SEQ Bond Stores Pty Ltd v Gold Coast City Council
[2006] QPEC 66
•13 July 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
SEQ Bond Stores Pty Ltd v Gold Coast City Council [2006] QPEC 066
PARTIES:
SOUTH EAST QUEENSLAND (SEQ) BOND STORES PTY LTD
Appellant
and
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S:
P&E Appeal No 463/05
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Southport
DELIVERED ON:
13 July 2006
DELIVERED AT:
Brisbane
HEARING DATE:
4, 5 and 6 April 2006
JUDGE:
Rackemann DCJ
ORDER:
The further hearing of the appeal is adjourned to permit the parties to consider appropriate conditions
CATCHWORDS:
Material change of use for part of existing development – Tavern – adequacy of carparking – whether conflict with planning scheme – sufficient grounds to justify approval – need and benefit – whether need could be satisfied consistently with planning scheme
COUNSEL:
Mr Ure for the appellant
Mr Litster for the respondent
SOLICITORS:
Hickey Lawyers for the appellant
McDonald Balanda & Associates for the respondent
INTRODUCTION
This appeal is against the Council’s refusal of a development application for a material change of use to permit part of an existing development to be used for the purposes of a tavern.
The subject site is located at the corner of Burnside Road and the eastern service road within the industrial area of Yatala. It is improved with a recently constructed development, consisting of individual, single storey, light industrial tenancies and a three level ancillary office building, together with associated car parking. The ancillary office building is approved for use, in part, for a café, convenience shop and takeaway food premises. Approval of the subject application would see part of the ancillary office building being used for different non-industrial purposes, namely a tavern (including an ancillary gaming room and bistro), shop (bottle shop) and reception room[1]. It is proposed that the tavern would have a “motor sport” theme, capitalising on its proximity to a number of motor sport establishments within the area.
[1] These uses are collectively referred to as the tavern
Leaving to one side a debate about the adequacy of car parking (discussed later), the subject site is physically suitable for the proposed development and would not be likely to lead to any significant adverse amenity conflicts (either by reason of its impact on other uses or vice versa).
The application was publicly notified, but attracted no submissions.
In the course of the hearing, Mr Polain, the sole director and secretary of the appellant, produced a petition in favour of the proposal and a number of letters of support, including one from the Beenleigh Yatala Chamber of Commerce Inc.[2], which, amongst other things, complained about the lack of facilities in Yatala.
[2] Ex 9
The economic experts retained by the respective parties agreed that there is a planning need for the proposed tavern and that its provision would not significantly alienate industrial land.
The application was the subject of a report and recommendation to Council, which was prepared by a senior town planner within the Council and authorised by the Director of Planning, Environment and Transport[3]. That report and recommendation concluded that:
“The proposed use represents an appropriate outcome for the subject site and is recommended for approval, subject to conditions ...”
[3] Ex 1 pg 227-251
Contrary to that recommendation, the Council resolved to refuse the development on four grounds. In the context of the appeal those grounds were supplemented by additional reasons for refusal. Not all of the Council’s grounds were ultimately relied upon. Those which were determinative may be summarised as follows:
(i)Inadequate car parking;
(ii)Conflict with the planning scheme, particularly having regard to the table of development for the relevant precinct; and
(iii)The lack of adequate planning grounds to justify approval notwithstanding the conflict.
CAR PARKING
The subject site does not and cannot, provide for the minimum number of car parking spaces calculated in accordance with the table to acceptable solution AS16.1 of the Car Parking, Access and Transport Integration Code (carparking code). That is not however, fatal. The carparking code is something referenced in acceptable solution AS48.1 of the Yatala Enterprise Area LAP Place Code (place code). The performance criteria in the place code requires the provision of on-site vehicle parking “to meet expected demand…”. The table in the carparking code is referenced in the acceptable solution to PC16 of the carparking code which requires provision of ‘sufficient carparking spaces”. Further, both the place code and the carparking code otherwise expressly contemplate a reduction in the number of car parking spaces from that calculated in accordance with the table[4]. The respondent did not contend that no reduction was appropriate in this case.
