Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors
[2019] QPEC 67
•20 December 2019
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67
PARTIES:
NAVARA BACK RIGHT WHEEL PTY LTD (ACN 608 304 678) AS TRUSTEE FOR 47-49 BROMLEY STREET TRUST
(appellant)
v
LOGAN CITY COUNCIL
(first respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE & PLANNING
(second respondent)
and
CITIMARK PROPERTIES PTY LTD (ACN 066 613 349)
(first co-respondent by election)
AND
OTTO WILHELM
(appellant)
v
LOGAN CITY COUNCIL
(respondent)
and
CITIMARK PROPERTIES PTY LTD (ACN 066 613 349)
(co-respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE & PLANNING
(third co-respondent by election)
FILE NOS:
3206/18 and 3364/18
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
20 December 2019
DELIVERED AT:
Brisbane
HEARING DATE:
19-23, 26-28 August 2019, with further written submissions delivered on 4, 6 & 14 September 2019 and 18, 20, 22, 29 & 30 November 2019
JUDGE:
Williamson QC DCJ
ORDER:
Orders in accordance with paragraph [396] of these reasons for judgment.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where two submitter appeals against an approval for a Service station, Shop and Food and drink outlet – where proposed in a Rural residential zone – whether development anticipated in the Rural residential zone – whether development constitutes a centre activity in an out-of-centre location – whether development gives rise to unacceptable impacts on character, amenity and privacy – whether development unacceptably impacts on the safety and efficiency of the road network – whether development complies with the respondent’s planning scheme – whether there is a need for the proposed development – whether the application should be approved in the exercise of the planning discretion.
LEGISLATION:
Planning Act 2016, ss.3, 45, 59, 60.
Planning and Environment Court Act 2016, ss.43, 45.
Sustainable Planning Act 2009, ss.3, 8.
CASES:
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16
Australian Capital Holdings Pty Ltd v Mackay Regional Council [2008] QCA 157
Broad v Brisbane City Council [1986] 2 Qd R 317
Gillion Pty Ltd v Scenic Rime Regional Council & Ors [2014] QCA 21
Isgro Pty Ltd v Gold Coast City Council & Anor [2003] QPELR 414
Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46
Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538
COUNSEL:
A Skoien with D Purcell for the appellant in appeal 3364/18
B Job QC for the first respondent in appeal 3206/18 and respondent in appeal 3364/18
CL Hughes QC with M Batty for the first co-respondent by election in appeal 3206/18 and co-respondent in appeal 3364/18
J Brien for the second respondent in appeal 3206/18 and third co-respondent by election in appeal 3364/18
SOLICITORS:
N Leon, self-represented appellant in appeal 3206/18
Connor O’Meara for the appellant in appeal 3364/18
Minter Ellison Gold Coast for the first respondent in appeal 3206/18 and respondent in appeal 3364/18
ClarkeKann Lawyers for the first co-respondent by election in appeal 3206/18 and co-respondent in appeal 3364/18
Corrs Chambers Westgarth for the second respondent in appeal 3206/18 and third co-respondent by election in appeal 3364/18
Index
Introduction
The land and surrounding locality
The proposed development
The statutory assessment and decision making framework
The centres strategy
Will the proposed development constitute a new centre?
Compliance with s.3.5.8.1(1)(b) of the Strategic framework
The Rural residential zone code
Traffic
Other issues raised by Navara
Need
Exercise of the planning discretion
Conclusion
Introduction
Citimark Properties Pty Ltd (Citimark) proposes to redevelop land situated at the corner of Beenleigh Redland Bay Road and California Creek Road, Cornubia. The proposed redevelopment comprises three uses, namely, a Service station, Shop and Food and drink outlet. In May 2017, Citimark made an impact assessable application to Council for an approval to authorise the redevelopment. That application was approved, subject to conditions. The approval is contained in a negotiated decision notice dated 12 July 2018[1].
[1]Ex.3, p.159.
The two proceedings before the Court are submitter appeals against Council’s approval. The first appeal in time[2] was commenced by an adjoining land owner, Navara Back Right Wheel Pty Ltd (Navara). The second appeal[3] was commenced on behalf of Mr Wilhelm. He has a commercial interest in a BP service station located some 200 metres to the south-west of the land. It has frontage to the southern side of Beenleigh Redland Bay Road.
[2]Appeal No.3206 of 2018.
[3]Appeal No.3364 of 2018.
There is substantial overlap in the issues raised on behalf of the submitter appellants. Both contend the development does not comply with Council’s planning scheme and, as a consequence, should be refused. In this respect, it is contended a number of departures from the adopted planning controls can be plainly identified. The departures are said to be the product of the application seeking approval to locate ‘Centre activities’ on land included in the Rural residential zone. Both the submitter appellants contend the proposed Centre activities:
(a) are not anticipated, or encouraged, in the Rural residential zone;
(b) would, if approved, be located contrary to an express planning strategy, namely that Centre activities locate in designated centres;
(c) would have unacceptable impacts on the character and amenity of the surrounding rural residential area, which includes Navara’s land; and
(d) would have unacceptable traffic impacts.
In addition to the above, Navara contends the application should be refused having regard to two matters arising out of the Chief Executive’s concurrence agency powers. In the Chief Executive’s concurrence agency response, a condition was imposed requiring the relocation of an existing bus stop[4]. Navara contends the location for the new bus stop, which is in front of its land on Beenleigh Redland Bay Road, is unsafe and will detrimentally impact upon privacy. It is also asserted that Citimark, as part of the application process, was required to obtain Navara’s consent to relocate the bus stop. No consent has been obtained.
[4]Ex.3A, condition 4.
As against the above, Citimark contends the proposed development complies with the planning scheme. Alternatively, it urges the Court to adopt a flexible approach to the application of the planning scheme. It contends a rigid application of the document, in all of the circumstances, would not result in a decision that serves the public interest. A refusal, it says, would deny the public access to a facility which is needed, conveniently located, and will have no unacceptable impacts.
Consistent with its decision, Council contends the application should be approved. Central to this position is an acceptance that its planning scheme need not be rigidly applied, in the circumstances of this case, to achieve a balanced decision in the public interest.
Each appeal is a hearing anew[5].
[5]s.43, Planning and Environment Court Act 2016 (PECA).
It is for Citimark to establish each appeal against Council’s approval should be dismissed[6].
[6]s.45(2), PECA.
The land and surrounding locality
The land is rectangular in shape and has an area of 4,063 square metres[7]. It is presently improved with a single storey brick dwelling and a number of sheds[8]. Aerial photography[9], and the site inspection, confirm the house and sheds are surrounded by a number of items which clutter the land. As Mr Job QC correctly submitted, the evidence demonstrates the house and sheds are surrounded by numerous vehicles, boats, sculptures and other ‘paraphernalia’. The latter I took to be a reference to a range of exotic animals made of resin and positioned at various locations on the land[10].
[7]Ex.9, p.4, paragraph 11.
[8]Ex.9, p.4, paragraph 12.
[9]Ex.9, p.4, figure 1.
[10]For example there is a panther striking an attacking pose located on the roof of the dwelling.
As I have already said, the land is situated at the corner of Beenleigh Redland Bay Road and California Creek Road. The former is a state controlled four lane arterial road that carries approximately 22,000 vehicles per day past the land[11]. The latter is a two lane Council urban collector road carrying approximately 14,000 vehicles per day past the land[12]. The land has an existing cross-over to California Creek Road, and a secondary cross-over to Beenleigh Redland Bay Road[13].
[11]Ex.12, p.23, paragraph 57.
[12]Ex.20, p.2, paragraph 5.
[13]Ex.9, p.4, paragraph 13.
The boundary of the land with frontage to California Creek Road is fenced, with gaps in the fence permitting vehicle access via a gravel driveway. Inside the fence line are trees, which can be seen in visual aids in evidence[14].
[14]Ex.9, p.4, figure 1 and Ex.15, figure 2.
The boundary of the land with frontage to Beenleigh Redland Bay Road is fenced[15]. There is little by way of protection for the existing dwelling on the land from the impact of activity, and noise, from traffic on Beenleigh Redland Bay Road. Mr Beyers, Citimark’s noise expert, said the amenity of the land, and area generally, is significantly impacted by the prevalence of road traffic noise[16]. The road noise described by Mr Beyers was consistent with my experience during the site inspection.
[15]Ex.15, p.27, figure 1.
[16]T2-11, Line 35 to 41.
The land adjoins two properties: one to the north, and one to the east.
The adjoining land to the north has frontage to California Creek Road. Like the subject, it is a large rural residential sized lot. It is improved with a dwelling and a non-residential use, namely a swim school[17]. The school is located towards the California Creek Road frontage of the adjoining land. The dwelling is setback further to the east. The common boundary between the land and the property to the north is fenced, with vegetation at various widths along its length[18].
[17]Ex.9, p.5, paragraph 15.
[18]Ex.9, p.4, figure 1.
The adjoining land to the east is owned by Navara. It is an irregularly shaped large lot with dual frontage. It has frontage to Bromley Street to the north, and Beenleigh Redland Bay Road to the south. The latter frontage is the rear boundary of the land, which is fenced. Like the subject land, the amenity of the Navara land is impacted by road noise and activity from Beenleigh Redland Bay Road.
The Navara land is improved with a detached house, shed, a substantial driveway and pool. Given the impact of road noise from Beenleigh Redland Bay Road, it is unsurprising the house is located towards the Bromley Street frontage, from which access is taken. The house is located some 60 metres from the common boundary with the subject land[19], along which there is a dilapidated timber fence. The western side of the common boundary (the subject land) is vegetated. The eastern side of the common boundary (Navara land) was, at one stage vegetated, but it appears the vegetation has been removed in more recent times[20].
[19]McGowan: T2-36, Line 18 to 22.
[20]Ex.30.
The evidence demonstrates that, when considered in its surrounding context, the land is located at an interface between rural residential development and low density residential development[21]. A strong feature of the character of that interface is the extent of road infrastructure, and the intersection of Beenleigh Redland Bay Road and California Creek Road. This intersection is signalised and presents as a major break in travel paths in the road network[22].
[21]Ex.9, p.5, paragraph 20.
[22]Ex.15, p.39 and 40, figures 25 and 27.
I was assisted in this appeal by the evidence of two visual amenity experts, Mr McGowan and Mr Powell, who described the character of the surrounding locality in this way[23]:
“16 Beyond the immediate vicinity of the site, the local area is characterised by detached residential housing at various densities (from small lot to rural-residential lot sizes). This residential housing fabric is interrupted and framed by patches and corridors of green space, including California Creek Park (560 metres north-east of the subject land), and a large swathe of open space (some 430 metres south-west of the subject land) extending from Redland Beenleigh Road (sic) to the Logan River (south of the local area).
17Both Beenleigh Redland Bay Road and California Creek Road (the main routes through the local area) are characterised by heavy traffic and a mix of land uses, including: a native plant nursery and shopping centre approximately 900-1,000 metres west of the subject land (refer Figure 29 at Appendix B); an early learning centre, service station (refer Figure 28 at Appendix B), and aged care facility (under construction) also to the west of the subject land (refer Figure 29 at Appendix B); a shopping centre and service station approximately 800 metres east of the subject land (refer Figure 32 and Figure 33 at Appendix B); and Chisholm Catholic College approximately 270 metres north of the subject land (refer Figure 31 at Appendix B).”
[23]Ex.15, p.5, paragraphs 16 and 17.
As part of their assessment, the visual amenity experts agreed as to the location of the ‘visual catchment’ to be examined. The catchment is described in paragraph 49 of their joint report as the ‘local area’, which is an area experienced from California Creek Road and Beenleigh Redland Bay Road. It is an elongated east-west visual catchment extending some 600 metres west, and 200 metres east, of the land.
The visual amenity experts also agreed as to the character of the visual catchment. At paragraph 52 of their joint report they expressed the following point of agreement[24]:
“Accordingly, the experts agree that the visual catchment conveys a mixed character with moderate to low visual values and low scenic amenity values. Specifically, the experts agree that the immediate locality (the visual catchment node surrounding the main intersection near the subject land and incorporating the nearby BP service station and the aged care facility) does not have a strong sense of rural or semi-rural character, nor the scenic amenity values the might usually be associated with rural residential areas of development.”
[24]Ex.15, p.14, paragraph 52.
Mr McGowan was invited to expand upon the above point in his evidence in chief. In an exchange with Mr Batty of counsel, he said[25]:
“Both the amenity and the character of this locality and the vicinity of the site in particular are heavily affected by … the busy roads, Beenleigh Redland Bay Road and Cornubia Creek Road and particularly the traffic and other infrastructure along them. Both of those roads have fairly diverse character. Beenleigh Redland Bay Road in particular has…a range of land uses including service stations, aged care facility, shopping centres and so on in reasonably close proximity to the site and that really – the experience along those roads is really the defining features of the …character of the area. And in our joint report …we determine that the amenity of the area …is low to moderate. There’s not strong scenic amenity and …particularly around the subject site there’s no clear rural residential character.”
[25]T2-24, Line 6 to 16.
The evidence of Mr McGowan and Mr Powell is made good having regard to the extensive number of photographs contained in their joint report.
The photographic evidence, assisted by an understanding and appreciation gained on the site inspection, demonstrates the character of the land, and surrounding locality, is fairly described as ‘mixed’. The character is strongly influenced by the existence of the two busy roads and associated infrastructure, which combine to give the area a more urbanised character. The proposed development, in such a setting, will not present as incongruous. The setting is not a ‘semi-rural’ and/or a ‘bushland setting’.
Mr Buckley, the town planning witness called on behalf of Mr Wilhelm, made the point that the existence of the busy roads and associated infrastructure did not rob the area of its rural residential character. This is true, to a point. An element of the character of the area is the pattern of subdivision to the north, and east, of the land. It is very low density and consistent with a rural residential area. However, the pattern of subdivision to the north and east is but one element of the character of the area. To focus unduly upon it as being a principal, or strong, indicator runs the risk that the visual catchment, which includes the land and adjoining intersection treatments, is ascribed a character it does not possess.
To assist in an assessment of the impact of the proposed development on local character, Citimark and Council referred to a decision of his Honour Judge Rackemann in Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538. At paragraphs [37] to [39] of the reasons for judgment he said:
“[37] The development is not to be located within the heart of a sleepy rural residential laneway, but rather at the corner of a busy intersection of 2 significant traffic routes. Not only is the intersection busy, and likely to get busier, but has, as has already been noted, a number of design features, which distinguish it from other intersections and give it a character, including a night time character, which is more urban than the type of intersections more commonly found in rural or rural residential areas. Further, the development, including the service station and associated paved areas is, understandably, to be focused on that part of the site which is adjacent to the busy, lit intersection, with the balance to be undeveloped save for landscaping.
[38]As Mr Buckley attested, the character along traffic routes varies from place to place and the character at this location is influenced by the above matters. As Mr Buckley also attested, the impact of this proposal on character is quite different at this location than it would be on a site at the end of a rural or rural residential cul-de-sac accessing four 10 acre lots.
[39]I am satisfied that this particular proposed service station, in its particular context at a busy major intersection within a broader rural residential setting, will not present as particularly incongruous with, nor have any significant adverse impact on, the rural-residential or landscape character of the locality. In that regard, I accept the evidence of Mr Buckley and Mr Ovenden to the effect that the proposal would not only maintain amenity but, whilst not itself being of a rural residential character, would not detract from the existing or planned character of the surrounding area. I am also satisfied that it would not be inconsistent with the maintenance of appropriate landscape character along the traffic route.”
Whilst each case turns on its own facts, the above paragraphs extracted from the decision in Peet share a strong symmetry with the present case. Here, like Peet, the land is not located within the heart of a sleepy rural residential laneway. It is located at the corner of an intersection of two significant traffic routes. The intersection is a busy one, and likely to get busier. It exhibits a number of features which distinguish it from a rural residential character. The most notable feature is the design of the intersection itself, which is more urban than the type of intersection commonly found in a rural residential area. The character of the intersection, and its contribution to the locality, creates a more urban character than one described as semi-rural, or a bushland setting.
For completeness, I would add that the area includes existing service stations. Four existing service stations were regarded by the town planning experts as being within the ‘vicinity’[26], of the land, namely: (1) the BP located at 141-147 Beenleigh Redland Bay Road, in which Mr Wilhelm has an interest; (2) Caltex Woolworths further to the east of the land at 258 Beenleigh Redland Bay Road; (3) a Coles Express service station and a Caltex service station, both of which are situated on Bryants Road in the Loganholme local centre, north-west of the land. The service stations identified in item (3) are well removed from the land. The service stations in items (1) and (2) are of greater relevance from a character perspective.
[26]Ex.9, p.5, paragraph 19 and figure 2.
Mr Ovenden, the town planning witness called by Council, went to some effort in his evidence to demonstrate that the Caltex service station identified in item (2) above has been landscaped to complement the existing character of the area[27]. The point made by Mr Ovenden was a simple one: a service station approval can be conditioned to ensure the development is landscaped in a manner that is sympathetic to, and consistent with, the local landscape character. I accept this evidence. It is made good having regard to the photographs contained in Mr Ovenden’s further statement of evidence.
[27]Ex.24.
The photographic evidence confirms that the Caltex Woolworths service station, and its landscaping, contribute to the landscape character of the locality. Both elements are part and parcel of existing character. As the photographs in the joint visual amenity expert report demonstrate, however[28], the locality is not dominated by landscaping and vegetation. The character is strongly influenced by a mix of elements that are urban in nature, all of which combine to give the locality a feel that is more urbanised than a rural, semi-rural or bushland setting.
[28]Ex.15, figures 1, 3, 4, 21, 22, 25 and 26.
The proposed development
Citimark seeks a development approval authorising the start of a new use on the land. The new use comprises three components, all of which are defined in Council’s planning scheme. The defined uses are Service station, Shop and Food and drink outlet. It is proposed the new use will operate 7 days per week, 24 hours a day[29].
[29]Subject to limitations on the operating hours for various activities which are to be regulated by conditions, including fuel delivery limited to 7am-6pm and food and drink delivery 7am-10pm and waste collection 7am-6pm (conditions 3.12, 3.15 and 3.17).
The proposed built form comprises a rectangular, single storey building, and a canopy structure. The building has a gross floor area of 331m2. It is located towards the north-western corner of the land, and is set back three metres from the northern boundary. The Shop and Food and drink outlet are contained within the building. An outdoor dining area is to be provided at the eastern end of the building. The canopy structure is centrally located and sits above a single row of eight bowsers. The maximum height of all built form will not exceed 8.5 metres above natural ground level.
It is clear from the proposed amended landscaping plans that considerable attention has been given to the interface between the proposal and the existing residential uses to the north and east.
The amended landscaping plans reveal the following is proposed along the northern boundary of the land, namely: (1) a 2 metre high acoustic barrier for the full length of the common boundary; and (2) vegetative screening, comprising trees and shrubs, along the full length of the boundary, with trees reaching a minimum height of six metres.
The eastern edge of the built form has a variable setback to the eastern boundary. The setback is in the order of 12 to 20 metres. Within that large and variable setback distance[30], the amended landscaping plans reveal the following is proposed: (1) a 1.8 metre high acoustic barrier to the edge of the outdoor dining area; (2) a 1.5 metre high headlight barrier to the edge of a proposed car parking area; (3) a number of retained eucalyptus trees; (4) vegetative screening in the form of trees and scrubs; (5) a bio-retention basin, planted with sedges and grasses, and surrounded by trees and scrubs mentioned above; and (6) ground cover planting, particularly for an easement running parallel to the boundary line.
[30]Which can be seen on Ex.2, p.6.
The effect of the vegetative screening proposed to the eastern side of the land was touched upon by Mr Powell in his oral evidence. In response to a question from me[31], he said the proposed landscaping could provide a 100 per cent foliar screen to the east in a direct line of sight. I accept Mr Powell’s evidence. The likelihood that the development will be screened from view to the east is further enhanced by the separation distance between the proposed built form, and the nearest built form on the Navara land. The separation distance is about 85 metres[32].
[31]T2-49, Line 13 to 27.
[32]McGowan: T2-36, Line 25.
The amended landscaping plans also depict landscaping at the corner of Beenleigh Redland Bay Road and California Creek Road. The vegetation will include trees and scrubs. Street trees are also proposed in the road reserve. Each of these elements, in combination with the landscaping discussed above will, in my assessment, assist to integrate the development into the local area in the same way Mr Ovenden demonstrated with the Caltex service station located to the east.
As I have already said, the land is located on the corner of Beenleigh Redland Bay Road and California Creek Road. The proposed development provides a left in-left out access from both roads. The design of the access arrangements are depicted in Exhibits 39 and 40. The final arrangements are subject to detailed design. Twenty-seven (27) car parks are to be provided.
The development application was referred to the Chief Executive as a referral agency. A concurrence agency response, including conditions, was issued by the Chief Executive. Citimark takes no issue with that response, which includes, inter alia, a condition requiring a bus stop located on Beenleigh Redland Bay Road to be relocated further east. The bus stop will be in front of the land owned, and controlled, by Navara.
The statutory assessment and decision making framework
It is common ground the statutory assessment and decision making framework applicable to this appeal is prescribed by, inter alia, the PA[33]. I agree, and have approached that framework consistent with my decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16. I have also taken into account the recent observations made about the PA by her Honour Judge Kefford in the decision of Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46.
[33]Ex.72, pp.8-11, paragraph 4.9 to 4.21; Ex.73, paragraph 10; and Ex.75, p.6, paragraphs 16 and 17.
As is clear from the terms of s.60(3) of the PA, the discretion to decide an impact assessable development application is broadly expressed. Citimark emphasised in its written submissions that this discretion is more flexible than its statutory predecessor, and is not constrained by a conflict and grounds test. This is true. It is, however, equally important to bear in mind that the exercise of the discretion, no matter which way it goes, is to be based on the assessment carried out under s.45(5) of the PA[34]. That assessment must be carried out against, inter alia, the assessment benchmarks.
[34]s.59(3), PA.
