K&K (GC) Pty Ltd v Gold Coast City Council
[2020] QPEC 40
•7 August 2020
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40
PARTIES:
K&K (GC) PTY LTD
(Appellant)v
GOLD COAST CITY COUNCIL
(Respondent)FILE NO/S:
20/2017
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
7 August 2020
DELIVERED AT:
Brisbane
HEARING DATE:
8 and 15 November 2019 and further submissions received on 13 December 2019, 23 January 2020, 3 June 2020 and 3 July 2020
JUDGE:
Kefford DCJ
ORDER:
I order:
1. The appeal is allowed.
2. The development application is approved subject to the conditions package of 106 pages attached to the judgment given on 29 June 2018.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station, convenience store, take-away food premises and a fast food drive through premises – where the land was in the Detached Dwelling Domain and the Residential Choice Domain of the Gold Coast Planning Scheme 2003 – where the proposed use for fast food premises and take-away food premises conflict with the 2003 Planning Scheme and should be considered “undesirable or inappropriate” – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – CONSIDERATION OF WEIGHT TO BE GIVEN TO NEW PLANNING SCHEME – where City Plan 2016 commenced after the development application was made – where the proposed service station use was not supported by City Plan 2016 – where s 495 of the Sustainable Planning Act 2009 gives a broad discretion to afford weight to a new planning scheme – whether conflict with City Plan 2016 should be given determinative weight
LEGISLATION:
Planning Act 2016 (Qld), s 311
Sustainable Planning Act 2009 (Qld), s 311, s 314, s 324, s 326, s 493, s 495
CASES:
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, approved
Behrens v Caboolture Shire Council (1979) 39 LGRA 138, cited
Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, applied
Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved
Chalk v Brisbane City Council (1966) 13 LGRA 228, cited
Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, cited
Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, considered
Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved
Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, applied
H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, cited
Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, approved
Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved
Iverach v Cardwell Shire Council & I rema [2006] QPEC 114; [2007] QPELR 196, cited
K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, cited
Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, cited
Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63; [2012] QPELR 354, applied
Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, applied
Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 446, approved
Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved
Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333, cited
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved
Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, approved
R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 86, cited
R v Lukin; Ex parte Sunshine Pty Ltd [1967] Qd R 49, cited
Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, applied
Scurr v Brisbane City Council (No 5) [1973] HCA 39; (1973) 133 CLR 242, cited
Sheezel & Anor v Noosa Shire Council (1980) 1 APAD 470, cited
The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, approved
Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, approved
Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, applied
William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved
Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
COUNSEL:
D Gore QC and J Lyons for the Appellant
G Gibson QC and J Ware for the RespondentSOLICITORS:
Connor O’Meara for the Appellant
Hopgood Ganim for the RespondentTABLE OF CONTENTS
Introduction
What are the issues to be determined with respect to the sufficiency of the grounds?
What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld)?
What is the nature of the development?
What is the nature and extent of the conflict?
What grounds are relied on by K&K to justify approval?
What did K&K establish at the original hearing and are they “matters of public interest”?
What grounds are established on the further evidence?
Are there sufficient grounds to justify approval of the proposed development, despite the conflict with the 2003 Planning Scheme?
Consideration of the Council’s submissions
Conclusions regarding of sufficiency of grounds
Should the development be refused having regard to City Plan 2016?
What is the relevant decision framework?
What were the relevant findings by the Court of Appeal?
What is the nature and extent of conflict with City Plan 2016 on which the Council relies?
What other factors are relevant to the nature and extent of conflict with City Plan 2016?
What other considerations are relevant to the exercise of the discretion?
Conclusion regarding the weight to be afforded to City Plan 2016
One further issue that arose – approval in part
Conclusion
Introduction
This appeal was originally heard on 6 to 10 and 22 November 2017, 14 December 2017, and 1 and 2 February 2018. For reasons provided in a judgment delivered on 1 March 2018, I allowed the appeal and approved the proposed development.[1] That judgment was delivered before the decision of the Court of Appeal in Bell v Brisbane City Council & Ors.[2]
[1]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540.
[2][2018] QCA 84; (2018) 230 LGERA 374.
An application for leave to appeal was heard by the Court of Appeal on 20 August 2018. The reasons for judgment were delivered on 28 June 2019.[3] The Court granted leave to appeal and allowed the appeal on some, but not all, of the grounds of appeal.
[3]Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631.
In allowing the appeal, the Court of Appeal determined that:
(a)there was no error in my approach to determining the scope of the conflict that invoked the application of s 326(1)(b) of the Sustainable Planning Act 2009 (Qld);
(b)I erred in my approach to determining whether there were sufficient grounds to justify approval of the development application despite the conflict with the Gold Coast City Planning Scheme 2003 (“the 2003 Planning Scheme”); and
(c)I erred in my construction of the definition of “Neighbourhood Centre” in Gold Coast City Plan 2016 (“City Plan 2016”), which error vitiated the exercise of the discretion to give such weight as I considered appropriate to any new policy (as permitted under s 495(2)(a) of the Sustainable Planning Act 2009).
The Court of Appeal remitted the matter to this Court to be determined according to law. The parties agree that there are two questions for determination on remittal.
1. Are there sufficient grounds to justify approval of the proposed development despite the conflicts with the 2003 Planning Scheme?
2. Does the weight to be given to City Plan 2016 warrant refusal of the proposed development?
During the remitted hearing, a further issue arose. In the event that I find there are not sufficient grounds to justify approval of the proposed development despite the conflicts with the 2003 Planning Scheme, K&K (GC) Pty Ltd (“K&K”) says that that I should approve the proposed development in part. The approval in part of the service station (and its associated convenience store) is opposed by Gold Coast City Council (“the Council”).
Although there are only three substantive issues that require determination, at the remitted hearing the Council advanced a plethora of arguments as to why the proposed development should be refused. They included arguments that I should make findings that were inconsistent with those previously made by me, even with respect to findings that:
(a)were not disturbed on appeal;
(b)are not affected by the errors found by the Court of Appeal; and
(c)are about matters that were uncontested at the original hearing.[4]
[4]See, for example, paragraphs [132] to [135], [197], [205] to [207], and [216] to [243].
The Council’s approach is disappointing. It is redolent of an attempt to win at all costs. Nonetheless, with a view to bringing this litigation to an end, I have addressed each of the Council’s arguments below. Having done so, it seems to me that the real issue to determine with respect to the first question is whether the deviation from the 2003 Planning Scheme to approve the proposed fast food premises and take-away food premises in conjunction with the larger unobjectionable service station use serves the public interest to an extent greater than the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied. For the reasons that follow, I am satisfied that this is an exceptional case where the public interest in approval of the proposed development is greater than the public interest in upholding the 2003 Planning Scheme by refusing the development application. As for the weight to be afforded to City Plan 2016, although all aspects of the proposed development do not comply with City Plan 2016, it must be remembered that the Sustainable Planning Act 2009 requires the subject application to be assessed against the 2003 Planning Scheme and the relevant provisions of City Plan 2016 are a matter of weight only. I have given consideration to City Plan 2016, including its discouragement of a service station on the subject land, but I am ultimately unpersuaded to give that decisive weight in the circumstances of this case.
What are the issues to be determined with respect to the sufficiency of the grounds?
In order to answer the first question identified by the parties, it is necessary to consider the following seven questions.
1. What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld)?
2. What is the nature of the proposed development?
3. What is the nature and extent of the conflict?
4. What grounds are relied on by K&K to justify approval?
5. What did K&K establish at the original hearing and are they “matters of public interest”?
6. What grounds are established on the further evidence?
7. Are there sufficient grounds to justify approval of the proposed development, despite the identified conflict?
What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld)?
The appeal must be decided in accordance with the decision rule in s 326 of the Sustainable Planning Act 2009.[5] It provides:
[5]The appeal was commenced during the operation of the Sustainable Planning Act 2009 (Qld) and, despite the repeal of that Act, is to be assessed and decided under that framework pursuant to s 311 of the Planning Act 2016 (Qld). The appeal proceeds by way of hearing anew: Sustainable Planning Act 2009, s 495. K&K bears the onus of establishing that the appeal should be allowed, and the development application should be approved: Sustainable Planning Act 2009, s 493.
“326 Other Decision Rules
(1)The assessment manager’s decision must not conflict with a relevant instrument unless–
(a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
(b) there are sufficient grounds to justify the decision, despite the conflict; or
(c) the conflict arises because of a conflict between–
(i)2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or
Example of a conflict between relevant instruments–
a conflict between 2 State planning policies
(ii)2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.
Example of a conflict between aspects of a relevant instrument–
a conflict between 2 codes in a planning scheme
(2) In this section–
relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.”