[4] See AS48.3 of the place code and cl 5.0 of the carparking code
The traffic engineers retained by the respective parties agreed that a reduction would be justified in this case, but disagreed about whether the number proposed would be sufficient.
There are currently 157 car parking spaces provided on the subject site. It was pointed out however, that the current car park has been constructed in a way which appears to conflict with a condition of a prior subdivision approval. That approval required a setback from the Burnside Road frontage to allow for future road widening. It was accepted that the Court should act on the basis that the car parking would need to be changed in a way which respected that condition. That would result in the loss of car parking spaces. That loss could be offset, to some extent, by some other changes.
The appellant’s traffic engineer produced a preliminary drawing of an amended layout plan which showed provision for 147 spaces. Mr Beard, who was called by the Council, considered that two of those spaces might be lost to achieve appropriate design, including for pedestrian access and that there would be some further modest loss if turning manoeuvres for a service vehicle were to be better accommodated. There was some debate about the extent to which the 147 spaces might be reduced, but those differences are not critical. It would appear that something in the order of 145 spaces would be achievable. The appellant’s traffic engineer thought that was a reasonable provision and in excess of the likely peak parking demand, which he calculated to be up to 124 spaces[5]. Mr Beard would have been prepared to accept 157 spaces, but thought the reduced provision, brought about by the redesign, would be insufficient.
[5] See Exhibit 4 p 24, where the peak demand, 2 p.m., was calculated at 103 or 124, which did not take account of a subsequent minor modification which reduced parking demand by about three spaces – T96
One of the reasons for the difference between the traffic engineers was their different assumptions in relation to the extent to which the demand from various uses would overlap. In this respect, the appellant’s traffic engineer had regard to survey information from other premises in concluding that the peak demand generated by the tavern would not be at times which coincided with the peak demand generated by other uses on the site. His assumption was that when demand from other uses was peaking, at 2 p.m., the tavern would only be generating about 54 per cent of its peak car parking demand. Mr Beard, who was called by the respondent, did not disagree with the general approach of having regard to surveys, but raised concerns about comparability of the facilities surveyed (although he conceded that the Nerang Tavern, was “as close as you’re going to get”). He did not carry out any surveys of his own. He thought, in the circumstances, a degree of conservatism was called for and reached a different conclusion from the appellant’s traffic engineer, based on his professional judgment.
As Mr Ure pointed out in submissions, even the adoption of Mr Beard’s more conservative approach would not necessarily require a refusal of the application. Conditions could be imposed requiring some reduction in the area given over to the tavern use, so as to reduce the car parking demand. A possibility, postulated by Mr Ure in submissions, was the reduction of the bottle shop from two industrial tenancies to one. Mr Litster confirmed that he would not contend that was beyond power. I do not consider however, that is required.
I accept the evidence of the appellant’s traffic engineer that carparking will be sufficient. I consider his assumptions, including as to the likely coincidence or otherwise of peak parking demand from the various uses to be not unreasonable. I agree with Mr Beard that an element of conservatism is required. I would not have been prepared to accept a car parking provision as low as Mr Trevilyn’s calculated peak demand, but I consider that the provision of approximately 145 spaces provides sufficient conservatism in the circumstances.
CONFLICT
The determinative issues in the case, and those upon which debate primarily focused, were the extent of conflict with the planning scheme and the sufficiency or otherwise of planning grounds to justify approval.
The subject site falls within a large area, of about 3,305 hectares, which is included in the Yatala Enterprise Area LAP. The purpose of the LAP is to promote the orderly economic development of the Yatala Enterprise Area as a major industrial employment district for both the Gold Coast City and the South-East Queensland region. The economic experts agreed that the YEA provides almost 1,900 hectares of usable industrial land, capable of supporting an employment population of about 30,000 workers. While the existing workforce is only between 3,500 to 4,000 workers, continuing strong interest should, they agreed, ensure that the workforce reaches 7,000 by 2011.