The principal assessment benchmark against which the application is to be assessed is the Logan Planning Scheme 2015 (the planning scheme), version 4.0[35]. Section 1.1 of the planning scheme confirms the document has been prepared in accordance with the Sustainable Planning Act 2009 as a framework for managing development in a way that advances the purpose of that Act[36]. The purpose of that Act is to achieve ecological sustainability[37], which is defined in s.8. The achievement of ecological sustainability, as defined in the Sustainable Planning Act 2009, is also a feature of the purpose of the PA. It is expressed in s.3(2) of the PA in identical terms to that expressed in s.8 of the Sustainable Planning Act 2009.
[35]Ex.6 and 6A.
[36]Ex.6, p.1.
[37]See s.3 of the Sustainable Planning Act 2009.
For the purposes of the planning scheme, the land[38]: (1) is identified in the Strategic framework as within the urban footprint, and adjacent to an existing strategic arterial road; (2) is included in the Park living precinct of the Rural residential zone; and (3) is not included in a Local plan area.
[38]Ex.72, p.12, paragraph 4.23.
The submissions made on behalf of Mr Wilhelm emphasise particular provisions in the planning scheme, which are directed at ‘Centre activities’, and a requirement for them to locate in centre locations. It is uncontroversial that the proposed uses are ‘Centre activities’ as defined in the planning scheme, and will not be located in a designated centre.
The point advanced on behalf of both submitter appellants is to the effect that the proposed development materially offends the centre provisions of the planning scheme, which embody an important forward planning strategy. It was emphasised that the strategy is to be treated as an expression of the public interest, in a planning sense, and ought not be readily departed from. Mr Skoien and Mr Purcell, who appeared for Mr Wilhelm, correctly pointed out that it is not a matter for the Court to gainsay an expression of public interest embodied in the adopted planning controls[39].
[39]Ex.72, pp.12-13, paragraphs 4.24 to 4.26.
That the authorities[40] recognise centre hierarchy planning as an important forward planning tool in a planning scheme, which is not readily departed from, is accepted. It is undoubtedly an important part of any planning strategy. This does not however remove, or derogate from, the requirement for an assessment manager (or this Court on appeal) to examine the particular strategy in the particular planning scheme of relevance to a development application. The reason for this is obvious enough: it is wrong to assume all centre strategies are the same in that they discourage, save for a few limited exceptions, all centre activities locating anywhere other than designated centres. As is often the case with modern performance based planning schemes, there are many provisions that touch upon centres planning, both directly and indirectly. As a consequence, one needs to be careful to read a planning scheme as a whole before too readily jumping to a conclusion about the limits of such a strategy, and the development it encourages or discourages. The need to do so is particularly heightened where, as here, the conclusion urged by those who oppose a development proceeds on the footing the planning scheme contains a simple statement, if not absolute prescription, against a particular form, or type, of development locating out-of-centre. The alleged non-compliance with the centre strategy was described by Mr Skoien and Mr Purcell here as ‘the most egregious type’[41].
[40]As discussed in detail in Australian Capital Holdings Pty Ltd v Mackay Regional Council [2008] QCA 157.
[41]Ex.72, p.47, paragraph 7.40.
Given the significant reliance the submitter appellants place upon the centres planning strategy, it is necessary to first examine the planning scheme and determine the extent to which that strategy will be offended by the proposed development in the event it was approved.
The centres strategy
Council’s centres strategy is articulated in s.3.5 of the Strategic framework[42], which is one of 11 themes representing the policy intent of the planning scheme[43].
[42]Ex.72, p.37, paragraph 7.1, read with paragraphs 4.29 to 4.43.
[43]Ex.6, p.16, s.3.1(3)(b)(iii).
What is the centres strategy articulated in s.3.5 of the Strategic framework?
In the written submissions prepared by Mr Skoien and Mr Purcell, they described the articulated strategy in various terms. By way of example, they submitted:
(a) at paragraph 4.41[44]:
[44]Ex.72, p.16.
“In that premise, Wilhelm contends that the intention that ‘Centres activities’, other than ‘Accommodation activities’, be located in a centre, except in particular exceptional circumstances…”
(b) at paragraph 7.1[45]:
[45]Ex.72, p.37.
“As identified at paragraphs 4.29 to 4.43 above, there is a deliberate strategic planning intent evident in the Logan Scheme that new Centre activities uses, other than Accommodation uses, should not occur outside of a centre.”
(c) at paragraph 10.4(d) [46]:
“the proposed development would cut-across Council’s clear planning intent expressed in those relevant assessment benchmarks under the Logan Scheme, involving key strategies for…the placement of centre activities in identified centres, other than in particular specified circumstances (none of which are satisfied here the absence of any need for the proposed development and its out-of-centre location).”
[46]Ex.72, p.79.
Two of the three submissions set out above advance what might be described as a ‘general rule’, with an exception thereto. The general rule being that Centre activities are to locate in ‘identified’ centres, save for Accommodation activities, or where the planning scheme provides otherwise.
The planning scheme provides for a hierarchy and network of centres
Section 3.5.1 of the planning scheme forms part of the Strategic framework.[47] It is a theme, titled ‘Centres’[48]. Subsection (1) of the provision provides for a hierarchy and network of interrelated centres. It states:
[47]Ex.6, p.22.
[48]Ex.6, p.16, s.3.1(3)(b)(iii).
“(1) Logan has a hierarchy and network of interrelated centres comprising:
(a)principal centres, being Beenleigh and Springwood that are the dominant centres in Logan;
(b)major centres, being Browns Plains, Jimboomba, Logan Central, and Shailer Park that complement and are subordinate to the principal centres;
(c)district centres, being Marsden, Meadowbrook, Park Ridge, and Underwood that complement and are subordinate to the principal centres and major centres;
(d)local centres that complement and are subordinate to the principal centres, major centres and district centres;
(e)neighbourhood centres that complement and are subordinate to the principal centres, major centres, district centres and local centres;
(f)specialised centres that complement principal centres, major centres and district centres.”
The hierarchy and network of centres comprises 6 centre types. Each centre type is described as an element in the Strategic framework, namely in ss.3.5.2 to 3.5.7. The stated purpose of an ‘element’[49] is to refine and further describe strategic outcomes. The elements, therefore, in ss.3.5.2 to 3.5.7 refine and further describe the strategic outcome expressed in s.3.5.1.
[49]Ex.6, p.16, s.3.1(3)(d).
In addition to identifying a hierarchy and network of interrelated centres, s.3.5.1 provides a general description of centres under the planning scheme. Subsection (2) of the provision provides that centres are ‘vibrant, accessible and integrated places’. It also provides that centres, inter alia: (1) are characterised by a high quality, well designed built environment; (2) have a built form consistent with the intended character of the centre; (3) are well serviced by public transport; (4) have a safe, convenient and comfortable pedestrian network; (5) support walking and cycling; (6) include a mix of uses; and (7) support the growth of tourism experiences.
It is clear from ss.3.5.2 to 3.5.7 that each of the centre types in the hierarchy have an intended role, function and scale. The role, function and scale of most centres can, in part, be assessed by reference to those centres to which it is subordinate. For example, s.3.5.2.1(1)(a) provides that principal centres are the dominant centres in Logan. This can be contrasted with s.3.5.3.1(1)(a), which provides that major centres are subordinate to principal centres.
The role, function and scale of an identified centre in the hierarchy can also be assessed having regard to the specific description given for each centre type and, where applicable, the specific intent for a particular centre. For example, in s.3.5.3.1(3), Jimboomba is described as a major rural centre. This can be contrasted with s.3.5.3.1(4) where Logan Central is described as Logan’s civic and cultural heart.
The planning scheme provision relied upon by the submitter appellants in support of the general rule, and exception, is s.3.5.8.1 of the Strategic framework. This provision, like s.3.5.1, forms part of the Centres theme. It states[50]:
[50]Ex.6, pp.26-27, with the Editor’s note omitted.
