United Petroleum Pty Ltd v Gold Coast City Council & Anor

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION: United Petroleum Pty Ltd v Gold Coast City Council & Anor
[2018] QPEC 008
PARTIES: UNITED PETROLEUM PTY LTD
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
and
EDWINA ROBERTS
(Co-respondent by election)
FILE NO/S: 3902/2016
DIVISION: Planning and Environment
PROCEEDING: Appeal
ORIGINATING
Planning and Environment Court at Brisbane
COURT:
DELIVERED ON: 27 February 2018
DELIVERED AT: Brisbane
HEARING DATE: 12 – 16 June, 14 July 2017, further written submissions
received to 8 October 2017, and further appearances 25
January and 5 February 2018.
JUDGE: Rackemann DCJ
ORDER: The appeal is dismissed
CATCHWORDS: PLANNING AND EVIRONMENT – APPEAL AGAINST
REFUSAL OF APPLICATION FOR DEVELOPMENT
PERMIT FOR MATERIAL CHANGE OF USE TO
DEVELOP SERVICE STATION AND A SHOP – whether
decision to approve the development would conflict with the
2003 Planning Scheme – amenity – perceptions and
reasonable expectations – noise, air, amenity and lighting –
privacy – streetscape/character/visual amenity – location –
need -whether there are sufficient grounds – whether there is
conflict with the 2016 Planning Scheme
COUNSEL: M Williamson and M Batty for the applicant
M Johnston for the respondent
P Beehre for the correspondent
SOLICITORS: Thompson Geer for the applicant
HopgoodGanim Lawyers for the respondent
Hickey Lawyers for the co-respondent
CONTENTS

Introduction 4
The land and surrounds 4
The proposal 5
The assessment regime 6
The issues 7
The 2003 Planning Scheme 8
Amenity 13

(i) Perceptions and reasonable expectations 14
(ii) Noise, air quality and lighting 16
(iii) Privacy 17
(iv) Streetscape/character/visual amenity 17

Location 29
Need 30
Grounds 38
2016 Planning Scheme 39
Conclusion
Introduction 44

This is an appeal against the respondent’s refusal of the appellant’s application for a
development permit for a material change of use to facilitate the development of a
service station and a shop on land situated at 34 and 34A Hilda Street and 2407-2411
Gold Coast Highway, Mermaid Beach and more particularly described as Lots 1 and
2 on RP 149826, Lot 84 on RP0600 and Lots 1 and 2 on RP80818 (the land). The
co-respondent by election made a properly made submission objecting to the
proposal.
The development application was made on 18 December 2015. It attracted 270
properly made submissions and one petition with 572 signatures objecting to the
proposal. On 9 September 2016 the Council resolved to refuse the development
application, contrary to the recommendation of its officers.
The land and surrounds
The land is 2,047 square metres in area with a direct frontage to the Gold Coast
Highway of approximately 60.5 metres. The land also has a frontage of
approximately 41 metres to a residential street, Hilda Street, to the north and a
frontage of approximately 27 metres to another residential street, Seaside Avenue, to
the south. The land is currently improved by a modest disused detached dwelling but
is otherwise vacant.
One of the two sites adjoining the land to the east accommodates two storey
townhouses (32 Hilda Street) whilst another accommodates the one storey house (33
Seaside Avenue) owned by the co-respondent by election. Across Hilda Street is a
two storey multi-unit development (2419 Gold Coast Highway). Across Seaside
Avenue is another two storey multi-unit development (34 Seaside Avenue). Across
the Gold Coast Highway to the west is a public park (Annette Kellerman Park).
Further to the north and south of the site there are various retail and commercial uses
on both sides of the highway. There are various resorts and tourist facilities on the western side of the highway. In the context of the highway the site lies between a
neighbourhood centre to the south and a cluster of mixed use development along the
highway to the north. By contrast, both Hilda Street and Seaside Avenue are
residential streets running east-west from the highway to Hedges Avenue, and
providing direct access to the beach. As was said in the joint expert report:[1]
“Hilda Street and Seaside Avenue form part of a well-established
beachside neighbourhood, characterized by west-east running streets
and are a mix of tightly packed low rise housing (detached, attached
and small multi-unit developments) of varying ages, forms, and
appearances. This neighbourhood (and the one to the south,
characterized by north-south running streets) is nowadays a fairly
unique phenomenon in the city, comprising a substantial area of low-
rise housing between the highway and the beach.”
[1] JER, p 215 para [8].
The proposal
The proposal is for a service station, intended to be operated under the ‘United
Petroleum’ banner. United Petroleum is a recognised service station operator. The
plans depict a typical modern service station comprising three fuel pumps (six hoses)
beneath a canopy structure with a maximum height of 6.5 metres. The shop
component of the proposal would be located towards the eastern boundary and is to
face the Gold Coast Highway. It turns its back on the adjoining residential uses to
the east and has a maximum height of 4.6 metres. The proposal has a total site cover
of 35 percent and a gross floor area of 163 metres square comprising a shop of 63
metres square, toilet facilities of 7 metres square and back-of-house of 93 metres
square. Illuminated signage would be displayed on the face of the canopy. A free-
standing pylon sign is proposed in the north-western corner of the land. Fuel pumps
are proposed to be located towards the centre of the land, under the canopy.
Three points of access are proposed. Northern and southern access points are
proposed to the Gold Coast Highway. The northern access is proposed to be left in
only. The southern is left out only. All turns access is proposed to Hilda Street. No
access is to be proposed via Seaside Avenue.
Setbacks measured from the boundaries of the land are:

(a) to the north – 6.7 metres to the building;
(b) to the west 6 metres to the canopy and 29 metres to the building;
(c) to the south – 3 metres to building; and
(d) to the east – 3 metres to the building.

A total of eight onsite car-parking spaces, including one disability space are proposed.
Four bicycle spaces are also proposed.
The proposed hours of operation are 24 hours per day, seven day per week, but with
fuel deliveries limited to between 7.00 am and 6.00 pm.
The assessment regime
The Sustainable Planning Act 2009 (SPA) was in force at the date the development
application was made and at the date the appeal was commenced and so continues to
apply to the appeal notwithstanding that the Planning Act 2016 took effect on 1 July
2017.[2]
[2] See Planning Act 2016 s 311(2). See also Planning and Environment Court Act 2016 s 76.
It has already been noted that the development application was made on 18 December
2015. That was during the currency of the 2003 Gold Coast Planning Scheme. Under
that Planning Scheme the development application was impact assessable.
Accordingly, the application is to be assessed having regard to s 314 of the SPA and
decided in accordance with ss 324 and 326 of SPA.
Section 326 of SPA provides that an assessment manager’s decision must not conflict
with a “relevant instrument” unless there are “sufficient grounds to justify the
decision”. A relevant instrument includes a Planning Scheme. Schedule 3 of SPA
defines “grounds” for that purpose to mean “matters of public interest”.
The appeal proceeds by way of hearing anew.[3] By reason of s 495(2) of SPA the
court must decide the appeal based on the laws and policies applying when the
application was made, but may give way to any new laws and policies the court
considered appropriate. Accordingly, whilst the appeal must be decided based on the 2003 Planning Scheme, the court may give weight to the 2016 Planning Scheme,
which came into effect only shortly after the development application was made. The
appellant bears the onus.
[3] Section 496(1) of SPA.
The issues
The disputed issues in the appeal set out in the respondent’s ‘further amended
consolidated grounds for refusal’[4] and relate to the following matters:
[4] Exhibit 6A.

(a) whether a decision to approve the development would conflict with
the 2003 Planning Scheme;

(b) whether, if so, there are grounds to justify the decision
notwithstanding that conflict, and

(c) the weight that should be given to the 2016 Planning Scheme and, to
the extent relevant, any conflict with that scheme.

In relation to the 2003 Planning Scheme, the Council and the co-respondent by
election (Roberts) alleged conflict with the following provisions:

(a) Residential Choice Domain: Intent;
(b) Residential Choice Domain Place Code performance criteria PC3,
PC9 and PC13;

(c) Service Station Code: purpose, PC1, PC5, PC10, PC12, PC13 and
PC15;

(d) Retail and Related Establishments Code: purpose, PC3 and PC8.

Conflict was also alleged with the 2016 Planning Scheme:

(a) Strategic Framework ss 3.4.5.1(14), 3.5.4.1(4), 3.8.1(11), 3.8.3.1(1)
and 3.8.6.1(1);

(b) Medium Density Residential Zone Code: overall outcome 2(a)(iv) and
(v), (vii), 2(b)(vii) and PO1;

(c) Commercial Design Code: s 9.3.4.2(1), overall outcome 9.3.4.2(a)(ii)
and (v) and;

(d) Service Station Code: s 9.3.17.2(1), s 9.3.17.2(2)(a) and (c), PO1, PO4
and PO9.

It was also alleged that the development would be contrary to reasonable
expectations.

