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  • Unreported Judgment

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast

 

[2020] QPEC 33

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast [2020] QPEC 33

PARTIES:

PIMPAMA COMMERCIAL PTY LTD
(ACN 605 380 363)
(applicant)

v

COUNCIL OF THE CITY OF GOLD COAST
(respondent)

FILE NO:

3734/2019

DIVISION:

Planning and Environment

PROCEEDING:

Application for a Change of Approval Conditions

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

24 June 2020

DELIVERED AT:

Brisbane

HEARING DATES:

25, 26, 27 and 28 May 2020

JUDGE:

R S Jones DCJ

ORDER:

For the reasons set out below the conclusion I have reached is that I should publish my reasons and hear further from the parties if required before making final orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT LAW – CHANGE OF APPROVAL CONDITIONS – TAVERN – where tavern is approved for 12am closure – where application for extension of operating hours to either 2am or 4am – where tavern located in neighbourhood centre at Pimpama – whether the proposed extension of hours is consistent with the role and function of the centre -whether proposed extended operating times would unacceptably impact on amenity- whether there is a community need for the proposed extension of hours.

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 19

Atkinson v Ipswich City Council & Anor [2006] QPELR 550

Bartlett Estates Pty Ltd v Redland City Council [1986] QPELR 22

Bell v Brisbane City Council [2018] QCA 84

BIM Holdings Pty Ltd v Pine Rivers Shire Council & Ors [2002] QPELR 363

Boral Resources (Qld) Pty Ltd v Gold Coast City Council & Ors [2017] QPEC 23

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2011) 180 LGERA 278

Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPELR 648

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

Parmac Investments Pty Ltd v Brisbane City Council [2018] QPELR 1026

Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41

COUNSEL:

Mr M Batty for the applicant
Mr J Lyons for the respondent

SOLICITORS:

Minter Ellison, Gold Coast for the applicant
McCullough Robertson for the respondent

  1. [1]
    For the reasons set out below the conclusion I have reached is that I should publish my reasons and hear further from the parties if required before making final orders.

The proposed development and its immediate surrounds

  1. [2]
    The site is situated at 3-5 Dixon Drive, Pimpama and is more properly described as Lots 1 and 2 on SP301198. The approved though not yet constructed Tavern is to be centrally located along the Dixon Drive frontage of the land. The Tavern forms part of Stage 2 of an approved integrated commercial development that comprises a 3 ha site.  Stage 1 has been completed and is comprised of a 24 hour United Petroleum Service Station, a shop, three fast food premises and takeaway food premises resulting in there being three separate drive-through facilities on the site for fast food purposes.  Stages 2 and 3 are vacant save for a car wash facility.  There is, as I understand it, also approvals in place for a 24 hour gym and three shop tenancies.  However, those proposed uses may not proceed depending on the outcome of other applications presently before the Council of the City of Gold Coast (the Council). 
  1. [3]
    To the east of the proposed Tavern is a large parcel of land, (Lot 3) which is currently vacant. A development application was lodged with the Council for that land to be developed for storage purposes. That application has been refused and the matter yet to be resolved. While the fast food, takeaway food outlets and the car wash and whatever is to be developed on the vacant land to which I have just referred, abuts residential development, the proposed Tavern and liquor store fronts Dixon Drive and is, accordingly, removed from the immediate vicinity of the nearest residences.
  1. [4]
    To the north on the opposite side of Yawalpah Road, is a McDonalds, a 7-Eleven Service Station including a shop and a Bridgestone Tyres operation. To the west, on the opposite side of Dixon Drive, is a mixture of commercial uses including a full line supermarket and 18 subordinate tenancies. Further to the south, but still on the opposite side of Dixon Drive, is a childcare centre, a swimming school and cafes, offices and shops.[1]
  1. [5]
    Focusing the tavern in more detail, it will comprise of a sports bar, gaming room, bistro/bar, a beer garden and patron car parking. The only issue in dispute in this proceeding centres around what are the appropriate operating hours for the tavern. It is the Council’s contention that all operations within the tavern, that is, bar service, eatery, entertainment and gambling, should cease at midnight. On the other hand, Pimpama Commercial Pty Ltd (Pimpama Commercial) contends that the appropriate operating hours would be for bar service to cease at 2.00 am, but gambling be permitted until 4.00 am.
  1. [6]
    The current application before the Liquor Licensing Board is for the service of alcohol up to 2.00 am.  As things emerged, by the time the matter came before the Court, Pimpama Commercial advanced an alternative or fall-back position namely, that both the service of alcohol and gambling cease at 2.00 am.  The tavern is permitted to open at 8.00 am.  However, the liquor store associated with that tavern has operating hours between 9.00 am to 10.00 pm.  Those operating hours are not in issue.  While I was not taken to any evidence about these matters, I presume that food and entertainment also ceases earlier than 2.00 am. 

The Statutory Framework

  1. [7]
    At the time the request to change the hours of operation was lodged with the Council (3 May 2010) and at the time that the Council made its decision (18 September 2019), the Planning Act 2016 (the Planning Act) and the Planning and Environment Court Act 2016 (PECA) were in force.
  1. [8]
    The request to change the operating hours was for the change “other than a minor change” and is to be assessed pursuant to s 82 of the Planning Act which relevantly provides:
  1. "(1)
    This section applies to a change application, other than for a minor change to a development approval.
  1. (2)
    For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply –
  1. (a)
    as if –
  1. (i)
    the responsible entity were the assessment manager; and
  2. (ii)
    the change application were the original development application, with the changes included, but was made when the change application was made; and
  1. (b)
    with necessary changes.

  1. (4)
    To remove any doubt, it is declared that the following matters apply, only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval –
  1. (a)
    the assessment benchmarks;
  2. (b)
    any matters a referral agency must, may or may only assess the application against or have regard to under section 55(2);

  1. (d)
    if the development to which the change application relates requires impact assessment – any matters the assessment must or may be carried out against or having regard to under section 45(5)(a)(ii) or (b).
  1. [9]
    Pursuant to s 43 of the PECA the appeal is hearing anew and, pursuant to s 45, Pimpama Commercial bears the onus in demonstrating that the development approval ought to be amended. The Court “stands in the shoes” of the Council and must assess and decide the development application pursuant to s 45 of the Planning Act.
  1. [10]
    While the Court now has a broad discretion in deciding whether to approve or refuse this application,[2] the starting point remains that the planning scheme is taken to be a reflection of the public interest.[3] In Murphy v Moreton Bay Regional Council & Anor Kefford DCJ said in respect of the broader discretion given to the court pursuant to s 45(5) of the Planning Act[4]:

Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.

  1. [11]
    One of the more significant features of the change proposed being other than a minor change application is that it is subject to public notification. That is, the public was entitled to have a say about what it thought of the proposed changes. While more will be said about this below, in respect of the proposed changes there were 10 submissions received from the public however, only eight of those were properly made submissions.  In respect of those eight, six were against and two were supportive. 

