Wincam Developments No. 3 Pty Ltd v Brisbane City Council

[2004] QPEC 5

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wincam Developments No 3 Pty Ltd v Brisbane City Council & Anor [2004] QPEC 005

PARTIES:

WINCAM DEVELOPMENTS NO 3 PTY LTD
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
STATE OF QUEENSLAND
Co-Respondent

FILE NO:

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

18 March 2004

DELIVERED AT:

Brisbane

HEARING DATES:

23-27 February 2004

JUDGE:

Skoien SJDC

ORDER:

Appeal to be allowed; adjourned for conditions

CATCHWORDS:

Retail warehouse; meaning of “overwhelming need”; commercial use; traffic.

COUNSEL:

Mr R Litster for appellant

Mr T Trotter for respondent
Mr W Cochrane for co-respondent

SOLICITORS:

McCullough Robertson for appellant
Brisbane City Council Legal Practice for respondent

Crown Law for co-respondent

1. This is an appeal against the respondent Council’s deemed refusal of a development application by Wincam which seeks to establish an “Officeworks” on land at Oxley at the intersection of the Ipswich Motorway and Oxley Road.  Wincam also seeks development approval for the reconfiguration of the land into two lots.

The Site

1. The site, which contains about 7450m², is L shaped with frontage to the Motorway service road and to Oxley Road.  It is now, and has been for some years, used as a plant nursery.  The Oxley Hotel is on the actual corner of those two roads with the site hugging it on two sides.  Both of those roads are arterial roads; the former being under the control of the Department of Main Roads (“DMR”), the latter being under the control of the Council.

1. Left in/left out access to and from the service road is presently provided to the site in the form of a single 7.4 metre two-way driveway.  There is also left in/left out access to and from Oxley Road.  Access is also provided by these driveways to the hotel.  A left out access, closer to the actual intersection, is provided to the service road for the hotel bottle shop.

1. The site is included in two designations under the City Plan, those designations being Emerging Community area and Low Density Residential.  The land is also included within the boundaries of the Western Gateway Local Plan and is within the Wacol Industrial Precinct constituted under that Local Plan.

1. The Motorway runs in a generally east-west direction, Brisbane being to the east.  It intersects with Oxley Road from the north and Blunder Road from the south.  The site lies in the north-western quadrant of the intersection.  Further to the west, Douglas Street approaches the Motorway from the north and becomes Rudd Street to the south.  The site has a small frontage along its northern boundary to Boodera Street.  The northern end of Boodera Street intersects with Munbilla Street which runs in an east-west direction until it intersects with Jutland Street which runs north-south and intersects with the service road on the northern side of the Ipswich Motorway.  To the north of the site lies a residential area which has a well maintained and pleasant stock of houses which presently enjoy a good level of amenity.

The Proposal

1. Wincam intends to develop the site for an Officeworks with a gross floor area of about 1,600m².  It is proposed to subdivide the site so that the Officeworks development will occupy an allotment having an area of about 3,500m² with associated car parking of about 40 spaces.

1. Three catalogues which were tendered demonstrate the nature and variety of goods sold.  It is common ground that the operations of Officeworks are retail but there is a relatively narrow dispute about the extent to which other components of the operation may influence its proper characterisation.  The business has intended trading hours of 7.30am to 9.00pm during week days and 9.00am to 5.00pm Saturday and Sunday.  It is a business which depends on highway exposure.  It is publicised by newspaper advertisements as well as pamphlets placed in letter boxes.  It offers delivery services for larger purchases and provides a comprehensive range of items likely to be needed both in the home office and in commercial offices.  While, like any other shop, the items carried may not be to everyone’s taste, there is offered a selection of virtually every “office” type of item.  It covers the field.  That was the thrust of the evidence of Mr Norling whose report, exhibit 3, gives a comprehensive list of the types of goods sold.  The presentation of goods gives the impression of a retail warehouse, the bulkier packages of goods being stored on high shelves with smaller packages on shelves readily accessible to the public.  It is of the style that one is accustomed to see in the large retail warehouses such as Bunnings or Super A Mart.  Little additional storage area outside the premises is required because of the “in shop” storage.  In my view it fits comfortably within the description “retail warehouse” as generally understood in our community.

1. It is proposed that the existing left in/left out access to and from Oxley Road will be retained, and that a new “Type C4” driveway crossover will be provided to the service road, with an entry of 9.0 metres width separated by a 1.5 metre median from an egress width of 7.5 metres.  This form of access has been developed in consultation with DMR to provide long-term access to and from the land and to the hotel.

