Powell v Toowoomba Regional Council - [2013] QPEC 20

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Powell & Ors v Toowoomba Regional Council & Ors [2013] QPEC 20

PARTIES:

Kate Powell, Philip Collins, Judith Clanchy, Raymond Edser and Jack Clarence.

(Appellants)

and

Toowoomba Regional Council

(Respondent)

and

Kelly Consolidated Pty Ltd

(Co-Respondent)

and

The Chief Executive administering the Transport Infrastructure Act 1994 (being the Chief Executive, Department of Transport and Main Roads)

(Co-Respondent by Election)

FILE NO/S:

Brisbane No 413of 2013

DIVISION:

Environment and Planning

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

09 May 2014

DELIVERED AT:

Townsville

HEARING DATES:

04 to 08, 19 and 20 November 2013 and 06 December 2013.

JUDGE:

Durward SC DCJ

ORDERS:

1 Appeal dismissed.

2 Development Application approved subject to conditions.

CATCHWORDS:

LEGISLATION:

PLANNING SCHEMES:

ENVIRONMENT & PLANNING – PLANNING SCHEMES – CONFLICT – where prima facie proposed development in conflict with superseded and current planning schemes – whether sufficient grounds to justify approval despite conflict.

ENVIRONMENT & PLANNING – RESIDENTIAL AREA – COMMERCIAL/RETAIL/NON-RESIDENTIAL PROPOSED USE – whether food outlets (café/restaurant/convenience restaurant), supermarket and operational works for advertising signs development – national fast food facilities – whether appropriate in residential area.

ENVIRONMENT & PLANNING – NEED – whether need demonstrated – whether impact on existing centres – community that might be likely to use premises.

ENVIRONMENT & PLANNING – TRAFFIC – PEDESTRIAN SAFETY – where proposed development at intersection of State controlled road (major highway) and sub-arterial road – whether impact on traffic flows, vehicle queuing, emergency stopping provision, and pedestrian safety, unacceptable – whether traffic plan brings forward predicted future traffic and pedestrian planning for intersection.

ENVIRONMENT & PLANNING – AMENITY & CHARACTER – issues of visual amenity, lighting and odour impacts and noise – whether amenable to conditions imposed on approval – whether unacceptable.

Sustainable Planning Act 2009.

Toowoomba Planning Scheme 2003; Toowoomba Regional Planning Scheme 2012.

CASES:

Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPELR 114; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR126; Broad v Brisbane City Council (1986) 2 Qd R 317; Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2006] QPELR 399; Hedley Constructions Pty Ltd v Caboolture Shire Council [2006] QPELR 46; Elborn v Esk Shire Council & Ors [2008] QPELR 24; Gold Coast City Council v Hanwell Pty Ltd [2005] QPELR 198; Green v Brisbane City Council & Anor [2005] QPELR 121; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Isgro v Gold Coast City Council [2003] QPELR 414; Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Project Blue Sky v ABA [1998] 194 CLR 355; Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85; Skateway Pty Ltd v Brisbane City Council (1980) QPLR 245; Tadpoles’ Early Learning Centre v Noosa Shire Council [2008] QPEC 9; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Atkinson v Ipswich City Council & Anor [2006] QPELR 550; Wroxall Investments Pty Ltd v Cairns Regional Council [2011] QPELR 82; All-A-Wah Carpark v Noosa Shire Council (1989) QPLR 155; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750.

COUNSEL:

SP Fynes-Clinton for the Appellants
Ms NJ Kefford for the Respondents
CL Hughes QC and B Job for the Co-Respondent
RS Litster QC for the Co-Respondent by Election

SOLICITORS:

McCullough Robertson Lawyers for the Appellants
Herbert Geer, Solicitors for the Respondent
Norton Rose Fulbright for the Co-Respondents
Hopwood Ganim, Solicitors for the Co-Respondent by Election

Introduction

[1] The appellants are submitters. They have appealed against the decision of the respondent Council made on 21 December 2012 approving a development application lodged by the co-respondent (Kelly Consolidated Pty Ltd, through its town planning agent HPC Urban Design and Planning Pty Ltd), for a development permit for ‘a material change of use for food outlet (café/restaurant), food outlet (convenience restaurant) and supermarket; operational works for advertising signs’ (“the proposed development”), in respect of premises located at 9-17 Herries Street and 1 Cohoe Street, East Toowoomba, being Lots 1-2 on RP 64091, Lots 1-2 on RP 96522, Lot 46 on CPD 1040 and Lots 2-3 on RP 5628 (“the premises”).

[2] The following is an extract from an aerial photograph showing, with some geographical relief, the subject site and the surrounding locality:

[3] The aerial photograph also shows the residential locations of the appellants other than Mr Collins. He resides in a locality beyond the top right of the extent of the extract.

[4] The proposed development is a retail and fast food development including a McDonalds restaurant with drive-through located adjoining the Herries Street and Cohoe Street corner of the site; potentially a KFC fast food restaurant with drive-through located in the eastern corner of the site adjoining Cohoe Street (access provided from Herries Street); and a retail and restaurant building located along the western boundary of the property, to include a restaurant/café, convenience restaurant, shops and a small mini convenience supermarket.

[5] The proposed development is single-storey in height, with landscaping and wall fencing proposed to the north and western boundary. Landscaping is also proposed to the Herries and Cohoe Street frontages. The proposed development is of commercial appearance and character.

[6] Vehicle access and egress is proposed from Herries Street only, with a dual exit proposal to allow both left and right turns into Herries Street. On-site car parking for 111 cars is provided, along with queuing of vehicles in the fast food outlet drive-throughs.

[7] The following is an extract from a street plan that gives another aspect one dimensionally of the site and the surrounding locality:

The development application

[8] On or about 29 June 2012, the co-respondent lodged a development application with the respondent (“the development application”) for the proposed development, which the respondent determined to be a properly made application.

[9] At the time the development application was determined to be properly made, the Toowoomba Planning Scheme 2003 (the “superseded planning scheme”) was in force. However, a new draft planning scheme had been publicly notified in 2011. The superseded planning scheme had been in force from 11 April 2003.

[10] The premises were located within the Mixed Housing Zone under the superseded planning scheme and was ‘impact assessable (Not Preferred)’.

[11] The Toowoomba Regional Planning Scheme 2012 (the “current planning scheme”) was adopted by the respondent on 20 March 2012 and came into effect on 01 July 2012. The current planning scheme replaced eight previous planning schemes which applied to the former local government areas which now comprise the Toowoomba Regional Council local government area.

[12] Under the current planning scheme, the premises is located within the Residential Choice Zone – Urban Residential Precinct, and is impact assessable. The development application includes uses that are prima facie inconsistent with the intent of the Residential Choice Zone.

[13] The Department of Transport and Main Roads (“DTMR” or the “Department”) was a concurrence agency for the development application.

[14] The development application was publicly notified between 13 September 2012 and 08 October 2012 and the appellants made ‘properly made submissions’ about the development application. On or about 12 November 2012, DTMR issued its referral agency response approving the development application with conditions. The respondent issued a Decision Notice approving the development application on 21 December 2012. On the same day the respondent gave written notice of its decision to the co-respondent. On 08 January 2013, the appellants each received a letter dated 04 January 2013 from the respondent, being written notice of the respondent’s decision.

The site and the neighbouring locality

[15] The premises consist of seven individual and contiguous lots, which are currently occupied by six separate detached dwellings and associated out- buildings. There are established trees predominantly along the Cohoe Street frontage and to the rear of the lots. The site has a fall of approximately six metres in a south-westerly direction across the site. The intersection of Cohoe Street and Herries Street is a major intersection, Cohoe Street being a State Controlled road which forms part of the Warrego Highway.

[16] The premises is in an area with a mix of land uses. The immediately adjoining areas and the area across Herries Street from the premises is predominantly residential development comprising detached houses but there is in the vicinity a mixture of dwellings, multiple dwellings, educational facilities, medical facilities, short term accommodation, community uses, offices and non-residential uses including cancer care accommodation, a charity outreach centre and a service station. St Vincent’s Hospital and a range of community facilities associated with the hospital and the Toowoomba Grammar School are located further to the west of the premises.

Main issues

[17] The appellants contended that there were issues about each of the following: character and amenity (including visual amenity, lighting, odour and noise), town planning, economic need and traffic considerations. Whilst I will deal with each of these considerations, the issues that I identified in the course of the hearing as being of critical importance were considerations of economic need, traffic and potential conflict with the planning schemes.

[18] The focus for the latter considerations was, generally but not exclusively:

(a) the economic need experts’ evidence, in the holistic context, about the location of the premises and it providing for a need not otherwise catered for by existing centres; and the community that might be expected to use the premises;

(b) the traffic experts’ evidence about Cohoe Street (Warrego Highway) at its intersection with Herries Street; the treatment of turning lanes; the impact on nearby residents on Cohoe Street and Herries Street; potential risks to pedestrians crossing Cohoe Street in the vicinity of the intersection; the volume of additional traffic generated by the proposed development; and the impact of the premises on traffic, particularly heavy vehicles, ascending the Toowoomba Range Road and entering Cohoe Street; and

(c) potential conflict with the planning schemes, in the context of a commercial or mixed use that was located in a residential area/zone or Mixed Housing Zone

[19] Counsel each had the opportunity to focus on the three considerations, that I identified as being critical, in their written and oral submissions.

Grounds of Appeal

[20] I have, in the course of discussing the evidence, identified at or near the beginning of each section and in summary, the issues that constitute the grounds of appeal. Accordingly, I do not need to further state them compendiously under this heading.

Extracts of planning schemes

[21] Extracts of the superseded planning scheme and the current planning scheme, relevant to the issues in this appeal, are at ANNEXURE ‘A’.

Evidence

[22] In the course of the hearing I heard evidence from experts and lay persons. One of the appellants, Mr Collins, gave evidence and I also received evidence from the general manager of the co-respondent, Mrs Leavy. I also made reference to statements obtained from community members.

