Wilhelm v Ipswich City Council & Anor
[2010] QPEC 46
•28 May 2010
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
| CITATION: | Wilhelm v Ipswich City Council & Anor [2010] QPEC 46 |
| PARTIES: | Teresia Wilhelm v Ipswich City Council And Parmac Investments Pty Ltd |
| FILE NO’S: | 2007/09 |
| PROCEEDING: | Appeal |
| ORIGINATING COURT: | Brisbane |
| DELIVERED ON: | 28 May 2010 |
| DELIVERED AT: | Southport |
| HEARING DATES: | 15-19 March 2010 |
| JUDGE: | Newton DCJ |
| ORDER: | The appeal is dismissed. The matter is to be adjourned to allow the parties to formulate appropriate conditions. |
| CATCHWORDS: | Appeal against approval of application for a development permit for a material change of use for a business use (service station and shopping centre) – alleged conflict with planning scheme – traffic engineering matters – need – adverse impacts on residential amenity specifically noise – generation of non-local traffic on local streets – visual amenity |
| COUNSEL: | Mr A N S Skoien for the appellant Mr S Ure for the respondent Mr T Trotter for the co-respondent |
| SOLICITORS: | NR Barbi Solicitor Pty Ltd for the appellant King & Company, Solicitors for the respondent Connor O’Meara Solicitors for the co-respondent |
This is a submitter appeal against the approval of the respondent council of an application for a Development Permit for a Material Change of Use for a Business Use (service station) and Shopping Centre. The proposal is for:
(i) a “business use” being a 7 Eleven Service Station with an associated convenience store, having a gross floor area of 156m2;
(ii) a Shopping Centre comprising a number of specialty stores having a gross floor area of 495 m2; and
(iii) an Environmentally Relevant Activity being ERA 8(1)(c), chemical storage, to facilitate the storage of fuel.
A new single-storey building, built in part to the western boundary alignment, is proposed with the specialty shops located at the southern end of the site and the 7 Eleven Service Station located at the northern end of the site. The service station / 7 Eleven component will occupy approximately 1,100m2. Three points of entry to the development are proposed; namely, combined entry/exits on both Hayes Street and Greenham Street, and a one-way only entrance from Raceview Street (northbound).
The subject land is situated at 59, 61 and 63 Raceview Street, Raceview[1] and comprises an area of 3,083m2. It is presently developed at 61 and 63 Raceview Street, Raceview with Commercial Premises, and at 59 Raceview Street with a Detached dwelling. The subject land has its primary frontage to Raceview Street (87 metres), and secondary frontages to both Hayes and Greenham Streets of approximately 40 metres to each.
[1] Lot 65 on RP24427; Lot 2 on RP10087 and Lot 1 on RP15347.
To the west of the subject site land is generally developed with detached dwellings. To the south land is also developed with detached dwellings, including some significant areas of more recent residential development. On the eastern side of Raceview Street the existing Raceview Shopping Centre is situated. This comprises a U-shaped configuration with retail premises located around a central carpark area. Access to the shopping centre is by a two-way crossover from Raceview Street. The Centre is a Major Neighbourhood Centre. The Centre is perhaps somewhat dated in appearance but appears to be relatively well maintained. However, the Centre provides no convenience retailing after 6:30pm and it does not contain a service station.
The appeal against the respondent’s approval of the application was lodged prior to the coming into effect of the Sustainable Planning Act 2009 (the “SPA”). This Court, consequently, is required to hear and determine the appeal under the repealed Integrated Planning Act 1997 (the “IPA”) as if the SPA had not commenced.[2] It is for the co-respondent (“Parmac”) to establish that the appeal should be dismissed.[3]
[2]Sustainable Planning Act 2009, section 819(1), (2).
[3] Section 4.1.50 of the IPA.
The southern two-thirds of the site is included in the Local Retail and Commercial Zone under the Ipswich Planning Scheme 2006. The northern one-third of the site (59 Raceview Street) is included in the Residential Low Density Zone. Pursuant to the table of assessment for the Local Retail and Commercial Zone, the Shopping Centre component of the proposal is code assessable.[4] The 7 Eleven Service Station Component, being a business use in the Local Retail and Commercial Zone is impact assessable.[5] It should be noted that the appellant, being a submitter for the Development Application may only appeal against the impact assessable component, ie, the 7 Eleven Service Station.[6]
[4] Exhibit 5A, tab 5, p4-156 Local Retail and Commercial Zone Table of Assessment – Shopping Centre (of 495m2).
[5] Exhibit 5A, tab 5, p4-155-Business Use.
[6] Section 4.1.28 of the IPA.
The issues in the appeal remaining for determination are as follows:
(i) alleged conflict with the planning scheme;
(ii) traffic engineering matters;
(iii) need; and
(iv) allegedly adverse impacts on residential amenity; specifically noise, generation of non-local traffic on local streets, and visual amenity of the near to boundary wall between 2 Greenham Street and the proposed 7 Eleven Service Station.
Conflict with the Planning Scheme
It is asserted by the appellant that the proposal is an inconsistent use in the Residential Low Density Zone and that therefore is in conflict with the intent of that zone. However, the mere fact that a use may be said to be an inconsistent use in the zone does not of itself result in it being in conflict with the provisions of the Planning Scheme.[7] The Residential Low Density Zone caters “primarily” for residential development and associated uses to the “general” exclusion of other uses.[8] This Court is required to consider the Planning Scheme provisions as a whole and, analysing the purpose and intent of the scheme provisions, to reach a conclusion as to whether in reality the proposal is in conflict with the Planning Scheme.
