Poultney v Townsville City Council
[1988] LG 556
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- Unreported Judgment
- Poultney v Townsville City Council[1988] LG 556
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Poultney v Townsville City Council[1988] LG 556
Poultney v Townsville City Council[1988] LG 556
IN THE LOCAl GOVERNMENT COURT TOWNSVILLE | Appeal No. 9 of 1987 |
BETWEEN:
WILLIAM DALLAS POULTNEY | Appellant |
AND:
TOWNSVILLE CITY COUNCIL | Respondent |
Dates of hearing - | 7, 8, 9 March, 1988 |
Judgment - | 17 June, 1988 |
Counsel for appellant - | P.J. Lyons |
Counsel for respondent - | S.M. Kiefel Q.C., with her J.R. Webb |
Solicitors for appellant - | Boulton Cleary & Kern |
Solicitor for respondent - | J. McDonald, City Solicitor |
Catchwords
Building control and town planning – Area outside Brisbane – Rezoning to “Special Facilities” zone – Intent of that zone – Advertisement of Application – “Land to which the application applies or relates” – Suggestion on appeal that one street be converted to one way operation – Whether such would require reapplication – Proposal to erect two fast-food sale and restaurant facilities – Longstanding planning intent for area to be residential – Need for facility not shown.
IN THE LOCAL GOVERNMENT COURT HELD AT TOWNSVILLE | Appeal No. 9 of 1987 |
BETWEEN:
WILLIAM DALLAS POULTNEY | Appellant |
AND:
TOWNSVILLE CITY COUNCIL | Respondent |
BEFORE HIS HONOUR JUDGE I. McG. WYLIE Q.C.
JUDGMENT
DELIVERED THE seventeenth DAY OF JUNE, 1988.
1. This appeal concerns these parcels of land, viz - (i) Lots 1 to 5 on R.P. 720690 having postal addresses of 336 - 340 Ross River Road and 149 - 151 Nathan Street at Cranbrook;
(ii) Lots 4 and 5 on R.P. 710821 having postal addresses of 3 - 5 Albert Street, Cranbrook; and
(iii) Lot 1 on R.P. 710821 having a postal address of 342 Ross River Road, Cranbrook.
2. The subject land has a total area of 6,900 square metres and has the following road frontages —
Ross River Road | – | 107 metres |
Nathan Street | – | 60 metres |
Albert Street | – | 51 metres, |
so it is virtually triangular in shape.
A residence stands on each of two of the parcels; the balance of the land is vacant.
3. The subject land is zoned Residential “A”. It is situated in the southwest quadrant of the intersection of Ross River Road and Nathan Street at Aitkenvale, Townsville. Over the 120 years of its existence, Townsville's development has substantially been eccentric, working westward along the northern bank of Ross River. The result is that a high percentage of Townsville's population lives in those suburbs of which that intersection is the approximate centre. Such centrality is due to the facts that (i) Ross River Road from its commencement at Rising Sun serves as the principal thoroughfare from the Central Business District and the eastern suburbs to the western suburbs of Townsville and thence into the urban part of the City of Thuringowa; and (ii) Nathan Street, which runs approximately north and south, forms part of a well signposted route available to persons travelling north or south but wishing not to follow the Bruce Highway through inner Townsville; moreover, commencing or terminating as it does at the Charles Barton Bridge over Ross River, Nathan Street serves to give access to the south Bank suburbs of Douglas (site of James Cook University) and Murray (site of Lavarack Army Barracks).
No doubt because of the number of persons residing in the suburbs surrounding the intersection and because the two roads permit access to it from most parts of Townsville and from urban Thuringowa, there has come to exist —
- On the southeast quadrant, the regional shopping centre known as Nathan Plaza which is adjoined to the east on Ross River Road by satellite shopping centres and shops and commercial buildings; and
- On the northwest quadrant, the regional shopping centre known as K-Mart Plaza. These are extremely busy business centres and have earned a reputation as the commercial and retail centre of Townsville. Nathan Plaza has recently been enlarged to provide even more specialty shops and a double level carpark. Right on the southeast corner of the intersection and as part of the Nathan Plaza development there stands a service station.