The task for the Court involves an evaluative exercise. In determining whether there are grounds sufficient to justify approving the application notwithstanding any conflict, the Court is required to examine the nature and extent of the conflict with the 2003 Planning Scheme.[6]
[6]Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] Qd R 302, 322-3 [18]-[21].
The term “grounds” is defined to mean “matters of public interest” and to exclude “the personal circumstances of an applicant, owner or interested party”.[7] The Sustainable Planning Act 2009 does not provide further assistance in the Act as to what amounts to “sufficient grounds”. However, s 759 of the Sustainable Planning Act 2009 permitted the Minister to make guidelines about the matters to be considered in deciding, under s 326, whether there are sufficient grounds to justify a decision that may conflict with a relevant instrument.
[7]Sustainable Planning Act 2009, Schedule 3.
On 11 December 2009, the Minister published Statutory Guideline 05/09 under s 759 of the Sustainable Planning Act 2009. It provides a list of matters that may be taken into account in deciding whether there are “sufficient grounds”. They are:
(a)the relevant instrument is out of date due to its age or changing circumstances in the area and the proposal reflects or responds to these changed circumstances;
(b)the relevant instrument is incorrect in terms of its substance or underlying assumptions for the circumstances of the particular proposal. For example, a planning scheme drafted on low growth or no growth assumptions is now experiencing unforeseen development pressure as a result of a new major economic development project in the area, or constraint mapping in the planning scheme does not reflect the physical site circumstances;
(c)the type of development proposed is not adequately addressed by the relevant instrument;
(d)the relevant instrument does not anticipate specific or particular development. For example, the type of development proposed may be of international, national, state or regional significance and may not have been anticipated by the relevant instrument; and
(e)there is an exceptional or urgent need for the proposal to occur.
These may be regarded as exceptional matters. However, as I observed in Trowbridge & Anor v Noosa Shire Council,[8] the matters listed in Statutory Guideline 05/09 are not mandatory, nor are they exhaustive. The indication in the Statutory Guideline that these matters are, by their nature, capable of overriding the intent of a planning scheme reflects that the needs of a community are not static and immutable.[9] It is not possible for a local government, as drafter of a planning scheme, to forecast the will of the community, in land use terms, with scientific precision.[10] In addition, planning schemes are often drafted without the benefit of site-specific studies detailing the attributes of each separate allotment in the local government area.[11] As was observed by the Court of Appeal in Gold Coast City Council v K&K (GC) Pty Ltd,[12] each of the matters listed in the Statutory Guideline are matters that are now said to justify an exception to the planning scheme but which were unavailable for consideration when the planning scheme was formulated.
[8]Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, 522 [87].
[9]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.
[10]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 808 [59].
[11]Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 336 [20].
[12][2019] QCA 132; [2020] QPELR 631, 641 [39].
In allowing the appeal from my earlier judgment, the Court of Appeal confirmed that the range of matters that may potentially be included within the scope of “matters of public interest” is very wide.[13] Sofronoff P, with whom Fraser JA and Flanagan J agreed, said:[14]
“[67]There has been a failure by the parties in this case to apprehend and apply the applicable statutory requirements. It has been established beyond argument that a decision maker must take a Planning Scheme to be an expression of the public interest in terms of land use. The proposition can be put the other way around. It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo. The public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied. Some such examples appear in the Ministerial Guidelines to which I have referred.”
[13]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379, 400-1 [42].
[14]Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48] and 645 [62].
The public interest in certainty that the terms of a planning scheme will be faithfully applied is not the sole domain of local residents concerned to protect their amenity.[15] It is highly desirable that a planning scheme enjoys the confidence of all those whose interests are thereby affected. This of course includes the whole range of interests, whether they are entrepreneurial or conservative.[16] It necessarily includes residents who reasonably expect their desire for convenient access to goods and services in locations anticipated in accordance with the planning scheme will not be unfairly denied such development. It also includes landowners who seek to advance the economic development of a local government area. They have a reasonable and legitimate expectation that unrealised but tangible development opportunities consistent with the planning scheme will not be peremptorily or unfairly extinguished. It is based on such expectations that transactions take place, decisions are made to pursue economic opportunities, development applications are made, money expended, and people order their lives.[17]
[15]Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 446, 473 [140].
[16]This was recognised in Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102 citing Stenders Morris & Partners v Cairns City Council [1989] QPLR 15,18.
[17]cf. Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, 36 [123].
The Court of Appeal’s decision in Bell v Brisbane City Council & Ors[18] also provides relevant guidance on the operation and application of s 326(1)(b) of the Sustainable Planning Act 2009. McMurdo JA (with whom Sofronoff P and Philippides JA agreed), said:[19]
“[66]Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest. If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land. In Clark v Cook Shire Council,[20] Keane JA, with the agreement of the other members of this Court said:
‘The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.’”
[18][2018] QCA 84.
[19]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 391 [66].
[20][2007] QCA 139; [2008] 1 Qd R 327, 338.
McMurdo JA provided examples of exceptional cases that justify a decision that conflicts with a planning scheme. They raise similar considerations to those set out in Statutory Guideline 05/09 referred to above, namely:
(a)relevant circumstances have changed since the planning scheme was made;
(b)there is a factual error in the planning scheme itself; and
(c)the planning scheme has not anticipated the existence of circumstances that have created a need for certain development in the public interest.[21]
[21]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [68].
As was recognised by McMurdo JA:[22]
“In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”
[22]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [68].
The appropriate approach to the required exercise under s 326(1)(b) of the Sustainable Planning Act 2009 was again considered by the Court of Appeal in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor.[23] Philippides JA observed:
“[116]There can be no doubt that as a proposition of law, a planning scheme represents the public interest in the development of the land in question and a decision maker must take it to be an expression of the public interest in terms of land use.[24] It is taken as a comprehensive expression of the public interest (Bell at [66]) but in a prima facie sense, in that pursuant to s 326(1)(b) of the SPA, a sufficient matter of public interest may be demonstrated to override conformity with it.[25] A proposed development that conflicts with that expression of the public interest can only be approved where a public interest in the conflicting development is demonstrated to be sufficient to exceed the public interest otherwise represented by adhering to the provisions of the planning scheme.”
[23][2020] QCA 41.
[24]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, as cited in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 642 [47] and 646 [67].
[25]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].
The recent decisions by the Court of Appeal emphasise that the required exercise under s 326(1)(b) of the Sustainable Planning Act 2009 does not involve a general balancing exercise of the merits and demerits of the proposal as a whole[26] or a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or it would not be better to permit a development on the site to go ahead.[27] A judgment about the public interest should not be formed without recognising the relevance of the planning scheme to that question.[28] It is not for the decision maker to gainsay the expression of what is the public interest that is in a planning scheme.[29] Rather, a decision should only approve development in conflict with a planning scheme if there are identified reasons why it is in the public interest that the terms of the planning scheme should not prevail.[30] As such, the establishment of a need for a particular development will not, of itself, suffice.
[26]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 393 [73]-[74].
[27]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48].
[28]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 393-4 [77]-[78].
[29]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [67].
[30]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48].
The Court of Appeal provided guidance with respect to the relevance of need for a proposed development in the operation of s 326(1)(b) of the Sustainable Planning Act 2009 in Gold Coast City Council v K&K (GC) Pty Ltd.[31]Sofronoff P, with whom Fraser JA and Flanagan J agreed, said:[32]
“[48]That means it can never be enough to satisfy a provision like s 326(1)(b) of the SPA for a party merely to prove that “there is a need” for a proposed development. The existence of a need for a particular kind of development is the starting point. If the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should be met by a development on a site that does not give rise to a conflict. An applicant must identify reasons why the terms of the Planning Scheme should not prevail. Otherwise, there is a risk that, rather than applying s 326(1)(b), the decision maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or it would not be better to permit a development on the site to go ahead.”
[31][2019] QCA 132; [2020] QPELR 631, 643 [48].
[32]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48].
Later in his judgment, Sofronoff P also provided guidance as to the type of situations where the need for a particular development might suffice. He said:
“[68]A decision might be justified because the expression of public interest constituted by the Planning Scheme did not take into account, because it was unable to do so, later social developments. That was the case established before Andrews DCJ in Woodman McDonald Hardware Pty Ltd v Mackay Regional Council.[33] Nevertheless, it cannot be said that unforeseen circumstances must be shown in every case. It may be accepted that the need for a particular development in a particular place may constitute a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by a development in the particular location. Whether that is so is a question for the decision maker to consider in the circumstances of the case. If, in the circumstances of a particular case, it is in the public interest that an identified need be satisfied by a development in a place that results in a conflict, it is necessary for the decision maker to go on to consider whether the identified public interest in satisfying the need overrides the conflict with the Planning Scheme, which it is generally in the public interest to avoid. It may be that the public interest in having a need satisfied by a non-conflicting development, such as a service station, may override the conflict created by the inclusion of conflicting uses within that development. That may depend upon the extent of the need that will be satisfied and the ramifications of the conflict in the circumstances of the case. It may depend upon whether the needed development could viably proceed without the incorporation within it of the conflicting uses. It may depend upon whether the conflicting uses add any prejudicial effects to the existing amenity beyond the effect caused by the non-conflicting uses.”
