Queensland Investment Co v Toowoomba City Council
[2000] QPEC 36
•2 June 2000
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Queensland Investment Corporation & Ors v. The Toowoomba City Council & Anor. [2000] QPE 036 PARTIES: QUEENSLAND INVESTMENT CORPORATION; P AND M SOURRIS AND SONS; and BIRCH CARROL AND COYLE LIMITED Appellants
And
THE TOOWOOMBA CITY COUNCIL Respondent
And
WILSONTON HOLDINGS PTY LTD Co-RespondentFILE NO/S: Appeal No 3643 of 1999
Appeal No 3646 of 1999
Appeal No 3688 of 1999COURT: Planning and Environment Court PROCEEDING: Appeal DELIVERED ON: 2 June 2000 DELIVERED AT: Brisbane HEARING DATE: 6, 7, 8, 9, 10, 13, 14,15, 16, 17 March 2000 JUDGE: Judge Brabazon Q.C. ORDER: Appeal allowed. Application refused. CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING – TOWN PLANNING CONSENT – COUNCIL APPROVAL – Appeal against Council decision to allow new cinema complex – issues arose on the basis of need, blight and amenity – effect of town planning scheme and requirements for development considered. COUNSEL: Mr J Gallagher Q.C. and Mr T Trotter for the Appellants
Mr S Ure for the Respondent
Mr P Lyons Q.C. and Mr W Cochrane for the Co-RespondentSOLICITORS:
Minter Ellison for the Appellants
Toowoomba City Council Solicitors for the Respondent.
Wonderley & Hall for the Co-Respondents
The Appeal
This appeal is concerned with an application for consent to provide more cinemas in Toowoomba. Wilsonton Holdings Pty. Ltd. wants to build a six cinema complex as part of the existing Wilsonton shopping centre. The Toowoomba City Council approved its application for consent, subject to conditions, on 10 August 1999. However, the appellants say that the Council’s decision was wrong, and that the development should not proceed. This appeal was filed in September 1999.
The controversy is now before this court. It has to consider the application afresh and come to its own conclusions. It is for Wilsonton Holdings to establish that the appeal should be dismissed. The court has the advantage of a good deal more information, and expert opinion, than the Council had before it.
As this is a “transitional planning scheme” under the Integrated Planning Act, s.6.1.30(3) of that statute will apply. That is, the criteria for making a decision are taken from the repealed Local Government (Planning and Environment) Act, s. 4.12. These provisions apply:
(2)The court is to consider the relevant application for consent and any
objections duly made in respect of the application;
(5)In deciding an application the court is to:
(a) approve the application, or
(b) approve the application subject to conditions, or
(c) refuse to approve the application.
5A The court 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.
At P.113 the planning scheme sets out a number of matters to be considered by Council (and therefore the court) when considering an application for consent. Relevantly, in this case, attention should be paid to paragraph 1 (the provisions of the town planning scheme, in particular the Intent of Zones and the Strategic Plan), paragraph 8 (whether adequate provision has been or will be made for landscaping of the site, paragraph 9 (the existing and future amenity of the neighbourhood) and paragraph 14 (the circumstances of the case and the public interest). It might be noted that the list, while not ruling out other relevant considerations, does not include “need” as a consideration.
The Competing Interests
The appeal is the result of competition in the cinema industry. The Sourris interests own The Strand cinema in Margaret Street. It has five screens. The Queensland Investment Corporation owns the Grand Central Shopping Centre, further along Margaret Street. It has five screens, with planning approval for two more. Both The Strand and the Grand Central cinemas are operated by Birch Carroll and Coyle Limited (BCC). They run the two cinemas as a co-ordinated operation, so that usually there are different films to be seen at the two cinemas.
Reading Entertainment Inc. is an American operator of cinemas. It started to expand into Australia in 1985. It already has a presence in Townsville, Bundaberg, Harbour Town at the Gold Coast, and at Redbank near Ipswich. It now wants to be the operator of the proposed cinema at Wilstonton Shopping Centre. It believes that it will make a good return on its investment. In Toowoomba, as in other places, it faces opposition from the owners and operators of established cinemas.
Wilsonton Holdings Pty. Ltd. is the developer and owner of the Wilstonton shopping centre in Toowoomba. It wants to be able to put up this new cinema complex, so that it can lease it to Reading Entertainment.
As is often the case, that competition has thrown up planning issues, which have to be resolved.
The Land
The Wilstonton shopping centre is in the north-west of Toowoomba City, about three and a half kilometres from the Central Business District. It is on the northern side of Bridge Street, which is part of the Warrego Highway. The shopping centre is between Richmond Drive on its west, Erin Street on its east, and Kirra Street on its north.
The shopping centre has grown in an haphazard and untidy way. It is quite big – it now has about 13,000 square metres of retail space. It is dominated by a large two storey building which contains a Woolworths supermarket, and a number of smaller shops. Beside that large building are a cluster of older strip shops. Further away from Bridge Street is the Wilsonton Hotel. It is a one storey building which is currently being refurbished so that it will contain a theatre restaurant. Behind Woolworths, and off Erin Street, is a Woolworths Petrol Plus service station. Near it is a dental surgery.
