Wolter Group Holdings Pty Ltd v Brisbane City Council

Case •

[2011] QPEC 149

•

20 December 2011

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wolter Group Holdings Pty Ltd v Brisbane City Council & Anor [2011] QPEC 149

PARTIES:

WOLTER GROUP HOLDINGS PTY LTD (ACN 121 396 174) TRADING AS WOLTER CONSULTING GROUP AS AGENT FOR THE HERAN BUILDING GROUP PTY LTD (ACN 010 071 744)
(Appellant)

AND

BRISBANE CITY COUNCIL
(Respondent)

AND

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-Respondent by election)

FILE NO/S:

3568/09

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 and 14 December 2011

JUDGE:

RS Jones DCJ

ORDERS:

That the further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions. 1.          

I will hear further from the parties (if required) about the need for any further orders. 2.          

CATCHWORDS:

HEARING OF APPEAL – Application for preliminary approval to override planning scheme for a material change of use – application refused – traffic only remaining issue in dispute

Integrated Planning Act 1997, s 4.1.50(1).

Sustainable Planning Act 2009, ss 819(5), 819(6).

COUNSEL:

Mr C. Hughes SC with Mr J. Lyons for the appellant

Mr T. Trotter for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Brisbane City Legal Practice for the respondent

The co-respondent by election was excused from further involvement in the appeal

  1. This proceeding was initially concerned with an appeal against the decision of the respondent to refuse an application made by Wolter Group Holdings Pty Ltd acting as agent for the Heran Building Group Pty Ltd which raised a number of issues. However, by the hearing of the appeal only one issue remained, namely U-turn access arrangements for the site. For the reasons set out below, the orders of the court are:

1.          That the further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions.

2.          I will hear further from the parties (if required) about the need for any further orders.

Background

  1. On 27 June 2008 the appellant lodged an application for a preliminary approval to override the planning scheme of the respondent for a material change of use for a Centre Activity Outside Centre. The respondent refused the application and that refusal was appealed. The appellant bears the onus of establishing that the appeal should be allowed pursuant to section 4.1.50(1) of the Integrated Planning Act[1] 1997.

    [1]At the time the development application was lodged with the respondent the Integrated Planning Act 1997 was in force. Pursuant to sections 819(5) and 819(6) of the Sustainable Planning Act 2009 which repealed IPA this appeal has to be decided under IPA as if SPA had not commenced.

  1. The proposal involved the development of a relatively low key shopping centre located on the south-eastern corner of the intersection of Illaweena Street and Beaudesert Road, Drewvale.  As originally proposed, the shopping centre was to be made up of a supermarket, having a gross floor area of approximately 1,600 m2, and various other speciality shops, comprising a total gross floor area of 900 m2.  As at the date of the hearing of the appeal, the shopping centre was comprised of a supermarket, having a gross floor area of 1,030 m2, and nine individual speciality shops, ranging in areas but having an overall total gross floor area of 1,158 m2.  All of the shopping facilities are to be located in the southern section of the property, with car parking to the north, fronting Illaweena Street.[2]  The proposal is designed to conveniently serve its catchment’s needs for what was described as “top up” and “meal solution” shopping and impulse buying.

    [2]See Exhibit 2.

  1. The grounds for refusal centred around various alleged conflicts with the respondent’s planning scheme.  Had all of the reasons for refusal been required to be dealt with, the appeal would have occupied several court days and involved a number of expert witnesses.  However, through the highly regarded mediation service offered by this court and the bona fide efforts of all parties involved, the only remaining issue in dispute was the location of a U‑turn facility to provide access to the site from Illaweena Street.[3]  Illaweena Street is classified in the respondent’s City Plan 2000 as a suburban route sub-arterial road.  It has been recently constructed by the respondent and includes four traffic lanes (two east and two west), bicycle lanes, concrete pathways and medians.

    [3]See paragraph 3 of the mediation agreement at p 7 of Exhibit 3.

  1. At or about June 2013 the estimated resident population of the proposal’s catchment area is just under 3,300.  I was told during the conduct of the appeal that that date would roughly coincide with the likely time of the opening of the centre if it goes ahead.  According to Mr Owen, the urban economist and planner called on behalf of the appellant, the catchment area is dominated by dual income families that are “time poor” and less price conscious than most other shoppers.  That they are so time poor means that they tend to react negatively to any inconvenience regardless of whether it is more perceived than real.  And, as approximately two-thirds of the likely users of this centre would do so on returning from work,[4] if they considered it more convenient to stop at another centre on their way home they would.  There was no dispute that other shopping options exist in the locality. Such shoppers in Mr Owen’s opinion are often fickle and do not always act in a logical way.[5]

    [4]The other one-third being home-to-shop-to-home shoppers.

    [5]Transcript T1-31 LL 1-10 and T1-34 L 12.

  1. Notwithstanding the fact that the site is located on the corner of Beaudesert Road and Illaweena Street, all access to the proposal is via Illaweena Street.  That situation, together with the boundaries of the proposal’s catchment area, creates the necessity for the unusual U‑turn access arrangements for the site.

  1. According to the appellant, in order to minimise shopper inconvenience it is necessary to locate a U‑turn facility as near as practicable to the entrance to the centre.  Mr Viney, the traffic engineer relied on by the appellant, identified a site approximately 74 metres from the centre of the proposed access to the proposal.[6]  To use the words of Mr Beard, the traffic engineer relied on by the respondent, the introduction of a second median break for a single development to accommodate this facility would constitute an unjustifiable interference with the respondent’s entirely reasonable and clearly documented planning.[7]  According to Mr Beard, any U‑turn facility should be limited to that which is already available a further 75 metres or so to the east, opposite the intersection of Illaweena Street and Stockton Street.[8]  Mr Viney originally considered that U‑turns were not permitted at this location but he was wrong about that.

    [6]See Exhibit 8 p 9.

    [7]Exhibit 11 p 4.

    [8]The two U‑turn locations are conveniently shown on Exhibit 4.

  1. Mr Beard’s report states:[9]

“Clearly, the applicant would like the U‑turn facility to be as close as possible to the subject site.  However, unlike the difficulty of the alternative to a median break for right turn egress vehicles, the Stockton Street U‑turn would involve traversing no other major traffic routes or intersections, and would involve only approximately 155 metres of additional travel taking less than ten seconds at 60 kph.

In my opinion, the marginal inconvenience associated with the Stockton Street U‑turn is a direct consequence of the site suitability issues discussed in Section 2 of this report, and the less than ten seconds of additional travel time constitutes insufficient justification to reasonable [sic] warrant a change to council’s entirely reasonable, and clearly documented planning for this section of Illaweena Street.

Therefore, the proposed mid-block U‑turn facility is seen as unacceptable.”[10] (emphasis added)

[9]Exhibit 11 p 4.

[10]Mr Viney estimated that the extra travel time would be likely to exceed 10 seconds but the difference was only minor.

  1. It is of significance that Mr Beard does not identify any traffic safety issues associated with Mr Viney’s proposal.  In fact, Mr Viney contends that his proposal would result in a safer traffic outcome as it does not involve any conflict between those shoppers attempting a U‑turn and those drivers attempting to enter Stockton Street from the east or leave Stockton Street turning west. While I accept Mr Beard’s evidence to the effect that both locations provide an acceptable level of traffic safety I agree with Mr Viney that his solution would provide a safer traffic solution even if only to a relatively minor extent.

  1. At first blush Mr Beard’s assessment of the likely level of inconvenience seems reasonable.  However, it needs to be considered in the context of this particular proposal.  It was common ground that it was highly unusual, if not exceptional, for a shopping centre to have access involving a U‑turn manoeuvre.  Any such manoeuvre, regardless of the location of the U‑turn facility, generates some level of inconvenience in itself.  Also of significance is that, because of the location of the proposal within its catchment area, Mr Owen estimated that approximately 80% of the shopping trips would require use of the U‑turn facility.[11]  Mr West, the Queensland business development manager for the Independent Grocers’ Alliance (IGA), was of the opinion that the proposal was likely to attract more trade from outside of Mr Owen’s designated catchment area than he predicted, but that did not, as I understand the evidence, alter the fact that a significant majority of the shoppers utilising the centre would be required to use the U‑turn facility.

