Renard Developments Pty Ltd v Caloundra City Council

[2000] QPEC 88

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Renard Developments Pty Ltd v Caloundra City Council. [2000] QPE 088
PARTIES:	RENARD DEVELOPMENTS PTY LTD (Appellant) v. CALOUNDRA CITY COUNCIL (Respondent) & GARY DILLON AND CALOUNDRA RSL SUB- BRANCH SERVICES CLUB INC. (Co-Respondents)
FILE NO:	2617 of 2000
DELIVERED ON:	15 December 2000
DELIVERED AT:	Brisbane
HEARING	4 – 7 December 2000
DATES:
JUDGE:	Skoien S.J.D.C.
ORDER:	Appeal allowed.
CATCHWORDS:	Material change of use; tavern; weight to be given to proposed replacement Development Control Plan; parking requirements relaxation.
COUNSEL:	Mr C Hughes for the applicant Mr J Houston for the respondent Mr W Cochrane for the co-respondents
SOLICITORS:	Lester Manning, Lawyers for the appellant Corrs Chambers, Westgarth for the respondent Geoffrey M Lyons & Co for the co-respondents

1. This is an appeal by Renard against the Council’s decision made on 25 May 2000 to refuse Renard’s application for a material change of use on land at the corner of Bowman Road and Baldwin Street, Caloundra.

The Site

1. The site is in the Golden Beach area of Caloundra and is located on the southern side of Bowman Road, Caloundra, on the south-eastern corner of the Bowman Road/Baldwin Street intersection. It is on the western edge of, and on the approaches to, the central Caloundra commercial area on the primary access road to Caloundra. Bowman Road (to which the site has a 37 m. frontage) runs approximately east/west and Baldwin Street (to which the site has a frontage of 65 m.) runs north/south. The site is currently vacant with a disused building which was previously used as a gymnasium on it. Before that the site served as a car sales yard. The building has a floor area of 670m².

2. The site and other land fronting Bowman Road is currently zoned Special Business. Land further to the south of the site is variously zoned for residential purposes. The Development Control Plan 2 for Golden Beach includes the site in Special Design Precinct 8. Some 2-4 km to the south of the site is the potentially large residential growth area of Pelican Waters and a similar area (Little Mountain) is about 5 km to the west of the site.

3. Land uses in the vicinity of the site are generally reflective of the current zonings and include such things as fast food stores/restaurants, car yard, video hire outlets, motels, recreation uses (waterslide, fitness centre), service station, electrical supplies, child activity centre and ten-pin bowling centre. Landscaping to these establishments, generally speaking, is conspicuous by its absence. It must be said that the “entry statement” which these uses make to the person entering central Caloundra, is not a particularly attractive one.

The Application

1. The application for a development permit for a hotel (tavern) on the site, to make use of the 670m² disused building, was lodged with the Council on 28 October 1999 and was modified on 14 February 2000 to include a bottle shop. Components of the proposal include a bar and saloon area, games room (to contain 12-16 poker machines), restaurant and function room, reception/kitchen, small bottle shop, work and store area/cool room and toilet area. The proposal is for the premises to be operated under a general licence, pursuant to the Liquor Act 1992.

2. Pedestrian access to the building is proposed at two main locations. Access to the bar/saloon/bottle shop is to be towards the southern end of the Baldwin Street façade and access to the restaurant/function room is to be to the Bowman Road façade. Vehicle access to the site is proposed at the southern end of the site, from Baldwin Street. That access leads directly to the car parking area in which 49 parking spaces are proposed as well as a loading area adjacent to the cool room.

3. Landscaping on the site presently exists along the Bowman Road and Baldwin Street frontages, with a general width of 2.0 metres, and along the southern boundary, with a general width of 1.5 metres. Although it clearly has not been tended for some time, it is surprisingly attractive and is remarkably effective in screening, without hiding, the building and the car park.

The Issues

[8] The live issues can be discussed under the headings of need, social impacts, parking
and site suitability.

