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K&K (GC) Pty Ltd v Gold Coast City Council

 

[2020] QPEC 40

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

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

PARTIES:

K&K (GC) PTY LTD

(Appellant)

v

GOLD COAST CITY COUNCIL

(Respondent)

FILE NO/S:

20/2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 and 15 November 2019 and further submissions received on 13 December 2019, 23 January 2020, 3 June 2020 and 3 July 2020

JUDGE:

Kefford DCJ

ORDER:

I order:

1. The appeal is allowed.

2. The development application is approved subject to the conditions package of 106 pages attached to the judgment given on 29 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, convenience store, take-away food premises and a fast food drive through premises – where the land was in the Detached Dwelling Domain and the Residential Choice Domain of the Gold Coast Planning Scheme 2003 – where the proposed use for fast food premises and take-away food premises conflict with the 2003 Planning Scheme and should be considered “undesirable or inappropriate” – 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

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – CONSIDERATION OF WEIGHT TO BE GIVEN TO NEW PLANNING SCHEME – where City Plan 2016 commenced after the development application was made – where the proposed service station use was not supported by City Plan 2016 – where s 495 of the Sustainable Planning Act 2009 gives a broad discretion to afford weight to a new planning scheme – whether conflict with City Plan 2016 should be given determinative weight

LEGISLATION:

Planning Act 2016 (Qld), s 311

Sustainable Planning Act 2009 (Qld), s 311, s 314, s 324, s 326, s 493, s 495

CASES:

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, approved

Behrens v Caboolture Shire Council (1979) 39 LGRA 138, cited

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

Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved

Chalk v Brisbane City Council (1966) 13 LGRA 228, cited

Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, cited

Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, considered

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved

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

H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, cited

Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, approved

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

Iverach v Cardwell Shire Council & I rema [2006] QPEC 114; [2007] QPELR 196, cited

K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, cited

Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, cited

Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63; [2012] QPELR 354, applied

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

Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved

Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333, cited

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

Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, approved

R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 86, cited

R v Lukin; Ex parte Sunshine Pty Ltd [1967] Qd R 49, cited

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

Scurr v Brisbane City Council (No 5) [1973] HCA 39; (1973) 133 CLR 242, cited

Sheezel & Anor v Noosa Shire Council (1980) 1 APAD 470, cited

The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, approved

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

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

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

Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied

COUNSEL:

D Gore QC and J Lyons for the Appellant
G Gibson QC and J Ware for the Respondent

SOLICITORS:

Connor O’Meara for the Appellant
Hopgood Ganim for the Respondent

TABLE OF CONTENTS

Introduction4

What are the issues to be determined with respect to the sufficiency of the grounds?6

What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld)?6

What is the nature of the development?13

What is the nature and extent of the conflict?14

What grounds are relied on by K&K to justify approval?17

What did K&K establish at the original hearing and are they “matters of public interest”?19

What grounds are established on the further evidence?21

Are there sufficient grounds to justify approval of the proposed development, despite the conflict with the 2003 Planning Scheme?33

Consideration of the Council’s submissions34

Conclusions regarding of sufficiency of grounds42

Should the development be refused having regard to City Plan 2016?49

What is the relevant decision framework?49

What were the relevant findings by the Court of Appeal?50

What is the nature and extent of conflict with City Plan 2016 on which the Council relies?51

What other factors are relevant to the nature and extent of conflict with City Plan 2016?53

What other considerations are relevant to the exercise of the discretion?58

Conclusion regarding the weight to be afforded to City Plan 201664

One further issue that arose – approval in part65

Conclusion65

Introduction

  1. [1]
    This appeal was originally heard on 6 to 10 and 22 November 2017, 14 December 2017, and 1 and 2 February 2018.  For reasons provided in a judgment delivered on 1 March 2018, I allowed the appeal and approved the proposed development.[1]  That judgment was delivered before the decision of the Court of Appeal in Bell v Brisbane City Council & Ors.[2]
  2. [2]
    An application for leave to appeal was heard by the Court of Appeal on 20 August 2018.  The reasons for judgment were delivered on 28 June 2019.[3]  The Court granted leave to appeal and allowed the appeal on some, but not all, of the grounds of appeal. 
  3. [3]
    In allowing the appeal, the Court of Appeal determined that:
    1. (a)
      there was no 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 (Qld);
    2. (b)
      I erred in my approach to determining whether there were sufficient grounds to justify approval of the development application despite the conflict with the Gold Coast City Planning Scheme 2003 (“the 2003 Planning Scheme”); and
    3. (c)
      I erred in my construction of the definition of “Neighbourhood Centre” in Gold Coast City Plan 2016 (“City Plan 2016”), which error vitiated the exercise of the discretion to give such weight as I considered appropriate to any new policy (as permitted under s 495(2)(a) of the Sustainable Planning Act 2009).
  4. [4]
    The Court of Appeal remitted the matter to this Court to be determined according to law.  The parties agree that there are two questions for determination on remittal.
  1. Are there sufficient grounds to justify approval of the proposed development despite the conflicts with the 2003 Planning Scheme?
  1. Does the weight to be given to City Plan 2016 warrant refusal of the proposed development?
  1. [5]
    During the remitted hearing, a further issue arose.  In the event that I find there are not sufficient grounds to justify approval of the proposed development despite the conflicts with the 2003 Planning Scheme, K&K (GC) Pty Ltd (“K&K”) says that that I should approve the proposed development in part.  The approval in part of the service station (and its associated convenience store) is opposed by Gold Coast City Council (“the Council”).
  2. [6]
    Although there are only three substantive issues that require determination, at the remitted hearing the Council advanced a plethora of arguments as to why the proposed development should be refused.  They included arguments that I should make findings that were inconsistent with those previously made by me, even with respect to findings that:
    1. (a)
      were not disturbed on appeal;
    2. (b)
      are not affected by the errors found by the Court of Appeal; and
    3. (c)
      are about matters that were uncontested at the original hearing.[4] 
  3. [7]
    The Council’s approach is disappointing.  It is redolent of an attempt to win at all costs.  Nonetheless, with a view to bringing this litigation to an end, I have addressed each of the Council’s arguments below.  Having done so, it seems to me that the real issue to determine with respect to the first question is whether the deviation from the 2003 Planning Scheme to approve the proposed fast food premises and take-away food premises in conjunction with the larger unobjectionable service station use serves the public interest to an extent greater than the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied.  For the reasons that follow, I am satisfied that this is an exceptional case where the public interest in approval of the proposed development is greater than the public interest in upholding the 2003 Planning Scheme by refusing the development application.  As for the weight to be afforded to City Plan 2016, although all aspects of the proposed development do not comply with City Plan 2016, it must be remembered that the Sustainable Planning Act 2009 requires the subject application to be assessed against the 2003 Planning Scheme and the relevant provisions of City Plan 2016 are a matter of weight only.  I have given consideration to City Plan 2016, including its discouragement of a service station on the subject land, but I am ultimately unpersuaded to give that decisive weight in the circumstances of this case.

What are the issues to be determined with respect to the sufficiency of the grounds?

  1. [8]
    In order to answer the first question identified by the parties, it is necessary to consider the following seven questions.
  1. What is the appropriate approach to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld)?
  1. What is the nature of the proposed development?
  2. What is the nature and extent of the conflict?
  3. What grounds are relied on by K&K to justify approval?
  4. What did K&K establish at the original hearing and are they “matters of public interest”?
  5. What grounds are established on the further evidence?
  6. Are there sufficient grounds to justify approval of the proposed development, despite the identified conflict?

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

  1. [9]
    The appeal must be decided in accordance with the decision rule in s 326 of the Sustainable Planning Act 2009.[5]  It provides:

326 Other Decision Rules

  1. (1)
    The assessment manager’s decision must not conflict with a relevant instrument unless–
  1. (a)
    the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
  1. (b)
    there are sufficient grounds to justify the decision, despite the conflict; or
  1. (c)
    the conflict arises because of a conflict between–
  1. (i)
    2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or

Example of a conflict between relevant instruments

a conflict between 2 State planning policies

  1. (ii)
    2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.

Example of a conflict between aspects of a relevant instrument

a conflict between 2 codes in a planning scheme

  1. (2)
    In this section–

relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.

  1. [10]
    The task for the Court involves an evaluative exercise.  In determining whether there are grounds sufficient to justify approving the application notwithstanding any conflict, the Court is required to examine the nature and extent of the conflict with the 2003 Planning Scheme.[6] 
  2. [11]
    The term “grounds” is defined to mean “matters of public interest” and to exclude “the personal circumstances of an applicant, owner or interested party”.[7]  The Sustainable Planning Act 2009 does not provide further assistance in the Act as to what amounts to “sufficient grounds”.  However, s 759 of the Sustainable Planning Act 2009 permitted the Minister to make guidelines about the matters to be considered in deciding, under s 326, whether there are sufficient grounds to justify a decision that may conflict with a relevant instrument.
  3. [12]
    On 11 December 2009, the Minister published Statutory Guideline 05/09 under s 759 of the Sustainable Planning Act 2009.  It provides a list of matters that may be taken into account in deciding whether there are “sufficient grounds”.  They are:
    1. (a)
      the relevant instrument is out of date due to its age or changing circumstances in the area and the proposal reflects or responds to these changed circumstances;
    2. (b)
      the relevant instrument is incorrect in terms of its substance or underlying assumptions for the circumstances of the particular proposal.  For example, a planning scheme drafted on low growth or no growth assumptions is now experiencing unforeseen development pressure as a result of a new major economic development project in the area, or constraint mapping in the planning scheme does not reflect the physical site circumstances;
    3. (c)
      the type of development proposed is not adequately addressed by the relevant instrument;
    4. (d)
      the relevant instrument does not anticipate specific or particular development.  For example, the type of development proposed may be of international, national, state or regional significance and may not have been anticipated by the relevant instrument; and
    5. (e)
      there is an exceptional or urgent need for the proposal to occur.
  4. [13]
    These may be regarded as exceptional matters.  However, as I observed in Trowbridge & Anor v Noosa Shire Council,[8] the matters listed in Statutory Guideline 05/09 are not mandatory, nor are they exhaustive.  The indication in the Statutory Guideline that these matters are, by their nature, capable of overriding the intent of a planning scheme reflects that the needs of a community are not static and immutable.[9]  It is not possible for a local government, as drafter of a planning scheme, to forecast the will of the community, in land use terms, with scientific precision.[10]  In addition, planning schemes are often drafted without the benefit of site-specific studies detailing the attributes of each separate allotment in the local government area.[11]  As was observed by the Court of Appeal in Gold Coast City Council v K&K (GC) Pty Ltd,[12] each of the matters listed in the Statutory Guideline are matters that are now said to justify an exception to the planning scheme but which were unavailable for consideration when the planning scheme was formulated.
  5. [14]
    In allowing the appeal from my earlier judgment, the Court of Appeal confirmed that the range of matters that may potentially be included within the scope of “matters of public interest” is very wide.[13]  Sofronoff P, with whom Fraser JA and Flanagan J agreed, said:[14]

“[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.”

  1. [15]
    The public interest in certainty that the terms of a planning scheme will be faithfully applied is not the sole domain of local residents concerned to protect their amenity.[15]  It is highly desirable that a planning scheme enjoys the confidence of all those whose interests are thereby affected.  This of course includes the whole range of interests, whether they are entrepreneurial or conservative.[16]  It necessarily includes residents who reasonably expect their desire for convenient access to goods and services in locations anticipated in accordance with the planning scheme will not be unfairly denied such development.  It also includes landowners who seek to advance the economic development of a local government area.  They have a reasonable and legitimate expectation that unrealised but tangible development opportunities consistent with the planning scheme will not be peremptorily or unfairly extinguished.  It is based on such expectations that transactions take place, decisions are made to pursue economic opportunities, development applications are made, money expended, and people order their lives.[17]
  2. [16]
    The Court of Appeal’s decision in Bell v Brisbane City Council & Ors[18] also provides relevant guidance on the operation and application of s 326(1)(b) of the Sustainable Planning Act 2009McMurdo JA (with whom Sofronoff P and Philippides JA agreed), said:[19]

“[66] Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest. If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where that tension exists 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.  In Clark v Cook Shire Council,[20] Keane JA, with the agreement of the other members of this Court said:

‘The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.’”

  1. [17]
    McMurdo JA provided examples of exceptional cases that justify a decision that conflicts with a planning scheme.  They raise similar considerations to those set out in Statutory Guideline 05/09 referred to above, namely:
    1. (a)
      relevant circumstances have changed since the planning scheme was made;
    2. (b)
      there is a factual error in the planning scheme itself; and
    3. (c)
      the planning scheme has not anticipated the existence of circumstances that have created a need for certain development in the public interest.[21]
  2. [18]
    As was recognised by McMurdo JA:[22]

“In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”

  1. [19]
    The appropriate approach to the required exercise under s 326(1)(b) of the Sustainable Planning Act 2009 was again considered by the Court of Appeal in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor.[23]  Philippides JA observed:

“[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.[24] 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.[25] 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. [20]
    The recent decisions by the Court of Appeal emphasise that the required exercise under 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[26] or 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.[27]  A judgment about the public interest should not be formed without recognising the relevance of the planning scheme to that question.[28]  It is not for the decision maker to gainsay the expression of what is the public interest that is in a planning scheme.[29]  Rather, a decision should only approve development in conflict with a planning scheme if there are identified reasons why it is in the public interest that the terms of the planning scheme should not prevail.[30]  As such, the establishment of a need for a particular development will not, of itself, suffice. 
  2. [21]
    The Court of Appeal provided guidance with respect to the relevance of need for a proposed development in the operation of s 326(1)(b) of the Sustainable Planning Act 2009 in Gold Coast City Council v K&K (GC) Pty Ltd.[31]  Sofronoff P, with whom Fraser JA and Flanagan J agreed, said:[32]

“[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.”

  1. [22]
    Later in his judgment, Sofronoff P also provided guidance as to the type of situations where the need for a particular development might suffice.  He said:

“[68] A decision might be justified because the expression of public interest constituted by the Planning Scheme did not take into account, because it was unable to do so, later social developments. That was the case established before Andrews DCJ in Woodman McDonald Hardware Pty Ltd v Mackay Regional Council.[33] Nevertheless, it cannot be said that unforeseen circumstances must be shown in every case. 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. It may be that the public interest in having a need satisfied by a non-conflicting development, such as a service station, may override the conflict created by the inclusion of conflicting uses within that development. That may depend upon the extent of the need that will be satisfied and the ramifications of the conflict in the circumstances of the case. It may depend upon whether the needed development could viably proceed without the incorporation within it of the conflicting uses. It may depend upon whether the conflicting uses add any prejudicial effects to the existing amenity beyond the effect caused by the non-conflicting uses.”

  1. [23]
    Guidance on the relevance of need was also provided by McMurdo JA in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor.[34]  With respect to the particular situation that pertained in that case, after noting there had been a finding that there was a clear and strong level of economic need, McMurdo JA said:

“[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 a 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.”

  1. [24]
    In finding that it had to be shown that it was “necessary” to override the scheme, I do not understand McMurdo JA to be importing into the statutory test a requirement that is different to that conveyed by the words of the legislation, namely that “there are sufficient grounds to justify the decision, despite the conflict.”  Rather, although expressed differently, I understand McMurdo JA’s observations at paragraph [169] to be consistent with those of Sofronoff P in Gold Coast City Council v K&K (GC) Pty Ltd[35] referred to above.
  2. [25]
    Whether there are sufficient matters of public interest that warrant approval of the proposed development involves a discretionary value judgement.  It is to be made by reference to factual matters confined only by the subject matter, the scope, and the purpose of the Sustainable Planning Act 2009.[36]  The decision should not be made capriciously.  It should assume that it is in the public interest to maintain the terms of the planning scheme unless the contrary is demonstrated.[37]  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.[38]
  3. [26]
    In this case, the relevant planning scheme to be considered for the purposes of s 326 of the Sustainable Planning Act 2009 is the 2003 Planning Scheme.[39] 

What is the nature of the development?

  1. [27]
    K&K owns land at 248-254 Ferry Road, 24 Skiff Street and 21 York Street at Southport (“the subject land”).  It is bounded by Skiff Street on its northern boundary, Ferry Road on its western boundary and by York Street on its southern boundary and is 3 038 square metres in area.  It is on the south-eastern corner of the signalised intersection of Ferry Road, Cotlew Street East and Skiff Street.  Ferry Road is a six-lane, divided, and State-controlled road carrying approximately 36 000 vehicles per day.  Cotlew Street East is also a major road in the locality.  It is a four-lane, divided, sub-arterial road.
  2. [28]
    To the west of the subject land is a predominantly residential enclave.  It is bounded by the Nerang River to the east, a waterway to the north (just north of Korong Street), Regatta Parade to the east and south, and Ferry Road to the west.  Along Skiff Street and York Street are detached dwellings of one and two storeys in height.  There is a two-storey multiple dwelling complex directly opposite the site on the north-eastern corner of Skiff Street and Ferry Road.  The area is predominantly residential, but it does contain some non-residential uses.  They include a sleep therapist, a business broker, a hypnotherapist, a real estate agency, and an orthodontist.  A large childcare centre also operates from the north-eastern corner of Ferry Road and Yacht Street.  There is a strip of commercial uses on the western side of Ferry Road, between the waterway to the north of Durham Street and Shaw Street.  There is a Toyota car dealership directly opposite the subject land on the western side of Ferry Road.  On the south-western corner of the intersection, there is a shopping centre that contains cafés, retail tenancies and services.  Diagonally opposite, on the north-western corner of the intersection, there is the Ferry Road Tavern, a BP service station, a Night Owl convenience store, coffee drive-through, restaurants, cafés and bottle shops.
  3. [29]
    K&K wants to develop the subject land for a service station with associated convenience store.  It also wants to include a take-away food premises and fast food premises with drive-through facility as part of the development.  The service station would have three bowser positions to serve six cars, with payment facilities within the convenience store of about 200 square metres.  The fast food premises would have a gross floor area of 80 square metres and an additional 20 square metres of outdoor dining and a drive-through facility.  The take-away food premises would have a gross floor area of 100 square metres.  The fast food premises and take-away food premises would be in a part of the building that is separated from the convenience store by a corridor to the amenities.  Each proposed use is to have its own access from a pathway adjacent to the building.  The tenancies are not proposed to be interconnected. 
  4. [30]
    There would be 21 car park spaces and nine bicycle spaces.  The building heights would range between 5.5 and 6.06 metres, and signage associated with the businesses would rise to 7.25 metres.  It is intended that the service station and associated convenience store would operate 24 hours a day and seven days a week.  The drive-through component of the fast food premises would operate between 6 am and 8 pm Monday to Saturday and 7 am to 8 pm on Sundays and public holidays.  The fast food premises and take-away food premises would otherwise operate between 6 am and 10 pm, seven days a week.  Vehicular access would be from Skiff Street and Ferry Road.  Acoustic barriers would be erected between the subject land and the adjoining houses, and landscaping would be established between the acoustic fence and the boundary.

