Mooloolah Commercial Pty Ltd v Caloundra City Council
[2005] QPEC 29
•15 April 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPEC 029 |
PARTIES: | MOOLOOLAH COMMERCIAL PTY LTD (ACN 082 006 577) as Trustee for the REED FAMILY TRUST and THE REED FAMILY TRUST (Appellant) AND CALOUNDRA CITY COUNCIL (Respondent) AND THE STATE OF QUEENSLAND (First Co-Respondent) AND JARED AND PENNY KIEZA (Second Co-Respondent by election) AND CHRISTINE SPRY (Third Co-Respondent by election) AND RAYMOND GEORGE SPRY (Fourth Co-Respondent by election) AND JENNIFER J McRAE (Fifth Co-Respondent by election) AND NORMA McRAE (Sixth Co-Respondent by election) AND ROBIN ADRIENNE KING CULLEN AND AND TERENCE KEITH CULLEN (Seventh Co-Respondent by election) AND JOAN DUNSTAN (Eighth Co-Respondent by election) AND BRIAN DUNSTAN (Ninth Co-Respondent by election) AND LYN PECK (Tenth Co-Respondent by election) AND HELEN WEIL (Eleventh Co-Respondent by election) |
FILE NO/S: | 282 of 2004 |
DIVISION: | Planning and Environment |
PROCEEDING: | Development Appeal |
ORIGINATING COURT: | Planning & Environment Court of Queensland, Maroochydore |
DELIVERED ON: | 15 April 2005 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 4 – 8 April 2005 |
JUDGE: | Judge J.M. Robertson |
ORDER: | [1] Appeal dismissed |
CATCHWORDS: | Application for development permit; whether proposal for mixed development comprising tavern, drive through bottle-shop, freestanding shop, and small motel on site in residential A zone conflicts with 1996 Planning Scheme, weight to be afforded Caloundra City Plan 2004; whether sufficient planning grounds exist to approve notwithstanding conflicts amenity (noise, traffic impacts, character and behaviour effects), need. Cases cited: Weightman v Gold Coast City Council (2003) 2 Qd R 441 Statutes cited: Integrated Planning Act 1997, s. 4.3.3 |
COUNSEL: | C. Hughes SC with S Williams (for the appellant) J. Houston (for the respondent) R.G. Spry in person (for the co-respondents) |
SOLICITORS: | p&e Law (for the appellant) Corrs Chambers Westgarth (for the respondent) |
INTRODUCTION
[1] Mooloolah Commercial Pty Ltd as trustee of the Reed Family Trust and the Reed Family Trust (the appellant) have appealed to this Court against a decision of the Caloundra City Council (the Council) on 13 July 2004 to refuse an application for a development permit for a material change of use for a mixed development comprising a hotel (with drive through bottle shop and caretaker’s residence), a motel comprising four guest rooms and a stand alone shop, on land at Mooloolah in the Sunshine Coast hinterland.
[2] The site is made up of three lots and is located at the corner of Mooloolah Connection Road and Way Street Mooloolah and comprises an overall area of 3848m².
[3] At its western end is the Way Street Mooloolah Road intersection, which in turn adjoins a fire brigade reserve. Next to that is an existing childcare centre which had a residential A zoning under the 1996 Scheme, but which has been included in the Local Business Centre in the relevant precinct map in City Plan 2004. To the north of the childcare centre is the railway reserve. At present, Way Street services a small park and ride facility adjoining the Mooloolah Railway Station and is the access to the Pony Club reserve adjoining the site to the south. To the immediate north of the site at its western end is a service station and produce store which adjoins a residential area. In the 1996 Scheme the commercial uses were included in the Local Business Zone. In the 2004 Plan, one residential block to the east has been included in the Local Business Centre. I infer that this simply recognised the existing use as a produce store. To the east of the site, and adjoining the proposed motel is the residence of Mr and Mrs Kieza. Mrs Kieza gave evidence on behalf of the co-respondents and I will refer to her evidence later. To the south of the site is a large green space presently used by the Pony Club. In the 1996 Scheme it is zoned Sport and Recreation and in the City Plan 2004 it is designated Open Space – Sport and Recreation.
[4] Mooloolah is a small town in the Sunshine Coast hinterland and is on the main northern rail line, and located between the other “railway” towns of Landsborough (in Caloundra City) and Palmwoods (in Maroochy Shire). The township itself is very small and services the mainly rural Mooloolah Valley area about nine kilometres west of the Bruce Highway.
[5] In City Plan 2004 Mooloolah is one of 16 separate planning areas provided for in Caloundra City and its intended role in the City planning hierarchy is as:
“a small township … Mooloolah’s town centre functions as a local business centre and provides for a basic range of lower order goods and services to the residents of the township and surrounding rural residential settlement areas … Residents of Mooloolah travel outside of the Planning Area for most of their higher order business, industry, and community needs.”
[6] In his report prepared on behalf of the Council, town planner David Perkins notes at page 2:
“10. According to Council’s records, the site was historically the location of the Mooloolah Hotel, opened in 1911 and demolished in 1938.”
[7] The evidence is that Mooloolah has no hotel or tavern, and is the only “railway” town in the hinterland that does not have a general licensed premises. Glasshouse Mountains tavern was established in 2004; otherwise the general licensed premises in the other “railway” towns (Palmwoods, Landsborough, Beerwah) were established in the first half of the 20th century.
[8] The application was made in November 2003 under Council’s 1996 Town Planning Scheme (“the 1996 Scheme”), which was a transitional scheme for the purposes of the Integrated Planning Act 1997 (“the IPA”). The application is therefore to be assessed and decided under ss6.1.29 and 6.1.30 of the IPA. In particular, s6.1.30 requires that the application is to be decided under ss4.4(5) and (5A) of the Local Government (Planning and Environment) Act 1990 (“the repealed Act”).
[9] Section 4.4(5A) of the repealed Act provides:
“(5A) The local government must refuse to approve the application if:
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
[10] The current Caloundra planning scheme, City Plan 2004, was adopted by the Council on 25 August 204, and commenced on 29 September 2004.
[11] The appeal is to be determined on the provisions of the 1996 Scheme, but the Court may give weight to City Plan 2004 as it considers appropriate: s4.1.52(2)(a) of the IPA.