Need

1. The concept of need, in a planning sense, has been often discussed. Thus:

   “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 approve the physical well-being of the community” (Cut Price Stores Retailers v. Caboolture Shire Council (1984) Q.P.L.R. 126 at p.131);

   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 p.60).

2. It could not be said that the people who live in southern or western Caloundra, or their visitors, or tourists who come to the area, cannot get a glass of liquor, buy a bottle of wine, or indulge a desire to use a poker machine. There is a present availability of all of those, most notably in the R.S.L. Club, about 600 metres to the north of the site. There are seven bottle shops in the urban area and recently a stylish licensed clubhouse opened at the new golf club in Pelican Waters. About 1.5 km to the east of the site is the very large Caloundra Hotel, the Kings Beach Tavern is about 2.5 km to the north-east and the Currimundi Hotel is about 5 km to the north. There are also a few clubs in the general area which serve liquor but to what extent to non-members I am not aware.

3. However none of these occupy the niche that the proposed tavern is likely to occupy. The R.S.L. Club, upon which much of the evidence focussed, is very large. On the inspection I thought that the array of about 280 electronic poker machines which are immediately visible on entering the club entrance was rather dominating. Other activities, for example live entertainment, dancing etc. take up other large areas. I have no doubt that these attractions, which are enabled by the very size of the club, are attractive to the many patrons of the club and contribute to its financial success. However I consider there are people in the area who would prefer to go to a much smaller establishment offering meals and alcoholic drinks and limited gambling in a separate small room. A similar comparison can be made with the Caloundra Hotel and the more remote Kings Beach Tavern and Currimundi Hotel.

4. The golf club also occupies a different niche. It is clearly an expensive development where prices are likely to be higher than at other establishments and consequently is likely to attract a different clientele from those who might frequent the proposed tavern. Furthermore, the golf club is not licensed to sell take away liquor.

5. Renard is intending to establish a “family style” tavern, but as yet has not settled on a theme to accomplish that. This absence of an actual theme or style of development brought forth some criticism but I was not disturbed by that. It is obvious that the building and the area available for parking are too small to enable anything very ambitious, such as a separate children’s’ games area but that does not make the tavern incompatible with family patronage. What I understand to be meant by the concept of a “family tavern” is a small, quiet establishment in which meals are served to people of all ages in attractive surroundings, the adults drinking alcoholic liquor. Or there might be a family spending a shorter time on the premises just to enjoy a drink. Naturally there will also be groups of patrons none of whom will be under 18 years of age. However the overall concept, as I envisage it, is of a lawful, properly maintained and operated establishment in which those who drink liquor do so in a social, civilised way. Such establishments, very common elsewhere (in parts of Europe for example) are no longer unknown in Australia. Any children who are present will experience that social civilized atmosphere and one hopes that in adulthood their approach to liquor will be influenced favourably by those experiences.

6. Mr. McCracken, the expert witness called by the Council was careful not to overstate the effect of the evidence he gave. He did not say that there was no need for the proposed tavern. He said that such a need was uncertain. However his own figures revealed a population of over 8000 people in the most relevant sub- catchment area of the tavern (to the west and south) in which area no general liquor licence exists and probably will not for some considerable time to come if this tavern does not establish on the site. Indeed, it was common ground that there are only three general licences in the overall catchment area with a population of over 30,000, which is a low proportion on a statewide comparison. He also conceded that over 4000 people would work in the vicinity of the site. Many of those people, I consider, might well prefer the relative ease of a visit to this site rather than negotiate the comparatively restricted and busy traffic network to get to the Caloundra Hotel for example.

7. Taking all into consideration, including those features just discussed, I am inclined to adopt the evidence of Mr Norling, Renard’s consultant expert that there are sufficient numbers of people within the catchment area who would find this proposed tavern more geographically convenient than any of the other three establishments holding a general liquor licence. I also consider that the small size and very different type of establishment might attract patronage otherwise restricted to the other large establishments. Indeed, it is likely that some people, living even further from the site, but working near it or simply attracted to its style, would patronize it too. Quite large numbers of people live within easy walking distance of the site and I see no reason why some of them would not take advantage of that easy access. Thus, I find that there is a need for the proposed tavern.