The LAP area comprises six precincts. The subject site forms part of Precinct 1, being the General Impact Business and Industry precinct. That precinct:
“is intended to accommodate a broad range of manufacturing industries, warehouses and distribution centres of a general industrial nature that would result in significant growth in long term employment for the residents of the Gold Coast city and of the greater South-East Queensland area.”
The statement of intent for the precinct goes on to recognise the need to protect the regional significance of the “core area” of the precinct and discourage uses which could be sensitive to the off-site impacts of industries and processes. Accordingly, uses which are inconsistent with the purpose of the precinct and can reasonably be located elsewhere within smaller industrial and business estates or within the Low Impact Business and Industry Precinct, “will not be encouraged”. A non-exhaustive list of activities which might be considered to be incompatible is set out. That list does not include a tavern.
On the other hand, the intent also recognises the potential appropriateness of needed non-industrial uses which directly serve other businesses and workers in the area. In that regard, the intent provides:
“Uses directly serving other businesses and workers in the area (including convenience shopping, catering, child care and recreational facilities) may be considered appropriate in this precinct, where there is a demonstrable need for such uses. It is preferred that such non-industrial uses be consolidated at identifiable local centres which are conveniently accessible to surrounding industries, for example, by being situated centrally or at least at an entry/gateway to the locality. The preferred location for such consolidation of facilities in this precinct is in the vicinity of Burnside Road, between the Pacific Motorway and the Brisbane-Robina railway line with, if possible, linkages provided to the railway station.”
The proposed development, in this case, would not be incompatible with the existing or intended industrial uses in the area. The subject site forms part of the area which is preferred for consolidation of non-industrial uses. The economists agreed that:
·A tavern services the needs of workers by providing meals, beverages, entertainment and a meeting place and the needs of businesses by providing function room facilities;[6]
[6] Ex 3 para 3
·A tavern may typically be found located in or adjacent to high employment areas;[7]
[7] Ex 3 para 3
·The proposed tavern is designed to service the needs of workers of the area and businesses of the area, amongst others;[8]
·There is a planning need for the proposed tavern on the basis that it would directly service the needs of other businesses and workers in the Yatala Enterprise Area by providing a function room, a meeting place, meals, beverages and entertainment.[9]
[8] Ex 3 para 7
[9] Ex 3 para 14
In the circumstances, the proposal would appear to sit comfortably with the stated intent for the precinct.
It was contended for the respondent that the planning scheme had given more careful consideration to the range of appropriate non-residential uses and that the proposed facilities were not within that range. In that regard, it was pointed out that the proposal, whilst not being one of the uses specifically referred to as “incompatible” in the statement of intent for the precinct, was also not specifically referred to in section A of the Table of Development for the LAP.
Clause 7.6 of chapter 2 of division 1 of Part 6 of the planning scheme deals with default assessment categories. Clause 7.6.1 provides that any use not listed in section A of the Table of Development “should be considered undesirable or inappropriate in the LAP precinct to which the Table of Development applies”. Clause 7.6.1 also provides that any use which is not individually listed in the Table of Development will (subject to Schedule 8 of IPA) be treated as an impact assessable development. A similar provision with respect to the Tables of Development in the various domains is found in Clause 4.6.1 of chapter 2 of division 1 of Part 5 in the Schedule dealing with default assessment categories.
It was submitted, on behalf of the respondent, that a decision to approve the development would conflict with the planning scheme and, pursuant to s 3.5.14(2) of the IPA, is a decision which must not be made, unless there are sufficient planning grounds to justify the decision. It was submitted that the only decision which would not conflict with the planning scheme was a decision to refuse the application[10].