[7]SEQ Bond Stores v Gold Coast City Council [2006] QPELR 747 at [27].
[8] Clause 4.5.2(2)(a), part of the Overall Outcomes sought for the Residential Low Density Zone.
Of some importance, in my view, is that the Planning Scheme recognises that there will be non-residential uses in the Residential Low Density Zone. Thus, in section 4.5.3(3) Specific Outcomes for non-residential uses are set out as follows:
“Non Residential Uses
Specific Outcomes
Each non-residential use–
(a) fulfils a local community need; and
(b) is accessible to the population it services; and
(c) where possible co-locates with other non residential uses but does not contribute to undesirable commercial ribbon development; and
(d) does not have a significant detrimental impact on the amenity of nearby residents, including through the generation of–
(i) odours;
(ii) noise;
(iii) waste products;
(iv) dust;
(v) traffic;
(vi) electrical interference; or
(vii) lighting; and
(e) maintains a scale and appearance in keeping with the residential amenity and character of the locality with adequate buffering or screening to nearby residential uses (both existing and proposed).”
Although the issues of need and impact on amenity of nearby residents will be considered in due course, it may be noted that the evidence of Mr Perkins, a consultant town planner, indicates that he found no conflict with the Planning Scheme when read as a whole in the context of the appropriateness of land use.[9] I agree with that view. Support for that view may be found in the report of Ms Roughan:
“I do not believe that the fact that 59 Raceview Street provides a logical site on which to expand commercial uses is a sufficient basis to justify its approval in the absence of a clear need for the facility, given the likely change to the residential character and amenity in Greenham Street.”[10]
[9] Exhibit 6, p8, paragraph 21.
[10] Exhibit 7, p19, paragraph 4.4.4.
Need
Ms Bonwick, a consultant market researcher and economist, identified a clear differential in the positioning of existing fuel retailing facilities in the Raceview and surrounding area. Thus, the Woolworths Petrol Plus outlets focussed on the discount retailing of fuel, the BP outlets were oriented towards more traditional auto service centres (including car servicing and self-service car wash facilities), whereas the Caltex and 7 Eleven outlets offered more prominent convenience store facilities including ATMs, coffee stations and hot food.[11] In her report, Ms Bonwick noted that the 7 Eleven outlets do not participate in discount price strategies which were seen as likely to eliminate queuing and overtrading problems sometimes associated with Woolworths and Coles/Shell offers.[12] Ms Bonwick observes that a number of the outlets in the area surrounding the subject site currently offer 24-hour trading which is seen as indicating a market response to demand for convenient and timely access to fuel retailing options.[13]
[11] Exhibit 4, p8, paragraph 3.1.4.
[12] Ibid, paragraph 3.1.4.
[13] Ibid, paragraph 3.1.2.
Ms Bonwick has defined a catchment area for the proposed development as the community of Raceview, the community of Flinders View east of Ripley Road and eastern heights south of Robertson Road.[14] Ms Bonwick estimates that as at June 2010 there will be 8,370 people living within 3,280 households within the catchment area. By June 2016 she projects that the population of the catchment area would approximate 9,000 persons living in 3,600 households. Ms Bonwick has found that the Raceview catchment area is characterised as an area with a high proportion of families in the middle stages of the lifecycle, and a propensity for commuting to access employment and education facilities. With strong growth since 2006, Ms Bonwick expects that the catchment area would continue to demonstrate the movement to the area of families in the young to middle stages of the lifecycle, predominantly working families with a need to commute for employment and education and a propensity for demand for facilities that cater to this time-poor community including convenience retail, takeaway and fast food and extended trading hours.[15]
[14] Ibid, paragraph 4.1.2.
[15] Ibid, page 13, paragraph 4.1.7.
Ms Bonwick estimates that there will be 5,270 motor vehicles owned by households within the catchment area as at June 2010. She estimates that the total demand for fuel retailing within the catchment area is 6.5 million litres per annum.[16] Additional demand would also be generated by households within the Ripley area.[17] Ms Bonwick reports that no fuel retailing facilities are presently located within the catchment area. With an average of 5.4 million litres for modern fuel retailing facilities in high-profile locations, and an industry average overall of approximately 3 million litres per annum, Ms Bonwick concludes that there is sufficient demand within the catchment area to support the proposed fuel retailing facility.
[16] The assumption is that 95% of the 5,270 motor vehicles will be passenger vehicles and an average of 25 litres per passenger vehicle per week has been allowed. See Exhibit 4, paragraph 4.2.2.
[17] Ibid, paragraph 4.2.3.
In relation to the demand for retail facilities within the catchment area, Ms Bonwick has estimated the average annual retail expenditure per household within the Raceview catchment area to be $25,100 in 2009 dollar values. Multiplication by the number of spending units (households) estimates a retail expenditure pool of approximately $82M.