The shopping centre also includes a liquor store, a hardware store, a Hungry Jacks, and a KFC.
On the opposite side of Bridge Street, to the south, the majority of the land is zoned Residential A. However, it also includes some commercial uses. There is a garage, a MacDonald’s restaurant, a Super Rooster restaurant, and a Chinese restaurant is not far away to the east. On the other side of Erin Street, to the east of the shopping centre, there are also commercial uses which have sprung up in the Residential A area. There is a swimming academy and a medical centre. (All of the above uses are shown in Figure 4 to Professor Brannock’s report.)
Opposite the Wilsonton Hotel, and at the rear of the Woolworths supermarket, there is the land which is the subject of this appeal. Part of the land is in the Residential A zone – seven housing allotments presently make up a rectangular block of land at the corner of Kirra Street and Erin Street. To their west, also adjoining Kirra Street, are three housing allotments which are part of the Commercial B zone. Those ten allotments make up most of the land which is in issue. It is on those allotments that Wilsonton Holdings proposes to build the cinema complex. Access has to be provided, and that is to be done by roads which are easements over the existing shopping centre which is on Commercial B land. (The above description is illustrated in Figures 2-5 of Professor Brannock’s report.)
At the present, the ten allotments contain single storey dwellings, mainly owned by Wilsonton Holdings. Overall, they are in a rather shabby condition. A vacant piece of land, equivalent to about 4 house allotments, is also zoned Commercial, and extends from the Wilsonton Hotel land across Kirra Street into the middle of a block which is otherwise Residential A. See Figure 3. The result is a rather curious mixture of Residential A and Commercial B land, in a strange configuration, the reason for which was not explained. The effect is that the front of the proposed cinema building would look to the west across Commercial B land, to Richmond Drive
So, the majority of the land for the proposed cinema complex is zoned Residential A, with the rest zoned Commercial B. The actual cinema building would be built mainly on the Residential A land. The rest of the Residential A land, and the Commercial B land, is to be used for car parking or access purposes.
The Cinema Complex
The proposal was for the development of a building containing six cinemas. It had a total of 1,280 seats. A plan of the development considered by Council is Ex. 3. The entrance faces to the west, towards Richmond Drive and the Wilsonton Hotel. That entrance is about level with the western side of the existing dental surgery.
The building had a gross floor area of 3,551 square metres. Its footprint on the ground would be 2310 square metres. The building is a rectangle, 58 metres long by 55 metres wide. The entire site, including the carparking and access areas is 11,794 square metres. 263 car spaces were proposed for parking.
The plan also shows the proposed fence and landscaping on the northern and eastern sides of the development – that is, on the Kirra Street and Erin Street frontages, where there are private houses. Access is provided to Hooper Street (which runs into Erin Street to the east) to Bridge Street, and to Richmond Drive.
Other drawings, including the elevations, show the design and appearance of the cinema complex. It is a large boxlike building, including a mezzanine level and biobox level. (The biobox is the long room which runs along the rear of each cinema, and contains the projection and sound equipment). The highest point of the roofline is 16.13 metres above the ground. The outside walls rise to a height of 12.95 metres. A good idea of the size and appearance of the building can be gained from the photographs of a rather similar building in Townsville – Ex. 23. The Townsville building contains some different details, but is comparable in size. It is another building made by the tilt-slab method – that is, the concrete walls are made on the ground, and then pushed upright to form the outside of the finished building.
During the hearing, it emerged that the plan, Ex. 3 might not satisfy those requirements in the planning scheme which deal with landscaping. The difficulty arose because of the requirements for development in the Commercial B Zone – see pp. 52/53 of the scheme Exhibit 7. There are no such landscaping requirements to be applied to non-residential development on the Residential A land – see p. 50. However, it was generally accepted at the hearing that a reasonable approach would be to adopt the standard for the Commercial B zone, and apply it to all of this development.
As a result of those likely difficulties about landscaping, an amended plan of development was produced by Wilsonton Holdings towards the end of the hearing. It is Ex. 74. Mr O’Brien, the landscape architect, explained the extent of the variations. The carparking layout has been slightly re-arranged. The actual area of the building on the ground has been slightly reduced. The area of landscaping has been increased, compared to that originally proposed in Ex. 3. The landscaping along Kirra Street is two metres wide, while the landscaping along Erin Street is 1.8 metres wide. Some additional landscaping is provided within the carparks. The slightly reduced footprint of the building means that it is now 19.3 metres from Kirra Street – that is, a metre further away from the street than proposed in the first plan. The reduction means that 80 seats at the most are to be lost from the 1280 in the first plan.
The evidence showed that the resulting car parking spaces would be acceptable to Council. That should be accepted in this court – there was no real issue about it.,
There was no suggestion, that the court could not receive and consider the amended plan.