“3.5.8.1 Specific outcomes
(1)Centre activities, other than an Accommodation activity:
(a)must be:
(i) located in a centre;
(ii) consistent with the intent of the centre;
(iii) at a scale compatible with the role and function of the centre in the centre hierarchy being:
(A)a principal centre, which is a dominant centre in Logan and services a main trade area over 100,000 people;
(B)a major centre, which is subordinate to a principal centre and services a main trade area of approximately 40,000 to 50,000 people;
(C)a district centre, which is subordinate to a principal centre and major centre and services a main trade area of approximately 15,000 to 20,000 people;
(D)a local centre, which is subordinate to a principal centre, major centre and district centre and services a main trade area of approximately 8,000 to 10,000 people;
(E)a neighbourhood centre, which is subordinate to a principal centre, major centre, district centre and local centre and services a main trade area of approximately 3,000 to 4,000 people;
(b)unless:
(i) there is community need and economic need for the use;
(ii) the use is of a scale compatible with its role and function in the centre hierarchy;
(iii) the use does not have unacceptable adverse effects on any existing or planned centre;
(iv) the use:
(A)cannot be located in a principal centre, major centre, district centre, local centre, or neighbourhood centre;
(B)is located in the specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or
(C)has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need.
(2)No new principal centre or major centre other than shown on SFM-01.00-Strategic framework map are created.”
Section 3.5.8.1(1)(a) has three cumulative requirements. It contemplates that Centre activities, save for Accommodation activities, must be: (1) located in centre; (2) consistent with the intent of the centre; and (3) at a scale compatible with the role and function of the centre in the hierarchy.
The first of three cumulative requirements requires this question to be examined: is the proposed development a Centre activity?
‘Centre activities’ is a defined activity group for the purposes of the planning scheme,[51] which states:
[51]Ex.6, p.109, SC1.1.2(2) and (4).
Column 1
Activity Group
Column 2
UsesCentre activities
• District centre activities
• Local centre activities
• Major centre activities
• Neighbourhood centre activities
• Principal centres activities
Centre activities are defined by reference to five further defined activity groups, which align with centre types stated in the hierarchy of centres in s.3.5.1(1). Each of the five defined activity groups are, in turn, defined by reference to a cluster of defined uses. The number of uses clustered in each group are significant and wide ranging. The uses are not limited to retail activities. For example, a Multiple dwelling, Home based business, and Outdoor sport and recreation are Centre activities.
It is common ground that the defined uses for which approval is sought by Citimark fall within a number of defined activity groups that are centre related. In particular, there was no contest that:
(a) a Service station is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities and Principal centre activities;
(b) a Shop is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities and Principal centre activities; and
(c) a Food and drink outlet is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities and Principal centre activities.
Section 3.5.8.1(1)(a)(i) of the planning scheme requires Centre activities to locate in a ‘centre’.
What is a centre for the purposes of the planning scheme?
The planning scheme does not define ‘centre’, ‘a centre’ or ‘the centre’.
Mr Skoien and Mr Purcell submitted the word ‘centre’ should be given its ordinary meaning, consistent with the context in which it appears[52]. They submitted the context comes from a range of provisions, including, but not limited to those in ss.3.5.1 to 3.5.7 of the planning scheme. I agree.
[52]Ex.82, pp.3-4, paragraph 10.
As a matter of context, s.3.5.8.1 appears in a part of the Strategic framework titled ‘Centres’. Within that part of the Strategic framework (s.3.5), a hierarchy and network of centres is identified at s.3.5.1(1). Each of these centres have an identified role and function, which is sought to be protected by s.3.5.8.1(1)(a)(ii) and (iii). The intended role, function and scale of each centre type is detailed in ss.3.5.2 to s.3.5.7. In some, but not all cases, the detailed description of the role, function and scale descends to particular centres identified at specific locations. All of this context is reinforced in the Centre zone code, particularly s.6.2.1.2(3), which contains the Overall outcomes for the zone where Centre activities are directed to locate[53].
[53]Ex.6A, p.56.
The centres identified in s.3.5.1(1) are not the only centres envisaged in the planning scheme area. Section 3.5.8.1(1)(b) suggests additional centres may be approved, subject to meeting specific requirements.
Given the above context, in my view, the word ‘centre’ in the planning scheme ought be understood to mean a centre identified in s.3.5.1(1), and described in ss.3.5.2 to 3.5.7. It should also include a new centre, which is approved in a manner anticipated by s.3.5.8.1(1)(b). A centre of this type, which will likely exclude a principal and major centre by operation of s.3.5.8.1(2), will be described by reference to ss.3.5.4 to 3.5.7. I was not referred to any specific part of the planning scheme that suggests a different meaning should be adopted for the word ‘centre’ in the circumstances.
Mr Skoien and Mr Purcell submitted the word ‘centre’ should be construed as ‘a place where a number of activities are conducted’[54]. I do not accept the word centre, when appreciated in its context in the planning scheme, should be ascribed this broad meaning, which does not reflect relevant context.
[54]Ex.82, p.4, paragraph 11.
Further, if the word ‘centre’ was to be given the broad meaning contended for, without the context to which I have referred, a number of difficulties arise. Take s.3.5.8.1(1)(a) for example. If it is assumed a proposed development includes a Centre activity, which should be located in a centre, the assessment against subsection (1)(a) makes little sense if compliance can be demonstrated by locating the use other than in a centre that I have described in paragraph [69] above. Compliance could be demonstrated by locating the use in any development that fits the broad description of ‘centre’, even if it is not one of the centres identified in ss.3.5.1 to 3.5.7, or approved under s.3.5.8.1(1)(b). This, in my view, is an indicator that the broad meaning to which Mr Skoien and Mr Purcell ascribed to ‘centre’ is not to be accepted as the preferred construction.
The submissions advanced on behalf of Mr Wilhelm recognise there is an exception to the general rule. The case advanced on his behalf is to the effect that the exception is stated in s.3.5.8.1(1)(b) of the planning scheme, which is set out above. The exception is said to be engaged where the four cumulative elements of the provision are demonstrated by a proponent who seeks approval for a Centre activity located outside of a centre. The provision requires such a proponent to demonstrate: (1) a community need and economic need for the use; (2) the use is of a scale compatible with its role and function in the centre hierarchy; (3) the use does not have an unacceptable adverse effect on any existing or planned centre; and (4) the use has a particular locational requirement.
The point made on behalf of Mr Wilhelm was to the effect that s.3.5.8.1(1) of the planning scheme represents an unexceptional and deliberate planning policy to create, maintain and protect an identified hierarchy of centres, with a limited exception. It was said the development does not comply with the rule, and limited exception to it, thereby giving rise to the most egregious of non-compliances with the planning scheme.
If an examination of the centres strategy ceased at this point, as the primary submissions prepared by Mr Skoien and Mr Purcell did, one would be forgiven for thinking the strategy is a simple one, with an equally clear exception. That is, however, not the full story. The strategy needs to be read, in concert, with other parts of the planning scheme that admit of uses, which are Centre activities, locating in out-of-centre locations without having to comply with s.3.5.8.1(1). There are three components of the planning scheme that must be considered in this context: (1) the defined activity groups; (2) the zone codes: and (3) all of s.3.5 of the Strategic framework.