Traffic and transport issues were notified but fell away. In the second joint expert
report of the traffic engineers it was agreed that certain revised access arrangements
were acceptable for the subject site, although there was some disagreement about
whether there was the potential to introduce an unsafe weave movement off-site
whereby vehicles using the southern exit to the highway might weave across multiple
lanes of the highway in order to turn right at the Markeri Street intersection to the
south. That issue was resolved by the contents of an amended concurrence agency
response requiring some line-marking on the Gold Coast Highway to prevent, or at
the very least, discourage that movement (and the appellant’s willingness to accept
the conditions set out therein). Mr Williams, the traffic engineer retained by the
Council, expressed (in the third joint expert report) his satisfaction that the
implementation of the line-marking arrangement, as referred to in the amended
concurrence agency response, is an acceptable treatment.
The alleged areas of conflict may broadly be described as relating to issues of
amenity, location and of need.
The 2003 Planning Scheme
For the purposes of the 2003 Planning Scheme the proposal is described as a service
station and a shop. A service station is defined, in part, as follows:
“Any premises used or intended to be used, for the fuelling of motor
vehicles, involving the sale by retail of petrol or automotive distillate
or any derivative capable of use in internal combustion engines,
whether or not the premises are used for one or more of the following
purposes:
The sale by retail of:
…
 Maps, tobacco, confectionary, patent medicines,
soft drinks, milk products, bread, newspapers and
periodicals where any such sale is to a person
travelling by motor vehicle…
The term does not include…a shop.”
The land was included in the Residential Choice Domain under the 2003 Planning
Scheme, the statement of intent for which was as follows:
“This domain seeks to support the provision of a range of
housing choice that is responsive to the changing
demographic structure of the city, whilst maintaining an
efficient land use pattern. The purpose of this domain is
to support the development of a residential pattern
comprising mixed dwelling types, including detached
dwellings, attached dwellings and apartment buildings that
relate well to each other. This domain seeks to:
 support residential densities that are moderately
higher than traditional detached dwelling areas;
 facilitate a wide range of home/office, home
occupation and residential support services to be
located within the domain, commensurate with
local residents’ needs; and
 achieve a high standard of residential amenity
across the range of dwelling types in the domain.”
It was contended, in the respondent’s ‘further amended consolidated grounds for
refusal’ that the proposal would conflict with that intent because it:

(a) does not support the development of a residential pattern comprising
mixed dwelling types; and

(b) by nature of its operation, would not achieve a high standard
residential amenity in the domain.

The proposal’s likely impact on amenity is considered later. Insofar as the proposal’s
alleged failure to support development of a residential pattern comprising mixed
dwelling types is concerned, it is obviously for a non-residential use, but the planning
scheme provisions did not require all land within the domain to be developed for
residential purposes. The statement of intent itself refers to facilitating a wide variety
of support services commensurate with local residents’ needs. As is observed later, a
service station is one of the types of use envisaged within the domain. The fact that the proposal is for a service station, rather than for a residential use does not, of itself,
establish conflict with the statement of intent.
It was pointed out that this particular service station relies on a wide catchment. That
is disused later in the context of need, but the particulars of the conflict alleged with
the intent of the Residential Choice domain, in the respondents further amended
consolidated grounds, did not allege that the proposal would not provide residential
support services commensurate with local residents’ needs.
The provisions of the Residential Choice domain contained a table of development.
That table contained a number of different sections, one of which is Section A. A
service station was identified within the ‘impact assessable’ column of Section A.
Section 4.6.1 of Chapter 2, Division 1, Part 5 of the Planning Scheme provided as
follows:
“All uses included in Section A of the table of development may be
considered as appropriate for the domain to which the table of
development applies, subject to each use meeting the relevant
assessment criteria.
Any use not listed in Section A of the table development should be
considered as undesirable or inappropriate in the domain to which the
table of development applies.
Any material change of use not individually listed in Section A of the
relevant table of development will be treated as impact assessable,
except where this would conflict with the provisions of Schedule 8 of
the IPA.”
Accordingly, a service station was not, of its nature, considered by the planning
scheme to be undesirable or inappropriate in the domain. It was a use which may be
considered appropriate in the domain, subject to it meeting the relevant assessment
criteria.
The same cannot be said of the shop component, since that did not appear in Section
A of the table of development. The appellant accepts conflict in that regard but submits that the gravity of the conflict is easily overcome by the merits of the proposal
otherwise in circumstances where:

(a) a service station, as defined, admitted of the prospect of a retail
component;

(b) the table of development in Section A, included a ‘convenience shop’
as code assessable in the domain;

(c) the difference between a shop and a convenience shop as defined was,
in part, the size of the shop – a convenience shop was a shop with a
gross floor area not exceeding 150 square metres and sells food for
human consumption. It may also sell convenience goods;

(d) the shop component of the proposal has a gross floor area of 163
square metres, only some 13 square metres greater than that envisaged
for a convenience shop; and

(e) the Council did not alleged that a decision to approve the application
would conflict with PC7 or PC8 of the Service Station Code in the
2003 Planning Scheme which required the sale of fuel to be the
primary function of the use with a retail component remaining in
ancillary part of the use.

The town planners did not see a difficulty with the shop component, if the service
station was considered to be acceptable. Mr Brown, the town planner engaged by the
Council, conceded that:

(a) if a service station use is considered acceptable by the court, the
proposed convenience shop does not pose a problem from a planning
perspective;[5]
[5] T4-59.

(b) he has no serious concerns about the shop being independent of the
service station;[6]

(c) if the service station is considered to be acceptable from a planning
perspective by the court, there is no difficulty with the convenience
shop being approved.[7]
[6] T4-59.
[7] T4-60.

Unsurprisingly, the evidence of the economists was that a modern service station
includes a convenience store component, as a matter of course, and there is an obvious
synergy between a convenience store and a petrol station.[8]
[8] T2-81, 82.
The Residential Choice domain had a Place Code. It contained 14 performance
criteria and corresponding acceptable solutions. As was pointed out for the appellant,
there was no alleged conflict with the provisions in relation to building height,
building setback, vehicular crossings, siting, advertising devices and landscaping.
The respondent’s further amended consolidated grounds for refusal alleged conflict
with PC3, which provides that the site coverage of all buildings must not result in a
built form that is bulky and visually intrusive. The allegation was that the proposal
is visually intrusive, however the proposal meets acceptable solution AS3.1.2 by
having a site cover which does not exceed 40 percent. That leaves PC9 which relates
to building appearance and PC13 which relates to amenity protection. Those matters
are considered later.
The 2003 Planning Scheme also included specific development codes, one of which
was for service stations. The purpose of that code was as follows:
“This code seeks to facilitate the provision of service stations at
suitable locations throughout the city. The code is also intended to
ensure that service stations are established to meet the needs of local
residents, visitors and travellers, through convenient points of service.
It also seek to ensure that the location of service stations is limited to
sites of a sufficient area to accommodate the development, vehicle
access, car parking and any necessary buffers. The code encourages
modern, attractive appearance and design, whilst contributing to the
local character and protecting the amenity of surrounding areas.”
The development requirements part of the code contained 15 PC’s and associated
AS’s. Again, the appellant drew attention to the fact that there are many with which
no conflict was alleged, including in relation to siting, access, site area and vehicle
movement on site. There are others, however, which were controversial. They are
building setback (PC1), location (PC5), building appearance (PC10), need (PC12), traffic impacts (PC13) and lighting (PC15). It has already been noted that the traffic
issues fell away. Other issues are considered below.
The Retail and Related Establishments Code was also raised in the respondent’s
amended consolidated grounds for refusal. It relates to the shop element of the
proposal. It was not the focus of the argument in the appeal. The matters raised in
relation to that code are related to matters of amenity and character which are
otherwise considered later.
Amenity