Requirements For Development
It is necessary to identify immediately a hurdle faced by Wilsonton Holdings. The town plan contains Requirements Applying to Development, which include general requirements for non-residential development on residential land. Clause 8.1, (at p. 50), says that certain requirements are to be satisfied, where an application is made to erect and use a building for any non-residential purpose on a site in any residential zone. The requirements are these:
(a) No part of that building will be closer than six metres, or half the height of such building measured in metres, whichever is the greater, to any boundary of the site;
(b) The building or other structure is to be visually buffered or screened from the surrounding residential land to an extent and in a manner satisfactory to Council; and
(c) The building or other structure is to be designed, constructed and finished to maintain a “domestic” scale and appearance in keeping with the residential or rural streetscape and character of the locality.
Provided that Council may vary any of those requirements where Council is satisfied that the development will not adversely affect the amenity of the locality having regard to:
(a) the topography of the land;
(b) the shape, size and visibility of the site;
(c) the intensity and orientation of existing and likely future development on surrounding land; and
(d) the design, scale, nature and finish of the proposed building or other structure.
The language makes it clear that the requirement about amenity must be satisfied, if there is to be a relaxation. The provision was binding on the council. The court now is subject to the same constraint. The possibility of a relaxation depends upon the existence of a fact – that is, the court’s satisfaction that the development will not adversely affect the amenity of the locality having regard to various factors. That is to say, they are not merely requirements which guide the exercise of a discretion. Until the court is satisfied of those matters there is no power to relax the requirements.
There was no controversy about clause 8(1)(a) and (b). However, much attention was paid to clause (c). It was common ground that the proposed cinema complex was certainly not of a domestic scale and appearance, in keeping with the residential streetscape and character of the locality. Factors (a) to (d) are important, and are considered below. If the court is not satisfied to the required standard, then there is no discretion to approve the development. If it is satisfied, then there is a discretion to do so.
Somewhat similar requirements, about the design and siting for development in the Commercial B zone, also have to be considered. Part of the building will be in that zone. In that case, Cl. 2(1)(c) (on p. 52) of the planning scheme provides that:-
“The maximum building height is two storeys where the development is the erection of a new building ... .
Council may relax any of the requirements of paragraph (c) above having regard to :
(e) the size, shape and visibility of the site of the proposed development;
(f) the intensity of the proposed development;
(g) the siting, design and layout of the proposed development;
(h) the visual and general amenity to the locality;
(i) the existing and likely future development adjoining and in the vicinity of the site.”
It will be seen that the possibility of a relaxation, with regard to the maximum building height, is easier to obtain than a relaxation of the “domestic scale and appearance” requirement.
These requirements focus principally on the impact of the proposed building on its surroundings. It is necessary to describe, in more detail, the proposed cinema complex.
Its height was the subject of some debate at the hearing. Clause 2(i) (c) (at p.52) provides or a maximum building height of 2 storeys in the Commercial A Zone. The word “storey” is defined in the town plan, to be: “that space within a building which is situated between one floor level and the floor level next above, or if there no floor above, the ceiling or roof above.”
As the cinema complex does not include floors in the usual sense, being internally a series of boxes which make up the cinemas, there was a suggestion that it is only a single storey building. That suggestion was plainly wrong. The definitions are only intended to have effect, if the context does not indicate or require a different meaning. (See the introduction on page 2 of the planning scheme.) In this case, the context clearly requires some other meaning to be given to the word “storey”. It is obvious that a requirement of “2 storeys” is meant to limit the height of a building, no matter what it has got inside it.
Unfortunately, there is no precision about the expression “2 storeys”. The usual idea of a storey can vary somewhat between residential and commercial construction. The use of a flat roof or a pitched roof can make a difference to the building’s height. In provisions which are drawn by town planners rather than lawyers, it is necessary to overlook the imprecision and to search for the intent of the provision. There is no suggestion that this requirement was void for uncertainty. Rather, attempts were made to give it a practical meaning in this context.
Assertions about the height of the cinema complex during the hearing ranged from 3 storeys to 5 storeys. Exhibit 59 illustrates a recent Toowoomba approval for a commercial building in the colonial style. It can be seen that its height, from ground to the top of the pitched roof, is about 9.65 metres. Additional floors might be assumed to be in the order of 3 metres additional height. Therefore, a 3 storey building in such a style would be about 12.5 metres tall, while a 5 storey building would be about 15.5 metres.
If one compares the cinema complex with ordinary residential constructions, then it could be described as a 4 storey building. On the commercial scale, it is in the range of 3.5 to 4 storeys. In this case, the comparison is with domestic building. It can therefore be fairly described as a 4 storey building.
The above approach, abandoning the literal definition of storey in favour of the evident purpose of the regulation in protecting the amenity of the area, was also adopted by Judge Newton in Macedonian Orthodox Church and Cultural Community Gold Coast Incorporated v Council of the City of Gold Coast (unreported) judgment 14 January 2000. There, the proposal was to build a church which, in the traditional way, contained only one space between the floor and the roof. It also had two proposed bell towers and a cross, giving it a total height of about 19 metres. The judge said that:
“The planning scheme limits places of worship to a height not exceeding 2 storeys The scheme fails to include any definition of “storey”. Whilst the proposed building is to be constructed in a single storey, the proposed height of 17 metres, together with a cross of 2 metres, is significantly taller than a 2 storey house, which would not usually exceed 8.5 metres with a ceiling height of about 7.5 metres. In accordance with the relevant provisions in the Town Planning Scheme…the average height of the proposed building, being 10 metres, is roughly the equivalent of a 3 storey building in an area of predominantly 1 and 2 storey buildings….”
