71

Need ................................................................................................................................ 71

General principles ......................................................................................................... 71

The evidence .................................................................................................................. 78

Other grounds ............................................................................................................... 104

City Plan 2016 .................................................................................................................. 105

Relevant provisions of City Plan 2016 ......................................................................... 106

Strategic framework ..................................................................................................... 107

Low Density Residential Zone Code ............................................................................ 114

Medium density residential zone code ......................................................................... 116

Service station code ..................................................................................................... 117

Conclusion regarding City Plan 2016 ......................................................................... 119

Other considerations relevant to the exercise of the discretion .................................... 119

History of the application ............................................................................................ 120

Evolution of the issues in dispute................................................................................. 121

Relevance of history and evolution of the issues to the weight to be placed on City Plan

2016 ............................................................................................................................. 123

Residual discretion ........................................................................................................... 125
Conclusion ........................................................................................................................ 127

Introduction

The appellant seeks a development permit for a material change of use to facilitate
development of land situated on Ferry Road at Southport for a service station, fast
food premises (being a drive-through coffee shop) and takeaway food premises. Gold
Coast City Council (“Council”) refused the appellant’s development application,
contrary to the recommendations of its officers.
The subject site and the locality
The subject site is located at 248-254 Ferry Road, 24 Skiff Street and 21 York Street
at Southport, on the south-eastern corner of the signalised intersection of Ferry Road,
Cotlew Street East and Skiff Street. It has an area of 3 038 square metres.[1] It has
frontages to Skiff Street (of approximately 36 metres), Ferry Road (of approximately
84 metres) and York Street (of approximately 6 metres).[2]
[1] Appeal Book – Exhibit 1 Volume 2 Tab 9.
[2] Town Planning Joint Expert Report – Exhibit 7 p 5 [4].
The subject site is currently vacant, and has been since about 2008.[3] It is devoid of
vegetation.[4]
[3] Town Planning Joint Expert Report – Exhibit 7 p 5 [5].
[4] Book of Plans - Exhibit 2 p 30.
Ferry Road is a defining feature in the locality. It is a six lane divided State-controlled
road administered by the Department of Transport and Main Roads. It carries
approximately 36 000 vehicles per day.[5]
[5] Traffic Joint Expert Report – Exhibit 5 p 2 [5].
The site forms part of a discrete and predominantly residential enclave located to the
east of Ferry Road, bounded by a waterway to the north (just north of Korong Street),
Regatta Parade to the east and south, and Ferry Road to the west. Each of Skiff Street
and York Street contains, in large part, detached dwellings of one and two storeys in
height. There is a two storey multiple dwelling complex directly opposite the site on
Skiff Street, also fronting Ferry Road.[6]
[6] Town Planning Joint Expert Report – Exhibit 7 p 5 [7].
The enclave also contains non-residential uses. All four dwelling houses to the north
and one of the two dwelling houses to the south accommodate commercial uses,
including a sleep therapist, business broker, hypnotherapist, realty and orthodontist. A large childcare centre also operates from the north-eastern corner of Ferry Road
and Yacht Street.[7]
[7] Visual Amenity Joint Expert Report – Exhibti 4B p 4 [9].
The western side of Ferry Road, between the waterway to the north of Durham Street
and Shaw Street, is a strip of commercial uses that includes:

(a) directly opposite the subject site, the shopping centre “O on Ferry” with cafés,
retail tenancies and services; and

(b) a Night Owl convenience store, coffee drive-through, restaurants, cafés, bottle
shops, a Toyota car dealership, a BP service station and the Ferry Road
Tavern.[8]
[8] Town Planning Joint Expert Report – Exhibit 7 p 5 [8].

The proposed development

The proposed development is for a combined service station with convenience store,
takeaway food premises and fast food premises (drive-through coffee shop). It
incorporates:[9]
[9] Town Planning Joint Expert Report – Exhibit 7 p 7 [14] and [18].

(a) a service station with three bowser positions to serve six cars, with payment
facilities within the convenience store;

(b) a convenience store with a gross floor area of approximately 200 square
metres, including 92 square metres of retail sales area;

(c) fast food premises with a gross floor area of 80 square metres, plus 20 square
metres of outdoor dining and a drive-through facility. Toilet facilities, with an
area of 75 square metres, are connected to the service station; and

[10] Mr Viney recommended the number of car spaces be reduced from 22 to 21 and the appellant has adopted that recommendation, as noted in Written Submissions on behalf of the Appellant p 5 [22].

(d) takeaway food premises with a gross floor area of 100 square metres; and
(e) 21 car parking spaces and nine bicycle spaces.[10]

The building height of the proposed development is:

[11] Town Planning Joint Expert Report – Exhibit 7 p 7 [15].

(a) to the top of the fuel canopy – 5.5 metres;
(b) to the top of the main building – 6.06 metres; and
(c) to the top of the signage – 7.25 metres.[11]

The proposed hours of operation are:

(a) 24 hours a day, seven days a week for the service station and convenience
store; and

(b) between 6am and 8pm Monday to Saturday and 7am to 8pm on Sundays and
public holidays for the drive-through component of the fast food premises and
otherwise between 6am and 10pm, seven days a week.[12]
[12] Town Planning Joint Expert Report – Exhibit 7 p 7 [16] and [17].

Vehicular access is proposed via a combined ingress and egress crossover on Skiff
Street, as well as separate ingress and egress crossovers on Ferry Road. Onsite
manoeuvring is to be provided for a refuse vehicle and fuel tanker, with fuel and waste
deliveries proposed to be limited to the hours between 7am and 6pm, seven days a
week.[13]
[13] Town Planning Joint Expert Report – Exhibit 7 p 7 [19].
The proposal includes various acoustic barriers, including (but not limited to):

(a) an acoustic fence of 4.5 metres in height situated 1.6 metres from the side
boundary and up to 3.5 metres back from the Skiff Street frontage, proximate
the adjoining dwelling on Skiff Street, with landscaping provided between the
acoustic fence and the boundary; and

(b) an acoustic fence of 2.6 metres height situated 1.4 metres from the side
boundary, adjacent to the property at 19 York Street, with landscaping between
the acoustic fence and the boundary.[14]
[14] Town Planning Joint Expert Report – Exhibit 7 pp 7-8 [20]; Joint Report of Experts in Noise, Air Quality and Lighting – Exhibit 3A p 21 [53] and p 29 Figure 4; Exhibit 21.

The issues

It is not unusual for the issues in dispute to evolve, and typically contract, during the
course of preparation for a hearing of an appeal in the Planning and Environment
Court. In this case, the timing of the contraction of issues was particularly late.
At the beginning of the second day of the hearing, Counsel for Council indicated that,
subject to instructions, he may seek leave to amend Council’s grounds for refusal.
An adjournment for several hours followed. When court resumed after midday on
the second day, Council sought leave to rely on a document that identified the
substantive grounds it relied on to submit that the development should not be
approved.[15] This late amendment, and the consequent loss of time, is unfortunate.
This is particularly so given the number of occasions on which Council amended its
grounds for refusal.[16]
[15] T2-4/L3 – T2-18/L23.
[16] See details at paragraphs [388] to [395] below.
Ultimately, the issues to be determined in this appeal are:

(a) whether approval of the proposed development conflicts with the 2003
Planning Scheme by reason of:
(i) the nature of the use as the proposed Fast Food Premises and Take-
Away Food Premises are undesirable uses;
(ii) the proposed Service Station being an inappropriate use because of:

(A) inadequate setbacks;
(B) unacceptable impact on residential character and amenity;
(C) unacceptable traffic impacts;
(D) the absence of a demonstrated need;

(b) the nature and extent of the conflict and whether there are sufficient grounds
to justify approval of the proposed development notwithstanding conflict with
the 2003 Planning Scheme; and

(c) whether City Plan 2016 ought be given significant and overwhelming weight.

I appreciate that these reasons for judgment are unusually lengthy, particularly having
regard to the limited issues in dispute, the length of the hearing and the nature of the case. As will become evident below, these reasons are lengthy so that the Council
can fully understand the reason for my decision and because:

(a) the Council’s written submissions, which were 100 pages in length, raised
countless arguments with respect to each issue;

(b) almost every argument advanced by the Council was advanced on the basis
that it alone justified refusal of the proposed development; and

(c) although many of the arguments, in my respectful opinion, had no proper
foundation, either because there was no evidentiary basis for them or because
they involved a misapprehension of the case law and its applicability, having
been raised, they nevertheless needed to be addressed.

The decision framework

The appeal was commenced under s 461 of the now repealed Sustainable Planning
Act 2009 (Qld) and is to be decided under that Act.[17]
[17] Planning Act 2016 (Qld), s 311.
Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of
hearing anew. It must be decided based on the laws and policies applying when the
application was made, but the court may give weight to any new laws and policies
the court considers appropriate.
At the time the development application was made, Gold Coast Planning Scheme
2003 (“2003 Planning Scheme”) was in force.[18] On 2 February 2016, Gold Coast
City Plan 2016 (“City Plan 2016”) commenced.[19]
[18] Town Planning Joint Expert Report – Exhibit 7 p 8 [21].
[19] Report of Mr Schomburgk – Exhibit 8 p 1 [4].
The appellant bears the onus of proof.[20]
[20] Sustainable Planning Act 2009, s493.
As the development application was impact assessable, it is to be assessed having
regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with
s 324 and s 326. Pursuant to s 326, a decision must not conflict with the 2003
Planning Scheme unless, relevantly, there are sufficient grounds to justify the
decision despite the conflict.
Conflict means “at variance or disagree with”.[21] Any conflict must be plainly
identified.[22]
[21] Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16].
[22] Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council [1997] QPELR 208, 212.
The appropriate approach to the interpretation of planning instruments is summarised
in Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337.
The approach was confirmed in Zappala Family Co Pty Ltd v Brisbane City Council
& Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686.
The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009
as:

“1. Grounds means matters of public interest.
2. Grounds does not include the personal circumstances of an applicant,
owner or interested party.”