[10] T178
Section 3.5.14(2)(b) of the IPA was recently considered by Fryberg J (with whom McMurdo P and Holmes J agreed) in Woolworths v Maryborough City Council & Anor [2005] QCA 262 at pars 22-25. As his Honour pointed out, there are a number of differences between that section and its predecessors under the Repealed Act. As his Honour also pointed out, s 3.5.14(2) focuses upon conflict between the planning scheme and the “decision” and the sufficiency of planning grounds to justify the “decision”.
While clause 7.6.1 of chapter 2 of division 1 of Part 6 speaks of such uses being considered as “undesirable or inappropriate”, the provision is not a prohibition on such uses or their approval. The clause could not properly be construed or applied as a prohibition, given s 2.1.23(2) of the IPA[11]. While counsel for the respondent submitted that the provision was as close to a prohibition as one could get under the IPA, the scheme admits, and must admit, of the prospect of approvals being sought and obtained, in response to impact assessable applications, for such uses. It might perhaps be debatable whether conflict with the scheme would arise simply by reason of a decision to grant approval to a use which falls into this default assessment category. Clause 7.6.1 and the Table of Development would in any event, be relevant considerations even if s 3.5.14(2)(b) were not triggered. The IPA otherwise requires consideration of the planning scheme in carrying out impact assessment (s 3.5.5(2)(b)). The argument however, centred on whether there are sufficient planning grounds to justify a decision to approve, notwithstanding any such conflict.
[11] It may be noted that the planning scheme may regulate development in the ways described in s 2.1.23(3).
It should be noted that the respondent’s additional reasons for refusal referred to more than just the intent for Precinct 1, the table of development and cl 7.6.1, although those provisions were the focus of the argument. Other provisions of the planning scheme referred to included the statements of intent for Precincts 2, 3, 4 and 5, although counsel for the respondent conceded that they were of little relevance[12]. Reference was also made to Performance Criteria PC28, 44 and 48 of the LAP, but counsel for the respondent ultimately abandoned those issues[13].
[12] T170 line 18
[13] T171 line 25
PLANNING GROUNDS TO JUSTIFY A DECISION TO APPROVE
In addition to the suitability of the site and the merit of the proposal otherwise than for the conflict relied upon by the respondent, the key planning ground advanced to justify approval notwithstanding conflict, was the extent to which the proposal would meet a need and provide a benefit. That was examined by Mr Norling, who was engaged by the appellant, and Mr Leyshon, who was engaged by the respondent.
In accordance with this court’s now usual practice, the experts retained by the parties were required to meet, in the absence of the parties or their legal representatives, and produce a joint statement setting out the issues they could resolve, those they could not resolve and a brief summary of any differences between them in relation to the unresolved issues. The economic/need experts met in late 2005 and produced a 17 paragraph joint report. The report contained no areas of disagreement. The points of agreement included the following:
·Large industrial estates, such as Yatala, require the provision of a broad range of services to support business activities and workers located in such estates[14].
[14] Ex 3 para 3
·A tavern is a facility which services the needs of workers and businesses and may typically be found located in or adjacent to high employment areas[15].
[15] Ex 3 para 3
·The proposed tavern is designed to service the needs of workers of the area, businesses of the area, local residents and visitors to a range of motor sports activities in the area. It is to provide a public bar, bistro, gaming room, bottle shop and function room[16].
[16] Ex 3 para 7
·There is no need for the proposed tavern on the basis that it is required primarily to service the needs of residents or on the basis that it is required to service only the needs of visitors to the motor sports activities in the area, although it would be used by some of those persons[17].
[17] Ex 3 paras 12 and 13
·There is a planning need for the proposed tavern on the basis that it would directly service the needs of other businesses and workers in the Yatala Enterprise Area by providing a function room, a meeting place, meals, beverages and entertainment[18].
[18] Ex 3 para 14
·The existing network of taverns is generally not well located or able to service this market. The subject site is, on the other hand, well located to provide this service to the Yatala Enterprise Area[19].