[33][2013] QPEC 21; [2013] QPELR 496.
Guidance on the relevance of need was also provided by McMurdo JA in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor.[34] With respect to the particular situation that pertained in that case, after noting there had been a finding that there was a clear and strong level of economic need, McMurdo JA said:
“[169]But it did not follow from those findings that there was a ground for approving the development inconsistently with the planning scheme. Unless it was demonstrated that, in the relevant respects, the planning scheme, as it applied to this site, no longer represented what was required in the public interest, it could not be said that there were “grounds” (meaning matters of public interest) for permitting the development. What had to be established was not just that there was a need for such a development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur. It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land.”
[34][2020] QCA 41.
In finding that it had to be shown that it was “necessary” to override the scheme, I do not understand McMurdo JA to be importing into the statutory test a requirement that is different to that conveyed by the words of the legislation, namely that “there are sufficient grounds to justify the decision, despite the conflict.” Rather, although expressed differently, I understand McMurdo JA’s observations at paragraph [169] to be consistent with those of Sofronoff P in Gold Coast City Council v K&K (GC) Pty Ltd[35] referred to above.
[35][2019] QCA 132; [2020] QPELR 631.
Whether there are sufficient matters of public interest that warrant approval of the proposed development involves a discretionary value judgement. It is to be made by reference to factual matters confined only by the subject matter, the scope, and the purpose of the Sustainable Planning Act 2009.[36] The decision should not be made capriciously. It should assume that it is in the public interest to maintain the terms of the planning scheme unless the contrary is demonstrated.[37] After all, a planning scheme seeks to strike the balance between ecological protection, economic development, and the maintenance of the cultural, economic, physical and social wellbeing of people and communities in a manner that expresses the will of the community.[38]
[36]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.
[37]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42] citing Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].
[38]See the observations of Carter DCJ in William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335 [15] and Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, 522 [85]. These observations are apt for planning schemes promulgated under the Sustainable Planning Act 2009. In that respect, see s 3, s 4, s 5, s 88 and s 89 of the Sustainable Planning Act 2009.
In this case, the relevant planning scheme to be considered for the purposes of s 326 of the Sustainable Planning Act 2009 is the 2003 Planning Scheme.[39]
[39]See s 314(2)(g) of the Sustainable Planning Act 2009 and s 311 of the Sustainable Planning Act 2009.
What is the nature of the development?
K&K owns land at 248-254 Ferry Road, 24 Skiff Street and 21 York Street at Southport (“the subject land”). It is bounded by Skiff Street on its northern boundary, Ferry Road on its western boundary and by York Street on its southern boundary and is 3 038 square metres in area. It is on the south-eastern corner of the signalised intersection of Ferry Road, Cotlew Street East and Skiff Street. Ferry Road is a six-lane, divided, and State-controlled road carrying approximately 36 000 vehicles per day. Cotlew Street East is also a major road in the locality. It is a four-lane, divided, sub-arterial road.
To the west of the subject land is a predominantly residential enclave. It is bounded by the Nerang River to the east, a waterway to the north (just north of Korong Street), Regatta Parade to the east and south, and Ferry Road to the west. Along Skiff Street and York Street are detached dwellings of one and two storeys in height. There is a two-storey multiple dwelling complex directly opposite the site on the north-eastern corner of Skiff Street and Ferry Road. The area is predominantly residential, but it does contain some non-residential uses. They include a sleep therapist, a business broker, a hypnotherapist, a real estate agency, and an orthodontist. A large childcare centre also operates from the north-eastern corner of Ferry Road and Yacht Street. There is a strip of commercial uses on the western side of Ferry Road, between the waterway to the north of Durham Street and Shaw Street. There is a Toyota car dealership directly opposite the subject land on the western side of Ferry Road. On the south-western corner of the intersection, there is a shopping centre that contains cafés, retail tenancies and services. Diagonally opposite, on the north-western corner of the intersection, there is the Ferry Road Tavern, a BP service station, a Night Owl convenience store, coffee drive-through, restaurants, cafés and bottle shops.
K&K wants to develop the subject land for a service station with associated convenience store. It also wants to include a take-away food premises and fast food premises with drive-through facility as part of the development. The service station would have three bowser positions to serve six cars, with payment facilities within the convenience store of about 200 square metres. The fast food premises would have a gross floor area of 80 square metres and an additional 20 square metres of outdoor dining and a drive-through facility. The take-away food premises would have a gross floor area of 100 square metres. The fast food premises and take-away food premises would be in a part of the building that is separated from the convenience store by a corridor to the amenities. Each proposed use is to have its own access from a pathway adjacent to the building. The tenancies are not proposed to be interconnected.
There would be 21 car park spaces and nine bicycle spaces. The building heights would range between 5.5 and 6.06 metres, and signage associated with the businesses would rise to 7.25 metres. It is intended that the service station and associated convenience store would operate 24 hours a day and seven days a week. The drive-through component of the fast food premises would operate between 6 am and 8 pm Monday to Saturday and 7 am to 8 pm on Sundays and public holidays. The fast food premises and take-away food premises would otherwise operate between 6 am and 10 pm, seven days a week. Vehicular access would be from Skiff Street and Ferry Road. Acoustic barriers would be erected between the subject land and the adjoining houses, and landscaping would be established between the acoustic fence and the boundary.
What is the nature and extent of the conflict?
My earlier findings with respect to the nature and extent of the conflict with the 2003 Planning Scheme were not criticised by the Court of Appeal. As such, I will only provide a brief summary of them. Detailed reasons are set out in my earlier judgment.[40]
[40]See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540.
Here, the conflict is confined to the proposed incorporation of about 200 square metres of floor space for fast food premises and take-away food premises as only a smaller part and mere adjuncts to the dominant and unobjectionable use of the land for a service station.[41] K&K accepts that a decision to approve the proposed development would conflict with the 2003 Planning Scheme because fast food premises and take-away food premises are categorised as undesirable uses in both the Residential Choice Domain and the Detached Dwelling Domain. This is the only conflict with the 2003 Planning Scheme.[42]
[41]Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [71] and [73].
[42]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586 [202].
The conflict is at the more serious end of the spectrum as it is the result of an evident policy intention that take-away food premises and fast food premises not be located in the Residential Choice Domain and the Detached Dwelling Domain.[43] The policy to nominate these uses as “undesirable or inappropriate” was implemented by use of inclusion of the subject land in the Detached Dwelling Domain and the Residential Choice Domain. The domains are the key to the assessment status of individual development proposals within their subject areas. This includes their policy status of “undesirable or inappropriate” development. Domains provide for the distribution, mixing and segregation of different types of uses, and each domain is intended to provide for compatible development and to segregate incompatible development.[44]
[43]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586 [205]-[206]. These findings were not disturbed by the Court of Appeal – see Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 637 [18].
[44]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586-7 [205]-[207].
The 2003 Planning Scheme intends that the stated planning intent will be implemented through the provisions of the applicable domains and any other relevant development code.[45] The provisions of the applicable domains include a statement of intent for the domain; the tables of development, which indicate the level of assessment and (when read with other parts of the 2003 Planning Scheme) inform the reader of those types of development considered to be “undesirable or inappropriate”; and, in this case, the Detached Dwelling Domain Place Code and the Residential Choice Domain Place Code.
[45]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 587 [210].
The Detached Dwelling Domain is intended to preserve and enhance the suburban character and residential amenity of the low-density residential neighbourhoods contained within the domain. The 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.[46] The Table of Development contemplates that, subject to impact assessment, uses of land in the Detached Dwelling Domain may include a child care centre, convenience shop, medical centre and service station. The proposed development, including the conflicting land uses, does not conflict with the statement of intent for the domain or the Detached Dwelling Domain Place Code.[47] The proposed service station complies with all of the implementation provisions, including the Table of Development.
[46]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 589 [220].
[47]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].