The acceptability of the proposed service station is assessed by reference to the
relevant assessment criteria which require, amongst other things, a consideration of
impacts upon amenity. In particular, PC13 of the Residential Choice Domain Code
(the Domain Code) required that the proposed use must not detract from the amenity
of the local area having regard, but not limited, to the impact of noise, hours of
operation, traffic, lighting, signage, visual amenity, privacy, odour and emissions.
It was pointed out, on behalf of the respondent, that the requirement that the proposed
use must “not detract” is not qualified by a word such as “unreasonably” and it was
submitted that no such qualification ought to be implied. The ordinary principles of
statutory construction, as applied to planning schemes, does however, permit a
practical approach. As Skoien SJDC observed in Body Corporate for Kelly's Beach
Resort v Burnett Shire Council & Ors[9]:
[9] [2003] QPEC 023, [2003] QPELR 614 at [60].
“It is trite to recall that probably all uses of land have some adverse effects on
the occupants of a neighbouring residence. Even the most desirable neighbour
must occasionally create noise or other activity which to some extent, even
minor, is an annoyance to others. … The perfect neighbour does not exist
except for the most tolerant person.”
His Honour, in dealing with a provision of a planning scheme which required
demonstration that a proposed development would not adversely impact on residents
or residential amenity adopted a test of whether amenity would be unreasonably degraded. Counsel for the respondent was content to put trivial impacts to one side.[10]
I would not regard an impact which is trivial, immaterial, minor or insignificant as
adverse for the purposes of PC13.
[10] T6 -20, 21.
(i) Perceptions and reasonable expectations
It was pointed out, on behalf of the respondent, that the concept of amenity is broad
and includes not just tangible amenity impacts but also matters of perceptions and
sense of place.[11] It was submitted that to introduce a service station on the subject site
[11] Broad v Brisbane City Council & Anor (1986) 2 Qd R 317.
would detract from the perception of the residents of the residential area to the east
of the highway of their area and its sense of place, even if the proposal were found to
have no unacceptable tangible amenity impacts otherwise and even if the Service
station was removed from the residences of those concerned, rather than adjacent to,
or even within direct view of the residences of those who expressed such concerns.[12]
Reference was made to the lay witness statements which spoke of concerns of the
service station detracting from the residential character and feel of the area and a
concern that the area would not feel the same again once a service station had been
developed and that such development would not fit with the area and was not
expected. Reliance was placed upon Thomas Holdings Pty Ltd v Gold Coast City
Council [1991] QPLR 32, Vanglow Pty Ltd v Council of the Shire of Albert [1991]
QPLR 68, Prime Group Properties Ltd v Caloundra City Council & Darracott & Ors
[1995] QPLR 147 and MPR Contractors Pty Ltd v Redland Shire Council [2002]
QPELR 256.
[12] For example the Frawleys.
Whether such subjective perceptions are a matter of legitimate concern from a town
planning perspective is influenced by their reasonableness given the provisions of the
Planning Scheme. As Skoien SJDC said in Prime Group Properties Ltd v Caloundra
City Council (supra) at 150 (underlining added):
“The resident/objectors gave evidence of their actual perception and
the fears they held of the effect of the development. Their fears were,
I thought, sometimes over-stated, even unlikely. However I accept that
the actual perception which the residents claimed to have is genuinely held. That perception is one of residential amenity. Provided that
perception can be seen to be reasonably held in an objective sense, it
should be given considerable weight.
Whether their perception is reasonably held depends very largely on
the planning scheme in force at the relevant time. A resident in a
locality ought to expect that a particular piece of land will be
developed to one of the ‘as of right’ uses set down by the planning
scheme. For the site, zoned Residential 'E', those uses are all
predominantly residential although it must be conceded that one of
them, motel, has a minor commercial component. Then they ought to
expect that the land may be developed in one of the ways which the
Council might permit (subject to objections). The scheme defines that
as ‘any purposes other than those permitted by column III (i. e. as of
right) or prohibited by column V.’ That column V prohibits both
service station and shop as well as a large number of other commercial
uses.
So it has been reasonable for the surrounding residents to hold the
perception of the general area, including the site, as excluding
commercial uses generally and this proposed use specifically. Thus
the subjectively held and objectively held perceptions are the same.”
The cases relied upon by the respondent and referred to above were cases in which
service stations were prohibited uses in the zone. The situation with the Residential
Choice domain is different. Whilst it was pointed out, on behalf of the respondent,
that the 2003 Planning Scheme gave no express encouragement for service stations
in the Residential Choice Domain or in the Urban Residential Land Use Theme, in
the way it did for service stations in various centres, and whilst reference was made
to the evidence of some residents as to their actual expectations concerning
development, the fact remains that service stations were nevertheless one of the uses
which may be considered appropriate in the Residential Choice domain, under the
2003 Planning Scheme subject to meeting the relevant assessment criteria.
Reasonable expectations under that Planning Scheme must therefore have included
the possibility of land within the domain being developed for a service station subject
to meeting the assessment criteria. The residents’ subjective perceptions that the
sense of place would be diminished by the mere presence within their area of a service
station, should not be regarded as reasonably held, under the 2003 Planning Scheme,
far less determinative, if the assessment criteria are otherwise met.

(ii) Noise, air quality and lighting

Potential impacts in relation to noise, lighting and air quality were examined by
Ms Richardson (retained by the appellant) and Mr King (retained by the respondent).
The experts agreed that the proposed development would meet the appropriate health
and amenity limits subject to appropriate conditions of development incorporating
measures which they recommended (and to which the appellant agreed). In a further
joint report the experts agreed that lighting from the proposed development would not
result in lighting nuisance impacts, subject to a detailed lighting design being
undertaken to provide fixed lighting design which prevents adverse lighting amenity
impact upon neighbouring residents. The experts agreed on the terms of particular
conditions to achieve that result.
The appellant was criticised for not producing a detailed lighting plan, but as Mr King
confirmed,[13] the experts did not believe that one was required at this point in time.
There is, on the evidence, no reason to doubt that an appropriate plan, to achieve the
appropriate standard, can be achieved. It should be noted however, for the purposes
of assessing visual amenity, that compliance with the standard for lighting, does not
mean that there is no visible light.[14] There will, for example, be a well-lit area under
the canopy and illuminated signage.
[13] T4-100.
[14] T4-90 – T4-101.
In their first joint report, the experts also noted the potential for cars exiting the Hilda
Street access at night to cause a headlight sweep across the apartments to the north of
the subject site. They noted that the unit manager’s residence provided some
shielding, but recommended that the landscaped areas on the northern boundary be
planted to 1.5 metre in height to further minimise the risk of impact.
Subject to the measures recommended by the experts, I am satisfied that the proposal
would not detract from the amenity of the local area by reason of noise, air quality or
lighting nuisance.

(iii) Privacy

A privacy concern was raised in relation to the apartments to the north. It was
suggested that if an occupant of one of those units decided to leave their door (or
window) open, a customer of the service station site would be able to see into their
unit from across Hilda Street. The units in that building face the subject site, so it is
unsurprising that, should an occupant choose to open their door, there will be a line
of sight to development on the subject site and vice-versa.
Of course, even without the subject development, an occupant who chooses to open
their door will not enjoy privacy, but rather will be exposing their unit to view more
generally, including the view of passers-by. The development of a service station on
the subject site would have an incremental effect, but not one which, in my view,
would be significant.
(iv) Streetscape/character/visual amenity
Matters of streetscape, character and visual amenity were addressed by Mr Curtis
(retained by the appellant) and Mr McGowan (retained by the respondent). Of
relevance are PC9 and PC13 of the Domain Code and PC1 and PC 10 of the Service
Station Codes which are as follows:
Domain Code

PC9 AS91.
All buildings must be designed and The massing and proportions of new
constructed to a high aesthetic standard, buildings are consistent with those of
and complement or enhance the adjoining or neighbouring buildings.
character of the local area.
AS9.2
Building materials, patterns, textures
and colours used in new buildings are
complementary to those of nearby
buildings.

PC13 AS13
The proposed use must not detract from No acceptable solution provided.
the amenity of the local area, having
regard, but not limited to, the impact of:
……..
(f)Visual amenity.

Service Station Code

PC1 AS1.1
All buildings, structures and car parking The fuel pumps and canopies are set
must provide for setbacks from the back a minimum of 7.5 metres from the
street frontage and the side and rear road frontage/s.
boundaries which are appropriate to the
AS1.2.1
efficient use of the site and the
streetscape character of the local area. All buildings and other structures are set
back:

(a) a minimum of ten metres from
the frontage/s;

(b..) a minimum of two metres from
the side and rear boundaries.
OR
AS1.2.2
The site abuts an existing or future
residential area, and all buildings, fuel
pumps and structures are set back a minimum of ten metres from the side
and rear boundaries.

PC10 AS10
The design of all buildings and No acceptable solution provided.
structures must be in keeping with the
appearance of the local area and utilise
a design theme that expresses a modern
and functional appearance.