The considerations under both requirements are similar. The scale of appearance of the proposed building must also be considered. It is certainly not of a “domestic scale of appearance in keeping with the residential….street scape and character of the locality”. It is the large box like structure. The side walls and rear wall have no windows. The only wall to have an opening is that containing the entrance. While opinions about its design will no doubt vary, those expressed in evidence here contained strong criticism. Mr. Noel Robinson, the well known architect, described it as a bland, bulky building with no street presence. He noted its “massive scale”. He thought that it was a vulgar building to be put into a residential development. In his opinion, in effect, almost all architects would think that it was badly designed.
Mr. O’Brien, the landscape architect, had mixed feelings about the building. It is apparent from his evidence that he put considerable emphasis on the need for effective landscaping to hide the bulk of the building. While he believed that the entry side of the building had some degree of architectural merit, he thought that some other aspects of the building were lacking in architectural merit. He agreed that the building had a “sealed mausoleum like quality”. Overall, the design of the building had the potential to adversely affect the residential amenity. He thought that the building would be out of character with the surrounding residential development, but that one had to take into account that the existing commercial development was equally out of character with that residential development.
Mr. Chenoweth, also a landscape architect, was critical of the scale and form of the building. He thought that its size, and the height of the fence required to screen its impact from adjoining residents, was detrimental to the character of the surrounding residential area.
The need for landscaping has already been mentioned. It is proposed that a 2.4 metre high fence, of solid materials, will be built along the 2 sides of the cinema complex which face residential areas. That is, there will be no fence around the 2 sides which look into the shopping centre. Mr. O’Brien proposes a fence in which the appearance is broken up by having masonry supports project further towards the footpath. The panels of the fence will be of timber. The fence is designed to block the glare of headlights and (to some extent) the noise of motor vehicles from nearby residences.
Great emphasis was also placed by Wilstonton Holdings on the proposed use of landscaping. The areas to be landscaped are mentioned above. A feature of the landscaping is that it is mainly on the outside of the fence. That is designed to improve the appearance of the fence, and to discourage graffiti artists.
The emphasis on the fence, and particularly on the landscaping treatment, was for a purpose. That is, there was a wish to cover up as much as possible the bulk of the building. There was a controversy at the hearing, as to whether or not the depth and size of the landscaping would be sufficient to do that. Time has to be allowed for the trees and shrubs to mature – say, 4 or 5 years. Mr. O’Brien and Mr. McInnes thought that an effective screen would then be in place. On the other hand, Mr. Chenoweth was sceptical about the visual efficiency of the landscaping screen. It was also noted that the existing standard of the landscaping at the Wilstonton shopping centre is poor, so that future expectations of this proposed landscaping might be discounted for that reason.
Overall, Mr. Chenoweth’s opinion should be accepted, to the effect that the landscaping, even after 4 or 5 years, will not be an effective screen for so large a building, even one that will probably be painted in a drab colour. The above views about the poor and unacceptable design of the building, should also be accepted. Even if it is back almost 20 metres from the footpath it is very large and bulky in relation to surrounding development.
Mr. McInnes, the town planner, discussed the likely visual impressions of the building. He allowed 3 to 4 years for the growth of the landscaping, after which time he thought that the boundary planting, on the two sides, would be the dominant feature of the view. Even if that did not obliterate the building, he at least thought that it would significantly camouflage it. Once again, there was considerable emphasis on the need for a visual screen to hide the building. Overall, the evidence shows that Mr McInnes was rather too optimistic about the effect of the landscaping.
The topography in the area is generally flat, with a slight slope downhill towards Bridge Street. That is, it is not a case where the building would be particularly prominent because it would be on a hill, or disguised because it would be in a depression.
The town plan refers, (para 2, page 50) to “the locality” and “surrounding land”. The fact is, the development of this cinema complex would see it adjoining two different localities. Mr McInnes identified the impact that the shopping centre already has on its surroundings. On two sides it would adjoin the Wilston Park Shopping Centre. Its other two sides would face residential areas. It was not suggested that the amenity of those who actually find themselves within the shopping centre would suffer a loss of amenity. That is not surprising. As Mr. O’Brien noted, in substance, the architectural standards of the shopping centre were poor. The whole emphasis was on the effect the development would have on the adjoining residential locality. Indeed, that emphasis is required by para 8 (c), which speaks of a “domestic scale” in keeping with the residential streetscape and character of the locality. It was for that reason that, quite rightly, the emphasis during the hearing was on any detriments to the local residents, rather than the visitors to the shopping centre. Therefore, the question is – should the court be satisfied that the cinema complex will not adversely affect the amenity of the locality? Factors to which the court must have regard have already been discussed.
The witnesses offered various views, bearing on that question. Some, such as Mr. McInnes, thought that the residential amenity of the surrounding area would actually be improved by the fence and the landscaping. Professor Brannock thought that it would be damaged, by the intrusion of this very large development at the boundary of an intact residential area. Mr Chenoweth also thought that the amenity would be harmed. His evidence was helpful, as it sought to base the question of amenity on the provisions of the planning scheme, setting an objective standard.
Some assistance in assessing the impact on the amenity of the locality can be obtained from the local residents. Evidence of local attitudes, both for and against a proposal, may be relevant to the question of amenity. The views of neighbours, or those who signed petitions, can be taken into account in a case of this kind. It is relevant to consider the perception of residents about the amenity of their area.
Here, a petition containing some 10,000 signatures is in evidence. All were in favour of this proposal. (The population of Toowoomba City is about 88,000 persons.) It is also notable, that no local resident gave evidence against the proposal. More than 20 local residents were called, and either supported or did not object to the proposal. There were people from a variety of locations quite close to the site. They included most of the residents in the immediate vicinity (other than the occupants of properties owned by those connected with Wilsonton Holdings). They have been shown plans of the proposed development. Some had noted a tall gum tree on the site (from which some comparison can be made with the height of the proposed building) and some had seen the photographs of the Townsville cinema complex. Some of them were from the neighbouring streets.
However, the apparent impact of so much support has to be considered with care. It did not depend on any belief, that the present cinemas were below standard, or did not otherwise satisfy the demands of movie-goers in Toowoomba. It did not include any dissatisfied regional movie-goers. Some of the local residents were obviously attracted by the idea of a cinema complex within walking distance. The petition reflects the effort of its organisers, and shows no doubt that there would be a demand for another cinema complex. The degree of real appreciation by the petitioners and the local residents of the actual impact of this proposal is uncertain.
It is not possible to be satisfied that the development would not adversely affect the amenity of the residential locality. When the relevant factors are taken into account, the most likely result is that the amenity of the locality will be adversely affected. That is particularly because of the topography, size, scale and design of the building, its visibility and the need to screen it. It is notable that so much was expected of the rather thin areas of landscaping around the building, because of the realisation of the impact the building would otherwise have. Indeed, it was not suggested that it would be acceptable, without the effective use of the landscaping. It is a building that has to be camouflaged. Great efforts were made to demonstrate that nearby residents would hardly see the building over the fence and vegetation. Even if it were largely obscured, its overwhelming presence would still be evident.
The result is that, in the case of the residential land, a discretion to relax the requirements in cl. 8.1 cannot be exercised. That conclusion is sufficient to dispose of the entire appeal. However, because of the other evidence and submissions, it is appropriate to consider the application as if it depended entirely on discretionary considerations.
Traffic and Noise
Issues about traffic and noise also have to be considered. How much non-residential traffic would the development introduce into the surrounding street system? What would be the effect, especially at night? Would there be off-street parking? How much extra noise would there be?
The evidence of the experts was notable, in that there was very little disagreement between them. Both Richmond Street and Erin Street already carry non-residential traffic particularly while the shopping centre is open. There will be additional traffic, because of the later opening hours of the cinema complex. In effect, they predict that those streets will see additional traffic of about thirty to forty vehicles an hour after 8 pm. There will inevitably be some additional noise. There will be patrons talking, car doors slamming, and the noise of car engines starting. That will be sufficient to disturb the sleep of residents in Erin Street. It is presently a quiet, residential street at nighttime. Some thought was given by the engineers to the re-direction of traffic, but it would seem to be impractical in Richmond Street and Erin Street. Traffic calming devices are possible, but they can also create as many problems as they solve – such as the thump of a vehicle going over a raised strip.
Despite the provision of adequate car parking, it is predictable that some customers will chose to park in the nearby streets.
The result is a prediction of a significant impact on the residents in nearby streets, particularly Erin Street and Richmond Street, late at night. Mr Rumble, the noise expert, thought that the resulting noise changes would result in unreasonable deterioration to the environment values of the area. That opinion seems to be borne out by the evidence, and should be accepted.
The Town Plan - Zoning
This application is concerned with “indoor entertainment”. That refers to premises used for “any activity, purpose or pursuit which affords or is calculated to afford interest, pleasure or amusement and which is conducted predominantly within a building, whether or not food is provided”. The term includes “cinemas”.
In both the Residential A and Commercial B Zones, cinemas are a purpose which requires the consent of council. (That is also the case in zones Commercial A, Residential B, Residential C, Commercial Industry, Light Industry, Heavy Industry and Rural. They are forbidden in other Industrial Zones and in the Rural Residential and Bushland Residential Zones. In the Private Open Space Zone, cinemas may be developed without the consent of council. )
The intent of the zones is information about the expectations for each zone. That intent can be used as a guide when the discretion to allow or refuse consent is being considered. That is the settled approach in this court. See for example Wilson v BFC 1980 QPLR 121 at 123, and Craig v BCC 1998 QPELR 281 at 284C. For example, the intent for the Commercial A zone, which covers the centre of the city, refers to establishments which serve a regional or citywide function, including those for entertainment.