The intent and purpose of the Residential Choice Domain is similar to that for the Detached Dwelling Domain, although it also seeks to facilitate a wide variety of residential support services to be located within the domain, commensurate with local residents’ needs. The Table of Development contemplates that, subject to impact assessment, uses of land in the Residential Choice Domain may include a wider range of commercial uses, including a café. The proposed development complies with the Residential Choice Domain Place Code.[48] The proposed service station complies with all of the implementation provisions, including the Table of Development.
[48]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].
In this case, the serious conflict occasioned by the proposed for take-away food premises and fast food premises uses arises because the uses are not listed in the Table of Development for the Detached Dwelling Domain or the Residential Choice Domain. As such, they are uses that are generally regarded as inappropriate in those domains. However, in this case the conflict is significantly reduced because the proposed development:
(a)would not result in material adverse amenity impacts;[49]
(b)does not conflict with the Detached Dwelling Domain Place Code, the Residential Choice Domain Place Code or the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises); and
(c)accords with the Service Station Code in that it:
(i)will provide a service station at a suitable location;
(ii)will ensure that a service station is established to meet the needs of local residents, visitors and travellers through convenient points of service;
(iii)is on a site of sufficient area; and
(iv)will be a modern, attractive service station in its appearance and design.[50]
[49]See, in particular, my findings in paragraphs [98], [116], [117], [118], [127], [138] and [140] of my earlier reasons.
[50]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].
The Court of Appeal found no error with my reasoning that the extent of conflict was reduced by the considerations outlined in paragraph [37] above.[51] These considerations highlight that the ramification for the public is the approval of development that:
(a)includes some uses that are considered appropriate on the subject land and some uses that are not considered appropriate for the subject land under the 2003 Planning Scheme;[52] but which nevertheless
(b)complies with almost all of the provisions incorporated in the 2003 Planning Scheme to implement the planning intent for the Detached Dwelling Domain and the Residential Choice Domain and to regulate the appropriate use of the subject land, including the provisions of the Detached Dwelling Domain Place Code and the Residential Choice Domain Place Code;
(c)complies with all of the requirements of the applicable codes regulating the relevant types of uses, in particular the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises) and the Service Station Code;
(d)does not compromise the Council’s strategic planning;
(e)does not introduce any adverse impacts; and
(f)will provided the “undesirable uses” as part of an overall development proposal that has, as its dominant aim, the provision of a service station, being a use that the public would expect on the subject land (and which it must be taken to be in the public interest to have delivered on the subject land).
[51]See Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 637 [19], 639 [28] and 647 [71]-[74].
[52]The uses are now considered appropriate uses on the land under City Plan 2016, but a service station is not.
As was noted by Sofronoff P, it is not irrelevant that the uses that would create a conflict are uses that would be only a smaller part of a larger unobjectionable use – the conflicting uses are mere adjuncts to the dominant aim of K&K to develop a profitable service station.[53]
[53]Gold Coast City Councilv K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [71] and [73].
The Court of Appeal does not suggest that the conflict is of a nature and extent that means sufficiency of grounds to justify approval could never arise. This is the issue that must now be determined by me.
What grounds are relied on by K&K to justify approval?
At the original hearing, the grounds relied on by K&K to justify approval of the proposed development were:
“1.There is a need for the proposed development.
2.The proposed development can meet the need in circumstances where:
2.1 it will be conveniently located to serve the public;
2.2 it will be readily accessible on the road network;
2.3 there will be no unacceptable impacts on amenity arising from the proposal;
2.4 it is consistent with reasonable community expectations.
3.The proposed development will enhance the physical well-being of the community by providing additional choice for the convenience of residents and travellers.
4.The proposed development will not jeopardise the economic viability of existing or planned centres or service stations.
5.The proposed development will ensure appropriate utilisation of the land, in circumstances where it is currently vacant.
6.Approval of the proposed development will not compromise the achievement of the Desired Environmental Outcomes of the Gold Coast Planning Scheme 2003 or the Strategic Framework of the Gold Coast City Plan 2016 and otherwise complies with a substantial number of provisions in the planning schemes.
7.The proposed development exhibits a high quality of design, including appropriate setbacks, in a way which adds to the amenity and character of the locality in a positive way.
8.The proposed development will not result in any discernible impacts, including adverse character and amenity impacts, on surrounding land uses or otherwise.
9.The proposed development is consistent with the building height and bulk of other development in the locality.”
In my earlier judgment, I detailed the reasons I was satisfied that K&K had demonstrated each of the matters identified above.
On appeal, Sofronoff P made the following observations about those matters:
“[21] K&K’s brief document stating “sufficient grounds” asserted four categories of issues:
(a) Need – paragraphs [1]-[4];
(b) An allegation that the land would be used appropriately – paragraph [5];
(c) An allegation that the development complies with a “substantial number of provisions in the Planning Scheme” and would “not compromise” certain identified parts of the 2003 Planning Scheme and 2016 City Plan – paragraph [6];
(d) An assertion that, by reason of its design and building character, the development would not have any specific negative effects upon amenities – paragraphs [7]-[9].
[22] There was no allegation to explain how any of these matters constituted “matters of public interest”.”[54]
[54]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 638 [21]-[22].
Sofronoff P also noted:[55]
“[64]Her Honour considered the expert evidence about the need for a service station and, to some extent peripherally, the need for a convenience store and the other food premises. After a careful and detailed examination of this evidence and the parties’ submissions, her Honour found that there was a greater than “low” need for a service station and a lower than “strong” need for it. Her Honour also found that there was a need for the take-away food and fast food premises, and for the convenience store. Her Honour accepted that the proposed development would not adversely affect the amenity and character of the locality, nor would it compromise the Council’s strategic planning.”
[55]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 645 [64].
The Court of Appeal judgment does not contain any criticism of the findings I made about each of the matters that K&K relied on as “grounds”. On the basis of my findings, I concluded that the extent of need for the proposed development was sufficient to justify approval of the proposed development given the nature and extent of the conflict identified. In his reasons, Sofronoff P makes it clear that this approach failed to apprehend and apply the applicable statutory requirement. He says to justify the development it must be demonstrated that the desired deviation from the planning scheme serves the public interest to an extent greater than the public interest in certainty that the terms of the planning scheme will be faithfully applied.[56]
[56]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 646 [67].
K&K maintains its reliance on the same matters to justify approval of the proposed development. My earlier findings with respect to those matters relied on as grounds were not criticised by the Court of Appeal, nor was my analysis of the general principles in relation to need. As such, I do not propose to traverse them again in detail here. I will provide a brief summary only. I rely on the detailed reasons set out in my earlier judgment.
What did K&K establish at the original hearing and are they “matters of public interest”?
As I have noted in paragraph [42] above, and for the reasons provided in my earlier judgment, K&K has established:
(a)there is a need for the proposed development;
(b)the need can be met in circumstances where:
(i)the proposed development will be conveniently located to serve the public;
(ii)the proposed development will be readily accessible on the road network;
(iii)there will be no unacceptable impacts on amenity arising from the proposed development;
(iv)the proposed development is consistent with reasonable community expectations;
(c)the proposed development will enhance the physical well-being of the community by providing additional choice and convenience;
(d)the proposed development will not jeopardise the economic viability of existing or planned centres or service stations;
(e)the proposed development will ensure appropriate utilisation of the land, in circumstances where it is currently vacant;
(f)approval of the proposed development will not compromise the strategic planning of the Council;
(g)the proposed development exhibits high quality design, appropriate setbacks, and will add to the amenity and character of the locality;
(h)the proposed development will not result in any discernible impacts, including adverse character and amenity impacts; and
(i)the proposed development is consistent with the building height and bulk of other developments in the locality.
As I have already observed above, the Court of Appeal noted that in the document entitled “Appellant’s Sufficient Grounds”, there was no allegation to explain how any of these matters constituted “matters of public interest”. At the original hearing, the Council did not contend that the matters were not “matters of public interest”. Nevertheless, when considering the asserted “grounds”, I had regard to the definition of “grounds” in Schedule 3 of the Sustainable Planning Act 2009. At paragraph [24] of my earlier judgment[57] I noted that “grounds” is defined as follows:
“1.Grounds means matters of public interest.
2.Grounds does not include the personal circumstances of an applicant, owner or interested party.”
[57]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 549 [24].
I also had the benefit of the written submissions prepared on behalf of K&K. The written submissions identified that, in respect of the ground relating to an absence of amenity impacts, it is well established that an absence of a negative or detrimental impact is a relevant consideration. In support of its submission, K&K cited the Court of Appeal’s decision in Lockyer Valley Regional Council v Westlink Pty Ltd.[58] I also made reference to that Court of Appeal decision in my earlier judgment at paragraph [333] where I found:[59]
“The last three grounds relate to visual and character issues, which have been dealt with above. By itself, the absence of adverse effect would not amount to a sufficient ground; however, it is still a relevant consideration. It is a matter of public interest.”