[19] Ex 3 para 14
·The proposed tavern would[20]:
[20] Ex 3 para 15
(i)directly service the needs of other businesses and workers in the Yatala Enterprise Area, which is continuing to expand at high rates of growth;
(ii)be the only tavern located within the Yatala Enterprise Area and within the designated location for businesses serving the needs of businesses and workers within this area;
(iii)provide an enhanced level of convenience and accessibility for businesses and workers in the Yatala Enterprise Area;
(iv)provide an increased level of choice of tavern services to the residents living within the catchment area, which is projected to record annual population growth rates in excess of 5 per cent;
(v)provide a different theme from those existing taverns, also providing an increased level of choice;
(vi)satisfy the demand for entertainment from the visitors to the motor sports activities in the area;
(vii)offer a level of standard, comfort and amenity significantly in excess of that offered by the Gem Hotel and Shooters Arms Tavern; and
(viii)create employment for up to 27 workers, consistent with a notion that the purpose of the Yatala Enterprise Area is to house a large employment workforce.
·The proposed development would not significantly alienate industrial land[21].
·There is a latent unsatisfied demand for the provision of meals and beverages in a quality air-conditioned environment within the Yatala Enterprise Area, which will be satisfied by the proposed tavern[22].
[21] Ex 3 para 16
[22] Ex 3 para 17
In light of the joint report, Mr Norling did not, at least initially, prepare a separate report for trial. In the week preceding the commencement of the hearing however, a report by Mr Leyshon was received. That report had apparently been prepared upon a request made by the solicitors for the respondent subsequently to the preparation of the joint report. In that report and in subsequent oral evidence, Mr Leyshon expressed relevant opinions which had not featured in the joint report. In particular, he expressed the view that:
(i)The need for the facility is not “significant at present”; and
(ii)It would be possible to meet the latent unsatisfied demand for the provision of meals and beverages in a quality air-conditioned environment, referred to in paragraph 17 of the joint report, through development other than a tavern.
The respondent relied upon Mr Leyshon’s evidence to suggest that the need for the proposed tavern was not such as to justify approval, notwithstanding conflict, given the magnitude of the need and, more particularly, the potential for that need to be met by other facilities, which are referred to in the Table of Development in the relevant precinct.
It is a matter of some concern that such opinions were recorded, for the first time, in a report prepared and delivered so close to trial, after the conclusion of the joint report and, indeed, after the date for the exchange of expert reports.
By the time the experts had their meeting, and prepared the joint report, the issues in dispute in the appeal included:
“8.There is no need for the proposed facilities to be developed on the land;
9.There is no latent unsatisfied demand for facilities of the kind proposed that cannot be met consistent with the provisions of the 2003 scheme.”
Assuming the opinions expressed by Mr Leyshon to be honestly and conscientiously held, it is difficult to see why he would have participated in the joint report without the qualifications which he now adds.
The observation by counsel for the respondent, that the joint report, whilst stating that there was a planning need for the proposed tavern, did not express any view about the relative strength of that need is accurate, but not a complete answer. As Mr Leyshon acknowledged, the purpose of a joint report is to assist the court and such assistance can only be rendered if the opinions expressed in the joint report are open, honest and transparent and do not disguise an otherwise relevant opinion[23]. It is difficult to understand why someone in Mr Leyshon’s position (and with his experience) would respond to the issues in dispute by agreeing, without qualification, that there was a planning need for the proposal if, in fact, his view was that any such need was insignificant at present.
[23] T137
Similarly, the joint report contains no statement to the effect that the latent unsatisfied demand could be met by other development consistent with the planning scheme. Indeed, the joint report did not reveal any points of difference between Mr Norling and Mr Leyshon and there is no suggestion that Mr Leyshon sought to reconvene the meeting with Mr Norling or to amend the joint report in any way, prior to the production of his most recent report.