Social Impacts

1. The Council led evidence from Dr Brannock, a sociologist, on the social impacts which the establishment of a tavern with poker machines on this site could have on the local community, particularly young people. In cross-examination she agreed with Mr. Hughes, for Renard, that her attitude was not that there would be unacceptable social impact, rather that there might be. Her opinion was cautionary rather than positively opposed to the development. Statements from people who live or work in the area, also expressing concern at the proposal were tendered and I have read them.

2. I do not reject this evidence of the potential dangers posed by alcohol and gambling. Any reasonably informed member of the public, not to mention a judge who regularly sits in the criminal jurisdiction of the District Court, is only too aware of that. But central Caloundra is, on the evidence, a peaceful area, not known for anti-social behaviour on the part of its residents or visitors. I have no reason to believe that the tavern will not be lawfully run or that, for example, underage drinking or gambling will be permitted. These facts make this case easily distinguishable from the situation considered by Brabazon DCJ in Bounds v. Council of the City of Logan (1997) QPELR 392. The site is actually in close proximity to the police station which adds to the confidence I feel in this regard. There is no basis for considering that the establishment of this tavern with a dozen or so poker machines will lead anyone to take a drink or to gamble who would not otherwise have done so at the RSL Club or at one of the hotels or other establishments offering those inducements. Nor do I think there is any serious risk of tavern patrons setting a bad example to young people or offending their sensibilities.

   Parking

3. A great deal of time was spent on this issue, debating the number of parking spaces which should be provided, their location, the type of vehicular entry there ought to be to the parking area and the allied question of pedestrian access to and safety on the site.

4. Applying the table set out in part 3 of the Planning Scheme to the areas delineated for different functions within the building, the requirement is for 49 parking spaces. However s.3.1(5) of the scheme provides that:

   “(a) A variation of the required number of car parking spaces may be granted provided Council is satisfied less provision is justified having regard to:

   (i) the circumstances of the case … having regard to the particular
   site or the operating characteristics of the particular use;

   (ii)        whether the requirements are impracticable or unreasonable.”

5. Some general remarks are apposite. First, expert evidence was that the Council’s requirements are based on demand estimated at the 85th percentile. So the Scheme itself contemplates occasional requirements for off-site parking. Second, Baldwin Street is available to take some overflow parking should it be necessary. The street is wide enough and at the likely times of peak demand at the Tavern the other commercial premises in the street (including, importantly, the child care centre) are not likely to be in actual use. That immediately calls up s.3.1(5)(a)(i) above. Third, the same provision is called up when one recalls that this “particular site” is to be re-used. The particular virtue of that is discussed in para [31], post. Then finally, it seems to me to be a notorious fact that, increasingly, the strict laws against drink driving are leading to multi-occupancy of vehicles to go to hotels with the designation of one occupant to be the non-drinking driver. Alternatively, taxis or public transport are used, or patrons walk. If that trend continues, as I think is very likely, the occasions of overflow parking from this tavern may well be few. So in all the circumstances, I am satisfied that some relaxation of the required parking numbers is justified if those numbers cannot properly be accommodated.

