Provincial Securities Pty Ltd v Brisbane City Council

[2000] QPEC 78

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Provincial Securities Pty Ltd v. Brisbane City Council [2000] QPE 078
PARTIES:	PROVINCIAL SECURITIES PTY LTD BRISBANE CITY COUNCIL
FILE NO:	4947 of 1999
DELIVERED ON:	Tuesday, 7 November, 2000
DELIVERED AT:	Brisbane
HEARING	16, 17 October 2000
DATES:
JUDGE:	Skoien S.J.D.C.
ORDER:	Appeal allowed
CATCHWORDS:	Neighbourhood shopping centre; need; suitability of site.
COUNSEL:	Hughes for appellant Rackemann for respondent
SOLICITORS:	Deacons Lawyers for appellant Brisbane City Council Solicitors Office for respondent

1. This is an appeal by Provincial against the Council’s refusal of Provincial’s application for a development permit for a material change of use of premises for a shopping centre and for the reconfiguration of a lot.

   The Site

2. The site is at 95 Mains Road, Sunnybank. It is flat and rectangular with its long side (60 m) along the eastern or outbound side of Mains Road. It currently has on it a detached house. Mains Road is a six lane arterial road, divided by a median strip of generous width. It carries heavy traffic (about 40,000 vehicles per day), with an operating speed limit of 60 km/hr. The site is about midway between traffic light controlled intersections with Shearwin Street (inbound) and with Lampson Street (outbound), each about 200 m away, at both of which U turns are permitted. Immediately on the outbound side of the site is a disused service station. It fell into disuse because of lack of custom caused by the lack of any deceleration lane to permit vehicles to be slowed for safe entry.

3. Inbound of the site is a rail bridge where Mains Road passes over the Beenleigh railway line. Outbound of the site is the intersection of Mains Road and Beenleigh Road, another arterial road. The locality contains a mixture of residential and non- residential uses. The residential lots contain, generally, single or two-storied houses but there is a moderately large town house development in the vicinity. On the outbound side of Mains Road, between the rail bridge and the site are the Altandi railway station, an associated park and ride, a swimming club, a reception centre, a church and not far past the site, outbound, is a State Primary School and a theatre. On the inbound side of Mains Road are a small Chinese library, a church primary school and a dentist. Bus stops on each side of the road are near the site.

4. On the intersection of Mains Road and McCullough Street about 1200 m., inbound of the site, are three shopping centres, two of which are major centres. The third, Market Square which is in the outbound side of Mains Road, has a gross floor area of 6400 m² which offers convenience shopping. At the intersection of Mains Road and Beenleigh Road, about 500 metres outbound of the site and on the outbound side of Mains Road, is Pinelands Plaza, with a gross floor area of 6000 m². It is a neighbourhood centre with a Coles Supermarket of 2130 m² and about 40 specialist shops and professional offices. On Beenleigh Road, about a kilometre from the site, is the Shauna Downs 7 Day Shopping Centre, also a neighbourhood shopping centre. There are other shopping centres in the general vicinity, but on the evidence they are so far removed from the site, or of such dissimilar nature to the proposal for the site, to be of no relevance.

   The Proposal

5. The application concerned not just the site, but also a small part of the neighbouring service station. For the site is proposed a single storey shopping centre of 500 m² containing about five tenancies, a convenience store not being contemplated. It is likely to have a bakery and a restaurant. It is to provide parking for thirty-one vehicles and will be extensively landscaped. The site is also to be reconfigured so that the shopping centre is on one lot (fronting Mains Road), the existing home to be on a second and a third to be available for residential use. No argument has been raised on the suitability of the site for the reconfiguration. The application in respect of the neighbouring service station is to make available a portion of it for vehicular traffic coming to and going from the site.

6. A feature of the proposal is the intention to surrender part of the land along Mains Road so that a deceleration/acceleration lane can be created. This, it is said, will rejuvenate the disused service station by providing safe entry to and departure from both it and the proposed shopping centre. It is expected that the re-opened service station will include a convenience store.

[7] The site is within the residential A zone, in which the proposal is a permissible form
of development.

