TMP Holdings P/L v Caloundra City Council

[2001] QPEC 38

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	TMP Holdings P/L & Ors v Caloundra City Council & Ors [2001] QPE 038
PARTIES:	TMP HOLDINGS PTY LTD RONDA POINTON AND SVENDAHL PTY LTD Appellants v CALOUNDRA CITY COUNCIL Respondent and ENID JEAN ECCLES Co-Respondent
FILE NO/S:	3119 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	7 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	24, 26 & 27 April, 2001
JUDGE:	Judge Quirk
ORDER:	APPEAL ALLOWED
CATCHWORDS:
COUNSEL:	Mr S Ure for the appellants Mr J Houston for the respondent Mr L Manning for the co-respondent
SOLICITORS:	Phillips Fox for the appellants Corrs Chambers Westgarth for the respondent Lestar Manning for the co-respondent

1. This appeal is against the respondent’s refusal of an application for necessary

   development approvals for a tavern and bottle shop on land in the town of Glass

   House Mountains.

2. The land occupies an area of 1874 square metres and is located at the corner of

   Reed and Bishop Streets. The proposed tavern is intended to be a single storeyed

   and attractively designed structure which will provide approximately 570 square

   metres of floor area. The design and layout of the proposal can be seen in the

   material placed before the court. There were a number of individual submissions

   opposed to the tavern and petitions both for and against it.

3. In the Transitional Planning Scheme for Caloundra City the land is included in the

   Residential A Zone. Under s.6.1.29 of the Integrated Planning Act a development

   to which a transitional planning scheme relates must be assessed under the relevant

   provisions of the repealed Local Government (Planning and Environment) Act.

   Matters relevant to this assessment are found in s.4.3(3) of that Act.

4. It is noted that, under the repealed Act, the proposal would have called for a

   rezoning. However, under the Strategic Plan the land is allocated to the “Business”

   designation which reflects the stated aim of the Strategic Plan that:

   “at Glasshouse Mountains it is intended to focus new retail and commercial development in a precinct adjacent to the railway station”.

   The subject land is found in that precinct.

5. Although the Council planning officers who assessed the application recommended

   in its favour, that recommendation was not accepted by the Council and the

   application was refused. However, following negotiations which involved traffic

   and acoustic consultants (and some modifications to the proposal) the Council was

   prepared to support a conditional approval of the application.

6. This involved the granting of certain relaxations in respect of the development

   requirements set out in the Town Planning Scheme. The more important of these

   being:

· A reduction in the number of on-site car parking spaces required;

· A reduction in the setback requirements to the Reid Street

frontage;

· Some relaxation in respect of landscaping requirements.

1. The issues which the co-respondent asked the court to consider included;

1.	Need (including Social Impact);
2.	Whether the proposal constituted over-development of the site (which

involved the adequacy of car parking);

3.          The adequacy of landscaping.

1. Whether there is a need for any amendment to the Town Planning Scheme was a

   matter made relevant by s.4.4(3)(b) of the Local Government (Planning and

   Environment) Act. What the concept of “Need” in a planning sense means has been

   the subject of a good deal of judicial comment (e.g. see Cut Price Stores Retailers v

   Caboolture Shire Council (1984 QPLR 126 at 131; Roosterland Pty Ltd v Brisbane

   City Council (1986) 23 APAD 58 at p. 60; All-A-Wah Carapark v Noosa Shire

   Council (1989) QPLR 155 at 157).

2. What appears to be fundamental to the principle that was recognized in those cases

   is that it is a matter to be judged from the perspective of community interest rather

   than that of any individual. What was made clear by the High Court in Kentucky

   Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 was that:

   “If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and the resultant community detriment will not be made good by the proposed development itself, that appears to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration”.

3. In respect of the “Need” question evidence came from Mr Craven (for the

   appellant), Mr McCracken (the respondent) and Mr Norling (the co-respondent).

   An important consideration in this case is that, at present, the local community of

   Glass House Mountains does not have the benefit of a general licence in the town.

   There are however a stand-alone liquor store, a bowls club and the Glass House

   Mountains Sports Club where liquor can be obtained. The nearest general licence is

   at Beerburrum and a licensed Chinese restaurant (which is part of a service station

   complex) is found some distance along the old highway to the north.