[23] The experts in each of the specialist planning and environment disciplines were as follows:

Visual amenity Mr Bullen appellants

Mr Hassall co-respondent

Noise Mr King co-respondent

Mr Subkey appellants

Lighting and Odour Mr King co-respondent

Town planning Mr Bullen appellants

Mr Schomburgk co-respondent
Mr Buckley respondent

Economic need Mr Shimmin co-respondent

Mr Brown respondent

Traffic Mr Beard co-respondent by election

Mr Holland                co-respondent
Mr Pekol  respondent
Mr Camillieri              appellants

Amenity and Character

[24] There are a number of amenity considerations in this appeal: visual amenity, noise, lighting and odour.

(a) Visual Amenity

[25] The visual amenity experts, Mr Bullen and Mr Hassall, prepared one joint report.

[26] The grounds of appeal relevant to visual amenity contend that the respondent failed to consider the residential nature of adjacent properties and the visual amenity impacts the proposed development would generate in the surrounding locality for residents, tourists, visitors and passing vehicle and pedestrian traffic.

[27] The experts agreed that the relevant visual amenity issues were: the overall appearance, scale and the non-residential visual character of the proposed development; the appearance of the western and northern walls of built form adjacent to the adjoining residential properties; the visibility of plant and equipment on the roof of the built form; the height and appearance of retaining walls; the likely visual impact of car parking areas and proposed signage; and the adequacy of proposed landscaping on the western and northern boundaries, to soften the built form.

[28] The experts agreed that the roof top plant and equipment issue could be resolved through conditions and the appearance of car parking areas was amenable to softening by landscaping of road frontages.

[29] There were several areas of disagreement: Mr Bullen considered that the locality of the premises was residential. He considered it necessary to look at the reasonable expectations of residents. He considered the proposed development was exclusively commercial and retail and not residential. He did not consider that it could be characterised as “Mixed Use”. He considered the proposed development to be incompatible with the surrounding character of the locality. The use in his view was more suitable to “Centres” and its location was not sympathetic in scale and intensity. He was critical of the walls proposed for the western and northern boundaries and the prominence of signage, vehicle parking and rooftop plant and equipment. He considered the proposed development to amount to a fragmentation of appropriate development. Mr Hassall considered that the proposed development was one of mixed scale and character. In so far as the proposed walls were concerned, he considered that they were terraced, landscaped and provided screening and that the northern wall was visible only from within the site and the western wall visible only to neighbours and noted that it was proposed to be treated by appropriate landscaping. He considered the signage and vehicle parking were not unreasonable but considered the tall fast food sign should be relocated.

(b) Noise

[30] The noise experts, Mr King and Mr Subkey, prepared three joint reports.

[31] The grounds of appeal relevant to noise amenity contend that there is conflict with the current planning scheme with respect to conservation of amenity and lifestyle of residents, as required by the purposes of the Residential Choices Zone Code; unacceptable noise levels during construction and through increased vehicle movements; and the extent or length of operational hours of the supermarket and food outlet components of the proposed development.

[32] The operational hours of the various components of the proposed development, including hours for refuse collection and service vehicle movements, the construction of built form noise controls, including acoustic barriers, the use of the walkway of the western boundary retail building and the location and installation of roof mounted plant and equipment were the subject of agreement between the experts.

[33] The preparation and implementation of a Noise Management Plan was recommended.

[34] The noise experts had no areas of disagreement, other than about the potential effects of patron or customer behaviour, a matter about which Mr King and Mr Subkey disagreed, in relation to patron and music noise in the car park and, associated with this, the relevance of the criteria adopted by each of them to assess noise in the day and evening periods. Mr King had supervised a noise modelling assessment. However the experts agreed that the modelling provided an acceptable representation of the proposed development. Mr King considered that plant and equipment noise compliance was a matter for detailed design and construction and was amenable to appropriate conditions. Mr Subkey considered that compliance measurements and certification should be part of the conditions of approval.

(c) Lighting and Odour

[35] Mr King was the only expert to provide evidence about these matters.

[36] The grounds of appeal relevant to lighting and odour referred to fixed lighting in headlight glare and to odour, as potential adverse amenity impacts.

[37] Mr King referred to proposed perimeter landscaping and acoustic barrier fences to the northern, southern and western boundaries and identified that the residences opposite the premises in Herries Street had screen fencing/landscaping that would assist in the control of headlight glare from vehicles departing from the premises at night. His opinion was that headlight glare will not result in adverse amenity impact at surrounding residences.

[38] The odours potentially identified were from cooking, refuse and stock transport vehicles (the latter by reason of the proposed traffic signals at the intersection of Cohoe and Herries Streets). With respect to the cooking and refuse odours, Mr King referred to the conditions imposed on the proposed development by the respondent to prevent adverse odours. He did not need to analyse that issue any further. With respect to the stock transport vehicles, he did not consider there would be any significant change in odour, albeit there being no quantitative data upon which to base that opinion, even with the installation of traffic signals at the intersection.

Town Planning

[39] The grounds of appeal relevant to town planning are, in summary:

· conflict with the superseded planning scheme DEO’s 1, 2, 3 and 4; non-achievement of the intent of the Mixed Housing Zone and the proposed development being a “Not Preferred” use in the Assessment Tables; the proposed development not meeting the Acceptable Solutions in the Development Works Code and not satisfying the Parking, Transport and Servicing Code; and the failure of the respondent to give, as it was entitled to do, sufficient weight to the current planning scheme.

· Conflicts with the current planning scheme outcomes under the Strategic Framework Part 3, compromise of Strategic Outcome 5 (out of centre land use), uses inconsistent for the Residential Choice Zone and Residential Choice Zone Code, conflict with the Overall Outcome’s and Acceptable Outcome’s of the Centre’s Activities Code; and non-satisfaction of the requirements of the Transport Access and Parking Code.

· Insufficient grounds were given by the co-respondent to justify the approval despite conflict with each of the planning schemes; the omission from the Decision Notice of any reasons for the decision in the context of the conflicts, nor any statement of sufficient grounds to justify the decision (in accordance with s 335 SPA); and if the rules under s 336 SPA had been applied, the proposed development should have been refused.

[40] The town planning experts, Mr Bullen, Mr Schomburgk and Mr Buckley, prepared one joint report.

[41] The experts agreed that:

· issues to do with the Development Works Code are matters that are likely to be capable of resolution by conditions on the approval;

· issues to do with the Parking and Access Code, and the Parking Transport and Servicing Code are matters for other experts, but may have a town planning impact;

· issues to do with air quality are matters for other experts, but are likely to be capable of resolution by appropriate conditions of an approval;

· matters relating to noise, lighting and parking, are capable of resolution with the imposition of appropriate conditions.

· issues of traffic, access and parking are being dealt with by the traffic experts.

[42] The experts were in disagreement with respect to the following, which were identified as the fundamental town planning issues in the appeal:

§ whether there is an economic and planning need for the proposed development;

§ if there is such a need, whether the subject site is an appropriate location for the development, or whether other sites including but not necessarily limited to those appropriately zoned (for example, in an existing centre) are capable of satisfying that need;

§ whether the proposed development will negatively impact on the existing centres and the planned hierarchy of centres, and considerations of hierarchy generally;

§ whether the proposed use in this location represents an intrusion of an incompatible land use in which the associated impacts cannot be appropriately mitigated;

§ whether the proposed development has an adverse impact on the amenity of the surrounding locality and is within the reasonable amenity expectations of surrounding residents;

§ the consistency of the proposed development with the respective land use planning policies evident under the superseded planning scheme and the current planning scheme; the extent to which a change or shift is evident in those policies between the two planning schemes; and whether the proposal is supportive of that shift;

§ whether sufficient grounds exist to warrant approval of the proposed development notwithstanding conflicts with both the superceded planning scheme and the current planning scheme.

(a)Mr Bullen

[43] Mr Bullen expressed the view that the proposed development was out of character, not compatible and not sympathetic to the surrounding area. ‘Character’ involved more than scale: that is, parking, landscaping, built-form and signage. He considered that the proposal looked like a commercial development regardless of any ameliorating treatment that might be applied. He said that the Hospital Support Precinct was an ‘out of centre use’ akin to an ‘institutional area’.

Mr Schomburgk(b)

[44] Mr Schomburgk described the city as a recognised ‘service centre’. The city was a compact urban area - the journey to the CDB was a 5 to 10 minute drive from any point.

[45] The residential area was not ‘homogenous’, there being mixed uses in the surrounding area. He said there was no alternative site and there would be no impact on the hierarchy of Centres.

[46] The proposed development was a single integrated facility, although comprising three separate buildings, one with a narrow end to the street. The scale of the development was not inconsistent.

[47] Insofar as traffic was concerned he thought that an increase in traffic numbers would probably adversely impact on residents, but could be satisfactorily dealt with. He agreed that there was a sign at the intersection that directed traffic going to the CDB to use Herries Street.

Mr Buckley(c)

[48] Mr Buckley spoke of ‘scale’ and that it did not equate to ’bulk’. He said that developments to the north and north-west of the site supported a view that the proposed development had characteristics of the surrounding area and was compatible with them.

Economic need

[49] The economic need experts, Mr Shimmin and Mr Brown, prepared one joint report.

[50] The grounds of appeal relevant to economic need contend that there is no demonstrated planning need for the proposed development, that its establishment would be premature and adversely affect established centres; and hat the co-respondent had not demonstrated any economic need for the proposed development by reference to the current planning scheme.

[51] The experts agreed with the positions adopted by the respondent and the co-respondent in relation to economic need.

[52] Whilst there was disagreement on technical matters, the opinion of the experts was that there was agreement that the proposed development would enhance community well-being through the provision of additional facilities without undermining the provision of facilities within other centres. Their joint agreed position was:

· There is an unmet need within the identified trade area (and eastern Toowoomba more broadly) for the proposed uses within the premises, particularly in the area of casual dining and take-away food by increasing provision, choice and convenience of facilities;

· The need met by the proposed development includes the needs of Trade Area residents, workers and visitors to the area, and in doing so compliments and supports the diverse range of non-retail facilities located within the area;

· The need for the proposed development cannot be reasonably accommodated within any existing centre;

· The subject site is an appropriate location for provision of the types of uses comprising the proposed development;

· Approval and development of the proposed centre would not undermine the viability of any existing, designated or approved centres within the centre’s network;

· The proposed development would enhance localised employment opportunities; and

· The proposed development in association with a diverse range of non-retail facilities within the area is likely to provide an impetus for future increases in residential facilities on surrounding or neighbouring sites.