Gold Coast Planning Scheme 2003

Under the 2003 Planning Scheme, five of the six lots that comprise the subject site
are located in the Residential Choice Domain and the other lot is in the Detached
Dwelling Domain. The subject site is also located in the urban residential land use
theme in the Strategic Framework.
Section A of the Table of Development for each of the Detached Dwelling Domain
and the Residential Choice Domain listed “Service Station” as an impact assessable
use.
Service station is defined to include the use of premises for:[23]
“The sale by retail of maps, tobacco, confectionary, patent medicines, soft
drinks, milk products, newspapers and periodicals, where any such sale is to
a person travelling by motor vehicle …
This term does not include … a Shop.”
[23] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 166 pt 4
The fast food premises use and take-away food premises use are not listed in Section
A of the Table of Development in either domain, but are taken to be impact assessable
uses.[24]
[24] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 97 pt 5 div 1
For impact assessable development, the 2003 Planning Scheme requires development
to comply with the relevant parts of the whole of the 2003 Planning Scheme.[25]
[25] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 100 pt 5
The codes that are relevant to an assessment of the proposed development in the
context of this appeal are the Detached Dwelling Domain Place Code, the Residential
Choice Domain Place Code and the Service Station Code.
Insofar as codes are concerned, the 2003 Planning Scheme stipulates that:

(a) compliance is required with all codes to the extent that they are relevant to the
development application;[26]
[26] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 126 pt 7

(b) development must comply with performance criteria in relevant codes to meet
the objectives of the 2003 Planning Scheme and to ensure that the desired
environmental outcomes are not compromised;[27]
[27] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 127 pt 7

(c) all performance criteria are considered separate and distinct;[28]
(d) development that is consistent with the acceptable solutions of a code is
[28] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 127 pt 7
considered to have complied with the code’s requirements;[29]
[29] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 100 pt 5

(e) it is desirable that impact assessable development comply with the acceptable
solutions to ensure that each performance criterion is met; however, impact
assessable development may comply with an alternative solution, provided
that the alternative solution can be demonstrated to meet the relevant
performance criterion;[30]
[30] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 128 pt 7

(f) undefined terms are intended to have the meaning assigned to them in common
usage, unless the context otherwise indicates or requires;[31] and

(g) the provisions of the relevant Place Code always take precedence over the
provisions of any other code, including any Specific Development Code (such
as the Service Station Code).[32]
[31] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 128 pt 7
[32] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 126 pt 7

Undesirable nature of the fast food premises and take-away food premises uses

Council alleges that the proposed development conflicts with the 2003 Planning
Scheme on the basis that:

(a) the proposed fast food premises and take-away food premises are uses that are
not listed in Section A of the Table of Development for the Detached Dwelling
Domain and the Residential Choice Domain; and

(b) the 2003 Planning Scheme states:[33]
“Any use not listed in Section A of the Table of Development,
should be considered as undesirable or inappropriate in the
domain to which the Table of Development applies”.[34]
[33] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 97 pt 5 div 1
[34] Exhibit 32.

It alleges that the conflict is clear.[35]
[35] Written Submissions for the Gold Coast City Council p 21 [73] and T7-4/L37 – T7-5/L15.
The appellant accepts that a decision to approve the proposed development would
conflict with the 2003 Planning Scheme in this respect.[36] It joins issue, however, with
Council’s submission that the conflict is serious.
[36] Written Submissions on behalf of the Appellant p 9 [44].
I accept that a decision to approve the proposed development would result in clear
conflict with the 2003 Planning Scheme. The nature and extent of the conflict are
considered in paragraphs [202] to [233] below.
Appropriateness of the service station use
Council alleges that a decision to approve the proposed development, insofar as it
includes a 24 hour, 7 days a week service station, would conflict with the 2003
Planning Scheme on the basis that:

(a) the proposed service station does not meet the relevant assessment criteria; and
(b) the 2003 Planning Scheme states:[37]
[37] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 97 pt 5 div 1
“All uses included in Section A of the Table of Development,
may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the
relevant assessment criteria”.[38]
[38] Exhibit 32.

The relevant assessment criteria referred to by Council include criteria about:

(a) setbacks;
(b) impacts on residential character and amenity;
(c) traffic impacts; and
(d) need.

I deal with each in turn below.
Setbacks
Council alleges that the proposed development is in conflict with performance
criterion PC1 of the Service Station Code because:

(a) by reasons of cl 4.0 of Part 7, Division 1, Chapter 2 of the 2003 Planning
Scheme, “it is desirable that impact assessable development comply with the
Acceptable Solution to ensure that each Performance Criteria is met”;

(b) the “streetscape character” of Skiff Street and York Street is of residential
properties and of a residential community character;

(c) the proposed service station does not comply with acceptable solution AS1.2.2
of the Service Station Code because it abuts an existing residential area, and
its buildings are not “set back a minimum of ten metres from the side and rear
boundaries”;

(d) the appellant has not, and cannot, provide an alternative solution to comply
with performance criterion PC1; and

(e) the buildings and structures are not setback from the side and rear boundaries
“which are appropriate to … the streetscape character of the local area”
resulting in non-compliance with PC1, including having regard to the
“minimum setback” stated in acceptable solution AS1.2.2.[39]
[39] Exhibit 32.

Performance criterion PC1 of the Service Station Code states:
“All buildings, structures and car parking must provide for setbacks from the
street frontage and the side and rear boundaries which are appropriate to the
efficient use of the site and the streetscape character of the local area.”
The related acceptable solutions state:
“AS1.1
The fuel pumps and canopies are set back a minimum of 7.5 metres from the road frontage/s.
AS1.2.1
All buildings and other structures are set back:

a) a minimum of ten metres from the road frontage/s;
b) a minimum of two metres from the side and rear boundaries.
OR
AS1.2.2
The site abuts an existing or future residential area, and all buildings, fuel pumps and structures are set back a minimum of ten metres from the side
and rear boundaries.”

The proposed development does not comply with either acceptable solution because
it includes:

(a) a fuel canopy located, at its closest point, 7.042 metres from the Ferry Road
road frontage;

(b) a 4.5 metre high acoustic barrier located 1.6 metres from the eastern boundary
adjacent 22 Skiff Street;

(c) a canopy over the fuel pumps located 5.273 metres from the eastern boundary
adjacent 22 Skiff Street; and

(d) a 2.6 metre high acoustic barrier (stepping down to 2 metres at the southern
end) located 1.7 metres from the eastern boundary adjacent 19 York Street.[40]
[40] Book of Plans – Exhibit 2 pp 11 and 25-7; Visual Amenity Joint Expert Report – Exhibit 4B p 5

It is not necessary for the proposed development to comply with the acceptable
solutions. Part 7, division 1, chapter 2, clause 4.0 of the 2003 Planning Scheme states:
“It is desirable that impact assessable development comply with the
Acceptable Solutions to ensure that each Performance Criterion is met. However, impact assessable development may comply with an alternative solution, provided that the alterative solution can be demonstrated to meet
the relevant Performance Criterion, to Council’s satisfaction.”
Council submits that the minimum 10 metre setback evinces an obvious planning
intention “to adequately separate an incompatible land use from residential
properties where daily life is played out”.[41] It placed heavy emphasis on the
alternative solution as the “desirable solution”. It submitted that the setback of the
4.5 metre acoustic barrier from 22 Skiff Street is only 16 per cent of the “minimum”
setback; and the setback of the canopy is only around 52 per cent of the “minimum”
setback.[42] Council submits that such setback distances are clearly not appropriate and
accordingly performance criterion PC1 is not satisfied. It describes the setbacks as
“spitting distance for a hard and incompatible use of a service station proposed to
operate 24 hours a day.”[43] It submits that there is no valid reason to depart from the
objective standard of a “minimum of 10 metres”.[44]
[41] Written Submissions for the Gold Coast City Council p 29 [102].
[42] Written Submissions for the Gold Coast City Council pp 29-30 [103]-[104].
[43] Written Submissions for the Gold Coast City Council p 30 [105].
[44] Written Submissions for the Gold Coast City Council p 31 [109].
I do not accept Council’s approach to consideration of compliance with performance
criterion PC1 to be the appropriate approach. I regard the appropriate approach to be
that espoused by Rackemann DCJ in Cass v Gold Coast City Council & Anor [2008]
QPEC 32; [2008] QPELR 556 at 559, where he stated (with respect to the 2003
Planning Scheme):
“[16] The proposal does not adopt some of the “acceptable solutions” in
applicable codes under the planning scheme. The Appellant pointed to that as evidence of conflict. That is not necessarily so. The codes for the planning
scheme are “performance based”. Development requirements take the form
of performance criteria and corresponding acceptable solutions. Development that is consistent with the acceptable solutions is considered to have complied with the requirement, but development which does not accord with an acceptable solution may present an alternative solution, to demonstrate compliance. As the Court said in SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74 ([2007] QPELR 24):
“47 ... the performance criteria are generally outcome focussed,
while acceptable solutions include a ‘desirable’ way to ‘ensure’
compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be
interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the
acceptable solution.
48. It is not legitimate to regard departure from the
acceptable solution as necessarily indicating non-
compliance with the code. In this regard, acceptable solutions differ from development standards which were often feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based
approach, an acceptance of an alternative solution does not
represent a ‘relaxation’ or ‘dispensation’. It is another way
of achieving compliance with the relevant performance
criterion.”
[17] Accordingly, a proposal which departs from an acceptable solution may still be in compliance with the requirements, by the adoption of an alternative solution. In this case, the Co-Respondent contends that the large site area has afforded the opportunity to so design and locate the proposed buildings as to
meet the performance criteria in a different way. …”
(footnotes omitted, emphasis added)
Here, performance criterion PC1 does not call for an assessment of the setbacks in
numerical terms. It calls for an assessment of whether the setback of the proposed
acoustic barriers and canopy from the side and rear boundaries are “appropriate to …
the streetscape character of the local area”.
On the question of the local area and its streetscape character, Council submitted that
the focus should be on the residential pocket to the east of Ferry Road. In doing so,
it again encouraged the court to read down the plain meaning of PC1 by reference to
acceptable solution AS1.2.2. It submitted:[45]
“AS1.2.2 is referring to setbacks from “an existing or future residential
area”. It is not concerned with a setback from a busy road such as Ferry
[45] Written Submissions for the Gold Coast City Council p 31 [107].
[46] This submission was reiterated in oral submissions – See T7-13/L32 – T7-18/L25.
Road, nor is PC 1 on its proper construction.”[46]
In oral submissions, Council submitted for an even more limited approach. It
submitted that the local area was limited to the area adjacent the side and rear
boundaries because that is the area that the acceptable solution was concerned about.[47]
[47] T7-16/L45 – T7-17/L18.
I do not agree that a proper construction of performance criterion PC1 requires the
local area to be confined only to those lots adjacent the road frontage and side and
rear boundaries, nor do I accept that it is limited to residential areas.
Performance criterion PC1 is contained within the Service Station Code. It applies
to any code or impact assessable development application for a service station at any
location across the whole of the Gold Coast local government area.
In each case it will be necessary to make a factual determination about the extent of
the relevant area to be considered.
Performance criterion PC1 calls for:

(a) an identification of “local area”;
(b) an assessment of the “streetscape character” of that area; and
(c) a finding as to whether the proposed development would, in terms of setback,
be “appropriate to” that character.[48]
[48]

In any given case, the “local area” to be considered in an assessment of “streetscape
character” will turn on the facts and circumstances of the case. Its definition is
assisted by experts who identify, from a visual amenity perspective, the likely visual
influence of the proposed development.
In this case, I do not consider that the assessment of the local area is confined to the
residential pocket to the east of Ferry Road. Both Mr McGowan (visual amenity
expert engaged by Council) and Mr Powell (visual amenity expert engaged by the
appellant) agree the visual catchment of the subject site is geographically limited,[49]
but includes a stretch of Ferry Road. They agree the proposed development would
be seen in the context of existing commercial development on the western side of
Ferry Road.[50]
[49] Visual Amenity Joint Experts Report – Exhibit 4B p 9 [31] and p 14 [71].
[50] Visual Amenity Joint Experts Report – Exhibit 4B p 9 [34] and p 14 [72].
In examination-in-chief, Mr Powell defined the visual catchment as the area “at or
about the main intersection and surrounding the subject site”.[51] Mr McGowan took
a similar approach. During cross-examination, Mr McGowan confirmed that, for the
purpose of performance criterion PC1, he regarded the local area as the visual
catchment of the subject site. The catchment extends for several hundred metres
along Ferry Road, partially along Skiff Street, partially along York Street and
partially along Cotlew Street East. Mr McGowan accepted that the local area was not
limited to residential development; and that it included commercial development on
the western side of Ferry Road and Ferry Road itself.[52]
[51] T2-21/L34 – T2-22/L6 (Powell).
[52] T2-69/L20-40 (McGowan).