    [11]Exhibit 6 p 2, para 12(b).

  1. While Mr Owen accepted that the additional inconvenience associated with the location advocated for by the respondent would tend to be more perceived than real, and that it would likely only affect a small number of shoppers, it was nonetheless his opinion that the impact would still be significant.  He did not accept the suggestion that a sign indicating a U‑turn facility some further 75 metres to the east would sufficiently address the situation.  His opinion was that the U‑turn facility had to be as close as practicable to the entry point to the shopping centre.

  1. Mr Owen’s concerns about the viability of the centre was reinforced by the evidence of Mr West.  According to Mr West, there are over 1,000 IGA stores presently operating in Australia.  Mr West’s evidence was also to the effect that shopper convenience, including convenient access, is of primary importance to a shopping centre such as that proposed.  In his statement,[12] Mr West relevantly says:

“The convenience of a centre’s location is ranked by our customers as their number one priority.  It is ranked well ahead of price (which was ranked as number three), and IGA is very conscious of ensuring its stores are as convenient to its customers as possible.

Obviously the efficiency of traffic movements to and from a shopping centre are of fundamental importance.

I have been told by the Heran Building Group that the Brisbane City Council and Department of Transport and Main Roads have refused to agree to a right turn in access to the centre.  This detracts from the convenience of the centre to a serious degree which IGA has made clear to the Heran Building Group.  This concern can be addressed, to a point, by the location of a mid-block U‑turn between the entry/exit point and Stockton Street to allow vehicles travelling east on Illaweena Street to access the site by conducting a U‑turn as close as is possible to the location of where they would have turned right into the site (in any event) and at a point clearly visible from that entry/exit point.”

[12]Exhibit 9 paras 11-13.

  1. Mr West also was of a similar view to that of Mr Owen, namely that customer choices are often based on perception or impression rather than reality.  He observed “Impression is not always based on a rational view of the world or a careful study of the additional driving time to access the site.”[13]  According to Mr West, notwithstanding IGA’s current interest in the proposal, it would not maintain interest if the U‑turn facility location advocated for by the respondent becomes reality.  In his evidence-in-chief Mr West acknowledged that while he could not speak on behalf of other store operators, as far as IGA was concerned it would ‘walk away’ from the site. The loss of a potential tenant such as IGA is of course significant in itself, but it also has flow on ramifications.  According to Mr Owen, the inability to secure an anchor tenant such as IGA would have a negative impact on speciality shop interest.[14] A matter about which Mr West also agreed.

    [13]Exhibit 9 para 15(a).

    [14]T1-38 LL 1-10.

  1. Mr Owen accepted that he had no empirical evidence to support his opinion.  That is not surprising, given the scarcity of U‑turn access to shopping centres.  However, his expert opinion based on experience was not really shaken in cross-examination.  Further, his evidence was in many material respects supported by the evidence of Mr West[15] and was not challenged by contrary expert testimony. I accept Mr Owen’s evidence about the likely impacts of the more remote U‑turn facility, and Mr West’s evidence that a small loss of trade (between 5% to 10%) could affect the viability of a convenience (as opposed to destination) shopping centre such as that proposed.

    [15]Need for proximate access (Exhibit 9 paras 11-13, T2-3 LL 40-50); a sign identifying the U‑turn facility at Stockton Street would not be an acceptable solution (T2-14 LL 35-55); a small drop-off in trade (5%-10%) would likely jeopardise the viability of the proposal (T2-18 LL 2-50); the existence of a strong head tenant such as IGA is important to attracting other viable speciality stores (T2-7 LL 5-20).

