MPR Constructions Pty Ltd v. Redland Shire Council

[2001] QPEC 68

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	MPR Constructions Pty Ltd v. Redland Shire Council [2001] QPEC 068
PARTIES:	MPR CONSTRUCTIONS PTY LTD (ACN 075 091 520)  Appellant and REDLAND SHIRE COUNCIL          Respondent
FILE NO/S:	657 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	9 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	27 – 29 August, 2001
JUDGE:	Judge Quirk
ORDER:	Appeal dismissed.
CATCHWORDS:	Integrated Planning Act; ss 6.1.2, 6.1.30 (3a) Local Government(Planning & Environment) Act s4.4(5),(5A) Grosser v. Council of the City of the Gold Coast (2001) QCA 424 (9 October 2001)
COUNSEL:	Mr W Cochrane for the appellant Mr S Ure for the respondent
SOLICITORS:	Thompson Hannan Lawyers for the appellant Deacons Lawyers for the respondent

1. This appeal is against the respondent’s refusal of an application for approval of a material change of use of an area of land on the northern side of Finucane Road at Capalaba.  The land on which the proposed use will be located comprises essentially three allotments having a total area of nearly 3,000m².  Access is intended over part of an adjoining allotment.

1. The proposal is for a service station and convenience store which will provide a floor space of 145m².  A detailed account of the proposal appears in material placed before the court.  Arrangements for landscaping and screening (particularly acoustic screening) were fully detailed in evidence, but it is unnecessary to go into these matters at any length in this judgment as they have no great bearing on the determinative issues in the appeal.  The major difficult for the proposal lay in a lack of consistency between it and important planning strategies in the relevant planning instruments.

1. The subject land is part of an area on the northern side of Finucane Road which is (in the Town Planning Scheme for the Shire of Redland) included in the residential A zone.   This land is presently occupied by detached housing which is of varying style and age and (with the exception of the most eastern allotment of this pocket) has not been maintained to a high standard.  To the north and east land adjoining this pocket is included in the residential B zone and is the site of a modern town-house style development.  Immediately to the west is a large allotment at the corner of Old Cleveland Road which is included in the Comprehensive Development Zone. A newly developed commercial/retail facility occupies this land.  Negotiations with the Department of Main Roads has secured support for access to the proposed development over part of this site and I was informed that its proprietors have agreed to this.

1. Because the relevant town planning scheme is a “transitional town planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act, s.6.1.30(3)(a) of that Act requires that the application (being one for which a re-zoning would have been required under the repealed legislation) must be decided under s.4.4(5) and (5A) of that legislation. “Service Station” appears as a column V (prohibited use) in the table of development for the residential A zone.

1. The planning scheme’s stated intent for the residential A zone indicates (inter alia)  that, with respect to non-residential development,

“It is not envisaged that consent will be granted unless it is demonstrated that such uses would be compatible with existing and likely future development and the residential amenity and character of the specific area”.

That a service station is a prohibited use in the residential A zone has already been noted. s.6.1.2 of the Integrated Planning Act provides :-

“A prohibited in the former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”

A service station is also a prohibited use in the residential B zone.  The proximity of a large recently constructed residential development on adjoining land in that zone must also be borne in mind in assessing this application.

1. Section 4.4(5A) of the repealed legislation proves:-

“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.”

In the relevant Strategic Plan the subject land is designated as “Urban Residential”.  The adjoining land (in the comprehensive development zone) is designated as part of the “Major Centres”. 

1. The stated intent for the Urban Residential is :-

“This designation indicates the location of areas which are intended to accommodate the bulk of urban residential development within the Shire.  Whilst it is anticipated that the principal form of housing will be single family detached dwelling, provision has been made to accommodate other forms of residential development including integrated small lot housing, dual occupancy and multiple dwellings up to a maximum density of 60 persons per hectare ….

Whilst it is intended that residential uses will dominate, certain non-residential support facilities which provide local services to residents of an area may be contemplated in appropriate locations and subject to detailed development requirements which are designed to achieve a satisfactory form of development compatible with residential living.  These facilities may include community support services such as local shopping developments, medical centres, churches, child care centres, educational facilities and the like.  These forms of development shall preferably be located together in association with local shopping facilities or established non-residential development and designed in such a way as to reduce their impact on the amenity of nearby residences.”

It can been seen that, while this statement of planning strategy admits the possibility of  “certain non-residential support facilities” in appropriate locations, a service station is not identified as a “community support service”. 

1. It was said (correctly in my view of the evidence) by Mr Smith, the respondent’s planning consultant, that the site is not an appropriate location for uses of the kind contemplated by the urban residential designation, having a poor connectivity with adjoining residential development.  Furthermore, the proposal would rely predominantly on passing traffic rather than local custom.  He added that the Strategic Plan also requires a “satisfactory form of development compatible with residential living”.  Notwithstanding efforts that have been made to soften its impact, I believe that a proposal of this kind would necessarily, in terms of building form, general appearance and mode of use, present a rather low level of compatibility with a residential environment.

