Ribpark Pty Ltd v Brisbane City Council

[2003] QPEC 57

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ribpark Pty Ltd v. Brisbane City Council [2003] QPEC 057

PARTIES:

RIBPARK PTY LTD (Appellant)

v.

BRISBANE CITY COUNCIL (Respondent)

FILE NO/S:

1226 of 2003

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court Brisbane

DELIVERED ON:

24^th October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2003

JUDGE:

McLauchlan QC, DCJ

ORDER:

Appeal Refused

CATCHWORDS:

Strategic Plan – Planning Policy – Local Planning Policy 19.13 – Town Plan

COUNSEL:

App: Mr A Skoien; Res: Mr T Trotter

SOLICITORS:

App: Griffiths Parry; Res: Brisbane City Legal Practice

1. This is an appeal against a decision of the respondent made on 25 October 2002 refusing an Application for a Material Change of Use (Development Permit) to develop land situated at the corner of Sussex Street and Osborne Road Mitchelton, being Lot 1  RP 123766, Parish of Enoggera, County of Stanley.  The change proposed is for the use of the premises as a local store and local surgery, the premises having previously been operated as a service station.  The service station ceased operation in 1998.  The premises consist of a disused Ampol Service Station building to which additions have been made on the southern side of the building to convert it to a residential use.  The premises are opposite the main entrance to Brookside Shopping Centre in Osborne Rd.

1. The application is a Development Application (Superseded Planning Scheme) and was assessed against the provisions of the 1987 Town Plan for the City of Brisbane, in accordance with s.3.2.5(3) of the Integrated Planning Act 1997.  Section 3.5.5(4) IPA states that the Assessment Manager must assess and decide an application (Superseded Planning Scheme) as if :

“(a)The application were an application to which the Superseded Planning Scheme applied;  and

(b)         The existing Planning Scheme was not in force.”

1. In s.30 of the Town Plan the definition of “business premises” contains a subordinate definition of a “local surgery” and the definition of a “shop” contains a subordinate definition of a “local store”.  These definitions are as follows:

“ ‘Local Surgery’ means any premises having a gross floor area not exceeding 70 square metres used or intended for use for the practising or carrying on by only one general medical practitioner or dentist of his profession;” 

“ ‘Local Store’ means a building the floor area of which does not exceed 200 square metres used or intended for use for the sale, or displaying or offering for sale, by retail of the range of different convenience goods for the day to day needs of the surrounding neighbourhood but does not include a roadside stall or any part of a shopping centre;

The term includes the subordinate conduct at those premises of one or both of these activities which respectively characterise a use of premises for the purpose of a fast-foods store and restaurant.”

1. The site is within the Residential A zone under the Town Plan and the proposed uses fall within column 3 (Permissible Development) of that zone.  Accordingly, the application was required to follow the impact assessment process.

1. The refusal of the application by the respondent was, in broad terms, based on conflicts with the intent of the Strategic Plan, the Residential A zone, and Planning Policy 19.13.

1. The proposal involves the retention and use of the original service station building and the newly constructed extension.  The original building had a gross floor area in the order of 160 square metres.  With the newly extended area, the existing building has a gross floor area of 249 square metres.  The application originally sought approval for a local store of 178 square metres and a local surgery of 70 square metres.  However, the application has been amended and approval is now sought for a local store of 139 square metres and a local surgery of 60 square metres.  The hours of operation are to be 8 a.m. to 8 p.m. 

1. Following correspondence between the parties the respondent particularised its grounds for refusal, namely that the proposal was contrary to the intent of the Strategic Plan, the Residential A zone, and Planning Policy 19.13.  In relation to the Strategic Plan, the sections relied upon are s.3.2.4.1, 3.2.4.2, 3.2.4.5, 3.3.2.1 and 3.3.4.1.  The facts, matters and circumstances relied upon for the contention that the proposal is contrary to the intent of the Strategic Plan are stated as follows:

·     The proposal constitutes a freestanding, out of centre commercial development; 

·     The proposal would impinge upon the distinct boundary created by Osborne Road between the business zone and the Residential A zone; 

·     The proposal is of a distinctly commercial nature and is inconsistent with the residential character of the area;

·     The proposal would not provide a necessary local service;

·     The location of the proposal is such that it will likely lead to undesirable and unnecessary pedestrian and vehicular crossings of Osborne Road and Sussex Street, in addition to the proposed accesses to Osborne Road and Sussex Street.