1. The proposed site layout makes provision for road widening of 5 metres along the site’s frontage to the service road which will come about when DMR upgrades the motorway in the relatively near future.  Car parking has been designed for a “Class 3 Use” providing the 2.6 metre wide spaces and a 7 metre wide “blind” aisle at the front of the building (this aisle width is consistent with a “Class 4 Use”).  The side aisle (running north-south) is designed at 6.5 metres wide.  The aisle widths exceed, and the bay widths meet, Class 3 requirements.

1. It is proposed to construct a 2.4 metre high acoustic fence along the northern boundary of the land.  That acoustic fence is to be free of gaps, save for a 1.5m gap which is to provide for pedestrian access from Boodera Street.  It is proposed to provide landscaping along the fence line.

1. A loading bay is provided at the northern end of the proposed building.  Plant is intended to be located on the roof adjacent to the south-western corner of the building, away from residential development that adjoins the land.

1. The application was supported at the hearing by two immediately adjoining residents, Mr Soloman and Mrs Tasker.  Their support has continued since they were made aware of the application and wrote to their local councillor supporting it. The letter of support was also signed by the owner and occupier of 1221 Oxley Road, the only other residential property which shares a common boundary with the land.  They believe that their amenity will be substantially improved by the proposed development because at present the site is the source of frequent noise nuisance.

1. There is no evidence of community opposition to the proposal.  Indeed, the evidence of Mr Scott, Wincam’s representative, indicates co-operation between the appellant and local residents.  I regard this as an important consideration in this appeal as is the lack of opposition from local residents on amenity grounds.

The Issues

1. The issues in the appeal may be summarized as follows:

1.        Conflict with the City Plan

2.        Conflict with the local area plan

3.        Traffic considerations access

4.        Non-residential traffic in residential areas

5.        Parking

The City Plan

1. Relevant definitions in the City Plan are:

“Shop:  a use of premises for the display and retailing of goods, and personal services such as betting, hair and beauty care, Laundromat and dry-cleaning shop fronts eg supermarket, department store, show room, retail warehouse, liquor store, place for the hire of domestic items, store, market or salon.”

“Centre Activities:  where in a multi-purpose centre or where specified in a local plan, use of premises for any of the following group of uses are termed Centre Activities:

·    …….

·    Shop”

1. The City Plan does not define the term “retail warehouse”, the category in which I place the proposed Officeworks, for the reasons I have canvassed in para [7] above.

1. The Strategic Plan in Chapter 3, and particularly in Chapter 4, contains a number of provisions which emphasise the importance of the centre hierarchy, “centres” being those traditional suburban clusters of shops, offices and the like.  Mr Norling has identified 11 within the general area (that is the south western suburbs) many of which are within the trade catchment area which he (and Mr McCracken) identify for the site.

1. Bearing in mind that the definition of “centre activity” includes a shop and the definition of “shop” includes a retail warehouse (see para [15] above), I was particularly referred by Mr Trotter, counsel for the Council, to s.4.4.2.6 of the City Plan which is:

“4.4.2.6 Out-of-Centre development

The plan strongly encourages Centre activities to locate in Centre and strongly discourages the location out of Centre.

Out of Centre development of centre activities is inconsistent with the intent of the plan unless an overwhelming community need is demonstrated.  Overwhelming community need will have to be demonstrated through preparation of a Commercial Impact Assessment report as detailed in the Commercial Impact Assessment Planning Policy…

Where an assessment of overwhelming community need demonstrates that it is not possible to accommodate a Centre activity within the Centre within the life of plan, preference will be given to that development occurring at the edge of an existing centre, rather than in a stand alone or more isolated location.

Small scale shop or office activities of 250m² gross floor area or less are provided for within residential areas where they meet local community needs.

While it maybe attractive from a commercial perspective to locate retail warehouses outside Centres, this will only occur as a last resort where the proposed out of centre locations satisfies the overwhelming community need test set out in the Commercial Impact Assessment Planning Scheme Policy.”

1. On the evidence I am satisfied that there is no sufficient land available in any of the existing centres within the relevant area for an Officeworks, or for that matter, at the edge of any of them.

1. The importance of the establishment of retail hierarchy was emphasized by Quirk DCJ in Overton & Anor v Redcliffe City Council (2000) QPELR 250, in these terms at 253:

“The provisions with which are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development.  As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn.”