The first part of PC9 of the Domain Code is concerned with the aesthetic standard of
the proposal. The last part of PC 10 of the Service Station Code seeks a design theme
which “expresses a modern and functional appearance”. There was no real criticism
of the design of the proposal as a modern and functional service station. The focus
of the debate was as to whether it would complement or enhance the character of the
local area (PC9 of the Domain Code) and be in keeping with the appearance of the
local area (PC10 of the Service Station Code) and utilise a setback which is
appropriate to the streetscape character of the local area (PC1 of the Service Station
Code) and not detract from the visual amenity of the local area (PC13 of the Domain
Code). That requires an assessment of the proposal in the context of the local area.
It has already been observed that the town planning provisions admitted of the
prospect of service station development in the Residential Choice Domain. That does
not mean that each and every parcel of land within the domain is suitable for such
development. Underlying much of the opposition to the proposal to locate a service
station on the subject land was the notion that it is an inappropriate site because it is
embedded in a residential area with which the proposal would be out of character.
It is true that the subject land does not abut non-residential uses and that Mermaid
Beach has a strong residential component. Indeed, as is noted later, the 2016 Planning
Scheme recognises that Mermaid Beach is a locality with a particular character and
amenity which favours a strong permanent residential population and where
residential amenity is prioritised under the new Planning Scheme. An examination of
the local area however, reveals that it does not have a homogenous character. In particular, the Gold Coast Highway Corridor exhibits a different character to other
parts of the local area.
The experts were in agreement that the locality may be considered to be composed of
four ‘character units’ which were identified by Mr McGowan as the beachside
interface, the beach neighbourhood, the highway corridor and the canal estate beach
interface respectively. The subject site falls within the highway corridor character
unit whilst those parts of Hilda Street and Seaside Avenue to the east of the subject
site fall within the beach neighbourhood and beach interface.[15] Mr Curtis emphasised
what he saw as the appropriateness of the proposal in the context of the highway
corridor, whereas Mr McGowan saw the proposal as inappropriate in its relationship
either with that character or the beach neighbourhood character to the east.
[15] The beach interface is to the east of Hedges Avenue.
As Mr Curtis observed, the site has its principal frontage to the Gold Coast Highway
and, given that it is one of the city’s busiest roads, it is reasonable to assume that the
greater majority of people will view the proposal from the highway. His evidence
was that:
(i)         the relevant section of the highway in which the subject site
falls is characterised by 1 and 2 storey commercial
development, 1 to 3 storey residential development and
pockets of open space;
(ii)        the mix of development, together with its age and visual
quality results in a discordant streetscape with little visual
cohesion or coherent identity;
(iii)       the mix of development types, land uses and setbacks create a
discordant streetscape character that lacks overall amenity and
identity;
(iv)       the width of the highway relative to the low height and scale
of development along its frontages and its discordant
appearance results in the carriageway being the most defining
element of the streetscape; and
(v)        the highway has an overwhelming influence on the visual
character of the streetscape.
Mr McGowan agreed that the highway character unit is diverse, with little coherence,
there being little consistency in built form, appearance or setback. He considered
however that the proposal has little similarity or compatibility with the majority of
uses and built forms even along the highway and that rather than being seen to
complement existing commercial developments, it would only add to or exacerbate
the poor coherence along the highway. Mr McGowan was also concerned that the
development of the subject site would prejudice what he saw as a planned break
between commercial areas to the north and to the south of the site, evidenced by the
zoning of the land. That however, fails to give appropriate weight to the potential for
non-residential development to occur in the Residential Choice Domain.
In forming his opinion that the proposal would be complementary to, or enhance the
character of, the local area, at least from the perspective of the highway, Mr Curtis
considered that:
(i)         the width and visual modulation of the frontage to the highway
is comparable with the streetscape along the highway;
(ii)        The visibility and operation of the proposal would contribute
to the activation of the streetscape, creating a more cohesive
and coherent edge to the eastern side of the highway in a way
which is compatible with its image and identity as a
commercial strip;
(iii)       The horizontal form and height of the canopy and service
building are consistent with those of existing development in
the locality along the highway frontage; and
(iv)       The relatively open character of the development will
complement the open character of the park in the western side
of the highway.
As Mr McGowan pointed out, the observation in (i) above relates more to lot width
than the form of the development. Mr McGowan pointed out that the ‘activation’ is
more in the form of signage, lighting and traffic activity than visually interesting
building facades that would define or engage the street, although I accept that the
development is not incompatible with the ‘image and identity’ of the highway such
as it is. I accept Mr McGowan’s opinion that everyday observers will not see the
character of the service station as particularly complementary to the character of the park on the opposite side of the road. I accept that a service station is a distinct form
of development for the area, but it is difficult to conclude that the proposed service
station would appear to be incompatible or would appear out of place in the context
of the highway given the mixed character of the Highway Corridor Character Unit. It
stretches credulity to think that a reasonable passer-by along the highway at Mermaid
Beach would, upon seeing a service station at this location, recoil at the thought that
they were being confronted by development which was out of place. Further it can,
in my view, be fairly said to be complementary, at least in terms of its horizontal form
and height.
Even if there were thought to be some level of conflict by reason of the use being
different in appearance or not positively complementary of what exists along the
highway, the gravity of the conflict would be low since there would, I am satisfied,
be no significant adverse effect on the character or appearance of the highway given
its existing low visual quality and discordant streetscape, with little to no cohesion.
The proposal would, I am satisfied, primarily relate to the highway. Mr McGowan,
however, was also concerned about the impacts of the proposal on the beach
residential neighbourhood. As he reasonably observed, whilst there may be some
expectation that there is a diminishing amenity in the beach neighbourhood the nearer
a property is to the highway, it is reasonable to expect that the positive amenity (and
key characteristics) of the beach neighbourhood be substantially maintained, and the
proximity to the highway should not provide an excuse to disregard residential
amenity entirely. Mr McGowan was of the view that the proposal would sharply
contrast with and erode the characteristics of the adjoining Beach Neighbourhood
Character Unit, particularly at the western end of Hilda Street and Seaside Avenue
and would detrimentally affect their streetscapes. He also considered that the
proposal would have an adverse visual amenity impact on its neighbours.
There is no doubt, as Mr Curtis acknowledged, that Hilda Street and Seaside Avenue
have a more spatially defined streetscape character. Mr Curtis saw the proposal as
responding to that character by attempting to achieve a “transition” from the Gold
Coast Highway character to the local street character, something he acknowledged is
not an easy task.[16]
[16] T2-114.