1. The provisions relied on in relation to the intent of the Residential A zone were specified as s.7.1.6 and s.7.2.1.

1. The facts, matters and circumstances relied upon in relation to the Residential A zone were stated as follows:

·     The proposal is of a distinctly commercial nature and is inconsistent with the residential character of the area; 

·     The proposal would not fulfil a necessary local service

1. The provisions relied upon in relation to Planning Policy 19.13 are specified as Sections A(1) and A(2).

1. The facts, matters and circumstances relied upon in relation to the Planning Policy are stated as follows:

·     The proposal includes a significant expansion of the existing building that is inconsistent with the residential character of the area;

·     The proposal includes extended hours of operation;

·     The proposal would not provide a necessary local service;

·     The proposal is located on a major road;

·     The proposal would have a detrimental impact on the commercial centre located opposite.

1. These matters raise issues of planning policy, amenity issues, traffic issues and some questions of construction of the planning documents.

Planning Documents

A:  The Strategic Plan

1. One of the specific desired outcomes for the City nominated in the Strategic Plan is “a well designed and culturally dynamic city”.  One of the means of achieving this is specified in s.3.2.4.1 as:

“identifying, maintaining and enhancing the scenic and visual amenity of the City through:

(d)ensuring development complements the character and style of the surrounding area;  and

(e)maintaining distinct visual boundaries on the edge of the City, between individual areas and along Major Movement Networks, which add to the scenic diversity and visual attractiveness of the City;”

1. Further strategies are specified in 3.2.4.2 and 3.2.4.5 as follows:

“3.2.4.2
requiring development to maintain and enhance the character, amenity and sense of place of urban areas, neighbourhoods and localities appropriate to the environmental and cultural contexts of those areas through:

(b)encouraging the integration of retailing, service, cultural, community facilities and public transport in centres;”

“3.2.4.5

ensuring that people are able to choose their residential location with realistic expectations of the future amenity of the area through:

(a)ensuring that incompatible land uses do not intrude into residential areas and that residential amenity is maintained.  Non-residential uses generally require consent and must provide local services within the residential area.  Consent may be given in appropriate locations when the proposal maintains an acceptable level of residential amenity.

(b)maintaining acceptable standards of amenity in the vicinity of the boundaries of residential zones with other zones, through the allocation of land uses in Council proposals, the allocation of zones where amendments are proposed and the exercise of discretionary powers in relation to applications in adjacent zones.  Spot zoning will continue to be avoided;”

1. Section 3.3 of the Strategic Plan contains “The Directions”.  They are said to identify how the preferred pattern of development and character described in the Vision for Brisbane, and the desired outcomes established in the “Focus” will be achieved.  The section refers to Strategic Plan Map 1 which “identifies at a strategic level a preferred dominant land use pattern for the City.”  That map identifies “Brookside” in a stylised fashion as a Major District Centre, with the surrounding area included in the Urban Area.  The Statement of Intent for Urban Areas is contained in s.3.3.2.1.  For present purposes that section provides:

“It is intended that the urban areas of the City will also provide for a range of necessary services and facilities required to support those needs of residents not catered for in other preferred dominant land use areas.

Non-residential activities in Urban Areas are intended to serve local communities and their environmental and amenity impacts are to be managed to acceptable levels.  The co-location of these activities in centres will be encouraged to minimise potential amenity problems and enhance opportunities for the use of public transport, walking and cycling.  In the Urban Areas, these Centres will be limited to Suburban, Major and Minor Neighbourhood and Convenience centres as described in s3.3.4 of this Strategic Plan.”

1. Subsection 3.3.2.2(b) also requires development to “respect and be compatible with the character of the neighbourhood in which it is located, particularly in developed areas.”

1. The Statement of Intent for Centres is contained in s.3.3.4.1 of the Strategic Plan.  The Statement of Intent commences with the following paragraph:

“It is intended to promote a hierarchy of centres based on existing and potential population catchments, access and servicing requirements, and consumer demands, as well as recognising the role of existing facilities.  This hierarchy is intended to:

·provide for the orderly and rational groupings of non-residential uses in centres well located to serve their particular catchments; 

·provide substantial employment opportunities and services close to where people live so as to reduce the need to travel long distances to access these facilities;

·provide locational certainty to investors and business locating in centres; 

·support the vitality of individual centres as places of community activity;  and

·ensure appropriate location of centres in relation to the Movement System.”

1. Further passages in the Statement of Intent of relevance to the present appeal are the following:

“Retailing and other commercial development, as well as entertainment and community uses, should wherever possible occur in a centre.  Commercial urban development along suburban or arterial routes or freestanding retailing, commercial and entertainment development will be discouraged.”

“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.”