4. The argument put forward by the co-respondent against there being any need for the

   proposal was founded essentially on two proposition s namely:

1. There was an insufficient population base to justify the location of a

tavern at Glass House Mountains;

2.          The adverse social impact that would result from the development of the

proposal was such as to call for its rejection.

1. There was not really any important conflict in the assessment of the relevant

   population catchment made by the experts. However, Mr Norling maintained that it was axiomatic that a population base of at least 7,000 persons was required to

   support a tavern. My attention was drawn to a decision of His Honour Judge

   Brabazon in Arksmead v Council of the City of the Gold Coast (1999) QPELR 322

   at 330 where he appeared to accept evidence that:

   “As a matter of experience in the liquor industry a catchment of 7,000 people is usually sufficient to support a general licence which operates from premises of a moderate size.”

2. In that respect what should be borne in mind is that His Honour was merely making

   a finding on the evidence before him in that appeal and that there are difficulties in

   attempting to translate that finding into this appeal where differing evidence may

   have been given. Both Messrs Craven and McCracken had reservations about the

   notion and Mr McCracken described it as an “oft repeated myth that has no basis”.

   It should also be said that such an approach really looks at the matter from the point

   of view of economic viability which is not necessarily determinative of need.

3. Both Mr Craven and Mr McCracken (in forming the view that the community’s

   interests would be served by the proposal) took comfort from a survey carried out

   by Dr Brannock which indicated a high level of local support for a tavern at Glass

   House Mountains. Attempts were made to cast some doubt on the value of the

   survey carried out by Dr Brannock by suggesting that the participants in it were

   insufficiently advised of the true nature of the proposal. It has to be accepted

   however that Dr Brannock explained in her report that:

   “It is important to note that in nearly every case, respondents knew about the proposal, and thus there was no need for a lengthy preamble describing the tavern’s features or location”.

4. It was also pointed out that very few of those surveyed said specifically that benefit

   would derive from the provision of another liquor outlet. This, I believe, was drawing a fairly long bow in that any sensible person expressing support for a

   tavern would, in my view, take it as a given that it involved the provision of

   liquorliquor. The same could be said, in my opinion, of suggestions that the

   features of this proposal which appeared to attract support could be provided by

   way of other types of licences. The legislative regime that exists in Queensland in

   respect of liquor sale distinguishes between the various forms of licences. The

   difference between a general licence which is comparatively unrestricted and other

   forms of licences which carry restrictions hardly requires no discussion in this

   appeal. Nor do the advantages of having a general licence in one’s own town as

   opposed to having to drive at least six kilometres to find one (bearing in mind the

   inherent incompatibility of drinking and driving).

5. The provision of more gaming machines in Glass House Mountains was sought to

   be introduced as a factor in the appeal. This in my view involved social questions

   wider than those that need to be examined on this occasion. Various statutory

   bodies are entrusted with overseeing these matters and it would not, in my view, be

   desirable for this Court to intrude upon those considerations.

6. On the whole of the evidence I accept the views of both Mr Craven and Mr

   McCracken that a general licence would represent a definite advantage to the area’s

   residents and I would not reject the proposal on the basis of community need.

7. In recognition of the Kentucky Chicken principle it was argued on behalf of the co-

   respondent that the proposal would impact upon the viability of the sports club to an

   extent that would result in unacceptable community disbenefit. The argument was

   framed in this way:

   “There will be a significant social impact on the local community in that services currently provided, extremely well maintained sporting facilities for which no or minimal fee is charged for their use to either the local community or the regional community will be either not provided or not provided to the same standard and a significant fee will have to be charged for their use”.

8. Although the fortunes of the sports club were central to this facet of the case it is

   curious to note that the club itself was not a party to the proceedings. As a

   consequence the club was not subject to the obligation of disclosure and the

   appellant was deprived of any opportunity to conduct a careful and complete

   investigation of this matter. The credibility of the co-respondent’s case in that

   regard was not assisted by this.