The intent of the Commercial B zone is this:-
“This zone is intended to provide for shopping, business and community facilities at locations outside the city centre. Such facilities include local, district and sub-regional commercial centres and specific business establishments. These uses should be conveniently located in relation to the areas they serve.
The Residential A intent is –
“This zone is intended to provide for development for residential purposes and for compatible purposes which directly serve residential neighbourhoods. This zone provides for dwelling houses, and for dual occupancy and accommodation units subject to the intent and requirements of DCP 2 – Accommodation Unit Development. Other uses appropriate in this zone are churches, local shops, outdoor and indoor entertainments, medical centres, motels and local community facilities.”
Those provisions anticipate that cinemas might be in the Commercial B and Residential A zones. Some assistance can be gained from the relative scale of activities expected in those zones. In the city centre, the expectation is that cinemas could serve a regional or city-wide function. In Commercial B, it is anticipated that the cinema should be “conveniently located in relation to the areas they serve”. In Residential A, the emphasis is on “compatible purposes which directly serve residential neighbourhoods”. At the end of the definition, consistently with that, the emphasis is on local community activities.
Those more limited aims in the Commercial B and Residential A zones should be kept in mind, if a discretion has to be exercised. It is accepted that these cinemas would have a regional rather than a local role. The intents assume that local cinemas will be in these zones.
The Strategic Plan
The Strategic Plan is meant to be a guide to all forms of development applications, including rezoning, subdivision and consent applications. (Para 1.0(3)).
Here, the Stategic Plan shows the preferred dominant land use areas for Toowoomba. The Residential A zoning coincides with the “Residential Ancillary Uses Area” in the Strategic Plan. Likewise, the Commercial A Zone coincides here with the “Commercial” areas of the Strategic Plan.
The Residential and Ancillary Uses provide for development for residential purposes and “for compatible uses which directly serve residents”. These ancillary uses include neighbourhood parks, shopping facilities, public utilities, schools, churches, child care centres, medical centres and community facilities. (Para. 2.(1)(a). The Commercial areas indicate:
“The existing distribution of major and district shopping centres and other significant commercial areas. The future development of additional retail and commercial uses is intended to occur in response to market demand and in accordance with the relevant Statement of Objectives, Town Planning Scheme provisions, and detailed local planning.
It is envisaged that such future development will occur mostly on land presently designated for residential and ancillary uses, and particularly adjoining or in the vicinity of existing commercial development”.
It can also be seen that the Strategic Plan puts an emphasis on the continuing vitality of the city centre. For example, para. 6(1) has, as its objective”
“To enhance, reaffirm and consolidate the city centre as the prime focus of commercial/retail activity in the Toowoomba region by ensuring that the development of the other commercial centres in the city occurs in a manner that is compatible in scale and service with the city centre”.
Objective 6(4) is “to safeguard and strengthen the accessibility and vitality of the city centre.” Implementation Provision (d) of that Objective says that:-
“The provision of additional entertainment facilities within the city centre will be encouraged.”
Therefore, the provision of large entertainment facilities outside the city centre should be considered with care. They will not be allowed as readily as those in the city centre.
In residential areas, para. 2.5 has as its objective, the aim of protecting the city’s residential areas from the intrusion of incompatible uses. The Plan proposes to implement that aim by saying:
“Non-residential development adjoining residential areas will be required to provide adequate buffering and/or screening and to be appropriately designed, sited and constructed so as to minimize any adverse affects on the residential amenity of the locality.”
The Development Control Plan
DCP1 is to guide future development of the city centre. It enlarges upon the announced strategic aims for the city centre. The city centre’s role is meant to be as the primary regional retail commercial and social centre on the Darling Downs. To achieve that, the intent for the retail core development area is to actively encourage facilities such as cinemas (p. 127 of the Scheme).
While such active encouragement does not exist in the present area, there is certainly no prohibition on the development of cinemas. The question is to assess the degree of support for cinemas on the scale and location that is proposed in this case. That task is made more difficult, because this proposed development straddles the Residential and Commercial zones. In a Commercial Zone, the essential reference is one back to the provisions of the Town Planning Scheme (already mentioned). In a Residential Zone, the aim is to protect nearby residential areas from the intrusion of incompatible uses. To achieve that aim, the emphasis is on appropriate design, situation and construction, together with buffering and screening, so that adverse affects on the residential amenity are minimized. Clearly, while consent might be given for this cinema development, particular care has to be taken to minimise adverse affects on residential amenity. In short, the Strategic Plan and DCP 1 offer no express support for this proposal as they would in the CBD. The large scale of the proposal means, at the least, that care has to be taken in considering the proposal. As the submission for Wilsonton Holdings put it:
“ the city centre is not to be the sole focus of commercial/retail activity. The existence of other commercial centres is recognised. What is called for, is the maintenance of a relativity between their scale and service and the scale and service of the city centre, so that the city centre will remain the prime focus of commercial/retail activity in the region”.