“The attainment of an effective and sustainable hierarchy of shopping centres should be acknowledged as a proper town planning principle which is to be achieved in the interests of orderly development, increased accessibility and access, greater economic efficiency and predictability in investment opportunities.  It is against this background, then, that the relevant provisions of the planning documents are to be assessed.”  (Newton DCJ in Lewiac v Gold Coast City Council (2003) QPELR 385, 390(19)).

1. The last paragraph of 2.4.4.2.6 (para [18] above) refers to the Commercial Impact Assessment Planning Scheme Policy (“Commercial Policy”).  Three excerpts from this are notable.  In the introduction these two paragraphs appear:

“Where a proposed development is found to satisfy the test of overwhelming community need as set out in this policy, but cannot locate within an existing Centre within the life of the Plan, the preferred location for such development is on sites at the edge of Multi-purpose Centre in circumstances where the development will not entail major impacts on amenity and can be integrated with the existing Centre.

The only possible exception to this is development of the scale of retail warehouses in excess of 2,000m² gross floor area.  Location in other than in-Centre or edge-of-Centre locations will only be considered as a last resort where overwhelming community need has been demonstrated and no other alternative suitable in-centre or edge-of-Centre location is available.”

1. The proposed Officeworks is less than 2000m² (1600m²) but that does not seem to me to be particularly important.  There is no room in or at the edge of any relevant centre even for this smaller retail warehouse.  It would seem very odd if a large development were to be permitted in specified circumstances but a smaller one were to be denied.

1. The third excerpt from the Commercial Policy is found in s.2.1, under the heading Community Need and is:

“This summary is to provide a conclusion of the community need for the proposal and the impact of the proposal on the Plan.  In order to reach this conclusion the investigation would need to involve undertaking an assessment of the results of the following surveys and analysis to determine whether or not there is an overwhelming community need for the development, which cannot be met within the life of the Plan in an in-Centre location.”

1. The witnesses and counsel appear to share the difficulty I have in identifying a commercial development for which a community within the City of Brisbane would feel an “overwhelming” need.  “Overwhelming” is generally defined by the dictionaries to mean something like “irresistible by force of numbers, influence, amount etc.” (Concise Oxford Dictionary).  That would seem to require something approaching a complete absence of an existing development of the type proposed, the development being of a type vital to the conduct of life.  An Officeworks is not such a development and I do not know what might be.  However I note that the excellent Encarta World English Dictionary gives, as a third meaning of “overwhelming” “extremely large in amount or proportion” and it seems to me to be obvious that the word as used in the City Plan must have been intended to mean something like that.  So that is the meaning I ascribe to it in s.4.4.2.6 and in the Commercial Policy.

1. On the evidence there are various shops which sell some of the things which an Officeworks sells scattered through the site’s catchment area and beyond that within reasonable travelling time and distance of the site.  However there is no shop in that overall area which covers the field as an Officeworks does and certainly no competing retail warehouse.

1. As the concept of “need” is understood in planning cases, that is, something which will by and large improve the convenience and quality of life of the community (see for example Roosterland Pty Ltd v Brisbane City Council (1986) APAD 58 at 60), I have no doubt that in the circumstances set out in para [25] such a need exists and that the Officeworks would fill that need.  However whether those circumstances would qualify that need as a need which is “extremely large in amount or proportion” is a nice point.

1. With a good deal of hesitation I conclude that the need can properly be said to be extremely large in amount or proportion.  The evidence, my inspection of an existing Officeworks and notorious fact establishes that modern life requires the availability of all manner of electronic tools, not just of trade, but of domestic life.  Word processors, telephones, calculators, computers and printers are just a few examples of tools which are considered essential by a large proportion of the population.  Retail premises which offer comparison shopping for such things fill a modern need.  When to that is added the ability to comparison shop for stationary, office furniture, pens, pencils and all of the paraphernalia which accompanies daily life, the need to be filled is greater.  Indeed even cursory reference to the three Officeworks pamphlets, exhibit 14, establishes the extraordinary range of items stocked by Officeworks, the possession of which is commonplace and the use of which is widespread.

1. When that shopping is offered in small quantities or in bulk, for personal shopping or for telephone orders and delivery, the need to be filled is greater still and, I think, reaches the appropriate standard.  Thus the proposal does not conflict with the City Plan.

1. However, there is, I think a more obvious reason to find that the planning scheme does not forbid this development, but actually encourages it.  It comes from the provisions of a Local Plan, to which I now turn.