(a) Mr Shimmin

[53] Mr Shimmin said that other centres were not suitable. He agreed that the development was primarily a ‘food cluster’. The potential users were residents, students, workers and others (visitors). However, he had not spoken to anyone at the grammar school or hospital management.

[54] Mr Fynes-Clinton cross-examined Mr Shimmin about the other food outlets in the Trade Area and the driving distances to other food outlets outside the Trade Area.

[55] Mr Shimmin referred, over objection, to potential occupancy of the facilities in the proposed development: McDonalds having executed an agreement to lease and others having made expressions of interest.

[56] The latter evidence was received in the general context of there being operator interest in the proposed development, not in the context of there being any third party interest that might be considered in the determination of the appeal. The evidence is irrelevant to the latter.

Mr Brown(b)

[57] Mr Brown described the development as a ‘convenience’ or ‘top-up’ facility.

[58] He considered that the Trade Area population (said in other evidence to be about 10,700) was likely to now be stable. He agreed that there were a number of equivalent outlets within about 5 to 7 minutes drive in any one direction from the site. He described ‘need’ as being ‘what people want’ ands it’s location. I infer that the ‘stability’ really reflects the current demographic circumstance, rather than any permanent situation.

(c) Mr Bullen

[59] Mr Bullen is not specifically qualified in this area. He is a town planning expert. He gave evidence about need as an adjunct to or component in his planning evidence. Whilst there are overlaps between disciplines and generally an observation drawn from another discipline is not objectionable if it is of the nature of general observation or given to provide context, it is nevertheless less persuasive than evidence given by an expert in a particular discipline. It is for that reason that I prefer the evidence about economic need, given by both Mr Shimmin and Mr Brown.

Traffic

[60] The traffic engineers, Mr Camillieri, Mr Pekol, Mr Holland and Mr Beard, prepared four joint reports.

[61] The grounds of appeal were that the respondent was not entitled to approve the original Traffic Impact Assessment in lieu of the amended version, prepared in response to the information request made by DTMR; that the proposed development would have unacceptable traffic impacts on the local road network in the context of safety; the introduction of heavy vehicles and service vehicles in a residential area; the proposed turning lanes and traffic circulation and congestion; unacceptable traffic impacts on the State-controlled road network, including the installation of traffic signals at the intersection of Cohoe and Herries Streets.

[62] The main issue identified in the hearing of the appeal is the impact of the proposed development on the intersection of Cohoe Street and Herries Street, including turning lanes, queuing and pedestrian safety.

[63] The first three joint reports in effect trace the development of the intersection redesign; the Herries Street access/egress for the premises; and the maintenance of traffic flow on the southbound lane of Cohoe Street.

[64] Mr Pekol, Mr Holland and Mr Beard substantially, if not totally, agreed on the proposals to deal with traffic issues. Mr Camillieri did not so agree. He maintained that pedestrian safety issues were a significant impediment for the proposed development. He disagreed with the other engineers on this matter and upon the length of the turning lane on Cohoe Street (which accommodates vehicle queues).

[65] The fourth joint report arose out of differences of opinion about traffic analyses, if I can use that term in a generalised sense, as between Mr Camilleri and Messrs Beard, Pekol and Holland. It focussed on the length of the right hand turning lane proposed from Cohoe Street south-bound into Herries Street.

(a) Mr Beard

[66] The queue lane on the highway was always intended to be 100 metres. So far as queuing was concerned, 38% of the queue would be on the premises.

[67] There were options for residents in Herries Street to avoid traffic queues: for example, re-routing around the block.

[68] Mr. Beard made several corrections to the traffic volume figures and analyses. A range of estimates was nevertheless possible.

[69] The development was not ‘unacceptable’ in the traffic context, although there were ‘undesirable’ aspects: for example, the entry point to the premises would be better if it were possible to be located further from the intersection of Harris Street with the highway. Of course, that is not possible as a matter of fact.

[70] The gradient south-bound on Cohoe Street was higher than desirable, but not unacceptable.

[71] The proposed treatment of the southern lane on the highway, whilst ‘undesirable’, was safer than what existed now. Pedestrian movements would increase. A full width crossing on Cohoe Street would be desirable, but it was not possible to do this and is not acceptable.

[72] Significantly, he considered that the steps from the premises onto Cohoe Street should be removed; that a long fence be erected (to channel pedestrian movement) along Cohoe and Herries Streets. These should be conditions of any approval.

[73] The proposals for the intersection brought forward works “that were inevitable, if undesirable”, by some 10 years.

[74] The pedestrian refuge was an important component of the design. The intersection was ‘atypical’ and challenging. Free flow of traffic up the range road was necessary. Lights were necessary. The increase in pedestrian movements was specifically associated with the development.

[75] Mr. Beard distinguished the terms ‘undesirable’ and ‘unacceptable’. The SIDRA analysis was the best available, even if not perfect. The workbook process was not ideal.

(b) Mr Holland

[76] Mr Holland did not think that large trucks were likely to turn into Herries Street. The construction of the pedestrian refuge was appropriate. He supported the recommendation that the service bay on the site be moved to the end of the KFC facility.

[77] He did not consider that queuing to access into the premises would be a significant detriment to residents in Herries Street. Similarly, he considered that there was no unacceptable impact on residents in Herries Street, who were able to reverse out of residential driveways.

[78] He supported the adjusted proposal for the right hand turn into Herries Street from Cohoe Street and the repositioning of the truck emergency stopping bay on Cohoe Street beyond the Herries Street intersection.

[79] He said in cross-examination that there would be an increase in pedestrian use of Cohoe Street. However, he said that walking across Cohoe Street now was ‘life-threatening’ and hence the risks to pedestrians existed now.

[80] He also said in cross-examination that he did not know of any other example of a half-protected crossing (such as recommended here) over a major highway in Australia. However, he considered that the non-signalled lane was required, to avoid large trucks having to stop on an incline at the top of the range and along Cohoe Street prior to the intersection.

[81] In re-examination, he said that traffic lights would increase the sense of safety of drivers.

Mr Pekol(c)

[82] Mr Pekol said that the existing traffic situation was not safe. That was also his view with respect to the development being completed. He considered that a balancing exercise was required with respect to pedestrian and vehicle safety issues.

[83] Mr Pekol said that the existing traffic situation was not safe. That was also his view with respect to the development being completed. He considered that a balancing exercise was required with respect to pedestrian and vehicle safety issues.

[84] The installation of a signalled crossing was supported by the number of heavy vehicles, fog, pedestrian use and the characterisation of the proposed development as a ‘destination’.

[85] There was evidence about the ‘workbook’ that was completed by Mr. Pekol in the course of his analysis of traffic movements in the through-lane south on Cohoe Street and the interpretation of the scores given to the itemised information in the ‘workbook’.

[86] He did not consider the existing situation to be safe and said it would also not be so with the development. There were safety issues other than with pedestrians – trucks stopping on the south-bound lane on Cohoe Street and trucks at the crest of the range road.

[87] The signalling of the intersection was favoured, in light of heavy vehicle movements and numbers, the fog and the attraction of the premises. He considered a change in driver behaviour and routes taken was reasonable.

Mr Camilleri(d)

[88] Mr. Camilleri had different conclusions about the SIDRA analysis primarily related to increased queuing length on Cohoe Street, assumptions about the gradient on Cohoe Street and the likely path of travel of heavy vehicles, including increased numbers turning right into Herries Street from the north.

[89] His reference to the SIDRA analysis led to the preparation of the fourth joint report, to which I will refer shortly. He had not subsequently made analysis of the additional material provided by Mr. Beard. He considered the uncertainty of driver behaviour made “Keep Clear” areas (as proposed at the entry to the premises, on Herries Street) to be unacceptable.

[90] He considered that there were several impacts upon the safety and efficiency of vehicle movements, including exiting and entering residential properties. Re-routing would involve entry onto the Warrego Highway. All of that also forced upon residents a change to current and long existing rights.

[91] The incidence of fog on the range was frequent enough to warrant consideration, from the perspective of reduced visibility and headlight range.

[92] He considered that the ‘half-crossing’ of the Warrego Highway was unusual. He was not aware of such a measure elsewhere in Australia.

[93] In cross-examination he agreed that one would not expect traffic on a sub-arterial road to remain static. The volume of 3,500 vehicle movements a day was more like a ‘collector road’: that is, significantly lower than a sub-arterial road. He agreed that Herries Street was ‘signed’ as a preferred route from the highway to the CBD.

[94] He had not interviewed residents in Herries Street about their positions concerning access to their residences. He said he had not analysed the access arrangements to the premises.

[95] He disagreed with Mr. Beard’s analysis of traffic movements. He considered the proximity of the proposed development to the highway and the “Keep Clear” zone as the basis of his disagreement.

[96] In cross-examination by Mr. Litster QC, he agreed that “Keep Clear” zones were a regular device in the manual of traffic controls and were required to be obeyed. However, he said that high access pressure points in sensitive locations should be avoided. He had not analysed the right hand turn from Cohoe Street into Herries Street.

[97] Whilst he accepted that the intersection would in due course – within the next 10 years – be signalled, a half signalled highway was unconventional.

[98] Mr. Camilleri opposed approval despite the proposed functional layout plan. He explained this in terms that included the following: there was presently very little demand for pedestrian movement across the highway; delays to that movement would give rise to safety concerns; the phasing functions of traffic changes would create gaps in traffic flow; but such a re-design would nevertheless in the future, benefit left hand turns from Cohoe Street, at the intersection.

[99] He accepted that his view was opposed to that of the other three traffic experts. The difference was one of professional judgment.

Mr. Camilleri gave evidence about other issues – queuing, driveways, the expectation of vehicle numbers on the premises and the incidence of fog on the highway.

In re-examination, he said that the SIDRA analysis was not essential. Vehicle movements, in a ‘free-flowing’ context, were ‘group (convoy) movement’. He considered the entry to the premises as a form of ‘intersection’. He iterated his view that the traffic volume on Herries Street was very much lower than customary for a sub-arterial road.

Other evidence

One of the appellants gave evidence: Mr Collins, a resident of some thirty-three years at 1A Bridge Street, Mt Lofty, Toowoomba and the proprietor of the Range Shopping Centre in the near vicinity of the premises. The general manager of the co-respondent, Mrs Leavy, gave evidence.