Council submits that the evidence of Mr Powell about the visual catchment should be
rejected as he “seemed to try and step back from that clear evidence when cross-
examined.” It also submits that Mr Powell “looked the wrong way” as he should have
been focussing on the residential pocket to the east of Ferry Road. I do not accept
either of these submissions.
The criticism with respect to the consistency of Mr Powell’s evidence is unjustified.
During cross-examination, it was suggested to Mr Powell that his focus was on the
intersection at Ferry Road and not on the residential properties to the east. The
transcript confirms that Mr Powell’s evidence during examination-in-chief was that
he regarded the primary area for consideration is “at or about the main intersection
and surrounding the subject site”. There was no inconsistency in his evidence.
In this case, I regard the local area as the area defined by the visual catchment as
identified by the experts. It extends several hundred metres along Ferry Road,
partially along Skiff Street, partially along York Street and partially along Cotlew
Street East. As such, it includes residential development on the eastern side of Ferry
Road, commercial development on the western side of Ferry Road and Ferry Road
itself.
Council submits that the relevant “streetscape character” to be considered for the
setbacks is a “strong residential character”.[53] Council’s submissions are premised
on its inappropriately restrictive approach to the local area.
[53] Written Submissions for the Gold Coast City Council p 31 [108].
As was identified by the experts, the streetscape character of the local area as
identified by them is a mix of commercial and residential.[54]
[54] Visual Amenity Joint Experts Report – Exhibit 4B p 20 [94] and T2-22/L15-22 (Powell); T2-69/L31-
In my view, the proposed setbacks are appropriate to the streetscape character of the
area. As is evident from the photomontages,[55] the development does not create a
jarring effect. It does not crowd the street or the development that it adjoins. The
4.5 metre high acoustic barrier is of similar (in fact lesser) height than the sidewall of
the two storey home at 22 Skiff Street. It is setback a similar distance from the side
boundary and the road frontage as the sidewall of that house.[56] The same is true of
the setback of the acoustic barrier adjacent 19 York Street.[57]
[55]           Book of Plans – Exhibit 2 pp 31, 35 and 37.
[56]           Exhibit 21. See also Book of Plans – Exhibit 2 pp 26 and 27 for relative setbacks of adjoining
[57]           Exhibit 21. See also Book of Plans – Exhibit 2 pp 26 and 27 for relative setbacks of adjoining
Further, the setbacks of the other built form and the car parks sit comfortably with the
streetscape character of the local area. As can be seen from Exhibit 45, the proposed
setback of the canopy and car parks from the road frontages of Skiff Street and Ferry
Road is visually consistent with the setback of the multi-unit dwelling opposite.
During examination-in-chief, Mr Powell explained that the design of the proposed
development does well to address the mixed character of the local area. The
streetscape character that faces Ferry Road is more commercial in its presentation,
including setbacks, and is reflective of the Ferry Road context. The development
transitions as one moves into the Skiff Street and York Street. The setbacks and
streetscape character, when viewed from those locations, include finer grain
residential scale elements such as semi-open style fences, the integration of advanced
plant species and the use of arbours and vegetated trellises.[58]
[58] T2-22/L15 – T2-23/L48; Book of Plans – Exhibit 2 pp 25, 33 and 37.
I am satisfied that the proposed development complies with performance criterion
PC1 of the Service Station Code. The proposed development impresses me as an
exceptional design that not only respects the existing streetscape character, but also
enhances it.[59] The setbacks of the structures are appropriate in their context.
[59] See particularly Book of Plans - Exhibit 2 pp 36 and 37.
Impact on residential character and amenity
Council alleges that the proposed development conflicts with:

(a) the purpose of the Detached Dwelling Domain Place Code, on the basis that
the proposed development does not “preserve and enhance the suburban
character and residential amenity of these low density residential
neighbourhoods”;

(b) performance criterion PC13 of the Detached Dwelling Domain Place Code, on
the basis that the proposed development detracts from the amenity of the local
area, being a residential neighbourhood and community;

(c) performance criterion PC8 of the Detached Dwelling Domain Place Code, on
the basis that the buildings do not “complement or enhance the character of
the local area”, being of a low density residential character;

(d) the intent of the Residential Choice Domain, on the basis that, as a commercial
operation, the proposed development does not achieve a high standard of
residential amenity;

(e) performance criterion PC13 of the Residential Choice Domain Place Code, on
the basis that the proposed development detracts from the amenity of the local
area, being a residential neighbourhood and community;

(f) performance criterion PC9 of the Residential Choice Domain Place Code, on
the basis that the buildings do not “complement or enhance the character of
the local area”, being of a low density residential character;

(g) performance criterion PC1 of the Service Station Code, for the reasons
advanced with respect to setbacks; and

(h) performance criterion PC10 of the Service Station Code, on the basis that the
buildings and structures are not “in keeping with the appearance of the local
area”, being that of residential properties in Skiff Street and York Street.

I have already addressed compliance with performance criterion PC1 of the Service
Station Code in paragraphs [39] to [64] above.
The provisions of the 2003 Planning Scheme relating to character and amenity relied
on by Council are as follows:

(a) clause 1.0 of the Detached Dwelling Domain, which states:[60]
[60] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 102 pt 5
“The purpose of this domain is to provide for low density
residential areas that consist predominantly of low rise, detached dwellings, in a garden landscape, that are well serviced in terms of urban facilities and transport. It is intended to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods.
This domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life,
with opportunities for residential based leisure pursuits.”[61]
[61] This provision was referred to in Written Submissions for the Gold Coast City Council p 33 [116(a)], but there is no allegation of conflict with it.

(b) the purpose of the Detached Dwelling Domain Place Code, which states that
the code seeks to “preserve and enhance the suburban character and
residential amenity of these low density residential neighbourhoods”;[62]
[62] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 110 pt 5

(c) performance criterion PC13 of the Detached Dwelling Domain Place Code,
which states:[63]
[63] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 112.
“The proposed use must not detract from the amenity of the
local area, having regard, but not limited, to the impact of:

a) noise;
b) hours of operation;
c) traffic;
d) lighting;
e) signage;
f) visual amenity;
g) privacy;
h) odour and emissions.”

(d) performance criterion PC8 of the Detached Dwelling Domain Place Code,
which states:[64]
[64] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 111.
“All buildings must be designed and constructed to a high
aesthetic standard, and complement or enhance the character of
the local area.”

(e) the intent of the Residential Choice Domain, which states, in part:[65]
[65] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 113 pt 5
“This domain seeks to:

 achieve a high standard of residential amenity across the
range of dwelling types in the domain.”

(f) performance criterion PC13 of the Residential Choice Domain Place Code,
which is in identical terms to performance criterion PC13 of the Detached
Dwelling Domain Place Code;[66]
[66] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 124.

(g) performance criterion PC9 of the Residential Choice Domain Place Code,
which is in identical terms to performance criterion PC8 of the Detached
Dwelling Domain Place Code;[67]
[67] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 123.

(h) the purpose of the Service Station Code, which states, in part:[68]
[68] Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 132 pt 7
“The code encourages modern, attractive appearance and
design, whilst contributing to the local character and protecting
the amenity of the surrounding areas.”[69]

(i)         performance criterion PC10 of the Service Station Code, which states:[70]
“The design of all buildings and structures must be in keeping
with the appearance of the local area and utilise a design theme
that expresses a modern and functional appearance.”
[69]           This provision was referred to in Written Submissions for the Gold Coast City Council p 34 [116(c)], but there is no allegation of conflict with it.
[70]           Book of Planning Scheme Extracts – Gold Coast Planning Scheme 2003 – Exhibit 11 p 134.

Meaning of amenity

Council in its written submissions noted:[71]
“The word “amenity” is defined in the Macquarie Dictionary in part as: “1.
(pl.) agreeable features, circumstances, ways, etc. 2. (pl) features, facilities, or services of a house, estate, district, etc., which make for a comfortable and pleasant life. 3. The quality of being pleasant or agreeable in situation,
prospect, disposition, etc.; pleasantness…” (underlining added).”
[71] Written Submissions for the Gold Coast City Council p 35 [117].
I accept that amenity is a wide-ranging concept. As was observed by Thomas J in
Broad v Brisbane City Council & Baptist Union of Queensland [1986] 2 Qd R 317 at
319-20:
“The wide-ranging concept of amenity contains many aspects that may be
very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of
the neighbourhood. Other concepts are more elusive such as the standard or
class of the neighbourhood, and the reasonable expectations of a
neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it
is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be
likely to have an effect in the way of “atmosphere”. Whether this is described
as prejudice or otherwise does not matter. It is a recognisable and normal
enough perception of the ordinary resident.”
In that same case, De Jersey J observed at 326:
“There is no doubt that the concept of amenity is wide and flexible. In my
view it may in a particular case embrace not only the effect of a place on the
senses, but also the resident’s subjective perception of his locality. Knowing
the use to which a particular site is or may be put, may affect one’s perception
of amenity.”
As is apparent from these observations, the assessment of character and amenity
impacts does not only involve a consideration of the existing character and amenity
of the area. Regard must also be had to the reasonable expectations of a
neighbourhood, as informed by the planned character and amenity of the area, i.e. the
use to which land in a particular zone or domain may be put.
Reasonable expectations must be judged by reference to the planning controls in
place.[72] As was observed by Skoien DCJ in Bell & Anor v Noosa Shire Council &
Ors [1983] QPLR 311 at 313:
“Some general remarks can appropriately first be made. Because the
proposed use is a consent use, it obviously is one which, in the overall scheme of the Town Plan, should be permitted in an appropriate case. Otherwise it would have been made a prohibited use. In my opinion an appropriate case is one in which one can give effect to the ancient right of a landowner to use his land for any lawful use he desires while at the same time protecting the modern rights (given by Town Planning Schemes) of the other landowners in the vicinity not to have the enjoyment of their land
detrimentally affected to an unreasonable extent. The qualification “to an unreasonable extent” is obviously a necessary one, because any development
of land almost certainly will have some detrimental effect on other land in the vicinity. Under a town planning scheme, a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right. He must also be taken to contemplate that such a parcel of land may come to be put to one of the uses permitted with the consent of the Local Authority. The consent use is always possible: the real question is whether if the proposed use is established on the subject land, it will substantially degrade the area, whether it would unreasonably
disrupt the lives of the occupants of the neighbourhood.”
Identification of the “local area”
[72] Gorman & Ors v Brisbane City Council & Anor [2003] QPEC 035; [2004] QPELR 29, 32 [18].
A number of the provisions relied on by Council require identification of the “local
area” in order to assess the character or amenity impacts.
In the context of these provisions, given the wide-ranging nature of the concept of
amenity, I do not regard the “local area” as limited to the area defined by the visual
catchment of the subject site.[73]
[73] The more limited nature of the local area for the assessment of appropriateness of setbacks to
I regard the “local area” as including the area to the east of Ferry Road, which is
predominantly but not exclusively residential in character, as well as the commercial
development on the western side of Ferry Road and Ferry Road itself.
As the commercial development and Ferry Road are part of the visual catchment of
the subject site, they contribute to the character of the local area, including in terms
of its atmosphere.
Submissions and evidence of the residents
Council notes that the intent and the purpose of the Detached Dwelling Domain Place
Code expressly state “This domain also seeks to enhance and promote the residential
lifestyle attributes of privacy and quiet enjoyment of family life”. It submits that the
proposed development does not do that.[74]
[74] Written Submissions for the Gold Coast City Council p 39 [128].
Council notes that there was strong local opposition to the proposed development. It
says that there were 87 properly made submissions objecting to the proposed
development, as well as a petition with 83 signatures.[75] In doing so, it cites a
statement in the Town Planning Joint Expert Report. This information contradicts the information in the Appeal Book, which records that there were 94 submissions of
which 81 were properly made, five were not properly made and eight submitters made
more than one submission.[76] Either way, I do not find it persuasive to refer only to
the number of submissions. What is relevant is their content. The submissions were
not in evidence before the court.
[75] Written Submissions for the Gold Coast City Council p 39 [129].
[76] Appeal Book – Exhibit 1 Vol 3 Tab 18 p 652.
Statements of evidence were received from a number of individuals opposed to the
development.[77] All individuals are residents or owners of property in the residential
pocket to the east of Ferry Road. It is clear from the statements that the proposed
development is seen as one that would detract from the “residential character” of the
area, particularly because of the residents’ fear of impact from “rat-running”,
increased traffic and car parking issues (including safety impacts), noise, light spill,
air pollution, visual impact of unattractive acoustic fences, litter and congregation of
individuals.[78]
[77] Respondent’s Bundle of Lay Witness Statements - Exhibit 18.
[78] See, for example, Respondent’s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [20]-[32], Tab
Despite the residents describing the area as a “quiet pocket”[79] and as having a
[79] Respondent’s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [6], Tab 4 [9].
“community feel”,[80] many described attributes of the area that highlight that the area
[80] Respondent’s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [8], Tab 2 [7], Tab 3 [8].
is not a pristine residential area. The residents describe how the character of the area
is presently affected by:

(a) cars rat-running through this residential pocket in order to avoid the
intersection of Skiff Street and Ferry Road;

(b) cars queuing down Skiff Street;
(c) employees of the businesses on the western side of Ferry Road parking in Skiff
Street;

(d) noise from trucks refuelling and making deliveries at the BP service station on
the other side of Ferry Road;

(e) noise from Ferry Road;
(f) noise from the outdoor garden area at the Ferry Road Tavern;
(g) noise from commercial rubbish trucks on the opposite side of Ferry Road; and
(h) lighting from commercial uses on the western side of Ferry Road.[81]
[81] Respondent’s Bundle of Lay Witness Statements - Exhibit 18, Tab 1 [10], [18] and 27, Tab 2 [26],

The residents nevertheless enjoy living in the area, particularly it seems due to its
proximity to good schools, surf, and Harry Bond Park; and due to the well-presented
and maintained nature of the houses in the area.[82] These features are unaffected by
the proposed development.
[82] Respondent’s Bundle of Lay Witness Statements - Exhibit 18.
As was observed by Skoien SJDC in Body Corporate for Kelly’s Beach Resort v
Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614 at 622 [60]:
“It is trite to recall that probably all uses of land have some adverse effects
on the occupants of a neighbouring residence. Even the most desirable neighbour must occasionally create noise or other activity which to some extent, even minor, is an annoyance to others. Less desirable neighbouring residences may be the site of barking dogs, noisy children, over-loud television or stereo sets, over-frequent lawn mowing, a noisy vehicle. Human activities which disturb others may be annoyingly early or annoyingly late. The perfect neighbour does not exist except for the most tolerant person. So the test is not whether the amenity would be degraded
but whether it would be unreasonably degraded.”
Will amenity be unreasonably degraded?

As was observed by Dorney QC DCJ in Kangaroo Point Residents Association Inc v
Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203 at 240 [176]:
“While “realistic” expectations do, to some extent, at least, depend upon the
expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of
such expectations.”
Community expectations are to be derived from the statutory planning controls and
the community must be taken to consider the possibility that development may
include that which a local government may permit in an appropriate case.[83]
[83] Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, 133; Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, 16; Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, 60.
In terms of the zoning of the subject site:

(a) both domains list a service station as a use that may be established in the
domain, subject to meeting the relevant assessment criteria;

(b) the purpose of the Detached Dwelling Domain is to provide for low density
residential areas that consist “predominantly”, but not exclusively, of low rise,
detached dwellings; and

(c) the Residential Choice Domain is to support the development of a residential
pattern comprising mixed dwelling types, but also seeks to facilitate a wide
variety of residential support services. In the context of the listing of service
station in the Table of Development, such a use would be regarded as within
the wide variety of residential support services.

In light of these provisions, a service station is one of the uses that should be regarded
as within contemplation in the relevant domains, subject to meeting relevant
assessment criteria.[84]
[84] It is the equivalent of a use that may be permitted by a local authority as referred to in Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311 at 313.
Council submits that the proposed development is located on land that is zoned for
residential purposes and is completely out of character with the existing residential
community.[85] In doing so, Council urged the court to adopt findings made by this
court about the inappropriate impact of service stations in Vanglow Pty Ltd v Council
of the Shire of Albert (1991) QPLR 68; Prime Group Properties Limited v Caloundra
City Council and Darracott & Ors [1995] QPLR 147; Thomas Holdings Pty Ltd v
Gold Coast City Council & Ors [1991] QPLR 32 and MPR Constructions Pty Ltd v
Redland Shire Council [2001] QPEC 68; [2002] QPELR 256.
[85] Written Submissions for the Gold Coast City Council p 50 [164].
Council recently sought to place reliance on these same cases in United Petroleum
Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8. That case also involved
a developer appeal against Council’s refusal of an application for a service station on
land in the Residential Choice Domain under the 2003 Planning Scheme. In that case,
the service station and associated convenience shop was proposed on the Gold Coast
Highway at Mermaid Beach.
Rackemann DCJ observed at [38]:
“The cases relied upon by the respondent and referred to above were cases
in which service stations were prohibited uses in the zone. The situation with the Residential Choice domain is different. Whilst it was pointed out, on behalf of the respondent, that the 2003 Planning Scheme gave no express encouragement for service stations in the Residential Choice Domain or in the Urban Residential Land Use Theme, in the way it did for service stations in various centres, an whilst reference was made to the evidence of some residents as to their actual expectations concerning development, the fact remains that service stations were nevertheless one of the uses which may be considered appropriate in the Residential Choice domain, under the 2003 Planning Scheme subject to meeting the relevant assessment criteria. Reasonable expectations under that Planning Scheme must therefore have included the possibility of land within the domain being developed for a
service station subject to meeting the assessment criteria. The residents’
subjective perceptions that the sense of place would be diminished by the mere presence within their area of a service station, should not be regarded as reasonably held, under the 2003 Planning Scheme, far less determinative,
if the assessment criteria are otherwise met.”
Those observations are equally applicable here with respect to the proposed service
station use.
The same cannot be said with respect to the proposed fast food premises and takeaway
food premises. However, as I have already noted, the appellant accepts conflict in
that regard.
I have no doubt that the views expressed by the residents are honestly held. Residents
of the area may well prefer that the proposed development not proceed, but it is
necessary to have regard to all of the evidence, and whether the proposed service
station complies with the relevant assessment criteria, to determine whether their
expectations are reasonable.
The concerns expressed by the residents relate to amenity impacts occasioned by:

(a) noise, air quality and lighting;
(b) visual amenity and character;
(c) traffic; and
(d) litter and congregation of undesirable individuals.
Noise, air quality and lighting

There are two joint expert reports with respect to noise, air quality and lighting.[86] It
[86] Exhibit 3A and Exhibit 3B.
is apparent from those reports that both Mr King (the expert retained by the appellant)
and Ms Richardson (the expert retained by Council) agree that the proposed
development will meet appropriate health and amenity goals subject to the imposition
of appropriate conditions. The conditions require:

(a) acoustic barriers of a particular design;
(b) roofed enclosures being installed above the drive-through ordering, payment
and collection points;

(c) restricted opening hours of the drive-through and the food tenancy;
(d) fixed plant items being designed and selected to meet particular noise levels;
(e) the tyre air compressor being located at a particular point in the proposed
development, acoustically screened and not being used between 10pm and
7am;

(f) deliveries being restricted in terms of the hours of the day that they occur;
(g) insulation and maintenance of plant and equipment, including the bowser
vapour recovery system;

(h) location of tank breather pipes in the north-west corner of the subject site with
a minimum discharge height;
(i) the installation of appropriate landscaping;

(j) the installation of appropriate kitchen cooking exhaust systems, pursuant to
AS1668.2; and

(k) completion of a compliance audit during the commissioning stage of the
development.[87]
[87] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 21-2 [53].

The appellant agrees to, and adopts, the recommendations of the noise, air quality and
lighting experts.
The experts both expressed the opinion that the proposed development does not
conflict with performance criteria PC13 of the Detached Dwelling Domain Place
Code and PC13 of the Residential Choice Domain Place Code.[88]
[88] Second Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3B p 2 [2].
I accept the unchallenged views expressed by those experts. It is apparent from the
comprehensive joint reports that the opinions had been expressed only after careful
consideration of relevant issues. The experts had regard to:

(a) relevant provisions of the 2003 Planning Scheme and City Plan 2016;[89]
(b) the views of residents opposed to the development as expressed in their
[89] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 5-11.
submissions to Council;[90]
[90] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A p 12.

(c) acoustic reports provided as part of the development application and Council’s
information request;[91]
[91] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 13-5.

(d) further acoustic assessment undertaken by Mr King, which involved
conducting ambient background noise monitoring;[92]
[92] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 15-6.

(e) the odour management plan provided as part of the development application;[93]
(f) detailed air quality assessment prepared under the supervision of Mr King;[94]
(g) the conceptual lighting design plan provided as part of the development
[93] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A p 16.
[94] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 16-7.
application;[95] and

[95] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A p 17.
[96] Noise, Air Quality and Lighting Joint Expert Report – Exhibit 3A pp 18-20.