Issues in dispute

  1. [12]
    In the list of issues in dispute it is, in effect, asserted that the decision concerning the operating hours of the Tavern is to be determined by reference to:[5]
  1. 1.
    Whether the increase to the operating hours of the Tavern is consistent with:
  1. (a)
    the residential nature, sense of place, quality of life and values of the medium density residential zone;
  2. (b)
    the intensity of the area;
  3. (c)
    the City’s network of centres;
  4. (d)
    the expected level of amenity for this area; and
  5. (e)
    the community’s needs and aspirations.
  1. 2.
    Whether the increase to the operating hours of the Tavern will result in a detrimental impact on social aspects and health of the community, including:
  1. (a)
    antisocial behaviour;
  2. (b)
    community health;
  3. (c)
    crime in the locality.
  1. 3.
    If there are any negative social and health impacts caused by increasing the operating hours of the Tavern, whether they will be avoided or mitigated.
  2. 4.
    Whether the increase to the operating hours of the Tavern complies, or can be conditioned to comply, with the following assessment benchmarks of the Gold Coast City Plan. …
  3. 5.
    Whether there are relevant matters to support approval of an increase to the operating hours of the Tavern.
  1. [13]
    This clearly calls for consideration the makeup of the relevant “community”.  However, before moving on to that topic I should note that in paragraph 4 of the issues raised a raft of provisions of the planning scheme are set out.  Mr Lyons, counsel for the Council, quite sensibly identified what the real issues in dispute were.  And, while the fundamental issues identified above remained, a number of specific provisions of the planning scheme were deleted.[6]  The relevant provisions of the planning scheme are set out, where relevant in the various reports of the experts, particularly those of the town and social planners:

s 3.8.5.1 Specific outcomes

  1. (1)
    The design and management of development creates positive social and health impacts. 

s 3.8.6.1 Specific outcomes

  1. (1)
    Activities that could conflict with the health and amenity of existing or planned sensitive uses are adequately separated, designed and managed.  These activities include those that generate noise, traffic, air pollution, electromagnetic emissions, dust, light, glare, reflectivity, vibration or odour impacts above acceptable standards.  Such activities include industry and extractive industry uses.

S 6.2.2.2 Purpose

  1. (1)
    The purpose of the Medium density residential zone code is to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents.
  2. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. a.
    Land uses –

  1. (v)
     which carry higher potential for impacts on amenity such as Car washes, Childcare centres, Health care services, Food and drink outlets, Shops (other than supermarket), Veterinary services, Community care centres, Community uses, Emergency services, Educational establishments, and Places of worship may be considered if appropriately designed and located and not detract from the residential amenity of the area;

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

  1. (ii)
     well serviced and compact urban neighbourhoods that offer a level of amenity appropriate to the intensity of the area.

S 9.4.4.2 Purpose

  1. (1)
    The purpose of the General development provisions code is to provide a consistent approach to city wide issues and avoid duplication of regulation throughout the City Plan.
  2. (2)
    The purpose of the code will be achieve through the following overall outcomes:
  1. (a)
    Development is designed to maintain the expected level of amenity for the area.
  2. (b)
    Development promotes a safe environment and reduces the potential for crime.

Performance outcomes

 

PO1

Development mitigates any negative effects to amenity, health and safety from existing surrounding activities having regard to:

  1. (a)
     noise;
  1. (b)
     house of operation;

(l) safety.

 

PO2

The proposed development prevents loss of amenity and threats to health and safety, having regard to:

  1. (a)
     noise;
  1. (b)
     hours of operation;

(l) safety.

AO2

No acceptable outcome provided.

s 9.4.11.2 Purpose

  1. (1)
    The purpose of the Social and health impact assessment code is to ensure the social and health impacts caused by development are identified, positive impacts are enhanced and negative impacts are avoided or mitigated.
  2. (2)
    The purpose of the code will be achieved through the following outcomes:

  1. (b)
     Development enhances positive social and health impacts and is responsive to community needs and aspirations.
  1. (c)
     Development avoids or mitigates any significant negative social and health impacts.

Performance outcomes

Social and health impact assessment

PO1

Development demonstrates that social and health impacts have been identified, positive impacts have been enhanced and negative impacts have been mitigated having particular regard, but not necessarily limited to, the following matters:

  1. (e)
     health and wellbeing;
  1. (f)
     crime and public safety."
  1. [14]
    The Council’s opposition to the extended trading hours was stated in broad terms in Mr Lyons’ written submissions[7]:

“As the Court is aware, taverns can create both positive and negative impacts for a community. 

The positive benefits to a community arise through the creation of a place to recreate and socialise.  Given that taverns involve the provision of alcohol and gaming, they also have the potential to create significant negative benefits.

In considering the needs of the Pimpama community, which is a rapidly developing family based community, the Council has sought to “balance” the positive benefits of a tavern against the negative which has resulted in an approved tavern which closes at midnight.  This enables reasonable access to a facility but ensures that the negatives are mitigated in the best interests of the community.

The application to extend the operating hours until potentially as late as 4am “tips the balance” such that the negative impacts exceed any positives arising from these additional hours of operation.

In exercising the Court’s discretion, the application to extend the operating hours should be refused.  The approval of the tavern already provides reasonable access to a facility and for those that seek access to like facilities after midnight, there exists other options within the local area within designated centres.”

  1. [15]
    While the subject land lies within the Medium density residential zone the land use of the site within which the tavern would be located could “fairly be described as part of a centre”.[8]  In the joint expert report (JER) of the town planners it was said:[9]

The site forms part of an existing/approved ‘Neighbourhood centre’ within the retail hierarchy of the City Plan, within an emerging urban area.

The Pimpama Community

  1. [16]
    The Pimpama area of the Gold Coast has undergone what could only be described as an extraordinary growth in development particularly since at or about 2015/16. The growth rate in the area has been in the order of 20%, a rate that significantly exceeds growth in any other proximate local government area. Indeed, as the inspection revealed, growth is continuing. In their JER, Ms Rolley-Cervenjak for Pimpama Commercial and Ms Ashford for the Council, said in respect of the broader demographics of the area:[10]

“The age structure show that the Pimpama SA2, when compared with the Gold Coast LGA and Queensland, had higher proportions of children aged 0-14 years and adults aged 20-39 years.  Conversely there were lower proportions of adults in all age groups from 40 to 85+ years.  Based on this age structure, the community is described as having comparatively larger proportions of people of working and family formation age, as well as comparatively larger proportions of young people.”  

  1. [17]
    While the socio-economic make up of this community will be dealt with in more detail below, one of the central areas of dispute between Ms Ashford and Ms Rolley-Cervenjak was whether the relevant population could be described as being a “vulnerable community”.

The evidence concerning likely impacts on amenity caused by noise

  1. [18]
    This issue was addressed by Mr King, a mechanical engineer relied on by Pimpama Commercial and Mr Beyers, an environmental consultant specialising in acoustics and air quality, on behalf of the Council. In their JER, it was agreed that with appropriate conditions imposed addressing operational noise, patron noise and mechanical plant noise “noise from the hotel trading between 12 midnight and 4 am will comply with the adopted noise criteria …”[11]  Where Mr King and Mr Beyers part company is that it was Mr Beyers’ opinion that:[12]

“The primary area of disagreement relates to the potential noise from patrons leaving the hotel after 12 midnight as they disperse on foot from the site to off-site locations including the nearby service station and fast food outlets.

Mr King is of the opinion that the number of patrons utilising and leaving the Tavern after 12 midnight will be lower than typically prior to midnight and the additional trading hours will result in patrons leaving in a more dispersed manner than if the tavern closes at 12 midnight. The noise modelling undertaken identifies that for small groups of patrons leaving the site to the service station the result and noise level criteria are achieved at the adjacent residential areas with the recommended noise barriers in place.  The implementation of a suitable noise management plan is appropriate for managing the noise patrons external to the hotel.