What is the nature and extent of the conflict?

  1. [31]
    My earlier findings with respect to the nature and extent of the conflict with the 2003 Planning Scheme were not criticised by the Court of Appeal.  As such, I will only provide a brief summary of them.  Detailed reasons are set out in my earlier judgment.[40]
  2. [32]
    Here, the conflict is confined to the proposed incorporation of about 200 square metres of floor space for fast food premises and take-away food premises as only a smaller part and mere adjuncts to the dominant and unobjectionable use of the land for a service station.[41]  K&K accepts that a decision to approve the proposed development would conflict with the 2003 Planning Scheme because fast food premises and take-away food premises are categorised as undesirable uses in both the Residential Choice Domain and the Detached Dwelling Domain.  This is the only conflict with the 2003 Planning Scheme.[42] 
  3. [33]
    The conflict is at the more serious end of the spectrum as it is the result of an evident policy intention that take-away food premises and fast food premises not be located in the Residential Choice Domain and the Detached Dwelling Domain.[43] The policy to nominate these uses as “undesirable or inappropriate” was implemented by use of inclusion of the subject land in the Detached Dwelling Domain and the Residential Choice Domain.  The domains are the key to the assessment status of individual development proposals within their subject areas.  This includes their policy status of “undesirable or inappropriate” development.  Domains provide for the distribution, mixing and segregation of different types of uses, and each domain is intended to provide for compatible development and to segregate incompatible development.[44]
  4. [34]
    The 2003 Planning Scheme intends that the stated planning intent will be implemented through the provisions of the applicable domains and any other relevant development code.[45]  The provisions of the applicable domains include a statement of intent for the domain; the tables of development, which indicate the level of assessment and (when read with other parts of the 2003 Planning Scheme) inform the reader of those types of development considered to be “undesirable or inappropriate”; and, in this case, the Detached Dwelling Domain Place Code and the Residential Choice Domain Place Code.
  5. [35]
    The Detached Dwelling Domain is intended to preserve and enhance the suburban character and residential amenity of the low-density residential neighbourhoods contained within the domain.  The domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life, with opportunities for residential based leisure pursuits.[46]  The Table of Development contemplates that, subject to impact assessment, uses of land in the Detached Dwelling Domain may include a child care centre, convenience shop, medical centre and service station.  The proposed development, including the conflicting land uses, does not conflict with the statement of intent for the domain or the Detached Dwelling Domain Place Code.[47]  The proposed service station complies with all of the implementation provisions, including the Table of Development.
  6. [36]
    The intent and purpose of the Residential Choice Domain is similar to that for the Detached Dwelling Domain, although it also seeks to facilitate a wide variety of residential support services to be located within the domain, commensurate with local residents’ needs.  The Table of Development contemplates that, subject to impact assessment, uses of land in the Residential Choice Domain may include a wider range of commercial uses, including a café.  The proposed development complies with the Residential Choice Domain Place Code.[48]  The proposed service station complies with all of the implementation provisions, including the Table of Development.
  7. [37]
    In this case, the serious conflict occasioned by the proposed for take-away food premises and fast food premises uses arises because the uses are not listed in the Table of Development for the Detached Dwelling Domain or the Residential Choice Domain.  As such, they are uses that are generally regarded as inappropriate in those domains.  However, in this case the conflict is significantly reduced because the proposed development:
    1. (a)
      would not result in material adverse amenity impacts;[49]
    2. (b)
      does not conflict with the Detached Dwelling Domain Place Code, the Residential Choice Domain Place Code or the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises); and
    3. (c)
      accords with the Service Station Code in that it:
      1. will provide a service station at a suitable location;
      2. will ensure that a service station is established to meet the needs of local residents, visitors and travellers through convenient points of service;
      3. is on a site of sufficient area; and
      4. will be a modern, attractive service station in its appearance and design.[50]
  8. [38]
    The Court of Appeal found no error with my reasoning that the extent of conflict was reduced by the considerations outlined in paragraph [37] above.[51]  These considerations highlight that the ramification for the public is the approval of development that:
    1. (a)
      includes some uses that are considered appropriate on the subject land and some uses that are not considered appropriate for the subject land under the 2003 Planning Scheme;[52] but which nevertheless
    2. (b)
      complies with almost all of the provisions incorporated in the 2003 Planning Scheme to implement the planning intent for the Detached Dwelling Domain and the Residential Choice Domain and to regulate the appropriate use of the subject land, including the provisions of the Detached Dwelling Domain Place Code and the Residential Choice Domain Place Code;
    3. (c)
      complies with all of the requirements of the applicable codes regulating the relevant types of uses, in particular the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises) and the Service Station Code;
    4. (d)
      does not compromise the Council’s strategic planning;
    5. (e)
      does not introduce any adverse impacts; and
    6. (f)
      will provided the “undesirable uses” as part of an overall development proposal that has, as its dominant aim, the provision of a service station, being a use that the public would expect on the subject land (and which it must be taken to be in the public interest to have delivered on the subject land).
  9. [39]
    As was noted by Sofronoff P, it is not irrelevant that the uses that would create a conflict are uses that would be only a smaller part of a larger unobjectionable use – the conflicting uses are mere adjuncts to the dominant aim of K&K to develop a profitable service station.[53] 
  10. [40]
    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 grounds are relied on by K&K to justify approval?

  1. [41]
    At the original hearing, the grounds relied on by K&K to justify approval of the proposed development were: 

“1. There is a need for the proposed development.

  1. The proposed development can meet the need in circumstances where:

2.1 it will be conveniently located to serve the public;

2.2 it will be readily accessible on the road network;

2.3 there will be no unacceptable impacts on amenity arising from the proposal;

2.4 it is consistent with reasonable community expectations.

  1. The proposed development will enhance the physical well-being of the community by providing additional choice for the convenience of residents and travellers.
  1. The proposed development will not jeopardise the economic viability of existing or planned centres or service stations.
  1. The proposed development will ensure appropriate utilisation of the land, in circumstances where it is currently vacant.
  1. Approval of the proposed development will not compromise the achievement of the Desired Environmental Outcomes of the Gold Coast Planning Scheme 2003 or the Strategic Framework of the Gold Coast City Plan 2016 and otherwise complies with a substantial number of provisions in the planning schemes.
  1. The proposed development exhibits a high quality of design, including appropriate setbacks, in a way which adds to the amenity and character of the locality in a positive way.
  1. The proposed development will not result in any discernible impacts, including adverse character and amenity impacts, on surrounding land uses or otherwise.
  1. The proposed development is consistent with the building height and bulk of other development in the locality.”
  1. [42]
    In my earlier judgment, I detailed the reasons I was satisfied that K&K had demonstrated each of the matters identified above. 
  2. [43]
    On appeal, Sofronoff P made the following observations about those matters:

“[21]  K&K’s brief document stating “sufficient grounds” asserted four categories of issues:

  1. (a)
    Need – paragraphs [1]-[4];
  1. (b)
    An allegation that the land would be used appropriately – paragraph [5];
  1. (c)
    An allegation that the development complies with a “substantial number of provisions in the Planning Scheme” and would “not compromise” certain identified parts of the 2003 Planning Scheme and 2016 City Plan – paragraph [6];
  1. (d)
    An assertion that, by reason of its design and building character, the development would not have any specific negative effects upon amenities – paragraphs [7]-[9].

[22]  There was no allegation to explain how any of these matters constituted “matters of public interest”.”[54]

  1. [44]
    Sofronoff P also noted:[55]

“[64] Her Honour considered the expert evidence about the need for a service station and, to some extent peripherally, the need for a convenience store and the other food premises. After a careful and detailed examination of this evidence and the parties’ submissions, her Honour found that there was a greater than “low” need for a service station and a lower than “strong” need for it.  Her Honour also found that there was a need for the take-away food and fast food premises, and for the convenience store.  Her Honour accepted that the proposed development would not adversely affect the amenity and character of the locality, nor would it compromise the Council’s strategic planning.”

  1. [45]
    The Court of Appeal judgment does not contain any criticism of the findings I made about each of the matters that K&K relied on as “grounds”.  On the basis of my findings, I concluded that the extent of need for the proposed development was sufficient to justify approval of the proposed development given the nature and extent of the conflict identified.  In his reasons, Sofronoff P makes it clear that this approach failed to apprehend and apply the applicable statutory requirement.  He says to justify the development it must be demonstrated that the desired deviation from the planning scheme serves the public interest to an extent greater than the public interest in certainty that the terms of the planning scheme will be faithfully applied.[56] 
  2. [46]
    K&K maintains its reliance on the same matters to justify approval of the proposed development.  My earlier findings with respect to those matters relied on as grounds were not criticised by the Court of Appeal, nor was my analysis of the general principles in relation to need.  As such, I do not propose to traverse them again in detail here.  I will provide a brief summary only.  I rely on the detailed reasons set out in my earlier judgment.

What did K&K establish at the original hearing and are they “matters of public interest”?

  1. [47]
    As I have noted in paragraph [42] above, and for the reasons provided in my earlier judgment, K&K has established:
    1. (a)
      there is a need for the proposed development;
    2. (b)
      the need can be met in circumstances where:
      1. the proposed development will be conveniently located to serve the public;
      2. the proposed development will be readily accessible on the road network;
      3. there will be no unacceptable impacts on amenity arising from the proposed development;
      4. the proposed development is consistent with reasonable community expectations;
    3. (c)
      the proposed development will enhance the physical well-being of the community by providing additional choice and convenience;
    4. (d)
      the proposed development will not jeopardise the economic viability of existing or planned centres or service stations;
    5. (e)
      the proposed development will ensure appropriate utilisation of the land, in circumstances where it is currently vacant;
    6. (f)
      approval of the proposed development will not compromise the strategic planning of the Council;
    7. (g)
      the proposed development exhibits high quality design, appropriate setbacks, and will add to the amenity and character of the locality;
    8. (h)
      the proposed development will not result in any discernible impacts, including adverse character and amenity impacts; and
    9. (i)
      the proposed development is consistent with the building height and bulk of other developments in the locality.
  2. [48]
    As I have already observed above, the Court of Appeal noted that in the document entitled “Appellant’s Sufficient Grounds”, there was no allegation to explain how any of these matters constituted “matters of public interest”.  At the original hearing, the Council did not contend that the matters were not “matters of public interest”.  Nevertheless, when considering the asserted “grounds”, I had regard to the definition of “grounds” in Schedule 3 of the Sustainable Planning Act 2009.  At paragraph [24] of my earlier judgment[57] I noted that “grounds” is defined as follows:

“1. Grounds means matters of public interest.

  1. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
  1. [49]
    I also had the benefit of the written submissions prepared on behalf of K&K.  The written submissions identified that, in respect of the ground relating to an absence of amenity impacts, it is well established that an absence of a negative or detrimental impact is a relevant consideration.  In support of its submission, K&K cited the Court of Appeal’s decision in Lockyer Valley Regional Council v Westlink Pty Ltd.[58]  I also made reference to that Court of Appeal decision in my earlier judgment at paragraph [333] where I found:[59]

“The last three grounds relate to visual and character issues, which have been dealt with above.  By itself, the absence of adverse effect would not amount to a sufficient ground; however, it is still a relevant consideration.  It is a matter of public interest.”

  1. [50]
    On the issue of need, K&K’s written submissions for the original hearing also referred to general principles distilled from Sempf v Gatton Shire Council,[60] Roosterland Pty Ltd v Brisbane City Council,[61] Fitzgibbons Hotel Pty Ltd v Logan City Council,[62] Bunnings Building Supplies Pty Ltd v Redland Shire Council,[63] Cut Price Stores Retailers & Ors v Caboolture Shire Council,[64] and Intrafield Pty Ltd v Redland Shire Council.[65]  In particular, K&K noted that the question as to whether need is shown to exist is to be decided from the perspective of a community and not that of an applicant, commercial competitor or particular objector. 
  2. [51]
    As is evident from the cases referred to by K&K, and the general principles with respect to need referenced in my earlier judgment,[66] need in the town planning sense is established if its provision, taking all things into account, improves the physical well-being of the community.  As such, need, in a town planning sense, is a matter of public interest.  This is acknowledged in the decision of the Court of Appeal, wherein Sofronoff P observed:[67]

“… need as a factor in town planning decision-making has been held, under various statutes, to constitute a matter of public interest that can override the opposing public interest in the enforcement of a Planning Scheme.” 

  1. [52]
    At the remitted hearing, K&K submitted that the grounds constitute matters of public interest because:
    1. (a)
      in relation to questions of need: it is in the public interest to deliver facilities that are needed so as to enhance the well-being of the community;
    2. (b)
      in relation to questions of land being used appropriately: it is in the public interest for land to be used in an efficient fashion, particularly where, as is the case here, uses the subject of a development may not be delivered if they are not provided as part of an integrated development;
    3. (c)
      in relation to questions of planning scheme compliance: if it is in the public interest to comply with the planning scheme, putting to one side the part in conflict, the level of compliance that the development otherwise achieves is relevant; and
    4. (d)
      in relation to questions of an absence of amenity impacts: it is in the public interest that a development that is needed can be delivered to the community with an absence of amenity impacts.[68] 
  2. [53]
    As was the case at the original hearing, the Council does not cavil with K&K’s submission that the matters relied on by K&K are matters of public interest.  I accept that each of the matters referred to in paragraph [52] above are relevant to the exercise of the discretion under s 326(1)(b) of the Sustainable Planning Act 2009 for the reasons advanced by K&K. 
  3. [54]
    The issues in dispute, with respect to the exercise of the discretion under s 326(1)(b) of the Sustainable Planning Act 2009, relate to:
    1. (a)
      what, having regard to the further evidence, is the nature and extent of the need for, and community benefit provided by, the proposed fast food premises and take-away food premises; and
    2. (b)
      whether the matters of public interest raised by K&K are sufficient in all of the circumstances of this case to justify approval of the proposed development. 

What grounds are established on the further evidence?

  1. [55]
    The general principles in relation to need are set out in my original decision and will not be repeated here.[69]  The Court of Appeal did not criticise my analysis of the relevant principles and confirmed that need can constitute a matter of public interest that can override the opposing public interest in the enforcement of a planning scheme.[70]
  2. [56]
    With respect to the need for the service station, in my earlier judgment I found there is a greater than “low” need for a service station on the subject land and a lower than “strong” need for it.  This finding was not criticised by the Court of Appeal.
  3. [57]
    On the issue of need for the take-away food and fast food premises, in the Court of Appeal decision, Sofronoff P records:[71]

“… The experts agreed that the take-away food premises and the drive through fast food premises would mostly service southbound traffic.  They also agreed that those retail outlets would “add to the cluster” of similar retail outlets in the immediate area.  How those matters served the public interest was not identified.”

  1. [58]
    On the basis of the evidence available at the original hearing, I found that there is a need for the take-away food and fast food premises given:[72]
    1. (a)
      in respect of the take-away food premises, Gloria Jeans have expressed interest in the tenancy.  There is no other Gloria Jeans located in the immediate area;
    2. (b)
      Mr Leyshon, the Council’s economic expert, agreed that there would be advantages from Gloria Jeans co-locating with the proposed service station – it will add to the customer’s choice and convenience;
    3. (c)
      the economic experts agreed that:
      1. it is not uncommon for petrol stations to be co-located with take-away food/drive-through facilities given these types of facilities also serve local residents and passing traffic along heavily trafficked routes; and
      2. Gloria Jeans would provide a different offer to the other drive-through facilities serving coffee in the region, which are presently dominated by Zaraffa’s;
    4. (d)
      the proposed development would provide a point of difference to other facilities in the trade area due to its co-location, convenient offer and southbound traffic location;
    5. (e)
      the proposed development would add to a cluster of take-away or fast food facilities and that the size of the trade area and worker population, as well as passing traffic, would be large enough to sustain such a facility in the south-bound direction; and
    6. (f)
      approval of the proposed development would add to choice, competition and convenience in terms of the fast food/take-away food offer in its precinct.
  2. [59]
    At the remitted hearing, Mr Leyshon and Mr Duane, the economics experts retained by the Council and K&K respectively, gave further evidence about the nature and extent of need for, and community benefit provided by, the proposed fast food premises and the take-away food premises. 
  3. [60]
    With respect to the proposed development, Mr Leyshon confirmed that he still holds the view, expressed in evidence at the original hearing, that the subject land presents a good commercial opportunity for an independent fuel operator to service the needs of the community.  He opines that it is an excellent site for the totality of what is proposed and acknowledges that the subject land has locational attributes that are not common for the eastern side of Ferry Road.  The subject land is a highly visible site for motorists travelling south down Ferry Road or east along Cotlew Street and, if the development proceeds, it will be readily recognisable by regular motorists in the area as a new development in that part of the city.  He opines that the service station would attract significant patronage.  During cross-examination, Mr Leyshon also confirmed that the co-location of fast food and take-away food premises with the service station will add to the choice and convenience of customers.  Mr Leyshon expects that the fast food and take-away food premises would be successful, provided the facilities are of good quality and are attractive to the public.  The early interest expressed by Oporto and Red Rooster (proximate to the time when the development application was made) suggests that the proposed development would be of good quality and attractive to national operators.
  4. [61]
    Mr Duane says that there is a significant developing trend for major fast food chains to typically operate in close proximity to, if not on the same site as, service stations.  He says the co-location has become the “norm” in the last five years and that the provision of drive-through facilities by take-away food premises like Oporto and Guzman Y Gomez has become more prevalent in the past two or three (or perhaps five) years.  Mr Duane identified numerous examples of such development within and beyond the trade area.  Recently developed sites nearby include the United Petroleum service station and Pie Face site, the Coles Express service station and Hungry Jacks site, and the Woolworths service station and McDonalds service station site.  They are all in Southport.  In Ashmore, there is a combined Shell service station, KFC and Starbucks site, and a Freedom service station and Zarraffa’s site.  Another site nearby is the development at 88 Bundall Road.  It was approved for a service station and drive through coffee shop.  I accept the evidence of Mr Duane.  It is consistent with the evidence of Mr Leyshon in relation to the co-location trend.
  5. [62]
    Mr Duane explains that service stations and fast food and take-away food premises with drive-through operations require similar attributes from sites on which they locate.  Key attributes are access from a major road, to ensure appropriate traffic operations and to provide good exposure; and operating hours that are more extended than those available when operating within a typical shopping centre.  He says that in light of those requirements, it is not economically sensible for separate facilities to be constructed for each fast food outlet and service station.  During cross-examination, Mr Leyshon agreed with these views.  I accept this evidence.
  6. [63]
    In addition, Mr Duane says that the benefits of co-location are not limited to private economic benefits enjoyed by the relevant traders.  He opines that co-location of service stations with fast food and take-away food premises is to the benefit of the public.  This is particularly so given, in his view, many fast food and take-away food premises do not have the capacity to operate as stand-alone facilities and, as such, absent opportunities to co-locate would not be available to the public.  With the exception of McDonald’s and KFC, Mr Leyshon agrees.  During cross-examination, Mr Leyshon acknowledged that likely tenants for the proposed development, like Gloria Jean’s Coffees, rely on co-locating with other traffic generating activities that they can trade off rather than locating on a freestanding site.  The opinion of the economics experts on this issue is consistent with the information depicted on Map 1 in the Joint Report on Economic Need dated 4 November 2019, which documents the location of service stations and fast food and take-away food premises presently located within an approximate four-kilometre radius of the subject land.  I accept this evidence about the public benefits generally afforded by co-location.
  7. [64]
    Mr Duane opines that the public benefits of the proposed development include increased convenience for the customer, easy accessibility and visibility from major roads for such facilities, and extended trading hours for the fast food and drive-through facilities by virtue of their co-location with a service station.  Mr Duane explains that motorists benefit by being able to purchase fast food at the same location as the service station, either on the same trip or on different trips.  He is also of the view that the proposed development would offer increased choice, convenience and competition for southbound traffic along Bundall Road.  Mr Duane notes that Gloria Jean’s Coffees has expressed interest in the proposed drive-through facility on the subject land.  He also notes that there are a number of other tenancies who typically operate drive-through facilities that are not represented in the trade area.  They include Guzman Y Gomez, Oporto, Red Rooster and The Coffee Club.  I accept Mr Duane’s evidence in this respect also.
  8. [65]
    Mr Duane says that the only vacant site in the primary sector of the trade area that would be able to incorporate the proposed take-away food premises and fast food premises with associated drive through facilities is the now vacant Crema Expresso tenancy at 88 Bundall Road.  His evidence in this regard was unchallenged and I accept it.  Mr Duane opines that the public benefits presented by the proposed development are different to the benefits afforded by the development of 88 Bundall Road, which is on the western side of Ferry Road and serves the northbound traffic.
  9. [66]
    As I have already observed, Mr Leyshon was of the same opinion as Mr Duane about the recent trends with respect to co-location; the economic and operational considerations that inform the trend; and the public benefits associated with the co-location of the proposed service station with fast food and take-away food premises.  Nevertheless, Mr Leyshon maintains his opinion that there is a very low level of need for the proposed drive-through coffee shop and fast food premises on the subject land.  His opinion in that regard is premised on four matters.  First, Mr Leyshon assumes that the need is relevant to only a very small proportion (less than ten per cent) of motorists travelling southbound on Ferry Road.  Second, Mr Leyshon opines that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items.  In forming that opinion, Mr Leyshon relies on a 2017 survey by Australasian Convenience and Petroleum Marketers Association (2017 Monitor of Fuel Consumer Attitudes).  He notes that the survey records that only 8.6 per cent of the total survey respondents purchased coffee or hot drinks while also purchasing fuel.  Third, Mr Leyshon relies on the survey to opine that there is no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land.  Fourth, Mr Leyshon considers that, to the extent that there is a need for a coffee vendor such as Gloria Jean’s Coffees, that need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall.
  10. [67]
    I do not accept the evidence of Mr Leyshon that the need for the proposed drive-through coffee shop and fast food outlet on the subject land should be characterised as “a very low level of need” for the reasons that follow.
  11. [68]
    Even if the development only serves less than ten per cent of motorists travelling southbound on Ferry Road, that is a significant population.  As I noted in my earlier judgment,[73] the economics experts agree that Ferry Road is one of the busiest roads on the Gold Coast.  It is on a major north-south connection road to a significant employment and shopping precinct.  The average daily volumes of traffic along Ferry Road include 35 837 vehicles in both directions approximately two kilometres to the north of the subject land (near the intersection of Ferry Road and Minnie Street) and 50 273 vehicles in both directions approximately three kilometres to the south along Bermuda Street near the intersection with Monaco Street.
  12. [69]
    In addition, I do not accept that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items.  Mr Leyshon’s opinion to this effect is founded on his views about the relevance of the findings of the 2017 Monitor of Fuel Consumer Attitudes report prepared by the Australasian Convenience and Petroleum Marketers Association, which I do not accept.  Nor do I accept the Council’s submissions about the proper construction of the document for the reasons provided below. 
  13. [70]
    A copy of the report is appendix D to the Joint Report on Economic Need prepared for the remitted hearing.  It indicates that a survey of fuel consumers was conducted in August 2017 by way of an on-line survey of 1 042 respondents and video interviews with ten consumers.  The survey is said to have been conducted on behalf of the Australasian Convenience and Petroleum Marketers Association by a well-recognised market research firm – Survey Matters.  The report records findings in relation to the habits of people when purchasing fuel. 
  14. [71]
    As is noted by the Council in its written submissions, Mr Duane appears to discount the relevance of the findings of the survey to co-located facilities, such as the take-away food premises and the fast food premises components of the proposed development.  He does so on the basis that the survey only considered consumer habits in relation to convenience stores associated with petrol stations.  Mr Leyshon was of the view that it was not clear from the methodology of the survey that co-located facilities were excluded.  The Council submits that I should find that they were not excluded because:
    1. (a)
      the executive summary does not say anything that distinguishes between co-located facilities and the operation of the convenience stores at service stations;
    2. (b)
      the first paragraph of the executive summary simply states that the survey is to better understand Australian consumer attitudes, preferences and habits when purchasing fuel; and
    3. (c)
      convenience stores attached to petrol stations do not typically sell café-style meals.
  15. [72]
    When the report is read as a whole, these matters do not persuade me, on the balance of probabilities, that the survey lends support to Mr Leyshon’s position in the manner he contends.[74]  The questions asked of those who participated in the survey are not recorded in the report.  As such, I am not persuaded of the soundness of Mr Leyshon’s assumption that it is an extremely low proportion of those refuelling who will seek to use the proposed fast food premises and the take-away food premises.
  16. [73]
    Although I accept Mr Leyshon’s evidence that the 2017 Monitor of Fuel Consumer Attitudes provides no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land, that does not, of itself, persuade me that the need for the proposed fast food and take-away food premises is only “very low”. 
  17. [74]
    I also do not accept Mr Leyshon’s opinion that, to the extent that there is a need for a coffee vendor such as Gloria Jean’s Coffees, or other such take-away food premises, the need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall.  The tenancy in question was previously occupied by “Crema Expresso”.  They have been excluded from the Bundall Road site due to non-payment of their rent.  The tenancy has been sitting vacant ever since.  Mr Duane does not consider this facility to be of material benefit for southbound motorist.  This is because typically purchasers of petrol would travel in and out of a site by travelling in the same direction before and after the purchase.  I accept Mr Duane’s evidence in this regard. 
  18. [75]
    It is evident from the maps and plans available during the hearing that a southbound traveller who wishes to use the facility would have to undertake two U-turns (one at Vespa Crescent and one at Crombie Avenue) to access the facility and then, having made the purchase, would have to cross three lanes of traffic in order to perform a U-turn at Crombie Avenue to continue their journey south.  These U-turn movements would be at intersections controlled by traffic signals.  They would involve extra travel of less than one kilometre.  Nevertheless, I do not consider this to be convenient.  The inconvenience associated with such manoeuvres is such that I do not regard the community benefits afforded by the 88 Bundall Road site to be of persuasive relevance to a consideration of the public benefit associated with the proposed development. 
  19. [76]
    I also accept the evidence of Mr Duane that the 88 Bundall Road site would not be attractive to national operators seeking to operate a drive-through tenancy.  The tenancy has poor visibility.  The drive through facility is also unattractive due to its location at the back of the development.  Its location would require a motorist to drive through the service station to place a food order.
  20. [77]
    In addition to relying on the evidence of Mr Leyshon referred to in paragraph [66] above, the Council advances a further six substantive arguments as to why I should find that the need for the proposed fast food and take-away food premises are very low.
  21. [78]
    The Council’s first substantive argument is that the evidence adduced at the remitted hearing reveals that there is significant doubt about whether Gloria Jean’s Coffees would take up a tenancy for a fast food premises (drive through coffee shop) in the proposed development. 
  22. [79]
    The only evidence of Gloria Jean’s Coffees’ interest in the tenancy is a letter from the Retail Food Group dated 20 February 2017 under the hand of the national Portfolio Manager.  The letter details the terms of a lease offer.  At the start of the letter, Retail Food Group notes that the lease offer is subject to board approval.  It is also subject to the lessee’s legal advisor’s satisfaction with the lease terms, and to securing a franchisee.  Having set out those provisos, the letter details the terms and conditions for a lease to Gloria Jean’s Coffees.  The letter seeks confirmation that “the terms and conditions set out below are acceptable to the Lessor, so that we may submit the lease offer for RFG Board Approval”.  The letter then outlines Gloria Jean’s Coffees’ requirements in considerable detail across six pages.  They include, amongst other things, requirements with respect to seating area, trading hours, after-hours access, tenancy design, fit-out contributions, drive-through arrangements, and car parking.  The letter concludes that “Upon confirmation that Gloria Jean’s Coffees terms and conditions are acceptable to the Lessor, we may submit the lease offer for Board Approval.” 
  23. [80]
    The qualified nature of the offer is unsurprising given the letter is not a lease.  I am not troubled by the dated nature of the letter.  I would not expect a lease to have been signed, or an updated letter to be provided, when the question of planning approval is outstanding.  Having regard to the extensive detail contained in the letter, I do not consider that there is significant doubt that Gloria Jean’s Coffees would take up a tenancy. 
  24. [81]
    In any event, Mr Leyshon does not doubt that a tenant would be found.  As such, I am persuaded on the balance of probabilities that a suitable national branded tenant will be found for the proposed take-away food premises.  I do not consider the dated and qualified nature of the letter to be indicative of a very low need for the proposed fast food premises and take-away food premises.
  25. [82]
    The second substantive argument advanced by the Council is that there is already an opportunity for a coffee vendor such as Gloria Jeans to lease an existing drive-through coffee shop at 88 Bundall Road, Bundall.  The Council submits that such an outlet could serve the motorists who regularly use the Bundall Road / Ferry Road corridor as well as attracting custom from local residents and workers.  I do not find the submission persuasive for the reasons outlined in paragraph [74] above.
  26. [83]
    The Council’s third substantive argument is that, even if the 2017 Monitor of Fuel Consumer Attitudes report is found to relate only to consumer habits in relation to the convenience store, the needs of the overwhelming majority of motorists travelling southbound on Ferry Road would be met simply by the provision of a service station and an associated convenience store that retails those items most commonly bought by motorists when refuelling their vehicle (namely drinks, chips, lollies, snacks, coffee/hot drinks and basic grocery items).  In support of the submission, the Council refers to paragraph 55 of the Joint Report on Economic Need dated 4 November 2019.  That paragraph is part of section 3.3, in which Mr Leyshon summarises the effect of the opinions that he otherwise expresses about the relevance of the 2017 Monitor of Fuel Consumer Attitudes report.  I do not accept his opinions in this regard for the reasons already outlined in paragraphs [66] to [74] above.
  27. [84]
    The Council’s fourth substantive argument relies on the evidence of Mr Leyshon that there are numerous opportunities for motorists using Ferry Road to purchase fast food and coffee from existing establishments associated with service stations, particularly to the north of the subject land as depicted in Map 1 of the Joint Report on Economic Need prepared for the remitted hearing.  Those opportunities include the recently opened Taco Bell (with drive-through facilities) at 80 Ferry Road, Southport, to the north of the subject land.  The Council also submits that there is no reason why take-away food could not be provided at the convenience store, albeit with a reduced offer. 
  28. [85]
    I do not accept the Council’s submission with respect to the convenience store use.  The convenience store forms part of the defined service station use.  Leaving aside the inconsistency between this submission and the Council’s position that the proposed service station and associated convenience store should not be approved, either by way of approval of the whole of the proposed development or by a partial approval, the submission is not supported by the 2003 Planning Scheme.  Under the 2003 Planning Scheme, a service station is defined as:

“Any premises used, or intended to be used, for the refuelling of motor vehicles, including the sale of retail of petrol or automotive distillate or any derivative capable of use in internal combustion engines, whether or not the premises are also used for one or more of the following purposes:

The sale by retail of:

  • lubricating oils and greases;
  • batteries and tyres;
  • accessories and other products associated with motor vehicles;
  • power and lighting kerosene;
  • mower fuel;
  • maps, tobacco, confectionary, patent medicines, soft drinks, milk products, newspapers and periodicals, where any such sale is to a person travelling by motor vehicle.

The carrying out of:

  • the fitting, removal, and exchange of tyres;
  • the repairing of tubes;
  • the supply of air;
  • the charging or replacement of batteries;
  • the lubrication and greasing of motor vehicles;
  • the cleaning, adjustment and replacement of sparkplugs;
  • the adjustment, cleaning or replacement of filters or carburettors or fuel injection systems;
  • the reception and return of tyres deposited for repair on other premises;
  • running repairs of a minor nature and of a type which do not normally immobilise a vehicle for a period longer than two hours;
  • the installation of accessories for motor vehicles and motor cycles;
  • the washing of motor vehicles, motor cycles, boats and trailers;
  • the hiring of trailers, utility trucks or utility vans where the total number of trailers and vehicles does not exceed six and the capacity for each such trailer or vehicle is not more than one tonne;
  • the rendering of minor services incidental to any of the foregoing.

This term does not include a Motor Vehicle Repair Station, an Industry, a Salvage Yard, a Passenger Terminal, a Shop or a Transport Terminal.”

  1. [86]
    It is apparent from the definition of service station that the service station use (and its associated convenience store) cannot fulfil the need intended to be served by the provision of the fast food premises and the take-away food premises. 
  2. [87]
    As for the other opportunities to purchase fast food and coffee from existing establishments associated with service stations, in addition to the Taco Bell, the Council’s submissions refer to:
    1. (a)
      take-away coffee available at each of the convenience stores associated with the three service stations on Ferry Road at Southport identified on Map 1 of the Joint Report on Economic Need prepared for the remitted hearing; as well as at McDonalds and other fast food outlets (all just to the north of the primary trade area);
    2. (b)
      a wide range of barista style coffees from the McCafe within the McDonalds to the north of the primary trade area but on the southbound side of Ferry Road;
    3. (c)
      the Shell Coles Express to the south of the subject land servicing southbound traffic and within the primary trade area;
    4. (d)
      the BP NightOwl centre diagonally north-west of the subject land which includes a Subway, Pizza Hut and a range of other take-away outlets, and the Night Owl (which would be expected to have take-away coffee);
    5. (e)
      Papercup, which is a coffee shop that is in the same centre as the BP Night Owl;
    6. (f)
      Blendlove, which is a specialist café coffee shop in the O Centre on the opposite side of Ferry Road to the subject land;
    7. (g)
      Zarraffa’s Coffee, which is a branded coffee chain with a drive-through facility located a little further north of the subject land and on the western side of Ferry Road; and
    8. (h)
      the convenience store associated with the Freedom petrol station at 88 Bundall Road, which sells a barista style, upper market brand of coffee called Di Bella’s.
  3. [88]
    The existence of other facilities is relevant to consideration of the extent of need.  The relative convenience of those offers and the extent of choice provided by them is also relevant.
  4. [89]
    The identified Taco Bell is the only fast food premises within the trade area located on the eastern side of Ferry Road.  It is north of the intersection of Ferry Road and Cotlew Street.  As such, I do not consider it convenient to those motorists who turn onto Ferry Road from Cotlew Street. 
  5. [90]
    Many of the identified opportunities for take-away coffee are outside of the trade area or on the western side of Ferry Road.  For reasons already provided in paragraph [74] above, I do not consider the offer at 88 Bundall Road to be convenient to southbound motorists.  Similarly, while the take-away coffee and food offer at the BP Night Owl centre and the O Centre and at Zarraffa’s Coffee may provide choice to nearby residents seeking to walk to the centres, given their location on the western side of Ferry Road, I am not persuaded that they provide a comparable level of convenience to that offered by the proposed development. 
  6. [91]
    With respect to the extent of choice, Mr Duane says there are other operators who typically operate drive-through facilities that are not represented in the trade area and that could potentially locate at the subject land.  He says that fact, coupled with the increasing population growth in the trade area and the high-profile location of Ferry Road for such facilities, indicates a need for the fast food and drive-through facility.  Although there is no agreement for lease with the other operators, or any expressions of interest from them, that does not detract from the force of Mr Duane’s opinions given Mr Leyshon’s expectation that the fast food and take-away food premises would be successful.
  7. [92]
    As such, while the existence of other opportunities detracts from the strength of the need for fast food premises and take-away food premises, I consider the lack of convenience associated with the alternative offer to be a countervailing consideration that is of greater weight.  The significant public benefit associated with convenient facilities is highlighted by the evidence of the economics experts referred to in my earlier judgment. 
  8. [93]
    As I noted in my earlier judgment,[75] the economics experts agree that work hours have changed substantially in Australia, with many people leaving home in the early hours of the morning, particularly tradesman and the like.  Shift work has become increasingly important as part of the Australian environment.  It means people are travelling on the roads at earlier or later times.  The economics experts agree that Australians have become more time poor, with two parents working.  During his examination-in-chief at the most recent hearing, Mr Duane explained how these changes in society inform the public benefit associated with the provision of convenient access to fast food premises and take-away food premises with drive-through facilities.  He said:

“And do you have any sense of what the driver is for the increased interest by Oporto, the coffee shops and the like to have the drive-through offer?---Like anything, your Honour, these tenants serve a market. The market is growing for convenience food or takeout food. That’s been a trend for a long period of time. They often want to extend when they can get to the customer or have – have – be available to the customer. The drive-through components operate those morning and late at night peaks, which don’t tend to happen in shopping centres, and you want to be around facilities that are open at the same time, and so you’ve seen that – that greater trend across a number of areas in terms of longer working hours or shift work, people being more focused or less time for their own cooking that this has been a greater trend for people to be getting drive-through facilities.”

  1. [94]
    In support of his opinion, Mr Duane notes that for major retailers such as McDonald’s, the drive-through trade accounts for more than 50 per cent of customers. 
  2. [95]
    I accept Mr Duane’s evidence.  His observations with respect to the increased tendency for households to work longer hours and rely more heavily on convenience purchases of food highlights the significant benefit afforded to the public from the provision of a broad range of fast food and take-away food premises operating outside of typical shopping centre hours.  The proposed development offers such benefits to the public.  The fast food premises and take-away food premises are proposed to operate between 6 am and 10 pm, seven days a week, with the drive-through facility operational between 6 am and 8 pm Monday to Saturday and between 7 am and 8 pm on Sundays and public holidays. 
  3. [96]
    On the basis of Mr Duane’s evidence, I am satisfied that the recent trends for co-location do not only reflect the private economic imperatives for co-location.  They are also demonstrative of the market responding to emerging community preferences and the needs of today’s society.  It is in the public interest to provide development that addresses emerging community preferences and the present day needs of society. 
  4. [97]
    The Council’s fifth substantive argument is that there are already vacancies available for these ancillary uses in the locality including:
    1. (a)
      in the primary trade, the drive-through coffee shop facility at 88 Bundall Road previously occupied by Crema Espresso;
    2. (b)
      also in the primary trade area, a vacant space at 88 Bundall Road adjacent to the pharmacy; and
    3. (c)
      just to the north of the trade area, a small store that is part of the recently developed United Petroleum petrol station on Ferry Road, Southport.
  5. [98]
    I do not consider this submission to be persuasive.  For reasons already provided in paragraph [74] above, I do not consider the vacancies at the 88 Bundall Road site to be of persuasive relevance.  The third site identified by the Council is outside of the applicable trade area analysed by the economics experts.  The Council did not refer to any evidence to support its position that the opportunity to provide further facilities outside of the trade area is relevant to the extent of need for the facilities to serve the residents of the trade area.
  6. [99]
    The sixth substantive argument raised by the Council relates to why it submits I should not accept the opinions expressed by Mr Duane.  The Council makes a further six submissions in support of its argument that Mr Duane’s evidence should not be accepted.
  7. [100]
    The first relates to Mr Duane’s opinion that there is a need for, and public benefit associated with, the provision of the fast-food premises and take-away food premises co-located with the service station.  Mr Duane says the need and public benefit is informed by the increased convenience associated with the proposed development coupled with its accessibility and visibility from a major road and its ability to provide extended trading hours.  The Council submits that the increased degree of convenience is minute because of the many other take-away food and coffee options already available in the locality and because there is no reason why the convenience store associated with the proposed development cannot provide these offerings as well.  It also submits that accessibility and visibility from major roads is not unique to facilities co-located with service stations and, in any event, is not an indicator of need.  In addition, the Council submits that the extended trading hours of these facilities is not unique to co-location with service stations and is not an indicator of need. 
  8. [101]
    For the reasons already provided in paragraphs [74] and [84] to [90] above, I do not accept the Council’s submission that the increased degree of convenience is minute.  For the reasons outlined in paragraphs [92] to [96] above, I consider it to be a weighty consideration.  Accessibility and visibility from major roads and extended trading hours inform the issue of convenience.  They are also important considerations to which I attribute considerable weight.  Given their relevance to convenience, I do not accept the Council’s submission that they are not an indicator of need.[76]  The Council’s submission about the proposed convenience store is disingenuous given the Council also says the proposed development should not be approved in part even though the proposed service station and associated convenience store use complies with the 2003 Planning Scheme.  In any event, I do not accept the Council’s submission for the reasons provided in paragraphs [85] and [86] above.
  9. [102]
    The Council’s second submission is that the existence of many examples of co-location of like facilities in the area and the demonstration of a trend does not assist K&K.  The Council submits that it supports the Council’s position that there is a very low need for further facilities of this nature in the locality, given their prevalence in the area.  In addition, the Council says the trend is explicable as a good commercial opportunity rather than evidence of a need for the proposed co-location.  I do not find this submission persuasive for the reasons provided in paragraphs [92] to [96] above.
  10. [103]
    The Council’s third submission is that Mr Duane does not explain why purchases of fuel and fast food on different trips benefits the public.  It submits that “there is no apparent reason why it should be” and that “plainly it is not”.  The Council’s submission is not supported by the evidence.  As I have noted in paragraph [63] above, Mr Duane explained that the public benefit derives from the provision of facilities that would not otherwise be available to the public because they do not have the economic capacity to operate as a stand-alone facility.  This was an opinion with which Mr Leyshon agreed.  I accept the evidence of Mr Duane that the co-location of the fast food premises and take-away food premises with service stations enables the public to benefit from a greater choice of facilities. 
  11. [104]
    The Council’s fourth submission is that there are a few vacancies at sites in the primary sector of the trade area.  I have already addressed the substance of this submission in paragraphs [74] and [87] to [98] above.  It is not persuasive.
  12. [105]
    The Council’s fifth submission relates to Mr Duane’s evidence that Gloria Jean’s Coffees has an ongoing interest in establishing a drive-through coffee shop and his evidence that there are a number of other tenancies who typically operate a drive-through facility not represented in the trade area.  The Council submits there is no evidence that Gloria Jeans has any ongoing interest in taking up the drive-through tenancy at the subject land and there is no evidence of current interest from the other identified tenancies.  For reasons outlined in paragraphs [78] to [81] and [91] above, I do not regard these to be matters that undermine the veracity of the opinions expressed by Mr Duane.
  13. [106]
    The Council’s sixth submission relates to Mr Duane’s evidence about the increasing population growth in the trade area, as well as the high-profile location of Ferry Road for such facilities.  It submits that the increasing population is well served by other facilities already available in the locality.  In addition, it submits that even if the site is correctly described as “high profile”, that fact does not create a need for the facilities.  I accept that having a “high profile” site does not create a need for the facilities.  I also accept that the presence of other similar businesses in the locality is relevant to the existence of a need.  However, I do not accept that it is demonstrative of an absence of need or only a low level of need in this case for reasons that I have already given.
  14. [107]
    For the reasons outlined in paragraphs [55] to [106] above, I do not accept the Council’s submissions that the need for the proposed fast food premises and the take-away food premises is only “a very low level of need”.  Convenient access within the trade area to a choice of food and beverage facilities, including by way of drive-through facilities, is important to the well-being of a modern community.   
  15. [108]
    I am satisfied that the existing facilities do not adequately address the well-being of the residents of the trade area because they do not provide sufficient choice of facilities within the trade area.  I am also satisfied that further facilities could not be provided within the trade area at a location that provides the level of convenient access that is appropriate for the well-being of the residents of the trade area.  There is a need for the whole of the proposed development at the proposed location.  The added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public benefit in this case.  As such, the approval of the proposed development is in the public interest.

Are there sufficient grounds to justify approval of the proposed development, despite the conflict with the 2003 Planning Scheme?

  1. [109]
    It must be accepted that the 2003 Planning Scheme is an expression of the public interest in terms of land use and that, prima facie, ensuring development conforms with the 2003 Planning Scheme is in the public interest.  The 2003 Planning Scheme makes it clear that it is in the public interest for the subject land to be developed for a service station provided that the requirements of the 2003 Planning Scheme, including those in the Service Station Code, are met.  That is the situation that pertains here.[77]  It is also apparent from the 2003 Planning Scheme that use of the subject land for a fast food premises and take-away food premises is not considered to be in the public interest. 
  2. [110]
    In this case, the real question to be decided is whether the deviation from the 2003 Planning Scheme to approve the proposed fast food premises and take-away food premises in conjunction with the larger unobjectionable service station use serves the public interest to an extent greater than the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied.[78]  This is not determined by a general weighing exercise, but by considering whether there are identifiable public interest reasons why the terms of the 2003 Planning Scheme should not prevail such that it is appropriate to override the public interest in its application to the subject land.

Consideration of the Council’s submissions

  1. [111]
    The Council submits:

“62. As indicated by the CA, need is the “starting point” for the application of s.326(1)(b) of SPA. In the case of the fast food premises and take-away food premises, it is submitted the need for these facilities is very low, for the reasons outlined above. Even if Mr Duane’s evidence is accepted in total, at best, no more is demonstrated than that there is, simply, “a need” for these facilities.

  1. The CA also reasoned that “a need” will never be enough to satisfy s.326(2)(b) (sic) of SPA. The decision maker must also find that it is in the public interest for the identified need to be established in the particular location which results in a conflict. The circumstances in which that will occur are ‘exceptional’. Otherwise, it must be assumed that the public interest in maintaining the planning scheme should be met on a site which does not give rise to a conflict.
  1. Examples of exceptional circumstances were provided in Bell and the CA in this case. To some extent they overlap. None of these circumstances is present in this case, nor could the circumstances otherwise be said to be exceptional. Each example is dealt with in turn below.”
  1. [112]
    The Council’s written submissions proceeded to approach the exercise by addressing each example given by the Court of Appeal.  I do not accept the validity of the Council’s approach to this issue.  Each case must be determined by reference to its individual facts and circumstances.  I do not regard the examples provided by the Court of Appeal in Bell v Brisbane City Council & Ors[79] and Gold Coast City Council v K&K (GC) Pty Ltd[80] to be an exhaustive list of the circumstances where there will be sufficient grounds that justify approval of a development despite conflict with a planning scheme.  While I appreciate the force of McMurdo JA’s observation at paragraph [66] of Bell v Brisbane City Council & Ors,[81] I do not regard His Honour’s observations as intended to import into the statutory regime a higher hurdle than that reflected by the words of the legislation itself.  Nevertheless, in considering the issue to be determined here, I deal with each of the five submissions made by the Council below. 
  2. [113]
    The Council’s first submission is that there is no factual error in the 2003 Planning Scheme.  It is difficult to appreciate why this submission has been made.  It is not a ground advanced by K&K.  This is not a matter of public interest that arises in this case. 
  3. [114]
    The Council’s second submission is that the 2003 Planning Scheme did not fail to take into account, because it was unable to do so, later social developments of relevance to the proposed development.  Again, this is not a ground advanced by K&K.
  4. [115]
    The Council submits the trend is driven by private economics.  It also submits that the 2003 Planning Scheme makes appropriate provision for co-location of service stations with other facilities, such as fast food premises and take-away food premises.  It does so by providing for the location of service stations in shopping centres of various sizes.
  5. [116]
    The economics experts agree that there is a “trend” to co-locate service stations with fast food premises (with and without drive-through facilities) over the last decade, and more particularly over the last five years.  That post-dates the commencement of the 2003 Planning Scheme in or around 2003.  I accept that private economics informs the trend.  However, having regard to the evidence of Mr Duane, I consider the persistence of the trend reflects that co-location provides significant benefit to the public, which the public has embraced.  There is a public interest in the co-location of such services.
  6. [117]
    I do not accept that the 2003 Planning Scheme makes adequate provision for the benefits afforded to the public by co-location of service stations with fast food premises and take-away food premises by permitting service stations to locate within shopping centres demonstrates that.  As was noted by Mr Duane, shopping centres operate less extensive hours than service stations.  Here, the proposed development would operate more extensive hours than the shopping centres in the primary trade area.  In addition, as Mr Duane explains, the fast food premises and take-away food premises within shopping centre complexes do not have drive-through facilities.  As such, they do not afford the public benefit associated with the proposed drive-through facilities. 
  7. [118]
    Although I do not accept the Council’s submissions, I do not afford weight to this ground.  City Plan 2016 was promulgated around the time that the trend was becoming evident.  It does not provide for co-location on the subject land.  However, on the evidence before me, it is not clear whether that is because City Plan 2016 was promulgated without appreciating the significant public interest in the provision of such facilities; or because it is a public benefit that the local government has determined should not be addressed. 
  8. [119]
    Third, the Council submits that the extent of the need for the fast food premises and take-away food premises is marginal.  It says K&K has not demonstrated that it is in the public interest (or even in the interest of a section of the public) to provide those facilities at this location to meet such a low level of need.  In support of its submission, the Council relies on the evidence of Mr Leyshon that only ten per cent of the motoring public travelling south on Ferry Road who patronise the service station will benefit from purchasing fuel and, at the same time, items from the fast food premises and the take-away premises.  They also assert that those items could in any event be provided within the convenience store attached to the service station, or at the many other facilities already provided in the primary catchment and beyond, which include co-located facilities of the type proposed here.  In addition, the Council submits that any interest that local residents may have in the additional choice and convenience provided by the proposed fast food premises and take-away food premises is not exceptional.  I do not accept the evidence of Mr Leyshon or the assertions of the Council for the reasons already provided in paragraphs [66] to [74], [83] to [96] and [100] to [103] above.  As I have found in paragraph [108] above, the added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public interest in this case.
  9. [120]
    Fourth, the Council submits that, even if there is a need for the proposed development on the subject land, the question arises whether the public interest in approving the proposed development outweighs the public interest in applying the 2003 Planning Scheme.  I agree. 
  10. [121]
    With respect to that question, the Council says that the Court of Appeal provided an example of when the public interest in approving a development application might outweigh the public interest in faithfully implementing the planning scheme, with particular reference to the circumstances of this case.  The Council says the Court of Appeal reasoned that it may be that the public interest in having a need satisfied by a non-conflicting development, such as a service station, may override the conflict created by the inclusion of conflicting uses within that development, depending on:
    1. (a)
      whether the needed development could viably proceed without incorporating within it the conflicting uses;
    2. (b)
      the extent of the need that will be satisfied;
    3. (c)
      the ramifications of the conflict in the circumstances of the case; and
    4. (d)
      whether the conflicting uses add prejudicial impacts to amenity beyond the effect caused by the non-conflicting use.[82]
  11. [122]
    It was common ground between Mr Leyshon and Mr Duane that service stations can and do operate viably as standalone offers.  The Council submits there was no evidence that the proposed development could not proceed in the absence of the fast food premises and take-away food premises.  Its submission is curious given the Council’s position that the Court could not approve that part of the proposed development that involves the service station, even though it complies with the 2003 Planning Scheme.
  12. [123]
    With respect to the extent of need, the Council submits that the need for the non-conflicting uses is not compelling in this case.  It says the need for the service station is not strong (although it is not low either) and there is “a need” for the convenience store because it provides a late night and early morning shopping facility when other facilities are closed, and it has community benefits derived from co-location.  I accept the Council’s characterisation of the need for the service station use, and the associated convenience facilities.  However, for the reasons already provided in this judgment and my earlier judgment, I do not accept that the need for the non-conflicting uses is not compelling.  As I have found in paragraph [108] above, the added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public benefit.  It demonstrates a compelling need.
  13. [124]
    With respect to the ramifications of the conflict, I accept the Council’s submission that the proposed development would result in the establishment of uses deemed inappropriate in the relevant domains of the 2003 Planning Scheme.  As I noted in my earlier judgment, although the proposed service station is a use that ought reasonably be expected by the community, the same cannot be said with respect to the proposed fast food premises and take-away food premises.[83] 
  14. [125]
    The Council also submits that the proposed development results in the loss of the potential use of the subject land for residential uses in circumstances where the subject land is ideally located for those uses because it adjoins existing residential uses and is in close proximity to the existing facilities across Ferry Road.  In that regard, the Council relies on the evidence of Mr Leyshon and Mr Reynolds, the town planner retained by the Council.
  15. [126]
    Mr Leyshon opines that the subject land should preferably be developed for residential uses given it is adjacent to land zoned and used for residential purposes, and it is proximate to existing convenience retail and commercial services and the Bundall employment area.  Mr Reynolds also opines that the subject land is very well suited for medium density residential development, being situated between the employment centre of Southport and Bundall, adjacent to public transport routes and adjacent to the existing retail and commercial facilities.  In addition, Mr Reynolds says that the subject land is a vacant, multi-unit residential site that is amalgamated and cleared, ready for unit development.  On that basis, Mr Reynolds opines that the subject land is ready to add to the housing stock now.  He regards the amalgamated parcel as “unusual” and suggests that it distinguishes the subject land from other land so zoned.  He says the ability to add to the housing stock now will be lost if the application is approved.  He says that, for those reasons, the proposed development does not represent an efficient use of the land for its intended purpose. 
  16. [127]
    I do not regard the Council’s submission, or the evidence of Mr Leyshon and Mr Reynolds to which the Council refers, to be persuasive for four reasons.
  17. [128]
    First, although I accept that the 2003 Planning Scheme permits the subject land to be developed for residential development, I do not accept the subject land is “ideal” for such development.  It is located on a six-lane divided State-controlled road that carries approximately 36 000 vehicles per day.  This would significantly detract from the amenity provided to persons who might reside on the subject land.  In addition, as I noted in my earlier judgment, I accept the evidence of the residents of the area that the character of the area is affected by cars queuing down Skiff Street, noise from trucks refuelling and making deliveries at the BP service station on the other side of Ferry Road, noise from Ferry Road, noise from the outdoor garden area at the Ferry Road Tavern, noise from commercial rubbish trucks on the opposite side of Ferry Road, and lighting from commercial uses on the western side of Ferry Road.[84]  Those factors are likely to cause an even greater adverse amenity impact on anyone who would reside on the subject land, as the subject land is more proximate to the sources of impact than the residences of those who gave the evidence of the impacts.
  18. [129]
    Second, were the proposed development refused, it does not follow that the subject land would be developed for residential development.  Leaving aside the features of the area that would make the subject land unattractive for that nature of development, the character of uses intended for the subject land under the 2003 Planning Scheme is not limited to uses of a residential character.  Five of the six lots that comprise the subject land are located in the Residential Choice Domain and the other lot is in the Detached Dwelling Domain.[85]  As such, under the 2003 Planning Scheme, the land uses contemplated for the subject land include a range of commercial uses such as child care centres, convenience shops, medical centres, cafés, and service stations.[86]  Under City Plan 2016, five of the six lots are located in the Medium density residential zone and the other lot is in the Low density residential zone.  Although a service station is no longer a use contemplated for the subject land, City Plan 2016 contemplates use of land in those zones for a range of commercial and community purposes such as car washes, child care centres, health care services, a shop, veterinary services, emergency services, educational establishments and places of worship.
  19. [130]
    Third, I do not accept Mr Reynolds opinions.  They are premised on a flawed assumption, namely that the subject land is amalgamated.  It is not.  As I have already noted, the subject land comprises six separate allotments.
  20. [131]
    Fourth, it has long been recognised that when considering whether a proposed deviation from a planning scheme is in the public interest, it is relevant to consider the impact of such a deviation on the balance of zones, given it must be assumed that at the time the planning scheme takes effect, the zoning decided upon, and the quantum of the land within each zone, is suitably balanced or in the right proportion for the proper control of land development in that area.[87]  Here, there is no suggestion that the failure to require strict adherence to the 2003 Planning Scheme would result in a material reduction in either the quantity or spatial distribution of land available for that nature of development intended by the planning authority to occur in the Detached Dwelling Domain and the Residential Choice Domain.  This is unsurprising given the economics experts agree that there are numerous sites which could accommodate future residential growth and the subject land, at 3 000 square metres, would only ever contribute a very small amount to the approximate 1 875 dwellings required to meet population growth in the primary sector.  The economics experts also agree that, consequently, the loss of the subject land would probably have limited implications for achieving population targets.  I accept this evidence.  As such, I am satisfied there is no adverse impact likely to arise for the planning for the Gold Coast in terms of its balance of zones.
  21. [132]
    The Council submits that a further ramification of approval of the proposed development would be an increase in amenity impacts.  In this respect, the Council submits:

“83. While it is accepted that this Court has held that in relation to amenity impacts, there are “no material adverse impacts from the proposed development” and there was no conflict with any of the relevant provisions of CP2003 in this regard, that does not equate to no amenity impacts. Nor does it equate to any finding about the additional amenity impacts which may arise from the inclusion of the fast food premises or the take-away food premises. The CA refers to ramifications of the conflict (and later on, to whether there are any added prejudicial impacts from the conflicting use), not whether they are acceptable or not.

  1. In this regard, the evidence of Mr Reynolds at first instance should be accepted in relation to the proposed fast food premises (with drive through facility):

“This is a different type of traffic which gives rise to vehicle noise, emissions, speaker noise and visual activity. The noise, odour and lighting experts have confirmed the drive through facility will not cause emissions which exceed numeric standards. However, as the drive through adjoins residential houses, these effects will at least be noticeable and beyond the reasonable residential character expectations of those residents for a residential use.”

  1. Mr Schomburgk’s evidence in response was to rely on the expert evidence in that regard, which must be taken to be a reference to the ‘numeric standards’ referred to by Mr Reynolds. As many cases before this Court have found, this is not the end of an amenity enquiry.[88]
  1. Otherwise, it is submitted that it is self-evident that the additional fast food premises (particularly the drive through component) and take-away food premises, located as they are abutting residential uses, will add to amenity impacts by way of additional noise, odour, traffic, lighting, building bulk and generally activity. Put another way, there is no evidence that will not be the case.”
  1. [133]
    These submissions ignore many of the findings I made in my earlier judgment.  As I noted in my earlier judgment,[89] in Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors,[90] Skoien SJDC observed:

“It is trite to recall that probably all uses of land have some adverse effects on the occupants of a neighbouring residence.  Even the most desirable neighbour must occasionally create noise or other activity which to some extent, even minor, is an annoyance to others.  Less desirable neighbouring residences may be the site of barking dogs, noisy children, over-loud television or stereo sets, over-frequent lawn mowing, a noisy vehicle.  Human activities which disturb others may be annoyingly early or annoyingly late.  The perfect neighbour does not exist except for the most tolerant person.  So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded.”

  1. [134]
    As I have already found in my earlier judgment, although the proposed use of the land for fast food premises and take-away food premises conflicts with the 2003 Planning Scheme, the conflict is not accompanied by any consequent undue impact.  When the proposed development is assessed on its merits, and in context, there is no adverse impact likely to arise in terms of noise, air quality and lighting, visual amenity, character, the centres hierarchy, or traffic.[91]  In this respect, it is material that the character of uses intended for the subject land under the 2003 Planning Scheme is not limited to uses of a residential character.  The land uses contemplated for the subject land include a range of commercial uses.[92]  Insofar as the subject land has any residential character, the massing and proportions of the proposed development complies with expectations set by the applicable criteria in the Detached Dwelling Domain Place Code.  The proposed development provides for a sensitive and thoughtful transition between the more commercially intensive character perceived along Ferry Road and the more relaxed suburban character of the residential area to the east.  In addition, the proposed development, with its proposed landscaping, would enhance the streetscape.[93] 
  2. [135]
    I am satisfied that the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station.  The service station will operate 24 hours per day whereas the other uses will operate shorter hours.[94] 
  3. [136]
    I do not accept the evidence of Mr Reynolds quoted at paragraph 84 of the Council’s submissions and set out in paragraph [132] above.  That evidence is premised on the false assumption that the character expectations of the adjoining residents is limited to use of the subject land for residential purposes.  Also, I do not accept Mr Reynold’s assertion that there is a “different type of traffic”.  He provides no cogent explanation for it.  I also do not accept his evidence that the noise, odour and lighting impacts will be noticeable.  Mr Reynolds did not outline the basis for his opinion.  It is no more than a bald assertion.  In addition, his evidence is not consistent with the evidence of Mr King and Ms Richardson, the noise, air quality and lighting experts retained by K&K and the Council respectively, which evidence I accept. 
  4. [137]
    In my earlier judgment I outlined the reasons I accept the evidence of Mr King and Ms Richardson with respect to these matters.[95]  Their evidence included detailed analysis of the potential impacts of the various components of the proposed development.  For example, Mr King analysed the odour impacts from fuel vapours, as well as potential odour impacts from kitchen cooking exhaust systems.  The evidence of Mr King and Ms Richardson satisfies me that there will be no adverse amenity impacts from the proposed development as a whole, and that the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station.
  5. [138]
    The absence of any prejudicial effects caused by the proposed fast food premises and take-away food premises to the existing amenity beyond the effect caused by the proposed service station is a matter that is only apparent having assessed the proposed development on its merits and in context, including with regard to the particular mix of uses proposed and the design attributes employed by the proposed development.  It is a consideration that was unavailable when, in formulating the 2003 Planning Scheme, the local government determined that use of the subject land for fast food premises and take-away food premises would involve incompatible uses.
  6. [139]
    Finally, in paragraph 89 of its written submissions, the Council says the following matters are also relevant to the public interest issue:

“(a) it is not the case that the conflicting uses are an insignificant component of the proposal because:

  1. (i)
    they comprise two of the three (four if the convenience shop is treated as a separate component to the service station) components of the proposal; and
  1. (ii)
    the floorspace of the non-conflicting uses is a significant proportion of the overall floorspace of the proposal;
  1. (b)
    the co-location benefits are not unique to this site. They are equally able to be obtained on sites that do not contain a service station (i.e. other existing fast food clusters) and other sites comprising existing centres.
  1. (c)
    as Mr Leyshon indicated during cross-examination at the remitted hearing, the reason why there is unlikely to be other sites on the eastern side of Ferry Road with the same locational attributes of this site (for the proposed development) is the zoning on that side of the road. Put simply, the scheme does not encourage proposals of this type (at least the fast food food and take-away food premises) on the eastern side of Ferry Road, which is why it is unlikely they will be established in a freestanding form on that side of the road. That policy decision of the Council, as expressed in CP2003, is to be respected. It is not in the public interest to provide such conflicting uses in combination with non-conflicting uses (service station and convenience store) where they are not acceptable on this side of Ferry Road on their own, particularly in light of the insignificant need for these additional facilities.”
  1. [140]
    The Council did not explain the relevance of its observation in paragraph 89(a) of its submissions.  Its observation should be considered in the context that, as was observed by Sofronoff P, it is not irrelevant that the uses that would create a conflict were uses that would be only a smaller part of a larger unobjectionable use – the conflicting uses are mere adjuncts to the dominant aim of K&K to develop a profitable service station.[96]
  2. [141]
    The submission in subparagraph 89(b) of the Council’s written submissions is a bald assertion.  The Council did not refer to any evidence in support of it.  To the contrary, the evidence establishes that the benefits of choice and convenience derived from the proposed co-location of uses are unique to the subject land.  There is no suitable alternative site in the trade area.
  3. [142]
    As for the submission in subparagraph 89(c) of the Council’s written submissions, I do not accept that the absence of an appropriate zoning alone informs why stand-alone fast food premises and take-away food premises are unlikely to be established on the eastern side of Ferry Road.  Having regard to the evidence of Mr Duane and Mr Leyshon referred to in paragraphs [62] and [63] above, it is unlikely that standalone facilities would be established even were such uses permitted on the eastern side of Ferry Road.  In addition, for reasons already provided, I do not accept that there is an insignificant need for the additional facilities.

Conclusions regarding of sufficiency of grounds

  1. [143]
    As I noted in paragraph [110] above, the real question is whether the deviation from the 2003 Planning Scheme to approve the proposed fast food premises and take-away food premises in conjunction with the larger unobjectionable service station use serves the public interest to an extent greater than the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied.  This was how the exercise was described by Sofronoff P in Gold Coast City Council v K&K (GC) Pty Ltd.[97]
  2. [144]
    In so describing the exercise, Sofronoff P also said:

“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.”

  1. [145]
    It seems to me that there are a number of ways to approach whether approving the proposed development serves the public interest to a greater extent than “maintenance of the status quo”. 
  2. [146]
    One approach is to consider the public interest in leaving the land in its current state.  That is a narrow approach to the public interest served by “maintenance of the status quo”. 
  3. [147]
    Here, the subject land is vacant.  Photographs of the subject land demonstrate that, in its vacant state, it provides a poor visual amenity outcome for nearby residents.  Further, as I have noted in paragraph [128] above, with the subject land in its vacant state, the character of the area is adversely affected by noise from trucks refuelling and making deliveries at the BP service station on the other side of Ferry Road, noise from Ferry Road, noise from the outdoor garden area at the Ferry Road Tavern, noise from commercial rubbish trucks on the opposite side of Ferry Road, and lighting from commercial uses on the western side of Ferry Road.[98]  Those factors are likely to cause an even greater adverse amenity impact on anyone who would reside on the subject land as the subject land is more proximate to the sources of impact than the residences of those who gave the evidence of the impacts.
  4. [148]
    Approval of the proposed development on the subject land would improve the character and amenity outcomes enjoyed by the public.  As I noted in paragraph [134] above, the proposed development provides for a sensitive and thoughtful transition between the more commercially intensive character perceived along Ferry Road and the more relaxed suburban character of the residential area to the east.  In addition, the proposed development, with its proposed landscaping, would enhance the streetscape.[99] 
  5. [149]
    For the reasons provided in paragraphs [147] and [148] above, I am satisfied that a decision to approve the proposed development serves the public interest to an extent greater than the maintenance of the land in its current vacant state.  Having said that, I do not consider this to be the appropriate approach to the exercise.  This narrow approach can be undertaken without having any regard to the 2003 Planning Scheme.  That is not what is contemplated by s 326(1)(b) of the Sustainable Planning Act 2009, nor do I regard it as the exercise contemplated by Sofronoff P.
  6. [150]
    At the other end of the spectrum is an approach that involves considering the public interest served by approval of the proposed development as compared to the public interest served by compliant development of the subject land.  This begs the question: what is the compliant development that one must assume?  How does one determine the parameters of such a development?  What built form should be assumed?  How are the defining characteristics of the compliant built form to be established?  Are they determined by the Council advancing a hypothetical design that it says reflects a compliant design?  Must the developer accept that the Council’s hypothetical design is compliant, or can it challenge, as part of the appeal, any hypothetical advanced by the Council on the basis that it does not, in fact, comply and, as such, the Council’s case is premised on a false basis?  Is it for the developer to put forward a demonstrably “compliant” design as an alternative to its proposed development?  What if the Council does not accept the developer’s alternative is compliant?  How does one choose the use that is to form the basis of the comparison?  Is it one of the range of uses that is able to be implemented with the least amount of scrutiny, such as a use that is self-assessable, or one that is code assessable and meets all of the acceptable outcomes?  If so, which of the range of self-assessable or code assessable uses is to be chosen as the basis for the comparison?  If the comparison is to be made having regard to a self-assessable or code assessable use, what consideration is given to an impact assessable use that complies with the planning scheme?  Does one disregard such a use even though it also is a form of development that accords with the planning scheme?  What if there is a greater public need for a compliant impact assessable use than a code assessable use, but the impact assessable use affords less public benefit in terms of amenity considerations?  In that circumstance, should the impact assessable “compliant” development form the basis for the comparison, or should the code assessable use form the basis?  Does one undertake a full merits assessment of both alternatives in order to decide which compliant development represents the greater public interest before then deciding if there is an even greater public interest provided by the proposed development?  How far down this rabbit hole must a developer go to discharge its onus?  Does it need to present hypothetical designs for each type of use contemplated as appropriate in the applicable domain or zone and demonstrate the respective need for each hypothetical development?  In developing hypothetical “compliant” developments, what, if any, regard should be had to whether it is commercially feasible to deliver the hypothetical developments?  Should the “compliant” use be one that is demonstrated to be the highest and best use of the land? 
  7. [151]
    These questions highlight why it is impractical to approach the exercise in this manner.  Such an approach ignores the reality that, in assessing the acceptability of a proposed development, a local government is not presented with a binary choice between a non-compliant development and an alternative compliant development.  Planning schemes do not advance a particular design option or solution for a particular site.  They articulate planning goals and stipulate controls that guide the parameters of development in performance-based terms.[100] 
  8. [152]
    It must also 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.  If a party opposed to a development were to advance a case that the public interest of the proposed development is not greater than the public interest in a particular alternative design advanced by it on the basis that the alternative represented a “compliant” development, the developer (as the party with the onus) might feel obliged to present evidence that the supposedly compliant design is in fact not compliant and, as such, the public interest associated with that design is not relevant.  Such an approach could turn the appeal into an inquiry into the acceptability of many alternative designs, rather than an assessment of the proposed development itself.  One can readily imagine the resulting cost and delay.[101]
  9. [153]
    In any event, it seems to me that when Sofronoff P’s reference to “maintenance of the status quo” is read in the context in which it appears, this approach does not find favour.  As Sofronoff P goes on to say:[102]

“The public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied.”

  1. [154]
    There is no certainty that a hypothetical development will be delivered.  After all, a planning scheme does not, nor could it, require a landowner to deliver a particular form of development.  That is not its role.  Its role is to guide, and regulate, the nature of development that could proceed should landowners seek to develop their land.
  2. [155]
    For the reasons provided in paragraphs [150] to [154] above, I do not consider that s 326(1)(b) of the Sustainable Planning Act 2009 calls for a consideration of the public interest served by approval of the proposed development as compared to the public interest served by a hypothetical compliant development of the subject land. 
  3. [156]
    Whether or not a party can legitimately put a hypothetical compliant development in issue, in this case K&K need only discharge the onus with respect to the case raised against it by the Council.  The Council does not allege that the public interest served by a hypothetical compliant development would be greater than public interest served by approving the proposed development.  The Council’s allegations, insofar as they relate to s 326(1)(b) of the Sustainable Planning Act 2009, are:

“8. The proposal is contrary to the reasonable expectations of the community having regard to the significant number of objections lodged against the proposal.

  1. The proposal cannot be conditioned to satisfactorily mitigate the conflicts against the 2003 Scheme. 
  1. The Appellant has not demonstrated that there are sufficient grounds to justify a decision to approve the proposal despite the conflicts.
  1. There are no matters of public interest that would justify a decision to approve the proposal despite the conflicts.”
  1. [157]
    The legislation does not require a developer to demonstrate the acceptability of its proposed development by reference to the number of submissions in support of it as compared to the number of submissions lodged objecting to it.  This is a matter that the Council has raised in support of its position.  As such, before K&K is required to discharge an onus of proof, the Council must first present sufficient evidence to raise the existence or non-existence of the fact it seeks to rely on as an issue, namely that there were a significant number of objections lodged against the proposed development.  As I observed in my earlier judgment, in its written submissions the Council asserted that there were 87 properly made submissions objecting to the proposed development, as well as a petition with 83 signatures.  In doing so, it cited a statement to that effect in the Town Planning Joint Expert Report.  That information contradicts the information in the Appeal Book, which records that there were 94 submissions of which 81 were properly made, five were not properly made and eight submitters made more than one submission.  The submissions are not in evidence before the Court.  The Council has not established that there were a significant number of objections lodged against the proposed development.  In addition, as I observed in my earlier judgment, I do not find it persuasive to refer only to the number of submissions.  What is relevant is their content.  The Council has not adduced evidence sufficient to properly raise this allegation as an issue that K&K needs to meet.[103]
  2. [158]
    I accept that the proposed development cannot be conditioned to satisfactorily mitigate the conflicts against the 2003 Planning Scheme.  K&K did not contend otherwise.  The Council did not otherwise address the relevance of this allegation to the determination of whether the grounds relied on by K&K are sufficient.
  3. [159]
    The Council did not particularise the allegations made in paragraphs 10 and 11, nor were particulars sought.  That is unsurprising given the allegations were made on day 5 of the hearing, after much of the evidence had already been received.  I have already addressed the Council’s submissions with respect to these allegations.
  4. [160]
    The only submission raised by the Council that touches on the issue of the public interest served by maintenance of the status quo was that referred to in paragraph [125] above.  I do not accept it for the reasons provided in paragraphs [126] to [131] above.  In addition, as the Council did not adduce any evidence to demonstrate that, were the proposed development refused, the subject land would be developed for residential development, it is difficult to accept that the public interest that K&K’s development must overcome is the public interest in development of the land for a multi-unit residential development.
  5. [161]
    Assuming it is appropriate to ask whether there is greater public interest in approving the proposed development as compared to the public interest served by a residential development on the subject land,[104] I am satisfied that, in this case, the answer is in the affirmative.  The economics experts agree that there are numerous sites which could accommodate future residential growth and the subject land would only ever contribute a very small amount to the some 1 875 dwellings required to meet population growth in the primary sector.  I accept this unchallenged evidence.  I also accept the unchallenged evidence of Mr Duane that many sites are likely to be more appropriate for medium density residential development, offering greater amenity afforded by views to the water and proximity to surrounding parks and other facilities, as compared to the amenity offered by the subject land given its location along a busy road.  The same cannot be said of land in the trade area able to accommodate the proposed development.  As was acknowledged by Mr Leyshon, the subject land has locational attributes that are not common for the eastern side of Ferry Road. 
  6. [162]
    Another possible approach to determining whether approving the proposed development serves the public interest to a greater extent than “maintenance of the status quo” is to consider the public interest in the outcome that would follow from a decision to refuse, being a decision that would maintain the status quo in town planning terms. 
  7. [163]
    In this case, a decision to refuse the proposed development has the consequence of leaving the land in its vacant state and available, in a town planning sense, for development in a manner intended by the 2003 Planning Scheme.  However, it is discordant with a decision that reflects that there is “public interest in certainty that the terms of a Planning Scheme will be faithfully applied”.[105]  If it is to be assumed that it is in the public interest to have confidence that the 2003 Planning Scheme will be faithfully applied, in this case the public would reasonably expect that the proposed fast food premises and take-away food premises would be refused and that the proposed service station would be approved.
  8. [164]
    The consideration of the nature and extent of the conflict also highlights the extent to which a decision to approve of the proposed development would subvert the public interest in certainty that the terms of a Planning Scheme will be faithfully applied.  As is evident from my findings in paragraphs [37] and [38] above, the proposed development accords with the public interest in certainty that the terms of the Detached Dwelling Domain Place Code, the Residential Choice Domain Place Code, the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises) and the Service Station Code will be faithfully applied, as well as the strategic planning reflected in the 2003 Planning Scheme.  The extent to which a decision to approve the proposed development departs from the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied is limited to the extent to which it involves the use of the subject land for fast food premises and take-away food premises.  On the other hand, in this case a decision to refuse the proposed development is not entirely consistent with the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied.  As I have already mentioned, on a faithful application of the 2003 Planning Scheme, the public would reasonably expect that the proposed service station would be approved.  A decision to refuse the proposed development would deny the public of benefits that they would reasonably expect to enjoy, namely those associated with the provision of a service station at a location that complies with the 2003 Planning Scheme. 
  9. [165]
    The combined effect of the following eight matters persuade me that this is an exceptional case where the public interest in approval of the proposed development is greater than the public interest in upholding the 2003 Planning Scheme by refusing the development application.
  10. [166]
    First, the development of the proposed service station (and its associated convenience store) on the subject land would not conflict with the 2003 Planning Scheme.  There is a demonstrated need for that component of the proposed development.  Consequently, it is in the public interest to satisfy the demonstrated need for the service station by its provision on the subject land.  The 2003 Planning Scheme identifies the subject land as part of the land available to ensure the community’s need for adequate access to service stations is met.  The provision of a service station on the subject land would be reasonably anticipated were the 2003 Planning Scheme to be faithfully applied.
  11. [167]
    Second, I am satisfied that there is a compelling need for the overall proposed development on the subject land.[106]  There is a need for a further service station to serve the residents of the trade area.  The well-being of those residents would also be improved by the proposed provision of fast food premises and take-away food premises with associated drive through facilities on the subject land.  As I have already noted above, the added convenience and choice provided by the proposed development, including the proposed fast food and take-away food premises with associated drive-through facilities, is a matter of considerable moment.  These facilities will increase the physical wellbeing of the community by providing convenient access and choice to those seeking food who are working longer hours or on shift work or who are otherwise time poor.  The need of the residents of the trade area that the proposed development will address is not otherwise able to be met within the trade area.[107]  Accordingly, I am satisfied that the residents of the trade area have an interest in seeing their need for the proposed development satisfied by its provision on the subject land, rather than at a location that would not conflict with the 2003 Planning Scheme.   
  12. [168]
    Third, the conflicting uses, being the fast food premises and the take-away food premises, are small parts of the overall proposed development, which also involves the unobjectionable use of the subject land for a service station.[108]  As was recognised by the Court of Appeal, it is relevant that the conflicting uses of take-away food premises and fast food premises are mere adjuncts to the dominant aim of K&K to develop a profitable service station.[109] 
  13. [169]
    Fourth, even if there was land available in the trade area that could deliver the public benefits that would be delivered by the proposed development, which there is not,[110]  I am satisfied that it is unlikely that the proposed fast food premises and take-away food premises with their associated drive-through facility would proceed as stand-alone uses.  As such, if the subject land were only permitted to be developed in accordance with the 2003 Planning Scheme, the public would be denied the benefits to their well-being associated with the convenience and choice provided by the proposed fast food premises and take-away food premises.  I do not consider this to be in the public interest. 
  14. [170]
    Fifth, although part of the proposed development conflicts with the 2003 Planning Scheme, the conflict is not accompanied by any consequent undue impact.  As I have noted in paragraph [134] above, when the proposed development is assessed on its merits, and in context, there is no adverse impact likely to arise in terms of noise, air quality and lighting, visual amenity, character, the centres hierarchy, or traffic.[111]  To the contrary, the proposed development, with its proposed landscaping, would enhance the amenity of the area.[112]  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.”[113]
  15. [171]
    Sixth, as I have found in paragraphs [135] to [138] above, the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station.  This is a matter that only became apparent having assessed the proposed development on its merits and in context, including with regard to the particular mix of uses proposed and the design attributes employed in the proposed development.  It is a consideration that was unavailable when, in formulating the 2003 Planning Scheme, the local government determined that use of the subject land for fast food premises and take-away food premises would be incompatible uses.
  16. [172]
    Seventh, as I have noted in paragraph [131] above, there is no suggestion that the failure to require strict adherence to the 2003 Planning Scheme would result in a material reduction in either the quantity or distribution of land available for that nature of development intended by the planning authority to occur in the Detached Dwelling Domain and the Residential Choice Domain.  The evidence demonstrates there is adequate provision of such land.  As such, there is no adverse impact likely to arise for the planning for the Gold Coast in terms of its balance of zones.  This has long been recognised as a matter of public interest when considering whether to permit a proposed deviation from a planning scheme.[114] 
  17. [173]
    Eighth, in this case one would be cautious about assuming that the 2003 Planning Scheme is a comprehensive expression of what will constitute, in the public interest, the appropriate development of the subject land.  That is because although the 2003 Planning Scheme made it clear that it was not in the public interest to develop the subject land for fast food premises and take-away food premises, the contemporary expression of the public interest in the 2016 Planning Scheme suggests otherwise.
  18. [174]
    In the circumstances outlined above, K&K has satisfied the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 and demonstrated that it is appropriate to approve the proposed development.

Should the development be refused having regard to City Plan 2016?

  1. [175]
    The Council contends that, regardless of the outcome of the assessment against the 2003 Planning Scheme and the determination under s 326(1)(b) of the Sustainable Planning Act 2009, the development should be refused on the basis that it involves serious conflict with version 4 of City Plan 2016.  Version 4 took effect on 3 July 2017.

What is the relevant decision framework?

  1. [176]
    Section 495 of the Sustainable Planning Act 2009 stipulates that the Court must assess the development application against the planning scheme in force at the time the development application was lodged.  It permits the Court to give weight to a new or amended planning scheme that comes into force after that time.  In exercising the discretion, the provision does not require the Court to undertake a fresh assessment against a new or amended planning scheme.  The Court’s discretion is broad.  It must be exercised judicially.[115]
  2. [177]
    The effect of s 495 of the Sustainable Planning Act 2009 is similar to a provision introduced to the Local Government Act 1936 (Qld),[116] following a decision of the Local Government Court in Behrens v Caboolture Shire Council,[117] and to like provisions incorporated in the planning legislation in Queensland ever since.[118]
  3. [178]
    Behrens v Caboolture Shire Council[119] involved an appeal against the local authority’s refusal to allow a rural residential subdivision.  After the third day of the hearing, the appeal had to be adjourned because of the illness of the presiding judge.  During the adjournment, which was lengthy, the local authority amended the relevant by-law to prohibit subdivision of any land outside a 5 000 metre radius of the Caboolture Post Office (as the appellant’s land was in that case).
  4. [179]
    As Professor Fogg records in Fogg “Land Development Law in Queensland” (1987) p 101, the Judge “showed some restiveness with the course of action he felt obliged to follow”.  The law at that time required the Court to apply the law at the date of hearing, as well as the facts and circumstances relevant at that time.[120]  Had that not been the law, Mylne DCJ would have approved the whole of the subject land for subdivision.[121]
  5. [180]
    Absent s 311 and s 495(2)(a) of the Sustainable Planning Act 2009, a hearing anew would entail assessing and deciding the development application on the law at the time the court makes its decision, which would include changes to relevant planning instruments.  The inclusion of s 311 and s 495(2)(a) of the Sustainable Planning Act 2009 makes it clear that the legislature intended that an outcome such as that which occurred in Behrens v Caboolture Shire Council[122] should be avoided.  The effect of those provisions is to require the Court to assess the development application against the statutory instruments that applied at the time the development application was properly made.  Although those provisions also permit the Court to give weight to later instruments, whether that occurs is a matter for the Court in the exercise of its discretion. 

What were the relevant findings by the Court of Appeal?

  1. [181]
    As I have observed in paragraph [3] above, the Court of Appeal found that in my earlier judgment I erred in my construction of the definition of “Neighbourhood Centre” in City Plan 2016.  That error vitiated the exercise of the discretion to give such weight as I considered appropriate to any new policy (as permitted under s 495(2)(a) of the Sustainable Planning Act 2009).
  2. [182]
    Sofronoff P, with whom Fraser JA and Flanagan J agreed, went on to observe:

“[82] On this appeal the Council argues that Kefford DCJ also erred in not giving “significant and overwhelming weight” to certain conflicts between 2016 City Plan and the proposed development.  One of these conflicts arises because Performance Outcome 4, contained in the 2016 City Plan, provides that service stations should not abut residential land use.  This service station would do so.

[83]  The weight to be given to discretionary factors, such as the content of 2016 City Plan, is a matter for the decision maker. A court that reviews an exercise of discretion that involves assessing the weight to be given to relevant factors should not substitute its own view unless it has been shown that the decision, based upon such considerations, was unreasonable in the Wednesbury sense.

[84]  Since this is a dispute that must be remitted to the Planning and Environment Court it is undesirable to express any views about the weight to be given to City Plan 2016.”

(footnotes omitted)

  1. [183]
    It is apparent from these observations that although the Court of Appeal found that I erred in my construction of “Neighbourhood Centre” in City Plan 2016, many of my other findings were left undisturbed.
  2. [184]
    At the remitted hearing, it was the Council’s position that, even if there are sufficient grounds to justify approval of the proposed development despite its conflict with the 2003 Planning Scheme, K&K’s development application should be refused on the basis that there is signficant conflict with City Plan 2016.  K&K says City Plan 2016 should not be given significant and determinative weight, and any weight given to City Plan 2016 does not warrant refusal of the proposed development. 

What is the nature and extent of conflict with City Plan 2016 on which the Council relies?

  1. [185]
    Under City Plan 2016, five of the six lots that comprise the subject land is located in Medium density residential zone.  The other lot is located in the Low density residential zone.  The subject land is also located in the suburban neighbourhood for the purposes of the Strategic framework.  The proposed uses would be defined as a service station, shop and food and drink outlet and would be within the “business activities” defined activity group.  In the Low density residential zone and the Medium density residential zone, uses for a shop, a food and drink outlet and service station are all impact assessable.  The relevant assessment criteria include the Strategic framework, the Low density residential zone code, the Medium density residential zone code and the Service station code.[123]
  2. [186]
    The Council alleges that the proposed development conflicts with:
    1. (a)
      s 3.3.3.1(9) and s 3.4.5.1(14) of the Strategic framework;
    2. (b)
      s 6.2.1.2(2)(a)(vi) of the Low density residential zone code in version 3.0 of City Plan 2016;
    3. (c)
      s 6.2.2.2(2)(a)(v) of the Medium density residential zone code in version 4.0 of City Plan 2016; and
    4. (d)
      performance outcome PO4 of the Service station code.
  3. [187]
    Section 3.3.3.1(9) of the “Element – Suburban neighbourhoods” of the Strategic Framework of CP2016 provides as follows:

“Uses that compromise the amenity of suburban neighbourhoods, including service stations, short-term holiday accommodation, hotels or medium-to-large scale places of worship are not established.”

  1. [188]
    The Council submits that this is a clear statement that service stations are not to be established in suburban neighbourhoods such as that within which the subject land is located.  The Council also submits that when this provision is read in context with the balance of the City Plan 2016, s 3.3.3.1(9) should be construed as providing that service stations are not to be established in suburban neighbourhoods, unless they are part of a neighbourhood centre (and limit their hours to the standard hours of the trading centre) and that the neighbourhood centre meets the many attributes sought in a neighbourhood centre as set out in the relevant Strategic Framework provisions.
  2. [189]
    Section 3.4.5.1(14) forms part of the specific outcomes for the neighbourhood centres element in the Strategic framework.  It states:[124]

Standalone, small-scale commercial uses (e.g. neighbourhood store, medical centres) may be appropriate in suburban and urban neighbourhoods (including light rail urban renewal area), new communities, Merrimac/Carrara flood plain special management area, townships and marine and general industry areas, where these uses:

  1. (a)
    are of a type and size that will not undermine the viability of existing, or new neighbourhood centres;
  1. (b)
    provide a direct service to the immediate neighbourhood/industry area or a high frequency public transport stop;
  1. (c)
    maintain a compatible form and scale to nearby development;
  1. (d)
    do not unduly detract from local character and amenity; and
  1. (e)
    are not service station, bar, hotel, nightclub or supermarket uses.”

(emphasis added)

  1. [190]
    The Council submits that it should be concluded that the service station use is a standalone small-scale commercial use referred to in s 3.4.5.1(14) because:
    1. (a)
      in context, the reference to standalone small-scale commercial uses in s 3.4.5.1(14) must refer to any such uses which are not part of a neighbourhood centre.  It notes s 3.4.5 is headed “Element – Neighbourhood centres” and the only other subsections in s 3.4.5 (namely sections 3.4.5.1(1) to (13)) all refer to the desirable attributes of a neighbourhood centre;
    2. (b)
      one of the examples of a standalone, small-scale commercial use in s 3.4.5.1(14) is “medical centres” which often comprise several tenancies such as a doctor, pharmacist, physiotherapist etc; and
    3. (c)
      the rejection of this Court’s finding that it was a neighbourhood centre strongly points to the conclusion that, if it were not, it was a “standalone, small scale commercial use”.
  2. [191]
    The Council submits that s 3.4.5.1(14) is a strong and clear statement that the proposed service station is not an appropriate use of the subject land because it is a standalone, small-scale commercial use.  In the alternative, the Council submits that because the service station is co-located with a fast food premises and a take-away food premises tenancies, s 3.4.5.1(14) is a clear and strong indication that such the proposal as a whole is not appropriate on the subject land.
  3. [192]
    The Council also alleges clear and serious conflict with s 6.2.1.2(2)(a)(vi) of the Low density residential zone code in version 3.0 of City Plan 2016 and s 6.2.2.2(2)(a)(v) of the Medium density residential zone code in version 4.0 of City Plan 2016.
  4. [193]
    Section 6.2.1.2(2)(a)(vi) of the Low density residential zone code in version 3.0 of City Plan 2016 states that the purpose of that code will be achieved through an overall outcome that “Land uses … that are incompatible, such as Service stations … are not located in the zone”.
  5. [194]
    Section 6.2.2.2(2)(a)(v) of the Medium density residential zone code states:

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

  1. [195]
    Finally, the Council relies on my previous finding of clear conflict with performance outcome PO4 of the Service station code, which states:

“Service stations do not abut a residential land use”.

  1. [196]
    At the remitted hearing, K&K did not contest these submissions by the Council.
  2. [197]
    The Council’s submissions do not address, or even mention, any of my earlier findings with respect to City Plan 2016 that relate to the nature and extent of any conflict, and which are not affected by my error with respect to the construction of a neighbourhood centre.  Consequently, the Council’s submissions present a distorted picture of how the proposed development would fare in an assessment against City Plan 2016.  The Council relies on the distorted picture to submit that significant conflict should have been found with City Plan 2016, and that the conflict should be afforded determinative weight. 
  3. [198]
    I accept that City Plan 2016 contains clear statements that indicate a policy position that a service station is not an appropriate use of the subject land.  However, that of itself does not persuade me that the conflict is one that should be determinative of K&K’s development application.  Assuming one is to approach City Plan 2016 as though s 326 of the Sustainable Planning Act 2009 applied, the Court of Appeal has recognised that when considering whether a clear conflict is to be afforded determinative weight, it is also relevant to have regard to whether there are other matters that reduce the degree of conflict.[125]

What other factors are relevant to the nature and extent of conflict with City Plan 2016?

  1. [199]
    In considering the nature and extent of conflict with City Plan 2016, it is instructive to consider the broader context in which the offended provisions appear, as well as the extent to which a proposed development otherwise complies with City Plan 2016.  I have already addressed many of these matters in my earlier judgment.  As such, I will provide a brief summary only.  Detailed analysis can be found in my earlier judgment.
  2. [200]
    City Plan 2016 defines a neighbourhood centre as follows:

“Neighbourhood centres provide day-to-day goods and services and diverse business opportunities.  Neighbourhood centres differ from mixed use centres and specialist centres as they are smaller and comprise a mix of smaller scale uses.  Neighbourhood centres must comprise a minimum of five separate commercial or retail tenancies, located within a single centre or comprising a consolidation of separate but interconnected uses.”

  1. [201]
    As was identified by Sofronoff P, with whom Fraser JA and Flanagan J agreed, although the proposed development comprises a consolidation of separate but interconnected uses, it does not constitute a neighbourhood centre.  It only comprises three separate commercial or retail tenancies, rather than five.[126]  Sofronoff P also observed:[127]

“[79] Section 3.4.1(3) of the 2016 City Plan refers to such developments comprising a “mix of small scale uses and services in response to specific needs of their immediate neighbourhood”.  Section 3.4.1(7) reinforces the character of a “neighbourhood centre’ by stating that such centres “respond to the specific needs” as does s 3.4.1(3)(c) which states that neighbourhood centres comprise a mix of small scale uses and services in response to specific needs of their immediate neighbourhood.

[80] The proposed development is a service station including ancillary businesses.  It is not, in any sense of the expression where it appears in the 2016 City Plan, a neighbourhood centre.”

  1. [202]
    City Plan 2016 encourages the development of neighbourhood centres so that most urban households will be within walking distance of a neighbourhood centre.  It does so to allow independence for those who do not, or choose not to, drive and to create local economic activity.  That encouragement provides little support to the proposed development as a whole.  The fast food premises and take-away food premises are coupled with a service station use, which is not consistent with the intended role of a neighbourhood centre.[128]  Nevertheless, the provisions with respect to neighbourhood centres and the other provisions of the applicable zones[129] reflect a softening between the 2003 Planning Scheme and City Plan 2016 in respect of the fast food and take-away food aspects of the proposed development.[130]  This was recognised by Mr Reynolds. 
  2. [203]
    Here, City Plan 2016 adopts a clear policy that it is inappropriate to provide service stations on land in the Low density residential zone.  It also discourages that type of development in locations where it would abut a residential land use.  Although no such conflict was relied on by the Council, it is appropriate to also recognise that City Plan 2016 does not encourage the drive-through component of the fast food premises, nor does it encourage fast food premises and take-away food premises that serve the extent of the trade area that will be served by the proposed development.  Nevertheless, in this case, the seriousness of the conflict with City Plan 2016 is ameliorated, to some extent, by three factors.
  3. [204]
    First, although the proposed development does not comply with performance outcome PO4 of the Service station code, it complies with the Service station code in most other respects.  This includes other provisions that guide the assessment of the merits of the location of any proposed service station, such as:
    1. (a)
      the purpose of the Service station code, which is to:

“facilitate the design and safe operation of Service stations while avoiding any environmental impacts on neighbouring properties.”

  1. (b)
    overall outcome (2)(a), which states:

“Service stations are designed and located to avoid any adverse impacts on residential land uses”.

  1. (c)
    performance outcomes PO5 and PO6 (other than PO6(a)), which state:

“PO5

The Service station location does not adversely impact the environmental values, habitat values or public open space.

PO6

The Service station is located:

  1. (a)
    as part of a neighbourhood or mixed use centre (where operated during the standard trading hours of the centre);
  1. (b)
    to complement established non-residential uses in urban areas;
  1. (c)
    on a higher order road; or
  1. (d)
    adjacent to a highway or motorway interchange at a service node.”[131]
  1. [205]
    Section 5.3.3(4)(c) of City Plan 2016 provides an indication of the significance of compliance with the purpose and overall outcomes of a code.  It states:

“(4) Code assessable development:

  1. (c)
    that complies with:
  1. (i)
    the purpose and overall outcomes of the code complies with the code;
  1. (ii)
    the performance or acceptable outcome complies with the purpose and overall outcomes of the code;”
  1. [206]
    In my earlier judgment, I found that although the proposed development is impact assessable under City Plan 2016, it is difficult to see why the service station code should be interpreted differently in the context of impact assessment.  This finding was not challenged on appeal.[132] 
  2. [207]
    The Council submits that this provision is not relevant to an application that requires impact assessment.  It says impact assessable development is required to be assessed against the identified assessment benchmarks in the assessment benchmarks column which, in this case, is the whole of City Plan 2016 (including the strategic framework and a wide range of codes).  The Council submits that this includes all provisions of a code, including all of the acceptable outcomes.  It says that conclusion is not altered by the fact that s 5.3.3(4)(c) requires code assessable development to be assessed differently.  In support of its submission, the Council refers to a note in the strategic framework that states:

“Note: The whole of the planning scheme is identified as the assessment benchmark for impact assessable development. This specifically includes assessment of impact assessable development against this strategic framework. The strategic framework may contain intentions and requirements that are additional to and not necessarily repeated in zone, overlay or other codes. In particular, the performance outcomes in zone codes address only a limited number of aspects, predominantly related to built form. Development that is impact assessable must also be assessed against the overall outcomes of the code as well as the Strategic framework”.

(emphasis added in original)

  1. [208]
    The submission overlooks that s 5.3.3(4)(c) is part of City Plan 2016.  It provides the reader of City Plan 2016 with an understanding of the relationship, within a code, between the stated purpose and overall outcomes on the one hand, and performance outcomes and acceptable outcomes on the other hand.  The note in the strategic framework does not change that relationship, nor displace the intended manner of construing codes.  Although the note records that the performance outcomes in zone code address only a limited number of aspects, the statement must be read in the context of the sentence that immediately precedes it.  The strategic framework (as opposed to the purpose and overall outcomes of a code) may contain intentions and requirements that are additional to and not necessarily repeated in zone codes, overlay codes or other codes.  Properly construed, the note reinforces the importance that an impact assessment is undertaken by reference to the strategic framework and the applicable codes.  It does not purport to guide the manner in which one approaches assessment against the codes. 
  2. [209]
    At least two other provisions of City Plan 2016 support that it is appropriate to have regard to the description in s 5.3.3 of the relationship, within a code, between the stated purpose and overall outcomes on the one hand, and performance outcomes and acceptable outcomes on the other hand when construing the code and assessing compliance with it.  The first is the application part of each code, which states that when using the code, reference should be made to s 5.3.2 and, where applicable, s 5.3.3.  The second is s 6.1 of City Plan 2016.  It deals with the structure of zone codes and, in s 6.1(8), states:

“(8) Each zone code identifies the following:

  1. (a)
    the purpose of the code;
  1. (b)
    the overall outcomes that achieve the purpose of the code;
  1. (c)
    the performance outcomes that achieve the overall outcomes and the purpose of the code;
  1. (d)
    the acceptable outcomes that achieve the performance and overall outcomes and the purpose of the code;
  1. (e)
    the performance and acceptable outcomes for the precinct.”

(emphasis added)  

  1. [210]
    For the reasons provided in paragraphs [205] to [209] above, I do not find the Council’s submissions with respect to s 5.3.3(c) persuasive.  In any event, it is not necessary to finally determine whether compliance with the purpose and overall outcomes of the Service station code demonstrates compliance with the Service station code as a whole for an impact assessable application.  That is because s 495 of the Sustainable Planning Act 2009 does not require the Court to undertake the process contemplated by s 326(1)(b) in determining the weight to be afforded to a new planning scheme.  Also, when considering the weight to be afforded to City Plan 2016, to the extent that the nature and extent of conflict is considered, it is relevant to have regard to the nature and extent of any non-compliance and the nature and extent of compliance.  Together those matters provide important context when considering the nature and extent of conflict with City Plan 2016 overall.
  2. [211]
    When the Service station code is read as a whole and in conjunction with the balance of City Plan 2016, it is apparent that the requirement in performance outcome PO4 that service stations not abut a residential land use is informed by the planning goal that service stations should be located to avoid adverse impacts on residential land uses.  In this case, that goal is not compromised by the proposed development. 
  3. [212]
    Second, although the provision of a service station on the subject land results in conflict with one provision of the Low density residential zone code and one provision of the Medium density residential zone code, there is no allegation of conflict with any of the performance outcomes of the code.  There is also no allegation of conflict with the many overall outcomes in City Plan 2016 that set standards to ensure the retention of a high level of residential amenity and the protection of the local character of the area.[133]  As I have already noted, because of its particular design attributes, the proposed development will enhance the character and amenity of the locality in which it is proposed. 
  4. [213]
    Third, the significance of the potential conflict with City Plan 2016, in terms of the extent of the trade area served and the proposed drive-through facility, is reduced by the absence of unacceptable impact on the centre hierarchy and the absence of adverse impacts occasioned by the proposed development.[134] 

What other considerations are relevant to the exercise of the discretion?

  1. [214]
    As I noted in my earlier judgment,[135] the Council contends that significant and overwhelming weight should be afforded to City Plan 2016 because it is a very recent statement of planning intention for the area, which the Court would be slow to cut across.  K&K disputes that this justifies an exercise of the discretion in a manner that results in refusal of the proposed development.  There are two considerations that K&K urges me to consider in that respect. 
  2. [215]
    The first is that K&K says approval of the proposed development would not cut across or undermine the implementation of Council’s planning policies in City Plan 2016.  The Council’s planning policies are still equally achievable in other cases, regardless of whether the proposed development is approved.[136]  I agree.  This is relevant to the exercise of the discretion.  I also consider it to be a consideration of particular significance given my observations in paragraphs [15] and [176] to [180] above.
  3. [216]
    The second involves matters of fairness.  The Council does not cavil with K&K’s submission that fairness to an applicant has a role to play in determining the weight to give to a draft, or adopted, planning scheme amendment.[137] 
  4. [217]
    In my earlier judgment I determined that, in the circumstances of this case and having regard to matters referred to in paragraph [396] of that judgment, were the provisions of City Plan 2016 such to call for a refusal of the proposed development, it would be unfair to give them significant and determinative weight.[138] 
  5. [218]
    K&K submits that my determination about fairness was unaffected by the reasons for judgment delivered by the Court of Appeal.  The Council does not dispute this.  Nevertheless, the Council submits that the reasoning of the Court of Appeal invites me to exercise the discretion afresh, and the remittal order requires it.  It says that involves a reconsideration of the discretion, taking into account the Court of Appeal’s finding on the neighbourhood centre point.  It says that also extends to a consideration afresh of the fairness point, which the Council submits I should reconsider for the multitude of reasons it now advances.
  6. [219]
    The Council now submits that each of the seven matters raised by K&K, as recorded in paragraph [396] of my earlier judgment, do not support a finding that giving significant and determinative weight to CP2016 would be unfair to K&K.  As I noted in my earlier judgment, at the original hearing the Council did not cavil with these matters, nor submit that they were not relevant to the Court’s exercise of discretion.[139]  The seven matters raised by K&K at the original hearing, and the Council’s submission in response raised for the first time at the remitted hearing, are considered below.  While I address them individually below, that is because the Council’s submissions approach them in that manner.  I am cognisant that K&K does not rely on each individually to support its position: it relies on their combined effect.
  7. [220]
    The first background matter that K&K submits is relevant when considering the weight to be given to City Plan 2016 is the view expressed by Mr Reynolds that, in determining the weight to be given to a planning instrument, fairness to the applicant is relevant.  The Council now submits:

“The nature of the discretion, and its basis for exercise, is not a matter for expert opinion. It is required to be exercised by the Court.[140] “Fairness between the parties” is a relevant consideration,[141] not fairness to the applicant alone.”

  1. [221]
    The point to the Council’s submission is unclear.  In paragraph [398] of my earlier judgment I found that fairness to the applicant is relevant to the exercise of the discretion.[142]  My finding was not founded on Mr Reynold’s evidence.  At the original hearing the Council accepted it was relevant.  It still does.  It was unnecessary to consider issues of fairness to the Council as the Council did not, and still does not, allege that there are issues of fairness to the Council that arise on the facts. 
  2. [222]
    The second background matter referred to by K&K is that City Plan 2016 commenced after the development application the subject of this appeal was lodged with  the Council.  The Council now submits:

“The introduction of a new planning scheme after lodgement of a development application is the very fact that triggers the discretion in s.495 of SPA. It is not a relevant factor for its exercise.”

  1. [223]
    The Council’s submission misses the point to K&K’s submission.  The submission relates to the timing of the commencement of City Plan 2016.  The timing is relevant when considering the timing of rights to lodge a development application (superseded planning scheme).  It is also relevant to the effectiveness of any such application in terms of securing a right of assessment against a planning scheme that does not contain provisions that now undermine development potential, and the extent to which rights of compensation might be lost.  The submission outlines part of the background relevant to those rights and should not be considered in isolation.
  2. [224]
    Third, K&K submits that City Plan 2016 has been amended during the life of the appeal, including as late as July 2017.  Some of the latest amendments to the planning scheme make the position more difficult for K&K and were not in force at the time the application was made.  For example, the Council amended the Medium density residential zone code to remove “service station” from the list of uses that “may be considered if appropriately designed and located and not detract from the residential amenity of the area”.  The Council now submits:

“That the latest amendments to CP2016 (version 4) make it more difficult for the appellant to succeed is accepted, but it is not a matter which should be counted against the Council in the exercise of the discretion. It is understood K&K do not contend that the decision to make the amendments was a “colourable” decision.”

  1. [225]
    This submission suggests that the approach to the exercise of the discretion involves tallying marks for and against the Council.  I do not regard it as appropriate to approach the exercise of the discretion in such a manner.  The discretion should be exercised having regard to all of the relevant facts and circumstances.  One such circumstance is that version 4 of City Plan 2016, which the Council seeks to rely on to found its allegation of serious conflict with City Plan 2016, took effect on 3 July 2017.  That is almost six months after K&K filed its notice of appeal and more than 18 months after K&K had made its development application.[143] 
  2. [226]
    The fourth matter raised by K&K is that the Council officers recommended that the proposed development be approved with knowledge of the contents of City Plan 2016.  The Council now submits:

“The fact that Council officers recommended approval with knowledge of the contents of CP2016 should be given no weight as the Council officer did not give evidence about that recommendation and the reasons for it. Further, the recommendation was not adopted by the Council and, therefore, does not represent the Council’s position.”

  1. [227]
    I accept that the recommendation does not represent the Council’s position.  Nevertheless, this is one of the facts that forms part of a broader matrix that K&K relies on to submit that it would be unfair to give City Plan 2016 determinative weight.  It is unhelpful to deal with the submission in isolation as the Council does.  The fact provides relevant background context when one considers the manner in which the litigation was conducted and the circumstances that pertained at the time that K&K elected not to lodge a development application (superseded planning scheme).
  2. [228]
    Fifth, K&K submits it is relevant that the Council did not identify City Plan 2016 as warranting refusal of the development in the decision notice, in circumstances where the decision to refuse was made contrary to the Council officers’ recommendation to approve subject to conditions.  The Council now submits:

“The fact the Council did not refer to CP2016 as a basis for refusal in its original decision is irrelevant for reasons developed below.”

  1. [229]
    This is relevant for the same reasons as K&K’s fourth background matter.
  2. [230]
    Sixth, K&K submits that after the commencement of City Plan 2016, it still had the ability to lodge a development application (superseded planning scheme) with respect to the latest round of amendments to that scheme.  Such an application would require the Council to ignore the contents of the City Plan 2016, in particular those that are now relied on by Council to defeat the proposed development.  The Council now submits:

“The only provisions of CP2016 for which the Council alleged conflict in the proceedings below are in versions 3.0 and 4.0 of CP2016.  As at the original hearing date, the ability to make a request for a development application (superseded planning scheme) (DA(SPS)) to have the application assessed under version 3.0 was still on foot and had a further 6 months to run.

To the extent this is a relevant consideration, it favours exercising the discretion so as to give weight to CP2016, not the contrary. As Williamson QC DCJ said in Klinkert v Brisbane City Council:[144]

“[147] Sixth, the refusal of the application in reliance upon the amended planning provisions and PSP would not represent the end of the line for the Appellant. The Appellant has a right that exists today to make a request under s 29 of the PA for a superseded planning scheme to apply to the proposed development. Such a request must be made within 1 year after the amendments took effect.

[148] Upon receipt of such a request the Respondent would be obliged to make an election as to whether it will assess the application against, and only against, the superseded planning scheme and PSP. That election has the potential to lead to an approval or, alternatively, lead to a process that may found a claim for compensation. This consideration goes a considerable way to offsetting the unfairness that is said to accrue to the Appellant by giving the amendments to City Plan 2014 and the PSP determinative weigh [sic], particularly where in the absence of the amendments an approval would have been forthcoming under s 60(2)(a) of the PA.” (footnotes removed and emphasis added in paragraph [148])”

  1. [231]
    The Council’s submission about the versions of City Plan 2016 it relies on, and its submissions about K&K’s ability to make a development application (superseded planning scheme) are accurate.  However, the submissions create a false impression on the issue of fairness as they omit material facts.  The Council places considerable reliance on conflict with s 3.3.3.1(9) and s 3.4.5.1(14) of the Strategic framework, s 6.2.1.2(2)(a)(vi) of the Low density residential zone code and performance outcome PO4 of the Service station code.  As is recorded in the decision of the Court of Appeal, the Council says determinative weight should be given to the conflict with performance outcome PO4 of the Service station code.  There was no change to those provisions after their commencement as part of version 1 of City Plan 2016 on 2 February 2016.[145]  As such, had K&K wished to avoid the impact of those provisions (or, if that process was denied to them by the Council, to seek compensation), it was required to make a development application (superseded planning scheme) by 2 February 2017.  It is in this context that one should consider the significance of the report of the Council officer and the conduct of the Council prior to 2 February 2017 as compared to its conduct after 2 February 2017.  Prior to 2 February 2017, the Council had not indicated that it did not share the views of its employees with respect to City Plan 2016.  In addition, prior to 2 February 2017, the Council had not indicated an intention to ask the Court to give weight to City Plan 2016, let alone determinative weight.
  2. [232]
    Seventh, K&K submits that City Plan 2016 was first raised as a reason for refusal, not by Council itself during the IDAS process, but by Council’s lawyers in the context of this appeal.  The Council now submits:

“That CP2016 was first raised as a reason for refusal by the Council’s lawyers, not the Council itself, is not relevant.

S. 43 of PECA provides that an appeal is by way of a hearing anew. The court hears the matter afresh on fresh material, and may overturn the decision appealed against regardless of error. In this context, an assessment manager is not bound by, or limited to its reasons for refusal. It is a fresh hearing, on fresh material where the correctness or otherwise of the original decision does not determine the outcome of the appeal.”

  1. [233]
    I accept that the appeal proceeds by way of hearing anew, and that the Council was not bound by, or limited to, its reasons for refusal.[146]  The Council was entitled to seek an order to raise fresh issues and did not need to explain why those reasons were not part of the original reasons for refusal, provided an order had not previously been made defining the issues in dispute in the appeal.[147]  The Council submits that is precisely what occurred in this case.  The Council’s submission is not accurate.  The submission is also inconsistent with findings I made in my earlier judgment.[148]
  2. [234]
    On 9 January 2017, K&K filed its Notice of Appeal in which it took issue with the Council’s reasons for refusal.  Those reasons related to conflict with the 2003 Planning Scheme.  The only reference to City Plan 2016 in the Notice of Appeal was an allegation raised by K&K that:

“The proposed service station is a listed impact assessable use under the zoning of the land under both the 2003 and 2016 planning schemes.  The proposal is therefore within the reasonable expectations of the community.”

  1. [235]
    K&K did not allege that the Court should place weight on City Plan 2016.
  2. [236]
    On 12 May 2017, pursuant to an order of this Court made on 27 April 2017, the Council amended its reasons for refusal.  The document detailing the amendments was 12 pages in length (single spaced) and contained allegations of conflict with an additional 27 provisions of the 2003 Planning Scheme, as well as over 50 provisions of Gold Coast City Plan 2016 (Version 3, effective 17 May 2016).  The only allegations with respect to City Plan 2016 were allegations of conflict.  The document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009.  It appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016.  This is not what s 495 requires.
  3. [237]
    The Council further amended its reasons for refusal on 28 July 2017.  Those amendments deleted reference to two alleged conflicts with the 2003 Planning Scheme and five allegations of conflict with Gold Coast City Plan 2016 (Version 3, effective 17 May 2016). 
  4. [238]
    The Council again amended its reasons for refusal on 7 September 2017 in a document titled “Respondent’s Second Amended and Further Issues”.  That document maintained the alleged conflicts with the 2003 Planning Scheme and Gold Coast City Plan 2016 (Version 3, effective 17 May 2016), but added allegations of conflict with seven provisions of Gold Coast City Plan 2016 (Version 4, effective 3 July 2017).  An order of this court made on 20 October 2017 permitted the Council to rely on those issues in dispute.  As with the earlier documents, this document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009.  Again, it appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016.  There is no such obligation under s 495.
  5. [239]
    On the first day of the hearing, the Council produced a document titled “Respondent’s Consolidated Grounds for Refusal”, which it submitted consolidated the grounds in the decision notice and the other documents.  It contained allegations of conflict with 31 provisions of the 2003 Planning Scheme, 43 provisions of City Plan 2016 Version 3 and seven provisions of City Plan 2016 Version 4.  The Council’s document did not allege that weight (let alone determinative weight) should be placed on City Plan 2016.  As I found in my earlier judgment, at best, the issue the Council put in issue prior to commencement of the trial was whether weight should be afforded to City Plan 2016 because a decision to approve the proposed development would conflict with identified provisions of City Plan 2016 and could not be conditioned to satisfactorily mitigate the conflict.[149] 
  6. [240]
    During the opening, K&K drew the Court’s attention to the allegations made by the Council about City Plan 2016.  It noted that the allegations were only allegations of conflict, which it said fell well short of the type of allegation required for one to consider City Plan 2016.[150]  K&K raised the absence of an allegation that the new planning scheme should be given weight; and the absence of an allegation that this is a case that involves compromising some forward planning decision or that failure to give City Plan 2016 weight would make it more difficult to implement contemporary planning.  K&K also indicated that, should the Council seek to allege, at that late stage, that City Plan 2016 should be given overwhelming weight, issues of fairness arise.
  7. [241]
    Having heard the criticisms made by K&K about the inadequacy of the Council’s allegation with respect to City Plan 2016, on 10 November 2017 (day 5 of the hearing), the Council sought, yet again, to change its position.  With the agreement of both parties, I made an order redefining the issues in dispute by reference to a document titled “Respondent’s Points of Refusal”.[151]  Although K&K agreed to an order permitting the Council to amend its issues in that manner, it indicated that it would seek to be heard later about the consequence of the late introduction of the new issues. 
  8. [242]
    The Council first alleged that significant and overwhelming weight should be given to City Plan 2016 pursuant to s 495(2)(a) of the Sustainable Planning Act 2009, and the basis for its allegation,[152] in the document produced on 10 November 2017.  By that time, the only provision relied on by the Council that would be irrelevant to assessment of a development application (superseded planning scheme) then made would be s 6.2.2.2(2)(a)(v) of the Medium density residential zone code.  It is in that context that K&K raised the history of the matter and the fairness point, and that I made my earlier findings. 
  9. [243]
    In addition to the submissions now made by the Council responding to matters raised by K&K addressed above, the Council now advances further submissions about why it is not unfair to give City Plan significant and determinative weight.  The Council’s further submissions are premised on a selective history of the matter and how the issues in dispute evolved.  They are presented in a manner that is favourable to the Council but not truly reflective of the fairness as between the parties.  The Council’s submissions ignore many of the matters referred to in paragraphs [234] to [242] above.  As such, I find them unpersuasive. 

Conclusion regarding the weight to be afforded to City Plan 2016

  1. [244]
    The relevant planning strategies embodied in the 2016 Planning Scheme are different from those pursued in the 2003 Planning Scheme.  A service station is no longer considered to be an appropriate use on the subject land.  On the other hand, there has been a softening of the position with respect to the use of the subject land for fast food premises and take-away food premises. 
  2. [245]
    Although all aspects of the proposed development do not comply with City Plan 2016, it must be remembered that the Sustainable Planning Act 2009 requires the subject application to be assessed against the 2003 Planning Scheme.  The relevant provisions of the 2016 Planning Scheme are a matter of weight only.  I have given consideration to the 2016 Planning Scheme, including its discouragement of a service station on the subject land and the nature and extent of conflict alleged by the Council.  I am ultimately unpersuaded to give that decisive weight having regard to my reasons in paragraphs [175] to [244] above and the public interest in the approval of the proposed development on the subject land. 

One further issue that arose – approval in part

  1. [246]
    As I indicated in paragraph [5] above, during the remitted hearing, K&K contended that if the Court were to find that there were not sufficient grounds to justify approval of all of the components of the proposed development, the Court should approve the service station and convenience store component pursuant to s 324(1)(a) of the Sustainable Planning Act 2009.  It is unnecessary for me to consider this issue, as I have determined that the whole of the proposed development should be approved.  However, had I not been satisfied about the sufficiency of grounds, I would have been prepared to approve the service station and associated convenience store.  As is accepted by the Council, the Court has the power to issue an approval in part.[153]  I am satisfied that that the various components are not so interconnected as to prevent part approval as a matter of practicality.  I do not accept the Council’s submission that a partial approval would necessarily involve a redesign.  The fast food premises and the take-away food premises are in a separate part of the proposed building, separated from the service station and its convenience store by a walkway.  The consequential changes to the building required by deletion of the unnecessary parts of the building would be a matter for consideration as part of any future development application for building works. They are not such as to prevent a partial approval.

Conclusion

  1. [247]
    For the reasons provided above, K&K has discharged the onus. 
  2. [248]
    My orders will be as follows:
  1. The appeal is allowed.
  2. The development application is approved subject to the conditions package of 106 pages attached to the Judgment given on 29 June 2018. 
  1. [249]
    I will hear from the parties about any other orders that may be appropriate.

Footnotes

[1]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540.

[2][2018] QCA 84; (2018) 230 LGERA 374.

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

[4] See, for example, paragraphs [132] to [135], [197], [205] to [207], and [216] to [243].

[5] 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 pursuant to s 311 of the Planning Act 2016 (Qld).  The appeal proceeds by way of hearing anew: Sustainable Planning Act 2009, s 495.  K&K bears the onus of establishing that the appeal should be allowed, and the development application should be approved: Sustainable Planning Act 2009, s 493.

[6]Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] Qd R 302, 322-3 [18]-[21].

[7]Sustainable Planning Act 2009, Schedule 3.

[8] Trowbridge & Anor v Noosa Shire Council [2019] QPEC 54; [2020] QPELR 504, 522 [87]. 

[9]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.

[10] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 808 [59].

[11] Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 336 [20].

[12] [2019] QCA 132; [2020] QPELR 631, 641 [39].

[13] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379, 400-1 [42].

[14] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 643 [48] and 645 [62].

[15] Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 446, 473 [140].

[16]This was recognised in Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102 citing Stenders Morris & Partners v Cairns City Council [1989] QPLR 15,18.

[17] cf. Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, 36 [123].

[18] [2018] QCA 84.

[19] Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 391 [66].

[20] [2007] QCA 139; [2008] 1 Qd R 327, 338.

[21] Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [68].

[22]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [68].

[23] [2020] QCA 41.

[24]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].

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

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

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

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

[29]Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, 392 [67].

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

[31] [2019] QCA 132; [2020] QPELR 631, 643 [48].

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

[33] [2013] QPEC 21; [2013] QPELR 496.

[34] [2020] QCA 41.

[35] [2019] QCA 132; [2020] QPELR 631.

[36] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.

[37] 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].

[38] 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 s3, s4, s5, s88 and s89 of the Sustainable Planning Act 2009.

[39] See s314(2)(g) of the Sustainable Planning Act 2009 and s311 of the Sustainable Planning Act 2009.

[40] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540.

[41] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [71] and [73].

[42] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586 [202].

[43]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586 [205]-[206]. These findings were not disturbed by the Court of Appeal – see Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 637 [18].

[44]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586-7 [205]-[207].

[45]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 587 [210].

[46] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 589 [220].

[47]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].

[48]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].

[49]See, in particular, my findings in paragraphs [98], [116], [117], [118], [127], [138] and [140] of my earlier reasons.

[50]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592 [233].

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

[52]The uses are now considered appropriate uses on the land under City Plan 2016, but a service station is not.

[53] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [71] and [73].

[54] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 638 [21]-[22].

[55]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 645 [64].

[56] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 646 [67].

[57]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 549 [24].

[58][2012] QCA 370; [2013] 2 Qd R 302, 323-4 [25].

[59] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 615 [333]. This finding was not criticised by the Court of Appeal.

[60][1997] QPELR 198, 199-200.

[61][1986] QPELR 515, 517.

[62][1997] QPELR 208, 213.

[63][2000] QPEC 1; [2000] QPELR 193, 198.

[64] [1994] QPELR 126, 131.

[65] [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[66]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 614 [328].

[67] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42].

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

[69] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592-7 [235]-[246].

[70] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 641 [42].

[71]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 645 [61].

[72] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 614 [328].

[73] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 598 [247].

[74]The executive summary referred to the “convenience offer” as one offered at service stations and, in terms of “café style food”, the report noted that some service stations are testing the theory that consumers are using service stations to shop for an expanded convenience offer by including coffee, bakery items, café style food and a wider grocery range.

[75]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 600 [247(u) and (v)].

[76]See Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, particularly at 417-8 [20] where Wilson SC DCJ cites Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273 at 275, and at 418-9 [25] and [26] where Wilson SC DCJ cites Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 317 and Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

[77]See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 551-85 [36]-[201]. These findings were not disturbed by the Court of Appeal.

[78] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 646 [67].

[79][2018] QCA 84.

[80][2019] QCA 132; [2020] QPELR 631.

[81] [2018] QCA 84; (2018) 230 LGERA 374.

[82]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 646 [68].

[83]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 562 [89]-[91].

[84] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 560 [80].

[85] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 549 [25].

[86] See paragraphs [32]-[38] above. See also K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586-91 [204]-[225].

[87] Sheezel & Anor v Noosa Shire Council (1980) 1 APAD 470, 475-6.

[88] The Council referred to Bassingthwaite v Roma Town Council [2010] QPEC 91; [2011] QPELR 63.

[89] [2003] QPEC 23; [2003] QPELR 614, 622 [60].

[90] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 560-1 [82].

[91] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 551-85 [36]-[201] and 592 [233]. These findings were not disturbed by the Court of Appeal.

[92] See paragraphs [32]-[38] above. See also K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 586-91 [204]-[225].

[93] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 568-9 [116]-[118] and 592 [233]. These findings were not disturbed by the Court of Appeal.

[94] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 547 [10].

[95]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 563 [97].

[96] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [71] and [73].

[97] [2019] QCA 132; [2020] QPELR 631, 646 [67].

[98] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 560 [80].

[99] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 568-9 [116]-[118] and 592 [233]. These findings were not disturbed by the Court of Appeal.

[100] See s88 of the Sustainable Planning Act 2009.

[101] Fryberg J expressed similar concerns, about a different issue, in an appeal to the Court of Appeal from this court in Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, 47.

[102] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [67].

[103] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 559-60 [78]. These findings were not disturbed by the Court of Appeal.

[104] I do not accept this for the reasons provided in paragraphs [150] to [155] above.

[105]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [67].

[106] See paragraphs [55] to [107] above. See also K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 592-615 [235]-[330]. The findings in my earlier judgment were not disturbed by the Court of Appeal.

[107] See paragraphs [65], [74], [82], and [84] to [98] above.

[108] The Court of Appeal did not criticise my consideration of this factor: Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 647 [71] and [73].

[109] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 647 [71]-[74].

[110] See paragraphs [61] to [64] above.

[111] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 551-85 [36]-[201] and 592 [233]. These findings were not disturbed by the Court of Appeal.

[112] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 568-9 [116]-[118] and 592 [233]. These findings were not disturbed by the Court of Appeal.

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

[114] Sheezel & Anor v Noosa Shire Council (1980) 1 APAD 470, 475-6.

[115]Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, 205.

[116] See s33(18D) and s34(15A) of the Local Government Act 1936, which were inserted by operation of s 16(q) and s17(b) of the Local Government Act and Another Act Amendment Act 1980. See also s22B of the City of Brisbane Town Planning Act 1964. There was no provision that specifically related to the Court’s power on appeal, but likewise there was no express provision that the appeal was by way of hearing anew. That position was confirmed by numerous authorities including Scurr v Brisbane City Council (No 5) [1973] HCA 39; (1973) 133 CLR 242, 258; R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 86, 88; Chalk v Brisbane City Council (1966) 13 LGRA 228, 230-1.

[117] (1979) 39 LGRA 138.

[118] See s3.14 of the Local Government (Planning and Environment) Act 1990 (Qld) and s4.1.52(2)(a) of the Integrated Planning Act 1997 (Qld).

[119] (1979) 39 LGRA 138.

[120] R v Lukin; Ex parte Sunshine Pty Ltd [1967] Qd R 49.

[121]Behrens v Caboolture Shire Council (1979) 39 LGRA 138, 149.

[122](1979) 39 LGRA 138.

[123]See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 551-85 [36]-[201] and 592 [233]. These findings were not disturbed by the Court of Appeal.

[123]See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 617 [342]. These findings were not disturbed by the Court of Appeal.

[124] Book of Planning Scheme Extracts – City Plan 2016 Version 4 – Exhibit 31 p 51.

[125] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 647 [70]-[74] citing Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441 at [36]; Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, [124]-[126].

[126] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 648 [78].

[127] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631, 648 [79] and [80].

[128] Sofronoff P described the proposed development as a service station including ancillary businesses in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [2020] QPELR 631 at 648 [80]. See the extract from s3.2.2 of City Plan 2016 in my earlier judgment: K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 618-9 [352].

[129] See, for example, s6.2.2.2(2)(a)(v) of the Medium density residential zone code.

[130] This is supported by other provisions of City Plan 2016 extracted in paragraph [352] of my earlier judgment, including s3.3.1(8), s3.3.2.1(1), s3.4.1(3) and (7), s3.4.5.1(1) and (2), and s3.4.5.1(14): K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 618-21 [352].

[131] See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 624-5 [371]-[375].

[132] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 625 [375].

[133] As I noted in my earlier judgment, Counsel for the Council acknowledged that where there is no allegation of conflict with a particular provision of its planning scheme, the Court should assume that the Council admits that a decision to approve the proposed development would not result in conflict with the provisions. See K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 576 [159].

[134] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 626 [378]. These findings were not disturbed by the Court of Appeal.

[135] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 616 [337].

[136]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 630-1 [408]-[410].

[137] Williamson QC DCJ made an observation to that effect in Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, 961 [125].

[138]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 629 [400].

[139]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 629 [397]. This findings was not disturbed by the Court of Appeal.

[140] H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, 235.

[141]Iverach v Cardwell Shire Council & Anor [2006] QPEC 114; [2007] QPELR 196, 203 [49].

[142]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 629 [398].

[143] The relevance is apparent when one considers the circumstances in which a provision such as s495(2)(a) of the Sustainable Planning Act 2009 was first introduced into planning legislation in Queensland – see paragraphs [177] to [180] above. The Council appears to accept that this is relevant to the exercise of the discretion. Its acceptance is apparent from its submission that fairness between the parties is a relevant consideration and its reliance on Iverach v Cardwell Shire Council & Anor [2006] QPEC 114; [2007] QPELR 196 at 203 [49] in that regard.

[144] [2018] QPEC 30; [2018] QPELR 941.

[145] These documents are statutory instruments.

[146]The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, 986 [33]-[35] citing Chalk v Brisbane City Council [1966] 13 LGRA 228, 230 and Walker v Noosa Shire Council [1983] 2 Qd R 86, 88.

[147] The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32; [2019] QPELR 980, 987 [36]-[37] citing Waterman v Logan City Council [2018] QPEC 44; [2019] QPELR 46.

[148] K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 627-8 [388]-[395]. These findings were not disturbed by the Court of Appeal.

[149]K&K (GC) Pty Ltd v Gold Coast City Council [2018] QPEC 9; [2018] QPELR 540, 628 [394].

[150]See T1-14 to T1-15. In particular, with respect to the need to consider whether there are reasons why City Plan 2016 should determine the outcome of the appeal, K&K said “the council’s allegations as a starting point don’t get there”. See also T1-41 – T1-44.

[151]Exhibit 32. The document contained handwritten amendments. See T5-4/L1 – T5-6/L6.

[152]The reasons the Council relied on are recorded at paragraph [337] of my earlier judgment.

[153]Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333.

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Editorial Notes

  • Published Case Name:

    K&K (GC) Pty Ltd v Gold Coast City Council

  • Shortened Case Name:

    K&K (GC) Pty Ltd v Gold Coast City Council

  • MNC:

    [2020] QPEC 40

  • 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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