[58][2012] QCA 370; [2013] 2 Qd R 302, 323-4 [25].
[59]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 615 [333]. This finding was not criticised by the Court of Appeal.
On the issue of need, K&K’s written submissions for the original hearing also referred to general principles distilled from Sempf v Gatton Shire Council,[60] Roosterland Pty Ltd v Brisbane City Council,[61] Fitzgibbons Hotel Pty Ltd v Logan City Council,[62] Bunnings Building Supplies Pty Ltd v Redland Shire Council,[63] Cut Price Stores Retailers & Ors v Caboolture Shire Council,[64] and Intrafield Pty Ltd v Redland Shire Council.[65] In particular, K&K noted that the question as to whether need is shown to exist is to be decided from the perspective of a community and not that of an applicant, commercial competitor or particular objector.
[60][1997] QPELR 198, 199-200.
[61][1986] QPELR 515, 517.
[62][1997] QPELR 208, 213.
[63][2000] QPEC 1; [2000] QPELR 193, 198.
[64][1994] QPELR 126, 131.
[65][2001] QCA 116; (2001) 116 LGERA 350, 354 [20].
As is evident from the cases referred to by K&K, and the general principles with respect to need referenced in my earlier judgment,[66] need in the town planning sense is established if its provision, taking all things into account, improves the physical well-being of the community. As such, need, in a town planning sense, is a matter of public interest. This is acknowledged in the decision of the Court of Appeal, wherein Sofronoff P observed:[67]
“… need as a factor in town planning decision-making has been held, under various statutes, to constitute a matter of public interest that can override the opposing public interest in the enforcement of a Planning Scheme.”
[66]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 614 [328].
[67]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42].
At the remitted hearing, K&K submitted that the grounds constitute matters of public interest because:
(a)in relation to questions of need: it is in the public interest to deliver facilities that are needed so as to enhance the well-being of the community;
(b)in relation to questions of land being used appropriately: it is in the public interest for land to be used in an efficient fashion, particularly where, as is the case here, uses the subject of a development may not be delivered if they are not provided as part of an integrated development;
(c)in relation to questions of planning scheme compliance: if it is in the public interest to comply with the planning scheme, putting to one side the part in conflict, the level of compliance that the development otherwise achieves is relevant; and
(d)in relation to questions of an absence of amenity impacts: it is in the public interest that a development that is needed can be delivered to the community with an absence of amenity impacts.[68]
[68]Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, 323 [25].
As was the case at the original hearing, the Council does not cavil with K&K’s submission that the matters relied on by K&K are matters of public interest. I accept that each of the matters referred to in paragraph [52] above are relevant to the exercise of the discretion under s 326(1)(b) of the Sustainable Planning Act 2009 for the reasons advanced by K&K.
The issues in dispute, with respect to the exercise of the discretion under s 326(1)(b) of the Sustainable Planning Act 2009, relate to:
(a)what, having regard to the further evidence, is the nature and extent of the need for, and community benefit provided by, the proposed fast food premises and take-away food premises; and
(b)whether the matters of public interest raised by K&K are sufficient in all of the circumstances of this case to justify approval of the proposed development.
What grounds are established on the further evidence?
The general principles in relation to need are set out in my original decision and will not be repeated here.[69] The Court of Appeal did not criticise my analysis of the relevant principles and confirmed that need can constitute a matter of public interest that can override the opposing public interest in the enforcement of a planning scheme.[70]
[69]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592-7 [235]-[246].
[70]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42].
With respect to the need for the service station, in my earlier judgment I found there is a greater than “low” need for a service station on the subject land and a lower than “strong” need for it. This finding was not criticised by the Court of Appeal.
On the issue of need for the take-away food and fast food premises, in the Court of Appeal decision, Sofronoff P records:[71]
“… The experts agreed that the take-away food premises and the drive through fast food premises would “mostly service southbound traffic. They also agreed that those retail outlets would “add to the cluster” of similar retail outlets in the immediate area. How those matters served the public interest was not identified.”
[71]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 645 [61].
On the basis of the evidence available at the original hearing, I found that there is a need for the take-away food and fast food premises given:[72]
[72]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 614 [328].
(a)in respect of the take-away food premises, Gloria Jeans have expressed interest in the tenancy. There is no other Gloria Jeans located in the immediate area;
(b)Mr Leyshon, the Council’s economic expert, agreed that there would be advantages from Gloria Jeans co-locating with the proposed service station – it will add to the customer’s choice and convenience;
(c)the economic experts agreed that:
(i)it is not uncommon for petrol stations to be co-located with take-away food/drive-through facilities given these types of facilities also serve local residents and passing traffic along heavily trafficked routes; and
(ii)Gloria Jeans would provide a different offer to the other drive-through facilities serving coffee in the region, which are presently dominated by Zaraffa’s;
(d)the proposed development would provide a point of difference to other facilities in the trade area due to its co-location, convenient offer and southbound traffic location;
(e)the proposed development would add to a cluster of take-away or fast food facilities and that the size of the trade area and worker population, as well as passing traffic, would be large enough to sustain such a facility in the south-bound direction; and
(f)approval of the proposed development would add to choice, competition and convenience in terms of the fast food/take-away food offer in its precinct.
At the remitted hearing, Mr Leyshon and Mr Duane, the economics experts retained by the Council and K&K respectively, gave further evidence about the nature and extent of need for, and community benefit provided by, the proposed fast food premises and the take-away food premises.
With respect to the proposed development, Mr Leyshon confirmed that he still holds the view, expressed in evidence at the original hearing, that the subject land presents a good commercial opportunity for an independent fuel operator to service the needs of the community. He opines that it is an excellent site for the totality of what is proposed and acknowledges that the subject land has locational attributes that are not common for the eastern side of Ferry Road. The subject land is a highly visible site for motorists travelling south down Ferry Road or east along Cotlew Street and, if the development proceeds, it will be readily recognisable by regular motorists in the area as a new development in that part of the city. He opines that the service station would attract significant patronage. During cross-examination, Mr Leyshon also confirmed that the co-location of fast food and take-away food premises with the service station will add to the choice and convenience of customers. Mr Leyshon expects that the fast food and take-away food premises would be successful, provided the facilities are of good quality and are attractive to the public. The early interest expressed by Oporto and Red Rooster (proximate to the time when the development application was made) suggests that the proposed development would be of good quality and attractive to national operators.
Mr Duane says that there is a significant developing trend for major fast food chains to typically operate in close proximity to, if not on the same site as, service stations. He says the co-location has become the “norm” in the last five years and that the provision of drive-through facilities by take-away food premises like Oporto and Guzman Y Gomez has become more prevalent in the past two or three (or perhaps five) years. Mr Duane identified numerous examples of such development within and beyond the trade area. Recently developed sites nearby include the United Petroleum service station and Pie Face site, the Coles Express service station and Hungry Jacks site, and the Woolworths service station and McDonalds service station site. They are all in Southport. In Ashmore, there is a combined Shell service station, KFC and Starbucks site, and a Freedom service station and Zarraffa’s site. Another site nearby is the development at 88 Bundall Road. It was approved for a service station and drive through coffee shop. I accept the evidence of Mr Duane. It is consistent with the evidence of Mr Leyshon in relation to the co-location trend.
Mr Duane explains that service stations and fast food and take-away food premises with drive-through operations require similar attributes from sites on which they locate. Key attributes are access from a major road, to ensure appropriate traffic operations and to provide good exposure; and operating hours that are more extended than those available when operating within a typical shopping centre. He says that in light of those requirements, it is not economically sensible for separate facilities to be constructed for each fast food outlet and service station. During cross-examination, Mr Leyshon agreed with these views. I accept this evidence.
In addition, Mr Duane says that the benefits of co-location are not limited to private economic benefits enjoyed by the relevant traders. He opines that co-location of service stations with fast food and take-away food premises is to the benefit of the public. This is particularly so given, in his view, many fast food and take-away food premises do not have the capacity to operate as stand-alone facilities and, as such, absent opportunities to co-locate would not be available to the public. With the exception of McDonald’s and KFC, Mr Leyshon agrees. During cross-examination, Mr Leyshon acknowledged that likely tenants for the proposed development, like Gloria Jean’s Coffees, rely on co-locating with other traffic generating activities that they can trade off rather than locating on a freestanding site. The opinion of the economics experts on this issue is consistent with the information depicted on Map 1 in the Joint Report on Economic Need dated 4 November 2019, which documents the location of service stations and fast food and take-away food premises presently located within an approximate four-kilometre radius of the subject land. I accept this evidence about the public benefits generally afforded by co-location.