Mr Beyers disagrees with Mr King and believes that even small groups of patrons leaving the hotel has the potential to result in an unacceptable amenity.  Further, noting that these types of noise sources do not form of the area currently, these activities are likely to be audible for a number of residential dwellings in the adjacent subdivision.” (Emphasis added)

  1. [19]
    In support of his opinions, Mr Beyers prepared what he described as “patron movement pathways” for both the 4 am[13] and for the 2 am scenarios[14] they are, as far as I am able to ascertain, identical.  In respect of those patrons, be it at 4 am or 2 am, that would leave the Tavern and travel in an easterly direction towards the residential development to conduct what was described as antisocial behaviour that could be readily dealt with by a condition regarding the erection of a fence to prevent intrusion along the western boundary of that yet undeveloped area of land. 
  1. [20]
    That of course does not deal with the issue of what might occur when that land is developed. That topic was left unexplored. That aside though, it is quite clear that Mr Beyers’ greatest concerns were about the pedestrian traffic that would leave the Tavern and head in a northerly direction towards the McDonalds and/or the 7-Eleven Service Station. There was no dispute that some patrons from the hotel would exit the hotel and travel home by foot along Dixon Road. However, the evidence comfortably leads me to conclude that, as is with the case of the pedestrian traffic moving east onto the undeveloped site, the pedestrian traffic exiting onto Dixon Road and heading south would be small in number and unlikely to cause any meaningful impacts on amenity.
  1. [21]
    In respect of the pedestrian movements exiting the tavern and then moving in an easterly then northerly direction, that seems to be a much less likely route than instead of moving behind the commercial areas closer to the residential areas, pedestrians would take the more direct route past the front of those commercial areas and, as a consequence, more removed from the residential development.
  1. [22]
    In any event, on the evidence before me, I am satisfied that the pedestrian movements north would be materially less than that contemplated by Mr Beyers.  That is so for a number of reasons.  Mr King, who has had considerable experience not only with the operational functions of McDonalds but also the 7Eleven service stations, gave evidence which was not seriously challenged, that insofar as both the McDonalds and the service station are concerned, purchases from those premises are restricted to, in the case of McDonalds, drive- through purchases only after midnight and, in the case of the 7-Eleven service station, the purchase of fuel and perhaps other minor retail purchases.  That is, after midnight, the ability to make purchases from either the McDonalds or the 7-Eleven are greatly curtailed.  In this context it should also be noted that the service of pedestrians through the drive-through at McDonalds is prohibited. 
  1. [23]
    At one stage Mr  Beyers seemed to make something of the fact that a number of Uber (or other) drivers would tend to be congregated in and around the McDonalds car park.  That may well be so but, overall the number of patrons that might walk to the McDonalds to discover the restaurant was to all intent and purposes closed and then hire an Uber to drive through the driveway to get takeaway food would be expected to be rare.
  1. [24]
    In this context, I also find it more likely than not that in all but the rarest of cases, for those patrons who weren’t aware of the trading hours of the McDonalds or the 7-Eleven, it would take but one visit to become familiar with those trading hours and not make the same mistake again. Insofar as the Uber drivers are concerned it would also seem likely that at least some of those, if not a significant number, would relocate to a location more proximate to the tavern at or around closing time.
  1. [25]
    All of that said, even having regard to the matters to which I have just referred and the location of the Tavern which is not only distanced from the existing dwellings and, in the future, would also be shielded from those residences by future development, outbreaks of intended and unintended antisocial behaviour could not be entirely ruled out.
  1. [26]
    Examples of deliberate antisocial behaviour would include property offences including vandalism, violence and loud and abusive language. Unintentional antisocial behaviour would include slamming of car doors and loud talking and laughing.
  1. [27]
    In this context, I was referred to numerous cases where this Court has made observations about the potential for negative impacts on community associated with taverns and hotels.[15]  It is unnecessary to go through all of the passages of those decisions to which I was referred. However, some observations are worth repeating.  In Debernardi & Vertex Bianca Nominees v Gold Coast City Council, her Honour O’Sullivan DCJ, after accepting the evidence of an expert witness went on to say; “I accept … that when residents hear persons outside their properties, they are likely to be disturbed because they listen to hear whether they are entering their property, and they try to work out what they are doing.  The noise generates fear in them that they are going to do something so they listen.”  That finding was consistent with evidence given by Mr Beyers. 
  1. [28]
    In Mooloolah Commercial Pty Ltd v Caloundra City Council Robertson DCJ made the following observation:[16]

“However, it is common sense that indulgence in alcohol can lead to antisocial and sometimes criminal behaviour. Given my long experience in the criminal courts of this State, it is a fact of which I can take judicial notice that alcohol is a major contributor to criminal conduct. …

On balance, I am unable to conclude that a tavern on this site, despite the best efforts of the on-site manager, would not be a source of unpleasant disturbance from time to time. The very unpredictability of such behaviour is also a factor that impacts on the amenity of local residents. As his Honour Judge Skoien put it in BIM Holdings (at 368) “so instead of leading a peaceful existence, they will be on edge”.”

  1. [29]
    All of those observations, including those in the other cases to which I was referred can be accepted. However, each case will turn on its own particular facts. Unlike the situation in Debernardi, there would be very few patrons who would be likely to leave the tavern and be “walking through the residential areas”.  Also, unlike the situation in Mooloolah Commercial Pty Ltd, this is not a case of locating a tavern in a “quiet rural township”.  In that case, it was also clearly a relevant matter that his Honour took into account that there was no resident police presence in the area.  That can be contrasted with the situation here where a police station is proposed only about 1.2 kilometres from the tavern site. 
  1. [30]
    It is also relevant that what is proposed is relatively modest in respect of likely patronage. It was expected that by 12.00 am the number of patrons would be in the order of 50 on Friday’s and Saturday’s and, by 4.00 am patronage would be down to about 25. There was no evidence as to how many patrons would be onsite at 2.00 am, but one could safely proceed on the basis that it would be less than 50 but more than 25. It should also be noted in this context, that it was uncontroversial that Friday and Saturday trading would be the peak period and on other weeknights it would be likely that the patronage would be significantly less. While there is no direct evidence about weekly numbers other than for Fridays and Saturdays it seems to me, the likely numbers of patrons on evenings other than Friday and Saturday, and possibly Thursday, that could be so low as to materially reduce the potential for antisocial behaviour occurring, at least insofar as it might be connected with the tavern.
  1. [31]
    On behalf of Pimpama Commercial, it was also submitted that the owners and operators of the tavern were a reputable and experienced in the operation of licenced premises.[17]  That may well be accepted but as Mr Lyons pointed out, the Court should not proceed on the basis that the current owners and operators would necessarily remain in the long-term.  I agree. 
  1. [32]
    I was also urged to treat the evidence about patronage numbers with caution having regard to the fact that no one from the companies associated with the ownership and/or operation of the tavern gave direct evidence about the matter. While that can be accepted, that evidence was relied on by not only Ms Rolley-Cervenjak, but a number of other expert witnesses who gave evidence in the proceeding without any of that evidence or any reliance placed on it, being seriously challenged. On balance, I am sufficiently satisfied that that evidence is at least indicative of likely patronage numbers on those nights.
  1. [33]
    On behalf of Pimpama Commercial it was said that there would be a significant advantage in respect of noise and other anti-social behaviour in extending the operation of the tavern to 4.00 am. That was so, it was said, because instead of having all 50 or so patrons leaving at 12.00 am, there would be a staggered departure of patrons between 12.00 and 4.00 am from 50 down to 25. As I have already observed the number of patrons that would be still in the tavern at 2.00 am was not addressed. That said, I can accept that there would be a staggering departure instead of all 50 patrons leaving at the one time. In this context though, it has borne in mind that those patrons still in the tavern, or at least most of them, could be expected to continue to consume alcohol up until 2.00 am. As Judge Robertson observed in Mooloolah Commercial, the greater the consumption of alcohol, the greater the risk of antisocial conduct occurring.  The evidence would seem to suggest that those patrons who remained from 2.00 am to 4.00 am, would do nothing but gamble. 
  1. [34]
    On behalf of the Council, I was also referred to the observations of this Court in Boral Resources (Qld) Pty Ltd v Gold Coast City Council & Ors[18] where it was said:

“As will become apparent, the impacts on amenity resulting from noise, air quality and blasting vibration are capable of being and will be kept within all the applicable laws, policies and standards. Non-compliance in this regard could of course be fatal to a development application. On the other hand, compliance need not be determinative.”

  1. [35]
    That passage was of course in reference to potential impacts on the amenity of residences in the vicinity of an enormous proposed quarry which would operate over a period of some 40 years. Even so, the fundamental principle still applies in my view and, as was recognised in Broad v Brisbane City Council[19] by de Jersey J (as he then was):

“There is no doubt that the concept of amenity is wide and flexible.  In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality.  Knowing the use to which particular site is or may be put, may affect one’s perception of amenity.”

