Sitelist Pty Ltd v Beaudesert Shire Council
[1999] QDC 60
•21st December, 1999
DISTRICT COURT OF QUEENSLAND
CITATION: Sitelist Pty Ltd v Beaudesert Shire Council [1999] QDC 060 PARTIES: SITELIST PTY LTD (Appellant)
BEAUDESERT SHIRE COUNCIL (Respondent)FILE NO/S: 5008 of 1998 DIVISION: Planning & Environment Court PROCEEDING: ORIGINATING COURT: DELIVERED ON: 21st December, 1999 DELIVERED AT: BRISBANE HEARING DATE: 24-26 November, 1999 JUDGE: QUIRK DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS:
This appeal is against conditions attached to an approval of an application for a development permit for a service station on land at Jimboomba. The relevant parcel of land, which is bounded by Brisbane Street, Cusack Lane and Honora Street, occupies about 3.5 hectares and is the site of an established shopping complex.
Woolworths is the principal tenant of the complex and, as can be seen from the material placed before the court, the proposal is to establish a filling station (involving two fuel dispensers) associated with that company on a relatively small area in the north-western part of the site. In this area the land has frontage to Honora Street and is presently occupied by on-site car parking. The proposal would result in the loss of 17 spaces. It is intended that access to and from Honora Street be available although a driveway links this part of the site with the major parking area of the complex which is found to the east and has access to both Cusack Lane and Brisbane Street.
In the Town Planning Scheme for the Beaudesert Shire the subject land is included in the Local Business Zone. The scheme is a “transitional scheme” within the meaning of chapter 6 of the Integrated Planning Act. The proposed use fell within column IIIB of the table of zones being a use which may be conducted only when such lawful conditions as are considered appropriate by the Council have been complied with.
Under s.6.1.28(3)(a) the relevant application must be processed as if it was a development application requiring code assessment. By reason of s.6.1.30(4) it was not open to the respondent to refuse the application.
The conditions that remain in dispute and must be dealt with in the appeal are as follows:
(a) Condition a (v) which, in part, requires that the existing level of car parking shall be maintained in the shopping centre.
(b) Condition a (vii) which requires access to be via the internal shopping centre car park off Cusack Lane with Honora Street access being restricted to existing emergency vehicle access only.
It was accepted in the appeal that, in a column IIIB situation, conditions that are required to achieve appropriate site layout or to otherwise ensure a satisfactory planning result may be in order even though they might, in reality, amount to an effective refusal of the application in the form submitted.
Dealing firstly with the condition relating to car parking the determinative issue is whether the loss of 17 car parking spaces would bring about an unacceptable result in regard to the overall use of this site in traffic and town planning terms. When approval was given to the shopping complex in its present form 495 car parking spaces were provided. This was less than that required by the standards set out in the scheme (first gazetted in 1985) but, as was indicated in evidence in the case, there has been (in recent times) some revision in traffic engineering thinking in respect of parking demand and the pattern of that demand. It was no part of the Council’s case that the approved on-site car parking is inadequate.
For the appellant the matter was examined by Mr Neil Viney, an experienced consultant, who conducted a careful survey of the present use of on-site car parking at the complex. He found that it is presently under-utilised to a substantial extent. In peak periods a utilisation of 60% of capacity was noted.
That this was so was not disputed. The Council case related to concerns that, with future growth in this part of the shire, things could change substantially. Much emphasis was placed on strategic planning for the shire and in particular to a planning study that gave rise to the Northern Rural Residential Area Community Development Control Plan Number 2 which was gazetted in June of this year.
The DCP gives attention to “preferred development in urban centres” and deals specifically with Jimboomba. An important feature of the plan is an indication that the centre is (in terms of the level of development) to be “capped” and that “additional commercial space is to be provided in commercial buildings and not in store front retail units”. This of course is relevant in anticipating the likely level of parking demand at this shopping complex as the area grows.
The approach of the Council’s witnesses depended largely on the planning study which, in attempting to identify a “trade area” for the Jimboomba centre (s.2.5) estimated that there would be 7,000 households “at capacity”. It was suggested that in the trade area there are approximately 2,500 households at the present time.
If these figures can be acted upon it would (on a simplistic approach) suggest, that as the area grows to maturity, there will be a 280% growth in the demand for parking at the Jimboomba shopping complex assuming that the development there remains capped as envisaged by the DCP.
If growth of anything approaching that order occurred it would present problems for the centre operator well beyond that which could be overcome by the saving of the 17 spaces that would be lost as a result of this proposal. Before very long decked car parking would need to be introduced and with it any influence that this proposal might have would pale into insignificance.
In the appellant’s case, evidence was called from Mr Shimmin, an experienced market analyst, who in a carefully detailed assessment raised substantial doubt about assumptions made by the Council and suggested that its fears were not soundly based.
Important points made by Mr Shimmin were:
(a) The population study projections were based on 1991 census data. Further (and more reliable) data emerged with the 1996 census and growth is shown to have declined.
(b) The trade area is more fully developed than the Council supposed in its estimate of 2,500 households (possibly about 3,400) and its “capacity population” was somewhat less (about 4,700).
(c) The 7,000 household figure referred to in the study related to an area which included 3 Census Collector Districts in the Flagstone corridor. The DCP specifically contemplates the establishment of a further urban centre in this area.
(d) There were demonstrable errors in the study particularly in the Jimboomba Centre Assessment which appears in table 2.3.
(e) It was quite unrealistic in planning terms to look beyond the year 2011. The normal planning horizon being in the order of 10 years. The statutory review periods (6 years under the Integrated Planning Act) were also mentioned.
I wish to make it clear that I have not acted upon Mr Shimmin’s reservation about the wisdom of capping development at Jimboomba as is provided for in the DCP. While he might have a point I must accept a planning strategy adopted by the respondent in this recently gazetted planning instrument and have not assumed any extension of retailing facilities at Jimboomba.
However Mr Shimmin’s view was (for reasons which he explained) that, even if one accepts the “capping” of development at Jimboomba, the turnover at the complex would be unlikely to rise by more than 40% by 2011.
I accept Mr Shimmin’s evidence. Putting matters of planning strategy to one side many of the matters examined in the evidence were matters of fact or at least matters of past prediction which, in the light of history, can now be better appreciated. Statements of this kind are not given any infallibility because they are found in a planning study. I am satisfied that to find in favour of this proposal would not give rise to any conflict with the DCP. Even if it did and the relevant provisions were demonstrably fallacious (i.e. depending upon facts which were inconsistent with reality) it would, in my view, amount to a sufficient planning reason for departing from the DCP.
Mr Viney gave a very careful and well explained account of his opinion that, having regard to the findings of Mr Shimmin, the likely order of parking demand at the Jimboomba shopping complex (with the proposal in place) would not (within any reasonable planning horizon) give rise to difficulties which would warrant the proposal’s rejection. In the circumstances I find that the requirement that it should not be allowed to operate unless a further 17 car parking spaces are found would be an unreasonable imposition upon the proposal and it should be set aside.
The second area of dispute relates to access from Honora Street. It is true that, as a consequence of earlier approvals, an access restriction strip is in place along the relevant frontage. The reality is however that patrons of the shopping complex enjoy unrestricted access to Honora Street at a constructed driveway and crossover point. In the area where the proposed development is intended, there is a very well utilised parking area and the majority of those that use it rely on access from Honora Street. There is also the driveway which links this parking area with the major parking area to the east. There was no suggestion in the evidence that what has been occurring now for some time has led to any traffic engineering or safety difficulties.
Originally it seemed that access from Honora Street to the shopping complex was not intended. Council was evidently concerned at the possibility of conflict between traffic from the complex and that associated with the deposition and collection of school children at the Jimboomba State and Pre-School, an entrance to which is at the blind end of Honora Street.
It is noted that other community facilities (the Jimboomba Community Centre and Kindergarten) have frontage to Honora Street and a police station occupies a fairly large area of land fronting Honora and Johanna Streets. The police were concerned that emergency access to the complex from Honora Street should be provided but, as time has gone by, there has been access to on-site car parking from Honora Street by the public as a matter of course.
The main pick-up and set-down point for the school has established at the Brisbane Street frontage. Honora Street is presently used for bus storage and opportunities for private kerbside parking are limited. However, as Mr Viney’s survey revealed, many parents do use the on-site parking at the shopping complex to collect their children from the school.
Mr Viney’s assessment was that there was no valid objection in traffic engineering terms to the mixing of traffic from the shopping complex (with the proposal in place) with that using Honora Street. Any increase in the use of Honora Street that might be attributed to the proposal would be well within the street’s traffic carrying capacity (and that of its intersection with Johanna Street). He was firmly of the opinion that Honora Street’s role as a “primary local access” street under the DCP (which purports to take into account possible future alterations to the road network) would not be compromised.
The Council’s case on this point was not convincing. Its witnesses were quite unable to advance any compelling reason for precluding traffic from the shopping complex from entering Honora Street.
It is accepted that the access restriction strip presents no legal impediment to the proposal’s being approved. There is a line of authority (the leading of which is the High Court decision in Mareen Development Pty Ltd v. BCC 46 A.L.J.R. 377) which indicates that such access restriction strips are held on trust for public purposes and, if planning circumstances warrant it, maybe re-dedicated as road.
On the evidence given in this case I am satisfied that there is no reasonable basis for denying access to Honora Street from the shopping complex with the proposal in place. I find that such a condition would be an unreasonable imposition upon the proposed development and the condition should be set aside.
Accordingly the appeal will be allowed. There was a resolution of some disputes relating to other conditions prior to the hearing of the appeal and I will adjourn the matter to enable the final form of the development permit to be settled.
0
0
0