4. The northeast quadrant of the intersection - diagonally opposite the subject land - is also zoned Residential A; my inspection revealed older, apparently vacant residences and vacant allotments on that corner in a mirror image of the subject land.
5. The lands occupied by the shopping centres are zoned “Local Shopping” for the main part; an area at the intersection of Nathan Street and Alfred Street at the rear of Nathan Plaza is zoned “Commercial” and a Commonwealth Bank building stands there.
6. The subject land is adjoined to the southwest by a strip of land zoned Residential A running from Ross River Road to Albert Street. Then there is a rectangular parcel of land running between those roads used as a retirement village and zoned “Special Facilities (retirement village of up to 76 units and uses reasonably incidental thereto for retired persons of 55 years or more...)”. Adjoining the retirement village and indeed taking up to some two-thirds (my rough guess) of the entire area bounded by Ross River Road, Nathan and Albert Streets and Hatchett Street is a parcel of land zoned “Special Purposes” and occupied by the Holy Spirit Church and St. Ignatius high school. There are some eight allotments on the corner of Hatchett Street. On my inspection with counsel I was driven along Ross River Road to Hatchett Street and then along Albert Street to Ross River Road.
7. The appellant is part owner of five of the lots described above. That land has been in his family for over 50 years: it is vacant land.
8. The appellant applied, with the consent of the several registered proprietors, for the exclusion of the subject land from the Residential A zone and the inclusion thereof in the Special Facilities zone for the purpose of “Restaurant, Take-Away-Food Shop and Drive-In Shop”. It is proposed to erect two buildings in accordance with the requirements of future tenants, for fast food/take away food vending both for consumption on the site and for consumption elsewhere. There would be common access and egress, parking areas and outdoor eating areas.
9. The respondent Council refused that application for these reasons —
“(a) Traffic
- The development will cause an increase in traffic flows at the Nathan Street/Ross River Road intersection. This intersection is at or in excess of maximum capacity.
- Increased use as described in (i) above encourages diversion of traffic into residential streets which is undesirable.
- The use, by reason of its access points and traffic control measures in place on main roads will encourage development related traffic into residential streets, particularly in the suburb of Cranbrook.
- The use will create and/or increase a traffic hazard at the site boundaries and in particular, at the access points.
- The internal traffic/parking arrangement is poorly designed and is likely to result in under utilization in favour of heavy and/or illegal parking habits at the site boundaries.
- Amenities:
- The development will result in loss of amenity to nearby or adjoining residential premises by reason of emission of noise (traffic, amplified music/voices), light (headlights, overhead lighting, signage), and smells (particularly oil based cooking).
- The development will result in loss of amenity in large parts of the suburb of Cranbrook by reason of increased and late night traffic extending into suburban streets to access or depart from the site.
- Town Planning Principles:
- It is contrary to sound planning principles to zone land Special Facilities when another more appropriate zone is available.
- It is generally considered inappropriate to encourage or allow intensive traffic generating development at major intersections, particularly on relatively small sites and particularly where the major intersection is already operating at or above maximum desirable capacity.
- Other land is available in the area, either suitably zoned or in an area which Council has demonstrated a willingness to rezone, which is suitable for development.
- By virtue of (iii) above, the application has not demonstrated a need for the rezoning.
- Objections:
- Objections have been received which in the opinion of Council contain sustainable grounds of objection.”