  1. [36]
    That statement accords with the evidence about the high level of sensitivity of residents to loud voices in the vicinity of their homes. However, in respect of both of those observations, two important factors need to be kept in mind. First, this tavern has been approved. This is not a dispute about whether, on the merits, the tavern ought be permitted to be developed. That decision has already been made. The only issue is whether the operating hours end at midnight, 2.00 am or 4.00 am. It is also relevant in this context that antisocial behaviour could not be ruled out even with a midnight closure.
  1. [37]
    On balance, insofar as the negative impacts that might be associated with noise, I am satisfied that with the imposition of appropriate conditions, no unacceptable impacts on residential and/or on community amenity would arise and, that the tavern ought not be prevented from trading beyond midnight for that reason. However, for reasons that will become apparent, it does not necessarily follow that the trading hours should be extended to 4.00 am.

The evidence of the social planners

  1. [38]
    Before I go on to address the evidence of the social and town planners in more detail, I should make it clear that I consider the reference to and reliance on a number of the various provisions of the planning scheme to be unnecessary. That is so for at least three reasons being, in reverse order of importance; first, it would be wrong to consider this tavern in the context of it being situated in a typical neighbourhood centre. As Mr Ovenden pointed out, with Ms Morrissey largely in agreement, by reference to its sheer size and the number of commercial components making up the centre, it has many of the attributes of a district centre. Second, insofar as the land is included in the Medium density residential zone, having regard to what has and will occur on the ground, the relevance that zoning is of significantly less importance than would usually be the case. This issue will be discussed in more detail below.
  1. [39]
    The final matter to which I will refer in this context is probably the most significant. It must always be kept in mind that the subject tavern has already been approved with trading hours from 8am (with gambling from 10am) to 12am. To adopt the language used by Mr Lyons, the court in this proceeding is concerned balancing the genuine potential positives that might arise from the extended trading hours against the negatives (in the overall community well-being including health and sense of amenity including anti-social conduct) that might result.[20]
  1. [40]
    That approach is reflected in the JER’s of the social planners where they do not address their summaries of opinions by reference to any of the provisions of the planning scheme but instead, on the part of Ms Rolley-Cervenjak, she speaks of the positive social outcomes that would be achieved by extending the trading hours. On the other hand, Ms Ashford focuses her attention on the negatives. By way of conclusion it was Ms Ashford’s opinion that:[21]

Based on the review of the extended trading hours and current information available at the time of assessment, it is the [sic] view that the extended hours should be refused.  The proposed tavern is located in residential area where approval has already been given to operate until 12am.  This approval recognises the importance of the tavern to the community where there are social benefits associated with providing a community facility, as well as a family friendly place for recreation, entertainment and dining.  However, the proposed extended hours will diminish the social benefits as it transitions from a family friendly environment (positive benefit) to one where the main purpose will be for gambling and service of alcohol (negative benefit).  There is a balance needed to achieve and maintain positive social benefits without significant negative social consequences. That balance is allowing the tavern to operate to 12am (which has already been granted) and no later.”

  1. [41]
    In addition to the negative social consequences arising out of gambling, Ms Ashford also referred to the increased risk of domestic violence, unemployment, homelessness and exposure to other disturbances (i.e. anti-social conduct) according to Ms Ashford:

there is a concern that the tavern, once developed (even with trading hours to 12am), could exacerbate the crime levels currently seen in the area. With the proposed increase in trading hours, the risk of crime would be much higher.”

  1. [42]
    One does not need the evidence of social planners to beware of the negative, and sometimes disastrous, impacts on society caused by substance abuse (including alcohol) and gambling. Often the two are interrelated. However, insofar as the relevant socioeconomic demographic is concerned, on balance, I am sufficiently satisfied that this tavern is not situated within a community that could be reasonably described as being “vulnerable”.  Unfortunately, I found in a number of respects, the evidence of Ms Ashford to be unpersuasive.  In the JER of the social planners Ms Ashford reported:[22]

“… the demographics of the immediate local catchment indicate that the existing surrounding community is a vulnerable community.  Evidence by the following:

  1. (a)
    There is a higher proportion of the population that identify as Aboriginal and/or Torres Strait Islander in Pimpama compared to the region (3.2% Compare to 1.7%);
  1. (b)
    There is a high rate of youth disengagement (% of persons aged 15-24 years not employed or in education) in Pimpama when compared to the region (15.0% compared to 9.1%) significantly, the Pimpama rate is the highest when compared to all other communities in the Gold Coast LGA;
  1. (c)
    Single parent families are more common in Pimpama when compared to the region (21.6% compared to 17.2%);
  1. (d)
    There are more people who are renting in Pimpama and a lower number of home owners when compared to the region (69.5% compared to 36.6%)
  1. (e)
    There is a higher proportion of households living in social housing in Pimpama compared to the region (2.7% compared to 2.1%);
  1. (f)
    The proportion of households in housing stress in Pimpama is higher that the region (28.6% compared to 12.8%);
  1. (g)
    There is a higher proportion of people who are experiencing homelessness in Pimpama when compared to the region (1.1% compared to 0.6%);
  1. (h)
    There is a lower proportion of high income households that are earning more than $2,500/week compared to the region (16.3% compared to 18.8%);
  1. (i)
    The unemployment rate in Pimpama is substantially higher than the region (7.6% compared to 5.8%).” (original emphasis)
  1. [43]
    The difficulty I have with the evidence of Ms Ashford arises in a number of respects. First, while there are clearly significant differences, in percentage terms, in some of the indicia to which Ms Ashford referred,[23] in other areas, while there are some differences they are relatively small.[24]  Nonetheless they were apparently still equally relied on as indicia of vulnerability without any meaningful explanation. 
  1. [44]
    Second, I found Ms Ashford’s evidence lacked a degree of objectivity in the sense that while she was prepared to draw to the court’s attention the fact that there was a lower proportion of “high income” households (16.3% compared to 18.8%), she did not seem to address, or sufficiently bring into account that, on the other side of the ledger, the relevant community had a median household income higher than other LGA’s in the region and Queensland as a whole, or that the proportion of households within the low income bracket was lower than in those other regions.[25] 
  1. [45]
    Finally, in the first of her individual reports,[26] Ms Ashford reported:

“(a) The proposed extended trading hours will have an increasing negative impact on crime and safety in the area.