Local Plan

1. The site lies within the Wacol Industrial Precinct of the Western Gateway Local Plan, which, in its introductory paragraph, states:

“This local plan contains specific additional local planning requirements.  Where it conflicts with the generic requirements of the City Plan, this local plan prevails”.

and s.3.5 of that Local Plan which relates to the Wacol Industrial Precinct states:

“Retail warehousing development maybe supported in the vicinity of the intersection of Blunder Road and the Ipswich Motorway.  Low impact industrial and commercial activities will be supported in the area fronting the Ipswich Motorway Service Road, between Oxley Road and Douglas Street, Oxley.  Industrial development in these areas should not generate high volumes of traffic.”

1. The first debate on the applicability of that provision was whether, by reference to “the intersection of Blunder Road and the Ipswich Motorway”, its terms are to be confined to the land along Blunder Road where it intersects with the motorway, that is, confined to the southern side of the motorway (which does not include the site), or whether it extends to the land on the northern side of that intersection.  It must be remembered that Blunder Road, which approaches from the south, ceases at the motorway.  The road which is its direct extension across the motorway and which heads north is Oxley Road.  In other words, does the provision refer to a T junction or is it a shorthand reference to the Blunder Road/Oxley Road intersection with the motorway.

1. It seems to me to be probable that the latter was intended for these reasons.  First, land on the northern side of the motorway on each side of Oxley Road is nonetheless in the vicinity of (that is, close to) the point where Blunder Road intersects with the motorway.  Second, had it been intended to restrict the provision to the southern side of the motorway it would have been easy to say so.  Third, when one looks at the land uses which are actually on the northern side of the motorway in the vicinity of the intersection one sees on each side of Jutland Street a quite large light industrial (or commercial) uses, then heading east, the site, then the hotel, Oxley Road, then an Energex substation, then the Super A Mart retail warehouse.  In that company an Officeworks retail warehouse would not be incompatible.

1. There is another reason why I think that the Precinct provisions allow this proposed use.  It expressly allows “low impact … commercial activities” in an area which includes the site (see para [30] above).  There was general agreement that Officeworks could be fairly said to be “low impact”.  The question is whether it can fairly be said to be “commercial”.

1. I think it is a commercial use.  Although the word is not defined in the City Plan, the primary meaning of it (see Encarta Dictionary) is “relating to the buying and selling of goods or services”.  Officeworks buys and sells goods.  Finally, the City Plan’s Commercial Policy, in the passage cited in para [21] above explicitly directs where retail warehouses should be developed.  Table I of that Policy also gives, as an example of commercial development, a shop, a term which is defined to include a retail warehouse (para [15] above).  Thus the City Plan in relevant passages, treats a development of the Officeworks type, as a commercial use.

1. Mr Trotter sought to persuade me that the Officeworks was a retail, not a commercial use, by referring me to a reference in s.4.4.1 to “commercial, retail, cultural and community uses”.  That seems to me to be simply a list of uses without any intention to exemplify distinct or different uses.  In my view the first two clearly overlap just as one would think that cultural uses would overlap with community uses.  Perhaps there was also a desire to make it clear that a broad definition of “retail” and/or “commerce” was intended.  Similar comments can be made to the reference to “retail and commercial focus” in the Inala Precinct of the Local Plan.  Neither of these examples overcome the specificity of use identified in para [34] above.

1. Thus I have decided that the proposal does not conflict with the City Plan nor with the Local Plan which in my view encourages its location at this site.

Traffic Access

1. The existing interchange between the motorway and Oxley/Blunder Roads is a grade separated roundabout constructed over the motorway at the level of Oxley Road with on-ramps and off-ramps connecting the motorway to the roundabout for both eastbound and westbound traffic.  The current motorway access to the site is on the off-ramp for eastbound traffic, which has been generally referred to as the service road.

1. The dispute between the traffic engineers, Mr Viney for Wincam and Mr Brameld for DMR on the one hand and Mr Holland for the Council on the other, was not about access for the site to the existing service road.  The proposed access will be an improvement over the access which has in the past served not just the site but also the hotel (an arrangement which will continue, provided by proposed easements).  Nor was it about the proposed access to Oxley Road.

1. The dispute turned on the traffic arrangements which would persist once the DMR upgrades the motorway from four to six lanes.  At that time the Oxley Road/Blunder Road interchange will be converted from roundabout to signalised intersection, or more correctly, two closely spaced signalised intersections, one on the northern side of the motorway and one on the southern side.  The design for the off-ramp approach to this intersection (i.e., the “service road” along the front of this site) will require capacity for two right turn lanes to Blunder Road and a free left turn lane into Oxley Road.  This will require a 5m widening of the service road and the proposal plans for the site make allowance for that.  All that is likely to occur in five or six years’ time.