(a) Mr Collins

The statement of evidence of Mr Collins was tendered and he gave further oral testimony in examination-in-chief and was cross-examined.

Mr Collins primarily objected to economic need and to traffic issues. With respect to need, he identified his home as being within the East Toowoomba Trade Area and said in his witness statement that he was aware of a number of food catering outlets not identified or considered by the experts in their discussion of competition in the Trade Area: they included service stations with convenience stores attached. He did a personal inspection of the Trade Area and identified about ten or twelve further food outlets that he had not previously been aware of and prepared a list of food outlets and convenience store facilities that he had recorded during the course of his inspection. He referred to having made a journey from his home to the 24 hour McDonalds fast food outlet at Margaret Street, Toowoomba, in heavy traffic, the journey taking five to six minutes.

In his list of takeaway food outlets in the trade area, 37 were identified, together with six places just out of the catchment area and two under construction.

With respect to the traffic issues, he expressed particular concern about the fog conditions which he said regularly affect the locality. He referred to his experience of fog being particularly noticeable at the top of the Toowoomba range, including what can be characterised as “pea-souper” fogs. He produced a number of photographs of a fog which he described as a more ‘regular type’ of winter fog.

In oral evidence he said that he and other appellants had obtained the community member statements. There were 7 existing McDonalds facilities in the city. He said that the economic impact of the proposed development would not diminish his business and agreed that he had not objected to other developments, such as supermarkets, in the city.

His objection to the proposed development was expressed in this way: The proposed development was at the gateway to the city; there would be a loss of amenity; a loss of character homes and a commercial development in a residential area; and there was a safety issue for pedestrians. He had calculated a time of 7 seconds to cross half the width of Cohoe Street at the intersection and a time of 7 seconds to drive from the top of the crest of the range to the intersection.

(b) Mrs Leavy

Mrs Leavy is the general manager of the co-respondent. She made enquiries about the premises referred to in the evidence of Mr Collins. Of the 37 food or restaurant outlets identified by Mr Collins as being additional to those considered by the economic need experts, she described seven as being outside the Trade Area, four as service stations, seven as being within other premises (motels, hospital and the like) and two as being supermarkets: that is, 20 of the 37 were outside of the Trade Area or did not fit the definition, used by the economic need experts of “cafes or restaurants” or “take-away food services”.

With respect to the evidence of Mrs Leavy and Mr Collins, I will discuss that and express my views about it in my observations, made in the conclusion of my assessment.

The Community statements

A number of people (mainly residents) were surveyed and completed pro forma type documents primarily headed “Lay Witness Statements/ Residents”. Most are either two to three pages in length (the pro forma part plus a section completed by the resident under the heading “My Statement”) or four to five pages (as above, but the last one or two pages being headed “Trade Area and/or Plan”). All of the statements are variously dated, between 14 September 2013 and 20 October 2013. A number of people surveyed are residents of Herries Street. A few are clearly not residents of Toowoomba.

There were 257 statements. They were part of the materials for the consideration of the court, subject to the caveats that the statements were not the subject of cross-examination and that they were made in response to the type of pro-forma document distributed to them for the stated purpose.

With respect to the views expressed by the residents, they fall variously into the following categories:

Subject Matter Number of Statements Percentage of Deponents

Noise and odour 32 12.45%

Traffic 204 79.37%

Need 219 85.2%

Visual amenity 51 19.8%

Conflict with planning scheme 3 1.15%

Health and menu 20 7.78%

Crime and bad behaviour 17 6.61%

Loss of personal employment 6 2.33%

Quality of life 9 3.51%

Irrelevant views 4 1.55%

Discussion

The community statements were received in evidence with the caveat that they were untested by cross-examination and were expressions of views of persons with divers interests in the proposed development. To that extent the views expressed in the personalised parts of the statements, whilst undoubtedly honestly held by the deponents, they should be treated with some caution.

However, the Table above, prepared by me, does highlight two of the three main issues identified by me, as matters of concern for these members of the community, namely Traffic and Economic Need. One would not expect the deponents to identify discreet planning issues as a matter of concern.

Those two significant categories in the Table have been addressed by me in some detail in the judgment and form a material consideration in the resolution of the appeal.

Notifications of sufficient grounds

The respondent and the co-respondent had provided Notification of Sufficient Grounds, in respect of the conflict issue, in the event that I was to find that the decision of the respondent to approve the Co-respondent’s development application was in conflict with the planning schemes or either of them.

The following is my summary of the content and thrust of those submissions.

(a)Respondent

It was submitted:

· That Herries Street was a sub-arterial road in the local road hierarchy and was the designated access route from the Warrego Highway to the city CBD and areas to the east;

· The locality was of a mixed character and comprised residents, workers and visitors to divers facilities;

· There are limited shops or food outlets in the locality, which contains a mix of residences and non-residential facilities;

· The proximity of the Warrego Highway, a significant State-controlled road, reduced residential amenity and limited vehicle and pedestrian movement across Cohoe Street;

· That there are beneficial planning considerations: the proposal was responsive to the Strategic Framework of the current planning scheme; it was consistent with the South East Queensland Regional Plan 2009; and furthers the DEO’s in the superseded planning scheme;

· That the proposal supplied a genuine unmet need; did not compromise the viability of existing centres approved or designated; benefited residents and visitors to the locality; complemented the non-residential facilities; provided employment opportunities; increased the choice, convenience and range of available goods and services; and supported the development of higher density residential uses in the locality; and

· That it did not result in any unacceptable amenity impacts.

(b) Co-respondent

It was submitted:

· that there was an economic and community need, beneficial to the relevant communities, namely some 10,700 people in the Trade Area, people visiting or attending at education, hospital, health and accommodation facilities in the locality and passers-by on Herries Street and the Warrego Highway;

· There would not be any unacceptable impact on other centres or on the Centres’ hierarchy or on the character or amenity of the locality;

· There was a planning need for the proposal, there being no practically available land within a designated Centre within the identified Trade Area;

· The site locality is compromised for residential use by traffic noise, accords with planning principles in that it is within a cluster of non-residential activities, offers choice in dining options and provides a neighbourhood focus;

· Traffic proposals provided benefits in the way of improved pedestrian safety on Cohoe Street, a more efficient intersection at Cohoe Street and Herries Street and upgrades the intersection at an earlier time in the traffic planning context and with cost savings to the community; and

· The proposal would offer employment opportunities, training and work experience across a range of ages.

Submissions

Whilst I have read and considered the submissions of counsel and reviewed the transcript of their respective oral submissions, I will only need to address in any detail, by reference to submissions, the three issues that I identified as being critical in the hearing.

A. Economic need

(a) Respondent

It was submitted that the economic need experts agreed that there was an unmet need in the identified Trade Area, for residents, workers and visitors, the absence of any undermining of the viability of existing, designated or approved centres within the centre’s network and that the proposed development cannot be reasonably accommodated within the existing (zoned) Centres.

It was noted that Mr Bullen, in the course of giving evidence about town planning, disagreed and to some extent relied on the views of residents expressed in the survey statements. It was submitted that whilst Mr Bullen made observations about the issue of need, it is not specifically within his area of speciality.

It was submitted that the part of the trade, in its commercial sense, that comes from outside the Trade Area does not demonstrate conflict.

(b) Co-respondent

It was submitted that need meant, in the relevant context, ‘latent unsatisfactory demand’ and that need is a ‘community need’.

It was submitted that there was no national fast food chain in the Trade Area. Reference was made to the diversity of the community of the area. Mrs Leavy’s analysis was also referenced. It was submitted there were no designated Centres that had the potential to accommodate the proposed development and that the proposed development provided a community benefit.

(c) Appellants

It was submitted that there was no case authority that a “need” arises merely because of matters of convenience; that the nature and extent of conflict with planning schemes is a relevant factor; that the view of residents ought properly be taken into account; that mere ‘additional choice’ does not equate to an ‘unmet need’; that there must be a ‘real and material deficiency’ in the provision of the thing: that is, a further fast food outlet, restaurant and retailshop as proposed in the development to justify approval despite conflict with the planning schemes; and that the evidence does not support that there is a material need in the planning sense.

B. Traffic

(a) Respondent

The proposed traffic design, including signalisation of the north bound lane on Cohoe Street, improves current pedestrian arrangements. The queue length in Herries Street was adequate for likely traffic movements. Three of the engineers agreed that the Cohoe Street turning lane would satisfactorily accommodate forecast queues. The potential impact on residential access in Herries Street is acceptable, even if in some cases there might be inconvenience. The latter was offset by benefits provided by traffic signals at the intersection of Herries and Cohoe Streets.

It was submitted there were no traffic engineering reasons why the application should be refused.

(b) Co-respondent

It was submitted that three of the engineers were in agreement; there would be an improvement in pedestrian safety achieved by the intersection design and traffic signals; only the southbound lane on Cohoe Street would be without traffic signals, allowing unimpeded traffic flow from the top of the Toowoomba Range Road. Queue lengths were manageable and acceptable. The “Keep Clear” area at the access/egress point to and from the premises in Herries Street could be expected to be operated as intended; and existing traffic flows would benefit from the traffic proposals. It was submitted that the residential access impacts were acceptable and that benefits by way of a balancing exercise would flow from the traffic management plans.

It was submitted that the inevitability of the intersection reaching capacity without the proposed development proceeding, in ten years’ time, was such that changes now were acceptable and that a benefit would flow from the necessary plans to upgrade the intersection being brought forward.

(c) Appellant

It was urged in submissions that a “public interest” approach was appropriate rather than an approach that just dealt with mere “acceptability”. It was submitted that the pedestrian movement analysis was unreliable and the safety of the “half-road” signalisation at the intersection was questionable. It was submitted that a real pedestrian hazard would be created by the proposed development proceeding.

It was submitted on behalf of the appellants that the level of impact on Herries Street residents, the queues in the turning lanes and the efficacy of the “Keep Clear” area were questionable, as was the performance analysis (SIDRA) undertaken with respect to the intersection.

(d) DTMR

The Department identified as the main issue the question whether the proposed development would have an “unreasonable or intolerable” traffic impact.