  1. (b)
     Crime data for the Pimpama community for the last 12 months shows that the area around the subject site has high crime activity.  It was reported by the Gold Coast Bulletin (July 2019) that Pimpama has been inundated with police to crack down on crime in the area; (refer to appendix 1).  A number of articles paints (sic) a picture of the intensity of crime in the area which includes serious assault, break ins/ home invasions (refer to Appendix 2).
  1. (c)
     It is unclear from the data how many of the reported incidents were committed under the influence of alcohol. Anecdotally, it is suggested that the true rate of alcohol related crime is difficult to gauge due to underreporting.
  1. (d)
     The trading hours of alcohol outlets have been shown consistently to influence the level of alcohol related violence, including assault and drink driving.” (emphasis added)
  1. [46]
    The appendixes referred to are a number of newspaper articles. At the conclusion of cross-examination by Mr Batty, I raised with Ms Ashford that while those articles seemed to suggest significant levels of drug and drug related crime and traffic offending in the area, there was little if anything in those articles linking the crimes reported to alcohol and/or gambling. In response, Ms Ashford agreed that whilst those articles suggested a high level of crime, its relationship to alcohol consumption was unknown.[27] 
  1. [47]
    In Pimpama, over the 12 months leading up to March 2020 there were 1,495 offences most of which were theft (excluding unlawful entry), drug offences and traffic related offences.[28] Of interest is that in respect of the Coomera Tavern, only about 3.1 kilometres away, which has a liquor licence trading up to 2am,[29] of the 745 offences per 100,000 people reported over the same period, only nine were reported as being directly related to the consumption of alcohol excluding drunkenness. In my opinion those newspaper articles provide no support for Ms Ashford’s opinions about the increased risk of crime occurring in this community as a consequence of extending the service of alcohol until 2am.
  1. [48]
    There is however, one particular element of the evidence of Ms Ashford that I found to be concerning. That is the proportion of households said to be under “housing stress”. The National Centre for Social and Economic Modelling identifies households in the lowest 40% of incomes that are paying more than 30% of the usual gross weekly income on housing costs as potentially suffering such stress.  Including the problems these households may have in meeting their commitments including financial commitments.
  1. [49]
    Notwithstanding my concerns about certain aspects of Ms Ashford’s evidence, I accept that the data concerning households under economic stress is indicative of at least that element of the Pimpama community could be described as being “vulnerable”.  Notwithstanding her opinions about vulnerability, Ms Ashford however, could not find any evidence that the community as a whole was particularly vulnerable to the risks associated with alcohol consumption or gambling.[30] I should note here that the percentage of households within this category is not as drastic as Ms Ashford first stated. The real comparison rate should have been 21.3% when compared to that of the wider region of 14.7%.
  1. [50]
    Before moving on to the evidence of Ms Rolley-Cervenjak, I should refer to the debate about whether or not Ms Ashford accepted that a 2:00am closing time was “acceptable”. Towards the end of Mr Batty’s cross examination Ms Ashford said in respect of a 2:00am closing time, “it is acceptable, correct.” Prior to that, her position had been that there would be an incremental increase in the risk of anti-social behaviour for every hour after 12:00am. Unsurprisingly in this context, she accepted the obvious, namely, that at least insofar as far as she was concerned, a 2:00am closing time was better than a 4:00am.  During re-examination by Mr Lyons, I permitted that matter to be reviewed and over objection by Mr Batty, Ms Ashford was asked to clarify her position.  She responded by saying that she did not accept 2:00am as being an acceptable closing time. On balance, while Ms Ashford did appear to express the opinion that a 2:00am closing time might have been acceptable, when looked at in context, it seems more likely than not that she was, consistent with her earlier evidence, simply repeating that 2:00am was better than 4:00am.
  1. [51]
    After identifying that she disagreed with the description of the Pimpama community being either “disadvantaged” or “vulnerable”, Ms Rolley-Cervenjak went onto identify a number of matters that, in her opinion, supported trading hours of up to 4:00am.  As I understand the evidence, in this regard, while the tavern would open at 8:00am gambling would not commence until 10:00am but, while the serving of alcohol would close at 2:00am, gambling would continue until 4:00am. 
  1. [52]
    According to Ms Rolley-Cervanjak, the trading hours up to 4:00am would “align with the hours of operation for existing commercial uses on the site.”  Specific reference is made to the 24-hour service station which already exists on the site.  It is then said that “the extension of trading hours is consistent with the level of amenity and intensity of development established over the site.”[31]
  1. [53]
    I do not find that evidence to be particularly persuasive. I fail to see, and no attempt was made to reveal me, how any sensible comparison could be drawn between what might occur at a 24-hour service station, or for that matter, any other commercial activity within the centre, and to what might occur at 12:00am, 2:00am or 4:00am or whenever the tavern closed.
  1. [54]
    In respect of the potential to reduce alcohol related antisocial behaviour including violence by staggering the departure times between 12:00am, 2:00am and 4:00am, while I consider there would be some benefits in that strategy, overall it is not a particularly persuasive, having regard to the evidence of the experts concerned with noise which was, to the effect, that all relevant assessment benchmarks would be met be it 12:00am, 2:00am or 4:00am.
  1. [55]
    Reference is then made to there being a six hour period which would “encourage a break in play among high-risk gamblers”.  This six hour period would be between 4:00am and 10:00am the next day.  While six hours may be an effective period providing a break in play, one might ask rhetorically, might not eight or 10 hours be better?
  1. [56]
    Ms Rolley-Cervanjak also placed some emphasis on the community benefit in providing employment in the area. Remaining open for an additional four hours would equate to approximately $450,000.00 in gross annual wages, the equivalent of eight full-time jobs. Given the alternate case being run on behalf of Pimpama Commercial, I asked Mr Batty whether there was any evidence about what the situation would be if it were a 2:00am closing time. The matter was then investigated further by Mr Ovenden, the town planner relied on by Pimpama Commercial.  His evidence, was to the effect that if the closing time was 2:00am there would be a 30 per cent reduction in those wage figures.[32] 
  1. [57]
    That 70% - 30% split is not surprising given that less staff would be expected once the serving of alcohol ceased. However, in this regard, in the absence of any evidence to the contrary, I find the rhetorical question posed by Ms Morrissey to be a reasonable one. Namely, that on the quieter nights from Sunday to Thursday would it still be reasonable to expect the same number of staff would be required?[33]  However, even factoring in Ms Ashford’s legitimate scepticism, I am satisfied that some additional employment would be created by extending the opening hours of the tavern.
  1. [58]
    While the introduction of more employment benefits in a community such as Pimpama should be seen as a positive, which has to be balanced against the potential negative impacts on amenity. That is particularly so, in my view, when regard is had to the rather incremental benefits in wage earnings after 2:00am.
  1. [59]
    In respect of the evidence about employment and wages, I was again urged to treat this evidence with caution. Essentially for the same reasons raised in respect of the evidence concerning patronage. Mr Lyons’ position is understandable but, essentially for the same reasons concerning the patronage figures, I am sufficiently comfortable in adopting this evidence as at least being indicative of what the true nature of things might be.
  1. [60]
    It was uncontroversial that the tavern would play an important role in the community. To use Ms Rolley-Cervanjak’s words it would be a place “where people can gather, come together and socialise and have these social interactions, and that contributes to building a sense of community and social connections[34]
  1. [61]
    While there is a paucity of evidence on this topic, one would have to wonder what the extent of social interaction between 2:00am and 4:00am might be. At 2:00am the serving of alcohol ceases. That is, only those interested in gambling are likely to remain much after 2:00am. That is evidenced by the fact that the number of patrons halves from 50 to 25 between 12:00am and 4:00am on the busiest of nights.
  1. [62]
    Again, while there is no direct evidence on the point, those remaining patrons would be situated in a 268m² room with about 45 electric magnetic gambling (EGM’s) available to inject further joy into their lives. It would not be unreasonable in my view to infer that between 2:00am and 4:00am there would be more machines than patrons and not much social interaction going on. Perhaps that was why Ms Rolley-Cervanjak seemed to accept that the benefits of limiting the risk of anti-social behaviour occurring by a 2:00am closure could outweigh the social and/or economic benefits of extending the hours to 4:00am,[35] notwithstanding the potential benefits of the staggering of departure numbers from 2am to 4am.
  1. [63]
    Primarily, on the evidence of Ms Rolley-Cervenjak and to a lesser extent, that of Mr Ovenden I am however, satisfied that there is a sufficient level of community need or demand for a place for members of the community to gather and socialise past midnight. That said, I am left unpersuaded that extending the closing time to 4:00am would provide any meaningful benefit to the community beyond that which would be likely to be achieved by a 2:00am. While no alcohol will be served after 2am, a 4am closure would be likely to increase the risks of negative impacts[36] occurring past 2am for no apparent meaningful community benefit.
  1. [64]
    Returning to the issues of health and anti-social behaviour including crime, in the JER of the social planners Ms Ashford made certain observations in respect of both alcohol related harm and gambling:[37]

“It is the view that the increase in the hours of operation contemplated by the proposed development will result in a detrimental impact on community health and wellbeing aspects including those associated with:

  • Alcohol related harm – heightened risk of intoxication and associated health risks not only to the drinker but to others in the community.
  • Gambling related harm – heightened risk of gambling harm (e.g. suicide, depression, relationship breakdowns, crime, lowered work productivity, job loss and financial (due to the greater accessibility of electronic gaming machines by virtue of extending trading hours).”
  1. [65]
    In her Court report Ms Ashford went on to observe:[38]

The trading hours of alcohol outlets have been shown consistently to include the level of alcohol related violence, including assault and drink driving”.