Ms Bonwick has allowed for a 20 per cent share of household retail expenditure at convenience or top-up shopping destinations in the catchment area. She projects that the catchment area would generate a demand for approximately 4,100m2 of retail space. Allowing for a non-retail component she estimates a demand for approximately 4,500m2 of convenience centre space from within the catchment area.[18] Ms Bonwick projects that by 2016 this demand would represent approximately 4800m2 to 5000m2 of convenience centre space. She notes that not all this demand would be accommodated within the catchment area, with facilities on the way to and from work or school, including service station outlets, attracting a share of this demand.[19] Ms Bonwick also projects that additional demand for convenience retail would be generated by expanding the Ripley residential community to the south until a more convenient array of facilities is available to this population. She views the subject sites location on Raceview Street as presenting a convenient location from which the Ripley community could access top-up shopping and services.[20] Ms Bonwick concludes that there is strong underlying demand for convenience and fuel retailing within the catchment area.[21] This conclusion according to the evidence of Ms Bonwick, is supported by the following:
[18] Ibid, paragraph 4.2.7.
[19] Ibid, paragraph 4.2.8.
[20] Ibid, paragraph 4.2.9.
[21] Ibid, paragraph 4.2.10.
“
(a)The proposed fuel retailing facility will improve choice in operator, pricing policy, and location of fuel retailing activities within the Raceview area, improving convenience and accessibility for motorists. In particular, the subject site for the proposed fuel retailing facility is located on the homebound side of Raceview Street, providing high levels of accessibility and convenience for motorists. Moreover, the 7 Eleven operation focuses on convenience and a top-up shopping environment that is positioned differently to the older, auto workshop environment of existing facilities.
(b) There are no fuel retailing facilities located within the Catchment Area; an area in which there is more than sufficient demand for auto services including convenient access to fuel. More particularly, there is limited choice in fuel retailing facilities within the Catchment Area.
(c) The developing Catchment Area community would expect convenient access to modern top-up shopping facilities. The proposed 7 Eleven and specialty retailing reflects consumer trends to shop more frequently for a small basket of goods and the proposed development would improve catchment area residents’ access to a modern, top-up shopping and convenience oriented environment. In particular, the emerging younger, working community is expected to have a higher propensity for top-up shopping in a modern, convenient location. Existing convenience retail facilities within and surrounding the Catchment Area do not offer a modern, accessible, top-up shopping destination.
(d) The Catchment Area community has demonstrated moderate levels of growth since 2001, with strong levels of activity in building approval indicative of new households establishing within the community. This community will generate additional demand for conveniently located goods and services, including convenience retail, to cater for their top-up shopping and day-to-day needs.
(e) The existing mix of convenience retailing activities within the Catchment Area are in need of upgrade, refurbishment and redevelopment in order to offer the developing Catchment Area community a modern, convenience top-up shopping destination that will be attractive to a quality retail mix. The proposed development would substantially upgrade the existing commercial facilities on the subject site, and contribute to improved accessibility and convenience for shoppers with at-grade parking at the store front. I would also expect that this redevelopment would present the impetus or catalyst for much needed investment in and refurbishment of facilities within the surrounding retail network including the Raceview Shopping Centre.
(f) The proposed development will complement and enhance Raceview as a Major Neighbourhood Centre. The Raceview Major Neighbourhood Centre comprises a mix of convenience or top-up oriented goods and services including retailing, medical, child care facilities. Fuel retailing facilities would complement these services and the convenience function of Raceview.
(g) The demographic and socio-economic characteristics of the Catchment Area community are indicative of a community with a particularly strong propensity for demand for facilities that cater to the needs of a mobile commuter community. With motor vehicle ownership levels comparable to the average, complemented by a blue collar commuting community, it is my opinion that this community would demonstrate high levels of frequency in purchasing fuel.
(h) The catchment area community demonstrated moderate levels of workforce participation and employment in blue collar occupations. With a limited range of employment activities within the catchment area, the residential workforce would be required to commute to access employment opportunities. I would expect fuel consumption for this community to be greater than the average. Facilities such as fuel retailing that cater to the needs of commuters would need to be located in accessible and convenient locations on the way to or from work. The proposed development is located on the homebound side of Raceview Street.
(i) The proposed development will positive contribute to the economic and social role of the Raceview Centre as a Major Neighbourhood Centre, by offering employment opportunities for approximately 20 to 30 workers, and providing a modern, top-up shopping environment.
(j) Very strong growth in convenience retailing in the 5 years to 2009, reflects the increasing demand from time-poor consumers to access a broader range of goods within the one location. The proposed development will introduce a liquor store and modern convenience store, which will amplify choice in convenient access to top-up shopping close to home.”
Counsel for the appellant, in his written submissions, has criticised the evidence of Ms Bonwick principally by focussing on the opportunities for potential customers of the proposed development to use existing fuel outlet and convenience shopping facilities in preference to those proposed. Thus, it is contended that people living to the east of South Station Road (ie, the eastern part of the trade catchment area) would be likely to travel north along South Station Road to the existing 24 hour 7 Eleven Service Station at the corner of South Station Road and Blackstone Road, or either the existing BP Service Station adjacent to that 7 Eleven Service Station, or to the existing 24 hour BP Service Station on the northern side of Robertson Road. People living to the west of South Station Road would be likely to do the same thing unless they had some specific reason to move away from South Station Road towards the subject land. People living in the south and south east of the trade catchment area, it is suggested, would find it just as convenience to travel to the existing 24 hour 7 Eleven at Winston Glades as they would to travel to any new 7 Eleven outlet on the subject land. People living in the north and north west of the catchment area would, it is submitted, essentially find it just as convenient to travel to the existing 24 hour BP Service Station on the northern side of Robertson Road than to travel to any new service station on the subject land. People returning from work in the Ipswich CBD area (or further west) would, it is suggested, already pass at least the existing 24 hour BP Service Station on Robertson Road or the existing 24 hour 7 Eleven Service Station on South Station Road on their return from work (at whatever time of the day). People returning from work from the north east along Brisbane Road would pass a number of existing service stations (including the 24 hour 7 Eleven Service Station at the corner of South Station Road) on their return from work (at any time of the day). People returning from work from the south and west, using the Cunningham Highway or Warwick Road, would, it is suggested, pass near to at least three service stations, including the 24 hour 7 Eleven Service Station at Winston Glades and the service stations at Yamanto, at their return from work (at any time of the day).Those people working to the north and east of the locality, using the Cunningham Highway, would, it is submitted, presently be able to take two of the three exits from the highway to bring them past existing 24 hour service stations (including the existing 7 Eleven Service Station on the corner of South Station Road and the existing 24 Hour BP Service Station on the north of Robertson Road) on their return from work (at any time of the day).[22]
[22] Written submissions on behalf of the appellant, p35, 36 paragraph 11.4.