The respondent was responsible for Herries Street as a “trunk collector” road that adjoined Warrego Highway. The Department’s view is predicated on achieving an acceptable “safe and efficient” operation of the intersection. It’s position on any approval was that southbound lane on Cohoe Street was not to be signalled; and that an upgrade of the intersection and related works, at the cost of the co-respondent, as recommended by the three traffic experts who were in agreement, was necessary as a condition.

It was submitted that the turning lane length and queuing issue (on Cohoe Street) was dealt with in the traffic plan in an acceptable way and that pedestrian safety would be enhanced by the part signalisation on Cohoe Street and the pedestrian refuge proposed for the intersection. The emergency stopping area in Cohoe Street, for vehicles arriving there from an ascent of the Toowoomba Range Road, could be accommodated in a replacement area away from the turning lane into Herries Street and any vehicle queues. It was submitted that the conditions proposed by the department were such as to deal with traffic issues in an acceptable way.

C. Sufficient Grounds to justify approval despite conflict

(a)Respondent

The respondent submitted the matters to which I have referred under the heading ‘Notifications of Sufficient Grounds’ (supra), with reference to the evidence identified as supporting the grounds.

Co-respondent1.

The Co-respondent submitted the matters to which I have referred under the heading ‘Notifications of Sufficient Grounds’ (supra), with reference to the evidence identified as supporting the grounds and the opinion expressed by Mr Schomburgk.

Appellants2.

The appellants submitted that the evidence did not support grounds with respect to need or adverse impacts; that a lack of adverse impacts was not of itself a ground; that the submissions of the respondent and the Co respondent impermissibly constituted a ‘rewriting’ of the planning strategy in the two planning schemes; that the current planning scheme provided for commercial and service uses in the Hospital Support Precinct but not in the Residential Choice Zone; and that approval of the proposed development would not be in the public interest.

Discussion – evidence and submissions

A. Construction of planning schemes

The construction of a planning scheme against the Act is a matter for judicial determination. The proper approach is for the court to assess the development application against the relevant provisions of the planning scheme in the context of the legislation.

In Grosser v Council of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of this court to matters of planning policy, describing it as a self-limiting approach, at least when considering issues of town planning. Her Honour wrote:

“It is not this Court’s function to substitute planning strategies…for those which a Planning Authority in a careful and proper as to adopt (sic)…”

and at:

“[44] It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid…”

In Westfield Management Ltd v Pine River Shire Council & Anor (2004) QPELR 337, Judge Britton SC wrote with respect to the construction of planning schemes, the following:

“[18] I accept that the following principles apply to the construction of Planning Schemes:

(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;

(b) They should be construed as a whole;

(c) They should be construed in a way which best achieves their apparent purpose and objects;

(d) In the light of the proscription against prohibiting development contained in IPA (s 6.1.2(3));

(e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;

(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;

(g) A Strategic Plan should be read broadly and not pedantically;

(h) Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;

(i) A conflict alone may not have the effect of ruling out a particular proposal;

(j) Implementation Objectives must be read sensibly and in context. They are but a function of the principle (sic) objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent.”

(Citations have been omitted from the passages).

If there is an apparent or perceived ‘tension’ as between planning schemes, that is a matter for construction by the Court.

B. Two planning schemes?

The development application was lodged with the respondent a matter of three days before the superseded planning scheme ceased to have effect. Hence the two planning schemes fall to be considered in determining this appeal.

I am required to construe the two planning schemes broadly, holistically and in a practical way: Westfield Management Ltd v Pine Rivers Shire Council (supra). It is for the Court to construe a planning scheme, not the town planners or others.

The appellants contended, in effect, that appropriate weight should be given to the two planning schemes by affording little or no weight to the superseded planning scheme; and giving full weight to the current planning scheme. The Respondent’s position reflected a consideration of the two schemes as being appropriate. It was conceded that whilst arguably there was conflict. There were sufficient grounds to justify approval. The Co-Respondent’s position is that the proposal is supported by the current planning scheme, and, inferentially, that there is no conflict with it; and that if there is conflict with the superseded planning scheme, there were sufficient grounds to justify approval.

I will deal with the issue of conflict and sufficient grounds separately (infra).

C.The character and amenity issues

The concept of amenity is one which is subjective in nature. In Broad v Brisbane City Council (1986) 2 Qd R 317, de Jersey J (as he then was) wrote, at page 326:

“…the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s objective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one’s perception of amenity.”

“Character” is to be broadly construed. In Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73, Judge Robertson wrote:

“[40] ‘Character’ when used in this planning scheme and in others has a wide meaning and must be considered in the context in which the term is used in the scheme…”;

and

“… character is (relevantly) defined in The Macquarie Dictionary as ‘the aggregate of qualities that distinguish it one…thing from others.’”

In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112, Dodds DCJ wrote:

“[40] A person’s right to put their land to any lawful use they wish is, in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in the town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness … a proposed development will often affect existing amenities. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not affected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in light of all of the evidence about the subject …”

In Tadpoles’ Early Learning Centre v Noosa Shire Council [2008] QPEC 9, Judge Wilson SC (as he then was) referred to amenity in terms of the nature of the proposed development. In that case the proposed development was described by his Honour as a “very large building indeed, one which is quite out of character with the other buildings in the neighbourhood” in an area which had, as he also said “…the general appearance of a quiet street of detached houses.”

In so far as any proposed noise management plan is concerned, I make the following observations.

In Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2006] QPELR 399, the court considered a development application for a development permit for a material change of use for a shopping centre and a tavern. The court accepted control measures directed to substantially eliminating irresponsible patron behaviour. The development in that case was a large scale commercial retail centre which included a tavern premises. The management issue was directed to the possibility of irresponsible patron behaviour at the tavern.

In Atkinson v Ipswich City Council & Anor [2006] QPELR 550, the proposed tavern development was made subject to a package of controls to reduce the incidence of irresponsible behaviour and to ameliorate likely noise to acceptable levels. The tavern proposal was ultimately refused because of its size and locality.

In Hedley Constructions Pty Ltd v Caboolture Shire Council [2006] QPELR 46, reference was made to a package of controls, including a behaviour management plan directed to substantially eliminating noise from irresponsible patron behaviour. The proposal was refused on other grounds.

In Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPELR 114, the court accepted a noise management plan where it was contended that the amenity of the area might be affected adversely by traffic, noise and “intrusion” into the lives of local residents by guests of the appellant. Judge Skoien SJDC wrote:
“So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded.”
See also Green v Brisbane City Council & Anor [2005] QPELR 121; Gold Coast City Council v Hanwell Pty Ltd [2005} QPELR 198; and Elborn v Esk Shire Council & Ors [2008] QPELR 24.

The amenity issues were clearly a focus for and a matter of concern to the appellants and to a reasonably large number of those who made community statements, as I have described that body of evidence. The concern about amenity impacts addressed in this case are, as a matter of common sense, driven to some extent by individual perception, which can vary from person to person. What one person might find objectionable may not affect another person even if they are similarly situated from the perceived or known source of the adverse impact.

However, I am satisfied that those concerns – no doubt honestly held – can be adequately addressed by conditions on any approval insofar as lighting, noise and odour are concerned. I do not consider that any adverse impacts are unacceptable.

Insofar as the visual impact is concerned, I am satisfied that landscaping as recommended, reduction in size of any tower type advertising or naming structure (I have in mind the elevated McDonalds type signage, but this is not directed at any particular tenant of the premises), and soft external treatment of building exteriors will reduce any adverse impacts. In making this assessment I am mindful of the appearance of other neighbouring or nearby non-residential buildings and facilities, which have a distinct non-residential appearance and character and constitute an existing adverse impact upon the residential character of the neighbourhood.

Hence I am satisfied that the character and amenity issues are not unacceptable, provided conditions are imposed, and do not inhibit any approval of the development.

D. The evidence of Mrs Leavy and Mr Collins

I accept the evidence of Mrs Leavy in the context of her correction of the schedule of food outlets in and in the vicinity of the Trade Area, created by Mr Collins, which was the matter that her evidence was directed to.

Mr Collin’s evidence about food outlets in and in the vicinity of the Trade Area, which was used to challenge the Economic Need experts, is not such a great diversion from the analysis of each of Mr Shimmin and Mr Brown as to create any doubt about their calculations and their conclusions expressed in evidence. I say that because, as I recall, each of them, quite reasonably, conceded that they might revise their respective opinions and conclusions if the Trade Area figures were greater than calculated by them. I do not consider that to have been necessary.

Mr Collin’s primary concern, however, focused on traffic and safety matters in my view. I accept his anecdotal evidence about traffic on Cohoe Street and the impact of fog on visibility and, by extension, vehicle and pedestrian safety. However, in the final analysis – whilst accepting that safety risks remain extant, a matter that was quite reasonably conceded, albeit with differing emphasis, by the traffic experts – it seems to me that the measures agreed by three of the traffic experts as necessary conditions on any development approval address the safety concerns adequately and reasonably. It is, of course, impossible to eliminate risk. At best, risk can be managed and the conditions I think achieve that. Risk is very much something that to a large extent depends on individual appreciation of its existence and degree, by drivers and pedestrians. That appreciation cannot be regulated or managed other than by the type of measure recommended by the three experts.

Mr Collins is, in the holistic sense, a commercial competitor of the proponent of the proposed development, at least in respect of some components of it. To that extent he has an interest that might prima facie be characterised as personal rather than ‘community’ driven. However, he conceded that any economic impact of the proposed development would not diminish his business. I therefore see no reason to qualify my acceptance of his evidence generally and in the specific respects to which I have referred, by reason of that characterisation. I accept that his concerns, summarised by me as constituting his objections to the proposed development, are genuinely held by him.

Insofar as his concerns about impacts on the character and amenity of the locality and the impact of the development on the impressions of visitors or other ‘arrivals’ at what he describes as the ‘gateway to the city’ are concerned, I have accepted the evidence of the experts on visual amenity, character and other amenity considerations and their conclusions that such impacts are manageable and are not so adverse as to be unacceptable; and the evidence of three of the town planning experts who support the approval of the proposed development from the planning perspective.