6. It is physically possible to fit 49 car spaces on the site, but there are some unsatisfactory aspects of that which led me to the conclusion that a relaxation of the parking requirements is called for. It does not permit a defined pedestrian access to the saloon/bottle shop area. The removal of one space (perhaps no. 43 on Mr. Holdworth’s plan) would achieve that and also allow a neighbouring space to be widened to be a space for disabled drivers. Next, space no. 12 constricts the aisle widths and should be removed. There should be a pedestrian walkway along the western wall of the building and it should turn at the northern end of the building to extend up as far as the entry door in the northern wall of the building (another virtue of the removal of space no. 12). That entry door in the northern wall should be relocated sufficiently to the west to allow the provision of a safe pedestrian entry pad at the entry door which does not encroach on a vehicle aisle width of 5.5 metres. A 2 m. encroachment into the proposed landscaping (as shown on ex. 18) should be provided to improve manoeuvering for spaces 1 and 2. Space 33 should be deleted to remove the likely impediment to traffic which would be caused by vehicles entering that space. A pedestrian entry should be incorporated in the landscaped area beside the vehicle entry in Baldwin Street. Another pedestrian entry should be incorporated in the landscaped area in the north east corner of the site, the delineated footpath to continue down the northern wall to the entry door. There should not be a pedestrian entry in the north western corner (i.e. at the street intersection) because it would be likely to conflict with cars in spaces nos. 11 and 15. The entry of large vehicles to deliver or cart away should be restricted to the hours of 7 a.m.-9 a.m. Spaces 48 and 49 should be marked “Staff parking only” and moved to the west enough to allow the industrial refuse bin to be stationed in front of these spaces.

7. Conditions should be drawn to reflect the above (or alternatively, any preferable compromises the expert consultants might agree upon). My suggestions are intended to be a distillation of the evidence of the three experts who gave evidence, Mr. Holdsworth, Mr. Olsen and Mr. Pekol. On the remaining question, the width of the entry drive, I have preferred the view of Mr. Holdsworth and Mr. Pekol that, based on the appropriate Australian standard, 7 metres is sufficient.

Site suitability

1. Under this heading it is appropriate to consider the effect of the statutory planning provisions. I was not referred to any provision of the Strategic Plan which was said to be relevant. I was, however, referred to Development Control Plan 2, Golden Beach (“the current DCP”) and to the December 2000 revised draft of the proposed Caloundra Regional Centre Development Control Plan (“the proposed DCP”). The proposed DCP has been through the public notification stage, has been re-assessed by the Council in the light of submissions received and now has been re-advertised in its amended form. The planners who gave evidence were not of the view that any further amendments to the provisions which are material to this proposal would be made. So I can regard the December 2000 draft as most probably containing the DCP as it will relate to this site and the area about it.

2. Under the current planning scheme, a hotel is a prohibited use on this site. That really is of no consequence because s.6.1.30 (3) (a) of the Integrated Planning Act 1997 has the effect that what is notionally being considered in this appeal is a re- zoning under the Local Government (Planning and Environment) Act 1990. All re- zoning applications are to permit the establishment of uses which are under prohibited uses under the existing zoning.

3. Section 4.4 (5A) of the Planning and Environment Act requires the application to re-zone to be refused if it conflicts with the Strategic Plan or a Development Control Plan, unless there are sufficient planning grounds to justify an approval notwithstanding the conflict.

4. Mr Cochrane, for the co-respondents, pointed to s.7.08 of the current DCP which relates to the precinct in which the site falls (SDP8) and in particular to implementation provision (a) which is:

   “Council encourages development with a high standard of visual amenity along Bowman Road for showroom, warehouses and vehicular sales uses.”

   That provision suggests that the proposed tavern use is not one which the Council will encourage, but it goes too far to say that therefore the proposed use is in conflict with the provision. Had the drafter of the DCP intended that certain developments would not be permitted, or would be discouraged, it would have been easy to say so. As the provision stands the Council would have a duty to consider dispassionately a non-encouraged proposed use and to decide, on its merits, whether it is nevertheless an appropriate development.

5. The proposed DCP includes the site in sub-precinct A, in which a hotel is a permissible use. While that proposed DCP is not yet law, it has proceeded so far through the necessary processes that considerable weight must be given to it. The evidence from the town planing experts satisfied me that there is unlikely to be any further material amendment to it. The fact that it includes a hotel use in the permissible column for sub-precinct A is highly relevant to the future development of the sub-precinct and is very persuasive in considering this proposed development.