Mr Curtis saw an appropriate “transition” being achieved by 2 metre high acoustic
barriers along parts of each of the frontages of Hilda Street and Seaside Avenue
frontages of the site together with landscaping, which he saw as an attempt to reflect,
as best as the proposal could, something of the streetscapes of both Hilda Street and
Seaside Avenue, which include properties with high walls and garages built along the
street frontages. Mr McGowan saw the proposal as presenting an unattractive and
undesirable streetscape to all frontages.
It may be noted that AS 1.2.2 to PC1 of the Service Station Code provides, in the case
of a site which abuts an existing or future residential area, for a minimum side and
rear setback of 10 metres for all buildings, fuel pumps and structures, in order to
achieve setbacks which are appropriate to the efficient use of the site and the
streetscape character of the local area. The proposal meets the acceptable solutions
for boundary setbacks in the domain place code, which takes precedence over specific
development codes,[17] but compliance with all codes is required to the extent relevant
to the development application and it was not submitted, for the appellant, that PC1
of the service station code is inapplicable. Further, PC1 of the service station code
extends to structures, which are not the subject of PC4 of the domain code. The
separation to the edge of the canopy structure, being a visually dominant element of
the proposal,[18] is only 3 metres in the case of its closest part to the boundary of the
property of the co-respondent by election.
[17] Pt 7, Div 1, Ch 1, Cl 4.
[18] See JER paragraph 50.
The performance criterion requires, relevantly, a setback which is appropriate to the
streetscape characteristics of the local area. Mr Curtis’ evidence was that, whilst
Hilda Street and Seaside Avenue have a more consistent residential character, the
proposal represents a ‘transitional response’ with setbacks which are compatible and
appropriate. His trial report drew attention to the fact that the interface between
commercial and residential development elsewhere in the area is commonly of an on-
grade carpark and/or service lane utilized by the commercial property. It must be
acknowledged however, that none of those deal with the setback of a service station
to a residential area. Mr McGowan saw the proposal as being in conflict with PC1.
Notwithstanding the landscaping and fencing proposed, the service station would
remain quite evident from the street, in Hilda Street and Seaside Avenue. In particular the canopy, being a dominant visual feature, would appear above the fencing and
landscaping. As the photomontages’ evidence, whilst that element is set back more
generously from the adjoining townhouses as viewed from Hilda Street, it comes to
within close proximity of the property of the co-respondent by election, as viewed
from Seaside Avenue.
Mr McGowan took a strong stand against any notion of a service station on the subject
site. He saw the fact that the subject development would be identifiable as a service
station as a negative, even if it were thought to be the best designed service station on
the planet.[19] He appeared to be influenced by a misreading of the planning scheme
provisions. It is difficult to see how any amount of set-back would overcome his
objections, which were rooted in a fundamental objection to the sight of a service
station in this context. I do not accept that strict approach, but that is not to say that
I accept Mr Curtis’ view either.
[19] T 3-27, T 3-32.
Insofar as appearance, character and streetscape issues are concerned, the relevant
provisions direct attention to the local area. An assessment of the local area reveals
that it is characterised by different character units. The subject site is within the
Highway Corridor Character Unit and is adjacent to the Beach Neighbourhood
Character Unit. The proposed development whilst for a different and distinct use than
currently exists in the area, would sit comfortably with what exists within the
Highway Corridor Character Unit, but not so with what is within the Beach
Neighbourhood Character Unit to the east. The proposal would, by reason of its
location and orientation, have its primary relationship with the Highway Character
Unit and would have little effect on the Beach Neighbourhood Character Unit, other
than at its western extremity. It has attempted to address its relationship with the
western extremity of the Beach Neighbourhood character unity by streetscape fencing
and landscaping, but the lack of a more substantial setback, particularly for the canopy
structure from the co-respondent by election’s property results in quite an abrupt
change and leaves me short of being satisfied that the proposal meets PC 1 of the
Service Station code.
The planning scheme also requires an assessment of impacts on the visual amenity of
the local area. Those most likely to be affected are the immediate neighbours at the western extremity of Hilda Street and Seaside Avenue. As has already been noted,
the amenity of the occupants of those properties, including their visual amenity, is
affected by their proximity to the highway. As a consequence, they are exposed to
views of the highway, its street lighting and the development which fronts the
highway. Those are matters of relevance to a consideration of the impact of the
proposal, but do not warrant disregarding their residual residential amenity.
The proposal has a number of immediate neighbours which are 2 storey residential
developments with potential to overlook the subject land. Those neighbours include
the units to the north of the subject land. The units are half owned by Mr Barton and
his partner with the other half held by Mr Craighead. The owners live at the units,
with the remaining units being tenanted. Mr Barton and Mr Craighead gave evidence
of their opposition to the proposal. That included their view that the proposal would
detract from the attractiveness of the units to tenants. Mr Barton specifically raised a
concern about impacts of having to look directly at the service station.
That development has a range of units in different situations. Some of the units are at
the western end of the building on the ground level. Those units are setback from the
boundary behind a boundary fence of approximately 2 metres in height and open
space. It is difficult to see how the occupants of those units could be materially
adversely affected by the proposal. The units above those have an outlook, but are
located towards the corner of the Gold Coast Highway at the western end of the
building. As Mr Curtis pointed out the outlook afforded to those units would be
largely dominated by the view of the highway and is unlikely to be a major factor that
influences their occupancy. I do not regard the proposal as materially adversely
affecting their visual amenity.
There are units on the ground floor of the eastern part of the development. The
immediate existing view from those units is of the carpark and parking in the carpark
to the unit development itself. Were the development to proceed, any partial view to
the development would be across the unit carpark and Hilda Street and towards the
landscaping and fencing of the proposal and those parts of the service station visible
above or to the side thereof. The occupants would be conscious of the fact of the
service station development but I do not regard the impact on their visual amenity as
significant.
There are units on the upper floor on the eastern part of the building from which
occupants would look out onto the service station. As the photomontage evidence,
the fencing and landscaping would provide relatively little visual screening for them.
Mr Curtis pointed out that the existing outlook for them is over the car parking, as
well as the carriageway of Hilda Street, and from there across the subject site to the
Gold Coast Highway. The balcony to those units is narrow and apparently more for
access than recreation. In the joint report he assessed the views from the development
as affording limited amenity which would “not be compromised by the appearance of
the proposal in the background.” In his trial report, in relation to the view from the
upper level of the eastern part of the development, he drew attention to the site
landscaping in the foreground and the Norfolk Island palms further in the background
as being prominent in comparison with the built structure of the proposal which he
considered “appears relativity minimal” and the hardstand as being “not particularly
dominant”, partially screened and viewed in the context of the carpark in front of the
units and the Hilda street carriage way and the highway.
The view of the proposal for those on the upper floor units in the eastern part of the
development is not remote. Further, I do not regard the existing visual amenity
enjoyed by the occupants of the units as diminished to a point that warrants ignoring
a significant further diminution in their residential amenity from a visual perspective.
As Mr McGowan pointed out, there would be a number of residents of the units whose
outlook would be onto the service station including its forecourt area, its vehicular
and commercial activity, truck refuelling, acoustic barriers and canopy. As already
noted, the elevation of the viewer renders the landscaping relatively ineffective as a
screen. The views would take in not just the development, but the vehicle and
commercial activity on the site and the illumination associated with the 24 hour
operation. That would lead to an impact of some significance.
There is a 2 storey residential development on the southern side of Seaside Avenue
(34 Seaside avenue), but in respect of which no photo montage view analysis was
undertaken, but on Mr McGowan’s evidence also has units which look directly at the
subject site, and more particularly, have second level units in respect of which
landscaping will provide little screening. The occupants of those units would also be
subject to a visual amenity impact of some significance.
There is a 2 storey villa development adjoining the land to the east. The front unit of
that development addresses the street whilst the rear unit faces the rear of the front
unit. Both units have western walls towards the subject land. The wall of the rear
upper unit has no windows. The wall of the front upper unit has some smaller
windows, which would likely be to bathrooms and two larger windows, which would
likely be to bedrooms, at least one of which appears to have translucent glazing. The
units appear to be not reliant on views to the west. There is currently a fence on the
common boundary at the lower level, which would be replaced by a 2.4 metre
acoustic barrier. There was no photomontage analysis of the visuals from that
development, but I do not regard the likely impact upon that premises as undue.
The co-respondent by election owns the premises at 33 Seaside Avenue (the Roberts
property). She has owned the property for over 20 years and it has been in the
ownership of her family for 53 years. She resided in the property for 16 years until
2006 when she married and moved into her husband’s property. In 2008 she moved
her mother into the house and spent much time there caring for her, until her mother
moved into a hospital in 2014 and eventually into a nursing home. In October 2014
she decided to renovate the home with a view to her family living in it, however she
has leased the property to tenants pending the outcome of this appeal.
Whilst the house on the Roberts property is orientated towards Seaside Avenue, it has
a pleasant but somewhat narrow backyard with a separate small building. The subject
land shares a common boundary with the Roberts property along both its western and
northern boundaries. At one stage the proposal was for acoustic barriers along the
eastern boundary of up to 3.5 metres. That was reduced to 2.2 metres in height in the
proposal that was recommended for approval by council officers. In order to meet
appropriate amenity protections however, the appellant has now had to increase the
height of the acoustic barrier so that it varies up to 3 metres in height on the western
and northern boundaries of the Roberts’s property. That is a height of barrier which
is greater than is ordinarily expected of a typical suburban fence and, as the
photomontage prepared by Mr Elliott shows, creates, in the context of running along
both boundaries of a somewhat narrow backyard, a negative visual impact and an
uncomfortable sense of enclosure. Both Mr McGowan and Mr Brown saw the height
of the acoustic walls as resulting in adverse visual amenity outcomes. Mr Curtis, on
the other hand, described the barriers as “marginally higher” than typical fences, whilst Mr Perkins considered that any “minor impacts” from the “limited increase”
in height would be compensated by improved acoustic environment and visual
privacy.
The acoustic barrier would have an enclosing and imposing presentation as evidenced
by the photomontage. Mr Curtis acknowledged that, in the photomontage, the fence
“does look fairly bulky”, and agreed that, as it presents in the photomontage, it is
quite an overbearing height for a fence on the boundary of a residential place,[20] but
expressed the opinion that its presentation could be improved by a varied treatment,
such as a varied colouration, so that it merged better with the appellant’s own
landscape planting in the foreground. He conceded however that that would only
assist to an extent and that the occupant would still be well and truly aware that they
have a 3m acoustic fence and that “the top one third of that fence is probably… they
wouldn’t expect to see.”[21]
[20] T2-123.
[21] T2-123.
Mr McGowan’s evidence was that:
“I was there when Mr Elliott took the photo, and it was my view that,
as it is, it’s quite a nice space. It’s quite confined, but it’s a nice area
to relax, have a cup of tea and so on. The acoustic barriers, as I think
is illustrated by this, are really – it’s quite a small yard. They’re really
going to cause an uncomfortable sense of enclosure, which will
seriously detract from that amenity.”
I accept Mr McGowan’s assessment in that regard and I consider that the impact is
significant.
What the photomontage also shows is that, because the canopy is located relatively
close to the boundary of Mrs Roberts’ property, it, in effect, looms above the view of
the acoustic barrier such that the view from the top of the acoustic barrier is to a
substantial part of the underside of the canopy and, from there, to the fascia of the
canopy. As Mr Curtis agreed, the view from that perspective, appeared somewhat
overbearing compared to the current situation. As Mr McGowan accepted, the
canopy is not overbearing in terms of height in accordance with building heights
permitted under the Domain Place Code. That does not mean however, that the unscreened view to the underside of a service station canopy and the fascia at
relatively close quarters from one’s backyard looming over a 3 metre acoustic barrier
has no visual impact or no more impact on the enjoyment of ones residential amenity
from a visual perspective than the view of the side of a hypothetical residential
building of a similar height (or even greater) on the other side of a domestic fence.
The canopy is a visually dominant element of the service station and will also be
subject to illumination, albeit that the illumination would not cause a specific light
nuisance.
One only has to view the photomontage (a copy of which is annexed to these reasons)
to appreciate that from the backyard of the Roberts property there will be a significant
impact on the residential amenity of the occupant from a visual amenity perspective.
That reasonable expectations under the 2003 Planning Scheme must include the
prospect of service station development within the residential domain does not render
acceptable the imposition of such a visual impact on the immediate neighbour That
impact is one which, in my view, is of such significance as to warrant refusal of the
proposal.
Location
The location of service stations is dealt with in PC 5 of the Service Station Code
which provides as follows:

PC5 AS5.1
The Service Station must be located so it: The Service Station is located adjacent

(a) Does not contribute to to a highway or motorway interchange

commercial and industrial at a service node.
ribbon development. AS5.2

(b) Does not adversely impact on The Service Station is located within
nature conservation or open or adjacent to local shopping facilities
space areas or established non-residential
(c) Complements local shopping development.
facilities or established non- AS5.3.1
residential development in The Service Station is not located in
urban areas. nature conservation or open space
areas.
OR
AS5.3.2
The Service Station is located in nature
conservation or open space areas and
has one or more of the following
characteristics:
(a) the site is located adjacent to a
highway or motorway;
(b) the site has no environmental or
ecological values;
or
(c) the use is one element of a
development which also provides a
range of amenities such as rest area,
toilets and picnic facilities.

It was submitted for the appellant, that the proposal adopts the acceptable solutions
because it:
(i)         is located on a highway (AS5.1);
(ii)        is adjacent to facilities on the corner of Markeri Street and the
highway (A5S 5.2); and
(iii)       is not located in nature conservative or open space areas (AS5
3.1).
The submission in relation to AS 5.1 incorrectly assumes that the words “at a service
node” only qualify “motorway interchange”. The submission in relation to AS 5.2 is
factually incorrect, as the land is not “adjacent” to those facilities. I accept however,
that the proposal meets the performance criteria in that:

(a) it would not contribute to commercial urban development. It would
become another development with the commercial strip along the
highway, but it would not extend the strip. Rather, it would consolidate
development between existing development which already occurs
both to the north and to the south;[22]
[22] JER paragraph 24. 23 JER paragraph 22.

(b) it would not adversely impact on nature conservation or open space
areas; and

(c) it would complement the range of facilities in this part of Mermaid
Beach.23

As was noted on behalf of the appellant, the council did not allege conflict with PO6
of the service station code of the 2016 planning scheme, which is in somewhat similar
terms.
Need

Performance criterion 12 of the Service Station Code in the 2003 Planning Scheme
provides that a service station must be in a location where there is a demonstrable
need for the service station use. Whether that is so in this case was considered by two
economists, Mr Duane (engaged by the appellant) and Mr Leyshon (engaged by the
respondent). Mr Duane’s view is that there is a clear and strong level of economic
need for the proposed facility whilst Mr Leyshon considered that there is a low level
of need for the service station and no discernible need for the convenience retail
element.
There was some debate as to what constitutes a “demonstrable need” for the purposes
of PC12 and, in particular, whether even a low level of need, as found by Mr Leyshon,
would meet that description. The ordinary meaning of demonstrable is something
which is capable of being shown or logically proved. That says nothing of the strength
of what is shown or proved. A need does not have to be particularly strong to be a
demonstrable need. The provision ought however, consistently with the ordinary
principles of construction, as they are applied to planning schemes, be interpreted as
referring to a real or substantive (rather than trivial, immaterial, minor or
insignificant) need which is capable of being shown or logically proved.[24]
[24] Counsel for the appellant conceded that it could not be referring to a trivial level of need – T6 -52.