E.The Main issues

1. Is there an Economic Need?

In Cutprice Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR126, at p 131, the community need or planning need was described as follows:
“Need in cases such as this, does not mean pressing need, critical need, widespread desire or anything of that nature. A thing is needed if its provision taking all things into account, improves the physical well-being of the community.”
See also Skoien SDCJ in All-A-Wah Carpark v Noosa Shire Council (1989) QPLR 155 at 157-158; and Luke & Ors v Maroochy Shire Council & Anor (supra).

The need experts stated:

“Taking into account the strategic location of the subject site and the characteristics of the trade area population including the prevalence of families and young children and the limited provision of consolidated convenience retail development within the trade area, it is considered that the area is significantly undersupplied in terms of convenience rental facilities”

In William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165, the Court wrote:

“.. that there is in existence at the time of application a latent unsatisfied demand on the part of persons affected by the planning scheme which is not being met at all nor being adequately met by the scheme in its present form.”

Judge Wilson SC (as he then was) analysed relevant principles in Isgro v Gold Coast City Council [2003] QPELR 414, referred to at [21]-[23], and (as summarised by me) wrote:

“[21] “Need in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community”;

[22] “The question of need is to be decided from the perspective of a community and not that of an applicant or commercial competitor or even particular objectors”; and

[23] “providing competition and choice can be a matter which also provides for a need in the relevant case”.

Need is something, in an holistic sense, will improve the physical well-being of the community or would improve the services and facilities available in a locality – in other words, a community need: Skateway Pty Ltd v Brisbane City Council (1980) QPLR 245. That a component of trade will be drawn from outside the Trade Area does not establish conflict: Provincial Securities Pty Ltdv Brisbane City Council [2001] QPELR 143, at 147; and Seven-Eleven Stores Pty Ltdv Pine Rivers Shire Council [2006] QPELR 85, at [10].

Mr Fynes-Clinton seized upon the use of the words ‘convenient’ or ‘convenience’ in the evidence about need and sought in submissions to distinguish them from the concept of need in the planning context. However, I think those words were used in a compendious way to describe community benefit, choice and lifestyle. Indeed, the word ‘convenient’ is used in Isgro (supra) at [21].

His contention that there must be demonstrated a ‘real and material deficiency’ in the provision of something is not a construction of the authorities that I agree with: it is too high a benchmark to amount to a broadly applicable principle.

In arriving at my conclusions about need, I have endeavoured to distil the evidence upon which Mr. Shimmin and Mr. Brown relied in making their opinions.

I have already referred to the community statements, upon which Mr. Fynes-Clinton relies to a large extent on the issue of need, and expressed my cautionary approach to them. That the deponents were not required for cross-examination does not mean that their views are indicative of a view held by the far larger Trade Area population. Their views were expressed as one component of individual broader objection to the development, added to pro-forma documents provided to them. Whilst neither expert had canvassed the views of residents or others, their opinions have been expressed on objective considerations – numbers, availability and types of facilities, the composition of the Trade Area population – in the context of the city as a whole. The experts frankly conceded the obvious: the compact nature of the city and the relatively short driving times in any direction to access a similar facility.

However, the fact remains that in the Trade Area that the experts designated, a need - in the accepted sense that is referred to in the authorities - has been established. That it is not something overwhelming, urgent or palpably deficient, which I am prepared to find, there is nevertheless a need, as understood in the conventional planning sense, for this development in the Trade Area.

Accordingly, I find that economic need is established and that this issue does not impede any approval of the development.

2. Are traffic and pedestrian plans/management/risk, acceptable?

Traffic and pedestrian safety is one of the significant considerations in this appeal. The challenge presented by the intersection and its proximity to the top of the range and the uphill gradient is a somewhat unique and difficult one.

The Departments’ interest relates to traffic queuing, pedestrian safety on the intersection; and reconfiguration of Cohoe Street. The three experts who were in agreement were satisfied that a 100 m turning lane was acceptable in terms of the modelling exercise.

Mr. Camilleri’s disagreement reflected his concerns about gradient, heavy vehicle numbers seeking to make that turn and hence the inadequacy of the proposed turning lane length. To a large extent, the latter two concerns arise from an expectation of heavy vehicles making the right hand turn into Herries Street.

However, I do not accept the position adopted by Mr. Camilleri. His approach is very conservative and I do not agree that a dedicated 100 m right hand turning lane into Herries Street on Cohoe Street, will not work effectively and is therefore unacceptable. Nor do I accept that there will be any increase in heavy vehicles executing that turn into Harris Street, whether to access the premises or otherwise. Herries Street may be a preferred route from the highway to the CBD, but I cannot conceive of any reason why heavy vehicles would make that journey, along a street that is at some intersections controlled by traffic roundabouts. Mr. Camilleri’s view about this is conservatively speculative in my view.

At the end of the day the agreed positions of Messrs Beard, Pekol and Holland is compelling evidence despite the reservations, or contrary views, expressed by Mr. Camilleri.

Perfection in planning outcomes is not possible. Compromise through balancing factors and the conditioning of any approval to reduce identified safety risks and to enhance - within the range of what is possible - the effective management of traffic and pedestrian issues is an appropriate and acceptable approach and one that I adopt as being within the customary ‘standard approach’.

In Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41, the Court referred (at page 43J) to what I characterise as the ‘standard approach’ to assessing traffic impacts arising from developments, in the context of a development being likely to have an impact on a surrounding road network as a matter of fact, namely that the question for the court is:

“… whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement”.

That is the approach I have taken in this case.

If one were to look 10 years into the future – putting aside alternative re-routing of range traffic, including tunnelling through the Range – the intersection would more probably than not be signalled in the way proposed now by three of the four traffic experts. What is ‘undesirable’ now about that proposed condition would be equally ‘undesirable’ at that future time.

I understand that Mr. Beard’s use of the expressions ‘undesirable’ and ‘unacceptable’ involve a significant distinction: something may be ‘undesirable’ (in the context of what might otherwise be the best or preferred result) but nevertheless not be unacceptable (in the context of that ‘something’ being the best that can be achieved in the circumstances).

With respect to the non-signalisation of the Southbound lane on Cohoe Street, I accept the Departments position. I also acknowledge that the Court cannot require or direct works within the State controlled road network which the Department will not permit: See Wroxall Investments Pty Ltd v Cairns Regional Council [2011] QPELR 82.

The modelling ‘debate’ occupied a good deal of time in court. However, at the end of the day I am satisfied that the proposed traffic layout and design will work. I agree with the conditions advocated by the Department as referred to in the written submissions of Mr Litster QC, with the addition of the removal of the Cohoe Street access steps/ramp and the erection of pedestrian channelling fencing on Cohoe and Herries Streets adjacent to the premises, as advocated by Mr. Beard.

Whilst the resolution of traffic issues generally may leave a lot to be desired when one endeavours to achieve a best or preferred result, I consider that the proposals agreed by Messrs Beard, Pekol and Holland are appropriate and are not unacceptable.

It follows that I do not consider traffic issues to be a matter that would cause me to refuse the development application. The imposition of conditions as recommended or proposed, satisfactorily deal with the traffic issues.

3. Are there sufficient grounds to justify approval, despite conflict with the planning schemes?

Section 326 (1) of SPA provides as follows:

“326Other decision rules

(1) The Assessment managers decision must not conflict with a relevant instrument unless –

… …

(b) there are sufficient grounds to justify the decision, despite the conflict.”

In the section ‘relevant instrument’ means a matter or thing against which Code Assessment or Impact Assessment is carried out: that is, in this case, a planning scheme.

“Conflict” is considered against the substance of the planning scheme, not against a provision in isolation from the whole and the conflict must be plainly evident.

In Central Equity Limited v Gold Coast City Council (2007) QPELR 356, Judge Wilson SC (as he then was) referred to compliance with planning schemes in the following terms:

“[16] Although Ch 2 of the planning scheme specifies that ‘all Performance Criteria’ are considered separate and distinct, in light of the overlap between the matter addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common, modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355.

[17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes concerns of a similar type: here, those directed towards setbacks, plot ratios and (because of the affect the visual elements inherent in amenity issues arising in regard to those topics), landscape.”

In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Judge Wilson SC (as he then was) referred to the sufficiency of planning (sic) grounds, notwithstanding conflict with the planning scheme, in the following terms:

“[103] IPA s 3.5.14(2)(b) provides that the assessment manager’s decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there is sufficient planning (sic) grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word ‘sufficient’ refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase ‘sufficient planning (sic) grounds’ refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application.”

See also in respect of the issue of conflict: Provincial Securities Pty Ltd v Brisbane City Council (supra), at [ ] and[147]; and Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council, at [10].

The authorities do not make out of centre development, in the context of centre hierarchies, impossible to achieve. Depending on the context of the relevant planning scheme provisions, achievement may be more difficult. An assessment must be made on merit and against the subject planning scheme: Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750, at 781.

The superseded planning scheme

The city is described as a major regional service centre for a large area extending across the State border and into SW Queensland.

The superseded planning scheme recognises clustering of non-residential uses. The centres strategy DEO refers to building-up non-residential services such as educational and health and providing good access for residents; and directs non-residential uses to locations where amenity issues (relevant here, particularly, is existing traffic movement and noise on Cohoe and Herries Streets) may not be desirable for residential purposes.

The scheme in the Centre Strategy 2.2.1 (4) refers to additional floor space and ‘extension’ to rather than a new centre; and in 2.2.1 (8) to clustering non-residential uses into ‘community nodes’ rather than dispersing them throughout residential areas.

DEO 2 - 2.3.1 – Strategy directs Non-residential Uses to the Centres and to providing adequate and convenient access to Centres. DEO 4 – 2.5.1 (6) encourages reduction in private motor vehicle use and an increase in , inter alia, walking, by clustering Non-residential activities.

4.7 Mixed Housing Zone – In 4.7.1 (1) – Intent: Commercial Uses are established in a new building exhibiting characteristics typical of and compatible with low density residential development. In 4.7.2 – the Assessment Table, Food Outlet (Convenience Restaurant) is Impact Assessable if it is in the Major Road Residential Precinct.

The superseded scheme does express a strong preference against location of non-residential uses in the Mixed Housing Zone. However, locating such uses in that zone is possible, depending on factors such as need; there being no impact on the economic viability of any existing centre; and the additional use is an extension of an existing broad cluster of non-residential uses.