“Proposed extensions to existing centres will generally be assessed for their impacts on nearby lands, the movement system and the hierarchy of centres.”

“It is intended to ensure that centres develop as focal points for community activity.  Consideration is required in the design and development of centres to ensure that they cater for the social needs of communities, as well as the commercial needs of the market place.  To achieve this, centres should develop in a co-ordinated way, ensuring that all elements (including community spaces, retail, commercial, community services, public transport, landscaping, site access, emergency access and internal movement systems) are integrated. Provision should also be made for internal and external spaces which promote community interaction and public security and safety.”

1. Compliance with the provisions of the Strategic Plan for new development, relevantly to the present matter, requires therefore that the new development conform to the following principles:

(a)         the maintenance of distinct visual boundaries between individual areas in the City;

(b)         that integration of retailing, other services and public transport in centres be encouraged;

(c)         that incompatible land uses do not intrude into residential areas and that residential amenity is maintained;  non-residential uses within a residential area must provide local services, must be in appropriate locations, and must maintain an acceptable level of residential amenity,

(d)        that spot zoning be avoided;

(e)         that non-residential activities in the urban areas be co-located in centres to minimise potential amenity problems and enhance opportunities for the use of public transport, walking and cycling;

(f)         that retailing and other commercial development, entertainment and community uses should wherever possible occur in a centre and that commercial urban development along suburban or arterial routes or freestanding retail and commercial  and entertainment development be discouraged;

(g)         that the preferred means of meeting community needs is by the consolidation and reinforcement of existing centres;

(h)         that new centres will only be allowed at the lower end of the hierarchy, and where it can be demonstrated that they are required to meet community needs, and that these needs cannot be met from an expansion of existing centres;  that centres must cater for the social needs of communities as well as the commercial needs of the marketplace and should therefore develop in a coordinated way ensuring that all elements are integrated. 

1. Reliance was not specifically placed by the respondent, in its particulars, upon the provisions of s.3.3.4.2, which deals with the hierarchy of centres.  However, it is necessary to refer to these provisions in order to understand the other provisions of the Strategic Plan which relate to centres and which are relevant to the present matter.  The hierarchy of centres consists of the following:

·     The Central City

·     Regional Business Centres

·     Major District Centres

·     District Centres

·     Suburban Centres

·     Major Neighbourhood Centres

·     Minor Neighbourhood Centres

·     Convenience Centres.

1. The “higher order” centres are the Central City, Regional Business Centres, Major District Centres and District Centres.  The lower order centres are the Suburban, Neighbourhood and Convenience centres.  As noted earlier, Brookside is a Major District Centre.  With respect to such centres the Strategic Plan provides:

“The retail component of this type of centre is intended to provide higher order comparison shopping to the entire population catchment, as well as providing the more immediate catchment with lower order services.” (Emphasis added)

Intent of Zones

1. Section 7.1.6 of the Town Plan states one of the aims and objectives for the Residential Zones.  It states:

“The intention within the residential zones is to develop land for residential purposes while allowing other developments providing direct local services to the surrounding residential area.  Development for other than residential purposes, where this would provide local services for residents, may be allowed, subject to Council consent.  Such consent will be dependent on the type of development proposed and the maintenance of an acceptable level of residential amenity.”

1. Specifically for the Residential A zone, s.7.2.1 states (inter alia):

“Other forms of development which provide local services to residents in the immediate vicinity are also allowed subject to consent of Council.  These include a child care centre, a local surgery, or a shopping centre or shop not exceeding 500 square metres in gross floor area.  Consent of Council will be dependent upon the likely impact of the development on the existing and future amenity of the area.  Additionally, consideration will be given to whether it will mainly service residents in the immediate vicinity …”

1. It is evident from these provisions that the main test for non-residential development in the Residential A zone will be its impact upon existing and future amenity of the area, and in addition, it will be necessary to show that it will provide direct local services to the residential area affected.  The forms of development specifically mentioned include a local surgery, and a shopping centre or shop not exceeding 500 square metres in gross floor area.  There is some contention as to whether or not the shop proposed for the site falls within the definition of a local store for the purposes of Planning Policy 19.13.  If it does, then subject to compliance with other requirements of that policy, the application would find some support in the policy, but, whether this is so or not, the development application remains an application for a consent use in the Residential A zone. 

Local Planning Policy 19.13

1. This Planning Policy deals with “re-use or re-development of a disused service station site in a residential zone”.  The intent of the policy refers to the closure of many service stations throughout Brisbane as a result of rationalisation in the oil industry.  It proceeds to observe that most disused service station sites are located in residential areas (on sites zoned Residential A or Residential B) and on roads that carry relatively large volumes of traffic.  The policy sets out guidelines which state the characteristics which a proposal to reuse a disused service station site should exhibit in order to be favourably considered and also indicates a number of uses for which favourable consideration may be given. 

