Overton v Redcliffe City Council

[2000] QPEC 12

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Overton & Anor v Family Assets Pty Ltd [2000] QPE 012
PARTIES:	David Overton (appellant) and Redcliffe City Council (respondent) and Family Assets Pty Ltd (co-respondent)
DIVISION:
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	29th February 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. This appeal, by a submittor, is against the respondent’s approval of an application

   for a material change of use of land at Rothwell.

2. The subject land has an area of a little over 2.6 hectares and is part of a large

   allotment (area 7.229 hectares). It has frontage of approximately 225 metres to

   Anzac Avenue and is presently undeveloped.

3. The proposal is to establish a complex providing a little over 3,100 square metres of

   floor space. It is intended to comprise the following elements;

· Convenience centre 1,200 square metres;

· Hotel 1,500 square metres;

· Service station and fast food outlet 400 square metres.

195 on-site carparking spaces are to be provided. Access to the proposal would be

to Anzac Avenue, a major thoroughfare.

1. No detailed description of the proposal is called for as no difficulties were raised in

   respect of its design and layout. The determinative issue in the appeal was simply

   whether to establish a facility of this kind at this location was sufficiently consistent

   with the Strategic Plan.

2. The application is subject to the provisions of the Integrated Planning Act and must

   be decided in accordance with ss. 6.1.29 and 6.1.30 of that Act. The current Town

   Planning Scheme is a “Transitional Planning Scheme” within the meaning of Ch. 6

   of the Act.

3. This was a matter that would have required a rezoning under repealed legislation

   and, accordingly, it must be decided by reference to s.4.4(5) and (5A) of that

   legislation.

4. It is noted that s.4.4(5A) requires that:

   “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”.

1. The fundamental problem for this application arose from certain provisions of the

   Strategic Plan dealing with Commercial land. These provisions are found in Part A

   where,in s. 3 – Allocation of Land Use Goal, the following appears;

   “(2) Commercial Land – Objective. – Establish a range and distribution of shopping and commercial facilities sufficient in size and function to service the community.

   Implementation

(a)	Overall the size and extent of existing centres are sufficient to maintain the future demands likely to be placed upon them and Council will limit adjustment of the existing defined commercial areas only on the basis of rationalisation of goods and services.
(b)	It is intended to introduce a balanced hierarchy of facilities for the City in accordance with the limitations outlined in Table B.

TABLE B

SHOPPING AND COMMERCIAL FACILITIES

Column I	Column II	Column III	Column IV	Column V
Type of Facility	Floor Space Limitations	Year 2000	Distribution	Location

sq.m. Area/person

Sub-Regional	Up to 60,000	.75 sq.m.	40%	Kippa-Ring
Suburban	15,000 to 30,000	.75 sq.m.	40%	Redcliffe Margate Rothwell
Local Centres	Up to 1200	.35 sq.m.	20%	Within Neighbourhoods

(c)

The Kippa-Ring facilities are significant in respect to geographic location, accessibility and nodal function of the planned transportation system. In order to achieve development of the Kippa-Ring facility as the major commercial and shopping centre, the following actions are contemplated:-

(i)	encourage consolidation and maximum utilisation by limited redevelopment of existing facilities to incorporate elevated floor space;
(ii)	restrict development of isolated shopping and commercial facilities;
(iii)	strengthen the pedestrian network within the centre by requiring subsequent development to be compact and integrated;
(iv)	require upgrading of the internal arrangements for private and public transport movement in any subsequent redevelopment proposal.

(d)

The administrative, social services and cultural functions associated with the Redcliffe commercial area are to be retained and expanded to meet the general needs of the City to the year 2000.

(e)

In order to strengthen and revitalise the economic base of the existing Scarborough, Redcliffe and Woody Point commercial areas, the introduction of tourist, recreation, entertainment and accommodation facilities will be encouraged by Council.

(f)

It is the Council’s intention to encourage the establishment of an additional suburban centre at Rothwell and encourage additional local centres within areas of significant new residential development”.

1. The Strategic Plan Map was before the Court. The subject land is within an area

   designated as having a Preferred Dominant land Use of “Residential”. The intent of

   this designation is described in Part A as follows:-

   “Residential use supported by specific uses necessarily associated with residential areas including minor open space (less than 6.5 hectare), special uses, urban infrastructure and services”.

2. On the Strategic Plan Map there is a symbolic circle (a Local Commercial Centre)

   in the vicinity of the subject land. It is accepted that the Strategic Plan Map is not cadastrally based and whether this Local Commercial Centre was intended to have

   an Anzac Avenue frontage was a matter about which there was some debate.

3. Another Local Commercial Centre is designated within a Residential PDLU on the

   northern side of Anzac Avenue and a Suburban Commercial designation is shown

   on the Strategic Plan Map in Deception Bay Road at Rothwell approximately 1.9

   kilometres to the west of the subject land. On the evidence given this Suburban

   Commercial Centre has not yet been developed in the way the Strategic Plan

   intends.

4. There was some discussion about the floor space limitations set our in Column II .

   Certain mathematical exercises were performed to demonstrate that the 20 per cent

   “distribution” intended it by Column IV would not be achievable by the identified

   local centres if an upper floor level limit of 1,200 metres was observed. It was also

   pointed out that a number of Local Centres so identified in the Strategic Plan

   provide in excess of 1,200 square metres of floor space. Some of these centres have

   a long history going back beyond the commencement of planning controls.