Mr Duane opines that the public benefits of the proposed development include increased convenience for the customer, easy accessibility and visibility from major roads for such facilities, and extended trading hours for the fast food and drive-through facilities by virtue of their co-location with a service station. Mr Duane explains that motorists benefit by being able to purchase fast food at the same location as the service station, either on the same trip or on different trips. He is also of the view that the proposed development would offer increased choice, convenience and competition for southbound traffic along Bundall Road. Mr Duane notes that Gloria Jean’s Coffees has expressed interest in the proposed drive-through facility on the subject land. He also notes that there are a number of other tenancies who typically operate drive-through facilities that are not represented in the trade area. They include Guzman Y Gomez, Oporto, Red Rooster and The Coffee Club. I accept Mr Duane’s evidence in this respect also.
Mr Duane says that the only vacant site in the primary sector of the trade area that would be able to incorporate the proposed take-away food premises and fast food premises with associated drive through facilities is the now vacant Crema Expresso tenancy at 88 Bundall Road. His evidence in this regard was unchallenged and I accept it. Mr Duane opines that the public benefits presented by the proposed development are different to the benefits afforded by the development of 88 Bundall Road, which is on the western side of Ferry Road and serves the northbound traffic.
As I have already observed, Mr Leyshon was of the same opinion as Mr Duane about the recent trends with respect to co-location; the economic and operational considerations that inform the trend; and the public benefits associated with the co-location of the proposed service station with fast food and take-away food premises. Nevertheless, Mr Leyshon maintains his opinion that there is a very low level of need for the proposed drive-through coffee shop and fast food premises on the subject land. His opinion in that regard is premised on four matters. First, Mr Leyshon assumes that the need is relevant to only a very small proportion (less than ten per cent) of motorists travelling southbound on Ferry Road. Second, Mr Leyshon opines that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items. In forming that opinion, Mr Leyshon relies on a 2017 survey by Australasian Convenience and Petroleum Marketers Association (2017 Monitor of Fuel Consumer Attitudes). He notes that the survey records that only 8.6 per cent of the total survey respondents purchased coffee or hot drinks while also purchasing fuel. Third, Mr Leyshon relies on the survey to opine that there is no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land. Fourth, Mr Leyshon considers that, to the extent that there is a need for a coffee vendor such as Gloria Jean’s Coffees, that need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall.
I do not accept the evidence of Mr Leyshon that the need for the proposed drive-through coffee shop and fast food outlet on the subject land should be characterised as “a very low level of need” for the reasons that follow.
Even if the development only serves less than ten per cent of motorists travelling southbound on Ferry Road, that is a significant population. As I noted in my earlier judgment,[73] the economics experts agree that Ferry Road is one of the busiest roads on the Gold Coast. It is on a major north-south connection road to a significant employment and shopping precinct. The average daily volumes of traffic along Ferry Road include 35 837 vehicles in both directions approximately two kilometres to the north of the subject land (near the intersection of Ferry Road and Minnie Street) and 50 273 vehicles in both directions approximately three kilometres to the south along Bermuda Street near the intersection with Monaco Street.
[73]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 598 [247].
In addition, I do not accept that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items. Mr Leyshon’s opinion to this effect is founded on his views about the relevance of the findings of the 2017 Monitor of Fuel Consumer Attitudes report prepared by the Australasian Convenience and Petroleum Marketers Association, which I do not accept. Nor do I accept the Council’s submissions about the proper construction of the document for the reasons provided below.
A copy of the report is appendix D to the Joint Report on Economic Need prepared for the remitted hearing. It indicates that a survey of fuel consumers was conducted in August 2017 by way of an on-line survey of 1 042 respondents and video interviews with ten consumers. The survey is said to have been conducted on behalf of the Australasian Convenience and Petroleum Marketers Association by a well-recognised market research firm – Survey Matters. The report records findings in relation to the habits of people when purchasing fuel.
As is noted by the Council in its written submissions, Mr Duane appears to discount the relevance of the findings of the survey to co-located facilities, such as the take-away food premises and the fast food premises components of the proposed development. He does so on the basis that the survey only considered consumer habits in relation to convenience stores associated with petrol stations. Mr Leyshon was of the view that it was not clear from the methodology of the survey that co-located facilities were excluded. The Council submits that I should find that they were not excluded because:
(a)the executive summary does not say anything that distinguishes between co-located facilities and the operation of the convenience stores at service stations;
(b)the first paragraph of the executive summary simply states that the survey is to better understand Australian consumer attitudes, preferences and habits when purchasing fuel; and
(c)convenience stores attached to petrol stations do not typically sell café-style meals.
When the report is read as a whole, these matters do not persuade me, on the balance of probabilities, that the survey lends support to Mr Leyshon’s position in the manner he contends.[74] The questions asked of those who participated in the survey are not recorded in the report. As such, I am not persuaded of the soundness of Mr Leyshon’s assumption that it is an extremely low proportion of those refuelling who will seek to use the proposed fast food premises and the take-away food premises.
[74]The executive summary referred to the “convenience offer” as one offered at service stations and, in terms of “café style food”, the report noted that some service stations are testing the theory that consumers are using service stations to shop for an expanded convenience offer by including coffee, bakery items, café style food and a wider grocery range.
Although I accept Mr Leyshon’s evidence that the 2017 Monitor of Fuel Consumer Attitudes provides no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land, that does not, of itself, persuade me that the need for the proposed fast food and take-away food premises is only “very low”.
I also do not accept Mr Leyshon’s opinion that, to the extent that there is a need for a coffee vendor such as Gloria Jean’s Coffees, or other such take-away food premises, the need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall. The tenancy in question was previously occupied by “Crema Expresso”. They have been excluded from the Bundall Road site due to non-payment of their rent. The tenancy has been sitting vacant ever since. Mr Duane does not consider this facility to be of material benefit for southbound motorist. This is because typically purchasers of petrol would travel in and out of a site by travelling in the same direction before and after the purchase. I accept Mr Duane’s evidence in this regard.
It is evident from the maps and plans available during the hearing that a southbound traveller who wishes to use the facility would have to undertake two U-turns (one at Vespa Crescent and one at Crombie Avenue) to access the facility and then, having made the purchase, would have to cross three lanes of traffic in order to perform a U-turn at Crombie Avenue to continue their journey south. These U-turn movements would be at intersections controlled by traffic signals. They would involve extra travel of less than one kilometre. Nevertheless, I do not consider this to be convenient. The inconvenience associated with such manoeuvres is such that I do not regard the community benefits afforded by the 88 Bundall Road site to be of persuasive relevance to a consideration of the public benefit associated with the proposed development.
I also accept the evidence of Mr Duane that the 88 Bundall Road site would not be attractive to national operators seeking to operate a drive-through tenancy. The tenancy has poor visibility. The drive through facility is also unattractive due to its location at the back of the development. Its location would require a motorist to drive through the service station to place a food order.
In addition to relying on the evidence of Mr Leyshon referred to in paragraph [66] above, the Council advances a further six substantive arguments as to why I should find that the need for the proposed fast food and take-away food premises are very low.
The Council’s first substantive argument is that the evidence adduced at the remitted hearing reveals that there is significant doubt about whether Gloria Jean’s Coffees would take up a tenancy for a fast food premises (drive through coffee shop) in the proposed development.
The only evidence of Gloria Jean’s Coffees’ interest in the tenancy is a letter from the Retail Food Group dated 20 February 2017 under the hand of the national Portfolio Manager. The letter details the terms of a lease offer. At the start of the letter, Retail Food Group notes that the lease offer is subject to board approval. It is also subject to the lessee’s legal advisor’s satisfaction with the lease terms, and to securing a franchisee. Having set out those provisos, the letter details the terms and conditions for a lease to Gloria Jean’s Coffees. The letter seeks confirmation that “the terms and conditions set out below are acceptable to the Lessor, so that we may submit the lease offer for RFG Board Approval”. The letter then outlines Gloria Jean’s Coffees’ requirements in considerable detail across six pages. They include, amongst other things, requirements with respect to seating area, trading hours, after-hours access, tenancy design, fit-out contributions, drive-through arrangements, and car parking. The letter concludes that “Upon confirmation that Gloria Jean’s Coffees terms and conditions are acceptable to the Lessor, we may submit the lease offer for Board Approval.”
The qualified nature of the offer is unsurprising given the letter is not a lease. I am not troubled by the dated nature of the letter. I would not expect a lease to have been signed, or an updated letter to be provided, when the question of planning approval is outstanding. Having regard to the extensive detail contained in the letter, I do not consider that there is significant doubt that Gloria Jean’s Coffees would take up a tenancy.