9. Indeed such material relevant to the club’s financial position as did emerge

   eventually in Mr Norling’s report and later (in the evidence of its evidence Mr

   Watts) presented a somewhat confusing picture. It would not be unfair to say that

   Mr Norling appears to have been misled in his appreciation of the club’s

   profitability for the year 2000 and accordingly the weight of his overall assumption

   of the club’s situation was weakened as a result.

10. The Court was left with a fairly speculative estimate of losses (in the event of this

    proposal) made by Mr Watts who does not pretend to be an accountant. On the

    other hand what was clear was that the club has a long history of involvement in the

    area and a substantial membership. It has served the community well and has

    traded profitably in recent years due apparently in no small way to the efficient and

    capable management of Mr Watts since he has taken charge. The end result was an

    absence of any really persuasive evidence that the sports club, and in turn the

    community, would suffer to the extent that would call for the refusal of the application. I am not satisfied that the proposition advanced by the co-respondent

    was, on the evidence, sustainable.

11. The argument that the proposal constituted over-development of the site depended

    largely on a need for a relaxation of the number of on-site carparking spaces. The

    co-respondent’s town planning consultant Mr Dillon thought that the drawings

    could be read to indicate a need for 41 spaces. Under the Scheme the required

    number is a function of floor area.

12. The appellant’s consultant thought that 37 or 38 spaces were required on a strict

    interpretation of the relevant provision. It is intended that 27 spaces (including a

    service bay) will be provided. The six kerbside spaces are available at the Reed

    Street frontage and a further nine sealed carparking spaces are to be constructed by

    the appellants on the Bishop Street Road Reserve. The end result will be that 42

    spaces will be available to tavern patrons.

13. There is no issue that the opportunity to relax these requirements of the Scheme

    exists (clause 3.1.(5)). Council also has a local planning policy which indicates that

    relaxations of the number of carparking spaces specified in the Scheme can be

    considered where it can be demonstrated to Council’s satisfaction that:

    “Public parking in the immediate vicinity has sufficient capacity and is accessible and is therefore more likely to be used or more beneficially used than parking on the site would be. In these cases Council will require contributions in lieu of on site parking”.

    A condition of approval here requires a contribution of $15,000 towards Council’s

    management of parking in the town of Glass House Mountains.

14. Evidence given in the appeal indicated that the present demand for public parking

    in the town is not high. Mr Brameld also pointed out that the unusual width of the

    Bishop Street Reserve was particularly opportune in this context. I accept his

    evidence that the carparking arrangements for the proposal are satisfactory.

15. Likely noise impacts were the subject of discussion between acoustic engineers

    engaged by the appellant (Mr Moore) and the Council (Mr Rumble) which resulted

    in this issue’s being satisfactorily resolved. No noise expert was called by the co-

    respondent.

16. There were however concerns expressed about the visual impact of acoustic

    screening which is to be placed along the southern and eastern boundaries of the

    site. Mr Dillon suggested that a better result would be obtained if the screening was

    moved into the site and landscaping carried out on its external side. He also

    expressed reservations about the adequacy of landscaping and pointed out that

    where a business zoning abuts land used for residential purposes, any relaxation of

    Scheme provisions relating to landscaping is not appropriate.

17. A number of points can be made about that approach. The proposal (even under the

    repealed legislation) would not have resulted in the site’s being included in the

    Business Zone. A Special Facility zoning would have been the preferred option and

    one adopted by Council in respect of other licensed premises at other locations. In

    all Business zonings (other than Central Business) the proposal would have been a

    prohibited use. The Central Business Zone would not have been appropriate in

    Glass House Mountains. Pursuant to s.6.1.34 of the Integrated Planning Act there is now no obligation for any amendment of a traditional scheme following approval

    of an application of this kind.

18. However the relevant designation of the Strategic Plan must be given some

    consequence as it impacts upon the area’s likely future use, particularly that of the

    land to the east that fronts Bruce Parade. It is also noted that satisfactory

    arrangements have been made with the property owner immediately to the south.

19. What Mr Dillon suggests as a better outcome, if put into effect, would have the

    result of reducing further the area available for on-site parking. In all of the

    circumstances I am satisfied that the outcome agreed upon by the appellant and the

    respondent is acceptable.

20. On the whole of the evidence I am satisfied that the onus of showing that the

    application is one which should be approved has been discharged. The appeal will

    accordingly be allowed.