The Issues

[8] The live issues in the appeal can be summarised under the headings of need and
location. They can conveniently be dealt with together.

1. The application was lodged by Provincial on 25 August 1999 so the provisions of the Integrated Planning Act (IPA) apply. However because the 1987 Town Plan was then a transitional planning scheme under which the proposed use was permissible the application fell to be considered, as does this appeal, as if it were an application for consent. See IPA, s.6.1.30(3)(b). In particular, s.4.13(5A) of the P&E Act is required to be considered.

2. Section 4.13(5A) of the P&E Act provided:

   “(5A) The local government must refuse to approve the application if –

(a)	the application conflicts with any relevant strategic plan or development control plan; and
(b)	there are not sufficient planning grounds to justify approving the application despite the conflict.”

1. The Strategic Plan set up a hierarchy of centres which at the lowest intensity included minor neighbourhood centres and convenience centres. Provincial’s application nominated the former but as Mr Rackemann, counsel for the Council fairly conceded, what is proposed may well fall between the two. Probably not much turns on this. It often happens that a proposed shopping centre does not fall squarely into one or the other. Each has a requirement for easy accessibility, by cycling and walking by people within its catchment. This site is easily accessible to those within walking or cycling distance whether one takes as the catchment a radius of 500 m. (for a convenience centre) or the larger catchment which a minor neighbourhood centre contemplates.

2. The strategic plan puts emphasis in those provisions, and in many others, on cycling and walking and the Council has done much visibly and tangibly to encourage those activities. But when all is said and done, whether one cycles, walks, drives or uses public transport for minor shopping trips remains largely a matter of personal preference. In this case the fact is that anyone who might want to use any of those means of transportation to this site would be able to without difficulty.

3. The Strategic Plan provisions relating to each of those types of centres express an intent that they should be on neighbourhood access roads. That is not the case here; Mains Road is an arterial road. But the plain fact is that, as all of the experts agree, a small centre on a neighbourhood access road would very probably wither (and possibly die) for lack of custom from passing trade, a necessary part of the trade of a healthy centre. The intention that these centres be on neighbourhood access roads is, I consider, an example of the drafter's wishful thinking and admirable as may be the wish it is unlikely to be met in today’s real world. It is generally inevitable that the situation will be an arterial or sub-arterial road, and that raises the question of commercial ribbon development, to which I will return.

4. Much of the above discussion about access to a catchment relates to the suitability of the site but it also relates to the question of need because of this provision in the statement of intent for centres contained in the Strategic Plan:-

   “3.3.4.1...New Regional, Major District or District Centres are not supported. Consolidation and reinforcement of existing centres is the preferred means of meeting community needs. New centres will only be allowed at the lower end of the hierarchy, where it can be demonstrated that they are required to meet community needs, that these needs cannot be met from an expansion of existing centres, and are consistent with any applicable Local Area Outline Plans.”

5. Traditionally the concept of need, while relevant to a consent application, (see Arksmead Pty. Ltd. v. Council of City of Gold Coast (2000) 107 LGERA 60) has not been elevated to the importance it achieved in a re-zoning application in which the Local Government (Planning and Environment) Act 1990 expressly required it to be considered. See s.4.4(3)(b).

6. The concept in the planning sense has been frequently considered. For example:-

   “need does not mean pressing need, critical need, widespread desire of anything of that nature rather, a thing is needed if its provision, taking all things into account would improve the physical well-being of the community” (Cut Price Stores Retailers v. Caboolture City Council [1984] Q.P.L.R. 126 at p131);

   and

   “need in planning terms is a relative concept and does not connote pressing urgency but rather relates to the general well being of the community; a use would be needed if it would, on balance, improve the services and facilities available in a locality” (Rooster Land Pty Ltd v. Brisbane City Council [1986] 23 A.P.A.D. 58 at p60).

7. I have been assisted by the evidence of Mr. Winter, an urban analyst and geographer and I accept his evidence. His report, ex. 3 sets out the historical basis for the Strategic Plan Centres Policy and the changes which the years have wrought to the desires, habits and mobility of shoppers for convenience items. He gave his opinion that, especially in conjunction with the re-opened service station and its convenience store, this would be a useful and convenient destination to local residents (some of who have supplied statements to that effect) as well as to those who patronise the destinations referred to in para [3].

8. A further matter of convenience is the ability to park a car in a small car park and very close to the shop which the customer wants to visit. A person wanting to buy a couple of items does not want to have to negotiate traffic queues and then to park well away from the shop.. That is what a shopper in this area would potentially face if forced to go to Market Square or Pinelands. As well as Mr. Winter, Mr. Holland, the traffic engineer, spoke of this issue as well as giving evidence of the convenient accessibility of the site to those who chose to walk or cycle. If one were to insist that the needs of the local residents be met, not by the establishment of a small shopping centre like this, but by the expansion of an existing centre (Market Square or Pinelands) as the Centres Policy literally requires, the locals would be forced to negotiate extra traffic and to park less conveniently. It is difficult to see how that fulfils their need for convenience shopping. Moreover, as Mr Winter’s report shows, there is little available free retail space in any of the relevant existing centres.

[19] In Harburg Investments Pty Ltd v. Brisbane City Council & Anor (2000) QPELR
313, at p.317 I said:

“To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware warehouse, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl.”

“However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be laid on the convenience to the likely patrons of those developments. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the ‘atmosphere’ of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the ‘atmosphere’ at the proposed centre is likely to be more relaxed than at the Hypermarket or the other busy centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probable that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale.”

An appeal in which this discussion of need was argued, was dismissed by the Court of Appeal. The points of similarity between Harburg and this appeal are obvious.

1. The statement of intent for the Residential A zone indicates that a shopping centre such as this (i.e. not exceeding 500 m² gross floor area) is allowable with Council consent but such consent will depend on the likely effect on the amenity of the area. No adverse effect on amenity was established in this appeal. The statement of intent then goes on to say that consideration will be given to whether it will mainly serve residents in the immediate vicinity. That, of course, is not a critical point, an absolute requirement, merely a consideration to be taken into account: Prime Group Realty Ltd. v. B.C.C. (1995) QPLR 173 at 176; Phil Fletcher Planning and Investment Services Pty. Ltd. v. B.C.C. (1991) QPLR 16.

2. As I have said, this shopping centre would not rely exclusively on local custom. I am satisfied that it would serve those local residents, but whether its custom would mainly be local residents I cannot say. The expert witnesses seemed to be of the opinion that the passing trade would be more important but those opinions were not based on any survey. But, assuming that the passing trade provides the main custom, I am not disposed, in giving consideration to this aspect of the matter, to ignore the filling of the needs of those in the immediate vicinity even if they are not the main economic support for the centre. Nor would it be realistic, nowadays, to ignore the convenience of the passing customers. They would not be likely to live at great distance from the site; they would most likely come from the general vicinity. In the days of the motor car and the commuting motorist (many of whom might well have used the nearby park and ride, these customers must be taken to be within the locality of the convenience shops they visit. Quirk DCJ accepted a similar argument in Phil Fletcher, supra, at p.17.

3. The statement of intent goes on to indicate that in a development such as this, any restaurant should present itself to Mains Road and away from the nearby residents. Mr. Willington, conscious of the fact that the area is well served for Asian restaurants but little else, is interested in opening a Mediterranean restaurant with outdoor dining facilities. In my view this alone indicates the likelihood of the filling of one form of need. Any such restaurant can, in compliance with the statement of intent, face Mains Road.

[23] The statement of intent for centres also provides that commercial ribbon development along arterial roads is to be discouraged. I agree with Mr. Holland that commercial ribbon development would not be produced by this proposed centre which in fact clusters about five commercial uses together. They will make use of the same entry and exit points. Furthermore, there is again a positive feature in relation to the service station site. The proposed deceleration/acceleration lane will allow safe entry to the service station as well as safe entry to and egress from the site. These neighbouring uses would in fact be able to share driveways. Mr Holland’s opinion, with which I agree, is that the proposal thus has a beneficial effect on the traffic using Mains Road. Finally the likely addition, on the service station site, of a convenience store cannot be overlooked. Its very existence would be enabled by the provision, by Provincial, of the acceleration/deceleration lane.