Counsel for the appellant submits that the establishment of a new service station on the subject land would fail to add any appreciable level of convenience to any significant number of residents of the trade catchment area identified by Ms Bonwick. It should be noted that there are already two existing 24 hour 7 Eleven Service Stations within five or six kilometres of each other on either side of the trade catchment area and that between those two 24 hour 7 Eleven Service Stations is an existing 24 hour BP Service Station.
The difficulty with the submissions of counsel for the appellant in this regard is that any estimate of where people are likely to utilise fuel outlet and convenience shopping facilities is an imprecise and inexact exercise. Indeed, as counsel for the appellant observes in his written submissions, residents of the trade catchment area identified by Ms Bonwick will form their own views and have their own preferences about the convenience of the petrol facilities or other convenience shopping facilities in the locality.[23]
[23] Written submissions on behalf of the appellant, p34 paragraph 11.2.
Ms Bonwick was of the view that a local resident travelling to an end destination that is in the vicinity of the subject land, such as the existing shopping centre or one of the two primary schools in the locality, may find it more convenient to purchase petrol at the subject site. Furthermore, a local resident living relatively near the subject land may find it more convenient to travel a slightly shorter distance to a service station on the subject site instead of one of the three existing 24 hour service stations which may involve a saving of travel distance of up to 1.5 kilometres by car.[24] Although counsel for the appellant has criticised these conclusions of Ms Bonwick as failing to demonstrate a significant level of need for the proposal, in my opinion they do establish an objectively perceived need for the development in that the physical well-being of the community in and close to the catchment area, or some part of it, can more conveniently be served by the provision of the proposed facility.[25]
[24] Transcript p1-35 lines 28-34.
[25] See Comkey Pty Ltd v Caboolture Shire Council & Ors (2005) QPEC 114 per Rackemann DCJ.
Counsel for the appellant has submitted that this Court should give considerable weight to the strong opposition to the proposed development expressed by local residents.[26] It was submitted by the appellant that it is remarkable that, in this relatively small locality, in which it is said there is a need for greater convenience petrol retailing (with “top-up” shopping), so many people went out of their way to voice their opposition to this proposal.[27] Whilst I accept that the local residents who have expressed their views in opposition to the proposed development are entitled to have those expressions accepted as legitimate concerns, there are some matters which should be noted in this regard. Firstly, many of the submissions were pro forma which may suggest orchestration by a person or persons whose interests are hard to determine. Secondly, such submissions should be reasonable expectations extracted from the Planning Scheme, particularly those relating to likely or anticipated development of the subject site under the “Centres Strategy” in the Scheme. The submissions fail, generally, to mention the Centres Strategy. Thirdly, it may be noted that no submission was forthcoming from the resident at 57 Raceview Street who may be expected to be most likely to be aware of any potential impacts of the proposal.[28]
[26] Written submissions on behalf of the appellant, p7, paragraph 3.7.
[27] Ibid, p6, paragraph 3.4.
[28] Reply of the co-respondent to the submissions of the appellant, pp3-4, paragraph 4.
Adverse amenity and character impacts
The Planning Scheme contains a number of divisions designed to protect amenity and local character and to avoid nuisance. For example, Residential Low Density Zone Assessment Criteria states the following specific outcome is expected of any non-residential use:
“4.5.3Effects of Development – General
Non Residential Uses
(3) Specific Outcomes
Each non-residential use–
…
(d) does not have a significant detrimental impact on the amenity of nearby residents, including through the generation of–
(a) Odours;
(b) Noise;
(c) Waste products;
(d) Dust;
(e) Traffic;
(f) Electrical interference; or
(g) Lighting; and
(e) Maintains a scale and appearance in keeping with the residential amenity and character of the locality with adequate buffering or screening to nearby residential uses (both existing and proposed).”
Assessment criteria in the form of overall outcomes also find expression in the applicable Commercial and Industrial code contained in section 12.7.3 of the Planning Scheme as follows:
“(2) The overall outcomes sought for the Commercial and Industrial Code are the following–
(a) Commercial and industrial uses and works–
(i) are undertaken in a manner which doe not cause a nuisance or disturbance to the occupiers or users of nearby land, particularly nearby residents and other sensitive receptors;
(ii) are compatible with the physical characteristics of the site where they are located and the character of the local area;
…
(v) provide reasonable buffers between incompatible uses and zones, Submission Areas or precints;
Provide for convenient, safe and efficient movement of vehicles and pedestrians within the site as well as to and from the site;
Maintain a scale and height of development commensurate with the intent of the zone, Sub Area or precinct in which the development is located and which is generally compatible with surrounding development and operational airspace for RAAF Base Amberley and Archerfield Aerodrome;”
The Commercial and Industrial code also contains various specific outcomes of relevance which repeat or reflect the assessment criteria in the local Retail and Commercial Zone assessment criteria in section 4.10 of the Planning Scheme:
“12.7.4 Effects of Development – General Commercial and Industrial Provisions
Effects on Amenity and Public Utilities
(1) Specific Outcome
The establishment of a commercial or industrial use has no significant detrimental effect on the amenity and general well-being of the area and does not impose a load on any public utility beyond its capability to service the use or works.