5. I do not take these figures to set absolute limits but rather to give an indication of an

   order of development intended for the three levels of the hierarchy identified by the

   Strategic Plan. While it might be fairly said that the prescriptions of the Strategic

   Plan might have been more exact, a sensible reading of it tells us that the Local

   Centres are intended to function locally and that the 1,200 square metres floor space

   limitation give some indication of the expected scale of the development. The

   Suburban centre is intended to serve a wider area and its floor limitations indicate

   that facilities of a higher order can be expected.

6. On my reading of the Strategic Plan what is to be avoided is development of

   “isolated shopping and commercial facilities” other than in the areas (and at the

   levels) which the Strategic Plan designates.

7. There was also discussion in the appeal about whether the Local Centre designation

   indicated that an Anzac Avenue frontage was not intended and whether such a

   centre was intended to draw patronage only from residential development to the

   south of Anzac Avenue. It is true that it is desirable that those resorting to local

   convenience shopping ought ordinarily be able to avoid arterial roads. There were

   however more important issues in the case.

8. On any view of the evidence what is here proposed will function (and is intended to

   function) beyond a “local” level. In saying that I do not rely only on the fact that

   the intended floor area will be in excess of 3,000 square metres. Just as important,

   if not more so, is the nature of the facility proposed and the type of custom it will

   attract.

9. The hotel and fast food outlet are intended to (and no doubt will) take advantage of

   their location on Anzac Avenue, a busy arterial road. It was conceded in evidence

   that custom from passing traffic will contribute substantially to the commercial

   viability of the proposal and this will be drawn from a wider area.

10. The argument that the limitation of the floor area of the “convenience centre”

    element of the proposal to 1,200 square metres pays sufficient respect to Table B

    really misses the point of the strategy that emerged from the Strategic Plan as I read

    it.

11. The intent of the “Commercial” designations is given in Part A as follows:-

    “Commercial use with a range of goods and services appropriate to sub-regional, suburban and local demands supported by specific uses applicable to the functional character of individual commercial centres”.

    I do not accept that a hotel and fast food outlet of the kind here intended

    could be fairly seen as “specific uses applicable to the functional character

    of” a Local Centre (as distinct from a Suburban or Sub-Regional Centre).

12. It may be (as evidence called by the respondent by election suggests) that there is a

    present need in this part of Redcliffe for convenience facilities such as are intended

    and for a hotel, fast food outlet and service station. While there may well be no

    planning problem in establishing, in this area, a local convenience centre that would

    operate as such, the same can not be said for the establishment of higher order

    facilities such as the hotel and fast food outlet of the kind intended. I accept the

    evidence of Mr Ryter (called by the appellant) that to do so would create a focus for

    higher order commercial activity that is not indicated by the Strategic Plan.

    Opportunities for commercially viable and attractive higher order development at

    the intended Suburban Centre at Rothwell could only be prejudiced thereby.

13. That the proposed development could provide a nucleus for further commercial

    expansion is borne out by the fact that a separate application for approval for further

    commercial development on adjoining land has already been made. It was

    conceded that the resultant floor space of 24,000 square metres would place the

    facility in the “Suburban” category but it was contended that it would serve “a totally different function” to the Suburban Centre intended for Rothwell. As I

    understand it the application has been approved at least in part but is under appeal.

14. I certainly do not wish to go into the merits of that matter and I appreciate that this

    application must be decided on its own facts. I mention the second application only

    to show that if this application goes ahead, further commercial expansion at the

    location could, by no means, be ruled out.

15. For the co-respondent it was suggested that the Local Business Zone was clearly the

    zone in the Town Planning Scheme most suitable for the implementation of the

    Strategic Plan’s intentions to establish a Local Centre. The stated intent for this

    zone is:-

    “The intent of this zone is to provide for frequently used shopping, commercial and professional needs necessary for a residential neighbourhood located generally within a short walking distance of local residents in the community”.

16. The submission went on to point out that, in the Table of Zones, permitted uses

    went beyond those intended to meet local needs of a residential neighbourhood.

    The fast food outlets, indoor entertainment and indoor sport and recreation are

    permitted uses while hotel, showrooms and outdoor entertainment are permissible

    uses.

17. I do not accept that the Strategic Plan’s strategy for a hierarchy of commercial

    centres is necessarily undermined by this. While perhaps appropriate for a Local

    Centre, the Local Business Zone is by no means confined to areas so designated. In

    any event the form of development that might take place is, in any given case, very

    much a function of the area of land available in the appropriate zone.

18. It was also suggested that the Strategic Plan is an “elderly document” and that there

    are anomalies in it. It was further suggested that its authority will be eroded by

    Local Area Plans that are now being prepared. If the Strategic Plan is not

    adequately meeting the community’s interests or if its strategies and designations

    do not properly reflect land suitability, it may well be time for the elected planning

    authority to modify the formal planning documents. That point however has not yet

    been reached and it is for the planning authority and not this Court to re-draw the

    Strategic Plan.

19. The provisions with which we are concerned have fundamental importance to the

    establishment of a suitable and ordered hierarchy of commercial development. As I

    have indicated to ignore these provisions could have fundamental and far reaching

    consequences for expectations based on the Strategic Plan as it is presently drawn.

20. I would make it clear that this appeal has not been decided as a result of any

    compulsion arising out of 4.4(5A) of the Local Government (Planning and

    Environment) Act nor was it necessary to decide whether any “conflict” within the

    meaning of that section has arisen.

21. The absence of any such “conflict” does not necessarily call for an approval in any

    case. The onus of establishing that an application is one that should be approved

    remains with the applicant and, for the reasons I have set out, I find that the

    evidence does not indicate that the proposal sufficiently respects the Strategic

    Plan’s strategy for an established hierarchy of commercial development at the

    locations which it identifies. I am not satisfied that the onus of showing that the application is one that should be approved has been discharged. Accordingly the

    appeal must be allowed.