1. The characteristics identified include the following:

·     The impact of the proposal on the visual amenity of the surrounding area should be low; 

·     The level of noise generated by the proposal should be low;

·     The vehicular traffic volumes generated by the proposal should be such as not to cause a traffic problem;

·     The level of air and noise pollution generated by the proposal should be low;

·     The levels of light emitted by the proposal should be low;

·     The hours of operation or periods of use of the proposal should be acceptable within a residential area;

·     The proposal should provide a local service function only;

·     The proposal should not contribute to the parking of vehicles in adjoining residential streets;

·     In a case where the proposal involves the re-use of the site the activity proposed should be appropriate to the existing building form and site layout. 

1. The characteristics relating to level of noise, level of air and noise pollution, level of light emitted by the proposal and non-contribution to parking of vehicles in adjoining residential streets are not directly relevant for present purposes. 

1. With respect to uses, where what is proposed is the “re-use” of a disused service station site (which is the case here) as distinct from the redevelopment of such a site, favourable consideration may be given to the use of the site for any of the following:

·     Local surgery

·     Child care centre

·     Educational establishment

·     Shop being a local store

-      where the site is not on a major road

-      which does not involve late night trading

-      where the proposed use of the site will not have a detrimental impact on established retail facilities

·           welfare premises

·           youth club

1. The present application is for a material change of use to local store and local surgery, which are two of the uses which may attract a favourable consideration from the Council in terms of Local Planning Policy 19.13.  Reference has been made earlier to the definitions of “local store” and “local surgery”.  It is pertinent to note that a local store means “a building the floor area of which does not exceed 200 square metres” used essentially for the sale of convenience goods.  It is not defined in terms of “premises” which may of course be part of a building, but rather is defined in terms which strongly suggest that a local store is a whole building having not more than the specified area and devoted only to the sale of convenience goods but including in a subordinate way the conduct of a fast foods operation and/or restaurant.  A roadside stall or any part of a shopping centre are outside the definition.  It seems to me to follow that a local store within the extended meaning given by the definition can only be conducted as a stand alone enterprise and cannot share premises with another use, such as a “local surgery”.  The definition of “local store” does not focus solely upon the use being conducted within a building but addresses itself equally to the building itself.  It may be that other uses listed in the Policy might be combined, but in my view that situation is not possible where one of the proposed uses is a local store.  I also consider that, such being the case, the proposed operation, combining an outlet for the sale of convenience goods and a local surgery, falls within the definition of a shopping centre, as urged by Ms Roughan, the Town Planner called by the respondent.  The appellant therefore does not, in my opinion, have the benefit of compliance with Planning Policy 19.13, and it is not necessary to go on to consider the questions whether or not the site is on a major road, whether or not the proposal involves late night trading or whether or not the proposed use would have a detrimental impact on established retail facilities, so far as these questions are the concern of the Planning Policy. 

1. Osborne Road appears to be a suburban road that carries approximately 10,000 vehicles per day. It runs north/south from Pullen Road and Camelia Avenue, past Brookside Shopping Centre, to Samford Road.  Sussex Street is a smaller road that carries  approximately 6,000 vehicles per day.  It runs east/west from Brookside Shopping Centre to Blackwood Street.  Directly across Osborne Road from the subject property is Brookside Shopping Centre.  Brookside extends from a relatively new, stand alone commercial centre in the north, opposite Northmore Street to the railway crossing of Osborne Road in the south.  In my view the railway line provides a logical boundary to the shopping centre, as it does to the residential precinct in which the subject land is located.  For present purposes the residential precinct which is relevant, so far as amenity considerations are concerned, can be regarded as the area north of the railway line bounded to the east by Osborne Road, to the north by Northmore Street, and to the west by Glenholm Street.  This is that part of the wider residential area to the west of Osborne Road which lies across the road from the Brookside Shopping Centre.  From the point of view of the catchment for the proposed development it may well be that the area extends up to Pullen Road and Camelia Avenue to the north.

1. It appears to be correct to say that, as it faces Osborne Road, Brookside is made up of at least seven separate buildings, which are, running from south to north, offices, Dick Smith, McDonalds, Sizzlers, the main shopping centre building, the hotel and motel, and the stand alone “Byrning Spears” commercial centre, and there are at least five separate access points along that frontage.  The area to the west of Osborne Road is predominantly residential.  To the south of the railway line there is a mixture of commercial and residential, but the predominance of residential development becomes apparent north of the railway line.  Between the railway line and Northmore Street, there are only three non-residential uses fronting Osborne Road; the old squash courts close to the Sussex Street intersection, the subject  property and a child care centre on the corner of Northmore Street.