12.7.5 Effects of Development – General Commercial Provisions
Density and Character
(1) Specific Outcomes
Uses and works reflect the desired [established][29] built character; maintain amenity and protect and enhance important townscape and landscape elements having regard to–
[29] 4.10.3 Effects of Development – General of the Local Retail and Commercial Zone contains the same specific outcome statement but uses the work “established” instead of “desired”.
(a) building height;
(b) lot sizes and dimensions;
(c) boundary clearances and the provision of space around buildings;
(d) the location and design of parking areas;
(e) access to natural light and ventilation;
(f) privacy;
(g) noise attenuation;
(h) vegetation protection;
(i) landscape treatment;
(j) places of cultural significance or streetscape value; and
(k) the form, scale, bulk, style, siting, orientation, roof lines, materials and detailing of buildings.”
The expert town planners[30] were able to agree that factors to the consideration of the likely impact of amenity include:
[30] Ms Roughan of Buckley Vann Town Planning, Mr Perkins of Humphreys Reynolds Perkins and Mr Bullen of Precinct Urban Planning
“(a) the nature of the existing centre activities on the site;
(b) the nature of the adjoining land and surrounding locality;
(c) the nature of possible redevelopment on the Local Retail and Commercial zoned land within the site; and
(d) the level of activity on Raceview, Hayes and Greenham Streets.”[31]
Mr Bullen also considered that a further relevant factor is the degree to which the existing and proposed layout and design of development on the subject land buffers adjacent sensitive uses from amenity impacts and/or ameliorates such impacts.[32]
[31] Experts’ joint statement on town planning issues, p7, para 6.14.
[32] Ibid para 6.15.
The town planning experts agreed that the character of the land to the west of the site is generally low density residential (detached housing in nature) and that the current level of commercial activity on the subject land appears low. It was further agreed that redevelopment Local Retail and Commercial zoned land for a range of purposes anticipated in that zone could reasonably have been expected. However, Ms Roughan notes that expectations for such redevelopment would still have been in the context of the overall and specific outcomes for the zone and the provisions of the Commercial and Industrial Code.[33]
[33] Ibid para 6.16.
Ms Roughan notes that the intended site layout does not provide for any setback from the rear boundary, resulting in a large expanse of blank wall (one storey high, nearly the entire width of the block at approximately 70 metres in length) at the residential interface. This is said to be at odds with the specific outcomes of the Local Retail and Commercial zone and the Commercial and Industrial Code which seek the maintenance of amenity and character having regard to building heights, boundary clearances and landscape treatment, and, more specifically, a “spacious/transitional character” between residential and commercial activities. Acceptable solutions in the codes anticipate that buildings may have a four-metre setback and may be built to the boundary, when new works and uses do not have a detrimental impact on amenity and character of adjacent sensitive land uses. Ms Roughan believes that a very long building wall along the residential interface does not provide for a spacious transition, nor a built form that is compatible with the existing or likely future low density residential character. Built to boundary outcomes (particularly where of a considerable length) are seen as more appropriate and more typical for sites which adjoin other commercial or non-residential land.[34]
[34] Ibid, para 6.17.
Mr Bullen notes that the specific outcomes of the Local Retail and Commercial zone and/or the Commercial and Industrial Code provide that:
“(a) where new works and uses do not have a detrimental impact on amenity and character of adjacent land uses, buildings are able to be built to side and rear boundaries;
(b) that the building layout minimises the potential for crime, vandalism and fear and enhances personal safety and the individual’s perception of personal safety;
(c) the design of the development avoids the creation of potential concealment points.”[35]
[35] Ibid, p8, para 6.18.
Mr Perkins considers that in assessing the residential interface issue it is relevant to note that 2 Greenham Street appears to operate as part of the existing centre by virtue of a connected driveway and an area of hard stand at the rear of the lot. He also notes that the adjoining lot in Hayes Street is oriented along that street rather than having its long boundary contiguous with the site. This means that the house is set well away from the common boundary. Mr Perkins notes that the parking and service area for the existing centre is located at the rear of the shops at the residential interface and there is no present buffering or screening. He observes that 59 Raceview Street is adjoined by the existing centre and the connected driveway and is directly opposite the ingress/egress of the shopping centre located at the opposite side of Raceview Street.[36]
[36] Ibid, p8, para 6.15 (sic).
Mr Perkins and Mr Bullen agree that the proposed zero lot line solution will create a clear interface between residential and non-residential activities. However, Ms Roughan contends that the adjoining land is of a low density residential character and the planning scheme intends that any future use or redevelopment of those sites would be for such purposes. The current proposal, in Ms Roughan’s view, does not propose to continue any use of 2 Greenham Street for centre purposes, should such use exist at present. The adjoining land, it is suggested, should reasonably expect protection of its future residential character and amenity in accordance with the Planning Scheme. Ms Roughan also notes that design for crime prevention can be addressed satisfactorily in developments involving setbacks.
In attempting to reconcile the differing opinions of the town planning experts in relation to impacts on residential amenity, it may be noted that the proposed western wall on the western side would not be built to boundary but will be setback approximately 600 millimetres to the common boundary with 2 Greenham Street. Whether this is fortuitous, as suggested in the written submissions of counsel for the respondent, this small setback is likely to have some positive effect on residential amenity. I accept that the setback is too small to permit any back of house activities or, indeed, any human activity between the wall and the common boundary, but it is sufficient to permit the establishment of vegetation on the trellis and the western boundary of the subject land. It is reasonable to think that appropriately chosen and adequately maintained vegetation will result in a softening of the visual impact of the wall in that location.[37]
[37] The wall is anticipated to be of approximately 3.5 metres in height, depending on the degree of excavation required in that area.
The existing residence at 2 Greenham Street is setback approximately five metres from its eastern boundary, thus creating a spacious transition between the residential use and the proposed business use on the subject land. Thus, there is no conflict with the provisions of clause 12.7.5(2)(a) of the Planning Scheme which specifically contemplates interfaces between residential uses and higher impact uses. Furthermore, I note that clause 12.7.5(3)(b)(iii) apparently acknowledges that built to boundary walls can exist without having a detrimental impact on the amenity and character of adjacent sensitive land uses such as residential uses.
It may also be accepted that the acoustic wall built to boundary would provide greater certainty with respect to managing acoustic risk.[38]
[38] Transcript, p5-9 lines 1-10.
A person approaching the intersection of Greenham Street and Raceview Street from the west would be aware that he or she was approaching the major neighbourhood centre, but would find his or her approach marked by a wall screened by vegetation where back of house activities associated with the proposed development were precluded by the small setback.
In my view there are no visual amenity impacts associated with the near to boundary wall which would warrant refusal of the proposal.
Noise
The acoustics experts, Mr King and Ms Richardson, were able to agree that, subject to variation of approval condition 34(f)(ii) and compliance with the requirements of the development approval, the proposed development is expected to comply with the appropriate noise and air quality criteria for on- and off-site impacts. The experts note that the existing retail activities at the proposed development site and the existing retail centre opposite the proposed development site currently do not operate during the night time period. The proposed development, therefore, introduces a change in noise character and noise emissions during the night time period for this locality. These changes relate to both on- and off-site vehicle noise emissions and noise from patrons in external areas at night. The requirement in the Development Approval for traffic calming measures on Greenham and Hayes Streets also introduces a change in the character of noise emissions for through-traffic movements on these streets.[39]
[39] Joint statement of noise and air quality experts, p6, paragraphs 23 and 24.
Ms Richardson expressed a view that in the context of the overall impacts of the site during the period from 10pm to 6am, the change in level and character of noise emissions on the surrounding area may be relevant to the overall analysis of the merits of the proposal.[40] However, Mr King was of the opinion that any change in noise level and character experienced by residents on Greenham and Hayes Streets will be minor and within the reasonable expectation of residents on local streets which provide through-access to Raceview Street as well as access to the existing local centre. I accept Mr King’s view in this regard which finds support in the evidence of the traffic experts and in particular that of Mr Rytenskild. Furthermore, as Mr King observed, whilst the tenancies in the existing retail centre do not presently trade during the night period, they would have potential to do so with corresponding potential for noise and traffic generation on surrounding streets at night time.[41]
[40] Ibid, paragraph 25.
[41] Ibid, paragraph 26.
Counsel for the appellant in his written submissions has suggested that the conditions 5(d) and 5(e) concerning hours of operation may be unlawful. Counsel has submitted that those proposed conditions of approval offend the principle of finality and that it is inappropriate to impose such conditions which defer a decision (which ought to be made now) in respect of such a significant aspect of the proposed developments. It should be noted, however, that lawfulness of these conditions was never an identified issue in the appeal and that lawfulness was never raised in any trial reports or joint reports. Counsel for the co-respondent complains that no notice whatsoever was given of any intention to raise lawfulness as an issue and that the first time the point was articulated was when the appellant’s submission was received some two weeks after the evidence in the appeal had been completed. In my view the conditions can be redrafted to overcome any deficiency at a later stage as suggested in the written reply of the co-respondent to the submissions of the appellant. I am unable to accept that the finality issue lies “at the heart of a large portion of the concerns raised by the local residents” since it was never raised.
I am satisfied that there are no noise impacts which would warrant refusal of the application.
Anti-social behaviour
Some little time was occupied during the hearing of this appeal by considering the possible impacts of anti-social behaviour associated with the proposed service station and shop. The intent of the proposal is to provide a modern and convenient facility for people to purchase convenience-type items when the need arises, or to purchase fuel from the service station. Thus, there is likely to be a mix of uses catering for a broad spectrum of customers in a well-lit and secure environment. It should be noted that it is not proposed to include a hotel or tavern component within the subject development which may be expected to give rise to rowdy or anti-social behaviour on the part of pedestrians or occupants of cars. The suggested threat of anti-social behaviour is of insufficient weight and cogency to further warrant its consideration as an adverse impact on amenity.