9. Conflict with the Town Plan
It was submitted for the appellants that this proposal was in clear conflict with the Strategic Plan and DCP 1. That submission goes too far, and cannot be accepted. There has to be a clear conflict. The proposal is not forbidden on this land. There is no clear hierarchy of centres, which would exclude it, as being necessarily out of place.
If Wilsonton is a district centre (as several witnesses desscribed it) then there is no prohibition on it acquiring a cinema complex serving a regional catchment. Rather, it falls within the range of the court’s discretion, to allow or refuse it. The planning provisions set out above have an impact on the exercise of the discretion. They do not show that there is a conflict, so that (other sufficient planning grounds aside) it has to be refused.
Town Planning Studies
Professor Brannock’s report identifies a number of strategies or studies commissioned by the council, dealing with development in the city centre. See p. 6. He relied upon those studies to show that a preference should be given for the city centre, rather than district or sub-regional centres, for the development of large scale cinemas. However, in my opinion, no such weight should be given to any of those documents. It is necessary to restrict consideration to the planning instruments discussed above. At the most, those studies demonstrate the council’s continuing concern with the development of the city centre – a concern already clearly expressed in the statutory documents.
Need and Demand
The planning scheme does not require the council to consider need, on an application for approval. However, in this hearing, it was accepted that the issue of need was a relevant factor in the court’s determination.
Toowoomba has two cinema complexes in the CBD. There are no cinemas in the suburbs. The Strand is in a heritage building. Grand Central is quite new, with the latest facilities. Between them they have ten screens. Grand Central has approval for two more screens, which could be quickly constructed if there were sufficient demand. There was no criticism of the services offered by these two complexes. The fitout of the Strand is not to contemporary standards, such as those found at Grand Central, but that was not a basis for customer dissatisfaction. No-one criticised the range of movies available. There are no queues because the demand for seats cannot be met.
The two cinemas provide a regional service for the Toowoomba catchment area. That area includes Gatton, Warwick, Inglewood, Millmerran and Dalby. See Mr Norling’s figure 4.1 (Exhibit 9). Within the area there is a single screen cinema at Dalby and twin cinemas in Warwick.
BCC operates the two complexes as one operation. That is, usually different films are showing at each complex. Because of the lack of competition, there is the possibility that a small reduction in prices might be achieved by competition. (The evidence showed that to be only a relatively slight factor).
Mr. Norling, the economic consultant, thought that the arrival of the Reading operation would see an overall increase in the number of those attending cinemas in Toowoomba. When analysed, it became apparent that his optimism relied very heavily on increasing attendances by those in the outlying country areas. His opinion was also linked to the actual experience in Townsville. There, a new cinema complex was introduced in competition with the long-established cinema. Attendance figures overall rose by 40%. However, the analogy between Toowoomba and Townsville must be treated with caution. Toowoomba has already experienced the impact of the recent arrival of the Grand Central cinemas. That arrival caused a considerable increase in overall attendances. It is unlikely to be repeated again. His reliance on regional customers was overly optimistic.
The evidence of Mr. Shimmin should be preferred to that of Mr Norling’s, with respect to the likely increase in attendances.
Readings believe that they can make a commercial success of this proposed cinema. Their expertise should be respected. The complex probably will be successful. Inevitably, it will have an impact on the existing cinemas. The evidence shows that it is likely that the Strand Cinema will either close, or remain to satisfy a more limited market, especially for “art house” films. Mr Norling thought that the Strand would probably close. If that were to happen, then there might be a reduction in prices at the Grand Central, because of the competition from Readings. It is likely that the same films would be showing, in competition, at Wilsonton and the Grand Central. That is, there would probably be an overall reduction in the number of movies showing at any one time.
Overall, the conclusions of Mr Shimmin should be accepted;
(a)the cinema market in the Toowoomba region is insufficient to support a third major cinema complex within Toowoomba city
(b)the proposed Wilsonton cinema would provide essentially the same design features and technology as the Grant Central cinemas. The Wilsonton cinema will offer no improvement on those facilities.
(c)It is probably that the Strand Cinema complex will close, within the CBD. That will have an overall detrimental effect on the range of cinema facilities in the CBD.
(d)The proposed development is not justified on the basis of either market growth or latent demand. That is especially true, bearing in mind the further two approvals already in place at Grand Central.
What has been shown is that there will probably be a substantial demand for the new complex. Reading’s, and both Mr Norling and Mr Alston, thought so. That is why the Strand will probably close, or be severely affected. The 10,000 petitions in favour of the development support those conclusions. They also show, no doubt, that customers on the Wilsonton side of Toowoomba would find it convenient to go to the new complex.
However, demand is not the same thing as need. That was pointed out by Judge Skoien in All-a-wah Cara Park v Noosa Shire Council 1989 QPLR 157. The question here is , whether there is a need for this development.