Need was assessed by the experts by reference to the trade area for the proposed
development which extends 2 to 5 kilometres around the site, restricted by waterways
throughout the surrounding areas and the pattern of urban development. The 2016 population of the trade area was estimated at 51,410 persons, comprising a primary
sector of 28,970 made up of Mermaid Beach, Mermaid Waters and part of
Broadbeach and a secondary sector of 22,240 made up of Burleigh Heads and
Burleigh Waters. That is predicted to rise to 52,760 by 2019, 53,860 by 2021, 56,860
by 2026 and 60,110 by 2031. The extent of the trade area to the south reflects the
higher degrees of southbound traffic likely to be attracted by the proposed
development.
The extent of the trade area led to a submission, on behalf of the respondent, that the
proposal does not sit well with the intent of the domain which refers to residential
support services “commensurate with local residents’ needs”. It is important, in
considering the intent of the Residential Choice Domain that a service station is
provided for within the domain and presumably falls within the range of residential
support services contemplated within the domain notwithstanding that the planning
scheme also provides, in the Service Station Code, that such development is to service
not only the needs of local residents, but visitors and travellers as well.[25] Further,
insofar as the needs of local residents is concerned, service stations typically do not
have very small catchments. The evidence is that they are typically provided at a rate
of 1 per 4000-5000 persons in metropolitan areas with the current level of provision
on the Gold Coast at 1 per 5,500 residents. Service stations which fulfil the role of
residential support services in accordance with the planning scheme will be those
which serve thousands of residents as well as visitors and travellers.
[25] See the statement of purpose of the Service Station Code.
The particular service station in this case, however, will trade to an extensive trade
areas and population. Indeed the 2019 trade area population of 52,760 falls within the
40,000 to 60,000 which the Planning Scheme cites as the catchment for a sub-regional
Centre. Even the primary sector population is within the range for a District Centre.
That makes is difficult to characterise it as one which is simply providing a residential
support service commensurate with local residents’ needs. To the extent there is a
need however, satisfaction of that need on the subject site would not have any
significant impact on the hierarchy of centres[26] and would be particularly
advantageous for that part of the catchment, in the order of 3,300 local residents in
the middle of the Mermaid Beach, who do not have a service station within a convenient driving distance of their home. The respondents Further Amended
Consolidated Grounds for refusal did not allege conflict with the intent of the domain
in this respect and so it is unnecessary for me to reach a concluded view about conflict,
but I would not refuse the proposal on this basis in any event.
[26] JER paragraph 88.
The trade area is not currently devoid of service stations. There are currently five
service stations within the primary sector and four within the secondary sector. All
bar two operate on a 24 hour basis. It was submitted on behalf of the respondent and
the co-respondent, that the appellant had failed to show that there was any deficiency
in the facilities currently offered or that its proposal was doing more than simply
offering another facility which some might prefer.[27] The appellant submitted that its
proposal would fulfil a need in terms of the number facilities provided within this
catchment and in terms of choice, competition and convenience.
[27] Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
Service stations are currently provided at a rate of approximately one service station
per 5,700 residents within a trade area which is growing in terms of population and
which is also expected to grow in terms of its demand for fuel, in line with population
growth.[28] It was submitted by counsel for the respondent that there are factors, such
as the future of electric vehicles which may impact upon the growth of demand for
fuel, but each of the economists agreed that the impact of such matters was too
uncertain to factor into their predictions.
[28] See JER table 6.
In the absence of any other service stations, the provision in the trade area in 2019
will be one per 5,862 residents, comprised of one per 5,974 in the primary sector and
one per 5,723 in the secondary sector. As Mr Leyshon acknowledged,[29] that would
represent a significant undersupply compared with the rate of one per 4,000 to 5,000
persons which is typical for a metropolitan location. Mr Duane, for the purposes of
his analysis, adopted a ‘benchmark’ of one per 5,000 persons.
[29] T2-73.
Mr Leyshon formed the view that there is only a relatively small undersupply in the
trade area by reference to the rate of one service station per 5,500 persons which in
fact applies across the Gold Coast. Mr Duane saw that rate as indicative of a general
undersupply of service stations across the Gold Coast, particularly when regard was
had to the tourist component on the Gold Coast which, as Mr Leyshon acknowledged,[30] would have been expected if anything, to add to the demand and so
[30] T2-76.
result in a rate of provision which was greater, rather than less, that the national
average. Nevertheless, as Mr Duane acknowledged, the Gold Coast average is based
on a significant population base and as Mr Leyshon pointed out, in the absence of
changes in the market or evidence (such as overpricing) across the Gold Coast market
in general, it is difficult to disregard the current rate of provision across the Gold
Coast as an indicator of what is appropriate within that market. That is not to say that
the national average ought be completely disregarded. Ultimately Mr Duane, whilst
sticking with his figure of one to 5,000, acknowledged that these were not “hard and
fast benchmarks” and did not cavil with the difference between the benchmark he
used and the Gold Coast average.[31]
[31] T2-49.
The proposal would alter the level of provision of service stations within the trade
area so that instead of there being a level of under provision relative both to the typical
ratio for a metropolitan area and the Gold Coast average, there would be a level of
provision which approximated the metropolitan average in about 2019, increasing to
a level approximating the Gold Coast average in 2026. In particular, in terms of the
main trade area, there would be one per 5,276 in 2019, one per 5,386 in 2021 and one
per 5,686 in 2026. In terms of the primary sector there would be one per 4,978 in
2019, one per 5,112 in 2021 and one per 5,487 in 2026. Mr Duane saw that as being
consistent with view that there is a strong need. He pointed out that those numbers
are variations around the benchmarks and that it is in the interests of the consumer
for facilities to be provided slightly ahead of time.
The joint economic report forecast an increase in the fuel market for the catchment
area of 7.8 million litres by 2031. It was pointed out by counsel for the respondent
that whilst Mr Duane says, in the joint report, that a service station typically requires
a volume of 3-3.5 million litres per annum to be successful, only 2.29 million litres
of the growth was predicted by 2021. Mr Duane pointed out, however,[32] that the
proposal would not be reliant simply on growth in the market, but would compete for
a share of the existing market.
[32] T2-55.
The numerical analysis indicates a level of need in that the catchment is, on any view
somewhat underprovided for relative to the benchmarks, but not a strong level,
particularly in light of the fact that the current provision of service stations within the
catchment is not greatly below the average for the Gold Coast area and, upon
provision of this development, will approximate the national average but be
somewhat greater that the current Gold Coast average until 2026. The situation can
be contrasted with Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016]
QPELR 538 where, in a city where service station provision was typically being
provided in line with the metropolitan average, there was no service station within
the relevant trade area to service a population of 6,480 persons, which was growing
at a rate of 11.4%.
The joint report of the economists also makes reference to passing traffic and to tourist
facilities in the locality. The proposal would, of course, attract some trade from those
sources. Mr Leyshon accepted[33] that the site is a good one for a service station in that
it would have access to a high volume of passing trade, but the same could be said of
sites elsewhere on the Gold Coast Highway. As for tourists, the rate of a provision of
service stations across the Gold Coast would implicitly account for a level of tourism.
The only specific reference to tourist facilities in close proximity to the site is at
paragraph 70 of the joint economic report, which refers to a number of resorts within
500m of the site without analysis of the further demand that would produce.
[33] T2-68.
It was submitted, for the respondent, that in addition to falling short of proving a
demonstrable need for a service station, the appellant had fallen short of proving a
demonstrable need for a service station operating 24 hours a day. The economic
experts were clearly conscious of the proposal to operate the development on a 24
hour basis. They dedicated a section of their report to the 24 hour trade issue and
their report included a point of agreement about key trends reflecting the importance
of convenience and petrol stations opening 24 hours. It was not suggested, by Mr
Leyshon that, to the extent there was a need for the proposal, that the need was only
for limited hours of operation.
Mr Leyshon was of the view that, considered in isolation, there is no need for the
convenience retail element of the proposal, given the retail facilities in the area. Modern service stations however include, as a matter of course, a convenience
component,[34] upon which they depend[35] as a source of revenue and which provide
advantage to the consumer in that they allow for a multipurpose trip.[36] Mr Leyshon
accepted that there is a synergy between the petrol and the service components of a
service station,[37] such that if there is judged to be a need for the service station it
would be reasonable to conclude that there is a need for the combined facility.[38]
[34] T2 - 81.
[35] T2 - 82.
[36] T2 – 83, 84.
[37] T2 -83.
[38] T2 -84.
The appellant relied on convenience, choice and competition as supporting the
demonstration of need. Insofar as convenience is concerned, the existing service
stations in the primary trade area are located to the north of Broadbeach and Mermaid
Waters and to the south, at Miami. The service stations in the secondary catchment
area are located further south in Burleigh and Burleigh Waters. As Mr Leyshon
acknowledged in the joint report, those who reside in the middle of Mermaid Beach,
being in the order of 3,300 residents, currently have to travel up to seven minutes to
access a service station from their home. Mr Duane observed that this would mean a
round trip of approximately 14 to 15 minutes, which he considered, and I accept, is
not convenient for a modern consumer. The proposal would provide increased
convenience in this regard.
It was pointed out by Mr Leyshon that 79% of persons in the workforce in this area
work in other parts of the Gold Coast, with the overwhelming majority of those
persons travelling by car, such that they would not be totally reliant on having a
service station in their area of residence. The fact that it would be possible for them
to buy fuel beyond their local area however, does not mean that there is no need, in a
planning sense, for a conveniently located facility within their area as well. Need in
planning terms is a relative concept. It does not connote pressing urgency but rather
relates to the general wellbeing of the community. A use would be needed if, it
would, on balance, improve the services and facilities available in a locality.[39]
[39] See Prime Group Properties Ltd the Caloundra City Council and Durracott at [1995] OPLR 147 at
The subject site would obviously be conveniently located for those accessing it
travelling southbound on the Gold Coast Highway. It would therefore be convenient for residents of the trade area east of the highway. As was pointed out for the
respondent however, it is less conveniently located for the areas west of the highway.
Residents from the west (which is the larger part of the trade area) approaching the
site by travelling northbound on the Gold Coast Highway would only be able to
directly access the site by performing a U-turn on the highway to the north of the
subject site. Mr Duane pointed out that residents of the trade area would travel south
along the Gold Coast Highway for a variety of purposes and would not always be
making a single purpose trip to the service station.
Those who, having attended the service station, wish to make their way to the west
of the highway can most immediately do so by turning right at the Markeri
intersection. To do so from the southern Gold Coast Highway site access however,
would involve unsafe weaving across multiple lanes, which the line marking
arrangement agreed to as a result of the amended concurrence agency response is
designed is to obviate. Mr Duane considered that this would not create a convenience
difficulty because residents to the west of the highway would become familiar with
the circumstances and simply exit via Hilda Street onto the Gold Coast Highway. The
evidence of the lay witnesses is that there are times, during congested periods, when
that turn can also be difficult.
I accept that the proposed location would be less convenient for those west of the
highway than for those to the east, but it would offer a materially increased level of
convenience compared to the current situation.
Insofar as competition is concerned, there are currently a range of operators within
the trade area, being three Coles Express, two 7-Elevens, two Caltex, and two
independents. The proposal is intended to facilitate entry of United as a further
competitor into trade area. As Mr Leyshon pointed out, fuel is a relatively
undifferentiated product, with the choice of fuel provider unlikely to be a significant
customer decision factor. It was a matter of agreement amongst the economists
however, that United is a price competitive operator and typically charges some of
the cheapest petrol prices on the Gold Coast. Whilst the experts had not carried out
extensive surveys, their observations were consistent with their understanding of
United’s corporate strategy. The benefit of that to the consumer lies not just in the
price charged by United but in the competitive response it provokes from others.[40]
As Mr Leyshon pointed out however, one must bear in mind the magnitude of that
advantage. His evidence was to the effect that United does not enjoy a significant
price advantage in the areas of the Gold Coast where it currently trades. There was
no evidence of price surveys in the trade area to suggest that it currently suffers from
any particular lack of competitive pricing. It is reasonable to expect, given its
corporate strategy,that the entry of United into the market would increase competition
to a degree, but the extent of the benefit is unquantifiable and could not be assumed
to be of a great magnitude.
[40] T2-70.
While the experts were in agreement that there was a level of need the question is the
strength of that need. When regard is had to both the quantitative and qualitative
aspects of need, I am satisfied that the extent of the need is somewhat greater than
assessed by Mr Leyshon, and sufficient to meet the performance criterion, but not by
a great margin and it is not a strong need case.
Grounds
The grounds relied upon by the appellant to justify approval in the event of conflict
being found with the 2003 Planning Scheme are as follows:

1. the proposal provides a positive visual contribution to the locality;
2. the proposal enhances the open character of the locality;
3. the proposal adds to the activation of the Gold Coast Highway;
4. the proposal will assist in achieving casual surveillance of the park on the
opposite side of the Gold Coast Highway;
5.          the proposal will provide a service for homebound residents on a major road;
6.          the proposal makes provision for the possibility of future light rail in the area;
7.          the proposal fulfils the convenience needs of the locality;
8.          the proposal fulfils a gap in the service station network through increased
convenience, choice and competition;
9.          the provision of 24 hour operation enhances the tourist character of the area
by a provision of greater choice and convenience; and
10.        the proposal does not result in any adverse amenity or environmental impacts.

Grounds 5, 7, 8 and 9 relate to need, which has been dealt with above. For the reasons
given, there is a need, but it is not a strong need.
Grounds 1, 2 and 3 relate to visual and character issues which have been dealt with
earlier. Whilst it would fit in with its highway context, the proposal does little to
positively improve that context. Further, it would somewhat diminish the western
extremity of the streetscape of Seaside Avenue whilst having a negative impact on
the visual amenity of neighbours, particularly the occupants of the property of the co-
respondent by election
I accept the opinion of Mr McGowan that it is unlikely, given the distance between
the park and the service station, the median fencing and the traffic along the highway,
and the way the park slopes away from the highway, that someone in the park would
have a perception of surveillance from the service station or that service station
patrons would be particular effective casual surveyors of the park.
As to Ground 6, as Mr Brown pointed out, whether correct or not, any development
on the subject land would need to be designed to accommodate future provision of an
adopted light rail project.
As to ground 10, I have found that the proposal would cause adverse visual amenity
impacts.
In my view the grounds are not particularly strong. They, together with the matters
discussed earlier, are sufficient to overcome the admitted conflict arising by reason
of the shop component of the proposal. They may also have been sufficient to warrant
approval notwithstanding some other areas of conflict or arguable conflict save for
the conflict arising by reason of the adverse visual impacts particularly those arising
from the 3 metre high section of the acoustic barriers on the co-respondent by
election’s boundary and the proximity of the canopy section to her residence. It is
that visual impact which in my view is particularly unacceptable notwithstanding the
grounds upon which the appellants have relied.
2016 Planning Scheme
The 2016 Planning Scheme came into force shortly after the application was made.
Its provisions should be afforded significant weight.
Pursuant to the 2016 Planning Scheme, the land is included in the Medium Density
Residential Zone. A service station is impact assessable development within that
zone. The relevant assessment criteria include the Strategic Framework, the Medium
Density Residential Code, the Commercial Design Code and the Service Station
Code.

It was pointed out, on behalf of the appellant, that the overall outcomes of the Medium
Density Residential Zone Code may be contrasted with those of the Low Density
Residential Zone Code in that the latter include an express statement that service
stations are a form of incompatible land use which are not located in the zone. The
overall outcomes for Medium Density Residential Zone Code do not contain the same
statement in relation to service stations. It was submitted that, as with the 2003
Planning Scheme, the current Planning Scheme contemplates service stations within
the prevailing zone.
As at the time of the hearing of the appeal, the Overall Outcomes for the the Medium
Density Residential Zone Code also contemplated the possibility of service station
development in the following provision:

“(5) which carry higher potential for impacts on amenity such as
carwashes, child care centres, health care services, food and
drink outlets, service stations, shops, veterinary services,
community care centres, educational establishments, and
places of worship may be considered if appropriately designed
and located and not detract from the residential amenity of the
area.”

Subsequently, the provision was amended so as to remove the reference to service
stations in the inclusive list of examples. It was submitted, for the appellant that the
court ought not afford weight to the amendment, in fairness to the appellant, given
that it only came into effect after the completion of evidence. The parties have
however, been given the opportunity to make submissions about its effect. It is not
inappropriate to afford it some weight. The respondent relies on it to reinforce the
submissions it made about the effect of the provisions otherwise discussed. In any event however, the provision, it its unamended form, identified service stations as a
use with higher potential for impacts on amenity which may be considered if
appropriately designated and located and not detract from the residential amenity of
the area. For the reasons discussed the proposal would not meet those tests.
Other provisions of the Overall Outcomes include the following:

“(a) land uses –
…

(iv) include neighbourhood centres and stand-alone small
scale non-residential development consistent with
strategic framework;

…
(vii) do not detract from the residential amenity of the
area.”

The likely impact of the proposal on residential amenity has already been discussed.
Provisions of the Strategic Framework in relation to neighbourhood centres and
stand-alone small scale non-residential development is dealt within s 3.4.5 of the
Strategic Framework, The subject proposal is not a neighbourhood centre, nor is it
within a neighbourhood centre. It would be a stand-alone, small scale commercial
use. The location of those uses is dealt within s 3.4.5.1(14) of the Strategic
Framework which provides:

“(14) stand-alone, small scale commercial uses (e.g. neighbourhood
store, medical centres) may be appropriate in suburban and
urban neighbourhoods (including light rail urban renewal
area), new communities, Merrimac/Carrara flood plain special
management area, townships and marine and general industry
areas, where these uses:

(a) are of type and size that will not undermine the
viability of existing, or new neighbourhood centres;

(b) provide a direct service to the immediate
neighbourhood/industry area or a high frequency
public transport stop;

(c) maintain a compatible form and scale to nearby
development;

(d) do not unduly detract from local character and
amenity; and

(e) are not service station, bar, hotel, nightclub or
supermarket uses.”