I accept the evidence that establishes need. The Mixed Housing Zone already has or is proximate to non-residential uses of significance (hospital, educational, health and accommodation facilities). There are existing amenity impacts arguably incompatible with residential use.

I have concluded that there is a prima facie conflict with the superseded planning scheme in respect of the location of a retail facility in the Mixed Planning Zone, other than as an extension of an existing centre.

However, I am satisfied that conflict with the superseded planning scheme is minor conflict.

Nevertheless, I am required to consider the sufficiency of grounds that would justify approval despite the conflict. I am satisfied that there are sufficient grounds to justify approval despite the conflict with the superseded planning scheme. Those grounds are need (in its holistic and conventional planning context), a preferred use for the site by reason of its proximity to the highway, the provision of employment opportunity, the character of the adjoining non-residential facilities and the absence of impact on the economic viability of any existing centre.

The current planning scheme

The Strategic Vision of the current planning scheme describes a ‘new direction’ for the region and refers to three key outcomes. They are (so far as is relevant in the context of this appeal): an increase in residential densities in Toowoomba City; the creation of greater diversity in housing; and the creation of neighbourhoods where residents can walk/cycle to work, school, shops and services and parks.

The Strategic Framework prevails over all other elements, where there is conflict between provisions within the planning scheme, to the extent of the ‘inconsistency’.

In the current planning scheme, 3.2.2.1 (7) – new Centres support and maintain the focus of commercial and retail areas where needs of the population catchment are justified.

3.8.3.1 - SO5 seeks to avoid detriment to the viability of existing activity centres. SO6 refers to the development of activity centres that meet community, visitor and business need.

6.2.2 – Residential Choice Zone Code refers to: (1) Small scale services and facilities that cater for local residents; and (3) Non-residential Uses where they directly support the day to day needs of the immediate residential community, do not affect the viability of other centres, have direct access to a sub-arterial road and have buildings consistent with the surrounding residential area and all car parking is on-site and includes a shop.

6.2.2.1 in the PO/AO Table provides, in respect of lighting and noise in a Non-residential Use, treatment screening and avoidance of obtrusive effects.

In 6.2.2.2 PO/AO Table, PO2 refers to Non-residential Uses outside the Hospital Support Precinct being permitted if they provide for day to day needs of the immediate residential community, do not undermine the viability of nearby centres, have access to a Sub-Arterial road, are in buildings of a scale consistent with the surrounding residential area, have parking on-site and do not unduly detract from the amenity of nearby residences. No AO is nominated.

9.3.1.1 Centre Activities Code – guides the development of Uses, relevantly food and drink outlets and shops, to manage business activities to ensure adverse impacts on surrounding areas are appropriately managed.

Table – ‘Built Form’ – PO25 requires no unreasonable affect on the amenity of the locality; and AO25.1 restricts the hours of operation of the business.

The proposed development, in my view, fits with that new direction and those key outcomes, particularly the third outcome. It is, in reality, a small ‘cluster’ retail centre. The loss of residences on the site to make way for the development is not a significant matter.

The current planning scheme permits out-of-centre development provided it does not detrimentally impact on the function and viability of existing activity centres, caters for local residents (which I construe as being an inclusive and not an exclusive, descriptor), and appropriately manages adverse impacts on surrounding areas. The word “manages” does not mean ‘eliminates’ or ‘does not cause’. It assumes, arguably as a reasonable expectation, that some adverse impacts may occur.

I do not consider that there is conflict with the current planning scheme. If there is conflict, the grounds referred to in respect to the superseded planning scheme apply equally to the current planning scheme.

Resolution

The appeal should be dismissed and the development application approved subject to conditions.

Orders

1 Appeal dismissed

2 Development Application approved subject to conditions

ANNEXURE ‘A’

TOOWOOMBA PLANNING SCHEME 2003

Desired Environmental Outcome 1 – Economic Development2.2

Toowoomba is a regional centre with a diverse economic base that builds upon the city’s strengths in manufacturing, education, community and health services, retailing and commercial activity, and provides a wide range of regional and local employment opportunities.

Centres Strategy 2.2.1

(1) Facilitate and strengthen a hierarchy of Centres based on function and catchment that:

(a) enhances Toowoomba’s role as the principal regional service centre for South West Queensland and northern inland New South Wales, and as an employment centre for retail, commercial, industrial, entertainment, cultural, tourism, education and community and health service activities;

(2) The hierarchy consists of existing Centres (expanded in some cases), as well as locations for new Centres in established and developing parts of the City to serve future population increases.

(3) The Centres hierarchy comprises:

(c) suburban Centres that cater for the retail and related needs of the community at the neighbourhood and local levels. Neighbourhood and Local Centre Precincts indicate whether the centre is meeting a local or neighbourhood need;

(4) In relation to any proposal for additional floor space outside a zoned centre:

(a) It must be demonstrated that:

(i) there is a need for additional floor space to serve the community ….

(ii) the existing Centres do not, and cannot, satisfy that need; and

(iii) the economic viability of any existing centre will not be adversely affected; and

(b) Where the additional floor space is justified by (a) above, it is provided as an extension of an existing centre, rather than as a new centre.

(5) No existing centre is to expand to the next level in the Centre’s hierarchy by virtue of size or function.

(8) Cluster non-Residential Uses (retail, commercial, community, recreational), apart from those that may require large areas of land such as churches, into “community nodes” to encourage community identity and develop economic synergies rather than disperse them throughout Residential Areas.

2.3Desired Environmental Outcome 2 - Liveability

Toowoomba has safe distinctive and attractive urban areas in which residents have good access to open space, services and facilities and employment, a range of housing options and opportunities for social interaction.

Strategy2.3.1

(1) Allocate sufficient land and establish reasonable development standards and densities to allow housing and lifestyle choice and enable the provision of affordable housing. This is reflected in the provisions for the different Residential Zones, the Regional Centres Zone and the Sub-Regional Centres Zone as follows:

(b) the Mixed Housing Zone identifies areas preferred for a mixture of low and medium density housing ….

(4) Improve the amenity of the residential and other areas of the City by:

(b) directing non-Residential Uses to the Centres, industrial areas and specific residential precincts where location aspects are either most suitable for such uses …

(10)Ensure that residents and visitors have adequate and convenient access to Centres, other employment areas, major facilities and open space …
2.5Desired Environmental Outcome 4 – Natural Environment

A city where:
·     Ecologically or visually important areas and remnant bushland are conserved or rehabilitated
·     The creeks in the ecological processes are conserved or restored;
·     The impacts of land uses and development on water catchments are minimised;
·     Development is sensitive to the physical attributes and environmental capacity of the land; and
·     High standards of water, acoustic and air quality are maintained.

2.5.1Strategy

(6)Encourage a reduction in private motor vehicle use and an increase in public transport use, walking and cycling to conserve energy and reduce environmental impacts by:

(a)Clustering non-Residential activities;

4.7Mixed Housing Zone

4.7.1 Statement of Intent
GENERAL
(1)The intent is:

(g) The establishment of … Commercial … Uses only where:

(i)a Home Based Business or Display Home/Office;

(ii)a Motel in the Motels Area shown on the Regulatory Map;

(iii) an Office (General), Medical Centre or Veterinary Clinic in the Office Residential Area shown on the Regulatory Map and either:

A. in an existing House; or

B. in a new building (that may be of greater scale and bulk that those in the surrounding Residential Area) which exhibits characteristics typical of, and is compatible with, low density residential development.

4.7.2Mixed Housing Zone Assessment Table

MIXED HOUSING ZONE

ASSESSMENT STATUS WHERE A MATERIAL CHANGE OF USE IS THE TRIGGER

PUPPOSE IMPACT ASSESSABLE (* means “not referred”)

Food Outlet
(Café/Restaurant)

. If it is in the Major Road Residential Precinct

. or other circumstances*

COMMERCIAL USES

Food Outlet
(Convenience Restaurant)

. If it is in the Major Road Residential Precinct

. all other circumstances*

TOOWOOMBA REGIONAL PLANNING SCHEME 2012

3.2Settlement Pattern

3.2.1 Strategic Outcomes
(3)Toowoomba Regional Council Area is a Region of approximately 13,000 km² with dimensions of approximately 90 km E/W and 185km N/S. The resident population of Toowoomba Regional Council at 30 June 2009 was 159,098. The City and its Region hold the mantel of Australia’s non-capital inland city. It is the principal regional centre for the whole of the Darling Downs and southern and western Queensland and northern and central rural New South Wales.
(4)Toowoomba plays an important role as a gateway city and plays a key role in connecting people and resources. Firstly as the eastern gateway to the communities and resource areas in the South-West Region and secondly as gateway from the south-west to south-east Queensland, the State’s capital and the major international air and sea ports.
(5)The region is experiencing significant growth (a projected increase of 93,043 people between 2006 and 2031 with an estimated population of 240,340 by 2031). This population growth is supported by the provision of a full spectrum of government, commercial, infrastructure and community services provided at intensities that give due regard to the needs of robust mixed use urban centres and vibrant rural towns.
(8)There are seven major urban areas and towns throughout the Toowoomba Regional Council area. These are:
(a) Toowoomba City

…
(i)Toowoomba City has thriving and diverse neighbourhoods that have a strong sense of community and local identity. Toowoomba City and the surrounding urban areas continue to experience sustained growth in residential, retail/commercial and industrial land uses. In response to these pressures, local planning will be undertaken to address issues such as growth management, infrastructure management, urban design and local character, and the transitioning of non-urban (predominantly rural residential and rural) to urban areas and enterprise areas.

(13)Retail and business services will be accommodated within the network of activity centres with the Toowoomba City Centre continuing to provide the greatest amount and broadest range of activity and services to the Region.

3.2.2.1Specific Outcomes

(7)New centres support and maintain the focus of commercial and retail areas, employment and significant community and cultural activities where the needs of the population of the retail/service/entertainment catchment are justified.

3.8Economic development

3.8.3Element – Activity Centres and Employment
(1)The region is served by a strong and dynamic CBD and complemented by a network of district, town neighbourhood and mixed-use villages.