Traffic engineering matters
Condition two of the Negotiated Decision Notice dated 24 July 2009, states that “[t]he proposed development of the subject site shall be undertaken generally in accordance with the following plans…” The site plan referred to is Drawing Number DA100, Project 08135 (REV E) Sheet 01. The final site plan relied upon by the applicant is Exhibit 27, being Drawing Number SK04 Revision E Sheet 01 prepared by TRG[42] (which incorporates the changes shown on Exhibit 26). That plan incorporates some detailed design changes and is generally in accordance with the approved plan. Ultimately, approval is sought for this final plan.
[42] TRG Queensland Pty Ltd ABN 91 119 365 883.
The traffic related issues raised in the Notice of Appeal generally relate to:
(1) the impact of proposed development traffic upon the amenity of the local residential area;
(2) the adequacy of the proposed on-site parking and servicing arrangements;
(3) the layout of the service station with respect to traffic circulation, queuing and vehicle manoeuvring; and
(4) the design of the proposed entry driveway off Raceview Street
With respect to (1) above the traffic experts[43] expressed conflicting views with respect to the adverse impacts upon the amenity of the surrounding residential area by reason of the proposed hours of operation. Mr Rytenskild considered that the proposed development is unlikely to general an excessive volume of traffic on surrounding residential streets, particularly during evening periods. While conceding that residents located to the west of the site are likely to travel to the site via Hayes Street and Greenham Street, he felt that such movements would be occasional. Mr Rytenskild pointed out that in the absence of the proposed development, such residents would generally use these streets to access the existing commercial development opposite the subject site or other commercial uses along Raceview Street. Data provided by the prospective service station and convenience retail tenant (7 Eleven) indicates that the traffic generation of the development would be relatively low during evening periods. Mr Rytenskild accordingly was of the view that the resultant increase in traffic on local residential streets will be minor and not cause a significant impact upon amenity.[44]
[43] Mr Rytenskild of Carter Rytenskild Group, Traffic and Acoustical Consultants and Mr Holland of Holland Traffic Consulting Pty Ltd.
[44] Joint Expert Report – traffic, p25-6.
Mr Holland expressed the view that due to the location of the site with respect to the road system in the general area, and the proposed access arrangements to the site, traffic flows in Greenham Street and Hayes Street will increase as a result of the development both during and outside normal business hours. Mr Holland commented that he considered it significant that from the viewpoint of residents of those streets, a possible future limitation on hours of operation of the development, as contemplated in the conditions of approval, appears to be outside the control of those residents. Although Mr Holland acknowledged that traffic flows in Greenham Street and Hayes Street during evening hours occurring as a result of the development are unlikely to be of specific concern from a “narrow” traffic engineering perspective, nevertheless the increase in traffic flows in those streets associated with the development is likely to be marked and potentially highly noticeable by residents.
It should be noted that speed restriction devices are proposed in both Hayes and Greenham Streets.[45] The purpose of such devices is not to cause drivers to slow down and speed up but rather to regulate speed in long streets such as Hayes and Greenham.[46] I accept that in ordinary events it is unlikely that such devices would cause drivers to brake to any noticeable degree.[47] I further accept that the additional traffic generated by the proposed development in Hayes and in Greenham Streets would be very low and probably no more than three per hour, which in traffic engineering terms may be said to be negligible.[48] I do not accept that the increase in traffic flows in Greenham and Hayes Street associated with the development will be marked and highly noticeable by residents.
[45] The need for speed control devices in Hayes Street and Greenham Street (as required by the respondent Council) are not triggered by the proposed development. Such are considered to be desirable, by Council, under current conditions due to the existing length and alignment of those streets. See Joint Expert Report – Traffic, p27.
[46] Transcript, p2-46 line 10.
[47] Transcript, p2-47 line 8.
[48] Transcript, p2-47 line 45.
The traffic experts have also expressed conflicting views as to whether the proposed development is likely to result in motorists using adjacent residential streets in order to access the site with consequential impacts upon residential amenity. Mr Rytenskild considers that the proposed development will not significantly impact upon the local street network for the following reasons:
(1) the type of development proposed is such that the majority of trips generated will already be on the network for another purpose. In other words, they will be “drop-in” trips;
(2) the scale of the proposed development is such that the resultant traffic generation will be relatively low and insufficient to cause excessive volumes of traffic in residential streets;
(3) the residential catchment located to the west of the site is relatively small and there are other competing uses in the area which will cause convenience retail trips to be distributed throughout the network rather than to be focused on the subject site.[49]
[49] Joint Expert Report – Traffic, p26.
In my view Mr Rytenskild’s reasoning in this regard should be accepted. As he points out in the joint report of the traffic experts the majority of the subject site is already used and approved for commercial use. The traffic generation of the overall development is not significantly higher than that of a Code Assessable development on the subject site.[50]
[50] Ibid, p27.
Mr Holland expressed the view that the site is only readily accessible to “drop-in” trips for those already travelling in a northbound direction along Raceview Street. He considers that access to the site from the north, and particularly from the northwest, would be most readily achieved by use of Hayes Street. Similarly, egress from the site towards the northwest and west would most readily and conveniently involve travel via Greenham Streets. Mr Holland considered that destination traffic generated by the development having a northwest, west or southwest orientation would be expected to utilise Greenham and/or Hayes Street in accessing the development. He stated that the introduction of through traffic, or commercial oriented traffic, into residential streets is generally accepted as poor traffic, for reasons related to both safety and amenity, and as a matter of principle should be avoided wherever possible.[51]
[51] Ibid, p27.