(h) results of additional lighting measurements and inspection.[96]

The reports do not demonstrate that there will be no noise, air quality and lighting
impacts from the proposed development.[97] I am nevertheless satisfied that there is no
[97] T3-41/L11-30 (Richardson).
adverse amenity impacts in terms of such matters given:

(a) the unchallenged evidence of the experts that the proposed development will
meet appropriate health and amenity goals subject to the imposition of
appropriate conditions.[98] The empirical benchmarks and standards assume a
[98] T3-32/L40 – T3-35/L18 (King) and T3-38/L41 – T3-40/L46 (Richardson).
standard designed to ensure impacts are not unacceptable to a reasonable
person who does not have undue sensitivity;[99] and

(b) as is noted in paragraph [80] above, the existing character of the area is already
affected by noise from traffic and commercial uses in the local area and
lighting associated with commercial uses in the area.
[99] T3-40/L38-46 (Richardson).

Visual amenity and character

The proposed development presents with prominent signage, commercial lighting and
extensive areas of hardstand. It has a definite commercial character.[100]
[100] Visual Amenity Joint Experts Report – Exhibit 4B p 14 [74].
Mr Reynolds, the town planner engaged by Council, acknowledged that building
height and building site cover are not a concern in this case.[101] In his opinion,
however, several other matters were of concern. These include setbacks, immediately
abutting residential properties, 4.5 metre acoustic wall, views onto a site of lit expanse
at night, commercial appearance, signs, canopy, hardstands, traffic in Skiff Street,
drive-through fast food, trucks and commercial vehicles for fuel and servicing, and
the 24 hour operation.
[101] Town Planning Joint Expert Report – Exhibit 7 p 19 [83].
In order to assess whether the aspects of the proposed development referred to by
Mr Reynolds demonstrate an unacceptable impact, it is appropriate to have regard to
relevant provisions of the 2003 Planning Scheme. The relevant provisions are
outlined in paragraph [67] above. They call for a consideration of:

(a) the amenity and character of the local area;
(b) whether the proposed development detracts from that amenity;[102] and
(c) whether the buildings are designed to complement or enhance the character of
[102] Performance criterion PC13 of the Detached Dwelling Domain Place Code and Performance criterion PC13 of the Residential Choice Domain Place Code.
the local area and are in keeping with the local area.[103]
[103] Performance criterion PC8 of the Detached Dwelling Domain Place Code; performance criterion PC9 of the Residential Choice Domain Place Code and performance criterion PC10 of the Service Station Code.

I have already dealt with the extent of the local area with respect to character and
amenity issues generally in paragraphs [74] to [76] above. The local area to be
considered when assessing character and amenity impacts is more extensive than that
which might be considered when assessing impacts on streetscape character. The
geographical limitations of the visual catchment of the subject site are, however,
relevant to an assessment of visual amenity (as opposed to character) impacts.
As is noted in paragraph [54] above, the visual amenity experts agree that the visual
catchment of the subject site includes a stretch of Ferry Road and that the proposed
development would be seen in the context of the existing commercial development.[104]
[104] Visual Amenity Joint Experts Report – Exhibit 4B p 14 [72] (McGowan).
There is also no dispute that:

(a) there are clusters of uses and different intensities of activity on Ferry Road;[105]
(b) near the land, on the eastern side of Ferry Road, a number of commercial uses
[105] Visual Amenity Joint Experts Report – Exhibit 4B p 14 [72] (McGowan) and p 10 Figure 2
are present, generally in a residential built form that has been adapted for
commercial purposes;[106]
[106] Visual Amenity Joint Experts Report – Exhibit 4B p 14 [73] (McGowan) and p 12 [47] (Powell).

(c) commercial development dominates the western side of Ferry Road;[107]
(d) commercial development is not an insignificant contributor to the character of
[107] Visual Amenity Joint Experts Report – Exhibit 4B p 4 [9], p 14 [74] (McGowan) and p 11 [43]
the local area;[108]
[108] T2-69/L34-40 (McGowan) and Visual Amenity Joint Experts Report – Exhibit 4B p 10 Figure 2

(e) Ferry Road is a road that is six lanes wide and is a large hardstand area;[109]
(f) the non-residential development on the western side of Ferry Road has
[109] Book of Plans – Exhibit 2 pp 3, 30 and 32; Visual Amenity Joint Experts Report – Exhibit 4B p 14
building materials, patterns, textures and colours that are similar to the
buildings proposed;[110]
[110] T3-26/L28-35 (McGowan); Visual Amenity Joint Experts Report – Exhibit 4B p 12 [48] (Powell).

(g) building height, building setback and site coverage are indicia of the massing
and proportions of a building;[111]
[111] T3-25/L35-47 (McGowan).

(h) the massing and proportions of the buildings comply with applicable
performance criteria in the Detached Dwelling Domain Place Code in terms
of building height, building setback and site coverage;[112]
[112]         T3-26/L1-7 (McGowan).
(i)         the proposed development has a fence and landscaping that are residential in
appearance;[113]
[113]         T3-26/L37-41 (McGowan); T2-22/L28 – T2-23/L47 (Powell); Visual Amenity Joint Experts Report – Exhibit 4B p 12 [48]-[49] (Powell).

(j) once the proposed landscaping has matured, so long as it is appropriately
maintained, the proposal will not generate unacceptable lighting or privacy
impacts on neighbouring residents;[114]
[114] Visual Amenity Joint Experts Report – Exhibit 4B p 17 [84] (McGowan) and p 20 [95].

(k) planned character of an area is important in a visual assessment;[115]
(l) it would be wrong to describe the planned character of the Residential Choice
[115] T2-77/L20-21 (McGowan).
Domain as only residential;[116]
[116] T2-77/L1-15 (McGowan).

(m) the planned character of the domain admits of non-residential uses that, in the
right circumstances, include a service station;[117] and

(n) if a service station is contemplated by the planning documents, such a use
would necessarily include a service station form with a canopy, hardstand,
lighting and would be of a commercial appearance.[118]
[117] T2-77/L20-30 (McGowan); Visual Amenity Joint Experts Report – Exhibit 4B p 11 [44] (Powell).
[118] T2-74/L1-13 (McGowan).

Nevertheless, the visual amenity experts express different opinions about the visual
impact of the proposed development on the amenity of the local area and the impact
of the building design on the character of the local area.
Mr McGowan’s primary approach to the character issues appears to mirror the
approach he took in United Petroleum Pty Ltd v Gold Coast City Council & Anor
[2017] QPEC 8.[119] Rackemann DCJ’s description of his evidence, at [61], is apt in
this case:
“Mr McGowan took a strong stand against any notion of a service station on
the subject site. He saw the fact that the subject development would be identifiable as a service station as a negative, even if it were thought to be the best designed service station on the planet. He appeared to be influenced by a misreading of the planning scheme provisions. It is difficult to see how any amount of set-back would overcome his objections, which were rooted in a fundamental objection to the sight of a service station in this context. I do not accept that strict approach, but that is not to say that I accept Mr
Curtis’ view either.”
[119] TT2-72/L31 – T2-74/L29 (McGowan).
I similarly do not accept Mr McGowan’s approach. As I have already noted, a service
station is a use that ought reasonably be expected as a possible use in the applicable
domains.
Leaving aside Mr McGowan’s fundamental objection to the sight of a service station
use on the subject site, Mr McGowan otherwise opines that Ferry Road functions as
an “edge” dividing two distinctly different character areas. To the extent that there is
commercial development on the eastern side of Ferry Road, he regards it to be of a
different character as it involves less signage. He also considers it to have a finer
grain of built form, resulting from a residential lot pattern, smaller building footprints
and less hard stand.[120]
[120] Visual Amenity Joint Experts Report – Exhibit 4B p 14 [72]-[73].
Mr Powell, on the other hand, says the subject site would be experienced more as a
“node” of mixed residential and commercial development surrounding an
intersection,[121] particularly as residents traverse the area.
[121] Visual Amenity Joint Experts Report – Exhibit 4B pp 9-11 [32]-[41].
There is, to my mind, some merit in what both experts say. I do not, however, regard
it as necessary to resolve the differences between the experts in terms of whether there
is a relevant “edge” or “node”. To my mind, the pertinent matters are as follows.
The existing character of the non-residential development on the eastern side of Ferry
Road generally involves less signage and a finer, residential, grain of built form,
although the childcare centre and the swim school are notable exceptions.
The commercial development on the western side is, on the other hand, dominated by
larger buildings and expanses of hardstand (carparking and manoeuvring areas). This
more dominant commercial character does not presently exist on the eastern side of
Ferry Road.
The dominant commercial character of development on the western side of Ferry
Road nevertheless has a perceptible influence on the character and visual amenity of
the predominantly residential pocket on the eastern side of Ferry Road. The residents
of the area would be aware of its presence. They traverse past the commercial
development to access their homes. It is also visible from the subject site and would
dominate the view as residents wait at the lights at Skiff Street. The commercial
development on the western side of Ferry Road is also clearly visible, during the day
and at night, from the residences at 23 Skiff Street, 19 York Street and 22 Skiff
Street.[122]
[122] Book of Plans - Exhibit 2 pp 36, 38, 40, 42, 4, 46, 48 and 50.

facility. They may, however, be included as part of a neighbourhood centre,
if their hours are limited to the standard trading hours of the centre and they
serve the needs of the immediate neighbourhood; and

(f) residential amenity is sought to be protected by ensuring “adequate
separation, design and management” for activities that generate emissions or
impacts. In many cases, one might expect that adequate separation would require service stations not adjoin residential premises. However, in some
cases, the particular attributes of the neighbourhood and its amenity may be
such that adequate separation can be achieved using setbacks.