1. Mr Rackeman for the Council referred me to the existence of a vacant piece of land in Mains Road outbound of the Pinelands Plaza. That land has had a particular development zoning for restaurants and fast foods and currently is the subject of an application for shops. Two discouraging features, however, exist in relation to that land. Its current application is under appeal and anyway, it is quite remote from this shop and its immediate catchment. It could not reasonably be walked or cycled to by people living in the catchment of this site and to go to it by car would be far less convenient because of the necessity to negotiate the Beenleigh Road intersection.

2. It seems to me that at very most the proposal is contrary to the provisions of s.3.3.4.2 of the Strategic Plan in that it is on an arterial road, not a neighbourhood access road. But for the reasons discussed such a breach is, nowadays, almost inevitable. Further, it does not form an expansion of an existing centre, although the site could not be said to lie within a pristine residential area – see para. [3] above. But for the reasons discussed in paras. [17] – [19] that has its advantages to the consumer. Then I have assumed it will not mainly serve residents in the immediate vicinity, but again I think that is probably not nowadays feasible.

3. However, there are planning grounds which overcome those breaches. It would fulfil a presently unsatisfied need for safe convenient access by those in the immediate vicinity, and by others who live more remotely, to a centre where goods and services of convenience to them are to be available. Furthermore, and of some importance, is the fact that it is likely to provide the ability for a formerly established facility, a service station, to be re-established in conjunction with a convenience store.

4. Mr Rackemann for the Council submitted that the mere fact that the proposed centre will attract some people who live nearby is not a sufficient ground because that approach would enable a lower order centre to be established virtually anywhere. To my mind that really avoids the point, the point being that a recognisable need has been found. The location of the site has been found to be appropriate. No comparable existing facility is within a convenient distance. And there is the added, somewhat unusual, circumstance of the positive benefit to a neighbouring, otherwise disused, site.

5. I was also referred to the contents of the new City Plan which, at the time of the application to the Council (20 August 1999) was in the course of preparation. It actually came into existence on 30 October 2000. It has provisions (s.4.4 et seq) relating to centres which, it is true to say are not just similar to but rather stronger than those contained in the now superseded Town Plan. It says:-

   “4.4.2.6 The Plan strongly encourages Centre activities to locate in centre intent of the Plan unless an overwhelming community need is demonstrated.”

   and strongly discourages their location out of centre.

6. The principle which was enunciated in Coty (England) Pty Ltd v. Sydney City Council (1957) 2 LGRA 117 is that the provisions of a proposed planning scheme may be given some weight. The principle was considered by the Queensland Court of Appeal in Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224. At p.229 Thomas J., who wrote the judgment of the Court said:

   “I am not persuaded that Coty’s case ought to be over-ruled or that its recognition that it is possible to give some weight to planning decisions that are in train but which do not yet have the force of law is misplaced. It may of course be possible to give too much weight to such a factor, but that question does not here arise. Unless some recognition is given to this factor it would be possible to sabotage any scheme by a single development inconsistent with it. The construction of one high-rise building in an area planned for low building profile is a good example. it is better that such developments await determination of whether the strategic plan is approved, modified or rejected, rather than allow the plan to be pre-empted by an ad hoc development.”

1. This application was made to the Council about fourteen months before the new Town Plan came into effect and well before the Council (in November 1999) modified it after the Minister’s first review of it. The appeal was heard before it came into effect. Provincial’s proposed development does not have the drastic effect on the new Plan which Thomas J. contemplated in Lewiac. Given those facts it would be unjust to give such weight to its rather more strongly worded provisions as to deny the proposal were it considered to be allowable under the superceded Plan.

2. In any event, when one considers paragraph 4.4 of the new Town Plan as a whole one sees heavy emphasis placed on the connection between in-centre development and the efficient use of public transport. This site is admirably placed to make use of trains and buses, and to be accessible to private transport without putting any pressure on existing road networks or requiring the building of new ones. So it might be said that while this proposal offends the letter of the new law it does not offend its spirit.

Conclusion

[32] The appeal will in due course be allowed but I will adjourn the appeal to allow the
parties the opportunity to try to agree any appropriate conditions of development.