The JAG Superannuation Fund v Brisbane City Council
[2008] QPEC 30
•30 May 2008
PLANNING & ENVIRONMENT COURT OF
QUEENSLAND
CITATION:
The JAG Superannuation Fund v Brisbane City Council [2008] QPEC 30
PARTIES:
THE JAG SUPERANNUATION FUND
Appellant
and
BRISBANE CITY COUNCIL
Respondent
FILE NO/S:
BD 3000 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
30 May 2008
DELIVERED AT:
Brisbane
HEARING DATE:
7 April 2008
JUDGE:
His Honour Judge Searles
ORDER:
1. Appeal allowed
2. Matter adjourned to allow parties to resolve appropriate conditions of approval
CATCHWORDS:
PLANNING – PLANNING LAW – Impact Assessable Development – Whether proposal conflicts with DEO and Elements of the City in Strategic Plan – Whether code satisfied – Whether accepted solutions met – Whether performance criteria otherwise satisfied by alternative modes of performance.
COUNSEL:
N. Kefford - Appellant
T. Trotter - RespondentSOLICITORS:
Delaney and Delaney - Appellant
Brisbane City Legal Practice - Respondent
This is an appeal against the refusal of an impact assessable application seeking a development permit for a material change of use. The Appellant seeks to use the residential property situated at the corner of 131 Kedron Brook Road and Main Avenue, Wilston being lot 88 on RP 60064 as a branch legal office of Delaney & Delaney, solicitors. In broad terms the issue is whether the site, being 110 metres[1] from Wilston Village Convenience Centre (Wilston Village) an MP4 Centre[2], is too close to that Centre, which serves the community of Wilston and parts of Windsor, Newmarket and Grange.[3] The site is within the Grange District Local Plan,[4] the Residential Low Density Area, in a Demolition Control Precinct[5] and within the Residential Neighbourhoods under the Strategic Plan. In planning language the issue for determination is whether there is a conflict between the proposal and the Brisbane City Planning Scheme (City Plan) resulting from the proximity of the proposed development to Wilston Village.[6]
[1] Exhibit 1 para 41
[2] Exhibit 7 sheet 2
[3] Exhibit 1 para 2.2.4.
[4] Exhibit 2 p 49.
[5] Exhibit 5 appendix 2.
[6] Appellant’s written submissions 8 April 2008.
The site is 650 m2 in area with the existing dwelling house comprising 79 m2. It has an attached double car port accessed via a cross-over to Main Avenue. There are presently two covered employee parking spaces within the existing car port at the rear of the property and it is proposed that two client parks be provided in the grassed area between the building and Main Avenue.[7] Pedestrian access will be via Kedron Brook Road and vehicular access from Main Avenue.
[7] Exhibit 1 p 6 para 3.1.5.
In recent years the property has been used, rather audaciously, for the practice of an orthodontist without Council approval. Not only was no approval sought but a small free standing illuminated advertising sign was placed on the fence on the Kedron Brook Road frontage. The dwelling house on-site was modified to accommodate the prior orthodontist practice[8] and the Appellant does not intend to alter the external appearance of the building apart from the removal of the abovementioned sign and replacement with its sign.[9] So the existing building will appear to the outside world as a dwelling house but for appropriate signage.[10] The Appellant intends to supplement the existing landscaping around the perimeter of this site to enhance the streetscape and residential amenity of the area.[11]
[8] Exhibit 1 p 6 para 3.1.2.
[9] Exhibit 1 p 6 para 3.1.3.
[10] Exhibit 1 p 6 para 3.1.3.
[11] Exhibit 1 p 6 para 3.1.5.
There are two streets and a strong residential character between the site and Wilston Village. The intervening lots contain units and good quality housing and, in the opinion of the Appellant’s town planner, Mr Ovenden would have very limited opportunity for commercial development given the constraints associated with those lots such as the difference in level between the roadway and the lots.[12]
[12] Exhibit 1, p 21 para 5.2.10 and Appendix 3
If successful, the proposed legal office will not be dependent on custom generated from Wilston Village[13] and will not compete with any tenant in that Centre for custom.[14] The site is located on a suburban route[15] and in the opinion of Mr Ovenden will serve a local community need.[16]
[13] Exhibit 1 p 6 para 3.1.6.
[14] Exhibit 1 p 11 para 4.2.11.
[15] Exhibit 1 p 11 para 4.2.11.
[16] Exhibit 1 p 11 para 4.2.11 and Exhibits 3 and 4.
Initially one solicitor and a receptionist will operate from the site, with a maximum, over time, of three employees working out of two offices, with associated meeting rooms and storage. The proposed hours of operation will be 8:30 am to 5:00 pm with the possibility of opening on Saturday morning for half a day. It is envisaged that a maximum of eight clients will visit the premises per day, with legal consultations each taking approximately one hour. House calls will be made to elderly clients in the surrounding suburbs.[17]
[17] Exhibit 1 para 3.1.4.
To the south of the site on the opposite side of Kedron Brook Road is a Commercial Character Building currently being used by a veterinarian surgery and a dietician. This building is on the edge of Wilston Village but outside its centre designation.[18]
[18] Exhibit 1 para 2.2.4.
Wilston Village spreads to both sides of Kedron Brook Road, is approximately 150 metres from the Centre Activities on the eastern side of Kedron Brook Road and is centred on the intersection of Macgregor Street, Fifth Avenue and Stain Street.[19] It contains a high proportion of speciality shops, restaurants and cafes, a lower proportion of commercial office space when compared to other convenience centres in Brisbane and that it caters significantly for the convenience and restaurant/cafe needs of the community. Its occupants include retail shops, cafes, restaurants, a liquor store, a newsagent, post office, optometrist, dentist, a small grocery store and two real estate agencies, the Council’s Grange Ward Office, a magazine publishing office and a construction company office. There are no vacant tenancies in the centre and according to Mr Ovenden, the Appellant’s town planner, historically the centre has experienced very low vacancy rates.[20]
[19] Exhibit 1 para 2.2.5, Appendix 2
[20] Exhibit 1 para 2.2.5.
Chronology
The relevant time line is:
(a) 28 June 2007 - application lodged seeking a material change of use for “office”; (b) 18 September 2007 - application refused by Respondent; (c) 18 October 2007 - appeal lodged; (d) 7 April 2008 - leave granted to the Appellant to proceed on an amended application for “legal office” on the basis that such a change was a “minor change” within s 4.1.52(2)(b) of the Integrated Planning Act (IPA).