  1. During the course of the hearing on 6 December 2011, Mr Trotter, counsel for the respondent, tendered a letter[16] from the respondent to the appellant’s solicitors.  That letter relevantly states:

“As you are aware, the evidence of Mr Beard will be that the mid-block turn proposed by the Appellant is unacceptable, notwithstanding Mr Viney’s evidence to the contrary.

I note that the Court has no power to compel the Council to build, or allow to be built, the mid-block U‑turn facility in its road reserve.  Further, I am instructed that the Council is fundamentally opposed to the proposed mid-block U‑turn facility. 

In these circumstances, the Council is of the view that it is therefore a futility for the appeal to proceed on this basis.” (emphasis added)

[16]Exhibit 13.

  1. After tendering the letter Mr Trotter “qualified” its contents.  He said:[17]

“Now, whilst the position stated by my client, the Council, in that letter remains correct, I am bound to qualify it in this respect.  If the Court were to at the end of the day make a finding on the basis of the traffic evidence, that is on the basis of Mr Beard’s report and Mr Viney’s report which were not available when this letter was originally composed, to the effect that there were safety or overriding considerations which required the intersection or the U‑turn to be at mid-block rather than at Stockton Street.  It is a matter that my client would take very seriously if a finding of that kind was made.

However, I mention that because the terms of this letter are plainly intended to indicate that on the good faith principle, if there is a very good reason unearthed by this Court why the U‑turn should be mid-block rather than at Stockton Street, it’s a matter to which the Council would ordinarily have regard and would in this case, notwithstanding the absence of any compulsion for it to do so.”

[17]Transcript T1-24 LL 1-20.

  1. In final submissions, Mr Trotter advised me to the effect that given the way the evidence unfolded, particularly in respect of traffic safety, Exhibit 13 was of no real relevance and would not influence me in reaching any decisions concerning this appeal.  I agree.[18]

[18]T2-71 LL 22-35.

Conclusions

  1. As to the question of traffic safety, I accept Mr Viney’s evidence that the U‑turn facility proposed by him would avoid conflict with Stockton Street traffic and, accordingly, would be a safer option.  However, the evidence is clearly to the effect that the Stockton Street location is also, in a practical sense, a safe traffic option.  Accordingly, it is my view that there are no overriding traffic safety issues which would dictate that the U‑turn facility should or must be located in accordance with Mr Viney’s design.

  1. However, the evidence is that there is a clear need for a convenience based shopping centre within this identified catchment area. The preferred site identified by the respondent in its City Plan 2000 was approximately 1km further to the east of the subject site.[19] That site is no longer available as it has been since utilised for educational purposes. The location of the proposal on the subject site is supported by the town planning evidence of Ms Rayment,[20] a conclusion now accepted by the respondent, subject of course to suitable conditions.[21] It is common ground that no suitable alternate site exists.

    [19]Exhibit 10 p24.

    [20]Exhibit 7.

    [21]Mediation agreement, Exhibit 3 p7.

  1. If the proposal does not go ahead the existing community need will not be met at all. If the proposal goes ahead but eventually proves unviable that could result in community need being left unsatisfied or largely unsatisfied in the future. That result would not only be an unsatisfactory one for the community and the appellant but also, one would reasonably expect, for the respondent.

  1. The largely uncontradicted evidence of Messrs. Owen and West leads me to conclude that to require the U-Turn facility to be located opposite Stockton Street introduces an unacceptable level of inconvenience and, as a consequence, risks of either the centre not proceeding at all, due to the difficulties in securing an appropriate anchor tenant, or if it does go ahead, eventually failing entirely or turning into a facility which would not adequately meet community needs. [22]  

    [22]That a relatively low standard of shopping options might continue on the site cannot be entirely discounted.

  1. In circumstances where the U-turn options both offer largely equivalent traffic solutions, including traffic safety, the risks to the proposal referred to herein justify or warrant change to the respondent’s planning for Illaweena Street.

  1. Accordingly, I find that the U-turn facility should be located at the location identified by Mr Viney.

  1. For the reasons given the orders of the Court are:

1.          That the further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions.

2.          I will hear further from the parties (if required) about the need for any further orders.


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