Although I accept that in general terms the introduction of commercially oriented and through traffic into residential streets is undesirable, the scale of development of the proposal in my view is most unlikely to cause excessive volumes of traffic in nearby residential streets. I do, however, share Mr Holland’s concern that the residents of Hayes Street and Greenham Street appear to have had no ability to submit adverse comment regarding the installation of speed control devices in those streets.[52]
[52] Ibid, p27. Proposals to install speed control devices in these streets were not known at the time the development proposal was advertised. Submissions regarding the development were made in November 2008 while the first documented mention of the installation of traffic-calming devices appears to be in the report prepared by CRG dated 12 February 2009.
Both traffic experts agreed that the design of the entry driveway off Raceview Street should be modified so as to improve the safety of pedestrians and cause vehicles to enter the site at a slower speed. The modified driveway alignment and design shown in Figure 1 on page 28 of the joint expert report – traffic is, in my view, satisfactory with respect to pedestrian safety. I accept that “No Entry” signage should also be installed to discourage motorists from exiting the site directly to Raceview Street. Mr Holland is concerned that vehicles departing from the shop-related parking spaces south of the driveway may use the Raceview Street access irrespective of such signage. Should this occur the likelihood of queuing on Raceview Street of vehicles attempting to enter the site will increase. This is so particularly where vehicles proposing to enter the site find that their access to fuel bowsers is blocked by vehicles stopped while awaiting exit direct onto Raceview Street. However, in my view, if the “No Entry” signage is of an appropriate size and design, very few motorists would seek to exit the site directly to Raceview Street. It is difficult if not impossible to design access and egress routes to cater for the wilfully stupid driver who is determined to ignore directive signs.
The provision by the proposed development of adequate space to accommodate fuel tanker operations without impacting upon the safety of traffic operators both on the subject site and on adjoining roads was the subject of some debate during the hearing of this appeal. Mr Rytenskild is satisfied that a fuel tanker will be able to access and manoeuvre through the site satisfactorily and without adversely impacting upon the operation of the adjacent roads. He accepted that the proposed pavement widening in Greenham Street, which is required by the respondent as a condition of approval, will allow fuel tankers to exit the site and then turn into Raceview Street without causing vehicles entering Greenham Street to queue onto Raceview Street.
Whilst agreeing that there is probably adequate queuing space in Greenham Street as a result of the proposed pavement widening, Mr Holland nevertheless questioned the acceptability of the situation thereby arising where a driver turning left from Raceview Street into Greenham Street while the path of that vehicle is blocked by a fuel tanker fails to stop in time and collides with a side of the tanker. In other words, the fuel tanker, while awaiting entry to Raceview Street, must be stopped in a location where the onus for the undertaking of appropriate avoidance action is placed entirely on the driver of another vehicle. Mr Holland also notes that the entry path of the fuel tanker as depicted in Figure 2 of the Joint Expert Report - Traffic[53] involves instantaneous application of steering lock, which in a practical sense can only occur while the vehicle was almost stationary. That is, the manoeuvring paths depicted in Figure 2 require that the fuel tanker come to a virtual halt while standing wholly upon the Raceview Street carriageway. This, in Mr Holland’s view, is an undesirable outcome, particularly where the carriageway is too narrow to allow a following vehicle to swing around and pass the stationary truck.
[53] Ibid, p29.
In response to Mr Holland’s concerns, which in my view are well-founded, Mr Rytenskild prepared various amended plans which, ultimately, resulted in the further revised plan of layout (Exhibit 27). It should be noted that this plan involves the consumption of public land for road widening in Greenham Street which will reduce the width of the footpath to approximately three metres (when the minimum standard is four metres), and requires a prohibition of parking in Greenham (which prohibition does not currently exist). It is apparent that there will be very little margin for error on the part of a fuel tanker driver in that the passage of the wheels of the truck and/or trailer will be required to travel immediately adjacent to curbs. Nevertheless no-one has suggested that such near-perfect manoeuvring of a fuel tanker is not possible to achieve or even unlikely to be able to be achieved.
Proposed Site Plan as per Exhibit 27
I do not accept that the outcome is an entirely unsafe one if the driver of the fuel tanker manoeuvres his vehicle so that no part of the tanker will remain on the wrong side of the road as the driver waits at the intersection of Raceview Street and Greenham Street prior to completing a left-turn into Raceview Street. Of course, the potential for a collision to occur cannot be entirely discounted but, bearing in mind the infrequency of fuel deliveries to the site (twice per week) and the very low speeds involved of vehicles exiting from the service station into Greenham Street and the clear visibility afforded to drivers turning left from Raceview Street into Greenham Street the potential is not such as to warrant refusal of the development application.
With regard to Mr Holland’s concern that the layout of the service station bowser area would result in queuing onto Raceview Street, and that the carriageway south onto the existing road widening outside the existing commercial development on the west of Raceview Street was of insufficient width, I am of the view that an approval should be conditioned so as to require the road widening which presently exists to the south of the proposed Raceview entrance to the proposed development to be continued south to the alignment of Hayes Street.
Conclusion
In my opinion there is no conflict with the Planning Scheme when read as a whole in the context of the appropriateness of land use. The proposed service station will not involve development that will adversely impact upon the amenity and character of the surrounding area. With the suggested road widening in Raceview Street and Greenham Street as outlined in this judgment the proposed service station development will not involve inappropriate and unsafe traffic arrangements. The evidence establishes an objectively perceived need for the development as described in paragraph 19 of this judgment. The appeal is dismissed. The matter is to be adjourned to allow the parties to formulate appropriate conditions.
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