10. The appellant's appeal is on these grounds —
“4. The reasons advanced by the respondent are erroneous because:
- notwithstanding that the development will cause an increase in traffic flows:
- the location, scale, layout and anticipated generation rate of the proposed development are such that there will be no significant effect on the capacity of the road system or nearby intersections;
- by letter dated 2 March, 1987 the Main Roads Department notified the appellant's engineers that it had no objection to the proposed development;
- use of residential streets by generated traffic is unlikely;
- the proposed development reduces the number of access points from the frontage roads to the subject land;
- off-site parking is unlikely;
- the proposal will not create or increase any traffic hazard;
- there will be no unacceptable detrimental effect on the amenity of the locality because:
- the subject land is located in an area in which there is a mix of residential, retail, commercial and other associated uses; a large shopping centre is located opposite the subject land across Nathan Street and a K-Mart store is located opposite the subject land across Ross River Road;
- the subject land is located within an area containing a mix of zones (local shopping, commercial, residential A, residential C), reflecting the mix of uses in the locality;
- the proposed development will be a low intensity commercial-type development which is not incompatible with other uses in the locality;
- the proposed development will not give rise to unacceptable emissions of noise, light and smells, and traffic generated by it is unlikely to be perceived by nearby residents;
- The Special Facilities Zone will ensure that the respondent retains proper control over development of the subject land, and is the appropriate zone to utilise;
- provided (as is the case) the proposal does not create or increase any traffic hazard, it represents an appropriate use of the subject land, notwithstanding its location at an intersection;
- the subject land is unsuitable for its zoned purposes (that is, residential purposes);
- there is a need for development of the type proposed on the subject land.”
Selection of Zone
11. The Town Planning Scheme for the City of Townsville contains no Statement of Intent of the several zones into which the city is divided for the purpose of the Scheme.
12. In the Residential A zone each of drive-in shops, restaurants and take-away-food shops is a prohibited use. Hence the application for rezoning of the subject land.
13. In the Special Facilities zone the as-of-right use is that indicated on the Scheme map. Any other use which, in the opinion of the Council, is allied and compatible with, but supplementary to, that as of right use is a consent use when that other use is carried out in conjunction with the as-of-right use. All other uses are prohibited in that zone.
14. In Short -v- Townsville City Council (1987) Q.P.L.R. 183 I sought to divine the intent of the Tourist Facilities zone in the same Town Planning Scheme by reference to the meaning of the words “tourist” and “facilities”, especially the former. I do not consider that approach is open to me in the case of the Special Facilities zone since the adjective has these meanings —
- of a distinct or particular character;
- being a particular one;
- pertaining to or peculiar to a particular person or thing?
- having a particular function, purpose or application;
- distinguished or different from what is ordinary or usual;
- extraordinary; exceptional; exceptional in amount or degree.
(See The Macquarie Dictionary (revised ed.) p. 1624.)
The adjective, then, is a most comprehensive term. That which is special has some distinguishing or individualising characteristic. In one sense each zone in a town planning scheme is special, having being designed for or being concerned with specific uses, and having a character which distinguishes it from other zones. So the search should be for that characteristic of the Special Facilities zone which distinguishes it from the other zones. It is unhelpful to declare that such characteristic is that in such zone the as of right use is specially denoted on the Scheme Map and may - usually does - vary from one Special Facilities zone to another as from the ambulatory nature of the use one may deduce that any one use is or combination of uses are intended to be accommodated in a particular Special Facilities zone.
15. The term “Special Facilities” is not a term which in the ordinary use of English language evokes any particular use of land. It really is no more than a planning term. In this town planning scheme it is clear that the Special Facilities zone fulfils no special intent; rather the general intent of the zone is that, unlike the other 17 zones for each of which there are pre-ordained as-of-right and consent uses, the Special Facilities zone only attaches to particular land when the particular use to be carried on on the land is known. If that use is an as of right use in any of the other 17 zones in the ordinary course that zone may suffice and the zoning of the land as Special Facilities may not be justified. However it may be the case that the proposed use of the land is not one use but a congeries of uses, some or one of which would be prohibited in such other zone or it may be the case that the proposed uses are such that none of the other 17 zones will accommodate the proposed uses in full either as of right or with consent of the Council. Unless the Town Planning Scheme provides an appropriate zone the proposed uses cannot be carried on and will be lost to the City in the form proposed. It is therefore desirable that the Scheme should provide for such a situation in order to benefit the citizens. To that end a scheme may provide a zoning which will accommodate those uses which do not readily fit into one of the other zones. Sometimes this is done by way of a “Comprehensive Development” zone in which no use is prohibited and all uses require consent. This gives the town planning authority flexibility to permit a number of uses. This Town Planning Scheme, in my opinion, provides the Special Facilities zone for the purpose of accommodating uses which do not readily fit into any of the other zones. Further, since the Special Facilities zoning is not given to land in advance of the formulation of a proposed development, a developer may search out a parcel of land anywhere in the City where the proposed use or uses may be carried on if planning considerations permit.
16. In his townplanning report which accompanied the application Mr. V.G. Feros referred to the fact that the uses proposed are prohibited in the Residential A zone and to the fact that it was necessary to seek rezoning to an appropriate zone. Mr. Feros commented that use of the Special Facilities zone “is fully in accordance with accepted Town Planning principles, is in basic accord with the local land use and zoning structure and enables Council to retain full control over any development which may be established on the subject site”.
17. The respondent's town planner, Mr. P. Dance, in his report to Council upon the application wrote with respect to a theme which recurred in the objections lodged with the respondent, viz, that the proposed development, being entirely commercial in nature, was not a “special facility” -
“Comment:
I agree. Reports by both the City Solicitor and myself on other development proposals in Ross River Road (R. Moss Motors) and University Road (N.A. Land Shopping Centre) in the last few years outline clearly the nature of the Special Facilities Zone and the good reasons why it should not be used for commercial developments when a more appropriate zone will suffice. The only argument that could be raised to support the Special Facilities Zone relates to the need in both the Commercial and Local Shopping Zones to seek further consent for a Take-Away Food Shop. This really is no argument but simply a feature of this Town Planning Scheme. In view of the operating hours, traffic attraction, noise, light and smell features of take-away food shops, it is, I believe, a desirable feature of the scheme.
The report in support of the application, states that the use of the Special Facilities Zone in these circumstances is accepted in planning practice and as a planning principle.
I disagree with this contention. In my opinion, the Special Facilities Zone should be reserved for a special mix of uses which cannot otherwise be accommodated or a particular unusual development which in itself is acceptable but which is uncharacteristic of an area. Highway locations for example sometimes provide opportunity for specific developments which are acceptable where a broad commercial or shopping zone could not be countenanced.
This site does not fall into that category. What is proposed is a commercial venture in a suburban environment. The proper course in this matter would have been to apply for Commercial or Local Shopping Zones.”
18. In evidence Mr. Feros said that he had recommended applying for rezoning to “Special Facilities” zone because -
“Well, in the first instance, it is a zone which is available to the applicant, the zone being included in the current town planning scheme for the City of Townsville. In the absence of any clear statement of intent contained in the plan, one has to look at the way in which such a zone has operated, throughout other places in Queensland and to understand why the special facility zone might have been appropriate vehicle. Principally, the special facility zone provides a vehicle for development which does not neatly fall into a categorisation of some specific zone or other. It also, at the same time, provides the opportunity, either through a deed of agreement procedure or a plan of development procedure, to offer to the council quite a strong and full degree of control over the form and content and, indeed, quality of any development under that specific facility zone.”
19. Mr. Feros, asked to consider the choice between a Special Facilities zoning and a Commercial or Local Shopping zoning, where the proposed development may be an as of right or consent use, said -
“The difficulty in, perhaps, leaning towards a commercial - strictly commercial type of zone is that the as of right uses, as they are listed under those respective zones, provides, in a real sense, too wide an ambit for development which flows without further consents being required or without recourse to any public participation through way of objections lodged or consent type application, in other words, a degree of control is taken out of the public arena, in terms of the community and also the council. That, strictly speaking, is not a totally satisfactory way of going about planning based on a zoning scheme.”
In cross-examination, Mr. Feros argued for the view that it may be appropriate to zone land Special Facilities in order to place between two potentially incompatible uses a use which may be compatible with each so that here, if zoned Special Facilities, the use proposed for the subject land would provide a transition from, or buffer between, the commercial uses to the east and the residential uses to the west.
20. In his evidence Mr. Dance explained why he considered the use of the Special Facilities zone as the third most important feature (after traffic and the introduction of a commercial use into a residential area) against the rezoning sought by the appellant -
“... it is a matter of planning principle which I would disagree with. I would disagree with the use of it in this context: I think it should be used for some genuinely special purpose, which is, perhaps, a mix of uses where all of those uses might not be allowed to occur in any particular zone of the town planning scheme whether by consent, or it may be desirable to use it on a highway location where it may be amenable to a service station but not to an indefined commercial usage.”
While Mr. Feros was of the view that performance conditions could be attached to the rezoning, Mr. Dance saw problems both arising from the present lack of definition of the nature of the proposed development and therefore in specifying standards and in enforcing the same against any subsequent owner of the land.
21. To aid understanding of the view of Mr. Dance that the proposed development could be accommodated in the Commercial or Local Shopping zones, I explain that -
- In the Commercial zone under this Town Planning Scheme “restaurants” is an as-of-right use whilst “Drive-in shops” and “Take-away-food shops” are uses which may be carried on with the consent of the Council;
- In the Local Shopping zone each of the three uses proposed is a consent use.
22. I neither accept totally nor reject totally the contentions of those experienced town planners.
23. The Town Planning Scheme under consideration is a piece of subordinate legislation which must be construed in accordance with the recognised principles of statutory interpretation. In the absence of a definition of the term “Special Facilities” either in the Local Government Act 1936-1987 to be made applicable by the principle that words and expressions used in subordinate legislation have prima facie the same meaning as in the authorising statute (Blashill -v- Chambers (1884) 14 Q.B.D. 479, 485; see also the definition of “This Act” by s. 36 of the Acts Interpretation Act 1954-1985) or in the Town Planning Scheme itself, the meaning of the term “Special Facilities” and the intent of the Special Facilities zone in this Town Planning Scheme must be sought in the provisions of this Scheme. There is no model or uniform town planning scheme applicable to every Local Authority Area in Queensland. While superficially the several Schemes in force in this State may appear the same or nearly the same, closer comparison will reveal differences, often substantial but always significant. For instance, while two Schemes may each provide a Special Facilities zone one of them may provide a Statement of the Intent of that Zone and the second not or, if it does, then in different terms. Again, while each may provide such a zone, one may provide other as of right and consent uses for the zone while the other does not. It must be borne in mind that the same words used in two different pieces of legislation or subordinate legislation may have different meanings in each piece, according to legislative intention and the purposes of the legislation. I disagree with Mr. Feros' statement that, to divine the intent of the Special Facilities zone in this Town Planning Scheme, one “has to look at the way in which such a zone has operated throughout other places in Queensland and to understand why the special facility zone might have been the appropriate vehicle” for those reasons. To ignore differences between Schemes and to concentrate on the magical words “Special Facilities” may seem an attractive approach but it is not the correct approach to the fundamental question in town planning: what does the Scheme say? If the Scheme is silent, then the fact that other Schemes may have spoken is beside the point. Likewise, it is of no assistance to know how in practice the zone has been applied in the working out of an entirely different town planning scheme and of little assistance to know how in practice this local authority has applied this Scheme. As to the later aspect, where legislation or subordinate legislation uses language of doubtful import, the action taken under it may, if continued for a long course of years, reduce uncertainty to a fixed rule. Likewise a Court may have regard to the construction put upon legislation or subordinate legislation when it first came into force: Fermoy Peerage Claim (1856) 5 H.L.C. 716, 747; Morgan -v- Crawshay (1871) L.R. 5 H.L. 304, 315; Read -v- Bishop of Lincoln (1892) A.C. 644, 652 (P.C'cil.) Contemporanea exposito however requires unanimous consent over a long period and can rarely be applied to modern statutes: Clyde Navigation Trustees -v- Laird (1883) 8 App. Cas. 658, 673; Danford -v- McAnulty (1883) 8 App. Cas. 456, 463; Assheton Smith -v- Owen (1906) 1 Ch. 179, 213; Goldsmiths Co. -v- Wyatt (1907) 1 K.B. 95, 107. In my opinion the “two reports” by the City Solicitor and Mr. Dance as to “the nature of the Special Facilities zone” only evidence the unilateral view of Counsel and do not support a construction of the Scheme evidenced by “usage” nor can the doctrine of contemporaneous exposition assist in the case of a Scheme brought into existence in March 1982.
24. I am satisfied that this Scheme provides a Special Facilities zone for the purpose of accommodating developments which can or may not fit into any of the other 17 zones provided by the Scheme. The absence of a statement of the intent of that zone does not lead me to the conclusion that this Scheme intends that the Special Facilities zone is intended only to apply when the proposed use does not fit within any other zone. On the contrary, I conclude that the zone is available to be sought by an applicant even if some other zone be equally available. Once an application for rezoning of land to the Special Facilities zone be received, the Council must consider the application on its townplanning merits. It is not, in my opinion, entitled to refuse the application solely because it would prefer another zoning or because it has a practice which seeks to preserve that zone for a development involving a mix of uses which cannot otherwise be accommodated in another zone or involving some unusual feature. It is important to bear in mind that, under s. 33(6A)(a) of the Local Government Act, the application is one to include land in a particular zone and that is the application to be considered: the application is not and cannot be one for inclusion in that zone which the Council thinks appropriate for the development.
25. It should also be borne in mind that there may well be good reasons for including land in the Special Facilities zone, such as -
- the use carried on upon the subject land will be limited to that noted on the Scheme map (and any associated use consented to under this Scheme), a circumstance which introduces some certainty into the expectations of those residing or carrying on business nearby; this means that any change of use will require consideration by Council of a further application since there will be no other as of right use for the land and so Council will control the future of the land;
- a zoning to Commercial or Local Shopping zones would introduce other as of right uses not requiring Council's consent nor considered upon this application, as well as other consent uses for which it may be more difficult to refuse permission;
- if, or when, the land is no longer required for the use proposed, a replacement use will need to be the subject of a further rezoning application so retaining Council's control over the future of the land (cf. Kuhnemann -v- Pioneer Shire Council [1986] Q.P.L.R. 530, 533).
26. I find ground (c)(i) of the respondent Council's reasons for refusing the application to be without merit.
The nature of the proposed development and the need therefor.
27. The site plan submitted to the respondent Council with the application indicated that it was proposed to construct two buildings each 27 metres by 19 metres with one facing Ross River Road and the other facing Nathan Street. Each would feature a restaurant, an area for take-away food sales and a kitchen and storage area. Each would provide for a drive-in sales point at its rear with vehicular access from a roadway linking Nathan Street and Ross River Road. Sixty-one car parking bays and a bus layby would be placed along the southwestern boundary of the site. There would also be access to the car parking area from the end of Albert Street. Finally, an outdoor eating area would be located in the area at the intersection of the two roads. In an endeavour to accommodate the Council's reasons for refusal of the application, the site plan has been redesigned. The car parking area now occupies the frontages to Ross River Road and Nathan Street. Each of the buildings is now situated in the southwestern sector of the site. A 1.8 metre solid timber fence would be built on the southwestern boundary. The outdoor eating area would be situated between the buildings and the car parking. There will still be vehicular access from Ross River Road and from Nathan Street but there will only be pedestrian access from Albert Street.
28. The experienced traffic engineer, Mr. Holland, considered that the view of the Council's Town Planner, Mr. Dance, that Albert Street already suffers loss of residential amenity due to existing traffic levels was supported. Accordingly Mr. Holland proposed that, in association with the development, Albert Street at the Nathan Street end should be converted to a one-way westbound operation. One effect of this would be to prevent eastbound traffic in Albert Street joining Nathan Street; such traffic would be compelled to travel along Ross River Road or along Bergin Street, the next street south of Albert Street. Albert Street would terminate near Nathan Street with a form of cul-de-sac containing provision to permit entry of westbound traffic from Nathan Street. The appellant said in evidence that, if I came to the view that such a modification of the traffic system should occur following or as a condition of rezoning, he would agree to pay the cost thereof.
29. That such roadwork may occur following any rezoning became known among local residents just before the hearing of the appeal and produced consternation, to judge by the evidence of some of them before me.
30. This led Miss Kiefel Q.C., for the respondent Council, to submit that the application before the Court involved the proposal for one-way traffic and was not that advertised and so was one which potential objectors and members of the public had not had an opportunity to consider; the application should have been readvertised in such a way as to make the public aware of the traffic issue. Miss Kiefel referred to the decision of the High Court in Pioneer Concrete (Q'ld) Pty. Ltd. -v- Brisbane City Council (1980) 145 C.L.R. 485 and to the decision of the Full Court in Gibway Pty. Ltd. -v- Caboolture Shire Council [1987] 2 Qd.R. 65. Mr. Lyons, for the appellant, submitted -
- that if the evidence were to show that the proposal in respect of Albert Street was not one likely to cause adverse consequences to the local residents then I could approve the application on that basis (although it was not accepted that a modification was involved);
- that, even more fundamentally, there is no requirement in the advertising provisions or in the provisions relating to the form of an application dealing with any potential alteration to the road system in the area;
- that in cases decided by this court conditions have been imposed which require modifications to external road systems and it has been held that such conditions can be imposed notwithstanding that such modifications were not referred to in the advertisements.
31. Those submissions were made at the commencement of the hearing; I reserved my decision thereon until I had heard the evidence.
32. In Gibway the application was one for rezoning of land. The subject land had no access to a public road. The applicant proposed that there would be a road created on other land owned or being purchased by the applicant which road would provide adequate access to the subject land. It was submitted by an objector party that the land to which an application for rezoning relates or applies, and referred to in s. 33(18)(b) of the Local Government Act as to advertising, was not merely the land sought to be rezoned but included all land proposed to be used for the intended purpose if not already in the zone applied for. Thomas J. with whom Andrews C.J. and Ryan J. agreed, rejected that submission. The land to which the application related was that sought to be rezoned; no application for rezoning of the land proposed to be opened as a road was made nor was one necessary.
33. However important is the need to acquaint members of the public with the fact that an application to rezone land has been made, the fact is that s. 33(18) of the Act sets out with care and in detail the several items of information required to be set out in the notice posted on the land and in the advertisement published in a newspaper. There is no requirement that such notices must contain information as to the every detail of an application so as to inform members of the public. I am of opinion that the application was properly advertised. The rearrangement of the principal features of the proposed development - the buildings and the car park - does not, in my opinion, result in the development being in any way different to what it was when first put before the respondent Council and then advertised. If anything, the rearrangement is an improvement. I regard the suggestion that certain roadworks could be done in Albert Street as not being part of the application now before me. The suggestion was advanced by an expert considering how the respondent's reasons for refusal might be responded to if the application for rezoning were otherwise meritorious. The respondent Council, and this Court on appeal, has power to approve the application subject to reasonable and relevant conditions (s. 33(6A)(d) and s. 33(7)(c)). The imposition, as a condition of approval, of a requirement that the applicant pay or contribute towards the cost of external roadworks necessitated by the development may be a means of overcoming one of the reasons for refusal. I do not understand the appellant to be suggesting that the carrying out of such roadworks is an essential part of his development proposal. As I understand the appellant's evidence, he simply said that he would and could comply with such a condition were it imposed.