Grounds of Refusal by Respondent
The Respondent’s grounds of refusal were:[21]
[21] Notice of Appeal para 9.
“(a)The proposal does not comply with Desired Environmental Outcomes and Elements of the City in the Strategic Plan in that the proposed development is not sufficiently removed from the established Multi Purpose Centre to the south of the site.
(b)The proposal is contrary to the Desired Environmental Outcomes for Residential Areas, in that the proposal represents an incremental extension of a non-residential use within close proximity of an established local neighbourhood centre.
(c) The proposal is contrary to the specific Precinct Intent under Section 3.9 of the Grange District Local Plan in that the development is not contained within the existing business area.
(d)The proposal does not comply with the Purpose of the Centre Design Code in that the subject site is located in close proximity to an existing centre.
(e)The proposal does not comply with the following Performance Criteria of the Centre Design Code:
‘- P49 – The proposed use represents an incremental extension to the edge of an existing centre and is located in a catchment which is already serviced by an existing centre.
- P50 – The proposed use creates a de facto centre through the incremental development of multiple small shops and/or offices.’”
(My emphasis)
References in the grounds of appeal to the established Multi-Purpose Centre, established local neighbourhood centre and the existing business area all refer to Wilston Village.
Mr Trotter for the Respondent described the Council’s opposition as really a strategic one based on wider considerations than the amenity of the area.[22] He acknowledged that, given the Appellant’s intention to preserve the building externally as an existing dwelling if the application is approved, it was not expected there would be any unacceptable impact on the amenity of the area. He said subject to the imposition of conditions which, he foreshadowed would be agreed by the Appellant.
[22] Transcript p 16 line 30.
Grounds of Appeal
The Appellant takes issue with each of the above grounds of refusal[23] and asserts that no conflict exists between the town plan. The Appellant further asserts that even if a conflict with the planning scheme was found, there are sufficient grounds to support a finding that the Application be approved despite any conflict,[24] namely:
[23]Notice of Appeal para 10.
[24]Notice of Appeal para 11.
“(a)The proposed development will meet the community’s realistic expectations of future amenity in that it will not seriously detract from residential amenity. No building works are proposed to the exterior of the existing dwelling on the subject land and the proposed additional landscaping along the boundaries of the site will enhance the visual appearance of the subject land.
(b)Sufficient car parking is provided on-site in accordance with Council’s relevant planning scheme policy.
(c) The proposed development will service local resident needs.
(d)The proposed development will not result in excess glare, odour, light, traffic or intrusive noise or in any on-street parking congestion, risk to residential uses, or operation during hours that interfere with residential amenity.
(e)There is no commercial floor space currently available for sale or lease within the Wilston Village.
(f)The proposed development is not dependent on custom generated by the Centre activities in Wilston Village to maintain a viable operation and, as such, will not cause an incremental extension to the existing Centre.”
Issues in Dispute Agreed by Experts
On 6 February 2008 the planning experts, Mr Greg Ovenden for the Appellant and Mr Dennis Brown for the Respondent met and agreed there were two issues to be determined:[25]
[25]Report Mr Dennis Brown 25 March 2008 p 30 wrongly referring to the meeting as 6 February 2007.
“(a)Whether the proposal represents an “incremental” expansion of non-residential activities beyond the defined boundary of Wilston Village;
(b)The proximity of the site to the Wilston Village and the implications of the proposal being within 400 metres walking distance to the Centre.”
(my emphasis).
A further such meeting on the first day of the hearing, 7 April 2008 resulted in a further joint statement.[26] In that statement Mr Brown for the Respondent added a further issue namely whether other office space in Centres he identified in Schedule 1 to that statement would represent a suitably convenient alternative to office space in Wilston Village for the Appellant’s intended use. That was in response to the reference in Mr Ovenden’s report of the lack of any available space in Wilston Village. It was common ground that there is no such available office space though the Respondent does not concede the relevance of that.[27]
[26] Exhibit 8.
[27] Respondent primary written submission paragraph 50.
In response, Mr Ovenden made two points:
“(a)The issues for the appeal had already been agreed and reflected in the experts’ joint statement of planning issues arising out of the meeting of 6 February 2008; and
(b)In any event the present application must be considered on its merits and should not extend to the evaluation of alternative sites.”
Relevant Planning Documents
The relevant provisions of the Brisbane City Council plan 2000 are:
“(a)Desired Environmental Outcomes and Elements of the City in the Strategic Plan specifically Sections 4.2.2.5 and 4.4.2.4 and 4.4.2.6;
(b)Desired Environmental Outcomes for Residential Areas in City Plan chapter 3 s. 5.1.1
(c) The Grange District Local Plan specifically Section 3.9; and
(d)The Centre Design Code in particular the Purpose of the Centre Design Code and the P49 and the P50.”
Statutory Assessment Regime
The application is to be assessed and determined under the provisions of chapter 3, part 5 of Integrated Planning Act (IPA), specifically to be assessed by reference to s 3.5.5 and decided in accordance with sections 3.5.11 and 3.5.14.
Section 3.5.14(2) of IPA mandates that any decision must not:
“(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
The Respondent acknowledged that it would be rare that a proposed development would compromise the achievement of City Wide DEOs,[28] and that is not suggested here. So the focus is on any other conflict with the planning scheme which may exist. Any such conflict must be plain and clear.[29] If such a conflict is identified then the further question arises as to whether there are sufficient planning grounds to justify the approval despite the conflict. The term “grounds” is defined in schedule 10 of IPA as:
“Grounds, for sections 3.5.13 and 3.5.14 –
1. Grounds means matters of public interest.
2.Grounds does not include the personal circumstances of an applicant, owner or interested party.”
[28] Wilson SC DCJ Koerner v Maroochy Shire Council [2004] QPELR 192 paras 25 and 37, Respondent’s primary written submission paragraph 11.
[29] Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 328; Fitzgibbon Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212.
“Conflict” in this context means to be at variance or disagree with and the identification of any conflict is a three stage process.
(a)The identification of the decision on the relevant application;
(b)The identification of some part or parts of the scheme with which the decision might be said to conflict; and
(c) A decision whether the former conflicts with the latter.[30]
It is only if any conflict is identified that it is necessary to then consider whether any sufficient planning grounds exist to justify approval of the application.[31]
[30] Per Fryberg J with whom Mcmurdo P and Holmes J agreed Woolworths Limited v Maryborough City Council [2005] QCA 262 at para 23.
[31] Per Fryberg J with whom McMurdo P and Holmes J agreed Woolworths Limited v Maryborough City. Council see also Weightman v Gold Coast City Council [2002] QCA 234 and Stappen v Brisbane City Council [2005] QPELR 466 at 473 per Wilson SC DCJ.
Construction of Planning Schemes
One further important matter to be considered before I turn to the issues in question is the correct approach to the construction of planning schemes such as the City Plan under consideration. These were conveniently summarised in Westfield Management Ltd v Pine Rivers Shire Council[32] as:
[32](Unreported) Planning and Environment Court Brisbane 14 November 2003, 1627/2003 at pp 8-9; also Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at 271-272.
“(a)They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318);
(b)They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447);
(c)They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A);
(d)In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 in (3));
(e)Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287);
(f) A Strategic Plan sets out board desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230;
(g)A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA);
(h)Although planning documents have the force of law they are not drawn with the precision of an Act of parliament;
(i)A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).”
Turning now to the issues in dispute.
Does the proposal fail to comply with Desired Environmental Outcomes and Elements of the City in the Strategic Plan because it is not sufficiently removed from Wilston Village?
Citywide Desired Environmental Outcomes (DEOs)
These DEOs together with their supporting strategies form the basis from which all other provisions of the Plan flow.[33] The Respondent Council points to five relevant DEOs:
[33] The Brisbane Strategic Plan Introduction Exhibit 2 para 1
(a)Centres – maintaining the City Centre’s dominance for higher order activities in South East Queensland and supporting it with a well defined network of Multi Purpose and Special Purpose Centres;[34]
[34] 3.3.2.1(c) Exhibit 2 p 7
(b) Integrating, retailing, service, cultural, community facilities and public transport in Centres;[35]
[35] 3.3.2.2(d) Exhibit 2 p 8
(c)Locating services and facilities in Centres whenever possible;[36]
[36] 3.3.2.3(b) Exhibit 2 p 8
(d)Centres – a network of vibrant, successful and assessable Centres, both multi-purpose and special purpose, that become the focal points of co-ordinated public and private sector investment[37]; and
(e)Centres – promoting in-Centre development to avoid ribbon development and protect the capacity of major roads.[38]
[37] 3.4.2.1(d) Exhibit 2 p 9
[38] 3.5.2.1(e) Exhibit 2 p 10
The City Plan identifies four types of Centres:
“• The City Centre
• Major centres MP2
• Suburban Centres MP3 (generally more than 6,000 m2)
• Convenience Centres MP4 (generally less than 6,000 m2)[39]
As I have said Wilston Village is an MP4 Centre.”[40]
[39] Exhibit 9 tab 3 City Plan chapter 3 p 55
[40] Paragraph 1 above
The Respondent stressed the importance of the hierarchy of Centres long recognised by this Court as a sound town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunity. It also pointed to the court’s recognition of the importance of not making decisions contrary to expectations reflected in the City Plan which is based on an orderly hierarchy of commercial development.[41] The Respondent considers the proposed development is not sufficiently removed from Wilston Village so that it would, if approved, be in conflict with the Hierarchy of Centres concept in the City Plan. For reasons which will emerge, I do not agree.
[41] Lewiac Pty Ltd v Gold Coast City Council [2003] QPELR 385 (15)-(19); Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at para 7
Elements of the City
The Elements of the City are intended to show how the City is intended to develop to the year 2011 and include matters that have strategic importance and significance in decision making.[42] They provide a broad expression of how the Cities structure should develop to achieve DEOs both Citywide and specific to the areas.
[42] Exhibit 2 p 12 para 4
The Appellant argued that, having regard to the provisions of the planning scheme dealing with DEOs and Citywide strategies in a spatial context, it was clear that commission of small scale offices in residential neighbourhoods is contemplated by s 4.2.2.5 of chapter 2 of the City Plan which provides:
“Residential neighbourhoods are to contain a range of services and facilities that serve residents’ needs. These include schools, community uses, smaller industrial areas and centres. They often provide the basis for community networks and activity, learning, accessible shopping and services, and add vitality to local areas.
The Residential Neighbourhoods element as indicated on Map A – City Structure includes existing Suburban and Convenience Centres. Outside of the Centres, shops and offices will be permitted only where they are sufficiently removed from Centres and other small shops and offices; are located on a district access route or suburban route; and serve local community needs.”[43]
[43] Exhibit 2 p 17
(my emphasis)
The appellant says s 4.2.2.5 is reinforced by s 4.4.2.6 of chapter 2 which distinguishes between Centre activities which are out-of-Centre development on the one hand for which overwhelming community need must be demonstrated and a small scale shop or office of less than 250 m2 on the other. The relevant provision provides:-
“Small scale shop or office activities of 250 m2 gross floor area or less are provided for within Residential or Emerging Community Areas where they do not constitute an incremental extension to a Centre, are located on a district access route or suburban route and serve local community needs.”[44]
[44] Exhibit 2 p 21
(my emphasis)
The Respondent’s acknowledged the Appellant does not have to establish an overwhelming community need for the proposed use.[45] The proposed use under consideration is not a Centre activity as defined in the City Plan. Further there is no evidence that any of the uses in that definition are specified in the Grange District Local Plan or that any of the uses are termed Centre activities in Wilston Village.[46] So, the only alleged conflicts identified by the Respondent in relation to these provision is that the proposed development is not sufficiently removed from Wilston Village and constitutes an incremental extension to it.[47]
[45] Transcript p 38 lines 30 to 50.
[46] City Plan Chapter 3 para 10.2 definition of Centre activities
[47] Notice of Appeal para 9 ground 1
The Respondent also focused on paragraph 4.2.2.5 of Chapter 2 set out above and pointed to the statement in the Elements of the City that existing identified Centres have considerable capacity available to meet demand expected during the life of the plan. It referred to the Challenge to the Plan in dealing with undesirable factors and specifically to this statement[48]:
“These factors are eroding the amenity and attraction of lots fronting major roads to the point where residential uses are being replaced with commercial and retail uses, which further reduces road capacity, promotes out of Centre development and increases the cost of transport provision. …
These outcomes are essential to the continued viability and attraction of the network of Centres and the liveability of the City.”
[48] Exhibit 2 p 20 first paragraph
But that statement must not be read in isolation. It must be read by reference to the factors identified in the plan as contributing to the erosion of amenity, which qualify that outcome. They are[49]:
[49] Exhibit 2 p 19 paragraph 4.4.1
(a) The abandonment of the Cities’ tramway system in 1969;
(b)The significant growth in household car ownership and consequent private vehicle trips made by residents leading to:
(c)The increased dispersal of commercial, retail, cultural and community uses in-out-of Centre development making those developments extremely difficult to service with cost effective public transport;
(d)The private car is likely to remain the preferred mode of transport for residents given the convenience, safety and high level of mobility and freedom it affords with the following consequences:-
(i) Increasing peak hour congestion of the road network.
(ii) Further short to medium term reductions in air quality until much higher standards of vehicle pollution omissions are achieved; and
(iii) Continued financial pressure on the public transport system.
I do not consider that any of the above factors would be impacted by the proposed development and the Respondent did not contend to the contrary.
The Respondent further argued that the Elements of the City not only seek to strengthen Centres, but also to encourage services in those Centres, and to strongly discourage out-of-Centre development.[50] It said any such out-of-Centre development should not be in a stand alone or isolated location.[51] It is true that the plan makes mention of such a concept when stating that the preference for such out-of-Centre development would be given to development occurring at the edge of an existing Centre rather than in a stand alone or more isolated location.[52] However I read that qualification as applying to an out-of-Centre development requiring demonstration of overwhelming community need which is not relevant here. It precedes, and does not qualify, the next immediate paragraph which provides:
[50] Exhibit 2 p 21 paras 4.4.2.4 and 4.4.2.6.
[51] Exhibit 2 p 21 para 4.4.2.6.
[52] Exhibit 2 p 21 para 4.4.2.6
“Small scale shop or office activities of 250 m2 gross floor area or less are provided for within Residential or Emerging community areas where they do not constitute an incremental extension to a Centre, are located on a district access route or suburban route and serve local community needs.”
(my emphasis)
It seems plain to me that, notwithstanding the obvious intent of the Plan to encourage Centre activities to be located in-Centre, the Plan has the flexibility and intent to comprehend small shops or office activities in out-of-Centre locations where appropriate. From the extract in paragraph 29 above the elements required to be present for such a small office out-of-Centre, as here proposed, are:
(a) Office activity;
(b) Gross Floor Area of 250 m2 or less;
(c) Within a Residential or emerging community area;
(d)Not constituting an incremental extension to a Centre;
(e)Located on a district access route or suburban route; and
(f)Serving local community needs.
I am satisfied the proposal satisfies each of the above elements. As I have said, it is separated from Wilston Village by units and houses which I think addresses any suggestion of it being an incremental extension to Wilston Village. Further, the proposed maintenance of its exterior appearance will, to my mind, blend it discreetly into its immediate environment. There is no other suggestion of any adverse affect on the amenity of the area. The concern of the Council is that it is too close to Wilston Village. I do not agree. I see no conflict between the proposal and the Citywide DEO’s or the Elements of the City in the Strategic Plan. When one reads those two components of the overall planning documentation broadly, it is apparent they reflect an intention to achieve discrete Centre activity, whilst at the same time contemplating appropriate small-scale office development outside the designated Centre.
Is the proposal contrary to the Desired Environmental Outcomes for Residential Areas in that the proposal represents an incremental extension of a non-residential use within close proximity of Wilston Village?
The Area DEO’s are the next most detailed level of the town planning structure and entitled to receive much more weight in assessing a proposal in that “area than the Citywide DEO’s.[53]
[53]Stappen v Brisbane City Council [2005] QPELR 466 para 30
The Appellant points to paragraph 8 of the Desired Environmental Outcomes for Residential Areas in chapter 3 s 5.1.1 of the City Plan which states:
“5.1.1 Desired Environmental Outcomes
The following DEOs apply to all Residential Areas. Refer also to DEOs for each specific Area.
1 …
2 …
3 …
4 …
5 …
6 …
7 …
8Shops and offices in residential areas are located on a district access or suburban route, are not located in close proximity of an existing Centre, are small in scale and only serve local community needs.
9 …
10 …
11 …
12 …”
(my emphasis)
The Appellant argues that this Desired Environmental Outcome reinforces an obvious intent expressed in the plan to allow small scale businesses to operate out-of-Centre in residential areas which intent, it is said, is also reflected in the Level of Assessment Table for the Low Density Residential Area, Character Residential Area and Low-medium Density Residential Area[54] in that:-
(a)Home based businesses up to 50 m2 and complying with a range of criteria are self assessable development;
(b)Home based businesses up to 100 m2 and complying with additional criteria are impact assessable (generally appropriate);
(c)Shops or offices up to 250 m2 where complying with the Acceptable Solutions of the Centre Design Code are impact assessable (generally appropriate).[55]
The appellant makes the point that, but for the residential requirements in relation to home businesses in the Home Business Code of the City Plan, this proposal otherwise meets all other criteria under the Code. It argues that the home business concept provides a useful comparison of the proposed use in terms of the scale and intensity of development proposed outside the Wilston Village Centre.[56] Again, this demonstrates the flexibility of the city plan in contemplating small scale businesses operating out of established Centres.
[54] Exhibit 2 p 44
[55] Exhibit 2 pp 44 – 46 and Exhibit 1 p 18, para 4.3.3, Home Business Code P1 and P2.
[56] Exhibit 1 paras 4.2.7 and 4.2.8.
The Respondent’s case is that the proposed development is in too close proximity to Wilston Village and that s 5.1.1(8) set out in paragraph 33 above stresses the importance of even small scale offices not being acceptable if in close proximity to an existing Centre. I agree with that in concept but I do not agree that the proposed development would be in close proximity to Wilston Village. In my view the proposal satisfies the abovementioned elements of Chapter 3 s 5.1.1(8). Accordingly I see no conflict between the proposal and the Residential Area DEO’s.
Is the proposal contrary to the specific Precinct Intent under s 3.9 of the Grange District Local Plan in that the development is not contained within the existing business area?
The Appellant says that the role of Wilston Village is a clearly defined one to meet the convenience and restaurants needs of the community and that this is reinforced when one looks at the description of other Centres, namely:-
(a) Alderley Shopping Centre – “a local shopping business and service centre”;[57]
[57] Exhibit 2 page 49 paragraph 3.1.
(b) The Grange (Terminus) Shopping Centre – “a local shopping centre building on its existing role as a convenience centre”;[58]
[58] Exhibit 2 page 50 paragraph 3.4.
(c) The Newmarket Shopping Centre – “a range of retail, business and entertainment facilities”[59]
(d) The Lutwyche City Shopping Centre and surrounds – “intended to function as a centre providing a broad range of retail, business, community and recreational needs”;[60] and
(e) The Banyo Centre –to be the focus of the area’s “retail, commercial and service provision”.[61]
[59] Exhibit 2 page 50 paragraph 3.8.
[60] Exhibit 2 page 50 paragraph 3.11.
[61] Exhibit 2 page 53.
Mr Ovenden for the Appellant gave evidence that, unlike other more detailed Local Plans under the City Plan, the Grange District Local Plan does not change the level of assessment for development. He said the relevant Development Principles and Precinct Intents are:-[62]
[62] Exhibit 2 page 14.
“2. Development Principles
2.1. The character of the Grange District is to reflect its main period of development between the 1870s and 1945, known as “timber and tin” or “timber and tile.”
…
3. Precinct Intents
…
3.4Commercial/business activities must not expand outside the existing business area along Days Road and Maygar Street.
…
3.9Wilston Village is intended to remain as a local shopping centre catering for the convenience and restaurant needs of the community. The Village atmosphere must include a safe, pedestrian friendly shopping environment and places for people to meet and interact. Any future proposals should be contained in the existing business area, minimise impacts on surrounding residential amenity and enhance the existing landscape.”
He said the proposal achieves the retention of the pre-war built form character prevalent in the district with the reuse of the small pre-war house the subject of the proposal. He pointed to the specific reference to controlling commercial/business activities along Days Road and Maygar Street and noted the absence of any similar statement of intent in relation to Kedron Brook Road upon which the site is located. Having made that point, he acknowledged that this absence did not mean that, by default, commercial/business activities were taken to be appropriately located outside Wilston Village along Kedron Brook Road. He further acknowledged that any impact assessable development, which this is, has to be assessed against the entire City Plan. His view is, however, that any such an assessment would find the proposal acceptable.[63]
[63] Exhibit 1 paragraph 4.2.25.
Mr Ovenden contrasted the statement of intent in relation to the Banyo Centre in the Banyo/Nudgee Local Plan which, he said, focused on the area as a retail, commercial and service provider area. In the case of the relevant Grange District Local Plan he identified a point of difference between the Banyo Centre and Wilston Village, where the statement of intent as to the latter focused on convenience and restaurant needs of the community and not commercial needs which he said was reflected in the absence of available commercial tenancy space in Wilston Village. That role he said was expected to continue according to the Grange District Plan.[64]
[64] Exhibit 1 paragraph 4.2.26 – 4.2.29.
Against that background Mr Ovenden concluded that the subject proposal of a 79 m² office 150 metres north of Wilston Village would not undermine the current and intended role of that centre and that the nature, scale and location of the proposed use would have no adverse impact on it. He appointed to the maintenance of the “timber and tin” character of the subject building and said the proposed use was not an important element in providing for the convenience retailing and restaurant needs of the community. Hence it rendered the development consistent with the principles and statements of intent under the Grange District Local Plan. Two things may be said about that, firstly Mr Ovenden speaks of the convenience of the community as “convenience retailing” which, as will be seen later, I regard as an incorrect qualification of convenience. Secondly, whilst he says that proposed use as a branch legal office is not an important element in the continuation of Wilston Village meeting the convenience and restaurant needs of the community, nevertheless as will later be seen, I regard the proposed use as one which is within the contemplation of the term “convenience needs of the community”.
The Respondent Council perceives a conflict between the proposal and paragraph 3.9 of the Local Plan outlined above in paragraph 37, arguing that the proposal is a future proposal within the meaning of that term in s 3.9 and, as such, is only to be allowed in the existing business area namely Wilston Village. The Local Plan is the most detailed layer of planning of all the documentation in the City Plan, and to the extent of any conflict with other parts of the Plan, the Local Plan overrides any other part.[65] Relevant to the intended use of Wilston Village as a convenience and restaurant needs centre, the Respondent pointed to the various uses in the Centre other than restaurants, namely:-
[65] Exhibit 2 page 38 chapter 4.
Hot bread shop Convenience supermarket IGA Seafood takeaway Beauty and spa Physiotherapist Dress shop Forensic services Optometrist Style magazine Newsagency Hardware Chocolate shop Real estate office DGW Office Bottle shop JDS office Ice-cream shop
I had difficulty reconciling the current uses in Wilston Village by reference to the town planning reports of Mr Brown[66] and Mr Ovenden.[67] I raised this with the parties and they provided me with an agreed list of tenancies.[68] Those tenancies are set out in annexure A. For completeness I mentioned that the above list of non-restaurant uses relied on by the Respondent contains two uses not in the agreed list namely the physiotherapist and the hardware. I do not regard that omission of any moment.
[66] Exhibit 5 Appendix 4.
[67] Exhibit 1 Appendix 2.
[68] Expert’s Joint Statement on Planning Issues dated 2 May 2008.
Whilst none of the above are restaurants as such, several are caught by the categorisation given to Wilston Village by the Respondent’s town planner Mr Brown as an “eat street” locality.[69] The Respondent argues that the Local Plan attempts to contain and confine development to existing Centres with variable language when dealing with each Centre, but in the case of Wilston Village it argues that the words of containment of future proposals to the existing business area are highly emphatic.[70] Further, it says that the very clear planning intent reflected in the Local Plan language refines the more general strategies of the plan contained in the more general planning documents, namely the Citywide Strategies, Citywide DEOs, Elements of the City, Area DEOs and the Centre Design Code. I agree with that but the nature and extent of that refinement is to be determined.
[69] Exhibit 5 page 9 Conclusion B.
[70] Respondent’s written submissions paragraph 44.
Where then does the proposed use sit with the intention in paragraph 3.9 that “Wilston Village remains a Centre catering for the convenience and restaurant needs of the community”? To my mind the expression “for the convenience and restaurant needs of the community” in 3.9 should be read disjunctively to embrace two concepts namely “for the convenience of the community” and “for the restaurant needs of the community”. Clearly the proposal does not fit the latter concept so the question is whether the proposed use is one which falls within the meaning of the former.
Convenience of the community is not defined. The Appellant says that assistance can be obtained from the opening words of paragraph 3.9 which states that “Wilston Village is intended to remain as a local shopping Centre …” (my emphasis). In relation to the above concept of “convenience of the community” the appellant seeks to interpret that as “convenience needs of the community”. From there it argues that, in context, “convenience needs” refers to “convenience shopping needs”, so that the concept becomes “convenience shopping needs of the community”.
The term shopping is not defined in the Plan although the word “shop” is. In these terms:
“A use of premises for the display and retailing of goods, and personal services such as betting, hair and beauty care, Laundromats and dry-cleaning shop fronts e.g. supermarket, department store, showroom, retail warehouse, liquor store, place for the hire of domestic items, store, market or salon.”
Presumably when one avails oneself of a shop facility one is said to be shopping.
When one looks at the present tenancies in Wilston Village set out in annexure A, by reference to the definition of shop, the following is found:-
No. Tenancy Within “Shop” Definition? 1 Hairdresser Yes 2 Publisher No 3 General Grocery Store Yes 4 Seafood Restaurant No 5 Thai Restaurant No 6 Brumbys Bakery No 7 Restaurant Bar No 8 Pizza/Pasta Restaurant No 9 Café/Coffee Shop No 10 Council Ward Office No 11 Restaurant No 12 Developer/Real Estate Office No 13 Harvey Travel Agent No 14 Ice Cream Shop No 15 Clothes Store Yes 16 Coffee Shop/Bar No 17 Liquor Outlet Yes 18 Office No 19 Developer No 20 Musical Instrument Repairer No 21 Chinese Restaurant No 22 Coffee Club No 23 Beauty/Day Spa Yes 24 Clothes Shop Yes 25 Optometrist No 26 Newsagent No 27 Post Office No 28 Bistro No 29 Clothes Store Yes 30 Chocolate Shop No 31 Gift/Home Ware Yes 32 Tomato Brothers Yes 33 Dentist No
It will be seen that very few fall within the definition of a shop. Paragraph 3.9 of the Local Plan speaks prospectively of Wilston Village being intended to remain as a local shopping centre. I have no evidence to show which, of the above tenancies were in existence at point of promulgation of the City Plan but, whether extant at that point or of more recent origin, each of the tenancies are, to my mind, within the language of paragraph 3.9. That is they satisfy either the restaurant needs of the community or the convenience of the community.
The point I wish to make is that the description in paragraph 3.9 of the Local Plan of Wilston Village as a local shopping centre should be given a broad and commonsensical interpretation rather than a narrow one circumscribed by the definition of shop outlined above. That approach is borne out by the number of existing tenancies in the Centre which fall outside the definition of shop. In my view “shopping Centre” is a generic term used to describe a variety of Centres and the nature of any particular Centre should be determined by reference to the intention evidenced in the City Plan. In the present case that intention is manifested in most detail in paragraph 3.9 of the local plan.
Because of the finding I have made as to the generic nature of the words shopping centre, I do not agree that the concept of “convenience of the community” in paragraph 3.9 should be qualified to refer to shopping needs so as to mean “convenience of the shopping needs of the community” as the Appellant contends. That result would be unnecessarily restrictive and is not justified by the plain words of paragraph 3.9. The term “convenience” may apply to uses not contemplated by the term “shopping”. It seems to me that the proposed use of the site as a branch legal office falls within the description of a convenience for the community. It is a use and a convenience which would render trips to the city for legal advice superfluous for residents. For that reason I regard the proposed use as one which is contemplated by paragraph 3.9. That conclusion is consistent with two of the existing professional tenancies of dentist and optometrist.[71]
[71] Exhibit 5 page 19.
I turn now to the final sentence of paragraph 3.9 which provides that any future proposals should be contained in the existing business area, minimise impacts on surrounding residential amenity and enhance the existing landscape. The question to be determined is whether that language is so emphatic as to preclude the proposed use from being carried on other than in Wilston Village.
The question is whether the use of the word “should” in paragraph 3.9 when dealing with future proposals is to be correctly interpreted in a mandatory manner so as to forbid any relevant use outside the Centre. Mr Trotter for the Respondent referred to what he called the highly emphatic language of paragraph 3.9 of the local plan dealing with Wilston Village and sought to differentiate that language from what he saw as the much less emphatic language relating to other Centres.[72]
[72] Respondent’s primary written submissions para 44.
I agree that there is a contrast in the language of the local plan when dealing with the various Centres within the district.[73] The language varies in nature when describing future proposals using, variously, “must” (paragraphs 3.1, 3.2, 3.3, 3.5, 3.7, 3.10, 3.11, 3.13, 3.14 and 3.15), “will” (paragraph 3.4), “may” (paragraphs 3.6 and 3.12) and “should” (paragraphs 3.8 and 3.9).
[73] Exhibit 2 page 49 para 3.
The interpretation of the City Plan is governed by the Acts Interpretations Act.[74] Section 32CA defines “may” as a power that may be exercised or not exercised at discretion and “must” as a power that is required to be exercised. The word “should” has no statutory meaning.
[74] Acts Interpretations Act sections 6 and 7; Statutory Instruments Act 1992 sections 6 and 7; Local Government Act 1993 s 20 and Integrated Planning Act 1997.
I regard the use of the words “must”, “will”, “may” and “should” in paragraph 3 of the Local Plan as no mere coincidence, so that paragraph 3.9 should be read against the background that the Council, when developing the various layers of the City Plan, used such language intentionally. In relation to paragraph 3.9 that is made more obvious because of the intention in other components of the plan documentation[75] that small scale office uses could, where appropriate, be located outside Centres. If the word “should” in paragraph 3.9 was to be read in a mandatory matter so as to prohibit any such use outside Wilston Village, the utility of the other parts of the Town Plan I refer to would be negated. In other words, in the cascading provisions of the various layers of the City Plan, the earlier provisions accommodating such an office use would be abruptly proscribed by the Local Plan. For those reasons I do not think that the language of paragraph 3.9 is so emphatic as to prohibit the proposed use other than in Wilston Village.
For the above reasons I find that there is no conflict between the Local Plan and the proposal under consideration.
Does the proposal fail to comply with the Purpose of the Centre Design Code in that the subject site is located in close proximity to an existing centre?
[75] Elements of the City s 4.2.2.5, s 4.4.2.6 (re small scale office activities).
The Centre Design Code (Code) is located within Chapter 5 of the City Plan.[76] The purpose of the Code is to:-
[76] Exhibit 2 page 65.
· Ensure that development in a Centre contributes to the Centre’s desired urban character, built form, and traditional character;
· Encourage building and landscape design in Centres that reinforce the city’s subtropical character;
· Establish base line standards for maximum gross floor area, building height and building form for different types of Centres;
· Encourage Centres that integrate into their surroundings and incorporate sound urban design;
· Ensure a safe and well-lit pedestrian environment;
· Ensure that out-of-centre development is small in scale, located on a district access or suburban route, is not located in close proximity to an existing Centre, and only serves local community needs.
(my emphasis).
The Code contains specific provisions for where for a shop or office is proposed to be used outside of a Centre. Of specific relevance are the following:-
Performance Criteria Acceptable Solutions
P49 The proposed use does not:
· Represent an incremental extension to the edge of an existing Centre;
· Locate in a catchment which is already serviced by an existing Centre.
A49.1 The site is not located adjoining a multi-purpose Centre,
A49.2 The site is not located within 400 m walking distance from the perimeter of the Multi-purpose Centre.
P50 The proposed use must not create a de facto centre through the incremental development of multiple small shops and/or offices. A50 The site is not located in close proximity to an existing or approved small shop or office.
As the subject site is located within 110 m of Wilston Village the Appellant accepts that the proposal does not comply with Acceptable Solution A49.2 above, but says that it complies with all other Acceptable Solutions.[77] The result of that non-compliance is that the proposal is impact assessable (generally inappropriate).[78] The Respondent Council, in its notice of appeal,[79] says that the Appellant fails to comply with P49 and P50 although Mr Brown’s report[80] does not deal with any breach of P50. In any event, I do not consider that the proposed use creates a de facto centre through the incremental development of multiple small shops and/or offices so I shall focus on P49.
[77] Exhibit 1 paragraph 4.2.34.
[78] Exhibit 2 p 46 para 6; p 47 para 6
[79] Page 3 paragraph 5.
[80] Exhibit 5.
The fact that a proposal does not comply with an Acceptable Solution is not the end of the matter. For Code and impact assessment as we are here dealing with, the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose. In that event it is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria.[81]
[81] City Plan, Chapter 5, page 3, right hand column.
The appropriateness of a proposal in any particular circumstance will be dependent on its location, design and impacts and needs to demonstrate certain features.[82] Those relevant to the present proposal appear to me to be:
[82] Exhibit 2 p 35 Plan Chapter 3 p 6
(a)That the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified;
(b)The proposal has a positive impact on the landscape, scenic quality and streetscape of the locality;
(c)The proposal does not detract from the appearance, environment or amenity of the locality. These effects may relate to issues such as hours of operation, display of goods or release of any contaminant;
(d)The proposal does not generate greater traffic movement or hazard and is reasonably expected in the surrounding locality by reason of:-
·On-site and on-street parking;
·Number or type of vehicle movement;
·Manner of access to the site.
(e)The capacity of the road system in the locality is suitable for the proposed activity.
(f)The site has a reasonable level of accessibility by all modes of transport including pedestrian, cyclist, public transport and private vehicular access that is appropriate to the proposed activity.
Apart from the question of the siting of the proposed use, there was no suggestion that the appellant did not otherwise satisfy the above criteria. Given that I have already found that the location of the site is neither too close to Wilston Village, nor an incremental extension of it creating a de facto centre, it follows that I have no problems with the site location.
As I have found that the proposal does not represent an incremental extension to the edge of Wilston Village the only non-compliance with P49 is that the proposed development is within the 400 m walking distance from the perimeter of Wilston Village. The Appellant argues that the development complies in other ways with the Performance Criteria P49 in that the proposal would not represent an incremental extension to the edge of Wilston Village, the existing and planned role and function of Wilston Village comprehends such a development, there is no current available space within Wilston Village and the surrounding catchment is not presently serviced with legal services by Wilston Village.[83] I accept that Wilston Village does not have an existing legal service provider nor was there any evidence of one in its catchment. As to the non-compliance with P49, I agree with the Appellant and regard that non-compliance as minor and do not regard the distance of 400 metres specified in Acceptable Solution A49.2 as evidencing an inflexible proscriptive distance rendering any lesser distance fatal to a development proposal. On the contrary, having regard to the required features I have set out relevant to the location, design and lack of impact of the development on the amenity of the area and the fact that the planned role of Wilston Village comprehends such a development I consider that the Appellant has demonstrated another way of achieving compliance with P49.[84] The result is that I find no conflict between the proposal and the Centre Design Code.
[83] Exhibit 1 paragraph 4.2.34.
[84]SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74, paragraphs [47]-[48]; City Plan Chapter 3, s 2.6, Exhibit 2 page 38.
Relevance of other sites
One issue which was introduced at a late stage by the Respondent was the availability of alternative sites within the catchment. Ms Kennedy for the Appellant gave evidence that her firm had 32 clients in the districts of Wilston, Windsor and Newmarket and 70 clients in the wider catchment of Wilston, Windsor, Newmarket, Ashgrove, Grange and Kedron.[85] The Respondent gave evidence of eight other sites[86] but the evidence came down to only two of those which the Respondent considered suitable. One is at the corner of Evelyn Street and Grange Road, Grange, and the other at 3 Days Road and Gilbert Street, Windsor.[87]
[85] Exhibit 3 paragraph 9.
[86] Exhibit 8, attachment 1.
[87] Transcript page 64 lines 40-50, alternative sites.
The Appellant argued that availability of other suitable sites was irrelevant and cited Wilson SC DCJ it KotkuEducation and Welfare Society Inc v Brisbane City Council & Ors,[88] picking up comments up by Fryberg J in Ecovale Pty Ltd v Gold Coast City Council.[89] The force of those decisions was that the Court was not a planning authority and that in hearings such as this the Court should not be called upon to embark upon an inquiry as to the suitability of other sites.
[88] [2005] QPELR 267 at 820.
[89] [1999] 2 Qd R 35.