In any event, Mr Leyshon does not doubt that a tenant would be found. As such, I am persuaded on the balance of probabilities that a suitable national branded tenant will be found for the proposed take-away food premises. I do not consider the dated and qualified nature of the letter to be indicative of a very low need for the proposed fast food premises and take-away food premises.
The second substantive argument advanced by the Council is that there is already an opportunity for a coffee vendor such as Gloria Jeans to lease an existing drive-through coffee shop at 88 Bundall Road, Bundall. The Council submits that such an outlet could serve the motorists who regularly use the Bundall Road / Ferry Road corridor as well as attracting custom from local residents and workers. I do not find the submission persuasive for the reasons outlined in paragraph [74] above.
The Council’s third substantive argument is that, even if the 2017 Monitor of Fuel Consumer Attitudes report is found to relate only to consumer habits in relation to the convenience store, the needs of the overwhelming majority of motorists travelling southbound on Ferry Road would be met simply by the provision of a service station and an associated convenience store that retails those items most commonly bought by motorists when refuelling their vehicle (namely drinks, chips, lollies, snacks, coffee/hot drinks and basic grocery items). In support of the submission, the Council refers to paragraph 55 of the Joint Report on Economic Need dated 4 November 2019. That paragraph is part of section 3.3, in which Mr Leyshon summarises the effect of the opinions that he otherwise expresses about the relevance of the 2017 Monitor of Fuel Consumer Attitudes report. I do not accept his opinions in this regard for the reasons already outlined in paragraphs [66] to [74] above.
The Council’s fourth substantive argument relies on the evidence of Mr Leyshon that there are numerous opportunities for motorists using Ferry Road to purchase fast food and coffee from existing establishments associated with service stations, particularly to the north of the subject land as depicted in Map 1 of the Joint Report on Economic Need prepared for the remitted hearing. Those opportunities include the recently opened Taco Bell (with drive-through facilities) at 80 Ferry Road, Southport, to the north of the subject land. The Council also submits that there is no reason why take-away food could not be provided at the convenience store, albeit with a reduced offer.
I do not accept the Council’s submission with respect to the convenience store use. The convenience store forms part of the defined service station use. Leaving aside the inconsistency between this submission and the Council’s position that the proposed service station and associated convenience store should not be approved, either by way of approval of the whole of the proposed development or by a partial approval, the submission is not supported by the 2003 Planning Scheme. Under the 2003 Planning Scheme, a service station is defined as:
“Any premises used, or intended to be used, for the refuelling of motor vehicles, including the sale of retail of petrol or automotive distillate or any derivative capable of use in internal combustion engines, whether or not the premises are also used for one or more of the following purposes:
The sale by retail of:
· lubricating oils and greases;
· batteries and tyres;
· accessories and other products associated with motor vehicles;
· power and lighting kerosene;
· mower fuel;
· maps, tobacco, confectionary, patent medicines, soft drinks, milk products, newspapers and periodicals, where any such sale is to a person travelling by motor vehicle.
The carrying out of:
· the fitting, removal, and exchange of tyres;
· the repairing of tubes;
· the supply of air;
· the charging or replacement of batteries;
· the lubrication and greasing of motor vehicles;
· the cleaning, adjustment and replacement of sparkplugs;
· the adjustment, cleaning or replacement of filters or carburettors or fuel injection systems;
· the reception and return of tyres deposited for repair on other premises;
· running repairs of a minor nature and of a type which do not normally immobilise a vehicle for a period longer than two hours;
· the installation of accessories for motor vehicles and motor cycles;
· the washing of motor vehicles, motor cycles, boats and trailers;
· the hiring of trailers, utility trucks or utility vans where the total number of trailers and vehicles does not exceed six and the capacity for each such trailer or vehicle is not more than one tonne;
· the rendering of minor services incidental to any of the foregoing.
This term does not include a Motor Vehicle Repair Station, an Industry, a Salvage Yard, a Passenger Terminal, a Shop or a Transport Terminal.”
The second background matter referred to by K&K is that City Plan 2016 commenced after the development application the subject of this appeal was lodged with the Council. The Council now submits:
“The introduction of a new planning scheme after lodgement of a development application is the very fact that triggers the discretion in s.495 of SPA. It is not a relevant factor for its exercise.”
The Council’s submission misses the point to K&K’s submission. The submission relates to the timing of the commencement of City Plan 2016. The timing is relevant when considering the timing of rights to lodge a development application (superseded planning scheme). It is also relevant to the effectiveness of any such application in terms of securing a right of assessment against a planning scheme that does not contain provisions that now undermine development potential, and the extent to which rights of compensation might be lost. The submission outlines part of the background relevant to those rights and should not be considered in isolation.
Third, K&K submits that 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 K&K and were not in force at the time the application was made. For example, the 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”. The Council now submits:
“That the latest amendments to CP2016 (version 4) make it more difficult for the appellant to succeed is accepted, but it is not a matter which should be counted against the Council in the exercise of the discretion. It is understood K&K do not contend that the decision to make the amendments was a “colourable” decision.”
This submission suggests that the approach to the exercise of the discretion involves tallying marks for and against the Council. I do not regard it as appropriate to approach the exercise of the discretion in such a manner. The discretion should be exercised having regard to all of the relevant facts and circumstances. One such circumstance is that version 4 of City Plan 2016, which the Council seeks to rely on to found its allegation of serious conflict with City Plan 2016, took effect on 3 July 2017. That is almost six months after K&K filed its notice of appeal and more than 18 months after K&K had made its development application.[143]
[143]The relevance is apparent when one considers the circumstances in which a provision such as s 495(2)(a) of the Sustainable Planning Act 2009 was first introduced into planning legislation in Queensland – see paragraphs [177] to [180] above. The Council appears to accept that this is relevant to the exercise of the discretion. Its acceptance is apparent from its submission that fairness between the parties is a relevant consideration and its reliance on Iverach v Cardwell Shire Council & Anor [2006] QPEC 114; [2007] QPELR 196 at 203 [49] in that regard.
The fourth matter raised by K&K is that the Council officers recommended that the proposed development be approved with knowledge of the contents of City Plan 2016. The Council now submits:
“The fact that Council officers recommended approval with knowledge of the contents of CP2016 should be given no weight as the Council officer did not give evidence about that recommendation and the reasons for it. Further, the recommendation was not adopted by the Council and, therefore, does not represent the Council’s position.”
I accept that the recommendation does not represent the Council’s position. Nevertheless, this is one of the facts that forms part of a broader matrix that K&K relies on to submit that it would be unfair to give City Plan 2016 determinative weight. It is unhelpful to deal with the submission in isolation as the Council does. The fact provides relevant background context when one considers the manner in which the litigation was conducted and the circumstances that pertained at the time that K&K elected not to lodge a development application (superseded planning scheme).
Fifth, K&K submits it is relevant that the 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. The Council now submits:
“The fact the Council did not refer to CP2016 as a basis for refusal in its original decision is irrelevant for reasons developed below.”
This is relevant for the same reasons as K&K’s fourth background matter.
Sixth, K&K submits that after the commencement of City Plan 2016, it 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 the Council to ignore the contents of the City Plan 2016, in particular those that are now relied on by Council to defeat the proposed development. The Council now submits:
“The only provisions of CP2016 for which the Council alleged conflict in the proceedings below are in versions 3.0 and 4.0 of CP2016. As at the original hearing date, the ability to make a request for a development application (superseded planning scheme) (DA(SPS)) to have the application assessed under version 3.0 was still on foot and had a further 6 months to run.
To the extent this is a relevant consideration, it favours exercising the discretion so as to give weight to CP2016, not the contrary. As Williamson QC DCJ said in Klinkert v Brisbane City Council:[144]
“[147] Sixth, the refusal of the application in reliance upon the amended planning provisions and PSP would not represent the end of the line for the Appellant. The Appellant has a right that exists today to make a request under s 29 of the PA for a superseded planning scheme to apply to the proposed development. Such a request must be made within 1 year after the amendments took effect.
[148] Upon receipt of such a request the Respondent would be obliged to make an election as to whether it will assess the application against, and only against, the superseded planning scheme and PSP. That election has the potential to lead to an approval or, alternatively, lead to a process that may found a claim for compensation. This consideration goes a considerable way to offsetting the unfairness that is said to accrue to the Appellant by giving the amendments to City Plan 2014 and the PSP determinative weigh [sic], particularly where in the absence of the amendments an approval would have been forthcoming under s 60(2)(a) of the PA.” (footnotes removed and emphasis added in paragraph [148])”
[144][2018] QPEC 30; [2018] QPELR 941.