Even leaving to one side the fact that the service station is intended to serve a much
wider trade area than the immediate neighbourhood and would, for the reasons
already given, have undue amenity impacts, it is a form of development, namely a
service station, which the provision excludes as one which may be appropriate as a
stand-alone small scale commercial use in suburban and urban neighbourhoods.
Mr Perkins saw the exclusion of service station in (e) as “neither intentional nor
correct” and gave it no weight in his assessment. That was on the basis that service
stations are code assessable development in three of the nine zones in which
neighbourhood centres, consistent with the outcomes of the element, occur and
service stations are contemplated in the Overall Outcomes of four of the zones. Mr
Perkin’s approach however is erroneous because clause 14 is not concerned with the
location of uses within centres. Rather, it is concerned with the location of stand-
alone small scale commercial uses in suburban and urban neighbourhoods. By
comparison section 3.4.5.1(2)(d) expressly contemplates that service stations (where
operating during the standard trading hours in the centre) are among the uses provided
for in neighbourhood centres. The note included the Medium Density Residential
zone as a zone in which neighbourhood centres, consistent with the outcomes of the
element occur.
It was submitted, for the appellant, that the Overall Outcomes for the Medium Density
Zone Code, including that relating to the location of stand-alone small scale non-
residential development consistent with the Strategic Framework must be taken to be
fulfilled by the subject proposal by reason of its satisfaction of the Performance
Outcomes in the Zone Code. Whilst the Performance Outcomes relate to matters of
set-back, site cover, height, density and lot design rather than anything to do with the
matter addressed in the relevant part of the Strategic Framework, the appellant
pointed to s 5.3.3(4) of the Planning Scheme which provides that for Code Assessable
Development, that which complies with the Performance or Acceptable Outcomes of
the Code complies with the purpose and the Overall Outcomes of the Code. Whilst
the service station will be Impact Assessable under the current Scheme, it is difficult to see why the Code should be interpreted in a different way in the context of Impact
Assessment.
In this respect there appears to be a weakness in the zone code in that none of the
development criteria addresses this part of the purpose of the code. It should be noted
however, that Impact Assessable Development is to be assessed against all identified
Assessment Criteria. That Assessment Criteria includes the Strategic Framework and
s 1.5(1) of the Planning Scheme provides that the Strategic Framework prevails over
all other components of the Scheme to the extent of any inconsistency.
The 2016 Planning Scheme also includes a Service Station Code, the purpose of
which is to facilitate the design and safe operation of service stations while avoiding
any environmental impacts on neighbouring properties. The purpose of the Code is
to be achieved through a number of Overall Outcomes, one of which is that service
stations are designed and located to avoid any adverse impacts on residential land
uses. Performance Outcome 4 is that “service stations do not abut a residential land
use”. There is no Acceptable Outcome provided with respect to that Performance
Outcome.
Those provisions evince a strong planning intent to protect residential amenity against
‘any’ adverse impacts. That is to be achieved not only by design measures, but by
location. The Performance Outcome envisages that occurring by way of physical
separation from residential land use, something which the subject proposal flies in the
face of. It was pointed out that the Acceptable Outcomes to Performance Outcome
1 envisages side and boundary setbacks of only 2 metres, but that is in the context of
the code as a whole which otherwise envisages physical separation by means of
Performance Outcome 4.
Mr Perkins saw PO4 as expressing a preference. Whilst non-compliance with a
performance outcome might not be fatal, PO4, in its terms, expresses more than a
preference. Further Mr Perkins saw the location of service stations abutting
residential land as “all but unavoidable” where service stations are contemplated in
zones where the predominant land use is residential. That will however, depend upon
the circumstances. There may well be sites within such zones which do not abut
residential land uses because they are separated by roads, parks or existing non- residential land uses. The zoning of the land does not afford a proper basis for
affording less weight to PO4.
The physical separation of potentially conflicting land uses is a strategy which is
reflected in the higher order provisions of the current Planning Scheme. In that
regard, Strategic Outcome 3.8.1(11) provides that activities which “generate
emissions or impacts are adequately separated, designed and managed to avoid
environmental harm or nuisance to residential or other sensitive land use areas” and
Specific Outcome 3.8.6.1(1) provides that “activities that could conflict with the
health and amenity of existing or planned sensitive uses are adequately separated,
designed and managed”.
It was pointed out, for the appellant, that s 5.3.3(4)(c)(1) provides that, at least with
respect to Code Assessable Development, a development which complies with the
Purpose and Overall Outcomes of the Code complies with the Code, even if it departs
from the Performance Outcomes. For the reasons given however, I am satisfied that
the proposal in this case not only departs from PO4, but also would have undue
amenity impacts and not comply with the purpose and overall outcomes of the Code.
Reference was also made to the provisions of the new planning scheme in relation to
the tourism economy. That was because s 3.5.4.1(4) acknowledges that Mermaid
beach is one locality with a particular character and amenity which favours a strong
permanent residential population and where residential amenity is prioritised. The
impact of the proposal on the amenity of the area, including, in particular, the
residential uses, has been a matter of assessment under both schemes.
Whilst the proposal complies with the zone code under the 2016 Planning Scheme,
by reason of its compliance with that codes assessable development criteria, it
conflicts with the Strategic Framework and, even leaving that to one side, it conflicts,
in any event, with the Service Station Code. Attaching weight to its provisions serves
to confirm the conclusion that the proposal should be refused.
Conclusion
For the reasons given the appellant has failed to discharge its onus. The appeal is
dismissed.

[2018] QPEC 8

27 February 2018

Key Legal Topics

Areas of Law

Planning & Development Law

Legal Concepts

Appeal

Adverse Possession

Conflict of Laws

CITATION:	United Petroleum Pty Ltd v Gold Coast City Council & Anor
[2018] QPEC 008
PARTIES:	UNITED PETROLEUM PTY LTD
(Appellant)
v
GOLD COAST CITY COUNCIL
(Respondent)
and
EDWINA ROBERTS
(Co-respondent by election)
FILE NO/S:	3902/2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING
Planning and Environment Court at Brisbane
COURT:
DELIVERED ON:	27 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 – 16 June, 14 July 2017, further written submissions
received to 8 October 2017, and further appearances 25
January and 5 February 2018.
JUDGE:	Rackemann DCJ
ORDER:	The appeal is dismissed
CATCHWORDS:	PLANNING AND EVIRONMENT – APPEAL AGAINST
REFUSAL OF APPLICATION FOR DEVELOPMENT
PERMIT FOR MATERIAL CHANGE OF USE TO
DEVELOP SERVICE STATION AND A SHOP – whether
decision to approve the development would conflict with the
2003 Planning Scheme – amenity – perceptions and
reasonable expectations – noise, air, amenity and lighting –
privacy – streetscape/character/visual amenity – location –
need -whether there are sufficient grounds – whether there is
conflict with the 2016 Planning Scheme
COUNSEL:	M Williamson and M Batty for the applicant
M Johnston for the respondent
P Beehre for the correspondent
SOLICITORS:	Thompson Geer for the applicant
HopgoodGanim Lawyers for the respondent
Hickey Lawyers for the co-respondent
CONTENTS
Introduction	4
The land and surrounds	4
The proposal	5
The assessment regime	6
The issues	7
The 2003 Planning Scheme	8
Amenity	13

(i)	Perceptions and reasonable expectations	14
(ii)	Noise, air quality and lighting	16
(iii)	Privacy	17
(iv)	Streetscape/character/visual amenity	17

Location	29
Need	30
Grounds	38
2016 Planning Scheme	39
Conclusion Introduction	44

(a)	to the north – 6.7 metres to the building;
(b)	to the west 6 metres to the canopy and 29 metres to the building;
(c)	to the south – 3 metres to building; and
(d)	to the east – 3 metres to the building.

(a)	Residential Choice Domain: Intent;
(b)	Residential Choice Domain Place Code performance criteria PC3,

PC13	AS13
The proposed use must not detract from	No acceptable solution provided.
the amenity of the local area, having
regard, but not limited to, the impact of:
……..

PC10	AS10
The design of all buildings and	No acceptable solution provided.
structures must be in keeping with the
appearance of the local area and utilise
a design theme that expresses a modern
and functional appearance.

commercial and industrial	at a service node.
ribbon development.	AS5.2

(b)	Does not adversely impact on	The Service Station is located within
nature conservation or open	or adjacent to local shopping facilities
space areas	or established non-residential
(c)	Complements local shopping	development.
facilities or established non-	AS5.3.1
residential development in	The Service Station is not located in
urban areas.	nature conservation or open space
areas. OR
AS5.3.2
The Service Station is located in nature
conservation or open space areas and
has one or more of the following
characteristics:
(a) the site is located adjacent to a
highway or motorway;
(b) the site has no environmental or
ecological values;
or
(c) the use is one element of a
development which also provides a
range of amenities such as rest area,
toilets and picnic facilities.

“(5)	which carry higher potential for impacts on amenity such as
carwashes, child care centres, health care services, food and
drink outlets, service stations, shops, veterinary services,
community care centres, educational establishments, and
places of worship may be considered if appropriately designed
and located and not detract from the residential amenity of the
area.”

“(14)	stand-alone, small scale commercial uses (e.g. neighbourhood
store, medical centres) may be appropriate in suburban and
urban neighbourhoods (including light rail urban renewal
area), new communities, Merrimac/Carrara flood plain special
management area, townships and marine and general industry
areas, where these uses: