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King of Gifts (Qld) Pty Ltd v Redland City Council

 

[2020] QPEC 42

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

King of Gifts (Qld) Pty Ltd v Redland City Council & Anor [2020] QPEC 42

PARTIES:

KING OF GIFTS (QLD) PTY LTD
(appellant)

v

REDLAND CITY COUNCIL
(respondent)

and

DEPARTMENT OF TRANSPORT AND MAIN ROADS
(first co-respondent by election)

FILE NO/S:

3641 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2020

JUDGE:

Kefford DCJ

ORDER:

I order:

1. The appeal is allowed.

2. The development application is approved subject to the conditions in pages 1 to 402 of the development approval package marked “A” and attached to the judgment given on 18 June 2018.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station with associated car wash facility, drive through restaurant and on-site effluent disposal irrigation area – where the land was in the Environmental Protection Zone and Open Space Zone of the Redlands Planning Scheme 2012 Version 4 – where the land was within the Bushland Living Precinct and the Greenspace Network in the Kinross Road Structure Plan Area in the Redlands Planning Scheme – where the proposed development complies with the ecological provisions of the Environmental Protection Zone Code and the Kinross Road Structure Plan Overlay Code – where the proposed development conflicts with the Redlands Planning Scheme by proposing to locate uses that are nominated as inconsistent uses in the zone and because the uses are not low-key in nature – where the proposed development complies with the planning rationale for limiting the uses to low-key uses – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval

LEGISLATION:

Planning Act 2016 (Qld), s 311

Sustainable Planning Act 2009 (Qld), s 314, s 324, s 326, s 493, s 495

CASES:

Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, applied

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, applied

Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved

King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, cited

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40, approved

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, applied

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 446, approved

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, applied

Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, approved

Weightman v Gold Coast City Council & Anor [2002] QPEC 67; [2003] QPELR 250, cited

Weightman v Gold Coast City Council [2002] QCA 234; [2003] 2 Qd R 441, applied

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved

COUNSEL:

Christopher Hughes QC and Paul Beehre for the appellant
Errol Morzone and Keith Wylie for the respondent

SOLICITORS:

AJ Torbey & Associates for the appellant
Redland City Council Legal Services for the respondent

TABLE OF CONTENTS

Introduction

What were the findings of the Court of Appeal about the nature of the error?

What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009?

What is the nature of the proposed development?

What is the nature and extent of the conflict with the Planning Scheme?

What is the nature and extent of the conflict occasioned by visual amenity impacts?

What is the nature and extent of the conflict occasioned by ecological impacts?

What is the nature and extent of conflict occasioned by ecological impacts in the southern portion of the land?

What is the nature and extent of conflict occasioned by ecological impacts in the northern portion of the land?

What is the nature and extent of the conflict occasioned by the use and its built form?

Overall conclusions regarding the nature and extent of conflict

What are the matters of public interest relied on by the appellant?

Is there a need for the proposed development at the proposed location?

Is the appellant’s failure to adduce evidence of the community advantages of compliant development fatal?

Are there sufficient grounds to justify approval despite the conflict?

Conclusion

Introduction

  1. [1]
    The appellant, King of Gifts (Qld) Pty Ltd, wants to redevelop part of a degraded and disused farm at the confluence of two major roads for a service station (including associated shop and carwash facility) and a drive through restaurant.  It also proposes to establish a vegetated environmental buffer in the northern part of the subject land. 
  1. [2]
    The appellant made a development application seeking a development permit for material change of use to facilitate its desired development.  The application was impact assessable against the Redlands Planning Scheme Version 4 (“the Redlands Planning Scheme”), being the version of the planning scheme that was in place when the appellant made its development application. 
  2. [3]
    Redland City Council (“the Council”) accepts there is a need for a service station.  Despite that, it refused the appellant’s development application.  The Council contends that the use should not be established in this location as the land is in the Open Space Zone and the Environmental Protection Zone.
  3. [4]
    The appellant appealed the Council’s decision to this Court.  The appeal was commenced during the operation of the Sustainable Planning Act 2009 (Qld) and, despite the repeal of that Act, is to be assessed and decided under that framework.[1]  The appeal proceeds by way of hearing anew.[2]  The appellant bears the onus of establishing that the appeal should be allowed, and the development application should be approved.[3]
  4. [5]
    The appeal was originally heard on 31 July 2017, 2 and 3 August 2017, and 11 and 31 October 2017.  For reasons provided in a judgment delivered on 6 November 2017, I allowed the appeal and approved the proposed development.[4]  That judgment was delivered before the decisions of the Court of Appeal in Bell v Brisbane City Council & Anor[5] and Gold Coast City Council v K&K (GC) Pty Ltd.[6]
  5. [6]
    An application for leave to appeal was heard by the Court of Appeal on 12 March 2019.  The reasons for judgment were delivered on 13 March 2020.[7]  The Court granted leave to appeal and allowed the appeal on only one of the grounds of appeal. 
  6. [7]
    In allowing the appeal, the Court of Appeal determined that:
    1. (a)
      there was no material error in my approach to determining the scope of the conflict that invoked the application of s 326(1)(b) of the Sustainable Planning Act 2009; but
    2. (b)
      I erred in my approach to determining whether there were sufficient grounds to justify approval of the development application despite the conflict.
  1. [8]
    The Court of Appeal remitted the matter to this Court to be determined according to law.  The only question for determination on remittal is whether there are sufficient grounds to justify approval of the proposed development despite the conflicts with the Redlands Planning Scheme.

What were the findings of the Court of Appeal about the nature of the error?

  1. [9]
    In the Court of Appeal, the Council argued that there were three errors of law that they said affected the exercise of my discretion to allow the appeal.[8]  Only one error was found by the Court of Appeal.  It was very limited in nature. 
  2. [10]
    The nature of the error was explained by McMurdo JA, with whose reasons Fraser JA agreed, in the following way:[9]

[168] Her Honour’s findings that there was a “need” for this development are not shown, in any respect, to be the result of an error of law.  Indeed, in the Planning and Environment Court, the Council accepted that there was “a level of need for an additional service station” in the relevant area, and the debate concerned the “level of need”.  The primary judge resolved the debate by concluding that there was “a clear and strong level of economic need”.

[169] But it did not follow from those findings that there was a ground for approving the development inconsistently with the planning scheme.  Unless it was demonstrated that, in the relevant respects, the planning scheme, as it applied to this site, no longer represented what was required in the public interest, it could not be said that there were “grounds” (meaning matters of public interest) for permitting the development.  What had to be established was not just that there was a need for such development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur.  It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land.

[170] Whilst judgment in the present case was reserved, this Court delivered its judgment in Gold Coast City Council v K&K (GC) Pty Ltd, which endorsed what was said in Bell and explained the relevance (or otherwise) of a “need” for a proposed development, in the operation of s 326(1)(b). Sofronoff P, with whose judgment Fraser JA and Flanagan J agreed, said:

[48] That means it can never be enough to satisfy a provision like s 326(1)(b) of the SPA for a party merely to prove that “there is a need” for a proposed development. The existence of a need for a particular kind of development is the starting point. If the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should be met by a development on a site that does not give rise to a conflict. An applicant must identify reasons why the terms of the Planning Scheme should not prevail. Otherwise, there is a risk that, rather than applying s 326(1)(b), the decision maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or it would not be better to permit a development on the site to go ahead.”

(Emphasis added.)

A little later in his judgment, Sofronoff P continued:

 “It may be accepted that the need for a particular development in a particular place may constitute a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by a development in the particular location. Whether that is so is a question for the decision maker to consider in the circumstances of the case. If, in the circumstances of a particular case, it is in the public interest that an identified need be satisfied by a development in a place that results in a conflict, it is necessary for the decision maker to go on to consider whether the identified public interest in satisfying the need overrides the conflict with the Planning Scheme, which it is generally in the public interest to avoid.”

(Emphasis added.)

[171] Although that judgment had not been given when the present case was argued in this Court, the reasoning in those passages was suggested by the Court in the course of the oral submissions for the respondents, who thereby had an opportunity to address it.  Counsel for the respondents were unable to demonstrate that the primary judge did consider whether there was a need for the development in a location where the planning scheme provided that it should not occur, as district from more generally in the area, or a part of the area, governed by the planning scheme.

[172] The primary judge accepted that there were other matters, advanced by the present respondents, which were “supportive of approval of the proposed development.”  Her Honour did not say that these grounds, absent a “need” for the development would be sufficient.  None of them seems to be a consideration which, on its face, demonstrated that it was against the public interest that the development of this land be permitted only in conformity with the planning scheme. 

[173] For these reasons, the Council’s case in respect of ground 4 of its proposed appeal must be accepted.  The primary Judge did not consider whether there was a need for this development on this location such that the public interest would not be served by requiring that the land be developed according to the planning scheme.  In fairness to the primary judge, it should be noted that not only was her judgment given before the two judgments of this Court which I have discussed, but also that it was a consequence of the way in which the parties presented their cases in her Court.”

(emphasis added, footnotes omitted)

  1. [11]
    Philippides JA made similar findings.  She said:

[116] There can be no doubt that as a proposition of law, a planning scheme represents the public interest in the development of the land in question and a decision maker must take it to be an expression of the public interest in terms of land use.[10] It is taken as a comprehensive expression of the public interest (Bell at [66]) but in a prima facie sense, in that pursuant to s 326(1)(b) of the SPA, a sufficient matter of public interest may be demonstrated to override conformity with it.[11] A proposed development that conflicts with that expression of the public interest can only be approved where a public interest in the conflicting development is demonstrated to be sufficient to exceed the public interest otherwise represented by adhering to the provisions of the planning scheme.”

  1. [12]
    A little later in her judgment, Philippides JA observed:

[127] Clearly, the need for a particular development may in the circumstances of a case constitute a “sufficient ground” for the exercise of the discretion to approve the development.

[128] Cases where need has been held to satisfy the criterion for demonstrating a sufficient ground for approval of a particular development are, as stated in K&K, premised on the principle that the relevant planning scheme is prima facie an expression of the public interest in the use of land.  As stated in Bell at [68], in a particular case it may be evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest such that a decision maker may conclude that the planning scheme is not in the particular case an embodiment of what is in the public interest.

[129] In the present case, her Honour correctly had regard to the nature and extent of the conflict and the planning rationale for the provisions of the Redland Planning Scheme that gave rise to a conflict.  However, the issue of need which was the primary basis relied on as constituting a “sufficient ground”, was not considered from the perspective of whether the need for the development was a matter of such public interest that it overrode the public interest embodied in the Redland Planning Scheme. I therefore agree with the Council’s argument that the primary Judge’s approach to the issue of whether sufficient grounds existed to approve the development application failed to consider that the prima facie position that the planning scheme represented an expression of the public interest as to appropriate development of the land in question. The exercise of discretion under s 326 of SPA accordingly miscarried.”

(emphasis added)

  1. [13]
    Although the error is very limited in its nature, these reasons are lengthy because on remittal the Council:
    1. (a)
      advanced arguments that were inconsistent with its position at the original hearing in circumstances where the inconsistent approach is not attributable to the error found by the Court of Appeal;[12]
    2. (b)
      made submissions that have no proper foundation, either because there is no evidentiary basis for them or because they involve a misapprehension of the case law;[13] and
    3. (c)
      re-agitated arguments rejected by the Court of Appeal.[14] 
  2. [14]
    The Council’s conduct in that regard is inconsistent with its responsibility to the Court and the other parties to proceed in an expeditious way.   

What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009?

  1. [15]
    The findings of the Court of Appeal referred to in paragraphs [10] to [12] above are instructive about the approach to be taken to the exercise required by s 326(1)(b) of the Sustainable Planning Act 2009.  Relevant guidance is also provided by the Court of Appeal in its decisions in Bell v Brisbane City Council & Ors[15] and Gold Coast City Council v K&K (GC) Pty Ltd.[16]  I have considered those decisions in K&K (GC) Pty Ltd v Gold Coast City Council[17] and I rely on my analysis therein.  As I noted in that case, the decision should assume that it is in the public interest to maintain the terms of a planning scheme unless the contrary is demonstrated.[18] 
  2. [16]
    In its written outline of argument, the Council identifies what it says are important findings in Bell v Brisbane City Council & Ors,[19] Gold Coast City Council v K&K (GC) Pty Ltd[20] and Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor.[21]  Its submissions were as follows:

“4. In particular, in Bell, McMurdo JA (with whom Sofronoff P and Philippides JA agreed) opined:

a) Cases in which there is sufficient tension between the application of a planning scheme, and the public interest in approving development that departs from that instrument, “will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land”;[22]

b) It is not for the decision-maker (including, on appeal, the Court) to gainsay the expression of what constitutes the public interest that is in a planning scheme;[23]

c) Cases could arise where relevant circumstances have changed since the planning scheme was made, where it can be seen there is a factual error in the scheme itself, or where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of those kinds, a decision maker may be able to conclude that the planning scheme is not, in those particular cases, an embodiment of what is in the public interest;[24] and

d) Consideration as to whether a development’s otherwise compliance with other provisions of a planning scheme, or aspects of the planning scheme that the proposed development positively supports or achieves, are not relevant to any application of s.326(1)(b).[25]

  1. In K&K, Sofronoff P (with whom Fraser JA and Flanagan J agreed) further explained:

a) Development conformity with a planning scheme is, prima facie, in the public interest, and the raison d’être of a planning scheme is to identify how the needs of a community will be best served in a particular area;[26]

b) Section 326(1)(b) would not be satisfied by mere demonstration that “there is a need” for a proposed development—that is merely the starting point;[27]

c) To justify approval of a particular development, it must be demonstrated that the desired deviation from the scheme serves the public interest to an extent greater than the maintenance of the status quo. Put another way, the public interest that is 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;[28]

d) Circumstances unforeseen to scheme drafters need not be demonstrated in every case;[29] and

e) Need for a particular development in a particular place may constitute a matter of public interest if an identified section of the public has an interest in seeing that need satisfied by a development in the particular location.[30]

  1. In considering these decisions, the CA, in the CA’s RJ, emphasised the following principles as applicable to the instant case:

a) A planning scheme represents the public interest in the development of the land in question, and the decision maker must take it to be an expression of the public interest in terms of land use;[31]

b) Sufficient grounds will only exist in “exceptional” cases;[32]

c) Merely to prove the existence of a “need” is insufficient. That is because, unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a development “should be met by a development on a site that does not give rise to a conflict”. The existence of need for a particular development is the starting point, but no more than the starting point;[33] and

d) It is necessary to demonstrate that:

i) there is a need for the proposed development “on this location, where the planning scheme provided that it should not occur, as distinct from more generally in the area or part of the area governed by the planning scheme”;[34] and

ii) the planning scheme as it applied to the site, no longer represents what is required in the public interest and that, in the public interest, it is necessary to override the scheme as it applies to this land.[35]

(footnotes mirror those in the Council’s written outline)

  1. [17]
    In general terms, I accept the submissions made in paragraphs 4. a) to c), 5. and 6. a) to c) of the Council’s written outline (quoted in paragraph [16] above).[36] 
  2. [18]
    The effect of the Council’s submission in paragraph 4. d) is to suggest that it is irrelevant to my decision under s 326(1)(b) of the Sustainable Planning Act 2009 that:
    1. (a)
      the proposed development complies with many of the applicable provisions of the Redlands Planning Scheme; and
    2. (b)
      the proposed development achieves the environmental and visual amenity goals to which the relevant assessment criteria in the Redlands Planning Scheme are directed.
  3. [19]
    In support of its submission in paragraph 4. d), the Council cites paragraph [74] of Bell v Brisbane City Council & Ors.[37] 
  4. [20]
    It is difficult to comprehend the Council’s perceived foundation for the submission in paragraph 4. d) of its written outline of argument.  Contrary to the Council’s assertion, the submission is not supported by paragraph [74] of Bell v Brisbane City Council & Ors.[38] 
  5. [21]
    The Council’s submission is also not made good by considering paragraph [74] of Bell v Brisbane City Council & Ors[39] in the broader context in which it appears.  Relevantly, at paragraphs [73] and [74] McMurdo JA observed:

[73] After discussing the height of the proposed buildings, the judge set out and adopted a number of submissions which had been made for the council.  Amongst them was the proposition that if community need and economic need were established, that would call for something of a “balancing exercise”, under which there would be a “balancing consideration of all positive and negative attributes of the proposed development (for example, particular community benefits might weight in favour of approval even where a proposal is not consistent with community expectations)”.

[74] In that passage, the judge did not identify the legal source for that balancing exercise.  The judge did not proceed to a factual analysis of that kind, except in his consideration, at the end of the judgment, of s 326.  It would appear that the judge undertook that broad balancing exercise in the belief that this was what s 326(1)(b) required.  In my respectful opinion, the judge misconstrued the provision.  This would explain his Honour’s observation, in considering s 326, that there were many provisions of the Scheme with which the proposal was either consistent or which it “positively supports or achieves”.

  1. [22]
    These findings followed observations made earlier in Bell v Brisbane City Council & Ors[40] as follows:

Irrelevant considerations

[58] It is submitted that in determining the question under s 326, the judge erroneously took into account irrelevant considerations, of which two are identified.

[59] The first is the judge’s finding that although there were conflicts with the Scheme, the development proposal was consistent with the Scheme in many other respects.  The other is said to have been the judge’s incorrect interpretation of overall outcome (3)(h) and s 5.3.3 of the Scheme.

[60] As to the former, the judge’s consideration of the s 326 question was affected by his incorrect interpretation of the provision, as I will discuss.  However, the characterisation of that legal error as a consideration of an irrelevant matter, adds nothing to the applicant’s case.  And as to s 5.3.3, it is not demonstrated that if there was an error in that respect, it mattered for the s 326 question or otherwise.”

  1. [23]
    I do not regard the effect of McMurdo JA’s observations to be an acceptance of the proposition that consistency with the planning scheme is irrelevant to the exercise to be undertaken under s 326(1)(b) of the Sustainable Planning Act 2009.  Rather, when I read the reasons of McMurdo JA in their entirety, it seems to me that the error in the approach of the trial judge identified was that the trial judge considered the compliance with the planning scheme as part of a general balancing exercise.  Instead, the trial judge should have approached the exercise on the basis that it is in the public interest that the planning scheme is applied in each relevant respect, unless the contrary is demonstrated.[41]  To construe his Honour’s observations otherwise would be to ignore that his Honour recognised that, pursuant to s 324(2) of the Sustainable Planning Act 2009, the decision must be based on an assessment under s 314 of the Sustainable Planning Act 2009.  That involves an assessment of whether the proposed development complies with, or conflicts with, the planning scheme.
  2. [24]
    The submission at paragraph 4. d) of the Council’s outline of argument is also contrary to other Court of Appeal authority that addresses the exercise to be undertaken under s 326(1)(b) of the Sustainable Planning Act 2009
  3. [25]
    In Lockyer Valley Regional Council v Westlink Pty Ltd,[42] the Court of Appeal accepted that the appropriate approach is the three-step approach described by Atkinson J in Weightman v Gold Coast City Council & Anor.[43]  It involves examining the nature and extent of the conflict with the planning scheme.[44] 
  4. [26]
    The appropriateness of the Weightman approach under the planning regime in the Sustainable Planning Act 2009 was again acknowledged by the Court of Appeal in Gold Coast City Council v K&K (GC) Pty Ltd.[45]  In that case, Gold Coast City Council alleged that I erred in finding that the nature and extent of the conflict was reduced having regard to the extent of compliance with the planning scheme.  Sofronoff P, with whom Fraser JA and Flanagan J agreed, rejected this ground of appeal.  His Honour found no error with my finding that the extent of conflict with the planning scheme was reduced because the proposed development complied with many aspects of the planning scheme.[46]
  5. [27]
    That the Council would urge the approach referred to in paragraph [18] above is even more perplexing when one considers the Court of Appeal’s consideration of my earlier findings with respect to this case.[47]  Having regard to the reasons for judgment of the Court of Appeal in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor,[48] it seems the Council advanced a similar argument in its appeal to the Court of Appeal.  It was unsuccessful in that regard.  The following observations of Philippides JA in the decision of the Court of Appeal are pertinent:  

[63] In accordance with her findings of fact, her Honour accepted that there was a clear conflict. However, it “effectively arises as a consequence of the proposal to locate uses that are nominated as inconsistent uses and that are not low-key in nature in a zone that does not encourage that style of use”. Her Honour found that its seriousness was reduced for the reasons already outlined and which were summarised as follows:

“In short, when one reads the Environmental Protection Zone Code, Open Space Zone Code and the Kinross Road Structure Plan Area Code as a whole, together with the desired environmental outcomes and strategic framework, it seems apparent that the planning rationale for limiting the uses to low-key uses with minimal footprint is, in large part, to ensure achievement of the environmental and visual amenity goals. These goals are not materially compromised by the proposed development. As such, the seriousness of the conflict is reduced.” (emphasis added)

Relevant considerations in assessing conflict

[124] The Council’s contention that the primary judge erred in reducing the seriousness of the conflicts is misconceived. As stated in K&K, the examination of “the nature and extent of an asserted conflict is a step required by provision such as s 326 of the SPA.

[125] In the present case, the clear conflict was found to arise as a consequence of the proposal “to locate uses that are nominated as inconsistent uses and that are not low-key in nature in a zone that does not encourage that style of use”.  That finding is not challenged. Nor was her Honour’s finding that the planning rationale for limiting the uses to low-key uses with minimal footprint was, in large part, to ensure achievement of “the environmental and visual amenity goals”, that being evident from the Environmental Protection Zone Code, Open Space Zone Code and the Kinross Road Structure Plan Area Code as a whole, together with the desired environmental outcomes and strategic framework.

[126] There was no challenge to her Honour’s finding that the visual amenity goals were not materially compromised by the proposed development. Nor was there error in her Honour’s finding that the environmental goals (including in the southern portion) were not materially compromised. Furthermore, given the statements in K&K, I do not accept that the primary judge erred in considering the seriousness of the conflict.  Contrary to the Council’s submission, there was no error in reasoning that the seriousness of the conflict was reduced by the findings that those goals were not materially compromised. Nor did her Honour err in principle by conflating the “three-step” process stated in Weightman.

The approach taken by the primary judge in applying s 326(1)(b) of the SPA

[129] In the present case, her Honour correctly had regard to the nature and extent of the conflict and the planning rationale for the provisions of the Redland Planning Scheme that gave rise to a conflict. …”

(footnotes omitted)

  1. [28]
    For the reasons provided in paragraphs [18] to [27] above, I do not accept the submission in paragraph 4. d) of the Council’s written outline.
  2. [29]
    As for the submission in paragraph 6. d) of the Council’s written outline (quoted in paragraph [16] above), the findings of McMurdo JA referred to by the Council relate to the insufficiency of my finding that there was “a clear and strong level of economic need” as a ground for approving the development inconsistently with the Redlands Planning Scheme.  That is not the only matter of public interest relied on by the appellant.  I do not regard the findings of McMurdo JA as a constraint on my ability to have regard to all relevant matters of public interest when I re-exercise the discretion under s 326(1)(b) of the Sustainable Planning Act 2009.  As such, I do not accept the Council’s submission that the two questions that now require determination are limited to:
    1. (a)
      whether there was a need for the development “at this location”, as opposed to more generally; and
    2. (b)
      whether “… the public interest would not be served by requiring that the land be developed according to the planning scheme”.
  3. [30]
    Although I will address those matters, it seems to me that the real question to be determined is whether the deviation from the Redlands Planning Scheme to approve the proposed development at the proposed location serves the public interest to an extent greater than the public interest in refusing the development and thereby maintaining the land so that it may be developed in accordance with the Redlands Planning Scheme.
  4. [31]
    In order to answer that question, it is necessary to understand the nature of the development and the nature and extent of the conflict.

What is the nature of the proposed development?

  1. [32]
    The proposed development is for a combined service station and drive through restaurant to be located at 604-612 Redland Bay Road, Alexandra Hills (“the subject land”).  The built form is proposed to be located on the southern portion of the subject land, closest to the Boundary Road frontage.  It incorporates:
    1. (a)
      a service station and convenience retail facility in a single-storey building with a gross floor area of approximately 316 square metres;
    2. (b)
      eight fuel pump stations, with 14 fuelling positions;
    3. (c)
      a car wash facility with four bays and a small office and equipment area;
    4. (d)
      a fast food restaurant with drive through facility, with a gross floor area of 251 square metres; and
    5. (e)
      69 car parking spaces.[49]
  2. [33]
    The proposed development will also involve:
    1. (a)
      two noise barriers and a landscape buffer to the adjoining property to the east;
    2. (b)
      a vegetated environmental buffer in the northern part of the subject land, in the vicinity of existing vegetation and proximate to Hilliards Creek, and a buffer area that is to be re-vegetated towards the northern end of the subject land;
    3. (c)
      on site effluent treatment with a sub-surface irrigation area of 5 060 square metres;
    4. (d)
      a ten metre high pylon sign on each road frontage (subject to future approval); and
    5. (e)
      substantial road widening to Redland Bay Road and Boundary Road.[50]
  3. [34]
    The proposed hours of operation are 24 hours a day, seven days a week.  All vehicular access is proposed to be via a left-in left-out access from Redland Bay Road, with a left-out-only facility provided onto Boundary Road.[51]
  4. [35]
    The built form of the proposed development is located in the southern part of the subject land and within:
    1. (a)
      the Environmental Protection Zone of the Redlands Planning Scheme; and
    2. (b)
      Precinct 6a – Bushland Living (multiple locations) of the Kinross Road Structure Plan Area.[52] 
  5. [36]
    The effluent treatment area is located in the northern part of the subject land and within:
    1. (a)
      the Open Space Zone of the Redlands Planning Scheme;  and
    2. (b)
      Precinct 7a – Greenspace Network (Hilliards Creek Core Habitat and Corridor) in the Kinross Road Structure Plan Area.[53] 
  6. [37]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[54]

What is the nature and extent of the conflict with the Planning Scheme?

  1. [38]
    The decision about the sufficiency of grounds is to be made having regard to the nature and extent of conflict.  Accordingly, before again considering that issue, I consider it prudent to summarise my findings with respect to the proposed development, and the nature and extent of its conflict with the Planning Scheme.  As those findings were not disturbed by the Court of Appeal, I will only provide a brief summary of them.  Detailed reasons are set out in my earlier judgment.[55]
  2. [39]
    The nature of the conflicts alleged by the Council were those that it said arose from:
    1. (a)
      visual amenity impacts;
    2. (b)
      ecological impacts; and
    3. (c)
      the nature and location of the use and the type of built form.[56]

What is the nature and extent of the conflict occasioned by visual amenity impacts?

  1. [40]
    The proposed development involves an intensively developed complex of built form with a distinctly urban character.  A decision to approve the proposed development would conflict with:
    1. (a)
      the third square bullet point of overall outcome 5.15.8(2)f. and specific outcome S1.7(1)(c) of the Kinross Road Structure Plan Area Overlay Code because the use is not “low key”, nor does it “cover(s) only a small portion of the land”; 
    2. (b)
      overall outcome 4.6.7(2)(c)(i)d. of the Environmental Protection Zone Code, as the footprint cannot fairly be regarded as limited or contained, even though it is confined to that part of the subject land that is already cleared of vegetation; and
    3. (c)
      overall outcome 4.6.7(2)(d)(i)c. of the Environmental Protection Zone Code as, to the extent that it is visible, the use is not one that complements the current landscape setting.  It is of a very different built form character to what currently exists or is encouraged in the Redlands Planning Scheme, particularly given the night-time glow that will be associated with the 24 hour a day use.[57]
  2. [41]
    The conflicts referred to in paragraphs [40](a) and [40](b) are not serious.  In addition, the seriousness of each of the conflicts referred to in paragraph [40] are mitigated by the design of the proposed development.  The proposed development has been designed such that it will minimise adverse impacts on the landscape setting and will have minimal visual impact overall.[58]  In my earlier judgment I record those matters that I considered material.  They include that the buildings are low-rise in appearance; it will be difficult to appreciate the extent of the development footprint from locations external to the subject land; the proposed development appears to sit down below the road; and it will not be visually prominent.[59] 
  3. [42]
    There is no conflict occasioned by the visual impact of the proposed use of the northern portion of the subject land for an effluent treatment area.[60]
  4. [43]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[61] 

What is the nature and extent of the conflict occasioned by ecological impacts?

  1. [44]
    There are different ecological impacts in the southern portion as compared to the northern portion of the subject land.  There are also different requirements in the Planning Scheme with respect to each portion.

What is the nature and extent of conflict occasioned by ecological impacts in the southern portion of the land?

  1. [45]
    The built form associated with the proposed development is located in the Environmental Protection Zone.  The area being developed comprises approximately 75 per cent of the area so zoned.[62]  The built form of the proposed development is within that part of the subject land that is currently, and for many years has been, used for residential and rural purposes.  The area is currently cleared of native vegetation and contains buildings, gardens and groups of planted trees, cleared areas and orchards.[63]  The areas of native vegetation and corridor value will be retained, protected and enhanced.
  2. [46]
    The proposed development does not involve any substantial re-vegetation of the environmentally degraded area in the southern portion of the subject land, nor does it retain or increase the ability of the red-neck wallaby to move through the premises.[64] 
  1. [47]
    Although a less extensive development, as encouraged by the Redlands Planning Scheme, may permit greater opportunity for enhancement of environmental values, the proposed development maintains and protects those environmental values that exist on the subject land.  Those values of particular ecological significance, identified in the State and Council mapping, are the vegetated areas associated with Hilliards Creek, rather than that part of the site in the Environmental Protection Zone.[65] 
  2. [48]
    The environmental values of the subject land are also enhanced, to a limited degree, by:
    1. (a)
      the proposed landscape planting, which could be conditioned to include trees and shrubs that have a benefit to the movement of birds and other animals; and
    2. (b)
      the introduction of fencing to direct fauna towards safe road crossing points.  As was noted by Dr Watson, that part of the subject land that is in the Environmental Protection Zone is the most south-westerly part of a mapped environmental area and is bounded by two major roads, with a roundabout uphill.  Wallaby road fatalities are common in the area.[66]
  3. [49]
    As such, the proposed development complies with Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f., overall outcomes 4.6.7(2)(a)(i)c. and e. of the Environmental Protection Zone Code, overall outcome 5.15.8(2)f. (with respect to the second triangle bullet point under the fourth square) and specific outcome S1.7(2)(b) of the Kinross Road Structure Plan Area Overlay Code.
  4. [50]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[67]
  1. [51]
    In my earlier judgment, I also found that the proposed development complies with specific outcome S1.1 of the Environmental Protection Zone Code.  Although I erred in my construction of that provision, the Court of Appeal determined that the error was of no consequence.
  2. [52]
    McMurdo JA, with whose judgment Fraser JA agreed, said:[68]

[143] The view of the primary judge was that there was only one “Specific Outcome” within cl S1.1(1), namely the maintenance, enhancement and protection of environmental values.  In her view, the matters in paragraphs (a) through (h) were “mechanisms by which that outcome may be achieved”.  I respectfully disagree with that interpretation.  One reason for that is that the interpretation appears to be inconsistent with the interpretation provision of cl 2.1.5.  Another reason is that cl S1.1 was to “contribute to achieving” an Overall Outcome, more specifically that in cl 4.6.7(2)(a)(i), namely that a proposed development is to:

“Ensure uses and other development identify, protect and provide for the long-term management and enhancement of the environmental values associated with this zone …”.

If the only outcome prescribed by cl S1.1 is the maintenance, enhancement and protection of environmental values, it would be no more “specific” than the relevant Overall Outcome, so that it could not be said that its achievement would “contribute to” the achievement of the Overall Outcome.  I therefore disagree with the judge’s finding that the proposed development satisfied cl S1.1.

[144] But it does not follow that, for this reason, the proposed development did not comply with the planning scheme.  The purpose of the Specific Outcomes was to contribute to the achievement of the Overall Outcomes.  It is true, as the Council submits, that there is no express provision in this planning scheme that development that complies with the Overall Outcomes is one which is deemed to comply with the Code.  Nevertheless, that is the effect of the hierarchy of outcomes.  The achievement of the matters listed in cl S1.1 are a means to an end, which is the achievement of the relevant Overall Outcome.  There is no provision to the effect that the achievement of everything within cl S1.1 is necessary for the Overall Outcome to be achieved.  The Specific Outcomes contribute to the achievement of the Overall Outcomes, but they are not essential conditions of that result.

[145] On the findings of the primary judge, this development would maintain and protect the environmental values that exist on the subject site, although a less extensive development might permit a greater opportunity for enhancement of environmental values, and the Overall Outcome would result.

[146] Consequently, the point of interpretation of cl S1.1, upon which I have disagreed with the primary judge, does not matter, because the planning scheme was satisfied in this respect by the achievement of the Overall Outcome described in cl 4.6.7.”

(footnotes omitted)

  1. [53]
    Philippides JA similarly found:[69]

[79] Her Honour’s approach in relation to the matter of non-compliance with S1.1 is of no consequence, given the concession made quite properly by the Council at trial.  That concession was that, where impact assessment requires assessment against “all relevant provisions” of the scheme and a code’s overall outcomes are defined as being the purpose of the code, upon the development demonstrating compliance with the relevant overall outcomes in the EP Zone Code, it was open to conclude that there was compliance with the EP Zone Code overall, notwithstanding non-conformance with an EP Zone Code specific outcome as alleged.  The Council’s submission at trial was that the concession did not affect this case since, in the circumstances of this case, the evidence indicated non-compliance with both overall and specific outcomes of the EP Zone Code and other codes.  For the reasons stated below, irrespective of the finding as to non-compliance with specific outcome S1.1(1), her Honour correctly found there was no non-compliance with the relevant overall outcome of the EP Zone Code.  There was no operative error concerning the construction of S1.1(1).

(footnotes omitted)

What is the nature and extent of conflict occasioned by ecological impacts in the northern portion of the land?

  1. [54]
    In the northern portion of the subject land, the proposed development includes:
    1. (a)
      on site effluent disposal with a sub-surface irrigation area of 5 060 square metres;
    2. (b)
      a vegetated environmental buffer in the vicinity of existing vegetation and proximate to Hilliards Creek; and
    3. (c)
      a buffer area that is to be re-vegetated towards the northern end of the subject land.[70]
  2. [55]
    The evidence of the ecology experts demonstrates that the proposed development will:
    1. (a)
      protect the creek and associated riparian vegetation and will create additional habitat, including grassland for several fauna (such as wallabies);
    2. (b)
      retain remnant vegetation, essential habitat (in their entirety) and provide a buffer to the “core habitat” values associated with Hilliards Creek;
    3. (c)
      retain and enhance the movement corridor for common and threatened fauna;
    4. (d)
      protect and provide wildlife corridors and maintain connections to habitat areas to provide for the movement and migration of native fauna throughout Redlands; and
    5. (e)
      incorporate and enhance aquatic (waterway) and terrestrial (riparian, bushland, grassland) environments, maintain and enhance ecological values and functions within the Kinross Road – Hilliards Creek open space network, particularly as part of the environmental buffer and protection area.[71]
  3. [56]
    The grassed area would provide habitat to fauna such as bandicoots, native lizards and frogs, and potentially birds that nest in clumps of grass (like plovers).[72]
  4. [57]
    There is also approximately 5 900 square metres of open space to the east and west of the area to be used for effluent treatment, which could be subject to a condition requiring it be planted with trees and shrubs.[73]
  5. [58]
    In those circumstances, a decision to approve the proposed development would not conflict with Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f., overall outcome 5.15.8(2)g. (with respect to the first, second and third triangle bullet points under the first square and the first triangle bullet point under the second square only) and specific outcomes S1.9(1)(a) and (f) and S1.9(2)(a) of the Kinross Road Structure Plan Area Overlay Code.[74]
  6. [59]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[75]

What is the nature and extent of the conflict occasioned by the use and its built form?

  1. [60]
    Both a service station use and a drive through restaurant are listed as inconsistent uses in Table 1 in the Environmental Protection Zone Code.[76] 
  2. [61]
    The types of uses encouraged on the subject land are:
    1. (a)
      agricultural activities, or educational, scientific or community activities that support environmental values; 
    2. (b)
      single dwelling houses on existing privately owned lots, including working from home; and
    3. (c)
      home businesses, low-key tourism and recreational pursuits in an environmental setting.[77]
  3. [62]
    The uses are intended to be low-key.[78]  The proposed development could not fairly be described as a low-key use.  It is fundamentally different in nature and size (in terms of its footprint) to the types of uses and development that the Redlands Planning Scheme envisages on the subject land.[79]  The character of the proposed development is also not consistent with the locality.[80]  The public would not expect a service station to be located on the subject land.[81]  The proposed drive through restaurant is also not compatible with the character of the locality, nor is it proposed to be located within an existing centre.
  4. [63]
    As such, given the nature of the use[82] and the character of the built form of the proposed development, a decision to approve it would conflict with:
    1. (a)
      overall outcome 4.6.7(2)(b)(i)e. and specific outcomes S2.1 and S2.2(1) of the Environmental Protection Zone Code;
    2. (b)
      specific outcomes S1.1 and S1.2 of the Open Space Zone Code;
    3. (c)
      overall outcome 5.15.8(2)f.[83] and specific outcomes S1.1 and S1.7(2)(a) and (c) of the Kinross Road Structure Plan Area Overlay Code; and
    4. (d)
      overall outcome 6.9.3(2)(a) and specific outcome S1(1)(a) and (b) of the Drive Through Restaurant Code.[84] 
  5. [64]
    The seriousness of the conflict is tempered by:
    1. (a)
      the low, even negligible, visual amenity impact and the absence of unacceptable ecological impacts;
    2. (b)
      the low-key appearance that is achieved as a consequence of the scale of the proposed buildings (being single storey), the location of the buildings set down below the tree-line, the landscaped presentation to the abutting roads and the generous setbacks from the road boundaries;
    3. (c)
      the park-like appearance of the effluent treatment area;
    4. (d)
      the absence of impact from the 24-hour operation of the proposed use given its location away from residential development and the incorporation of site works, such as acoustic barriers and landscaping, that will ensure that any potential amenity impacts are negated or controlled to acceptable levels; and
    5. (e)
      in relation to the drive through restaurant, its proposed co-location with a service station, which adds to the convenience of its use.[85] 
  6. [65]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[86]

Overall conclusions regarding the nature and extent of conflict

  1. [66]
    At the original hearing, the Council submitted that the development is in such clear and cogent conflict with the Redlands Planning Scheme that almost overwhelming grounds for approval would be required to justify approval of the proposed development.[87]
  2. [67]
    There is clear conflict as identified above.  It effectively arises as a consequence of the proposal to locate uses that are nominated as inconsistent uses and that are not low-key in nature in a zone that does not encourage that style of use.[88] 
  3. [68]
    However, the seriousness of the conflict is reduced for the reasons provided above.  In short, when one reads the Environmental Protection Zone Code, Open Space Zone Code and the Kinross Road Structure Plan Area Code as a whole, together with the desired environmental outcomes and strategic framework, it seems apparent that the planning rationale for limiting the uses to low-key uses with minimal footprint is, in large part, to ensure achievement of the environmental and visual amenity goals.  These goals are not materially compromised by the proposed development.  As such, the seriousness of the conflict is reduced.[89]
  4. [69]
    These findings, which I made in my earlier judgment, were not disturbed by the Court of Appeal.[90]
  5. [70]
    The Court of Appeal does not suggest that the conflict is of a nature and extent that means sufficiency of grounds to justify approval could never arise.  This is the issue that must now be determined by me. 

What are the matters of public interest relied on by the appellant?

  1. [71]
    The appellant submits that the strong and clear level of need is an important reason why the public interest would be served by approving the proposed development rather than retaining the subject land available for other development or rehabilitation.  However, it is not the only ground relied on by the appellant.  The appellant submits that approval of the proposed development is justified despite the identified nature and extent of conflict with the Redlands Planning Scheme because:

“(a) It is clearly a matter of public interest that such strong economic and community need be satisfied on site that is not only:

  1. (i)
    Conveniently located and readily accessible to the public it will serve, but also
  1. (ii)
    In circumstances where there are no unacceptable impacts on the amenity or the environment.
  1. (b)
    It is in the public interest that this proposal recognises protects and advances the albeit limited environmental value of this land which includes dedication of the rehabilitated buffer area.
  1. (c)
    It is in the public interest that the proposed development will facilitate the ultimate upgrading of the local road network by setting back from required road reserves.
  1. (d)
    Overall, it is in the public interest that the proposed development ensures the appropriate utilisation of this land in a strategic location and position for the provision of a needed facility without any unacceptable amenity, economic, or environmental impact.  Rather with respect to these matters it will provide an attractive, well-landscaped, facility, providing for essential requirements for the community without unacceptable economic impacts, and with the achievement of environmental gains on an otherwise degraded parcel of land.”
  1. [72]
    The Council disputes that there is a need for the proposed development at the proposed location. 
  2. [73]
    The Council also contends that the appellant cannot demonstrate that there are sufficient grounds to justify approval because it has failed to adduce evidence that demonstrates the community advantages of development that complies with the Redlands Planning Scheme.

Is there a need for the proposed development at the proposed location?

  1. [74]
    My earlier findings with respect to the need for the proposed development were not criticised by the Court of Appeal, nor was my analysis of the general principles in relation to need.  As such, although I will make reference to parts of my earlier judgment, I continue to rely on those reasons set out therein.[91]
  2. [75]
    Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community.[92]
  3. [76]
    Based on the number of residents in the trade area, and the limited number of service stations located within that same area, the Council accepts that there is a level of need for an additional service station within the primary trade area identified by the economists.[93]  The Council also accepts that the proposed service station will provide greater convenience and choice to both passing motorists, who otherwise reside outside of the primary trade area, as well as residents of the primary trade area.[94] 
  4. [77]
    In my earlier judgment, I found that there is a clear and strong level of economic need for the proposed development given:
    1. (a)
      there is currently approximately 10 000 persons in the primary trade area alone, which is predicted to increase to 13 700 persons by 2031.  As such, the primary trade area could presently support two to three service stations.  It currently supports none.  This court refused one of the two proposed service stations, the Coles Express at Paradise Gardens, on 6 September 2017.[95]  Mr Norling acknowledges that the growing population of the primary trade area will support an increased provision of commercial facilities such as a service station, car wash and fast food outlet;
    2. (b)
      the projected population increases for Redland City indicate that a further ten service stations will be required in Redland City in the coming years, with two supportable in Thornlands.  As such, existing service stations in Redland City have substantial existing and future population bases to serve;
    3. (c)
      the growth in the fuel market in the primary trade area is projected at 5.8 million litres.  A modern service station typically requires around 3 – 3.5 million to be successful.  As such, the growth in the fuel market demonstrates the need for an additional two service stations;
    4. (d)
      in relation to the drive through restaurant, it is a normal part of this type of development to co-locate with such uses.  The subject land provides a sustainable, viable location for a drive through facility complementing the service station, particularly given its location on the homeward-bound side of the road;
    5. (e)
      the proposed development would provide increased convenience, choice and competition in a growing market.  There is no service station with car wash facilities in the southern part of the catchment.  Mr Norling acknowledges that the co-location of fast food outlets and car washes with service stations provides a convenience benefit to many motorists.  He also acknowledges that the proposed development would improve the convenience for those in the primary trade area, and that it would improve the level of choice, which is currently low for those in the primary trade area; and
    6. (f)
      the proposed development is unlikely to impact on the ability of the existing or other proposed service station to viably trade over time.  The total fuel market in the trade area is projected to be in excess of 26 million litres by 2031, excluding commercial vehicles, boats and visitors.[96]
  5. [78]
    McMurdo JA dealt with my consideration of the question of need generally in his reasons at [165] to [169].  At [168] he found:

[168] Her Honour’s findings that there was a “need” for this development are not shown, in any respect to be the result of an error of law. Indeed, in the Planning and Environment Court, the Council accepted that there was “a level of need for an additional service station” in the relevant area, and the debate concerned the “level of need”. The Primary Judge resolved that debate by concluding that there was “a clear and strong level of economic need.”

(footnotes omitted)

  1. [79]
    The Council now submits that my previous findings with respect to need for the proposed development related only to need for a further service station in the general area.  In addition, it submits that the evidence does not descend to a consideration of the demonstrable need for the proposed development on the subject land.  In oral submissions, the Council went so far as to say that there is no evidence before me on which I could find that there is a need for a service station on the subject land.  That submission is not open.
  2. [80]
    The Council’s submissions are disingenuous.  These arguments were not advanced by the Council at the original hearing.  In fact, they are inconsistent with the case advanced by the Council at the original hearing, where the Council spent considerable time cross-examining witnesses about the suitability of the subject land for the proposed development.  The case advanced by the Council in its original submissions, and put to the witnesses, was that the location was not appropriate as it did not provide convenient access.  At the original hearing, the Council also advanced a case that the needs of the residents of the trade area could be adequately met by existing facilities and, as such, the need for the proposed development could not be characterised as a strong need.  This is the case that the appellant is required to meet.[97] 
  3. [81]
    The need for the proposed development at the proposed location was the very issue considered by Mr Duane and Mr Norling in the Joint Economic Need Report.  Although the evidence of the economists includes an analysis of the need for further facilities of the type sought in the trade area generally, their analysis is not confined to that issue. 
  4. [82]
    In section 1 of the Joint Economic Need Report, the economists identify that the development application in issue is one seeking a development permit to make a material change of use of land at 604-612 Redland Bay Road, Alexandra Hills.  The economists record that the appellant seeks permission to use that land for a service station (including ancillary car wash facility), drive through restaurant and refreshment establishment.  They describe the pertinent details of the proposed development.  For example, they note that the service station is proposed to accommodate 14 fuelling positions, a convenience store of 316 square metres and a car wash facility, and a fast food premises of 251 square metres that is intended to have a drive through facility.  They also record the pertinent details that relate to the provision of the proposed development on the subject land.  For example, they note that access to the subject land will be left-in, left-out for traffic travelling southbound along Redland Bay Road and also left-out along Boundary Road.  They record that the proposed development will not have direct access for traffic travelling along Boundary Road.  They note that, in order to access the proposed development on the subject land, traffic along Boundary Road would have to turn left into Redland Bay Road and undertake a u-turn along Redland Bay Road opposite Parkwood Drive, approximately 250 metres north of the intersection of Redland Bay Road and Boundary Road.  There is no suggestion that the economists were incorrect in their description of these pertinent details about the proposed development and its provision on the subject land. 
  5. [83]
    In section 2 of the Joint Economic Need Report, the economists identify relevant context from the planning documents that inform their opinions about the need for the subject development on the subject land.  In that respect, the economists identify that the subject land is in the Environmental Protection Zone and the Open Space Zone, and that the proposed service station and drive through restaurant are inconsistent uses in those zones.  They also acknowledge that the subject land is within the Kinross Road Structure Plan Area, and that the subject land is identified as Bushland Living and Greenspace Network in that Structure Plan. 
  6. [84]
    The economists record their understanding that the Redlands Planning Scheme identifies the following zones as appropriate locations for a service station:
    1. (a)
      Commercial Industry;
    2. (b)
      District Centre;
    3. (c)
      Local Centre;
    4. (d)
      Major Centre;
    5. (e)
      Neighbourhood Centre; and
    6. (f)
      General Industry.
  7. [85]
    They also record their understanding that the Redlands Planning Scheme identifies the following zones as appropriate locations for a drive through restaurant:
    1. (a)
      District Centre;
    2. (b)
      Local Centre;
    3. (c)
      Major Centre; and
    4. (d)
      Neighbourhood Centre.
  8. [86]
    As such, the economists assume that the zones in which the proposed development as a whole could be appropriately located are the District Centre Zone, the Local Centre Zone, the Major Centre Zone and the Neighbourhood Centre Zone.
  9. [87]
    The economists identify that the Drive Through Restaurant Code requires that nature of use to be located within an established centre.  They record that the subject land does not form part of an established centre, nor is it adjacent to an established centre.
  10. [88]
    With respect to the appropriate location of service stations, the economists note that the Service Station Code requires that any service station is to complement the character of the locality and be compatible with adjoining uses and physical characteristics of the site where it is located.  They also note that the use is to be located to prevent commercial and industrial ribbon development and to complement established centres and non-residential uses in urban areas.
  11. [89]
    The economists’ assumptions about the applicable zoning of the subject land and the provisions that guide the appropriate location of service stations and drive through restaurants are borne out by the contents of the Redlands Planning Scheme. 
  12. [90]
    Before turning to the specifics of the proposed development, in section 3 of the Joint Economic Need Report, the economists consider the nature of the service station industry in Australia.  In sections 4 and 5, the economists consider the specific characteristics of the trade area that the subject development would serve, and whether there is a need for further facilities of the type proposed in the trade area.
  13. [91]
    Having outlined the base assumptions that guide their assessment, in section 6 and section 7 of the Joint Economic Need Report, the economists analyse the need for the proposed development on the subject land.  In doing so, they have regard to the particular characteristics of the subject land.  For example, they consider whether the subject land would provide the residents of the trade area with convenient access to the proposed service station and drive through restaurant.  They agree that the proposed development would be located on a heavily trafficked intersection, and that it would serve local residents on their homeward bound journey.  These observations are made with respect to this particular proposed development at its proposed location on the subject land.
  14. [92]
    In section 9 of the Joint Economic Need Report, Mr Duane and Mr Norling express their conclusions with respect to the need for the proposed development. 
  15. [93]
    Mr Norling’s opinion about the need for the proposed service station is recorded in paragraph 71, which commences with the words:

“JN concludes that there is a minor to modest level of community, economic and planning need for the proposed Service Station on the subject site:”

  1. [94]
    Consideration of the evidence given by Mr Norling during his evidence-in-chief confirms that his opinions relate to the need for the proposed development on the subject land.  This is evident, for example, from the following exchange with Mr Wylie:

“With respect to the trade areas that yourself and Mr Duane identified, what is the relevance of the trade areas to your opinion, in this regard?I think that the primary trade area is very important because that is an area where the needs of that community are less well serviced by the existing network.  I do not think that the secondary north or the secondary east are of great relevance at all because majority of those residents would be – would have less likelihood of travelling past the subject site, and those two communities have much readier access to a range of other existing facilities.  So in my mind, in relation to servicing a need, it’s really about servicing the needs of that primary – existing and future primary trade area population.”

(emphasis added)

  1. [95]
    Mr Duane records his opinions about the need for the subject development in paragraph 70 of the Joint Economic Need Report.  The introductory words to that paragraph do not refer to the subject land.  Despite that, it is apparent in considering the report as a whole that his opinions are about the need for the proposed development on the subject land.  It is difficult to conclude otherwise as there is no suggestion elsewhere in the report that the proposed development might be delivered at some alternative location. 
  2. [96]
    Any remaining doubt about the subject of Mr Duane’s opinions is dispelled by considering his individual report.  In that report, Mr Duane expressly addresses the access arrangements peculiar to the subject land, and how those arrangements inform the differences in opinion between him and Mr Norling about the extent of need for the proposed development.  Mr Duane’s opinions about the need for the proposed development were also tested during cross-examination.  Mr Wylie, Counsel for the Council, cross-examined Mr Duane on the validity of his assumptions about the convenience of accessing the proposed development on the subject land via the arrangements specifically proposed to gain access to the proposed development on the subject land.[98]
  3. [97]
    In support of its argument that the evidence does not relate to the need for the proposed development at the proposed location, the Council points to statements made by Mr Duane about the need for further facilities within the trade area generally.  The Council asserts that, given those general observations, Mr Duane’s opinion was likewise general in nature.  Mr Duane’s reliance on those general matters does not demonstrate that his opinions do not relate to the need for the proposed development at the proposed location.  It is apparent from the structure of the report that Mr Duane’s references to general considerations, such as the extent of need in the trade area generally and the projected growth in the fuel market, are included by him to expose fully the foundations for his ultimate opinion.  They are not the sole foundation for his opinion.  His opinion is also premised on considerations specific to the subject land, such as the accessibility of the proposed development (which Mr Duane considers by reference to the access arrangements peculiar to the proposed development on the subject land).  In including the general information, Mr Duane was appropriately discharging his responsibility to state explicitly each of the assumptions on which his opinion is based.[99] 
  4. [98]
    That Mr Duane was assessing the need for the proposed development on the subject land is also apparent from his response to the conclusions expressed by Mr Norling.  Relevantly, in paragraph 72 of the Joint Economic Need Report, Mr Duane says:

“72. GD says in response to the above the following:

  1. (a)
    Although the site does not have direct access from Boundary Road, it will enjoy excellent exposure from this road.  Although not a traffic expert, GD disputes that residents would more regularly use Boundary Road rather than Redland Bay Road.  Redland Bay Road carries a higher volume of traffic, meaning it would be convenient for the growing population in the primary sector over time.
  1. (b)
    Although an operator has not been identified for the subject site, if developed it would most likely provide additional choice for a further operator within the defined catchment, a high level of convenience to residents (sic) homes and increased competition for traffic travelling along Redland Bay Road and Boundary Road for their fuel retailing needs.”
  1. [99]
    I am satisfied that the opinions of the economists about the need for the proposed development are premised on correct assumptions about the nature of the uses proposed, and that their opinions relate to the need for the proposed development at the proposed location.  I am also satisfied that the economists correctly apprehend those matters that are relevant to an assessment of the extent of benefit afforded to the public by the provision of the proposed development on the subject land. 
  2. [100]
    The town planners also gave evidence about the need for the proposed development on the subject land.
  3. [101]
    Mr Schomburgk, the town planner retained by the appellant, opines that the provision of the proposed development on the subject land would improve the well-being of the community.  He opines that the subject land is on the left hand side of the homeward journey for many Alexandra Hills, Thornlands and Victoria Point residents.  He says it will provide those residents with a more convenient and accessible choice of facilities for their fuel, fast food and related impulse retail goods needs than that which presently exists.  These opinions of Mr Schomburgk accord with those expressed by Mr Duane, who gave a cogent explanation of the basis of his opinion that the subject land was on the “homeward journey”.  I accept the evidence of Mr Schomburgk and Mr Duane.
  4. [102]
    Mr Ovenden, the town planner retained by the Council, opines that it is not appropriate to meet the need for the proposed development on the subject land.  His opinion is prefaced on two assumptions.  The first is Mr Norling’s opinion that there is only a minor to moderate level of need.  The second is an observation that the convenience to be served is limited to the convenience of those travelling along Redland Bay Road.  Mr Ovenden does not cavil with Mr Schomburgk’s opinion that those people travelling along Redland Bay Road will be residents of Alexandra Hills, Thornlands and Victoria Point undertaking their journey home from work.  For reasons already provided, I do not accept Mr Norling’s opinion.  As such, I do not accept the opinion of Mr Ovenden.
  5. [103]
    Having regard to the evidence of the economists and town planners referred to above, including the evidence referred to in paragraph [77] above, I am satisfied that there is a need for the proposed development, including each of its constituent elements, at the proposed location.  As I have already noted, there is a need for further service station facilities and drive through restaurant facilities within the trade area to serve the residents of the trade area.  Residents of the growing primary trade area are generally a substantial distance away from a competitive range of facilities in close proximity to their home.  They reside further away from service stations than residents elsewhere within Redland Shire.  The closest alternative service station for the primary trade area is located around five kilometres from the subject land.[100]  The provision of the proposed development on the subject land will increase the choice available to the residents of the trade area.  The establishment of the proposed uses at the proposed location will provide convenient access to needed facilities.[101]  The proposed development on the subject land would improve the ease, comfort, convenience and efficient lifestyle of the residents of the trade area.  This is in the public interest.
  6. [104]
    In addition to attacking the adequacy of the evidence to establish a need for the proposed development on the subject land, the Council appears to raise an onus point against the appellant based on an alleged failure to discount the possibility of a more suitable site under the Redlands Planning Scheme.  The Council submits:

“16. It is submitted that the Appellants, in this proceeding, have failed to identify why the needs of the community must be satisfied by a service station being located on the subject site.

  1. In this proceeding, the Appellants have not presented evidence to identify any deficiency in the planning scheme that warrants location of a service station, car wash and drive through restaurant within its Environmental Protection Zone.  Similarly, there is no evidence of a scheme deficiency that has resulted in an urgent need for the proposed development on the site.
  1. … consistent with the manner in which Council advanced this appeal previously, the Council does not seek to advance an “alternate (sic) sites” argument in this proceeding; rather, it seeks to emphasise the fact that there is no evidence before the Court as to whether or not the scheme is somehow defective or incomplete, in that it has failed to identify sufficient and more suitably zoned areas for uses of the type proposed, and that could equally respond to the economic need found to exist by your Honour.
  1. For the above-mentioned reasons, it is submitted that there is no cogent evidence before the Court of a need for the proposed development, comprising a service station, car wash and drive through restaurant, that would be best satisfied by its location on the subject site.”
  1. [105]
    In his individual report, Mr Ovenden says:

“3.34 While Mr Schomburgk and I did not explore the opportunity for establishing the development on alternative sites, if a strong level of need was to be established and the Court was to find the location on the subject site unacceptable.  In my opinion, given the planning context established under the Kinross Road Structure Plan, it would be more appropriate to locate the development of this type (if a sufficient level of need was established) in an urban context to the east on Boundary Road.  In this regard, I note the Respondent has identified there is a gap in the retail hierarchy for Redland city and has approved a mixed-use supermarket based centre with provision for a service station on the corner of Panorama Drive and Boundary Road.  That approval was subject to submitter appeals which have been heard and judgment is pending.”

  1. [106]
    It is unsurprising that Mr Schomburgk and Mr Ovenden did not explore alternative sites.  At the original hearing, the Council did not suggest that the need could be accommodated on an alternative site, nor does it now.  At the original hearing, the Council accepted that, should I find that there was a strong need for the proposed development and that it was not adequately addressed by the existing facilities outside of the trade area, the Redlands Planning Scheme did not adequately cater for the need.  The representations made by Mr Wylie, Counsel for the Council, were as follows:[102]

“MR WYLIE:   Your Honour, council’s – I’ll address two matters.  I’ll address council’s – three matters:  council’s position with respect – that it took in Lipoma;  council’s position with respect to centres in this locality;  and council’s position as to what matters council says your Honour should have regard to were out-of-centre development to occur.  With respect to council’s position in Lipoma, in Lipoma, council’s position was that there was a dedicated and compelling community need for appropriate and convenient access to a full-line supermarket with an associated tavern and a service station located along Boundary Road.  Its position’s also that there would be no undue economic impact upon other existing or planned centres such that the proposed development would not disrupt an existing centre hierarchy.  Its case was that there was planning need for the development in that the scheme offered no other suitable location for a full-line supermarket with associated tavern and service station within that Kinross Road Structure Plan area

Council’s ultimate position was that in regard to the network of centres, the scheme was overtaken by events, such events comprising population in the Thornlands area, without a corresponding amendment to the planning scheme to provide the services of a full-line supermarket, tavern and an associated – associated tavern and service station that is normally associated with that growth.  With respect to the local centre internal to the Kinross Road Structure Plan area, council’s position was that notwithstanding should the proposed development be allowed, the internal centre would continue to function.  It may function at a reduced capacity due to the new development, but it would continue to function on the basis that it fulfilled a different form and function to the full-line supermarket proposed in that appeal.  Ultimately, its position is that the network of centres within the area of the Kinross Road Structure Plan is deficient in that it fails to provide a centre location in this area to support a full-line supermarket with an associated service station and tavern.  With respect to this appeal, council’s position is that drive-through – the starting point is that drive-through restaurants should be located with centres. 

HER HONOUR:   Just before you move on to this appeal, it was also council’s position that the local centre was inappropriately located, was it not?

MR WYLIE:  

Any reduction in the size or functionality of the local centre would not be due to the proposed centre but rather the inappropriate location of the centre.

Yes, your Honour.  That is the council’s position with respect to that local centre.  council’s position is that drive-through restaurants should be co-located with centres, and it submits that they may be co-located with local through to major centres for the real benefits that can be achieved and which I’ve already cross-examined on and we’ll make submissions on.  If your Honour were of the view that there was a significant level of need for a drive-through restaurant within the Kinross Road primary trade area and that it were unreasonable for those residents to travel to other existing centres that have those facilities, then out-of-centre development should be permitted in that there is – if your Honour forms a view that a drive-through restaurant is needed in that area.  council accepts that there is no centre within the Kinross Road Structure Plan area that can cater that demand.  That’s premised on the basis that there is a need which council challenges. 

Further, notwithstanding that, it’s council’s position that this is an inappropriate site to satisfy that need for the reasons that it is – it is an inappropriate site because of inappropriate – sorry – insufficient vehicle access or poor vehicular access to the site from all directions with the exception of one;  that, in determining the appropriateness of the site to fulfil a need, the conflict with the scheme is relevant and, in this instance, the conflict is stark;  and, also, the proposed development would be in conflict with specific outcome 1 sub (1) sub (b) of the drive-through code in that it had placed the drive-through restaurant in a sensitive receiving environment. 

Your Honour asked before, “If I find that there is a need for this drive-through restaurant and that the local centres in the Kinross Road Structure Plan don’t provide to it, what weight should I place upon the fact that it is not within a centre?”  It’s council’s position that little weight should be placed upon that.  It would be requiring the developer to jump over two hoops, in effect.  As I said, if your Honour found that within this locality there was a need for a drive-through restaurant, then out-of-centre development should be permitted.  If you are looking at – and when assessing an individual site as to whether or not the development should be allowed on that site, little weight at that stage should be placed on the fact that the development does not comply with specific outcome 1 sub (1) sub (a), that it is not within an established centre.”

(emphasis added)

  1. [107]
    Having regard to these representations by the Council, I am satisfied that the Redlands Planning Scheme has been overtaken by events, namely the growth in the population in the Thornlands area without a corresponding amendment to the Redlands Planning Scheme to provide, amongst other things, a service station that would appropriately provide for the needs of those residents.  I am also satisfied that the network of centres within the area of the Kinross Road Structure Plan is deficient in that it fails to provide a centre location in this area to support appropriate centre activities, which relevantly includes a service station and a drive through restaurant.  The Council’s representations also persuade me that there is a lack of suitably zoned alternative sites for the proposed development, as the only centre identified in the Redlands Planning Scheme, being a local centre, has been inappropriately located.[103] 
  2. [108]
    I do not accept the Council’s assertions that something further is required of the appellant to demonstrate a need for the proposed development at the proposed location.  As has long been recognised by this Court, it is not the Court’s function to determine whether a better site exists for a particular proposal.  Rather, the issue to be determined is whether approval should or should not be given for the particular use proposed on the particular site.[104] 

Is the appellant’s failure to adduce evidence of the community advantages of compliant development fatal?

  1. [109]
    The Council submits:

“33. Contrary to the requirements set out in the CA authorities described above, there has been no evidence or analysis as to the benefits or disbenefits of the subject land being used for the purposes advanced as appropriate by the planning scheme, including the ecological, amenity and town planning advantages that attend those uses. Without those analyses, for the reasons set out below, the Appellants cannot advance an application of s.326(1)(b) that would support approval of the proposed development application.

Does the proposed development serve a greater public interest?

  1. Given the above findings of conflict, the question which the CA requires be considered, consistent with the requirements of s.326(1)(b) of SPA, is whether “…the public interest would not be served by requiring that the land be development according to the planning scheme” or whether “the desired deviation from the scheme serves the public interest to an extent greater than the maintenance of the status quo”.
  1. To undertake the exercise set out in Bell, K&K and the CA RJ, it is submitted that the Appellants must demonstrate why the community interest either would not be advanced by development of the types anticipated within this scheme area or, alternatively, why the public interest served by the proposed deviation is greater than development anticipated by the planning scheme. In either case, consideration of the community advantages of development of the types advanced as appropriate by the planning scheme must be assessed.
  1. The Appellants fail to demonstrate this through planning, amenity or ecology evidence.
  1. In the absence of it being demonstrated that the planning scheme, as it applies to the site, no longer represents what is required in the public interest and that, in the public interest, it is necessary to override the planning scheme, the Court is unable to be satisfied as to the question whether the grounds, as advanced, are sufficient to warrant approval of the development application, notwithstanding conflict.
  1. Whist it is accepted that your Honour found there was no conflict with the relevant environmental objectives set out in the planning scheme, that is only one element of the question now to be considered. More importantly, those findings do not equate alternate (sic) findings that similar (or greater or lesser) environmental outcomes would be achieved by development that conformed with the scheme’s land use requirements. Put simply; more is required to be demonstrated. In particular, in circumstances of demonstrated conflict with land use provisions, the further question that arises, consistently with the approach of the CA, is whether the public interest served by the proposed development outweighs the public interest of the site being developed consistent with uses anticipated by the planning scheme, and having regard to the ecological benefits or outcomes that could or would be achieved were the site to be developed for those consistent uses.
  1. This is not an enquiry that reagitates the evidence of the ecological experts or the findings that were made in the reasons for judgment.
  1. The planning scheme requires the subject land to be used for purposes that advance the public interest by land uses that permit both sustainment and enhancement of the ecological values of the entirety of the site and, for the northern part of the site, uses that respond to active and passive recreational needs of the community. There is no evidence to demonstrate that the public interest would not be best served by requiring the land be developed in accordance with these uses. There is no evidence about the ecological or land use benefits (or disbenefits) of the land being developed with uses consistent with that zone (noting para [78] of the original RJ for uses encouraged on site).”
  1. [110]
    In support of its submissions, the Council refers to the observation of McMurdo JA in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor[105] as follows:

[173] For these reasons, the Council’s case in respect of ground 4 of its proposed appeal must be accepted.  The primary Judge did not consider whether there was a need for this development on this location such that the public interest would not be served by requiring that the land be developed according to the planning scheme.  In fairness to the primary judge, it should be noted that not only was her judgment given before the two judgments of this Court which I have discussed, but also that it was a consequence of the way in which the parties presented their cases in her Court.”

(emphasis added, footnotes omitted)

  1. [111]
    It also relies on the finding of Sofronoff P in Gold Coast City Council v K&K (GC) Pty Ltd as follows:

[67] There has been a failure by the parties in this case to apprehend and apply the applicable statutory requirements. 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. Some such examples appear in the Ministerial Guidelines to which I have referred.”

(emphasis added)

  1. [112]
    These statements do not support the Council’s submission.  The Council’s submissions misapprehend the test required under s 326(1)(b) of the Sustainable Planning Act 2009, and the findings of the Court of Appeal.  The submissions are inconsistent with Sofronoff P’s acceptance in Gold Coast City Council v K&K (GC) Pty Ltd[106] of the approach adopted by this Court in Westlink Pty Ltd v Lockyer Valley Regional Council,[107] Rintoul v Brisbane City Council,[108] Woodman McDonald Hardware Pty Ltd v Mackay Regional Council[109] and Luke v Maroochy Shire Council.[110]  The approach that the Council now submits is required was not adopted in any of those cases.
  2. [113]
    The Council’s approach would require a developer to demonstrate a public interest greater than the nature and extent of the public interest that might eventuate were the subject land instead developed for one or more hypothetical “compliant” developments.  To approach the exercise as though the public interest embodied in a planning scheme is capable of being quantified in some measurable sense by analysing the benefits and dis-benefits of a particular hypothetical development that delivers on particular planning goals, such as the ecological benefits, so that it can then be weighed against the public interest associated with the proposed development ignores the complexity involved in town planning.  It also imports a requirement that is not evident in the language of the statute.  For the reasons outlined in K&K (GC) Pty Ltd v Gold Coast City Council,[111] I do not regard the approach urged by the Council to be consistent with the findings of the Court of Appeal.   
  3. [114]
    The Council’s submissions also assume that:
    1. (a)
      development of the subject land is required to comply with the overall outcome in s 4.6.7(2)(a)(i) of the Environmental Protection Zone Code and the overall outcome in s 5.15.8(2)(f) of the Kinross Road Structure Plan Overlay Code, and, for the northern part of the subject land, the overall outcome in s 4.16.7(2)(a)(i) of the Open Space Zone Code;[112] and
    2. (b)
      the proposed development does not comply with those provisions. 
  1. [115]
    The assumptions are incorrect.  That was made clear by the Court of Appeal when it rejected the Council’s argument that I had erred in interpreting the environmental provisions of the Redlands Planning Scheme.  As was observed by McMurdo JA (with whom Fraser JA agreed):[113]

[145] On the findings of the primary judge, this development would maintain and protect the environmental values that exist on the subject site, although a less extensive development might permit a greater opportunity for enhancement of environmental values, and the Overall Outcome would result.