  1. [66]
    The link between excessive consumption of alcohol and anti-social behaviour, including crime, is beyond doubt. However, that is clearly not the end of the matter. The issue here is whether the extension of the service of alcohol from 12:00am to 2:00am would result in an unacceptable risk of a meaningful increase in anti-social behaviour. As I have already observed, Mr Lyons correctly identified, this is not a case concerned with whether or not a tavern ought be approved instead, it is a question of balancing the potential likely outcomes, positive and negative, that might result.
  1. [67]
    In respect of health and crime, the Council placed significant emphasis on provisions of the Medium density residential zone code, the General development code and the Social and health impact assessment code. For reasons which will become apparent below, I consider the application of the Medium density zone code to be of little relevance.
  1. [68]
    Relevant provisions of the planning scheme Strategic Framework requires that design and management of development creates positive social and health impacts and that activities that could conflict with the health and amenity of existing or planned sensitive uses are adequately separated, designed for and managed. Pursuant to s 9.4.4.2 of the General development code, required outcomes are that development is designed to maintain the expected level of amenity for the area and promote a safe environment that reduces the potential for crime. Performance Outcome (2) requires that proposed development prevent loss of amenity and threats to health and safety having regard to, relevantly here, noise, hours of operation and safety. No acceptable outcomes are provided.[39]
  1. [69]
    In respect of the Social and health impact assessment code, particular reliance is placed on s 9.4.11.2 where it is emphasised that social and health impacts caused by development must be identified and positive impacts are to be enhanced and negative impacts to be avoided or mitigated. The overall purpose of this code is said to be, relevantly, that development enhances positive social and health impacts and is responsive to community needs and aspirations and, development avoids or mitigates any significant negative social and health impacts. Performance Outcome 2 of that code effectively repeats those purposes and again no acceptable outcome is provided.[40] 
  1. [70]
    As has already been stated, I do not consider that there would be any meaningful impacts on amenity caused by the extended trading hours in the usual sense. That is, noise, pollution, visual amenity and traffic etc. I am also satisfied that there is no reasonable basis for concluding that the extended trading hours at least up until 2am, would have any meaningful negative impacts on the general health of the community including in respect of gambling.
  1. [71]
    In respect of the issues of crime and safety, as I have already indicated, Ms Ashford’s conclusions are to a large extent based on her assessment that the community is a vulnerable one. For the reasons expressed, I consider that to be, in the overall sense, an incorrect starting point. Further, Ms Ashford’s conclusions about crime, crime rates and alcohol related crime seem to be little more than statements of the obvious (crime including acts of violence are often associated with excessive alcohol consumption) and reliant on anecdotal evidence including newspaper articles which have little, if any, probative value.
  1. [72]
    During cross-examination, after being referred to a number of matters including that the liquor application which had been referred to the Queensland Police Service did not prompt a negative reaction, that the relevant district (Coomera) had lower overall crime rate than the Gold Coast district and the South East Queensland region as a whole, Ms Ashford described the risk of increased crime as being “an incremental risk every hour after midnight”.[41] 
  1. [73]
    That there might be an increase in the risk of crime or other anti-social behaviour occurring after midnight is clearly, of itself, not really to the point. Regard must be had to the balancing exercise to which I have referred. When regard is also had to the fact that a new police station is to be located approximately 1.5kms from the site and the crime statistics to which I have referred, I prefer the evidence on this issue of Ms Rolley-Cervenjak which was to the effect that while some increased risk of crime and safety occurring after 12am could not be ruled out entirely, that risk would not be a significant one.[42]
  1. [74]
    On balance I have reached the conclusion that the potential for the incidents of anti-social behaviour to rise by extending the service of alcohol by two hours, at least insofar as the busier nights are concerned, is outweighed by the social benefits of providing a place for members of the community to gather and socialise.[43]  I would conclude on this topic by noting that Ms Rolley-Cervenjak’s evidence on these matters was not in any serious way challenged or otherwise weakened by cross-examination.

The Town Planning Evidence

  1. [75]
    Before addressing the evidence of Ms Morrissey and Mr Ovenden, I should deal with the public reaction to the proposed tavern opening hours. There were 10 submissions made by the public of which 8 were deemed to have been properly made. Two were in support of the others opposed. The greatest concerns centred around the impacts on amenity caused by noise and anti-social behaviour.[44]  Those concerns were largely in common with those addressed by the lay witnesses relied on by the Council.[45]  Two of the lay witnesses were also submitters.
  1. [76]
    Their concerns are largely legitimate and no doubt genuinely held and regard must be had to them. There are three matters that arise in deciding what weight is to be placed the evidence of those opposed. First, their evidence has to be seen in the light of the existing intended closing time of 12:00am. That is, what are the likely ramifications associated with a closing time of 2:00am or 4:00am when compared with a 12:00am closing time. Second, and associated with the first matter, the objectivity or reality of those concerns has to be tested against the expert evidence. Finally however, it must be borne in mind that, notwithstanding the expert evidence on the relevant aspects of this case, the submitters’ subjective perceptions and sense of apprehension remain relevant.
  1. [77]
    The reason why I say the concerns are largely legitimate is because; first, I do not consider Ms Sullivan’s concerns about staff safety to be a realistic consideration.  On the other hand, her concerns about anti-social behaviour, including property offences are valid.  However, as I have already said, those concerns have to be considered in the light the tavern already being approved with trading hours extending to 12am.  The same could be said in respect of Ms Harrington’s concerns about cigarette smoke.  As to Mr Kirby’s evidence, while I accept that his concerns are genuine, insofar as his views are influenced by reported discussions with other members of the community, friends and Facebook, I am unable to give that information much weight.
  1. [78]
    What could be described as the modest level of opposition to the proposed extended hours was relied on as being indicative of, if not a broad level of support, then at least an indication of indifference or acceptance. As Ms Ashford observed though there could be many reasons to explain why a member of the community may elect not to make any submissions in respect of the proposed tavern. That can be readily accepted, but I do consider that at least two matters would have played a role, if not a significant role, in this regard. First, it was a given that it was to be located within this centre. Second, the tavern was not located in what Mr Ovenden described as a typical neighbourhood centre and was to be located on a site within that centre quite removed from the nearest residential development.
  1. [79]
    Finally, on this topic, while the relatively modest level of opposition is a relevant consideration, it is not determinative. As Rackemann DCJ observed in K Page Main Beach Pty Ltd v Gold Coast City Council & Ors[46] while the large number of submitters was a relevant consideration of greater “weight” was the validity or otherwise of the grounds relied upon. On balance, while the level of opposition to the extended trading hours may be indicative of absence of a groundswell of opposition, I do not consider this evidence to be particularly informative one way or the other.
  1. [80]
    The limited extent of the real issues in dispute were identified by Ms Morrissey and Mr Ovenden as being:[47]
  • Whether the proposed extension of hours is consistent with the role and function of the centre, intended amenity and community needs; and
  • Whether the proposal is appropriate having regard to social and health aspects of community well-being.
  1. [81]
    In this context Mr Ovenden and Ms Morrissey also agreed that the focus should be on whether the increased operating hours of the tavern were out of context having regard to the “planning framework”.  They identified that in consideration of that issue, particular regard had to be given to:
  1. 1.
    the city’s network of centres
  2. 2.
    the residential nature, sense of place, quality of life and values of the Medium density residential zone
  3. 3.
    the intensity of the area
  4. 4.
    reasonable amenity expectations; and
  5. 5.
    the needs and aspirations of the Pimpama community
  1. [82]
    Insofar as the discussion concerning centres is concerned, I do not consider it necessary to say anything further than it is uncontroversial that this tavern is located in a centre that has many of the attributes of a district, as opposed to a neighbourhood, centre. That is relevant because a tavern of the type proposed would not be an acceptable use within a typical neighbourhood centre. Typically in a neighbourhood centre, hotels and nightclub entertainment ought not be permitted and operating hours should “generally” cease by 10pm. Not surprisingly, more intensive development is encouraged within a district centre including entertainment where operating hours would be expected to “generally” close by midnight.[48].
  1. [83]
    Turning then to the zoning of the subject land in the opinion of Mr Ovenden, the relevance of that has been overtaken by what is actually occurring on the ground. In the JER of the town planners, he expressed the following opinions:[49]