[12] In accordance with the decision of the Court of Appeal in Weightman v Gold Coast City Council (2003) 2 Qd R 441, when proceeding under s4.4(5A)(b) of the repealed Act, the decision maker must:
“1. examine the nature of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
(per the Chief Justice (at 446-447) and per Atkinson J (with whom McMurdo P agreed) at 453).
[13] The onus of establishing sufficient planning grounds despite the conflict is on the appellant, an onus to be discharged by reference to the ordinary civil standard: Estudog Pty Ltd v Council of the Shire of Maroochy [1991] QPLR 7.
The Issues
[14] In his opening, Mr Hughes SC acknowledged on behalf of the appellant that the application was in conflict with the 1996 Scheme (and indeed the Caloundra City Plan 2004). The issues joined in the appeal are therefore the extent of the conflict and whether, on the evidence before the Court, the appellant has established sufficient planning grounds to justify approving the application despite the conflict. As to Caloundra City Plan 2004, the Council and co-respondents submit that considerable weight should be afforded the relevant parts of the scheme, having regard particularly to the timing of its commencement, and other matters which arise in the evidence.
[15] Under the 1996 Scheme, the site:
(a) has a preferred dominant land use (“PDLU”) under the Strategic Plan, of Urban, and, more specifically, Low Density Residential;
(b) is in the Residential A zone.
[16] The uses which comprise the proposed development, are relevantly defined under the 1996 Scheme, as “Hotel”, “Shop” (both the proposed free-standing shop and the proposed bottle shop), “Motel”, and “Caretaker’s Residence”.
[17] Under the Table of Development for the Residential A zone, Hotel, Shop and Motel, were all Column 6 (prohibited) uses, and Caretaker’s Residence was a Column 5 use, requiring the consent of Council.
[18] Therefore, under the repealed Act, a mixed use development of the kind proposed would have required either a rezoning to Central Business, and a town planning consent application, or a rezoning to Special Facilities, identifying specifically the combination of uses proposed.
[19] Under City Plan 2004, the site is:
(a) within the Mooloolah Township Planning Area, which is one of 16 separately designated planning areas;
(b) is designated on the Precinct Map for the Mooloolah Township Planning Area, as being within the Township Residential Precinct.
[20] The uses which comprise the proposed development, are relevantly defined under City Plan 2004, once again, as “Hotel”, “Shop” (both the proposed free-standing shop and the proposed bottle shop), “Motel”, and “Caretaker’s Residence”.
[21] The Residential Precinct Class Development Assessment Table (Table 4.2.2(a)) for the Township Residential Precinct, identifies each of the separate uses as being impact assessable.
[22] The code applicable to the Township Residential Precinct are:
(a) the Precincts and Other Elements Code (Part 5): and
(b) the Mooloolah Township Planning Area Code (in Part 6).
[23] The Specific Outcomes provisions of the Precincts and Other Elements Code, specifically identify Hotel and Motel as inconsistent uses in the Township Residential Precinct, and a shop that does not involve the sale of “convenience goods only” is also inconsistent. Only the Caretaker’s Residence (proposed solely to service the hotel) is a consistent use in the Township Residential Precinct.
[24] In his opening, Mr Hughes SC concentrated on the planning ground of need; and indeed the evidence on this issue, along with the expert planning evidence, was the most contentious. At the Court ordered experts’ conclaves, the noise experts reached agreement as did the traffic engineers (except in relation to one issue relating to parking on the northern side of Mooloolah Road).
The Issues Discussed
[25] The principles for construing planning schemes are well established and, in this case, uncontroversial. They include (relevantly):
1. planning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach;
2. as a whole;
3. in a way which best achieves the apparent intent and objectives;
4. in light of the IPA’s clear proscription in s2.1.33 against prohibiting development, or the use of premises;
5. although planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament;
6. ambiguities or inconsistencies are to be determined in context, according to the intent of the Planning Scheme.
Conflict with the 1996 Scheme
(a) The Strategic Plan
[26] The intent for the Low Density Residential PDLU is described in the Strategic Plan as follows:
“The Low Density Residential designation includes existing and future areas of urban housing intended to provide a variety of residential accommodation styles in low-rise format, generally up to 2 storeys in height … Low Density Residential areas are not confined to residential uses but may include other uses of a compatible nature which are required to service the residential area and which are a necessary and integral part of such an area.”
[27] As in relation to many sections of the planning schemes on this issue, the opinion evidence of the town planners Mr Dillon (on behalf of the appellant) and Mr Perkins (on behalf of the Council) differed considerably.
[28] Mr Dillon concentrated on the reference to other non-residential uses of a compatible nature; and also to the sites proximity to other non-residential uses such as the produce store and service station. He expressed his opinion in his report in this way:
“Uses such as:
· an integrated small family tavern, small shop and small motel development at the boundary of Mooloolah’s local business centre (that is, at the interface between existing non-residential and residential development), with the tavern and shop elements generally opposite other non-residential uses (particularly in respect of the tavern), and
· the small motel adjacent to residential development fronting an arterial road, and
· all with a frontage to the main arterial road through Mooloolah, and
· backing on to a large open reserve,
are of a compatible nature, and are of a necessary and integral part of any urban community, particularly when no other general licence facility is readily available or conveniently accessible.”
[29] Compatibility denotes notions of amenity which will be discussed later under planning needs; however it is difficult to accept that a tavern (albeit a relatively small one) with drive through bottle shop; standalone shop and small motel, with associated parking, lighting and acoustic barriers as depicted in the plans, could be said to be uses which are by nature compatible with low rise residential styles, as they are by nature substantially shopping/commercial facilities. The caretaker’s residence could on its own be of such a nature, but in this proposal it is part of the tavern proposal and must be seen as such. The shop, if it fitted the description of a local store, on its own on a residential site, might also fit the description in the intent provision of “other uses of a compatible nature which are required to service the residential area”, but it has to be viewed as part of the mixed development proposed for the whole site. I prefer Mr Perkin’s evidence on this issue to that of Mr Dillon, and I am satisfied that the proposal does indeed conflict with the Strategic Plan.
(b) The Intent of the Residential A Zone
[30] The intent of the Residential A Zone is:
“To provide for low density, low-rise detached housing and Duplex Dwellings in designated areas. Some non-residential uses compatible with the amenity and character of the locality may be allowed.”