The question of need is an elusive concept. Here, planning need is in issue. The commercial needs of competitors are not the same as the needs of the community as a whole. It has been made clearer, in one respect, by the recent decision of the Queensland Court of Appeal in Arksmead Pty Ltd v Council of the City of the Gold Coast (Appeal 4436 of 1999 10 March 2000 unreported). The large number of cases cited by counsel in this appeal illustrate the uncertain boundaries of the concept of need. The issue can be put this way – is there in existence at this time a latent unsatisfied demand on the part of those in the Toowoomba region, for cinema facilities, which is not being met at all, or not being adequately met, by the present facilities? It must also be kept in mind that while the Wilsonton complex would be convenient for those in that locality, it would not be as convenient as a CBD cinema, for those coming from the other side of Toowoomba.
The evidence does not show a planning need for this cinema complex.
It was made an issue, in the hope that the existence of a positive need would provide a reason for granting the approval. As there is no such need, that reason has not been made out.
(It is necessary to note another argument that was not supported by the evidence. That is, it was suggested that the council’s ambitions for a vibrant CBD would be damaged by this development in a suburban area. The evidence is that the effect will be slight. The economic impact on turnover at Grand Central would cause a decrease of no more than 1%, while the impact on the Eat Street businesses will be about 2% rising to 5% if the Strand were to close. The likely impact on the CBD is not a factor against this proposal.)
Blight
A traditional description of a blighted area was used by Mr Veal, an architect called on behalf of Wilsonton Holdings. He thought that the traditional idea of blight referred to a blighted area, or slum, in a district in which most of the buildings were dilapidated. Slum dwellings usually lack adequate plumbing, running water and heating facilities. Buildings often stand crowded together. Occupants of blighted areas have low incomes, and several families may live in one dwelling unit. Slums usually are densely populated and have high rates of illness, disease, crime and delinquency.
On that basis, he thought that while blighted areas have occurred in densely populated overseas cities, real blight was hardly known in Australia (Redfern in Sydney possibly being an exception). There was certainly no evidence of blight in this section of Margaret Street. That was so, even though the court house and the post office on the other side of the street were not being used for their original purposes. The post office has closed.
Mr Noel Robinson, who was called as a witness principally because of his work as an architect with the Strand Cinema in the past, thought that the concept of blight could be applied to a single building which became vacant because its uses were obsolete or unprofitable. Whether or not that is an appropriate concept of blight is doubtful. However, blight or not, the impact of the proposed development on this heritage building might be considered, because of the community interest in the preservation of a heritage building.
The Strand Theatre was built in 1915-16. It was purpose built as a cinema, reflecting the emergence of cinema as a 20th Century social phenomenon. It has a striking facade to Margaret Street. The facade has largely been preserved – see the photographs in Mr Veal’s report, Exhibit 61. Inside, there are alterations, but the main auditorium is largely intact. Mr Robinson’s earlier work in creating the present complex saw the addition of modern cinemas to each side of the original building.
If competition means that Strand Cinemas are not commercially viable, then other uses will be sought for the building. Because of the heritage listing, there are likely to be difficulties in persuading the authorities that they should be allowed. Any alterations will have to accommodate the preservation of the old part of the building. Otherwise, there were some differences of view about how difficult it would be to imagine other uses that could be put into the existing structures.
Of course, it is not certain that the Strand would close. It may survive as a cinema complex. The evidence suggests that BCC not likely to disappear at the first sign of competition. Mr. Altson thought that Readings would probably be prepared to take it over, should it have the opportunity to do so.
If the Strand cinemas were to close, then both Mr Robinson and Mr Veal agree that the building could be used for other purposes. A feasibility study would be needed, to identify the best uses. Mr Robinson agreed that there were plenty of options to do other things within the existing fabric, though he was cautious about the trouble and expense needed to achieve those changes.
It is true, that there is a considerable number of vacancies in other nearby commercial premises. That may add to the difficulties.
However, having considered the evidence of both Mr Robinson and Mr Veal, there is nothing to demonstrate that the Toowoomba community is likely to lose the use of this heritage building. It is true that commercial distress might be caused to its owners. That is not a town planning consideration.
Therefore, in my opinion, the difficulties the Strand Cinema might experience is not a factor to be weighed against a approval of this proposed development.
Conclusions
The suggested issues of need and blight and the impact on the CBD can be put aside. Issues of amenity, traffic, noise and town planning have to be considered in the context of this planning scheme. The requirements for development are significant in showing the formal expectations of the city. Those factors have to be weighed up in a changing area which includes both intact residential housing and a large shopping centre. The proposal is ambitious and will have a significant impact. Its scale has to be seen in a planning context which would more readily see such a development in the city centre. The need to protect the residential area is significant. The relaxations requested should not be granted. The application should be refused.
In deference to council, it should be realised that the court has the benefit of evidence, expert opinion and argument which was not available to council. Also, Mr Hartley’s report did not make it clear to the council that the Requirement for Development amounted to a considerable hurdle, so that the development was forbidden, and a relaxation of the requirements not allowable, until there was a definite finding that the amenity of the residential area would not be affected.
The order of the court is that the appeal be allowed and that the application be refused.
0
0
0