[146] Consequently, the point of interpretation of cl S1.1, upon which I have disagreed with the primary judge, does not matter, because the planning scheme was satisfied in this respect by the achievement of the Overall Outcome described in cl 4.6.7.

[147] I turn to the second suggested error in the interpretation of the environmental provisions of the scheme. The Council argues that without directly considering compliance with cl 4.6.7(2)(a)(i) c and e, her Honour concluded, wrongly, that the development complied with those provisions.

[148] Overall Outcome cl 4.6.7(2)(a)(i) c and e is relevantly as follows:

“(i) Ensure uses and other development identify, protect and provide for the long-term management and enhancement of the environmental values associated with this zone, being -…

c. corridors, networks, patches and mosaics of native plants, and all areas where native animals have relatively unimpeded movement when compared to urban areas; …

e. native animals, native plants and ecosystems, any of which are common (least concern), vulnerable, rare or endangered as defined in the Nature Conservation Act 1992…” (Emphasis added.)

[149] This argument misunderstands the reasoning of the primary judge.  Her Honour’s findings in this respect, although not discussed at length, reveal that she was satisfied that the development would maintain and protect such environmental values as existed on the site.  There is no demonstrable legal error in that finding of fact.  Her Honour further found that those values would be enhanced, although “to a limited degree”, by the proposed landscape planting and the introduction of fencing to direct fauna towards safe road crossing points.  There was no inconsistency between these findings and her Honour’s findings, in respect of cl S1.1, that degraded and cleared areas would not be re-vegetated and animal movement through the premises would not be retained and increased.  In essence, her Honour found that Overall Outcome 4.6.7 would be achieved, in that the relatively insignificant environmental values on this site would be maintained, protected and, to an extent, enhanced.  This second argument, under the proposed ground 1, cannot be accepted.

[150] The third argument under ground 1 is that her Honour’s findings as to cl S1.1(1)(a)and (b) were inconsistent with her conclusion that the relevant provisions of the Kinross Road Structure Plan, more specifically its Overall Outcome 5.15.8(2)(f) and Specific Outcome 1.7(2)(b), were satisfied. Each of those provisions was in relevantly identical terms, in requiring that a development should achieve an outcome which “protects, enhances and maintains waterways, habitat and movement corridors for koalas and other fauna.”

[151] This argument should be rejected for the same reasons which reject the second argument. Her Honour’s findings were that these requirements were met, because such environmental values that did exist on the subject site would be maintained and protected, and, to a limited degree, enhanced, by the development. Whether that was factually correct is not the question. There is no demonstrated legal error in this finding.

[152] The remaining argument under ground 1 focusses upon this passage from the Reasons at [57] where her Honour said:

“…I am, nevertheless, satisfied that the development maintains and protects those environmental values that exist on the subject site. Those values of particular ecological significance, identified in the State and Council mapping, are the vegetated areas associated with Hilliards Creek, rather than that part of the site in the Environmental Protection Zone.”

(Emphasis added.)

[153] The Council argues that Hilliards Creek was irrelevant because it is located in the “northern portion” of the site, to which different provisions of the planning scheme applied. The argument follows that it should not have been considered when assessing whether the scheme, in its provisions which applied to the southern part of the site, had been satisfied.

[154] This argument should be rejected. Her Honour was under no mistake, at this point in her judgment, that she was considering the provisions of the scheme affecting the southern part of the site. She was considering provisions of the scheme which were directed to the maintenance, management, protection and enhancement of environmental values. She was using a comparison with the areas associated with Hilliards Creek to describe the relative unimportance of the environmental values that existed on the southern part of the site. There was no legal error in assessing the proposal’s compliance with the relevant outcomes prescribed by the scheme, by reference to a qualitative assessment of the relative importance of the existing environment on this part of the site.

[155] For these reasons, none of the arguments advanced in support of ground 1 of the proposed appeal can be accepted.”

(emphasis added, footnotes omitted)

  1. [116]
    Similar findings were made by Philippides JA, who observed:[114]

[89] There was no error in her Honour’s construction of the relevant provisions. Her Honour correctly had particular regard to the material outcome sought by S1.1(1) to “maintain, enhance and protect environmental values.There was no error in her Honour’s approach in finding, contrary to the Council’s submissions, that the proposed development of the southern portion relevantly complied with overall outcomes 4.6.7(2)(a)(i)c. and e, and specific outcome Sl.1 of the EP Zone Code; and overall outcome 5.15.8(2)f. and specific outcome Sl.7(2)(b) of the KRSP Overlay Code. As the first respondents submitted, that conclusion was open given that her Honour found that:

  1. (a)
    the built form of the proposed development was to be located in an area currently cleared of native vegetation and contains buildings, gardens and groups of planted trees, cleared areas and orchards;
  1. (b)
    the ecology experts agreed it is within a part of the land that is currently used for residential and rural purposes (and has been for many years) and that the relevant areas of native vegetation and corridor value will be retained, protected and enhanced;
  1. (c)
    the development maintains and protects those environmental values that exist on the site, those values of particular ecological significance, identified in the State and Council mapping, being the vegetated areas associated with Hilliards Creek, rather than that part of the site in the Environmental Protection Zone; and
  1. (d)
    environmental values would be enhanced by proposed landscape planting and the introduction of fencing to direct fauna towards safe crossing points.”

(emphasis added, footnotes omitted)

  1. [117]
    Although the proposed uses are generally considered inappropriate and not preferred on the subject land, that policy position adopted in the Redlands Planning Scheme assumes that the nature and operational characteristics of that type of development, and its potential impacts, are inappropriate and inconsistent with, relevantly, the purpose of the relevant zone.[115]  For reasons explained in my earlier judgment, and accepted by the Court of Appeal as factually open on the evidence, the assessment of the proposed development on its merits and in a context informed by careful consideration of the attributes of the subject land and the surrounding locality reveals that the service station, car wash and drive through restaurant proposed in this case will not have inappropriate impacts and are not inconsistent with the purpose of the Environmental Zone Code, the Open Space Zone Code or the Kinross Road Structure Plan Overlay Code.  As such, although the proposed uses may be listed as inappropriate, the appellant has nevertheless demonstrated that the proposed development provides the ecological benefits sought by the Redlands Planning Scheme. 
  2. [118]
    The Council’s assumption that development of the northern part of the subject land is required to comply with the overall outcome in s 4.16.7(2)(a)(i) of the Open Space Zone Code is not supported by reading that provision in the context in which it appears.  Section 4.16.7(2)(a)(i) of the Open Space Zone Code does not purport to stipulate the full range of uses that achieve the purpose of the Open Space Zone Code.  That is apparent from the range of other uses contemplated in s 4.16.7(2)(a)(ii).  In any event, there was no need for the appellant to call evidence about the extent to which the proposed development advances the purposes of the Open Space Zone Code as the Council did not allege conflict with any of the overall outcomes of that code.
  3. [119]
    In addition, as I have also previously noted, although the uses are nominated as inconsistent uses and are not low-key in nature, the appellant has nevertheless demonstrated that the public interest served by compliance is addressed by the proposed development.  Relevantly, it has demonstrated that the proposed development accords with the environmental and visual amenity goals that inform the provisions with which it conflicts.  The Court of Appeal found there was no error in my reasoning in that regard.[116] 
  4. [120]
    For the reasons provided in paragraphs [110] to [119] above, I do not accept the submissions made by the Council at paragraphs 33 to 40 of its written outline of argument on the remitted hearing as quoted in paragraph [109] above.

Are there sufficient grounds to justify approval despite the conflict?

  1. [121]
    It must be accepted that, prima facie, a planning scheme is an expression of the public interest in terms of land use.  Under the Sustainable Planning Act 2009, it is to be assumed that it is in the public interest to maintain the terms of the planning scheme, unless the contrary is demonstrated.[117]  After all, a planning scheme seeks to strike the balance between ecological protection, economic development, and the maintenance of the cultural, economic, physical and social wellbeing of people and communities in a manner that expresses the will of the community.[118]  It does so by identifying the strategic outcomes sought for a planning scheme area and including measures that facilitate achieving those strategic outcomes.[119]  The strategic outcomes in a planning scheme will address core matters, such as the location of, and the relationship between, various land uses; the effects of land use and development; areas that are of ecological significance; and areas that contribute significantly to amenity.[120]
  2. [122]
    It must also be acknowledged that the Sustainable Planning Act 2009 recognises that it is not always in the public interest that the standards ascribed by a planning scheme be applied rigidly to every case irrespective of the peculiar circumstances that might arise.  That is apparent from the opportunity, provided in s 326(1)(b) of the Sustainable Planning Act 2009, to approve a proposed development that conflicts with a planning scheme if there are sufficient matters of public interest to justify such a decision.
  3. [123]
    Whether there are sufficient matters of public interest that warrant approval of a conflicting development involves a discretionary value judgement.  The decision should not be made capriciously.  It is to be determined having undertaken an assessment of the proposed development against the planning scheme.[121]
  4. [124]
    A matter not expressly referenced in the Court of Appeal decision,[122] but a cornerstone to the decision to be made under s 326(1)(b) of the Sustainable Planning Act 2009, is the importance of impact assessment.[123]  Section 324(2) of the Sustainable Planning Act 2009 states that the decision must be based on the assessments made under division 2.  Division 2 of Chapter 6 of the Sustainable Planning Act 2009 does not assume that the acceptability of a development is to be determined by simply identifying the broad category of use proposed and ascertaining whether it is categorised as acceptable or unacceptable in the particular zone in which the subject land is included.  To the contrary, the process of assessment under Division 2 is much more complex and involved.  It requires an assessment of the merits of a proposed development by reference to all of its design attributes and its impacts in the context of the attributes of the particular parcel of land on which the development is proposed.  In the case of impact assessment, the assessment is to be undertaken against all relevant strategic outcomes, and the measures that facilitate achieving those strategic outcomes, within the applicable planning scheme. The relevant considerations are multi-faceted and the outcome of the assessment will depend on the facts and circumstances of the case.  The assessment under Division 2 informs the determination of the nature and extent of the conflict, which is critical to any determination under s 326(1)(b).[124] 
  5. [125]
    The exercise required by s 326(1)(b) of the Sustainable Planning Act 2009 does not involve a general balancing exercise of the merits and demerits of the proposal as a whole[125] or a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or would not be better to permit a development on the subject land to go ahead.[126]  A judgment about the public interest should not be formed without recognising the relevance of the planning scheme to that question.[127]  In light of s 324(2) of the Sustainable Planning Act 2009, this must include recognition of the nature and extent of the conflict between the particular development and the planning scheme.
  6. [126]
    In this case, the Redlands Planning Scheme makes it clear that, prima facie, it is not in the public interest to permit use of the subject land for a service station or a drive through restaurant.  The Redlands Planning Scheme also makes it clear that, prima facie, it is not in the public interest to permit the subject land to be used for uses that are not low-key in nature.  However, it is important to also recognise that the planning rationale for limiting the uses to low-key uses with a minimal footprint is, in large part, to ensure achievement of those environmental and visual amenity goals outlined in the Redlands Planning Scheme.[128]  Here, the assessment of the particular attributes of the proposed development in the context of the characteristics of the subject land and the surrounding locality reveals that the visual amenity goals and the environmental goals contained in the Redlands Planning Scheme that underpin the provisions with which there is conflict would not be materially compromised by a decision to approve the proposed development.[129]  It is in this context that the sufficiency of any grounds should be considered.
  7. [127]
    As I noted in paragraph [30] above, the real question is whether the deviation from the Redlands Planning Scheme to approve the proposed development at the proposed location serves the public interest to an extent greater than the public interest in refusing the development, thereby maintaining the land so that it may be developed in accordance with the Redlands Planning Scheme.
  8. [128]
    The combined effect of the following six matters persuade me that, in this case, the public interest in approval of the proposed development is greater than the public interest in upholding strict compliance with the Redlands Planning Scheme by refusing the development.
  1. [129]
    First, there is a strong need for a further service station (and associated car wash) and a drive through restaurant in the trade area to ensure that the physical well-being of this growing community is appropriately addressed. 
  2. [130]
    Second, the well-being of the residents of the trade area will be appropriately improved by the provision of the proposed development on the subject land, as the land is conveniently located and readily accessible to the public and the uses can be provided on the subject land without any unacceptable impacts on the amenity or the environment. 
  3. [131]
    Third, the need is not able to be satisfactorily addressed by existing development. 
  4. [132]
    Fourth, the Council does not allege that the need could be satisfactorily addressed by locating the proposed development on suitably zoned land.  To the contrary, the uses that form the proposed development are such that the proposed development would need to be located in one of the centre zones; and the Council concedes that the Redlands Planning Scheme has been overtaken by events as it did not make sufficient provision of land in that zone to appropriately address the needs of the growing population in Thornlands, which population forms part of the trade area for the proposed development.  In light of the representations made by Mr Wylie, as Counsel for the Council, extracted in paragraph [106] above, I am satisfied that the Redlands Planning Scheme has not anticipated the extent of growth in population in the Thornlands area and has not anticipated the corresponding need to zone land to accommodate a service station and drive through restaurant to serve appropriately the public interest in the provision of those facilities.  As such, in this particular case, the Redlands Planning Scheme is not an embodiment of the public interest.  This is a compelling reason why the terms of the Redlands Planning Scheme should not prevail in this case.
  5. [133]
    Fifth, although the proposed development conflicts with the Redlands Planning Scheme, the conflict is not occasioned by any consequent undue impact.  As has been acknowledged by the Court of Appeal, it must be a matter of public interest that the project under consideration will not destroy local amenity.[130]  It is also relevant that the proposed development can meet the needs of the community for convenient access to the proposed uses without materially compromising the environmental and visual amenity goals that inform the planning outcomes sought by the provisions with which the proposed development conflicts.
  6. [134]
    Sixth, it is in the public interest that the proposed development will facilitate the ultimate upgrading of the local road network by ensuring it is appropriately set back from the existing roads in accordance with the required road reserves.  This is in the public interest as it accords with the future orderly planning of the area and facilitates the efficient provision of necessary infrastructure in the area.
  7. [135]
    In the circumstances outlined above, I am satisfied that the public interest served by approving the proposed development on the subject land overrides the conflict with the Redlands Planning Scheme occasioned by the approval of the proposed development.  The appellant has satisfied the requirements of s 326(1)(b) of the Sustainable Planning Act 2009.  It has demonstrated that it is appropriate to approve the proposed development.

Conclusion

  1. [136]
    For the reasons provided above, the appellant has discharged the onus.
  2. [137]
    My orders will be as follows:
  1. The appeal is allowed.
  2. The development application is approved subject to the conditions in pages 1 to 402 of the development approval package marked “A” and attached to the Judgment given on 18 June 2018.
  1. [138]
    I will hear from the parties about any other orders that may be appropriate.

Footnotes

[1]Planning Act 2016 (Qld), s 311.

[2]Sustainable Planning Act 2009, s 495.

[3]Sustainable Planning Act 2009, s 493.

[4]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187.

[5][2018] QCA 84; (2018) 230 LGERA 374.

[6][2019] QCA 132; [2020] QPELR 631.

[7]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41.

[8]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [15].

[9]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [173].

[10]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, as cited in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 642 [47] and 646 [67].

[11]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].

[12]See, for example, paragraphs [79], [80], [104] to [106], [109] to [113] and [118] below.

[13]See, for example, paragraphs [16], [18] to [28], [72] to [103], and [118] below.

[14]See, for example, paragraphs [18] and [27], [114] to [116] and [119] below.

[15][2018] QCA 84.

[16][2019] QCA 132; [2020] QPELR 631.

[17][2020] QPEC 40.

[18]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42] citing Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].

[19][2018] QCA 84; (2018) 230 LGERA 374.

[20][2019] QCA 132; [2020] QPELR 631.

[21][2020] QCA 41.

[22]RJ [66].

[23]RJ [67].

[24]RJ [68].

[25]RJ [74].

[26]RJ [47].

[27]RJ [48].

[28]RJ [67].

[29]RJ [68].

[30]RJ [68].

[31]per Philippides JA at [116]; McMurdo JA (with whom Fraser JA agreed) at [161].

[32]per Philippides JA at [120]-[121]; McMurdo JA at [161]; also Bell at [66].

[33]per Philippides JA at [122]; McMurdo JA at [170] citing K&K.

[34]per Philippides JA at [63] and McMurdo JA at [171].

[35]per McMurdo JA at [169].

[36]I would not characterise McMurdo JA’s findings in Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374 as opinions.  I also do not regard the findings of the Court of Appeal to which the Council makes reference as ones that the Court of Appeal “emphasised” as applicable principles in the instant case to the exclusion of other relevant principles omitted from the Council’s summary.  For example, the Council’s summary of Court of Appeal findings omits the finding by Philippides JA at [116] that a planning scheme is taken as a comprehensive expression of the public interest “in a prima facie sense”.

[37][2018] QCA 84; (2018) 230 LGERA 374, 393 [74].

[38][2018] QCA 84; (2018) 230 LGERA 374, 393 [74].

[39][2018] QCA 84; (2018) 230 LGERA 374, 393 [74].

[40][2018] QCA 84; (2018) 230 LGERA 374, 390 [58]-[60].

[41]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].

[42][2012] QCA 370; [2013] 2 Qd R 302, 322-3 [18]-[21].

[43][2002] QCA 234; [2003] 2 Qd R 441.

[44]Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, 453.

[45][2019] QCA 132; [2020] QPELR 631, 647 [72].

[46]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 637 [19], 639 [28] and 647 [71]-[74].

[47]The submission leaves me with the impression that the Council is seeking to reagitate before me a point on which it failed in the Court of Appeal. 

[48][2020] QCA 41.

[49]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 189 [7].

[50]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 189 [7].

[51]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 189 [8]-[9].

[52]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 192 [23].

[53]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 192 [24].

[54]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [32]-[37].

[55]See King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187.

[56]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 191 [20].

[57]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 194 [32]-[33].

[58]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 194 [32]-[33].

[59]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 195-6 [34]-[35].

[60]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 196 [36].

[61]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [39]-[42] and [167].

[62]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 199 [42].

[63]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 202 [54].

[64]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 202 [55].

[65]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 203 [57].

[66]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 203 [58].

[67]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [43]-[55], [80]-[89] and [147]-[154].

[68]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [143]-[146].

[69]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [79].

[70]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 203 [60].

[71]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 204 [64].

[72]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 205-6 [75].

[73]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 206 [75].

[74]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 206 [75].

[75]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [43]-[55], [80]-[89] and [147]-[154].

[76]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 208 [77].

[77]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 208 [78].

[78]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 208 [79].

[79]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 209 [81]-[82].

[80]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 209 [83].

[81]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 209 [84].

[82]This includes the use of land in the Open Space Zone for the effluent treatment area as that is incidental to and necessarily associated with the service station and drive through restaurant uses and is therefore part of those uses.  This also includes the use for a drive through restaurant outside an existing centre.

[83]With respect to the first and third triangle bullet point under the fourth square only.

[84]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 210 [85]-[86].

[85]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 210 [89].

[86]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [56]-[60] and .

[87]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 211 [93].

[88]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 211 [94].

[89]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 211 [95].

[90]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [56]-[60] and [124]-[126].

[91]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187.

[92]Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[93]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 212 [98].

[94]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 212 [99].

[95]Following an appeal to the Court of Appeal and remittal back to this Court, this development has now been approved, but it is again the subject of an application for leave to appeal in the Court of Appeal. 

[96]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 213-4 [102].

[97]As I noted in K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40, [152], it must be remembered that the function of the Planning and Environment Court in an appeal is to resolve the issues in dispute between the parties in the individual case.  The importance of this was considered by the Court of Appeal in Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, 47.

[98]See, for example, T1-31 to T1-32, T1-34 and T1-36 (where Mr Wylie questioned Mr Duane about his assessment of the site’s suitability for these types of uses).

[99]Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

[100]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 214 [105].

[101]King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64; [2018] QPELR 187, 214 [103].

[102]See T3-51 to T3-53.

[103]See T3-51 to T3-53.

[104]Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 446, 458 [50] citing Queensland Adult Deaf and Dumb Society (Inc) v Brisbane City Council (1972) 26 LGRA 380, 386, SEAQ v Warwick City Council (1971) 24 LGRA 391, 394 and Castro v Douglas Shire Council (1992) QPLR 146, 158.  See also Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 764 [37].

[105][2020] QCA 41.

[106][2019] QCA 132; [2020] QPELR 631, 641-3 [42]-[48].

[107](2013) 198 LGERA 1.

[108][2013] QPEC 47.

[109](2013) 198 LGERA 252.

[110][2003] QPELR 447.

[111][2020] QPEC 40, [142]-[153].

[112]These are the provisions that reflect the requirements of the Redlands Planning Scheme referred to in paragraph 40 of the Council’s written submissions. 

[113]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [145]-[155].

[114]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [89].

[115]See s 1.2.5(9)(g) of the Redlands Planning Scheme.

[116]Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [126].

[117]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42] citing Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, 392 [70].

[118]See the observations of Carter DCJ in William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335 [15] and Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, 522 [85].  These observations are apt for planning schemes promulgated under the Sustainable Planning Act 2009.  In that respect, see s 3, s 4, s 5, s 88 and s 89 of the Sustainable Planning Act 2009.

[119]See s 88 of the Sustainable Planning Act 2009.  There were similar provisions in the Integrated Planning Act 1997.

[120]See s 89 of the Sustainable Planning Act 2009.  There were similar provisions in the Integrated Planning Act 1997.

[121]See s 324 of the Sustainable Planning Act 2009.

[122]But which appears to be recognised by its findings, such as the findings of Philippides JA at [124]-[126].  The need to base the decision on the assessment was recognised in Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, 391 [64].

[123]cf Weightman v Gold Coast City Council & Anor [2002] QPEC 67; [2003] QPELR 250, 254 [15].

[124]Weightman v Gold Coast City Council [2002] QCA 234; [2003] 2 Qd R 441; Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, 322-3 [18]-[21]; Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 647 [72].

[125]Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, 393 [73]-[74].

[126]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48].

[127]Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, 393-4 [77]-[78].

[128]The Court of Appeal accepted this is relevant.  See Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [124]-[126].

[129]My earlier finding to this effect was not criticised by the Court of Appeal.  See Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [126].

[130]Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302, 323-4 [25].

Close

Editorial Notes

  • Published Case Name:

    King of Gifts (Qld) Pty Ltd v Redland City Council and Department of Transport and Main Roads

  • Shortened Case Name:

    King of Gifts (Qld) Pty Ltd v Redland City Council

  • MNC:

    [2020] QPEC 42

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    07 Aug 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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