It should be noted that the experience in this case is not usual. This court has, in recent years, placed an increased emphasis upon experts meeting, in the absence of the parties or their legal representatives, to produce a joint report for the court. Indeed, that is now the almost invariable practice. The practice has, to date, been largely successful and generally well received. It often leads to experts reaching either complete or at least substantial agreement on issues relevant to their area of expertise and gives the court the benefit of a concise summary of the reasoned debate between them on any matters of outstanding disagreement. It has, at least in the context of this court, demonstrated that an expert retained by an adversarial party can be expected, consistently with their duty, to express his or her objective opinion, even where that is inconsistent with the adopted position of the party retaining that expert. It has assisted in the resolution or shortening of matters before the court.
It is unusual for experts who have expressed a concluded opinion in a joint report to later seek to resile from or substantially qualify that opinion or raise substantial new matters of relevance not covered in the joint report, at least without good reason. The court now regularly makes a direction, as contemplated by cl 9(a)(viii) of Practice Direction 1 of 2006, prohibiting, save with leave of the court, the receipt of further evidence from expert witnesses at the final hearing which differs from that contained in a joint report to which the expert was a party.
The circumstances may adversely affect the weight to be afforded to Mr Leyshon’s recent expressions of opinion. Even leaving those matters to one side however, I do, in any event, prefer the evidence of Mr Norling, who produced a report and gave oral evidence in response to Mr Leyshon’s report.
Insofar as the extent of the need is concerned, Mr Leyshon’s report “acknowledged there is a need for the facility in terms of the normal expectation that such a facility may be located near a major employment area”, but expressed a view about whether the need is significant “at present”. In that regard, he appears to have been influenced by the current working population and the facilities located proximate to the YEA, particularly the Norfolk Tavern. His report however, acknowledges that a demand from this market sector (workers) exists and is growing.[24]
[24] Ex 8 pg 11
Insofar as the level of need is concerned, Mr Norling’s report states:
“The joint report concludes that there is a planning need for the proposed tavern (paragraph 14). This planning need exists now. The quantum of employees in the Yatala Enterprise Area presently numbers between 3,500 and 4,000 persons and is growing. I have driven through all of the industrial streets in the Yatala Enterprise Area and have been impressed at the current rate of construction activity. The joint report estimates that this workforce would almost double within the next five years, with a capacity in the order of 30,000 persons (paragraph 14). In my opinion, the level of demand is significant, with very strong growth prospects. I therefore consider that there is a significant planning need for the proposed tavern at present. Whilst this need is not regarded as pressing need at present, it is likely to reach that level within the next few years if the subject proposal does not proceed.”
Insofar as the Norfolk Tavern is concerned, Mr Norling’s report stated:
“The Norfolk Tavern has a club-like atmosphere, is located within a residential area and is focussed on serving the needs of that residential community. As the Yatala workforce increases, it seems incongruous to expect that the Norfolk Tavern can also adequately meet the needs of this workforce.”
I accept Mr Norling’s evidence in that regard and, indeed, generally. Mr Norling also did not consider that workers should be expected to drive further afield, to Beenleigh or Coomera, for such a facility[25], although, as the joint report notes[26], it is “expected that services of a higher order should be provided at Beenleigh”[27]. I do not consider that approval of the subject proposal would be prejudicial to the planning strategy for Beenleigh or elsewhere.
[25] T75
[26] Ex 3 para 5
[27] Ex 3 para 5
Insofar as the potential to satisfy the need by an aggregation of other uses, at least two things should be noted. First, Mr Leyshon was careful to point out, in his oral evidence, that his opinion was only that the latent unsatisfied demand for the provision of meals and beverages in a quality air-conditioned environment could possibly be met by an aggregation of other uses. He made it clear that he did not say that such need should be met in that way[28].
[28] T136
Secondly, the need which, it was said, could possibly be met by an aggregation is the need to address the latent unsatisfied demand for the provision of meals and beverages in a quality air-conditioned environment within the Yatala Enterprise Area. While, as Mr Norling acknowledged[29], that was the latent unsatisfied demand identified in par 17 of the joint report, it is not the only respect in which the proposal would meet a planning need or, indeed, provide a community benefit.