1. I think it is also true to say that north of the railway line to Northmore Street there is a strong perception of the area to the west of Osborne Street as being residential, notwithstanding the subject site on the corner of Sussex Street and the other uses mentioned above.  The subject site is opposite the main building of Brookside Shopping Centre at a signalised intersection and in close proximity to strong commercial uses across the road and the squash courts a little to the south.  It does not appear to me that the development of the site as a shopping centre, in the form envisaged, would significantly impact upon the residential amenity of the area.  Until very recently the site was operated as a service station, and that, in my opinion, has a bearing upon the issue of the existing residential amenity of the area.  Notwithstanding the consistent commercial development to the east of Osborne Road, the perception of the development to the west of that road is clearly residential and in my view that would remain the case if the proposed development were to proceed.  I do not therefore think that impact upon residential amenity, which is something fundamental to the relevant provisions of the Strategic Plan and the Residential A zone, constitutes an obstacle to the appellant in this appeal. 

1. Again, I do not consider that the proposal would offend the exhortation of the Strategic Plan to maintain distinct visual boundaries between individual areas because the site in its present condition and with its past use detracts and detracted from that desideratum and the operation of the proposed use on the site would not significantly worsen that position. 

1. The requirement of co-location of non-residential activities in urban areas however presents a serious problem for the appellant.  The Strategic Plan is very clear that retailing development is wherever possible to occur in a centre rather than as a free standing enterprise, and that new centres will only be allowed at the lower end of the centre hierarchy (which includes a convenience centre) where it can be demonstrated that they are required to meet community needs and that these needs cannot be met from an expansion of existing centres.  It is, in my opinion, quite clear that a convenience centre such as is proposed, could readily be accommodated within the Brookside Centre, a course which would be in harmony with the concern which the Strategic Plan has for the reinforcement of the integrity of centres by the location of non-residential uses within them. 

1. Whether the appellant has been able to show a need for further convenience shopping for the residential area identified is perhaps a moot point.  There is convenience shopping and access to doctors in the Blackwood Street centre which is reasonably convenient to residents of the area.  No doubt the development of the site for convenience shopping and a local surgery would add to the convenience of some residents of the area, and this may suffice although no direct evidence of unmet demand was adduced.  Assuming, however, that some need can be established, no persuasive reason has been proffered why that need could not be met by the establishment of convenience and medical facilities on the Brookside Shopping Centre site, in compliance with the dictates of the Strategic Plan. 

1. In my opinion the proposal is in direct and substantial conflict with the Strategic Plan of the superseded Planning Scheme.  The application must therefore be refused unless there are sufficient grounds to justify the proposal notwithstanding the conflict.  In my view no grounds asserted by the appellant are of sufficient weight to overcome the important conflict with the respondent’s Planning Policy as stated in the Strategic Plan.  The fact that the impact on residential amenity may be slight does not in my opinion constitute such a planning ground.

1. The only other major issue for consideration relates to traffic.  It is not in dispute that the proposal would generate a negligible amount of additional traffic on the surrounding road network, including the intersection itself.  However, the evidence of Mr Holland has persuaded me that the right-in and right-out turns to and from the site in Sussex Street represent a serious traffic hazard to motorists turning right into Sussex Street from Osborne Road and to motorists turning right into Sussex Street from the site.  I accept Mr Holland’s opinion to the effect that although the volume of traffic affected in this way would not be high, the risk of collision between vehicles is unacceptably high.  The traffic engineer called by the appellant expressed the view that the problem could be adequately dealt with by the maintenance of a “keep clear” area on the roadway at that access point but, again, I accept Mr Holland’s view to the contrary.  The problem would be capable of solution, as Mr Holland points out in his report, by the construction of a median strip in Sussex Street near the intersection so that right turns in and right turns out would be thereby prevented, but this would produce some, perhaps small, disadvantage in the form of diversion of traffic through the residential area to the west and along Osborne Road.  Even if the traffic problem could be overcome in this way the result would not be to provide a planning ground sufficient to justify approval of the application.

1. I do not consider that there are sufficient grounds to justify approval of the application notwithstanding the conflict which I have found to exist with the provisions of the Strategic Plan in relation to the Major District Centre constituted by Brookside Shopping Centre.  The appeal is therefore refused.