As I have said, the planning scheme clusters defined uses into defined activity groups[55]. Service station, Shop and Food and drink outlet are defined uses in the planning scheme, and are included in a number of Centre activity groups. Those groups are, in turn, defined as Centre activities. That is not, however, the only defined activity group in which these defined uses are included. Shop and Food and drink outlet are included in the ‘Mixed use activities’[56] and ‘Retail activities’[57] defined activity groups. Service station is also included in the ‘Commercial activities’[58] and ‘Mixed use activities’[59] defined activity groups.
[55]Ex.6, p.109, Sc1.1.2.
[56]Ex.6, pp.113-114.
[57]Ex.6, p.116.
[58]Ex.6, p.110.
[59]Ex.6, p.114.
The inclusion of the three defined uses for which approval is sought in a number of defined activity groups is an indicator the planning scheme contemplates that uses may occur in a number of different land use contexts. If one takes the defined activity groups applicable to Shop and Food and drink outlet, the activity groups suggest the planning scheme anticipates the uses may occur in a centre, mixed use, or retail context. The defined activity groups applicable to a Service station anticipate that the use may occur in a centre, or mixed use context.
That there is no provision of the planning scheme to which I was referred providing for any one of the defined activity groups to be treated as dominant, or as prevailing over any other defined activity group, suggests the context in which a use is proposed is a matter of import in this planning scheme. It also suggests that each of the defined uses here are anticipated in a centre context, and out-of-centre context. That is, the uses are anticipated within, and outside of, the centres hierarchy, subject to the context in which they are proposed.
That context is important in this planning scheme can be demonstrated by one example. It requires reference to the second part of the planning scheme that is to be considered, namely the zone codes.
The particular example arises in the Mixed use zone code.
In the Mixed use zone, save for one specific exception that does not apply here, Centre activities are not anticipated in the zone. This is because it is not the Centre or Specialised centre zone. If, as the submitter appellants contend, a proposal to develop a Service station, Shop and Food and drink outlet is proposed on land in the Mixed use zone, it is discouraged by s.3.5.8.1(1)(a), and must comply with subsection (1)(b) of the same provision. If there is non-compliance with subsection (1)(b), the submitter appellants contend an approval would be contrary to an express planning strategy in the planning scheme, thereby giving rise to a non-compliance of the most egregious kind.
This position has some superficial attraction to it, until it is appreciated that Overall outcome s.6.2.10.2(3)(a)(i)(A)[60] of the Mixed use zone code encourages ‘Mixed use activities’ in the zone, which, by definition, include a Service station, Shop and Food and drink outlet. Not only are the three Centre activities encouraged in the Mixed use zone, it is also to be noted there is no provision in the zone code that requires compliance to be demonstrated with s.3.5.8.1 of the Strategic framework. This is a clear example where defined uses can appropriately exist within, and outside of, the identified centres hierarchy.
[60]Ex.6A, p.114.
That uses can occur within, or outside of, a centre hierarchy is unremarkable when examined as a matter of planning principle and practice. As Mr Perkins said, there is no point of principle or practice which requires Service stations to locate only in centres. It was, in truth, common ground between the town planning witnesses that Service stations can be located in, and out, of centre locations. They are location flexible. One particular location where they are provided out-of-centre is on busy roads, such as here, to meet the public’s need for fuel and associated items.
The Mixed use zone code is not an isolated example where uses, which are defined as Centre activities, are anticipated in an out-of-centre location, and do not appear to be required to comply with s.3.5.8.1 of the Strategic framework.
In the Rural residential zone, the stated local government purpose of the zone code is to provide ‘predominantly’ for Dwelling houses on larger lots[61]. That Dwelling houses are to predominate in the zone does not exclude the prospect of non-residential uses in the zone. This is confirmed by Overall outcome (3)(e)(i) and Performance outcome PO1 of the code. These provisions of the zone code anticipate that land uses in the Park living precinct comprise, inter alia, Emergency services, Home based business or Sales office. Each of these uses are Centre activities. There is no part of the zone code that appears to require those uses to satisfy s.3.5.8.1 in the Strategic framework. This, again, is a recognition of the unremarkable, namely that Centre activities can exist in the zone outside of the centre hierarchy.
[61]Ex.6, p.60, s.6.2.13.2(2)(a).
When attention is given to each of the zone codes in the planning scheme, it can be seen that Shop and Food and drink outlet are anticipated in 10 of the 15 zones, namely the: (1) Centre zone[62]; (2) Community facilities zone[63]; (3) Low density residential zone[64]; (4) Low impact industry zone[65]; (5) Low-medium density residential zone[66]; (6) Medium density residential zone[67]; (7) Medium impact industry zone[68]; (8) Mixed-use zone[69]; (9) Recreation and open space zone[70]; and (10) Specialised centre zone[71]. A Service Station is anticipated in three zones, namely the Centre zone[72], Specialised centre zone[73], and the Mixed use zone[74].
[62]Ex.6A, pp.56-57 and PO1 at p.58.
[63]Ex.6A, pp.65-66 and PO1 at p.66.
[64]Ex.6A, pp.81-82 and PO1 at p.82.
[65]Ex.6A, pp.90 and PO1 at p.91.
[66]Ex.6A, p.95 and PO1 at p.96.
[67]Ex.6A, p.103 and PO1 at p.104.
[68]Ex.6A, p.110 and PO1 at p.111.
[69]Ex.6A, p.114 and PO1 at p.115.
[70]Ex.6A, pp.123-124 and PO1 at p.125.
[71]Ex.6A, pp.150-151 and PO1 at 152.
[72]Ex.6A, pp.56-57 and PO1 at p.58.
[73]Ex.6A, pp.152 and PO1 at 152.
[74]Ex.6A, p.114 and PO1 at p.115.
Each of the zone codes share a similar structure to the Rural residential zone code. The uses anticipated in the zone are identified in the Overall outcomes, which are complemented by a Performance outcome in the code. I was not directed to any zone code in the planning scheme that expressly constrains uses that are Centre activities and anticipated in the zone by reference to the test prescribed in s.3.5.8.1 of the planning scheme. This is a matter of some importance.
It can be seen in some zone codes that a test is prescribed to limit uses that are Centre activities, and the limitations are different to the test prescribed in s.3.5.8.1. For example, Shop and Food and drink outlets in some zones are to be small scale. This, in my view, is a further indicator that uses anticipated in a centre can also be located in a zone and comfortably exist outside of the centre hierarchy.
The examination of the planning scheme set out above raises the following question for consideration: when does s.3.5.8.1 of the planning scheme apply?
The question, in my view, is answered by: (1) the heading to the provision; and (2) the terms of the provision itself.
The heading to s.3.5.8.1, which is to be read as forming part of the provision[75], states ‘Element – New and expanded centres’. This phrase is not defined. It should be given its ordinary meaning, informed by the context in which it appears. The ordinary meaning, understood in context, is simple enough. The heading is intended to capture proposals for a ‘new centre’ and/or an ‘expanded centre’. As I have already said, a centre ought be understood to mean a centre identified in s.3.5.1(1) and described in ss.3.5.2 to 3.5.7, or a centre approved under s.3.5.8.1(1)(b).
[75]s.35C(1) of the Acts Interpretation Act 1954.
That s.3.5.8.1 applies to new, and or expanded centres is confirmed by the provision itself. Subsection (2) expressly discourages new principal and major centres in the planning scheme area. That is, it discourages particular types of new centres.
The construction is also confirmed by the structure of s.3.5.8.1(1)(a) and (b).
Subsection (1)(a)(i) of the provision requires a proposal for a new Centre activity (other than Accommodation activities) to locate in centre, subject to two requirements. The two requirements are expressed in subsections (a)(ii) and (iii). They are intended to ensure the proposed new Centre activity does not disrupt the centre hierarchy. It can be disrupted where a centre is expanded through the addition of a new centre activity, which causes it to exceed its intended role and function in the hierarchy.
Subsection 1(b) applies to Centre activities that fall into one of five categories, namely:
(a) Centre activities proposed in an existing centre identified in s.3.5.1(1), and do not comply with either, or both of, ss.3.5.8.1(1)(a)(ii) and (iii);
(b) Centre activities proposed in an existing centre approved under s.3.5.8.1(1)(b), and do not comply with either, or both of, ss.3.5.8.1(1)(a)(ii) and (iii);
(c) Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre identified in s.3.5.1(1);
(d) Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre approved under s.3.5.8.1(1)(b); and
(e) Centre activities that, if approved, would create a new centre in addition to those identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b).
Central to each of the five categories above is the proposition that the proposed development involves Centre activities that create a new centre, or expand an existing centre, be it one identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b). When considered in this light, it is necessary to determine, as a threshold issue, whether development proposed, which involves uses that fall within a number of defined activity groups, including Centre activities, creates a new centre or, expands an existing centre.
If the threshold question is answered in the negative, s.3.5.8.1 of the planning scheme, in my view, has little work to do. The strategy set out therein is of no direct application. Put another way, the Centres planning strategy is not engaged. That is not, however, the end of the matter. It is necessary to turn to the balance of the planning scheme for guidance. Here, that guidance is to be taken principally from the zone code, which anticipates only a limited range of non-residential uses in the zone. The range of uses do not expressly anticipate a Service station, Shop and Food and drink outlet.
In limiting s.3.5.8.1 in its operation to the centres context I have discussed above, it permits the zone codes to work harmoniously with it. If it were otherwise, it could result in the absurd situation that the planning scheme is taken to turn its face against a use that is expressly anticipated in a zone. This would be the result that flows from the submitter appellants’ cases where a proposed use, like here, has the misfortune of being included in one of a number of defined activity groups, including Centre activities, but not Accommodation activities. The absurd outcome is a strong indicator that the general rule, and its exception, as advanced by the submitter appellants is not as absolute, or one dimensional, as they suggest.
As a consequence of the above, it is, in my view, necessary to examine which, if any, of the five categories identified in paragraph [94] above applies in this case. This task is simplified by reason that it is only suggested the development will constitute a new centre. That the case is limited in this way is unsurprising given the land is well removed from any existing centre, be it one identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b)). This has the consequence that only subparagraph [94](e) above could be said to apply in the circumstances of this case.
It is contended on behalf of Mr Wilhelm that the proposed development will create a new centre. The reason for this was articulated by Mr Skoien and Mr Purcell as follows[76]:
“In this case, the Service Station, Shop and Food and Drink Outlet are all “centre activities”, and their establishment together on the one integrated site could only be regarded as constituting a “new centre” – in breach of the qualified prohibition in section 3.5.8.1.”
[76]Ex.82, p.3, paragraph 8.
Putting to one side that s.3.5.8.1 of the planning scheme does not ‘prohibit’ development, the submission above requires this question to be determined: will the proposal constitute a new centre for the purposes of the planning scheme?
I will turn to deal with this question directly.
Will the proposed development constitute a new centre?
Citimark does not accept the proposed development will, if approved, constitute a new centre for the purposes of the planning scheme.
This position was foreshadowed by Mr Hughes QC in his opening[77]. It was also the subject of evidence. Both Council and Citimark led evidence in support of the proposition that the proposed development will not constitute a new centre in its own right[78]. The matter was also the subject of a specific written submission. Mr Hughes QC and Mr Batty in their written outline[79] submitted the proposed development would not, as foreshadowed in the opening, constitute a new centre.
[77]T1-15, Line 20 to 35.
[78]Ex.9, pp.13 and 17, paragraphs 53 and 69; Ex.10, p.6, paragraph 12.
[79]Ex.75, p.20, paragraph 61.
A comparison of the trade area with the applicable zoning map reveals: (1) there is no land in the trade area which is included in the Mixed use zone or Specialised centre zone; (2) there is land in the trade area included in the Centre zone; and (3) the land included in the Centre zone is located on the southern side of Beenleigh Redland Bay Road, coincident with the centre known as the Cornubia local centre.
The evidence establishes there is no land available in this centre to accommodate the proposed development. It is developed with Centre activities, as is anticipated by the planning scheme.
This has the consequence that the need identified in the trade area, which exists today, can only be met in one of two places: (1) on land not included in the Centre zone in the trade area; or (2) on land included in the Mixed use, Specialised centre or Centre zone, but located outside the identified trade area.
That the Service station, Shop and Food and drink outlet would need to locate in one of these two locations demonstrates the identified need cannot be met by the planning scheme in its present form. This, in concert with the identified latent unsatisfied demand, establishes there is a need, in a planning sense, for the Service station.
It is to be noted that Mr Norling suggested the need for a Service station operated by an independent retailer could be met on land located in the Loganholme local centre. This land is not located in the trade area and, as I have already said, is significantly constrained. I do not accept Mr Norling’s evidence in this regard. The location of the centre is not suitable to meet the identified need.
As a result, I am satisfied there is a town planning, community and economic need for the proposed service station. This use will be complemented by the proposed Shop and Food and drink outlet. Those uses will, in conjunction with the Service station, improve the physical wellbeing of the trade area population as I have defined it.
Exercise of the planning discretion
The planning discretion conferred by s.60(3) of the PA is expressed in broad terms. As I have already said, it is not constrained by a ‘conflict and grounds’ test. It admits of more flexibility than its statutory predecessor. That is not to say it is an unbridled discretion to approve development. The discretion is to be exercised based on the assessment carried out pursuant to s.45(5) of the PA. Such an assessment must be carried out against the applicable assessment benchmarks for the development application.
Based on an assessment of the application against the principal assessment benchmark, namely the planning scheme, and identified relevant matters, I am satisfied Citimark has established the following:
(a) the proposed development can be conditioned in a way that complies favourably with the Overall outcomes and Performance outcomes in the Rural residential zone code;
(b) the proposed development can be conditioned to comply with the Servicing, access and parking code in the planning scheme;
(c) the proposed development will not have any unacceptable impacts on the safety and efficiency of the local road network, including State controlled roads;
(d) the proposed development will be conveniently located to meet an existing town planning, community and economic need for a Service station in an identified trade area;
(e) the proposed development can meet the identified need for a Service station in circumstances where:
(i) the need relates to a daily essential of life, namely fuel, for a trade area population that is car dependant;
(ii) the development can be conditioned such that it will have no unacceptable impacts on amenity, character or privacy;
(iii) the development cannot be located in an existing centre within the identified trade area; and
(iv) the development will have no unacceptable impacts on any existing centre, or the centre hierarchy in the planning scheme;
(f) the proposed development provides an opportunity to increase competition and choice in the local fuel market through the addition of a well-recognised independent fuel retailer known to be price competitive;
(g) assuming the provision has application to the appeal, the proposed development substantially complies with s.3.5.8.1(1)(b) of the Strategic framework, in that it has been demonstrated that:
(i) there is a community need and economic need for the proposed Service station;
(ii) the proposed development will comfortably exist outside of the centres hierarchy;
(iii) the proposed development is of a scale and function that will not disrupt the centres hierarchy in any unacceptable way;
(iv) the proposed development will not have any adverse effects on existing or planned centres; and
(h) the proposed development will deliver a number of traffic engineering benefits, that is, it will improve various elements of the local road network at no cost to the public.
I accept that each of the above matters are compelling grounds to warrant approval.
As against the above, it can be said there are three matters that tell in favour of refusal, namely: (1) it has not been demonstrated there is an economic need for the proposed Shop or Food and drink outlet; (2) it has not been demonstrated there is an economic need for the development to operate 24 hours a day; and (3) the proposed development does not comply with all aspects of s.3.5.8.1(1)(b) of the planning scheme.
I am satisfied items (1) and (2) do not warrant refusal of the application, be it individually, or collectively.
The planning scheme defines ‘Service station’ to include a Shop and Food and drink outlet as an ancillary use. Here, the proposed Shop will be an ancillary use to the proposed Service station. It will form part of the same planning unit for which a need has been demonstrated. Importantly, an approval of the Shop component will not sound in any disruption to the centres hierarchy in the planning scheme. Nor will it sound in any unacceptable impact on amenity or character.
A Food and drink outlet is also anticipated as an ancillary use in the definition of Service station. The proposed Food and drink outlet is not an ancillary use here given its size, and because it can operate independently of the Service station. In circumstances such as this, an important matter to be considered relates to the impacts, if any, of this use. The evidence establishes there will be no unacceptable impacts from the Food and drink outlet. Neither the scale, nor the operation, of the use will manifest in any unacceptable planning consequence.
The evidence also establishes that an approval which permits 24 hour operation and the Shop and Food and drink outlet would not, subject to the imposition of conditions, give rise to any unacceptable impacts on amenity, or character. Nor would these features of the proposal sound in any disruption to the centres hierarchy in the planning scheme.
Further, I am satisfied, having regard to the evidence of the need experts, there are identifiable benefits that will accrue to the public in the event the development is approved to operate 24 hours a day, inclusive of a Shop and Food and drink outlet.
The benefits of 24 hour trading were identified by Mr Duane in section 6 of the need joint report, and at section 6 of his further statement of evidence[216]. I accept this evidence.
[216]Ex.13.
The public benefits that can be ascribed to the Shop and Food and drink outlet in the proposed development were considered in detail by Mr Leyshon and Mr Duane. I accept this evidence, particularly the opinions expressed in paragraphs [165] to [167] and [169] to [172] of the need joint report. That evidence is supported by the following opinions expressed by MrBrown and Mr Norling in the need joint report, namely:
(a) at paragraph 168 of the joint report it was said:
“…However, if the Court approves the Service Station on the subject site, then we say that it should also approve the Shop component, as patrons of the Service Station would expect to avail themselves of the range of goods typically sold in a Shop forming part of a Service Station.”
(b) at paragraph 173 of the joint report it was said:
“…However, we agree that if the Court approves the Service Station, then the proposed Food and Drink Outlet would provide an added benefit to customers of that Service Station.”
Mr Norling confirmed in his oral evidence that the absence of an economic need for the Shop and Food and drink outlet should not, from an economic perspective, stand in the way of an approval. This is clear from the following passage of cross-examination with Mr Hughes QC:
“Well, we should push on before you start to run on empty, Mr Norling, I suppose. There’s no doubt that you agree that in terms of the public benefit, should the court determine that a service station ought to be approved on this site, that the shop component and the fast-food component ought to be, as a matter of economic efficiency and public convenience, approved as well?‑‑‑Yes.
And we see that by looking at page 69, paragraph 168 in respect of the shop. Again, Mr Brown stated that clearly?‑‑‑On paragraph 168, yes.
On page 69, and if we go over the page, to page 70, in paragraph 173, we see the same about the [indistinct]?‑‑‑Yes.
All right. The issue, really, before the court for his Honour’s consideration is the fuel component?‑‑‑Yes.”
I am also satisfied the non-compliance identified with s.3.5.8.1(1)(b) of the planning scheme should not be decisive in this appeal. This is so for five reasons.
First, the provision, whilst no doubt representative of an important planning strategy, does not directly apply to the proposed development.
As I have already said, the planning purpose of s.3.5.8.1 is to regulate Centre activities that, inter alia, create a new centre, or expand an existing centre. The proposed development will do neither of these things. The opposition to the approval on behalf of Mr Wilhelm and Navara proceeds on a contrary footing.
Second, that the proposed development constitutes an out-of-centre development in and out-of-centre location, which does not meet s.3.5.8.1(1)(b) of the planning scheme, is, in any event, unremarkable having regard to the planning scheme read as a whole. The planning scheme anticipates Centre activities in out-of-centre locations where, as here, they are provided in a context that does not create a new centre, or expand an existing centre.
Third, there is no planning principle relevant to the location of service stations that would militate against approval. The evidence of the need and town planning witnesses establishes that service stations are flexible in their locational requirements. They can be located in centre. They can be located out of centre. They can also be located on busy roads to serve the needs of the public in a convenient way.
The proposed development will be located at the intersection of two busy roads. It will be highly visible, and conveniently located, on those busy roads to meet the needs of the trade area population. This is in circumstances where the proposal will have no unacceptable impact on the centres hierarchy, and there is no available land in the Mixed use zone, or a centre type zone (Centre zone or Specialised centre zone) in the trade area to accommodate the proposed development.
Fourth, the non-compliance with the planning scheme does not manifest in any planning consequence. That is to say, even assuming complete non-compliance with s.3.5.8.1(1)(b) of the planning scheme, it does not manifest in any planning consequence. The proposed development will have no unacceptable impact on amenity, or character. Nor will it have any unacceptable impact on the centres hierarchy.
Fifth, the assessment against s.3.5.8.1(1)(b) of the planning scheme reveals that a service station could, theoretically, be located on land in the Centre zone in the Loganholme local centre.
This should not stand in the way of an approval.
As I have said, having regard to Mr Norling’s evidence, that land is significantly constrained. I have serious misgivings as to whether it is reasonable to assume it would, in fact, be developed for a service station in the foreseeable future. To assume this land represents a reasonable candidate to meet the identified need for the service station has an air of impracticality about it.
In my view, refusing the proposed development in the hope the constrained land at the Loganholme local centre may be developed for a service station is unlikely to lead to the satisfaction of the need that has been identified. The need exists now, and relates to a necessary of life, namely fuel. Fuel is of particular importance to the population of the trade area. They are car dependant, and known to pay higher prices for fuel. To refuse the application on the basis that this need may theoretically be met on land outside the trade area is unpersuasive.
Against the background of the above considerations, it is my view the public interest, in a planning sense, is not better served by refusing the development application. To refuse it would represent a triumph of form over substance. The form constitutes textual non-compliance with s.3.5.8.1 of the planning scheme. The substance involves a meritorious proposal.
An assessment of the merits of the proposal comfortably establishes it will be conveniently located to meet an identified need for a necessary of life, which exists today. The need can be met by the proposal in circumstances where a number of benefits will accrue to the public in terms of choice, competition and convenience. These benefits will accrue in circumstances where there will be no unacceptable impacts on amenity, character or the centres hierarchy.
Accordingly, the application should be approved, subject to conditions.
Conclusion
I am satisfied Citimark has established the two submitter appeals against Council’s approval should be dismissed.
Whilst the appeal against Council’s approval is to be dismissed, there is a requirement for the decision approving the development application to be set aside, and replaced with a new decision. The new decision is to incorporate an updated suite of conditions.
The appeal will be adjourned to allow an amended suite of conditions to be formulated.
The orders of the Court will be:
1. By 4:00pm on 3 February 2020, the respondent provide a draft suite of conditions to the parties.
2. The appeal be listed for review at 9.15am on 5 February 2020.
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