1. Development Control Plan No. 1, which was gazetted in 1988, has the subject land in a residential A designation.  The corner block (zoned comprehensive development) appears to form the eastern edge of the Capalaba business centre.  There is a draft Development Control Plan (No. 4) which has been adopted and placed on public exhibition.  It has not yet been gazetted.  In the draft the major part of the site is shown as being outside the Capalaba business centre.  It is one of the important strategies of the planning scheme (eg. S.3.3(e) of the Strategic Plan) to focus retail, commercial and community facilities at centres which maximise their accessibility  to the community.

1. The respondent council also has a planning policy (EMPE 012) which deals with:-

“Development of land for the purpose of service station (including combined premises for service station and shops)”.

The policy’s objective include the following:-

§  “To promote a rational pattern of land use while discouraging use conflict established essentially through the intrusion of commercial/retail land use into areas characterised by residential housing or areas indicated within council’s development control plans as being suitable or highly desirable for residential subdivision.

§  To encourage the consolidation of service stations within existing and proposed business retail or industrial centres within the urban area designation on a strategic plan.

§  To ensure that a precedent is not created for commercial ribbon or strip development along the shire’s arterial of sub-arterial roads within the urban area designation on the strategic plan.

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

1. On the evidence given in this case it would appear to me that the proposal represents a departure from these objectives.  In that it –

§  represents an intrusion of commercial development into a residential area identified as such in council’s planning documents, and

§  fails to consolidate urban activity within a defined centre.

Whether it represents a precedent for commercial ribbon development along Finnucane Road (which is either an arterial or sub-arterial road) is doubtful.  The access to the proposal is intended to be integrated with land already developed for commercial purposes.

1. Although he sought to play down its consequences, the appellant’s town planning consultant, Mr Vasdekis, had to accept that there was some conflict with the Strategic Plan and other relevant instruments.  For reasons which he explained, he argued that there was however “general support for the proposal” in these instruments and he thought it of importance that a substantial effort had been made to ameliorate any amenity impacts from the proposal.  Reference was made in this respect to opinions of consultants, Max Winders & Associates (lighting), Ron Rumble (acoustic management), and Roger Brammel (traffic impact). 

1. Need was a matter that required (and received) attention in the appeal.  I had the advantage of the assessments of Mr Coghlin (consultant to the appellant) and Mr Norling (the respondent’s consultant) who are both suitably qualified and experienced in this field.  Mr Coghlin’s support for the proposal was based largely on the convenience which it would offer to east-bound motorists travelling on the recently constructed Moreton Bay Road by-pass of Capablaba Centre.  Those using that route have, in this area, access to only one service station, whereas, before it was constructed, they would have passed three service stations.  He also referred to the growth in recent years of trade area population and traffic on Finnucane Road.  He expected this growth to continue.

1. Mr Norling’s investigations however, persuaded him that the existing network of established service stations was quite sufficient to provide for the reasonable requirements of motorists and that the proposal would represent a “duplication of existing facilities already within the area”.  Nor did he believe that there was any local need for a convenience store on this site drawing attention to a proposed supermarket that would form part of the development on the site adjoining immediately to the west.  Mr Norling was also of the opinion that there was not (in terms of convenient travel) a great deal of difference for motorists between taking the by-pass and travelling directly through Capalaba Centre.  On the whole of the evidence I prefer the views of Mr Norling and find that, other than offering an additional choice, there would not be any substantial community benefit that would result from this development.

1. As stated at the outset, the real difficulty for the proposal is in its conflict with the Strategic Plan and other planning instruments.  Because of s.4.4(5A), to approve the application the court must be satisfied that there are sufficient planning grounds to justify the approval despite the demonstrated conflict.  As I have indicated, I am not satisfied of any substantial need for this proposal and certainly no community benefit such as would overcome the relevant conflict.  No other planning ground , that would do that has been identified. 

1. Notwithstanding the evidence of a considerable effort to ameliorate amenity impacts, I am not persuaded that the results in that respect amount to a justification such as is required by s.4.4(5A).  As was observed recently in the decision of the Court of Appeal in Grosser v. Council of the City of the Gold Coast (2001) QCA 424 (9 October 2001) (at page 15 para.51), in respect of the sufficiency of planning grounds spoken of in s.4.4(5A) it may be that:-

“Something more is required than negative impact on the surrounding amenity and want of relevant objection”.

1. In any event there was no want of objection from local residents in this case.  Evidence from a number of these persons was before the court.  I am satisfied that their expectations that a development of this kind would not locate on the subject land were reasonably entertained.

1. I would add that, even if s. 4.4(5A) had not governed the matter, it would have been very difficult to find in favour of the proposal.  On the whole of the evidence I am not satisfied that the onus of showing that the application is one that should be approved has been discharged. The appeal must accordingly be dismissed.