This context is not supportive of a construction of s 3.3.3.1(9) that discourages service
station uses per se, as opposed to service station uses that compromise the amenity of
suburban neighbourhoods.
Council also submits that there is evident conflict with s 3.4.5.1(14) of the strategic
framework, which it submits provides a clear statement of planning intention that a
service station should not be established on the subject site.[410] I disagree. That
provision deals with a stand-alone service station, which is not proposed here.
[410] Written Submissions for the Gold Coast City Council p 15 [44].
The evidence about the size of the trade area makes it difficult to characterise the
proposed development as one of a scale that is “limited to the specific needs of [the]
neighbourhood”. However, Council does not rely on that provision as ones that
“directly discourage(s) the proposed service station on the subject site”. This is,
perhaps, unsurprising given the economic experts agree that the proposed
development will have no significant impact on the hierarchy of centres.[411] In any
event, I consider that the need for the proposed development would justify approval
despite the extent of the trade area that would be served by the proposed development,
particularly given the absence of adverse character and amenity impact.
[411] Economic Need Joint Expert Report – Exhibit 6 p 41 [86].
Low Density Residential Zone Code
Council alleges that the proposed service station is in direct conflict with
s 6.2.1.2(2)(a)(vi) of the Low density residential zone code of City Plan 2016.[412] That
provision states that the purpose of that code will be achieved through an overall
outcome that “Land uses … that are incompatible, such as Service stations … are not
located in the zone”.[413]
[412] Written Submissions for the Gold Coast City Council p 15 [47].
[413] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 114.
This statement of planning intent must be read in the context of the other provisions
of City Plan 2016. In particular, regard should be had to those provisions, identified
in paragraph [352] above, that admit of the possibility of land in the low density residential zone being developed for a neighbourhood centre that includes a service
station, provided it supports the immediate neighbourhood and has operating hours
limited to the standard trading hours of the centre.
Given the primacy provided to provisions of the strategic framework, this provision
in the low density residential zone code should properly be regarded as a statement
that stand-alone service stations are incompatible and are not to be located in the zone.
The proposed development is not a stand-alone service station; rather it is a
neighbourhood centre. As such, there is no clear conflict as alleged by Council.
Further, and in any event, I regard the grounds as sufficient to overcome any such
conflict, should it exist, particularly given the absence of adverse amenity impacts.
Council submits that s 6.2.1.2(2)(a)(vi) is also reinforced by performance outcome
PO5 of the Low density residential zone code, which states:[414]
“Development is low density to complement the existing residential
development of the neighbourhood and protects its Dwelling house
character.”
[414] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 118.
Council submits:[415]
“On any sensible and balanced view, a proposed 24 hour service station,
drive through fast food and take-away premises directly abutting low density
residential dwellings is neither “low density”, nor complementary to the
existing residential development or protection of the dwelling house
character.”
[415] Written Submissions for the Gold Coast City Council p 16 [49].
In response, the appellant submits that this provision is not relevant to land use
conflict as it relates to matters of residential density. Mr Reynolds, the town planner
retained by Council, accepted this.[416] The context in which the provision appears
supports the appellant’s construction.
[416] T5-107/L1-17.
However, even if the provision is not concerned only with residential density, it does
not follow that a 24-hour service station, drive-through fast food and take-away
premises directly abutting low density residential dwellings is not “low density”.
Only one of the lots forming part of the subject site is within the low density
residential zone. Features of the service station that are located on, or occur on, the
land in the low density residential zone include:

(a) the canopy and bowsers of the service station;
(b) the entry and exit point from Skiff Street;
(c) the acoustic barrier (including the 4.5 metre high barrier);
(d) fuel truck filling station and the fuel filling point;
(e) manoeuvring points for customers through the Site; and
(f) hardstand areas of the service station.

These aspects of the development do not involve a density that will unacceptably
impact on the character of the neighbourhood. For reasons already identified above
in relation to setbacks and character and amenity impacts, I am satisfied that the
proposed development incorporates setbacks and building height that complement the
existing residential development of the neighbourhood. The proposed development
does not adversely affect the dwelling house character of the area.
Medium density residential zone code
The purpose and overall outcomes of the medium density residential zone code of
City Plan 2016 also apply.
Section 6.2.2.2 of that code states that the purpose of the code is:[417]
“to provide for a range and mix of dwelling types including Dwelling houses
and Multiple dwellings supported by Community uses and small-scale
services and facilities that cater for local residents.”
[417] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 120.
Council submits the proposed development is neither small-scale, nor a service that
caters only for local residents.[418] I accept that to be so. The provision does not require
that the facilities cater “only” to local residents. Other provisions in City Plan 2016
do, however, place emphasis on limiting the scale to that which serves the immediate neighbourhood. As I have already identified, I consider the grounds to be sufficient
in this case to overcome any such conflict.
[418] Written Submissions for the Gold Coast City Council p 17 [57].
Section 6.2.2.2(2)(a)(v) of the medium density residential zone code states:[419]
“Land uses … which carry higher potential for impacts on amenity such as
Car washes, Childcare centres, Health care services, Food and drink outlets, Shops (other than a supermarket), Veterinary services, Community care centres, Community uses, Emergency services, Educational establishments, and Places of Worship may be considered if appropriately designed and
located and not detract from the residential amenity of the area”.
[419] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 121.
Until the adoption of City Plan 2016 Version 4, the listed uses included reference to
“Service stations”.[420] Council submits that this amendment means service stations
are not expressly considered.[421] However, as with the overall outcomes of the low
density residential zone code, this provision is to be construed in light of the
provisions of the strategic framework. The strategic framework provides the material
consideration in this case.
[420] Book of Planning Scheme Extracts – City Plan 2016 Version 3 – Exhibit 12 p 125.
[421] Written Submissions for the Gold Coast City Council pp 17-8 [58].
Service station code
Council submits that performance outcome PO4 of the service station code also
provides a direct and strong statement of discouragement of the proposed
development at the subject site.[422] It states “Service stations do not abut a residential
land use”. No acceptable outcome is provided.[423]
[422] Written Submissions for the Gold Coast City Council p 17 [53].
[423] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 138.
This performance outcome should be read, as a matter of construction, with:

(a) the purpose of the Service station code to:[424]
[424] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 137.
“facilitate the design and safe operation of Service stations
while avoiding any environmental impacts on neighbouring
properties.”

(b) overall outcome (2)(a), which states:[425]
“Service stations are designed and located to avoid any adverse
impacts on residential land uses”.
[425] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 137.

The proposed service station use directly abuts residential land uses to the east. As
such, there is clear conflict with performance outcome PO4.
Council submits that this should be afforded significant and overwhelming weight in
the assessment, and would lead the court to a refusal of the proposed development.[426]
In this respect, Council notes that modern service stations situated in the trade area
and beyond are not located immediately adjoining residential land uses, consistent
with the planning intention of performance outcome PO4. That may well be the case,
but each development application must be assessed on its own merits. The approval
of the proposed development would not cut across the implementation of Council’s
planning policy. The policy is still equally achievable in other cases, regardless of
whether the proposed development is approved.
[426] Written Submissions for the Gold Coast City Council p 17 [55].
In any event, I do not accept that the non-compliance with performance outcome PO4
should be afforded significant and overwhelming weight in the assessment given:

(a) there is no allegation of conflict with performance outcomes PO5 or PO6,
which state:[427]
[427] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 138.
“PO5
The Service station location does not adversely impact the environmental values, habitat values or public open space.
PO6
The Service station is located:

(a) as part of a as part of a neighbourhood or mixed use centre (where operated during the standard trading hours of the centre);
(b) to complement established non-residential uses in urban areas;
(c) on a higher order road; or
(d) adjacent to a highway or motorway interchange at a
service node.”

(b) there is no allegation of conflict with the purpose of the service station code or
the overall outcomes; and

(c) s 5.3.3(4)(c), which provides for code assessable development, states that
development that complies with the purpose and overall outcomes of the code complies with the code. Although the proposed development is impact
assessable under City Plan 2016, it is difficult to see why the service station
code should be interpreted differently in the context of impact assessment.[428]
[428] See United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, [118].

Conclusion regarding City Plan 2016

In summary, I do not consider that an assessment of the proposed development against
the provisions of City Plan 2016 indicates that the proposed development should be
refused.
Under City Plan 2016, the proposed development would constitute a neighbourhood
centre. The strategic framework admits of the possibility of neighbourhood centres
in the low density residential zone and the medium density residential zone.
Although the extent of the trade area served by the proposed development and the
drive-through component of the fast food premises may create conflict with City Plan
2016, no such conflict is relied on by Council and the significance of any such conflict
is, in any event, reduced given:

(a) there is no unacceptable impact on the centre hierarchy; and
(b) there are no adverse impacts occasioned by the proposed development.

As such, I do not consider that a decision to approve the proposed development
would:

(a) cut across or undermine the planning intent in City Plan 2016; or
(b) result in a significant conflict with City Plan 2016 that would warrant refusal
despite the identified grounds in this case.

Other considerations relevant to the exercise of the discretion

Ordinarily, the history of the application and evolution of the issues is of no particular
moment. However, in this case the appellant submits it is relevant to the question of
whether weight should be placed on the current planning scheme, Gold Coast City
Plan 2016 (Version 4, effective 3 July 2017).
History of the application
The development application was made on or about 14 October 2015.[429] At that time,
the 2003 Planning Scheme was in force.[430]
[429] Town Planning Joint Expert Report – Exhibit 7 p 8 [21].
[430] Town Planning Joint Expert Report – Exhibit 7 p 8 [21].
The Chief Executive under the Sustainable Planning Act 2009 (Qld) (“Chief
Executive”) was a referral agency for the development application due to the subject
site being located on Ferry Road, which is a State-controlled road.[431]
[431] Appeal Book – Exhibit 1 Volume 3 Tab 11.
On 2 February 2016, City Plan 2016 commenced.[432]
[432] Report of Mr Schomburgk – Exhibit 8 p 1 [4].
The development application was publicly notified between May and June 2016.[433]
[433] Report of Mr Schomburgk – Exhibit 8 p 1 [4].
In a report presented to a meeting of Council on 7 December 2016, Council officers:

(a) noted that the application had been:
(i) lodged under the 2003 Planning Scheme; and
(ii) carefully reviewed having regard to s 317 of the Sustainable Planning
Act 2009, which permits an assessment manager to give weight it is
satisfied is appropriate to a planning scheme that comes into effect after
the development application is made but before the day the decision
stage for the application started;[434]

(b) opined that the outcome is not materially different than what may be achieved
under City Plan 2016 and, as such, the application would be assessed under
the 2003 Planning Scheme;[435]
[434] Appeal Book – Exhibit 1 Volume 3 Tab 22 p 837.
[435] Appeal Book – Exhibit 1 Volume 3 Tab 22 p 837.

(c) concluded that “an assessment of the proposal has determined that the
proposed development does not compromise the achievement of the Desired
Environmental Outcomes (DEO’s) and satisfies the intent and applicable
codes of the Planning Scheme, subject to conditions relating to the on-going
operation of the proposal”;[436] and

[436] Appeal Book – Exhibit 1 Volume 3 Tab 22 p 863.
[437] Appeal Book – Exhibit 1 Volume 3 Tab 22 p 863.

(d) recommended approval subject to identified conditions of approval.[437]

The Council Officer report included a copy of the amended concurrence agency
response dated 7 October 2016,[438] which:
[438] Appeal Book – Exhibit 1 Volume 3 Tab 22 pp 989-996.

(a) noted the Chief Executive’s decision that the development should be approved
subject to conditions in Attachment 1; and

(b) recorded the reasons for the Chief Executive’s decision, including that the
approval with conditions would “ensure the road access location to the State-
controlled road from the site does not compromise the safety and efficiency of
the State-controlled road”.