The Council’s submission about the versions of City Plan 2016 it relies on, and its submissions about K&K’s ability to make a development application (superseded planning scheme) are accurate. However, the submissions create a false impression on the issue of fairness as they omit material facts. The Council places considerable reliance on conflict with s 3.3.3.1(9) and s 3.4.5.1(14) of the Strategic framework, s 6.2.1.2(2)(a)(vi) of the Low density residential zone code and performance outcome PO4 of the Service station code. As is recorded in the decision of the Court of Appeal, the Council says determinative weight should be given to the conflict with performance outcome PO4 of the Service station code. There was no change to those provisions after their commencement as part of version 1 of City Plan 2016 on 2 February 2016.[145] As such, had K&K wished to avoid the impact of those provisions (or, if that process was denied to them by the Council, to seek compensation), it was required to make a development application (superseded planning scheme) by 2 February 2017. It is in this context that one should consider the significance of the report of the Council officer and the conduct of the Council prior to 2 February 2017 as compared to its conduct after 2 February 2017. Prior to 2 February 2017, the Council had not indicated that it did not share the views of its employees with respect to City Plan 2016. In addition, prior to 2 February 2017, the Council had not indicated an intention to ask the Court to give weight to City Plan 2016, let alone determinative weight.
[145]These documents are statutory instruments.
Seventh, K&K submits that 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. The Council now submits:
“That CP2016 was first raised as a reason for refusal by the Council’s lawyers, not the Council itself, is not relevant.
S.43 of PECA provides that an appeal is by way of a hearing anew. The court hears the matter afresh on fresh material, and may overturn the decision appealed against regardless of error. In this context, an assessment manager is not bound by, or limited to its reasons for refusal. It is a fresh hearing, on fresh material where the correctness or otherwise of the original decision does not determine the outcome of the appeal.”
I accept that the appeal proceeds by way of hearing anew, and that the Council was not bound by, or limited to, its reasons for refusal.[146] The Council was entitled to seek an order to raise fresh issues and did not need to explain why those reasons were not part of the original reasons for refusal, provided an order had not previously been made defining the issues in dispute in the appeal.[147] The Council submits that is precisely what occurred in this case. The Council’s submission is not accurate. The submission is also inconsistent with findings I made in my earlier judgment.[148]
[146]The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, 986 [33]-[35] citing Chalk v Brisbane City Council [1966] 13 LGRA 228, 230 and Walker v Noosa Shire Council [1983] 2 Qd R 86, 88.
[147]The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, 987 [36]-[37] citing Waterman v Logan City Council [2018] QPEC 44; [2019] QPELR 46.
[148]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 627-8 [388]-[395]. These findings were not disturbed by the Court of Appeal.
On 9 January 2017, K&K filed its Notice of Appeal in which it took issue with the Council’s reasons for refusal. Those reasons related to conflict with the 2003 Planning Scheme. The only reference to City Plan 2016 in the Notice of Appeal was an allegation raised by K&K that:
“The proposed service station is a listed impact assessable use under the zoning of the land under both the 2003 and 2016 planning schemes. The proposal is therefore within the reasonable expectations of the community.”
K&K did not allege that the Court should place weight on City Plan 2016.
On 12 May 2017, pursuant to an order of this Court made on 27 April 2017, the Council amended its reasons for refusal. 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). The only allegations with respect to City Plan 2016 were allegations of conflict. The document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009. It appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016. This is not what s 495 requires.
The Council further amended its reasons for refusal on 28 July 2017. 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).
The Council again amended its reasons for refusal on 7 September 2017 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 on 20 October 2017 permitted the Council to rely on those issues in dispute. As with the earlier documents, this document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009. Again, it appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016. There is no such obligation under s 495.
On the first day of the hearing, the Council produced a document titled “Respondent’s Consolidated Grounds for Refusal”, which it submitted consolidated the grounds in the decision notice and the other documents. 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. The Council’s document did not allege that weight (let alone determinative weight) should be placed on City Plan 2016. As I found in my earlier judgment, at best, the issue the Council put in issue 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.[149]
[149]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 628 [394].
During the opening, K&K drew the Court’s attention to the allegations made by the Council about City Plan 2016. It noted that the allegations were only allegations of conflict, which it said fell well short of the type of allegation required for one to consider City Plan 2016.[150] K&K raised the absence of an allegation that the new planning scheme should be given weight; and the absence of an allegation that this is a case that involves compromising some forward planning decision or that failure to give City Plan 2016 weight would make it more difficult to implement contemporary planning. K&K also indicated that, should the Council seek to allege, at that late stage, that City Plan 2016 should be given overwhelming weight, issues of fairness arise.
[150]See T1-14 to T1-15. In particular, with respect to the need to consider whether there are reasons why City Plan 2016 should determine the outcome of the appeal, K&K said “the council’s allegations as a starting point don’t get there”. See also T1-41 – T1-44.
Having heard the criticisms made by K&K about the inadequacy of the Council’s allegation with respect to City Plan 2016, on 10 November 2017 (day 5 of the hearing), the Council sought, yet again, to change its position. With the agreement of both parties, I made an order redefining the issues in dispute by reference to a document titled “Respondent’s Points of Refusal”.[151] Although K&K agreed to an order permitting the Council to amend its issues in that manner, it indicated that it would seek to be heard later about the consequence of the late introduction of the new issues.
[151]Exhibit 32. The document contained handwritten amendments. See T5-4/L1 – T5-6/L6
The Council first alleged that significant and overwhelming weight should be given to City Plan 2016 pursuant to s 495(2)(a) of the Sustainable Planning Act 2009, and the basis for its allegation,[152] in the document produced on 10 November 2017. By that time, the only provision relied on by the Council that would be irrelevant to assessment of a development application (superseded planning scheme) then made would be s 6.2.2.2(2)(a)(v) of the Medium density residential zone code. It is in that context that K&K raised the history of the matter and the fairness point, and that I made my earlier findings.
[152]The reasons the Council relied on are recorded at paragraph [337] of my earlier judgment.
In addition to the submissions now made by the Council responding to matters raised by K&K addressed above, the Council now advances further submissions about why it is not unfair to give City Plan significant and determinative weight. The Council’s further submissions are premised on a selective history of the matter and how the issues in dispute evolved. They are presented in a manner that is favourable to the Council but not truly reflective of the fairness as between the parties. The Council’s submissions ignore many of the matters referred to in paragraphs [234] to [242] above. As such, I find them unpersuasive.
Conclusion regarding the weight to be afforded to City Plan 2016
The relevant planning strategies embodied in the 2016 Planning Scheme are different from those pursued in the 2003 Planning Scheme. A service station is no longer considered to be an appropriate use on the subject land. On the other hand, there has been a softening of the position with respect to the use of the subject land for fast food premises and take-away food premises.
Although all aspects of the proposed development do not comply with City Plan 2016, it must be remembered that the Sustainable Planning Act 2009 requires the subject application to be assessed against the 2003 Planning Scheme. The relevant provisions of the 2016 Planning Scheme are a matter of weight only. I have given consideration to the 2016 Planning Scheme, including its discouragement of a service station on the subject land and the nature and extent of conflict alleged by the Council. I am ultimately unpersuaded to give that decisive weight having regard to my reasons in paragraphs [175] to [244] above and the public interest in the approval of the proposed development on the subject land.
One further issue that arose – approval in part
As I indicated in paragraph [5] above, during the remitted hearing, K&K contended that if the Court were to find that there were not sufficient grounds to justify approval of all of the components of the proposed development, the Court should approve the service station and convenience store component pursuant to s 324(1)(a) of the Sustainable Planning Act 2009. It is unnecessary for me to consider this issue, as I have determined that the whole of the proposed development should be approved. However, had I not been satisfied about the sufficiency of grounds, I would have been prepared to approve the service station and associated convenience store. As is accepted by the Council, the Court has the power to issue an approval in part.[153] I am satisfied that that the various components are not so interconnected as to prevent part approval as a matter of practicality. I do not accept the Council’s submission that a partial approval would necessarily involve a redesign. The fast food premises and the take-away food premises are in a separate part of the proposed building, separated from the service station and its convenience store by a walkway. The consequential changes to the building required by deletion of the unnecessary parts of the building would be a matter for consideration as part of any future development application for building works. They are not such as to prevent a partial approval.
[153]Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333.
Conclusion
For the reasons provided above, K&K has discharged the onus.
My orders will be as follows:
1. The appeal is allowed.
2. The development application is approved subject to the conditions package of 106 pages attached to the Judgment given on 29 June 2018.
I will hear from the parties about any other orders that may be appropriate.
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