[29] T133
As Mr Leyshon acknowledged, he did not purport to say that other facilities proposed by the tavern, such as a function room and gaming facilities, could easily be provided by other facilities within the precinct[30]. It may be noted that while the demand referred to in par 17 of the joint report relates to the provision of meals and beverages, par 14 of the joint report, in acknowledging that there is a planning need for the proposed tavern, referred to the provision of a function room, a meeting place and entertainment as well. Mr Leyshon acknowledged, in his oral evidence[31], the difference between demand and planning need. I also note the range of benefits referred to in par 15 of the joint statement.
[30] T133 ll 50-54
[31] T136
An aggregation of uses is not a substitute for the tavern proposed. As Mr Norling pointed out in the course of his evidence:
(i)Insofar as the provision of meals and beverages in a quality air-conditioned environment, a tavern can provide that in a number of different ways (function room, bar, bistro, bottle shop) in a single facility with “one stop shop” convenience[32].
[32] T71-72
(ii)A tavern also provides an entertainment facility and acts as a meeting place, including for workers socialising with work mates. It acts, to use a colloquial expression, as the “watering hole” in a way that an aggregation of non-general licensed facilities would not[33].
(iii)Having regard to the mixture of facilities which a tavern brings together in a single facility, the assessment of need for a tavern is really quite different to the assessment of need for a collection of other uses[34].
[33] See T76-78
[34] T73
I am satisfied that the need for which the subject proposal would cater is a significant and growing one and would not adequately be met by an aggregation of other uses as suggested by the respondent. I am also satisfied that the aggregation of other uses would not likely bring the range of benefits of which the joint report speaks in relation to the proposal.
It is significant that, on the evidence in the appeal, the proposal would meet a planning need for other businesses and workers in the Yatala Enterprise Area. It is, of course, important to guard against undue alienation of industrial land in this important area. If the tavern were a facility which was only to meet the needs of those from the residential areas or only the needs of visitors to motor sports activities in the area, then I would not have concluded that the need was sufficient to justify approval. As the planning scheme recognises however, there is a legitimate role, in this area, for non-industrial uses which directly service other businesses and workers in the area. This facility will do that, even though it is not one of those contemplated in the relevant table of development. As the need experts agree, it would not significantly alienate industrial land. That other non-industrial uses may need to be otherwise accommodated within the area, does not change that conclusion.
I do not accept the suggestion that an approval of this application would signal that the Yatala Enterprise Area is available for non-industrial uses generally. As already noted, the capacity of the proposal to directly service the needs of businesses and workers in the Yatala Enterprise Area is significant. Mr Norling expressed the opinion that development of the subject proposal could have a “catalytic effect” in attracting other “service uses” to this precinct[35]. The precinct is intended to potentially accommodate appropriate needed non-industrial uses directly serving other businesses and workers in the area and the subject locality is the “preferred location for such consolidation of facilities”. Approval of the proposal would not be the catalyst for the loss of industrial land to all manner of non-industrial uses, not directly related to the needs of businesses and workers in the Yatala Enterprise Area. To take one example, a decision to approve this application could not reasonably be seen as justification for the conversion of industrial land within the Yatala Enterprise Area to a full line supermarket based shopping centre to meet the needs of the broader community for the weekly grocery shopping trip.
[35] Ex 12 page 2
I do not accept that approval of the subject application would involve the court in impermissibly attempting to rewrite the planning scheme. Rather, it involves the exercise of the court’s power to grant approval for impact assessable development. That jurisdiction may be exercised even where a decision would conflict with the planning scheme, so long as there are sufficient planning grounds to justify that decision. There are sufficient planning grounds in this case.
I am satisfied that the appellant has discharged its onus and that the application ought be approved. I will adjourn the further hearing of the appeal to permit the parties to consider appropriate conditions.
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