In its decision notice dated 12 December 2016, Council notified its decision, made 7
December 2017, to refuse the proposed development.[439] The reasons for refusal
specified in the decision notice related to alleged conflict with 11 identified
provisions of the 2003 Planning Scheme and an absence of sufficient grounds to
justify a decision to approve the proposed development in light of the identified
conflicts. The decision notice contained no reference to City Plan 2016.
[439] Appeal Book – Exhibit 1 Volume 3 Tab 23.
Evolution of the issues in dispute
On 9 January 2017, the appellant filed its Notice of Appeal in which it took issue with
Council’s reasons for refusal.[440]
[440] Appeal Book – Exhibit 1 Volume 1 Tab 1.
The Chief Executive did not elect to join the appeal.[441]
[441] As a referral agency, the Chief Executive was entitled to elect to join.
On 12 May 2017, pursuant to an order of this court,[442] Council amended its reasons
for refusal.[443] The document detailing the amendments was 12 pages in length (single
spaced) and contained allegations of conflict with an additional 27 provisions of the
2003 Planning Scheme, as well as over 50 provisions of Gold Coast City Plan 2016
(Version 3, effective 17 May 2016).[444]
[442]         Appeal Book – Exhibit 1 Volume 1 Tab 2.
[443]         Appeal Book – Exhibit 1 Volume 1 Tab 3.
[444]         Appeal Book – Exhibit 1 Volume 1 Tab 3.
Council further amended its reasons for refusal on 28 July 2017.[445] Those
amendments deleted reference to two alleged conflicts with the 2003 Planning
Scheme and five allegations of conflict with Gold Coast City Plan 2016 (Version 3,
effective 17 May 2016).
[445] Appeal Book – Exhibit 1 Volume 1 Tab 5.
Council again amended its reasons for refusal on 7 September 2017[446] in a document
titled “Respondent’s Second Amended and Further Issues”. That document
maintained the alleged conflicts with the 2003 Planning Scheme and Gold Coast City
Plan 2016 (Version 3, effective 17 May 2016), but added allegations of conflict with
seven provisions of Gold Coast City Plan 2016 (Version 4, effective 3 July 2017).
An order of this court made 20 October 2017 permitted Council to rely on those issues
in dispute.[447]
[446] Appeal Book – Exhibit 1 Volume 1 Tab 6.
[447] Appeal Book – Exhibit 1 Volume 1 Tab 7.
On the first day of the hearing, Council produced a document titled “Respondent’s
Consolidated Grounds for Refusal”,[448] which it submitted consolidated the grounds
in the decision notice and the other documents.[449] It contained allegations of conflict
with 31 provisions of the 2003 Planning Scheme, 43 provisions of City Plan 2016
Version 3 and seven provisions of City Plan 2016 Version 4.
[448] Exhibit 22.
[449] It is unfortunate that Council had not produced a consolidated document at the start as by
The Respondent’s Consolidated Grounds for Refusal contained no allegation that
weight (let alone determinative weight) should be placed on City Plan 2016. At best,
the issue Council had put in dispute prior to commencement of the trial was whether
weight should be afforded to City Plan 2016 because a decision to approve the
proposed development would conflict with identified provisions of City Plan 2016
and could not be conditioned to satisfactorily mitigate the conflict.

Following a number of exchanges with the court on the first day of the hearing, it
seems Council considered the real issues in dispute. Council reviewed its position
and, on day 5 of the hearing, with the agreement of both parties,[450] I made an order
redefining the issues in dispute by reference to a document titled “Respondent’s
Points of Refusal”.[451]
Relevance of history and evolution of the issues to the weight to be placed on City
[450] See T5-4/L1 – T5-6/L6 and T5-99/L16 – T5-103/L11.
[451] Exhibit 32. The document contained handwritten amendments. See T5-4/L1 – T5-6/L6
Plan 2016
The appellant submits that the weight to be given to City Plan 2016 should be
considered against the background of:[452]
[452] Written Submissions on behalf of the Appellant pp 11-2 [53].

(a) the view expressed by Mr Reynolds that, in determining the weight to be given

to a planning instrument, fairness to the applicant is relevant;[453]

[453] T5-121/L26 – T5-122/L28.

(b) City Plan 2016 commenced after the development application the subject of
this appeal was lodged with Council;

(c) City Plan 2016 has been amended during the life of the appeal, including as
late as July 2017. Some of the latest amendments to the planning scheme make
the position more difficult for the appellant and were not in force at the time
the application was made. For example, Council amended the medium density
residential zone code to remove “service station” from the list of uses that
“may be considered if appropriately designed and located and not detract from
the residential amenity of the area”;[454]
[454] Compare Exhibit 31 p 121 to Exhibit 12 p 125.

(d) Council officers recommended that the proposed development be approved
with knowledge of the contents of the 2016 planning scheme;[455]
[455] Appeal Book – Exhibit 1 Volume 3 Tab 22 p 837.

(e) Council did not identify City Plan 2016 as warranting refusal of the
development in the decision notice, in circumstances where the decision to
refuse was made contrary to the Council officers’ recommendation to approve
subject to conditions;[456]
[456] Appeal Book – Exhibit 1 Volume 3 Tab 23.

(f) after the commencement of City Plan 2016, the appellant still had the ability
to lodge a development application (superseded planning scheme) with respect
to the latest round of amendments to that scheme. Such an application would require Council to ignore the contents of City Plan 2016 planning scheme, in
particular those that are now relied on by Council to defeat the proposed
development;[457] and

(g) City Plan 2016 was first raised as a reason for refusal, not by Council itself
during the IDAS process, but by Council’s lawyers in the context of this
appeal.[458]
[457] T5-124/L3-24 (Reynolds). In other words, a development application (superseded planning scheme) could still be lodged pursuant to version 3 of City Plan 2016.
[458] T5-128/L25-36 (Reynolds).

Council did not cavil with these matters, nor submit that they were not relevant to the
court’s exercise of discretion.
I accept that fairness to the applicant is relevant to the exercise of the discretion.
As I have noted at paragraph [379] above, I do not consider that a decision to approve
the proposed development would:

(a) cut across or undermine the planning intent in City Plan 2016; or
(b) result in a significant conflict with City Plan 2016 that would warrant refusal
despite the identified grounds in this case.

In any event, having regard to the matters referred to in paragraph [396] above, were
the provisions of City Plan 2016 such to call for a refusal of the proposed
development, it would be unfair to give them significant and determinative weight.
This is particularly so because of the manner in which Council conducted the
litigation.
Council only put compliance with City Plan 2016 in issue after the appellant had lost
its right to make a development application (superseded planning scheme) or
otherwise pursue compensation.[459] Had the appellant made a development
application (superseded planning scheme), the application would have only been
assessed against the 2003 Planning Scheme.[460] I can appreciate why the appellant
may not have pursued those rights. Until Council put City Plan 2016 in issue, it appeared that Council held the same view as its officers, namely that City Plan 2016
was materially the same in its application to the proposed development.
[459] See Report of Mr Schomburgk – Exhibit 8 pp 1-2 [4] and [5]. See also s 95 and s 704 of the
[460] See s 317 of the Sustainable Planning Act 2009.
Absent the loss of rights by the appellant, it may well have been appropriate to give
significant weight to City Plan given the development application was made in its
shadow and at a time where its contents were well known.[461]
[461] See United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, [109].
Residual discretion
Council submits that in the event I find that there are sufficient grounds to overcome
any conflict with the 2003 Planning Scheme:[462]
“the court is nevertheless required to exercise its residual discretion in order
to decide whether to confirm or set aside the Council’s decision. This
requires a balancing exercise.”
[462] Written Submissions for the Gold Coast City Council p 97 [327].
Council relies on two factors that it submits weigh against setting aside Council’s
decision, namely:

(a) the 2003 Planning Scheme and City Plan 2016 in combination evince a clear
and consistent planning policy against the establishment of service stations in
residential zones or abutting residential uses. It submits the court is not the
planning authority and should not substitute a different policy position; and

(b) the weight of evidence is against approval of the development application.

Council provided no authority for its submission that there is a residual discretion. It
seems Council has assumed that the reference in s 496 of the Sustainable Planning
Act 2009 to the court’s ability to confirm or set aside the decision appealed against
confers a residual discretion. However, that provision must be construed in the
context of s 495 of the Sustainable Planning Act 2009, which stipulates that the
appeal is by way of hearing anew. The consequence is that the court stands in the
shoes of the assessment manager and, as is noted in paragraph [21] above, assesses
and decides the appeal by reference to s 314 and s 326 of the Sustainable Planning
Act 2009. The framework of the legislation does not admit of a residual discretion to
make a decision contrary to the result of that assessment.
Even if there is a residual discretion, I do not accept that, in this case, the two factors
cited by Council weigh against an approval.
For the reasons already canvassed, I do not regard the weight of evidence to be against
approval of the development application.
As for Council’s other factor, I acknowledge the observations of White J (with whom
Thomas and Williams JJA agreed) in Grosser v Council of the Gold Coast [2001]
QCA 423; (2001) 117 LGERA 153 at 163-4 [38] that:
““The proper approach of the Planning and Environment Court and of its
predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000. The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211:
“It should not be necessary to repeat it but his (sic) Court is not
the Planning Authority for the City of Brisbane. It is not this
Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful
and proper has to adopt (sic) (Brazier v Brisbane City Council (1972) 26 LGRA 322 at 327). As was observed by Carter J in Sheezel v Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for
this Court to deal with an individual application for rezoning in a way which might be construed as
determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation
principle, I feel that to allow this appeal would be to ‘cut across’
in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited
for community comment.”
This stated a proposition which the Court said was “common sense ... for which no authority was required.” …”
(emphasis added)
However, a decision to approve this particular service station would not cut across
Council’s planning strategy, evident particularly in City Plan 2016, to ensure service
stations are designed and located to avoid any adverse impact on residential land uses
and ensure residential amenity is protected from any adverse impacts. The strategy
will remain as a relevant and applicable strategy for the assessment of all future
service stations. The approval of the proposed development will not cut across
Council’s ability to implement that policy in the future.
Unlike in Grosser v Council of the Gold Coast [2001] QCA 423; (2001) 117 LGERA
153, my decision to approve the proposed development is not founded on a conclusion
that the subject site should not have been included in the domain under the 2003
Planning Scheme or the zone in City Plan 2016 in which it was included.[463] My
conclusions are based on my assessment of the merits of this particular proposed
development in the context in which it sits.
[463] Grosser v Council of the Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 163 [37] and 164-5 [41]-[43]. The observation in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 was similarly made in a context where the planning strategy was being
Conclusion
For the reasons provided above, I am satisfied that the appellant has discharged its
onus. The appeal will, in due course, be allowed. I will adjourn the further hearing
to allow for the formulation of reasonable and relevant conditions.

div 1 ch 2.
ch 2 cl 4.0 sub-cl 4.6.1.
div 1 ch 2 cl 6.0 and p 128 pt 7 div 1 ch 2 cl 4.0.
div 1 ch 1 cl 4.0.
div 1 ch 2 cl 4.0.
div 1 ch 2 cl 4.0.
div 1 ch 2 cl 6.0.
div 1 ch 2 cl 4.0.
div 1 ch 2 cl 4.0.
div 1 ch 1 cl 4.0.
ch 2 cl 4.0 sub-cl 4.6.1.
ch 2 cl 4.0 sub-cl 4.6.1.
[15].