Mr Ovenden is of the opinion is that the Medium density zoning context of the site has been overtaken by events by virtue of the development approvals for the tavern and other non-residential uses over the broader 3 hectare site since 2016.  He notes that there is no medium density residential use approved across the site…

 

Mr Ovenden notes that no specific benchmarks from the Medium density residential zone code have been identified by the Respondent in the grounds of refusal and that is because the existing and proposed development in no way represents a land use and development outcome intended for the Medium density residential zone…

 

Mr Ovenden says, against this backdrop, the provisions of the Medium density zone, as they apply to the site and as have been by the Respondent in the consolidated grounds of refusal, lack utility.  In his opinion the amenity considerations for neighbourhood centres has been overtaken by events with respect to the established development and approvals over the site.  With one of the largest integrated service station and fast food/take-away food complexes conceivable in any centre located on the site, an existing car wash, together with approval for a large tavern and associated drive-through bottle shop, a 24-hour recreation facility and large medical centre, I struggle significantly to accept the relevance on guidance provided for amenity considerations for neighbourhood centres on this site, through provisions of the MDR zone.” (emphasis added)

  1. [84]
    I would note in this regard that even more commercial development is proposed. Mr Ovenden’s evidence on this topic was not shaken during cross-examination and I accept it. In respect of Ms Morrissey’s evidence, in cross-examination she was asked to assume that the findings in respect of noise and social planning fell in favour of Pimpama Commercial. She was then asked, bearing those assumptions in mind, to identify any areas of non-compliance with the planning scheme. It would not be unfair to say that save for her concerns about the proposed trading hours not being consistent with those intended outcomes for this neighbourhood centre concerned with intensity of use, she struggled to identify any other areas of material non-compliance.[50]  In respect of the “centres” issue the following exchange took place during cross-examination:[51]

“Q …Even assuming if that’s the case from a first-principal’s planning perspective, in the exercise of the discretion, what’s the harm?  Isn’t that just a breach of the provision, rather than a breach of the planning strategy that’s going to have consequences for the public?

A The consequences for the public, I think, are the things that you’ve asked me to presume His Honour takes a particular view on, so I think that – that’s probably right.

Q Ok.  So if I can summarise, when His Honour comes to exercise the very final discretion in terms of, ‘if I allow this, what’s the planning consequences?’ Overall if His Honour favours my side on acoustics and social planning – and Council contest to the contrary; I’m asking you to presume things that are not part of Council’s case – but if His Honour does form that reasoning, can I take it that you would accept that the centre’s point alone does not call for the refusal of this change application to be fair?

A Yeah.  I – like – I – I’m struggling, because the case is about – just limited two hours of operation, so it’s not about the presence of the tavern, so it’s just about it – the intensity of the use that the additional hours actually brings.  And I know that you’re asking me to take a view that there’s no impact with that…

Q No, no unacceptable impact?

A Right, so no unacceptable impact with that.  So – alright.  I think that you – I’m struggling with putting those things aside, because I think that, like, to – to look at the case, those things come into play, so to – to pull those – to isolate those things out – because they’re – they’re all inter-related – I am struggling with that.  Yeah, I – I think that the – what would be left, without those, is – is the non-compliance point, and – and that’s an interpretation.

Q Sure, that’s left.  But when we move to look at the – as I’ve asked you to do – the planning consequences.  And what I’m saying is…(those) planning consequences would not call for refusal on the centre point alone, based on the presumptions that I’ve asked you to make; that – it has to be fair can I suggest?

A Yep. Yes.

(emphasis added)

  1. [85]
    To be clear, Ms Morrissey’s reference to “putting those things aside” and “those things come into play” are references to the matters addressed by the social planners and the experts concerned with noise, the matters she was asked to assume would fall in favour of Mr Batty’s client.
  1. [86]
    The cross-examination of Ms Morrissey set out above makes it tolerably clear that in the event that the court was satisfied that there was no genuine non-compliance with the relevant provisions of the Medium density residential code and/or Social and health impact assessment (SHIA code) and/or general development code, would be those associated with the Council’s strategy concerned with the hierarchy of and operation activities within centres.
  1. [87]
    For the reasons already given, I am satisfied that the extension of trading hours from 12am to 2am would not result in any unacceptable impacts, in the sense of creating any genuine level of non-compliance with the planning scheme, in respect of residential amenity and/or other social and health issues.
  1. [88]
    As to Ms Morrissey’s concerns about centres, they are set out in some detail in her supplementary court report.[52]  Leaving aside issues going to amenity and other social impacts including health, her concerns in this regard were about the intended increase in “intensity of activity”.  In this respect Ms Morrissey opined by way of example:

…the extended hours and proposed noise mitigation measures (including a likely noise management plan) would serve to facilitate greater intensity of activity than that reasonably expected for the site, given its context and contribution to a lower order centre.” (emphasis added)

  1. [89]
    And, to a similar effect, while a 12am closing time would achieve “an appropriate balance for the size and type of centre, within which the approved tavern will be located,” a later closing would not.  And, finally in this context that:[53]

the alternate extended operating hours exceeds the hours nominated as a maximum or limitation by SO10.   As the Pimpama Junction Centre (including the subject land) is not mapped as a district centre, it does not benefit from being within a mixed use centre category.”

  1. [90]
    The reference to SO10 is a reference to Specific Outcome 10 which provides that commercial operating hours in district centres “generally” cease by midnight to limit potential social and amenity impacts arising from these uses to nearby residents. According to Ms Morrissey the extended trading hours would be beyond the reasonable expectations set by the planning scheme. In her evidence-in-chief she was asked whether the specification of hours of operation in the planning scheme, which did not exist in the previous version, suggested a deliberate change in planning policy. Ms Morrissey responded to that question in the following way:[54]

It does.  The fact that there was no – there was no limitation on hours of operation, but the current policy that there is a limitation, the limitation being 10pm for neighbourhood centres and 12 midnight for district centres, suggests to me that that is something that this local authority is reflecting through community values being indicated to the local authority.  So I think that that is a policy – that is a deliberate and purposeful policy direction of the local government, to actually put in a limitation of operating hours for certain – for lower order centres.” (emphasis added)

  1. [91]
    The concept of the reasonable expectations of the community have been recently considered in a number of decisions of the Court of Appeal. In Bell v Brisbane City Council & Ors[55] the Court of Appeal per McMurdo JA said that conformity with a planning scheme is, prima facie, in the public interest and that it had to be assumed that the public interest would be served by confining development to that which complies with the planning scheme and that would be “in alignment with community expectations.”
  1. [92]
    More recently, in Gold Coast City Council v K & K(GC) Pty Ltd[56] it was said:

“…It has been established beyond argument that a decision maker must take a Planning Scheme to be an expression of the public interest in terms of land use. The proposition can be put the other way around. It is, in general, against the public interest to approve a development that conflicts with the Planning Scheme. To justify such a development it must be demonstrated that the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo. The public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied…”