3.8.3.1 Specific outcomes.

(1)Activity centres include a mix of land uses and supporting infrastructure, providing for future growth of a broad range of business uses to support employment growth.
(5)Prevent out-of-centre land use and development that would detrimentally impact on the function and viability of existing activity centres.
(6)Facilitate the development of activity centres that meet community, visitor and business needs.

6.2.2Residential Choice Zone Code
(1)The purpose of the zone is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.

(3)The purpose of the zone will be achieved through the following overall outcomes:

(j)Non-residential uses occur only where such uses directly support the day to day needs of the immediate residential community located in the zone and do not undermine the viability of other centres or centres network, are located with direct access to a road at the distributor, sub-arterial and regional arterial level in the road hierarchy, are in buildings of a scale that is consistent with the surrounding residential area or are a re-use of existing non-residential buildings and all car parking needs to be met on site. Such uses include:

(ix) shop ..

Hospital Support Precinct

(7) The overall outcomes of the Hospital Support Precinct within the residential choice zone are that:

(a) complementary uses that support and relate to the existing hospitals are established in the Precinct including, Medical Centres and accommodation for people needing to stay near the Hospital;

(d) Industrial, rural and other commercial uses do not locate in the Precinct….

Table 6.2.2.1 – Residential Choice Zone Code – for self assessable and assessable development

Performance Outcomes Acceptable Outcomes

PO₃ The non-residential use is of a scale and intensity that is compatible with the character of the streetscape and the residential appearance of the locality
AO_3.1The use:

(a) is carried out in an existing building;

(b) does not increase the Gross Floor Area of the building;

(c) is a single tenancy only; and

(d) does not involve outdoor dining.

Non-residential Uses – Noise Amenity

PO₄The non-residential use does not adversely impact on the amenity of the surrounding residential land uses and/or residential streetscape character.

AO_4.1 New building plant or air-conditioning equipment is located central to the building and screened from view of the street or adjoining residential uses

Non-residential uses – outdoor lighting

PO8 Outdoor lighting for non-residential uses maintains the amenity of the surrounding residential area and does not adversely impact the safety for vehicles or pedestrians on the adjoining street as a result of light emissions, either directly or by reflection.

AO8.1 Outdoor lighting for non-residential uses is restricted to low level security lighting only.

AO8.2 Outdoor lighting is designed, installed and maintained in accordance with the parameters and requirements of AS4282 – control of the obtrusive effects of outdoor lighting.

Table 6.2.2.2 – Residential Choice Zone Code – for assessable development

Peformance Outcomes

Uses
Acceptable Outcomes

PO₁ The zone accommodates a mix of housing forms and other small-scale uses that service the day to day needs of local residents
AO_1.1 Uses which are consistent with the intent of the zone include:

(n)   shop

.

PO₂ Non-residential uses outside of the Hospital Support Precinct and Office Residential Precinct:

(a)   provide for the day to day needs of the immediate residential community and do not undermine the viability of nearby centres or centres network.

(b) have direct access to a distributor, sub-arterial and regional arterial level roads;

(c) are in buildings of a scale that is consistent with the surrounding residential area;

(d) all car parking needs can be met on site; and

(e) do not unduly detract from the amenity of nearby residences.
No Acceptable Outcome is nominated.

9.3 Local Codes Category

9.3.1 Use Codes Category

9.3.1.1 Centre Activities Code

(1)         The purpose of the centre activities code is to guide the development of the following uses to manage business activities, whether within or outside a designated centre, to ensure that adverse impacts on surrounding areas are appropriately managed.
(d)     Food and drink outlet
(p)     Shop

Table 9.3.1.1 – Centre Activities Code – for assessable development

The following apply to all applicable development in any location.

Built Form

Peformance Outcomes Acceptable Outcomes

The following apply to all applicable development when located inside of a … residential choice zone.

PO₂₅ The amenity of the locality is not unreasonably affected as a result of the activity.
AO_25.1 Hours of operation are limited to 7 am to 6 pm Monday to Saturday where in a zone other than a centre zone.

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Citations

Powell v Toowoomba Regional Council [2013] QPEC 20

Most Recent Citation

Bremer Waters Pty Ltd v Ipswich City Council [2013] QCA 392

Cases Citing This Decision

1

Bremer Waters Pty Ltd v Ipswich City Council [2013] QCA 392

Cases Cited

2

Statutory Material Cited

0

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112

Tadpoles Early Learning Centre v Noosa Shire Council & Ors [2008] QPEC 9

CITATION:	Powell & Ors v Toowoomba Regional Council & Ors [2013] QPEC 20
PARTIES:	Kate Powell, Philip Collins, Judith Clanchy, Raymond Edser and Jack Clarence. (Appellants) and Toowoomba Regional Council (Respondent) and Kelly Consolidated Pty Ltd (Co-Respondent) and The Chief Executive administering the Transport Infrastructure Act 1994 (being the Chief Executive, Department of Transport and Main Roads) (Co-Respondent by Election)
FILE NO/S:	Brisbane No 413of 2013
DIVISION:	Environment and Planning
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	09 May 2014
DELIVERED AT:	Townsville
HEARING DATES:	04 to 08, 19 and 20 November 2013 and 06 December 2013.
JUDGE:	Durward SC DCJ
ORDERS:	1 Appeal dismissed. 2 Development Application approved subject to conditions.
CATCHWORDS: LEGISLATION: PLANNING SCHEMES:	ENVIRONMENT & PLANNING – PLANNING SCHEMES – CONFLICT – where prima facie proposed development in conflict with superseded and current planning schemes – whether sufficient grounds to justify approval despite conflict. ENVIRONMENT & PLANNING – RESIDENTIAL AREA – COMMERCIAL/RETAIL/NON-RESIDENTIAL PROPOSED USE – whether food outlets (café/restaurant/convenience restaurant), supermarket and operational works for advertising signs development – national fast food facilities – whether appropriate in residential area. ENVIRONMENT & PLANNING – NEED – whether need demonstrated – whether impact on existing centres – community that might be likely to use premises. ENVIRONMENT & PLANNING – TRAFFIC – PEDESTRIAN SAFETY – where proposed development at intersection of State controlled road (major highway) and sub-arterial road – whether impact on traffic flows, vehicle queuing, emergency stopping provision, and pedestrian safety, unacceptable – whether traffic plan brings forward predicted future traffic and pedestrian planning for intersection. ENVIRONMENT & PLANNING – AMENITY & CHARACTER – issues of visual amenity, lighting and odour impacts and noise – whether amenable to conditions imposed on approval – whether unacceptable. Sustainable Planning Act 2009. Toowoomba Planning Scheme 2003; Toowoomba Regional Planning Scheme 2012.
CASES:	Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPELR 114; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR126; Broad v Brisbane City Council (1986) 2 Qd R 317; Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2006] QPELR 399; Hedley Constructions Pty Ltd v Caboolture Shire Council [2006] QPELR 46; Elborn v Esk Shire Council & Ors [2008] QPELR 24; Gold Coast City Council v Hanwell Pty Ltd [2005] QPELR 198; Green v Brisbane City Council & Anor [2005] QPELR 121; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Isgro v Gold Coast City Council [2003] QPELR 414; Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Project Blue Sky v ABA [1998] 194 CLR 355; Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85; Skateway Pty Ltd v Brisbane City Council (1980) QPLR 245; Tadpoles’ Early Learning Centre v Noosa Shire Council [2008] QPEC 9; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Atkinson v Ipswich City Council & Anor [2006] QPELR 550; Wroxall Investments Pty Ltd v Cairns Regional Council [2011] QPELR 82; All-A-Wah Carpark v Noosa Shire Council (1989) QPLR 155; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750.
COUNSEL:	SP Fynes-Clinton for the Appellants Ms NJ Kefford for the Respondents CL Hughes QC and B Job for the Co-Respondent RS Litster QC for the Co-Respondent by Election
SOLICITORS:	McCullough Robertson Lawyers for the Appellants Herbert Geer, Solicitors for the Respondent Norton Rose Fulbright for the Co-Respondents Hopwood Ganim, Solicitors for the Co-Respondent by Election

Subject Matter	Number of Statements	Percentage of Deponents
Noise and odour	32	12.45%
Traffic	204	79.37%
Need	219	85.2%
Visual amenity	51	19.8%
Conflict with planning scheme	3	1.15%
Health and menu	20	7.78%
Crime and bad behaviour	17	6.61%
Loss of personal employment	6	2.33%
Quality of life	9	3.51%
Irrelevant views	4	1.55%

MIXED HOUSING ZONE
ASSESSMENT STATUS WHERE A MATERIAL CHANGE OF USE IS THE TRIGGER
PUPPOSE	IMPACT ASSESSABLE (* means “not referred”)
Food Outlet (Café/Restaurant)	. If it is in the Major Road Residential Precinct . or other circumstances*
COMMERCIAL USES
Food Outlet (Convenience Restaurant)	. If it is in the Major Road Residential Precinct . all other circumstances*

Performance Outcomes	Acceptable Outcomes
PO₃ The non-residential use is of a scale and intensity that is compatible with the character of the streetscape and the residential appearance of the locality	AO_3.1The use: (a) is carried out in an existing building; (b) does not increase the Gross Floor Area of the building; (c) is a single tenancy only; and (d) does not involve outdoor dining.
Non-residential Uses – Noise Amenity PO₄The non-residential use does not adversely impact on the amenity of the surrounding residential land uses and/or residential streetscape character.	AO_4.1 New building plant or air-conditioning equipment is located central to the building and screened from view of the street or adjoining residential uses
Non-residential uses – outdoor lighting PO8 Outdoor lighting for non-residential uses maintains the amenity of the surrounding residential area and does not adversely impact the safety for vehicles or pedestrians on the adjoining street as a result of light emissions, either directly or by reflection.	AO8.1 Outdoor lighting for non-residential uses is restricted to low level security lighting only. AO8.2 Outdoor lighting is designed, installed and maintained in accordance with the parameters and requirements of AS4282 – control of the obtrusive effects of outdoor lighting.

Peformance Outcomes	Acceptable Outcomes
The following apply to all applicable development when located inside of a … residential choice zone.
PO₂₅ The amenity of the locality is not unreasonably affected as a result of the activity.	AO_25.1 Hours of operation are limited to 7 am to 6 pm Monday to Saturday where in a zone other than a centre zone.