[31] Under the repealed Act, a Caretaker’s Residence required an application for Council consent. It was included in Column 5 in the Table of Development, along with such purposes as a Bed & Breakfast, and Local Store. A Motel, Hotel and Shop all represented a generally inappropriate use and were a prohibited use in Column 6 in the Table of Development, and under the repealed Act, such uses would require a rezoning application. To facilitate all the proposed land uses would have necessitated a rezoning under the 1996 Scheme to Special Facilities.
[32] I agree with Mr Perkins that while the intent for the zone does provide for some non-residential uses, the clear intent of the scheme is to direct the decision maker to the types of non-residential uses set out in Column 5 of the Table of Development, although regard must be had to compatibility with the amenity and character of the locality. I agree with Mr Perkins that:
“the intent clearly intends that the buildings in the Residential A zone should be of a small scale, low height and generally be called “domestic” scale and appearance. The proposal is not domestic in scale and appearance.”
[33] On this point, although the design has many traditional features, and the landscaping proposed is of a very high standard, it will nevertheless present on site as a tavern with a shop and small motel with all the associated car parking and lighting and acoustic wall, which would, in my opinion conflict with the intent of the zone. In my opinion, although the produce store and service station are opposite the site at its western end, the location of the site adjoining Way Street to the west and adjoining homes to the east and also to the north across Mooloolah Road presents not as a commercial site but as a distinctly residential location. This is despite its proximity to the Local Business Centre and the railway line.
[34] It follows that I am satisfied that the proposal does conflict with the 1996 Scheme, and to the significant extent as discussed above.
Conflict with City Plan 2004
[35] It emerged in evidence that Mr Dillon, on behalf of the appellant, made a submission to Council towards the end of the public display process, to the effect that the site be included in the Local Business Centre Precinct. In the draft Plan, the site had always been included in the Mooloolah Township Residential Precinct. The submission was made on 3 October 2003, that is just prior to when the formal application was made in November 2003, and in the last week in which submissions could be made by the public.
[36] Council dealt with the submission and forwarded a copy of its response to Mr Dillon on 8 January 2004. As noted earlier, the site was included in the Mooloolah Township Planning area and the Township Residential Precinct when City Plan 2004 commenced on 29 September 2004.
[37] Council’s response / recommendation (pp254-255 of Exhibit 4) was in these terms:
“Under the existing Transitional Planning Scheme, the site is included in the “Residential A” zone. Under the draft Caloundra City Plan, the site is included in the “Township Residential” Precinct in keeping with the surrounding residential character of this part of Mooloolah Road.
The “Local Business Centre” Precinct is located to the west of the subject site and includes the existing shops and community facilities which surround the Mooloolah railway station. The draft Caloundra City Plan clearly defines the limits to the “Local Business Centre” Precinct in Mooloolah to create a cohesive and identifiable centre. There is further capacity in this precinct for expansion of business and commercial activities to service Mooloolah’s relatively small catchment area. There is no existing identifiable need for further business centre land to be allocated in Mooloolah at this time.
It is noted that (sic) under the existing Planning Scheme, the proposed Hotel would require a Material Change of Use (Impact Assessment – Non preferred) application and under the draft Caloundra City Plan the proposed Hotel would require a Material Change of Use (Impact Assessment – Inconsistent) application. On this basis, the draft Caloundra City Plan does not change the type of application required for the proposed development. In the context of Mooloolah, it is considered that the proposed Hotel is a significant development which should require impact assessment and extensive community consultation.
Recommendation: No amendments to the draft Caloundra City Plan is required.
Direction: To investigate the opportunities of expanding the Mooloolah Township Local Business Centre precinct area, in particular along Mooloolah Road and if required undertake a subsequential amendment to the draft Caloundra City Plan.”
[38] It is clear therefore that Council specifically considered this issue in the lead up to its adoption of City Plan 2004, and clearly evinced an intention to retain the site in the residential precinct. Mr Hughes SC did his best to extract comfort from the direction in Council’s response but, as Mr Perkins observed in his evidence, over 1000 submissions on the draft City Plan were received during the consultation process, and the conscious decision of the Council to identify the boundaries between the Township Residential Precinct and the Local Business Centre Precinct, hardly assists the appellant in its approach to interpreting the relevant provisions of City Plan 2004. This clear intent is bolstered by the decision to in fact alter slightly the boundaries of the Local Business Centre Precinct (for example to extend the boundary slightly to the east on the northern side of Mooloolah Road), without acceding to Mr Dillon’s submission to extend the boundary on the southern side of the main road to include the site.
[39] Under the Development Assessment Table for the Township Residential Precinct, in which the site is located, all the proposed uses are impact assessable. Indeed under the Table for the Local Business Centre Precinct, a hotel and motel are impact assessable and a caretaker’s residence is code assessable, while a shop is self or code assessable.
[40] The Precincts and other Elements Code provides direction about the outcomes sought for development in each precinct. The “Overall Outcomes” for the Township Residential Precinct are (relevantly):
“(a) The precinct provides for residential uses in a rural town setting, comprising predominantly single unit residential uses and limited multi-unit residential uses which are compatible with single unit residential uses …”
[41] “Specific Outcomes” in the Code are more specific statements of the desired outcomes about a particular aspect or issue within the Code and contribute to the achievement of the overall outcomes. It is a Specific Outcome of the City Plan 2004 that uses listed as inconsistent uses in Table 5.2.3(h) are not located in the Township Residential Precinct. It follows that the proposal for a “hotel” and “motel” both of which are inconsistent uses in the precinct, conflicts with the relevant Code. Mr Dillon tried to counter this obvious conclusion by referring to the fact that a Hotel (Tavern) is also inconsistent in the Local Business Centre Precinct, and in the Multi-Unit Residential Precinct; but how this lessens the conflict (in a planning sense) with the specific provisions relating to the precinct in which the site is located, is not immediately obvious to me.
[42] The Council and co-respondents submit further that the proposal conflicts with the Mooloolah Township Planning Area Code. The (relevant) key Overall Outcomes included in this Code are:
“(a) Mooloolah is a small town with an intimate rural character and identity.
(b) The urban boundaries of the township are maintained to protect and reinforce the township’s discrete identity and enable the efficient delivery of essential urban infrastructure.
(c) Mooloolah’s town centre functions as a local business centre and provides for a basic range of lower order goods and services to the residents of the township and surrounding rural residential settlement areas. Development in the Local Business Centre Precinct provides for the expansion and improvement of commercial, business and community. However, such development do not extend beyond the boundaries of the Precinct. Residents of Mooloolah travel outside of the Planning Area for most of their higher order business, industry and community needs.
(d) The traditional built form character of Mooloolah’s Local Business Centre Precinct is retained and enhanced with new development displaying a built form and character consistent with the established streetscape on the western side of the railway line. Confirmed sites of cultural heritage value in the township are protected, including Mooloolah Railway Station.
(h) Home based business, bed and breakfast accommodation and other complementary uses support local employment and take advantage of the relatively large lot size in the Township Residential Precinct and the township’s picturesque setting. These complementary uses are located and designed to ensure the amenity of surrounding residential areas or the local environment is protected
(i) Development in the Multi Unit Residential, Township Residential and Rural Residential Settlement Precincts provides and maintains a high level of residential amenity.”
[43] As with earlier issues arising in discussion about relevant provisions of the 1996 Scheme and City Plan 2004, these provisions touch on issues of amenity, character, and need which will be discussed in more detail later. It is sufficient for me to say that I agree with the evidence of Mr Perkins that the proposal conflicts with this Code in that it will have the effect of extending the defined Local Business Centre Precinct boundary along Mooloolah Road; and permitting a tavern (a higher order service) within the Mooloolah Township. I agree (for the reasons expressed earlier) that although the design of the proposed building does provide a traditional built form character, the whole proposal will not reflect the intended character of the precinct in which the site is located.
[44] Mr Dillon acknowledged from his perspective as a planner that given the timing of the commencement of City Plan 2004, relative to the date of the application, “some weight ought to apply to the provisions of the City Plan.” In my opinion, the timing issue together with the obvious considered decision of Council not to change the boundaries; particularly as seen in light of the appellant’s submission which concentrated on this site; leads me to conclude that in this case, the Court should properly afford considerable weight to the provisions of the City Plan 2004.
Amenity
[45] As I have noted, amenity (of residential areas) is a constant theme both in the relevant provisions of the 1996 Scheme, and City Plan 2004.
[46] In Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317, de Jersey J (as the Chief Justice then was) said (at 326):
“There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is on may be put, may affect one’s perception of amenity.”
[47] In that same case, his Honour quoted with approval (at 326) some observations of Sugerman J in Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8 at 11 which I respectfully adopt in relation to the relevant evidence in this case:
“(Amenity) relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as will to those across the road, who may be unaffected by (impacts), as to the adjoining and other occupiers on the same side. ‘Amenity’ may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence.”
[48] At 319 of the same decision Thomas J (as his Honour then was) said (after referring to part of the above quoted observations of Sugerman J):
“… the ultimate enquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different ways. It is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it.”
[49] In Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322 (a case in which the proposal under consideration was for a mixed development and tavern in Mudgeeraba in the Gold Coast Hinterland) Brabazon DCJ said (at 333):
“Amenity does not include just the physical appearance of the surrounding. It also includes the emotional or sentimental feelings that people may have about a place.”
[50] On appeal, his Honour’s statement was approved by the Court of Appeal in Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [2000] QPELR 285 at 286.
[51] In relation to the issue of amenity generally, a number of Mooloolah residents gave evidence on behalf of the appellant, however the closest resident to the site from those witnesses, Mr Lance, lives in Christine Court and his evidence, as with the other residents in this category goes much more to the issue of need.
[52] In his written submission, Mr Houston also relied (appropriately in my view) on the adverse objections to the proposal received by Council in the course of the assessment process from a significant number of residents who lived nearby, in close proximity to the site. Nine residents who live on Mooloolah Road, and close by, objected (some of these gave evidence on behalf of the co-respondents) and two residents from 26 Mooloolah Road supported the proposal. In Mr Spry’s survey, the resident at 11 Mooloolah Road, Mr Ford supported the development, but he did not make a submission to Council, nor did he give evidence in the appeal.
[53] The impacts upon amenity that arise for consideration in this appeal are noise, character, traffic and behavioural impacts. A number of near-by residents elected to join the appeal as co-respondents to support the Council’s decision and some gave evidence which directly impacts on amenity.
Noise
[54] At the experts’ conclave, the noise experts agreed that noise from the proposed development could be kept within acceptable limits by the imposition of conditions. These issues are fully canvassed in the minutes of the second conclave between Mr Rumble and Mr Paul King which forms part of Exhibit 1.
[55] Mrs Penny Kieza, who with her husband Jared are the third co-respondents, gave some evidence which is relevant to this issue. She and her husband live at 10 Mooloolah Road and are the only adjoining residents to the site. Their house is east of the site where it is proposed to build the motel units. The experts agreed that a two metre acoustic fence on that boundary will satisfactorily ameliorate noise from the development. Not surprisingly, Mrs Kieza was not completely comforted by the opinions of the experts. She and her husband have restored an original colonial home and she is concerned that their amenity will be disturbed by noise from the site at night. If the tavern proceeds, it will have a general license to operate between 10am and midnight. She is worried about people sitting out in the courtyard areas of the motel and talking and making noise late at night. I accept the evidence of Mr Robinson (hospitality manager for the Reed Group) that he will personally select the managers of the tavern (probably a man and wife), and that to some extent the presence of on-site managers, with an appropriate management plan to deal with such issues, will meet these concerns. However, there is no doubt in my mind that Mrs Kieza is genuine in her concerns; indeed she was a very balanced and impressive witness; and, as she notes in her statement, when she and her husband purchased the house two years ago, they expected “normal residential housing neighbours”. She is also concerned about the appearance of the two metre acoustic fence, which she and her husband think will not enhance the amenity of their home.
[56] Mrs Rachael Huddleston and her husband and two small children live next door to the Kiezas and she expresses similar concerns. Again, she was a very impressive witness, who was balanced in her evidence. As she notes in her statement:
“We moved to Mooloolah for the quiet lifestyle and we had an expectation that since it was a residential area, it would stay that way.”
[57] Her youngest child attends the childcare centre and she has to walk past the site a number of times a day.
[58] Mr Tim Melluish lives at 9 Mooloolah Road which is opposite the eastern end of the site. If the proposal proceeds, his house will face the motel. He and his late wife came to Mooloolah eight years ago. He expressed his concerns about the noise issue thus:
“My first personal objection to the Tavern is one of noise, at the moment this is almost entirely traffic and is mostly in the daytime. Mooloolah is an early to bed early to rise place, and the early part of the working week one could hear a pin drop after 9pm.
I feel that a Tavern would change this, the amount of traffic will increase, people will be exiting the place all the time, they will talk and laugh and sing loudly and slap their car doors. I envisage cars being parked on the road, they will be driven off loudly and there will probably be some hooning.
I will no longer be able to sleep well at night or enjoy the peace and quiet which I enjoy at the moment and to which I feel I am entitled.”
[59] Julie Wolff also gave evidence on behalf of the co-respondents. She and her husband live at 3 Mooloolah Road, so her house is directly opposite the main access point to the proposed development from the main road. Cars exiting the site at night from the drive through bottle shop (which will not operate after 10pm) and the carpark will direct headlights at least partially into her front yard. Her bedroom faces the road and, as her husband goes to bed early to get ready for work, she is concerned that their present pleasant lifestyle will be unduly disrupted if the development goes ahead. She conceded that she was comforted by the experts’ opinions about the effect of noise and lights on her amenity, but was still concerned that their predictions might not work out in practice.
[60] Mr Alan O’Callaghan and his wife live at 23 Mooloolah Road which is on the same side as Mr Melluish but further to the east. If built, the tavern will be about 150 metres from his house. He elected to join the appeal as the thirteenth co-respondent by election. He expressed similar concerns to the others about noise. He is also concerned about how the development will impact on him personally. He travels to the village several times a day in a motorised wheelchair, and he is concerned that the tavern will attract more people and more traffic; particularly having regard to the railway crossing, and that he will encounter more difficulties in getting around.
[61] Notwithstanding the concurrence of the noise experts, I accept that the nearby residents who gave evidence have genuine and real concerns about potential noise impacts from the proposed development.
Character Impacts
[62] As I have noted, both planning schemes expressly recognise the special character of Mooloolah as a small community with an intimate rural character and identity. The local residents called on behalf of the co-respondents all gave strong and persuasive evidence about their affection for the existing character of the town. Many said that is one of the main reasons that attracted them to the area in the first place. Mr Raymond Spry, the fourth co-respondent, who very ably represented the interests of the co-respondents on the appeal, referred to his issue and to the strong sense of community in Mooloolah:
“The unique character of this quiet village attracted me to Mooloolah. It is a very caring and cohesive community …”
[63] His wife Christine (the third co-respondent) gave evidence on behalf of the co-respondents. She spoke of the strong sense of community from her perspective as a person who has been very involved in fostering community activities in the public hall. Mr Spry made a telling point in one of his submissions as a response to the appellant’s emphasis on the fact that Mooloolah is the only railway town in the City that does not have general licensed premises. Mr Dillon referred to this on a number of occasions in his evidence. Although, this is a matter that bears more directly on the issue of need, it is also relevant to this issue of character; as Mr Spry said why should our town with its unique peaceful rural flavour – he described it as a “horsey” town – be the same as all the others. Mr Perkins made a similar point in his oral evidence when he was referring to the fact that, unlike the other railway towns, Mooloolah was not on the tourist route which I agree is an important distinction, particularly regarding need. In Arsksmead, residents expressed similar concerns about the impact on their town of Mudgeeraba, although it immediately has to be noted that Mudgeeraba already had a country pub; and the opposition to the proposed tavern in that case to some extent, focussed on that fact.
Traffic
[64] Once again, as a reflection of the utility of this Court’s approach to expert conclaves, most issues of dispute were resolved by meetings between traffic engineers Mr Pekol (on behalf of the appellant) and Mr Holland (on behalf of the Council). As a result of Mr Holland’s input, significant changes to the proposal were made regarding off-site road improvements, access to Way Street and on-site disabled parking bays and access to service areas. Only one issue remained unresolved; and it lead to some quite passionate discussion between Mr Hughes SC and Mr Holland in the course of cross-examination. The issue (to use Mr Holland’s terms) is in traffic terms, quite trivial. Mr Holland is concerned that in the future, the Department of Main Roads may, as a response to delays being experienced by drivers travelling east along the main road past the site and because of vehicles turning right into the tavern, decide to designate a no-parking area along part of Mooloolah Road in front of Mrs Wolff’s residence and past a number of houses (up to three) to the east. In the course of his investigations he wrote to the Department of Main Roads and its response is Attachment G to his report (Exhibit 13). This road is a State controlled road, and therefore the Department of Main Roads has responsibility for it, and presently, vehicles can park along the northern side of the road. The Department of Main Roads informed Mr Holland:
“2. Mooloolah Road is a low volume road. The chance of a car being parked kerbside and a car turning right into the development, causing significant delays to eastbound traffic, is considered minimal.
3. Should a problem occur in the future with right turning vehicles / parked vehicles, consideration will be given to implementing parking restrictions.”
[65] Mr Pekol, by use of statistical methodology commonly used by traffic engineers to predict traffic flows, predicted that on this basis a vehicle waiting to turn right into the tavern from Mooloolah Road would, on average, experience only a two second wait. Therefore, he discounted any concern that this may cause a problem. I think Mr Holland’s concerns about what might occur in the future were at least encouraged by what he actually experienced on-site in the course of his investigations. He was at the site one morning at around 10:30am and witnessed the traffic queue as a result of the closing of the railway crossing to the west to enable a goods train to pass. It is a problem to which a number of the residents referred in their evidence, particularly Mr Spry and Mr O’Callaghan. Mr O’Callaghan said this (Exhibit 32):
“I like other pedestrians and drivers, am often held up by goods trains. The Nambour line is a single track, which is duplicated at townships. Mooloolah, I believe, has the longest duplicated stretch between Caboolture and Nambour, which makes it the primary crossing point for goods trains to allow other (priority) trains to pass.
These goods trains are so long that they sit on the crossing with the boom gates down. Queensland Rail tells the Community that goods trains sit on the crossing no longer than 3.5 minutes. I have sat timing this disruption to traffic in Mooloolah for up to 25 minutes on occasions.”
[66] Mr Spry said in his statement (Exhibit 25):
“Another concern is the growing traffic congestion caused by lengthy delays at the rail crossing. There are some delays to traffic of 5-10 mnts. Motor vehicles have been seen backed up more than 300 metres from the crossing at evening peak time around 5pm.
On Thursday 27/05/04 I was delayed from 1702 to 1711 hrs. A north bound goods train stationary over the crossing until a south bound goods train came through. This incident was reported to Queensland rail through our state member.”
[67] Mr Holland said in his report:
“It should be noted that queues presently extend back from the level crossing, when it is closed, well past Way Street and the location of the proposed access driveway. Accordingly it is highly likely that immediately subsequent to level crossing closures, when traffic begins to flow again, vehicles arriving from the west will find right turn entry to the site, or to Way Street, blocked by westbound queues. In that event, unless through vehicles were able to bypass such a right turning vehicle, the outcome would be extremely frustrating for all concerned and a potential source of hazard.”
[68] The reality is that the problem caused by the goods trains passing exists now, and there is no persuasive evidence that the construction of the tavern will (in traffic terms) make the problem worse. On the state of the evidence, and on balance, I am satisfied that this issue does not stand against the proposal. Mr Holland also predicts that some impacts may result to residents along the northern side of Mooloolah Road, as a result of larger and longer vehicles parking on that side so that the drivers can visit the tavern. I am not convinced of this as I think as a matter of common sense it is more likely that such vehicles will approach the site from the east and park on-site, notwithstanding their size.
[69] On the issue of traffic impacts, I am satisfied that the proposal could be adequately conditioned so as to avoid unacceptable impacts.
Behavioural Impacts
[70] A number of residents expressed genuine concerns about the impacts of the behaviour of patrons of the tavern on their quiet rural township. I accept that the appellant intends to build a family orientated tavern, with on-site manager and appropriate plan to meet such behaviour problems. Mr Hughes SC makes a good point when he says, by reference to the fact that Mooloolah is not on the tourist route, it would be nonsensical for the appellant to operate a tavern in such a way as to antagonise local residents who will be their targeted patrons. Mr O’Callaghan properly recognised that there are already some behavioural problems, as did other residents. However, it is common sense that indulgence in alcohol can lead to anti-social and sometimes criminal behaviour. Given my long experience in the criminal courts of this State, it is a fact of which I can take judicial notice that alcohol is a major contributor to criminal conduct. His Honour Judge Skoien took a similar view (in relation to a proposed tavern at Albany Creek) in BIM Holdings Pty Ltd v Pine Rivers Shire Council & Ors [2002] QPELR 363 at 369. It is also relevant to this issue, that Mooloolah does not have a resident police presence. Mrs Weil (the eleventh co-respondent by election) also expressed concerns about the impact of adverse behaviour on the childcare centre which is, in her words, “virtually next door to the tavern”. The centre does not close until 6:15pm. She has a grandchild who attends the centre. She expressed concerns that children will witness bad behaviour as a result of the consumption of alcohol at the tavern. Mrs Huddleston expressed similar concerns, as did some of the other residents.
[71] On balance, I am unable to conclude that a tavern on this site, despite the best efforts of the on-site manager, would not be a source of unpleasant disturbance from time to time. The very unpredictability of such behaviour is also a factor that impacts on the amenity of local residents. As his Honour Judge Skoien put it in BIM Holdings (at 368) “so instead of leading a peaceful existence, they will be on edge”.
Need
[72] As I have observed, this issue was prominent in the appeal. Mr Hughes SC submitted that the evidence on this issue strongly supports the proposal. “Need” in planning terms is a less ephemeral concept than “amenity” and has been the subject of much judicial observation as to what it means. I referred to the various authorities in Woolworths Limited v Maryborough City Council & Anor [2004] QPEC 86 at 123. One of those authorities Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515 deals with the concept thus:
““Need” in planning terms, is a relative concept, it does not connote pressing urgency but rather relates to the general well-being of the community. A use is needed if it would, on balance, improve the services and facilities available in a locality.”
[73] The appellant relied on the evidence of Mr Dillon, a number of residents it called (or who gave statements); the “Smart Lives” report (Exhibit 9) of Annie Barkl (Registered Psychologist, Social Scientist and Corporate Coach) who conducted a “community of impact” survey of 50 residents in November 2003 on behalf of the appellant; a “Need Assessment” conducted by urban economist Kerrianne Bonwick; and the 18 submissions and petitions in favour of the proposal made to Council during the assessment process. Council relied upon Mr Perkins and Mr McCracken, an urban economist and market and social researcher who heavily criticised the “Smart Lives” report; and the co-respondents (and Council) relied upon the evidence called by them on this issue, the survey of local residents conducted by Mr Spry, and the 55 adverse submissions and petitions lodged with the Council.
[74] As a result of the conclave, Mrs Bonwick and Mr McCracken reached substantial agreement. Their agreement is recorded in the joint report signed by them both on 25 February 2005, which forms part of Exhibit 1. There is no reason on the evidence for this Court to go behind their joint findings which are uncontroversial (at least from Council’s perspective). Some of the features of the township have been referred to earlier in these reasons and I won’t repeat them. From the joint experts report I refer in particular to the following facts:
“The township is anchored by a convenience supermarket, and supported by a range of retail and commercial facilities including a dental / medical centre, produce store, newsagent, chemist, post office, service station. The township provides for a range of convenience oriented goods and services together with some of the weekly needs of residents of the township and surrounding rural residential areas.”
[75] To this can be added (on the basis of the uncontested evidence of residents) that there are three restaurants in the township itself all of which are unlicensed.
[76] In the town, and in the Local Business Centre Precinct is the Mooloolah Bottle-Shop which is located within a short walk of all three restaurants.
[77] 5km out of town on the Mooloolah Connection Road is the Mooloolah Valley Country Club which is a licensed club facility incorporating a range of sporting activities.
[78] The Club is referred to in positive terms by a number of the residents called on behalf of the co-respondents. One resident, Mr Lance, who was called by the appellant was not very impressed with the Club’s facilities.
[79] The nearest general license is the Landsborough Tavern, 7.2km to the south, and the Ettamogah Pub 10.5km to the east of the township. None of the residents who gave evidence would go to this establishment because they perceived that it provided for a different clientele – such as those who appreciate kick boxing and jelly wrestling! The Sippy Downs tavern (which was until recently a Reeds establishment) is 15km to the north-east.
[80] The experts agreed on the relevant Catchment Area which is Figure 1 to Mr McCracken’s report (Exhibit 14). There is some difference of opinion about the relevance of the population statistics based on this catchment area, so I will set out the agreed facts in full:
· “As at June 2001, it is estimated that there were 3,146 persons living within 1,103 households in the Catchment Area. (TABLE 1)
· Based on building approval information, it is estimated that this had increased to 3,540 persons in 1,256 households by June 2004.
· Projections of the growth in the population have been based on a review of the land designated for residential development in the Mooloolah Township Precinct Map (Caloundra City Council Draft City Plan). It is projected that 3,780 persons would be living in the Catchment Area by 2006, increasing to 4,270 persons by 2011. These projections are only preliminary at this stage.
· 70.8% of the population was of 18 years or older.
· Between the 1996 and 2001 Censuses there has been a slight increase in the proportion of persons aged 18 years of age or older from 66.5% to 67.8%, with an estimated growth of some 230 persons of legal drinking age during this five year period.
· 27.2% of the population was younger than 15 years of age at the time of the Census, with a particularly high incidence of those in the 10 to 14 year age group, indicative of families in the middle stages of the lifecycle.
· Some 51% of persons identified themselves as living in couple relationships.
· An average annual household income of $43,420, in 2001 dollar values.
· 42% of dwellings owner occupied, and 36% under mortgage at the time of the Census, indicative of a low incidence of investor housing and rental accommodation.
· Higher than average unemployment rates in comparison to the State and BSD averages.
· A significant blue collar workforce, with a particularly high incidence of tradespersons (16.7% c.f. 12.8% QLD), and of labourers (11.1% c.f. 9.7% QLD).
· High levels of mobility, with only 2.4% of households without a motor vehicle at the time of the Census, characteristic of communities required to travel to access employment, goods and services.
· A prominent construction workforce (11.6%), reflective of the strong residential growth activity on the Sunshine Coast.
Unlike Glass House Mountains, Landsborough and some other railway towns, Mooloolah Valley is not located near a major highway and is not on a recognised tourist route. Visitors and day-trippers, therefore, are likely to comprise only a minor part of its potential business.”
[81] Where Mr McCracken and Mrs Bonwick diverged is the extent of community need for a tavern in Mooloolah. Mrs Bonwick expressed her conclusions thus:
“5.1 It is my opinion that the development of the proposed tavern and motel complex in Mooloolah valley would considerably increase choice in the range of licensed facilities available to residents of Mooloolah Valley, provide an important meeting point, offer an alternative venue for purchase and consumption of liquor on premises without the requirement of club membership. It will provide facilities for short stay and overnight accommodation not available within the township, and therefore that there is sufficient community need to support the proposed development. The shop component will provide some further limited floor space for a small business to operate. If such a business is community orientated that would be desirable.
5.2 In my opinion, the present and projected population of the defined Catchment Area and its composition are such that they create a realistic and legitimate demand for the facilities proposed by the development and that in economic terms, the development by providing these facilities will enhance the wellbeing of the community. This is not simply because of the expenditure injection, but also increasing the range of facilities available to this community when those facilities are limited or in fact, non existent.
5.3 There is clearly a need for the proposed development.”
[82] Mr McCracken expressed his opinion in the conclusion to his report in these terms:
“3.4CONCLUSION
It is my view that the proposed tavern development would generate some economic and community benefit in terms of providing more choice in licensed facilities and that, while there may be some degree of community need and support for the proposed tavern within Mooloolah, such support may not be representative of the needs of the greater Mooloolah community. The factors relevant in my view are:
· the lifestyle and amenity features that draw residents to the quiet village life in Mooloolah suggests that more convenient access to licensed facilities is not a major issue, given their probable regular travel patterns to access major shopping, employment, entertainment and other facilities elsewhere on the Sunshine Coast;
· expected population growth in the Mooloolah catchment is not of a magnitude that would significantly affect potential market demand and need for a tavern;
· market conditions and historic reasons responsible for the establishment of licensed premises in other small town areas, such as Glass house Mountains or Kilcoy, cannot be used as ‘proxy’ indicators of community need in Mooloolah;
· the questionable validity of the Smartlives survey results as representative of the potential demand and support for the proposed tavern development among the great Mooloolah community; and
· if considered appropriate, the potential capacity to accommodate a tavern on land, or in existing premises, within the designated Local Business Centre, which would retain its geographic integrity and cohesion.”
[83] As Mr McCracken observed in his evidence, both he and Mrs Bonwick agree that there is a need for a tavern, however they differ as to the extent and degree of need that exists based on the information they each considered.
[84] A careful analysis of each report suggests that in reaching her conclusions Mrs Bonwick has relied more than Mr McCracken on the estimated population growth figures with which both agree. This is clear from the analysis on page 4 of her report where she compares the populations of various small townships (including a number of the hinterland railway towns) which do have a general licensed premises, with Mooloolah which has similar population but no general license. She relies significantly on the example of the Glass House Mountains Tavern opened in mid 2004, and which has similar design features to the tavern proposed for Mooloolah. Glass House Mountains had a 2001 census population of 3,600, so it is slightly bigger than the catchment area here. In his conclusions expressed above, Mr McCracken did not regard expected population growth to “significantly affect … need for a tavern” in this township. He also relied more heavily on the fact that Mooloolah already has three restaurants in town and access to a bottle-shop, and his analysis of the statistics lead him to the first of his conclusions set out above. He also distinguished the Glass House Mountains example on the basis of the difference in “their (the towns) accessibility to the tourist and day trip markets”. On balance, I prefer the evidence of Mr McCracken.
The Smart Lives Report
[85] Mr Hughes SC did not rely heavily on Ms Barkl’s evidence in his closing submission, however, given her conclusions it is necessary for me to examine her evidence in some detail. Her research methodology involved a qualitative research component (in-depth interviews with five unidentified “local opinion leaders”) and quantitative research (50 interviews with randomly selected householders or business people in the catchment area using a questionnaire designed by her in consultation with Reed Group representatives and Mr Dillon’s office). She concludes (at page 6) of her report (inter alia):
“2. The research conducted by me indicated general support for the proposal and revealed aspects of the proposal that were considered desirable from a community perspective. It also revealed some concerns as identify in the survey report.”