1. On the balance of probabilities I find that the signalised intersection will be designed to allow southbound traffic on Oxley Road to make a U-turn at the intersection and back-track to enter the site at its Oxley Road access point.  DMR has indicated that a U turn is to be incorporated in its plans for the intersection planned.

1. DMR is content in general terms (and subject to conditions which it has suggested) with the access proposed by Wincam for the service road and for Oxley Road and on the appeal supported Wincam on this issue.  I note the remarks of Newton DCJ in Pimpama Units v Brisbane City Council (1995) RPLR 334 at 341 and Byth DCJ in Wyatt v Albert Shire Council (1986) QPLR 62 at 65 to the effect that this Court should not simply abrogate its responsibilities on the issue of traffic to the DMR. I agree with that principle with the qualification that in this appeal, under IPA, DMR is a concurrence agency. In my view its attitude should accordingly be given careful consideration and should be entitled to considerable weight.

1. On behalf of the Council Mr Holland, its consultant traffic engineer, voiced objections to the proposed access.

1. The principal objection was to the access from the service road.  Whereas up to the present the access has apparently worked well, Mr Holland’s view is that the alterations to the off-ramp will make that access hazardous.

1. At present vehicles, travelling at 100 km/h, leave the motorway and are presented with only one lane for moving traffic all the way to the stop sign at the roundabout.  To the left of that lane is a kerbside lane which is separated from the traffic lane by an unbroken painted line.  The kerbside lane is available for parked vehicles and more relevantly for vehicles wishing to turn left into the site at its current access point.

1. When the motorway alterations occur, there will be three lanes in the off-ramp leading up to the traffic lights at Oxley Road.  A driver who wants to turn into the site will have to get into the extreme left lane of the three lanes, indicate, decelerate and turn into the site at a safely slow speed.  He is likely to have behind him other vehicles which have left the motorway (at 100 km/h) as well as, perhaps, vehicles using the service road from further west.  The drivers of these vehicles, if wanting to turn left at the traffic lights at Oxley Road, are quite likely to drive into the kerbside lane immediately, so that they would be behind the vehicle bound for the Officeworks access point.  Even though they see that vehicles’ indicator and brake lights operating those drivers may be misled into thinking the preceding vehicle is also heading for a left turn into Oxley Road.  Should the vehicle, instead, slow abruptly to turn into the Officeworks, Mr Holland considers the danger of a rear-end collision will be present.

1. That such a possibility exists cannot be denied but on balance I prefer the views of Mr Viney and Mr Brameld that the likelihood of such accidents is remote.  The available length in the off-ramp to position a yellow, advisory, 60 (possibly 50) sign, followed by the mandatory white speed sign as well as the clear sight lines should enable traffic movements to be made gradually and deliberately.  I see no reason why the normal driver intending to turn left into the Officeworks would not indicate in good time and slow gradually thus giving adequate warning of his intentions.

1. As Mr Viney and Mr Brameld pointed out, road layouts requiring manoeuvres virtually identical with those just described are quite common and, significantly, are even now being created by the Council on its roads.  Motorists seem to be adapting to them without incident.

1. The Oxley Road access also, but to a lesser degree even, could conceivably lead to a rear-end collision with a vehicle turning onto the site but again reasonably competent motorists should not experience this.

Traffic in Residential Streets

1. As I have said, it is more probable than not that DMR will permit U-turns at the new intersection to allow southbound Oxley Road traffic to back-track to enter the site at the Oxley Road access.  That manoeuvre is acceptable and I do not think it would cause many motorists to leave Oxley Road at an earlier point and rat-run the residential streets so as to be able to enter the service road, head east, and use the service road access.  In reaching that conclusion I bear in mind the fact that Officeworks will not be a large generator of traffic and that southbound Oxley Road visitors will, overall, make up a relatively small proportion of them.

1. There is the possibility that the gap in the acoustic fence referred to in paragraph [10] may encourage motorists to park in Boodera Street and then walk to the hotel or even to the Officeworks.  The gap is planned by Wincam for the convenience of residents of Boodera Street so if it is found that it actually causes a nuisance to those residents the operators of the Officeworks can simply close it off.

Parking

1. There was some debate of a minor nature about the adequacy of the width of the parking spaces, and of the positioning of a turning space.  I did not understand this to be a critical point and in any event, given the nature of the likely parking, it seemed to me that what has been proposed is reasonable.

Conclusion

1. The appeal will be allowed but for now I adjourn it to a date to be fixed to allow the parties to attempt to agree proper conditions of the development.