6. I am unable to accept the opinion of Mr Higginson, a consultant town planner called by the Council, that the proposed use is contrary to the intent for the current DCP precinct SDP8 which states at s.7.08:-

   “The intent of this precinct is to provide for commercial buildings

   along Bowman Road frontage … ”,

   and he based a similar opinion on s.2.00 of the current DCP “Elements of the
   Plan”:-

   “This precinct provides for non-shopping commercial purposes including quality showrooms, motels and vehicle oriented uses along Bowman Road … ”

1. The current DCP does not define “commercial” and it is unlikely that the definition of “commercial premises” in the planning scheme applies because that definition expressly excludes showrooms and service stations, two uses specifically contemplated by the “elements of the plan” supra. So the ordinary, or dictionary meaning applies, that is “relating to commerce or trade.” To my mind a hotel is clearly a commercial use in the broad sense. The fact that a small bottle shop is to be part of the establishment does not affect that element. It is a minor adjunct to the main use, the tavern which is a non-shopping commercial use.

2. It is highly relevant to look at the existing land uses in the vicinity, as listed in para [4] above. In my view the only one which is not easily seen to be compatible with a tavern is the child care centre which is in Baldwin Street to the south of the site. However on closer consideration I do not see any real conflict. The two establishments are separated by a commercial building (electrical). The peak activities of the two occur at different times and are unlikely to clash. Pre-school- age children are unlikely to have any notion of the nature of the activities carried out at the tavern. Each of the uses is commercial in nature.

3. I accept Mr Hughes submission on behalf of Renard that the fact that the proposal intends to re-cycle an existing building is a positive argument in favour of it. The building is structurally sound and the concrete surface of the car park is, to my view, in good condition. It makes sense to re-use what exists rather than to expend money and energy to destroy it, cart away the considerable amount of rubble and re-build. I note that s.1.2.3 (e) of the Integrated Planning Act records, as one of the Act’s purposes “applying standards of … conservation, energy … in the built environment that are cost effective … ” And it is also noteworthy that in the proposed DCP the table of development lists in the permitted use column a number of uses “which do not involve the erection of a building.” So the availability of an existing building seems now to be statutorily recognised as a relevant feature.

4. The success of the residual landscaping in making quite an attractive contribution to an otherwise unattractive site encourages me to accept that landscaping of the type proposed by Mr Hindley will not just preserve that effect, but substantially improve on it. He proposes to vary it to create curvilinear sections along the two road frontages with minimum depths of 2m and maximum depths of 3.5m. Some of that deeper landscaping may actually encroach slightly onto the footpath which can only occur if the Council allows it. I cannot order the Council to do that but I was told that such an attitude on the Council’s part is not unknown and (provided the occupier maintains the landscaping well) it is to be hoped that the Council will be co-operative. To the extent that the proposed landscaping depths necessitate a relaxation of the Council’s standards, such a relaxation is justified.

5. At the north-eastern, north-western and south-western corners of the site much deeper sections of landscaping are possible and are intended. I accept that these sections can incorporate pedestrian entry footpaths. Then along sections of the façade of the building itself, it is feasible to plant small to medium sized trees which will have the effect of breaking up the outline of the building as well as providing some shade. The elevations of the building as shown on the architect’s plans show that the building itself will be greatly improved in appearance. All in all, I can envisage that this site, when the building has been re-modelled and the landscaping developed as Mr Hindley intends, will indeed make an attractive “entry statement” to the commercial centre of Caloundra.

6. In summary the tavern is likely to be attractively landscaped; will provide an appealing “entry statement”; it will make use of an existing building; its commercial nature is compatible with surrounding uses; it has not been suggested that it will disturb the amenity of the area; it should rarely lead to on-street parking; it fills a presently existing need for a small tavern which will act as a social focus for its patrons; it is unlikely to have any untoward social impacts; it is not in conflict with the strategic plan or the existing DCP; it is compatible with the likely replacement DCP. Even if there were seen to be a conflict with the current DCP, the features I have listed in this paragraph would amply justify its establishment despite the conflict.

   Conclusion

7. In due course the appeal will be allowed. For now I adjourn it to a date to be fixed to allow the parties the opportunity to agree all relevant and reasonable conditions on the development.