By reference to the survey report exhibited to her court report this “support” translated into approximately 70.9% “stated the tavern with motel units was needed in town”. On its face, her survey findings present as strong evidence of community need. Mr McCracken was very critical of Ms Barkl’s methodology. It is not challenged that he is qualified to comment on a survey of this nature. His criticisms were taken up with Ms Barkl in cross-examination by Mr Houston.
[86] Mr McCracken’s first criticism is that the interviews conducted with the 50 residents are not available for independent analysis. Ms Barkl explained that these had been destroyed for reasons of confidentiality and anonymity. Although this point was not pursued, I would have thought that these issues could be well covered in the format of the questionnaire, such that interviewees could not later be identified. Further, there are no records of instructions given to interviewers who carried out the survey, particularly as to the “random” selection of respondents, and how the interviewers were to deal with various situations such as selected respondents not being at home. Mr McCracken said in his evidence that these were standard requirements for a survey of this kind.
[87] Mr McCracken also had problems with the questions themselves. His criticism, in general terms, is that many of the questions are worded in such a way that encourages positive responses to vague propositions. He makes the point in reference to Question 3a and 3b of the questionnaire (which he describes as “positive” questions), which provides a list of pre-codes of potential responses for each question, whereas for the “negative” (questions Question 4a and 4b) the interviewer is not required to obtain multiple responses. Mr Houston makes the point that there is some question as to the extent to which the survey was intended to assess community attitudes to the tavern in particular and the extent to which it was intended to gather information to assist the appellant. Certainly its timing (November 2003) and some of the correspondence that lead up to Ms Barkl being commissioned to do the survey support that argument. In her letter to Mr Robinson dated 3 November 2003, Ms Barkl recommends on page 4 that “a final report be available before documentation goes to Council for approval. To ensure we ‘don’t let the cat out of the bag’ too soon, I recommend the research be conducted as soon as possible …”. I infer that a number of changes were made to the proposal as a result of the survey e.g. provision of an ATM machine, a courtesy busy, a children’s play area and a barbeque area. I agree with Mr Houston that Ms Barkl was unconvincing in her oral evidence in her responses to these criticisms. I accept Mr McCracken’s evidence as to the problems with the survey; and it follows that in assessing community need I will afford it very little weight.
[88] Mr Hughes SC made the point, when faced with the criticisms of his witness’s methodology, that the Council had not conducted its own survey. A response may well be that it is not for the Council to establish need; and, in any event, as it transpired, Mr Spry produced his own survey which is part of Exhibit 25. He is not a social scientist or a market researcher, but he is a committed member of the community. His survey was very simple involving asking residents who live near the site one question “Do you want a hotel on that site?” and permitting only a “yes” or “no” response. He discovered that 44 residents said “no”, 10 said “yes which represents 81.5% against and 18.5% for.
[89] Also of significance on this issue is the evidence of the residents (both for the appellant and for the co-respondents) who provided statements to the Court and/or gave oral evidence. It is also appropriate to take into account the public response to Council when the proposal was being assessed. This translated into 55 submissions against 18 for, 8 petitions containing signatures against and 5 petitions containing signatures in favour.
[90] Many of those against the proposal spoke of the fact that community groups can now meet in the public hall which is so well patronised, that bookings have to be made. Mrs Spry also told me about the lengthy campaign conducted by the community to obtain a lease over the disused school premises opposite the public hall in Bray Road. The lease is now “with” the Minister for Education for execution. The community association plan to use these premises primarily to provide services to young people such as pool etc.
[91] Mrs Green gave evidence for the appellant. She is 88 years of age and sometimes uses a motorised buggy to get around town. She has lived in Mooloolah for over 70 years. She has a vague recollection of the old hotel which she thinks was on the site. She recalls fondly arriving in town by train as a 16 year old girl late at night and getting a place to camp and have a feed at the pub. She doesn’t drink alcohol but would take her friends to the tavern if it was established. She is very positive about the proposal. Michelle Daw is a local real estate agent and also lives in Bray Street. She is very much in favour of this proposal and indeed organised the favourable petition which went to Council. Mr Spry made the point that a careful analysis of this petition does show that a significant number of signatures are from people who live outside the Mooloolah area.
[92] I have already referred to the evidence of some of the residents who gave evidence on behalf of the co-respondents. In none of the residents, either for or against the proposal, did I detect any selfish or unworthy motives. They presented as genuine people with a genuine love for their community and town and I have no reason to doubt their sincerity. I accept Mr Houston’s submission that, on balance, there is a strong and undeniable opposition to the introduction of a tavern to this small rural community town, and that notwithstanding the joint opinion of experts, considerable weight should be afforded to the views of residents both for and against.
[93] On balance, I am satisfied that there is some need established for the tavern but that given the nature and extent of conflict with the planning scheme that I have identified, this need is not sufficient to justify approval the proposal, despite the conflict. Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61 is an example of a recent case in which the Court looked at the issue of community need in the face of conflict with the planning scheme documents.
[94] To a large extent, I have concentrated on the tavern in considering the issues of amenity and community need. As I have said, this accords with the way in which the appeal was conducted. It is not suggested, that the development proposal be considered piecemeal; so to a large extent the motel and shop have not been considered separately. Mr Spry himself said there was an accommodation shortage in the town, as did Mrs Green; but as Mr McCracken suggests, it is probable that these uses were included in the main tavern proposal to occupy the large are of land acquired for the tavern development.
Other Planning Grounds
[95] Although Mr Hughes SC described need as a fundamental issue in his closing submissions, nevertheless he referred generally to other planning grounds in his address which I should refer to briefly. On the evidence there is certainly no other site in the Local Business Centre Precinct large enough to accommodate this proposal without considerable consolidation, perhaps both of the proposal and sites. I am satisfied on the basis of Mr Burrell’s evidence that from a visual amenity perspective, the actual design and landscaping proposals will present as an attractive development from the street, however that has to be measured against the other amenity issues referred to earlier. Of course, all these issues must be balanced against the identified conflicts with the Planning Scheme.
Conclusion
[96] The appellant has failed to satisfy me that there are sufficient planning grounds to justify the proposal in the face of significant conflict with both Planning Schemes and the 1996 Strategic Plan. It follows that the appeal must be dismissed.
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