The Respondent Council relied upon a decision of Quirk DCJ in Arapower Pty Ltd v Gladstone City Council.[90] In that case his Honour said that other vacancies suitable to the applicant’s proposed use could not be ignored. On the face of those decisions there appears to be a conflict but when one reads the cases there is no conflict. In Kotku the Court was presented with an application for a change of use to permit the construction of a mosque and cultural centre on the subject land. The Court found that the City Plan did not appear to make adequate provision for minority religious groups.[91] One of the submitters sought to establish the existence of other suitable and allegedly preferable sites, and it was in that context that his Honour made reference to the remarks of Fryberg J in Ecovale, declining to enter into an inquiry in relation to those alleged preferable sites.
[90] [2003] QPELR 509 paragraph [16].
[91] [2005] QPELR paragraph [6].
Ecovale involved an appeal against a decision of the Planning and Environment Court allowing a re-zoning. It was a small block of land and his Honour dealt with the concept of need in the context of dealing with the balance of zones and identified the matters which would be relevant in terms of an amendment to a planning scheme. He identified some consequences of the zoning of land, commenting that a large oversupply might result in the land falling into disuse and being neglected, and a large undersupply might stifle development or artificially inflate land prices. Given that the Planning and Environment Court had been dealing with only one small lot, it was not obliged to embark on the type of inquiry which he said must be carried out when formulating a new planning scheme.[92] His Honour said:
“It must be remembered that the function of the Planning and Environment Court is to resolve appeals in individual cases. The court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of enquiry which must be carried out to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think the court derives must assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, it supporters may be tempted to advance evidence that the supposedly similar allotments are in fact suitable for the proposed development. Such an approach could turn the appeal into an enquiry into the suitability of planning terms of all those allotments. The resulting delay and costs may be easily imagined.”
[92] [1998] QCA 67 page 27.
Arapower was a different case in which the Appellant sought a change of use of premises for the purposes of a video store. The subject land was the site of a residential dwelling included in Residential A Zone in the relevant Scheme. His Honour Quirk DCJ said[93] that it was not easy to see that the proposed use was one which was consistent with the implementation objectives of the planning scheme.
[93] [2003] QPEC 11 paragraph [11].
It is clear from the authority of Arapower that there may be instances where the availability of other sites will be relevant when the proposal under consideration is one where, in the words of His Honour in Arapower, “it was not easy to see that the proposed use was one which was consistent with the implementation objectives of the Planning Scheme”. That is not the case here however because I have reached the view that in the end result there is no conflict between the proposal and the City Plan. The result of that finding is that I am not considering a proposal which is in any way inconsistent with the objectives of the City Plan as was the case in Arapower. In that case His Honour was confronted with the issue of whether there was any justification for the departure from the planning authority strategy by allowing the proposal when there existed other suitable sites consistent with the planning scheme. It was for that reason His Honour found that those other sites could not be ignored.[94] I do not regard the alleged availability of other sites as relevant to this matter.
[94] [2003] QPEC 11 paragraphs [14]-[16]
Having said that however, even if I was of the view that the other sites were relevant, there are features of the evidence in relation to those sites which lead me to conclude that the evidence is of little weight. Firstly, the evidence on the issue was first raised in the expert’s joint statement on planning issues signed on the first day of the trial. In fairness to the Respondent, it was introduced in response to the Report of Mr Ovenden[95] that there was no vacant tenancies in Wilston Village. Nevertheless, this Court has expressed concern where expert opinions are recorded for the first time in a trial report, not having appeared in an earlier joint report.[96] Whilst that case was a more extreme one than here, the principle is important.
[95] Exhibit 1 paragraph 2.2.5.
[96]SEQ Bond Stores Pty Ltd v Gold Coast City Council [2006] QPELR 74 paragraph [33].
The second aspect of the evidence of alleged alternate suitable sites is the evidence itself, which I consider a more serious matter than the above timing issue. Given the lateness of the evidence it was apparent to me that neither party had had sufficient time to make sufficient inquiry to render meaningful any evidence of alternative suitable sites. I regard the evidence on the issue as almost entirely speculative and of little weight. It is impossible to determine whether or not any of the sites are a genuinely alternate site to the present one. The highest Mr Brown for the Respondent could put the evidence of the two sites he thought suitable was that one looked eminently suitable and that the other looked potentially suitable.[97] I would approach the evidence of Ms Kennedy with caution as she clearly had not had the opportunity of carrying out an appropriate assessment of those sites.
[97] Transcript page 64 line 43.
Does the proposal conflict with the City Plan?
For the reasons above outlined I am of the view that the proposal does not conflict with the City Plan. Even if I am wrong about the absence of a conflict, I agree with Mr Ovenden for the reasons he gives in paragraph 12 above that there are sufficient grounds to justify approval of the application notwithstanding any conflict. On the issue of need I adopt the meaning of that concept as expressed by Robertson DCJ in PMM Group Pty Ltd v Noosa Shire Council[98]where he said:
[98] [2006] QPELR 144 at 168
“The principles to be applied are well known and, in this case, uncontroversial:
●Need does not mean pressing need, critical need, widespread desire or anything of that nature. Rather, a thing is needed if it is a provision, taking all things into account, would improve the wellbeing of the community: Cut Price Stores, Retailers v Caboolture Shire Council [1984] QPLR 126 at 121.
●A use is needed, if it would, on balance, improve the services and facilities available in a locality: Rooster Land Pty Ltd v Brisbane City Council [1986] QPLR 515.”
Given the absence of any legal services provided in Wilston Village I consider the proposed development will satisfy a need in the area.
For all of the above reasons I consider that the application should be approved. The appeal is allowed and the matter is adjourned to permit resolution of the appropriate conditions.
ANNEXURE A
By reference to the definition of shop the following is found:
- Hairdresser
- Publisher
- General Grocery Store
- Seafood Restaurant
- Thai Restaurant
- Brumbys Bakery
- Restaurant/Bar
- Pizza/Pasta Restaurant
- Café/Coffee Shop
- Council Ward Office
- Restaurant
- Developer
- Real Estate Office
- Harvey Travel Agent
- Ice-cream Shop
- Clothes Store
- Coffee Shop/bar
- Office
- Liquor Outlet
- Developer
- Musical Instrument Repairer
- Chinese Restaurant
- Coffee Club
- Beauty/Day Spa
- Clothes Shop
- Optometrist
- Newsagent
- Post Office
- Bistro
- Gift/Homeware
- Chocolate Shop
- Real Estate Agent
- Tomato Brothers
- Dentist
3
2
0