  1. [93]
    In both Bell and the K & K (GC) of the Court of Appeal was concerned with the operation of the now superseded Sustainable Planning Act 2009.  That Act has of course been replaced by the Planning Act.  Notwithstanding, those statements of broader principle remain applicable.
  1. [94]
    No doubt, at least in part influenced by the sheer size and nature of this centre, including the approval of a tavern with a 12am closing time, Ms Morrissey did not advocate for a closing time of 10pm.  Instead, she considered that the reasonable expectations of the community would be that “commercial operating hours in district centres generally cease by midnight…[57]  No doubt the reasonably informed member of the community would be aware of that “general” objective.  However, that same member of the community would be also aware that the midnight closing time was not set in stone. 
  1. [95]
    In Mr Ovenden’s court report[58] he identified seven other taverns operating in neighbourhood centres within the Council’s local government area.  None of those centres closed any earlier than 2am (Robina Tavern) and the spread of closing time for the service of alcohol was between 1am and 2am and, in respect of gaming between 1.30am and 4am.  Mr Ovenden readily accepted that those examples could not be used as setting any sort of precedent as they were approved, in some cases many years ago, under previous planning regimes which did not establish any guidelines in respect of operating hours.  That said, I accept his evidence that the reasonably informed member of the community would probably also be aware of tavern trading hours extending beyond 12am and, indeed at the very least, would be aware of the tavern in the district centre trading just down the road which closes at 2am.
  1. [96]
    As already referred to Ms Morrissey, when pressed on her “centre” point, had to concede that any non-conformity with the planning scheme would not of itself warrant refusal.  Having elicited that concession Mr Batty then fairly put the proposition that Ms Morrissey would be much more comfortable with a 2am closing time rather than 4am.  That proposition was readily seized upon.[59]
  1. [97]
    Returning to the balancing exercise posed by Mr Lyons,[60] for the reasons given, I am satisfied that the extension of trading hours from 12am to 2am would, subject to the matters addressed below, result in positive social outcomes and would meet a community need and would, not result in any unacceptable impacts, in the sense of creating any genuine level of non-compliance with the planning scheme, in respect of residential amenity and other social and health issues.
  1. [98]
    However, given my conclusions about the likely level of social interaction that might occur between 2am and 4am; I am not satisfied that extending the closing time to 4am, would “enhance positive social and health impacts” and be “responsive to community need and aspirations.”[61]  In this regard I draw some comfort from the evidence of the social planners and Ms Morrissey to the effect that a 2am closing time would be more preferable than 4am, having regard to, in particular, the objective of minimising and mitigating adverse impacts on amenity and the reasonable expectations of the community.
  1. [99]
    In this context I should also say that I do not accept that it would be an appropriate planning outcome that those patrons at the proposed tavern who wish to continue socialising after 12am should then proceed to the nearby tavern in the district centre. Mr Ovenden made it clear that he did not consider that to be a sound town planning outcome.[62]  As far as I am aware, this topic was not taken up with Ms Morrissey or either of the social planners.
  1. [100]
    For the reasons stated, I have reached the conclusion that the matters raised for consideration in the issues in dispute[63] do not warrant the closing of the tavern by 12am every night of the week.
  1. [101]
    While I have found that there is a community need for trading hours up to 2am on Friday and Saturday and likely Thursday nights, it appears to me that the need or demand for a place to socialize and interact up to 2am would, in all probability drop away dramatically on Sunday night through to Wednesday night. However, in the way the respective cases were advanced before me, there was no suggestion that I could or should make a distinction between trading hours for different nights. In those circumstances, rather than make final orders allowing trading up to 2am every night of the week, I will publish my reasons and, if necessary hear further from the parties.

Footnotes

[1]See Exhibit 5, Appendix C1, p 51-52.

[2]S 45(5)(a)(i) of the Planning Act: Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 19 at [41] and [50].

[3]Bell v Brisbane City Council [2018] QCA 84 at [70]: Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [47]; Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41 at [116]-[117], Parmac Investments Pty Ltd v Brisbane City Council [2018] QPELR 1026, at [25]-[28].

[4](2019) QPEC 46 at [22].

[5]Exhibit 7.

[6]While not formally tendered, I will make the amended list of issues in dispute Exhibit 7A.

[7]At [1] – [5].

[8]Counsel’s written submissions at [21] and [22].

[9]Exhibit 5 at [4.3].

[10]Exhibit 4, para 6.4.

[11]Exhibit 6 at p 12.

[12]At p 13.

[13]Exhibit 12 at p 7.

[14]Exhibit 12A at p 6.

[15]Atkinson v Ipswich City Council & Anor [2006] QPELR 550 at [89], [92] and [93]; Bartlett Estates Pty Ltd v Redland City Council [1986] QPELR 22: BIM Holdings Pty Ltd v Pine Rivers Shire Council & Ors [2002] QPELR 363; Debernardi & Vertex Bianca Nominees Pty Ltd v Gold Coast City Council & Anor [1994] QPLR 168 and Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPELR 648.

[16]At [70] and [71].

[17]Refer to Exhibits 23A, 23B and 23C.

[18][2017] QPEC 23 at [39].

[19](1986) 2 QDR 317 at 326.

[20]At para [14] herein and at T3-7, l 20 – 33.

[21]Exhibit 4 at p 71.

[22]Exhibit 4 at p 18.

[23]E.g. youth disengagement.  The number of people renting.  And households in housing distress. 

[24]E.g. the number of single parent families.  Households in social housing and people experiencing unemployment and homelessness.

[25]In this regard it could be said that Ms Rolley-Cervanjak only advanced positives.  However that has to be seen in the light of her presenting reasons as to why this community could not be sensibly described as being vulnerable.

[26]Exhibit 13 at p 5, para 12; also ex 13A, p 5.

[27]T2 – 80 ll 27-47. T2 – 81 ll 1-7.

[28]Exhibit 4 at p 56.

[29]Coomera Lodge Hotel.

[30]T2-79, ll 10-33.

[31]Exhibit 4 at p 70, [9.5].

[32]T3-5, ll 7 – 27.  (This would result in approximately $315,000.00 in gross wages and five to six full-time employees).

[33]T3-43, ll 8 – 17, T3-44, ll 1- 7.

[34]T2-38, ll 3-5.

[35]T2-56, ll 20-45.  T2-57, l 1.

[36]Most probably the type addressed when dealing with the issue of noise.

[37]Exhibit 4, paras 8.83-8.84.

[38]Exhibit 10, para 12.

[39]Exhibit 3, pp 55 and 57. 

[40]Exhibit 3, pp 59-60.

[41]T2-80, l 7.

[42]Exhibit 4, p 62, para 8.102.

[43]While the evidence is far from perfect on this matter, it would be expected that between 12:00am and 2:00am the number of patrons would range from between 50 to at or about 30.

[44]Exhibit 24.

[45]Exhibits 14, 15, 16, 17, 18 and 19.

[46](2011) 180 LGERA 278.

[47]Exhibit 5 at p 15 [5.2].

[48]Exhibit 3 (Part 2) at p 13.

[49]At [5.42] – [5.44].

[50]T3-34, ll 27-47.  T3-35.

[51]T3-36, ll 15-45.  T3-37, ll 1-3.

[52]Exhibit 11A at pp 7 – 9.

[53]Exhibit 11A at p 8.

[54]T3-30, ll 10-17.

[55][2018] QCA 84 at [70].

[56][2019] QCA 132 at [67].

[57]S4.4.4.2 (x) of the Planning Scheme.

[58]Exhibit 8.

[59]T3-37, l 16-19.

[60]At [14] herein.

[61]S 9.4.11.2(2) of the social and health impact assessment code.

[62]T3-27, ll 5-29.

[63]At para [12] herein.

Close

Editorial Notes

  • Published Case Name:

    Pimpama Commercial Pty Ltd v Council of the City of Gold Coast

  • Shortened Case Name:

    Pimpama Commercial Pty Ltd v Council of the City of Gold Coast

  • MNC:

    [2020] QPEC 33

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    24 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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