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors
406, 412-3 [40]-[43]. The decision was not disturbed on appeal to the Court of Appeal in Gold

See [2011] QPEC 1; [2011] QPELR noted at 59 [16], there was no suggestion on appeal that Rackemann DCJ had misconstrued any particular provisions of the planning scheme when dealing with it. See also Main Beach Progress Association Inc & Ors v Gold Coast City Council & Anor [2008] QPEC 37; [2008] QPELR 675, 691 [100]; WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54; [2009] QPELR 746, 749-50 [25]-[27] and WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126, all of which considered the 2003 Planning Scheme.
45 and T2-70/L21-3 (McGowan).
houses (although acoustic barrier height is different to that proposed). The relative setbacks can also
be calculated from the distances provided in the Visual Amenity Joint Experts Report – Exhibit 4B
p 5 [15].
houses (although acoustic barrier height is different to that proposed).
div 2 ch 4 cl 1.0.
div 2 ch 4 cl 5.0 sub-cl 5.1.
div 2 ch 5 cl 1.0.
div 2 ch 31 cl 1.0.
streetscape character is informed by the “visual” focus to that assessment. Setbacks relate to built
form, as opposed to use.

2 [22]-[28], Tab 3 [19]-[34], Tab 4 [22]-[29], Tab 5 [10]-[21], Tab 6 [16]-[23], Tab 7 [18]-[28], Tab
8 [16].
Tab 3 [11] and Attachment B, Tab 4 [14]-[15], Tab 5 [8], [13] and [20], Tab 6 [10], Tab 7[10].
description of nodes (Powell).
(Powell).
description of nodes and p 11 [35]-[41] (Powell).
[72] and T2-70/L7-16 (McGowan).
p 14 [54].
[28]; T6-10/L26-36 and T6-65/L1-40 (Viney).
div 2 ch 31.
div 2 ch 31.
div 2 ch 31.
div 2 ch 31.
div 3 ch 4.
div 3 ch 4.
div 3 ch 4.
div 3 ch 4.
div 2 ch 4 and p 122 pt 5 div 2 ch 5.
Counsel for the appellant throughout the hearing about the issues in dispute (such as at T4-9/L4 –
T4-10/L44) and the case it had come to meet, it could not be said that the appellant was electing to
disregard Council’s identified issues and fight the case on the issues as addressed in the evidence.
Cf. Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 576-7; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658. Rather, it seems the appellant thought it prudent to address the issue given the serious nature of the allegation.
37/L25 (Viney).
T6-44/L1 – T6-46/L45 (Viney).
question to which he was paying careful attention. He showed no sign of being distracted at the
time. He was looking at Mr Williamson QC and engaging with him – no doubt because of the apparently deliberate pause taken by Mr Williamson QC after he said “can I get you this far”.
Mr Williams later sought to distance himself from this exchange – see T6-93/L16-35. Observing the same openness and honesty as the earlier exchange. I was unconvinced by his claim that “he probably misinterpreted [the] question”.
div 2 ch 31.
ch 2 cl 4.0 sub-cl 4.6.1.
ch 1 cl 1.0.
ch 1 cl 4.0.
ch 1 cl 4.0, table to cl 4.0.
ch 1.
ch 7.
ch 7, cl 1.0.
ch 12, cl 2.0.
ch 12, cl 3.0.
ch 12, cl 4.0.
ch 12, cl 5.0.
ch 12, cl 1.0.
ch 2, cl 2.0.
2 ch 4, cl 1.0.
2 ch 4, cl 5.0, sub-cl 5.1.
2 ch 4, cl 1.0.
div 2 ch 5, cl 1.0.
div 2 ch 5, cl 5.0, sub-cl 5.1.
div 2 ch 5, cl 1.0.

div 2 ch 27. It can be assumed that compliance is achieved as Council conceded that compliance can
be assumed where no conflict is alleged by it.

div 2 ch 31. It can be assumed that compliance is achieved as Council conceded that compliance can
be assumed where no conflict is alleged by it.
City Council pp 71-2 [229] and [230].

also tells against placing reliance on findings in dated decisions of the Planning and Environment
Court that related to service stations.
(Leyshon).

Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012]
QCA 370; [2013] 2 Qd R 302, at 323-4 [25].
table SC1.1.2 and p 194 table SC1.1.1.2.
5.5.1 and pp 105 and 111 table 5.5.2.
5.5.1 and pp 105 and 111 table 5.5.2.
maintaining separate documents the experts were confused about the issues in dispute – See T1-
33/L20-35.
Sustainable Planning Act 2009.
criticised as inappropriate or lacking in some material respect.

CITATION:	K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9
PARTIES:	K & K GC PTY LTD AS TRUSTEE FOR K & K FAMILY TRUST
(appellant)
v
GOLD COAST CITY COUNCIL
(respondent)
FILE NO/S:	20 of 2017
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	1 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7, 8, 9, 10 and 22 November 2017, 14 December 2017 and 1 and 2 February 2018
JUDGE:	Kefford DCJ
ORDER:	The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of a development application seeking a development permit for material change of use for a service station, coffee shop with drive-through lane and takeaway
food premises – whether there is conflict with the planning scheme – whether the use will have unacceptable impacts on the adjoining residential uses – whether the proposed
development will have unacceptable impacts on the character
and amenity of the area – whether there is a need for the proposed development – whether there are sufficient grounds
to approve the development despite conflict with the planning
scheme – whether the new planning scheme ought be given
determinative weight
LEGISLATION:	Planning Act 2016 (Qld), s 311
Sustainable Planning Act 2009 (Qld), s 95, s 314, s 317, s 324, s 326, s 461, s 493, s 495, s 496 s 704
CASES:	Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, approved
Body Corporate for Kelly’s Beach Resort v Burnett Shire
Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved
Brencorp Properties Pty Ltd v Pine Rivers Shire Council
[1997] QPELR 12, approved
Broad v Brisbane City Council & Baptist Union of
Queensland [1986] 2 Qd R 317, applied
Cass v Gold Coast City Council & Anor [2008] QPEC 32; [2008] QPELR 556, approved
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, cited
Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, distinguished
Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, approved
Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council
[1997] QPELR 208, approved
Gillion v Scenic Rim Regional Council & Ors [2013] QPEC 15; [2013] QPELR 711, approved
Gold Coast City Council v K Page Main Beach Pty Ltd
[2011] QCA 332; (2011) 185 LGERA 55, considered
Golder v Maranoa Regional Council & Ors [2014] QPEC 68; [2015] QPELR 292, approved
Gorman & Ors v Brisbane City Council & Anor [2003] QPEC 035; [2004] QPELR 29, approved
Harburg Nominees Pty Ltd v Brisbane City Council & Anor
(No 2) [2016] QPEC 56; [2016] QPELR 979, approved
Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, approved
Heath v Brisbane City Council & Anor [2008] QPEC 33; [2008] QPELR 566, approved
Intrafield Pty Ltd v Redland Shire Council [2000] QPEC 070; [2000] QPELR 337, distinguished
Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved
Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPLR 41, approved
Kangaroo Point Residents Association Inc v Brisbane City
Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved
Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, applied
K Page Main Beach Pty Ltd v Gold Coast City Council &
Ors [2011] QPEC 1; [2011] QPELR 406, approved
Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink
Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied
Main Beach Progress Association Inc & Ors v Gold Coast
City Council & Anor [2008] QPEC 37; [2008] QPELR 675, approved
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, cited
MPR Constructions Pty Ltd v Redland Shire Council [2001] QPEC 68; [2002] QPELR 256, distinguished
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional
Council [2014] QPEC 024; [2014] QPELR 479, approved
Parmac Investments v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, approved
Petroleum Design and Management Pty Ltd v Mackay City
Council [2004] QPEC 20; [2004] QPELR 593, approved
PMM Group Pty Ltd v Noosa Shire Council [2005] QPEC 79; [2006] QPELR 144, approved
Prime Group Properties Limited v Caloundra City Council
and Darracott & Ors [1995] QPLR 147, distinguished
Ross Nielson Properties Pty Ltd v Brisbane City Council &
Anor; Yu Feng v Brisbane City Council & Ors [2007] QPEC 3; [2007] QPELR 323, cited
Thomas Holdings Pty Ltd v Gold Coast City Council & Ors
[1991] QPLR 32, distinguished
United Petroleum Pty Ltd v Gold Coast City Council & Anor
[2018] QPEC 8, approved
Vanglow Pty Ltd v Council of the Shire of Albert (1991) QPLR 68, distinguished
WBQH Developments Pty Ltd v Gold Coast City Council
[2009] QPEC 54; [2009] QPELR 746, approved
WBQH Developments Pty Ltd v Gold Coast City Council
[2010] QCA 126, considered
Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, applied
Westfield Management Limited v Pine Rivers Shire Council
[2004] QPELR 337, approved
Westlink Pty Ltd v Lockyer Valley Regional Council (No 4)
[2013] QPEC 35; (2014) 198 LGERA 1, cited
Wincam Developments No 3 Pty Ltd v Brisbane City Council
[2004] QPEC 5; [2004] QPELR 474, cited
Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
Zappala Family Co Pty Ltd v Brisbane City Council & Ors
[2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, applied
COUNSEL:	M A Williamson QC with M J Batty for the appellant
M F Johnston with T Jackson for the respondent
SOLICITORS:	Connor O’Meara Solicitors for the appellant
Hopgood Ganim Lawyers for the respondent

(d)	takeaway food premises with a gross floor area of 100 square metres; and
(e)	21 car parking spaces and nine bicycle spaces.[10]

“1.	Grounds means matters of public interest.
2.	Grounds does not include the personal circumstances of an applicant,
owner or interested party.”

(c)	all performance criteria are considered separate and distinct;[28]
(d)	development that is consistent with the acceptable solutions of a code is

a)	a minimum of ten metres from the road frontage/s;
b)	a minimum of two metres from the side and rear boundaries.
OR

a)	noise;
b)	hours of operation;
c)	traffic;
d)	lighting;
e)	signage;
f)	visual amenity;
g)	privacy;
h)	odour and emissions.”

	achieve a high standard of residential amenity across the
range of dwelling types in the domain.”

(b)	cars queuing down Skiff Street;
(c)	employees of the businesses on the western side of Ferry Road parking in Skiff

(e)	noise from Ferry Road;
(f)	noise from the outdoor garden area at the Ferry Road Tavern;
(g)	noise from commercial rubbish trucks on the opposite side of Ferry Road; and
(h)	lighting from commercial uses on the western side of Ferry Road.[81]

(c)	restricted opening hours of the drive-through and the food tenancy;
(d)	fixed plant items being designed and selected to meet particular noise levels;
(e)	the tyre air compressor being located at a particular point in the proposed

(f)	deliveries being restricted in terms of the hours of the day that they occur;
(g)	insulation and maintenance of plant and equipment, including the bowser

(e)	the odour management plan provided as part of the development application;[93]
(f)	detailed air quality assessment prepared under the supervision of Mr King;[94]
(g)	the conceptual lighting design plan provided as part of the development

(c)	commercial development dominates the western side of Ferry Road;[107]
(d)	commercial development is not an insignificant contributor to the character of

(e)	Ferry Road is a road that is six lanes wide and is a large hardstand area;[109]
(f)	the non-residential development on the western side of Ferry Road has

(k)	planned character of an area is important in a visual assessment;[115]
(l)	it would be wrong to describe the planned character of the Residential Choice

(a)	as part of a as part of a neighbourhood or mixed use centre (where operated during the standard trading hours of the centre);
(b)	to complement established non-residential uses in urban areas;
(c)	on a higher order road; or
(d)	adjacent to a highway or motorway interchange at a