34. In the Pioneer Concrete case, this Court, on an appeal against a deemed refusal of an application for consent to use land, gave consent subject to a condition that certain land external to the land the subject of the application be retained as a buffer area. In the High Court those opposing the grant of consent submitted that the application and the advertisement were defective because they failed to show the buffer area. This was only one of many aspects of that appeal. Gibbs J. (as he then was) said, at p. 494 of the report -
“However, in my opinion there was no reason why either the application or the advertisement should have referred to a buffer area ... The appellant did not seek consent to provide a buffer area, it was imposed as a condition by the Court.”
Aitken J. agreed with His Honour's reasons for judgment. Stephen J. (with whom Murphy J. agreed) at p. 509 said -
“... I agree that, for the reasons stated by Gibbs J., there was no defect in the application and advertisement resulting from a failure to show the buffer area.”
Wilson J. did not deal with this aspect in his judgment. I note that in his judgment in Gibway (at p. 69 of the report) Thomas J., after quoting the above dictum of Gibbs J., said, “Wilson J. agreed with Gibbs C.J.”. With respect, that statement is wrong in relation to this aspect of that case. Although ultimately the decision in Pioneer Concrete went against the applicant for reasons connected with the contents of the application and advertisement, I find in the dicta quoted above support for my conclusion that the circumstance that an approval is subjected to a condition that other land external to that the subject of an application be set aside or used or improved in some way does not mean that such other land is land to which the application relates or applies so that it should be referred to in the application and advertisements.
35. I find no merit in the submission made on behalf of the respondent Council.
36. I find that the subject land is unlikely to be used for the purpose of single residences, at least in the foreseeable future the only as-of-right use in the Residential A zone. A “multiple dwelling” (as defined in the Scheme) could be erected thereon with the consent of the Council; that term includes buildings commonly known as flats, villa units, terrace houses, town houses and the like. The nearby Cranbrae Retirement Village between Ross River Road and Albert Street is an example of a more dense residential use. There is Residential “D” land on the opposite corner of the Albert Street/Nathan Street intersection on which units are erected. In that zone the use and development of land for accommodation units, home units and multiple dwellings shall not exceed 150 persons per hectare compared with 37 persons per hectare in the Residential A zone (but I acknowledge that the calculation is not as easy as that - see Part 3 of Chapter XXXII of the Bylaws). Mr. Feros expressed the opinion that, were the subject land zoned Residential D, the further restriction that buildings not exceed three storeys above natural ground level would impose design contraints not permitting sufficient flexibility to allow a substantial landscaped area on the road frontages to overcome traffic noise and make the site more habitable. He thought the site unattractive to an owner/occupier. Mr. Feros also responded to the suggestion that Residential D-type buildings could be turned around so as to present their rear to traffic by pointing out that to do so would be to deprive residents of the northern and eastern aspects and the breezes. Mr. Dance considered that, if the subject land be unsuitable for single dwellinghouses, a more appropriate zoning for the land would be a higher order residential zoning consistent with the elements of higher residential use present in the quadrant. He said -
“I would think that a residential development which would amount on that site to over 40 home units could be achieved in a sensible manner so that they would have adequate buffering around the perimeter to the major roads. They could be designed so they would be inwardly looking and so to enjoy a quiet internal court. That would make sense from a standing principle perspective in that it is desirable to intensify residential use where there is the highest convenience, such as around shopping centres and adjacent to major roads and where the transport options are at their greatest.”
Mr. Dance said that location of a higher residential use on the subject land would forestall any temptation towards commercial strip development along arterial roads, which he described as not a good townplanning approach. His conclusion was that, as the land was not suitable for single dwellings and as he would argue strongly that it was not a location for commercial development, the land was suitable for more intensive residential uses for the reasons given in the passage quoted above.
37. I am satisfied that the subject land is suitably located for use for a more intensive residential use. It may be that care will have to be taken in the design and placement of buildings to cope with circumstances attributable to traffic noise which Mr. Feros described as “inhibitive rather than prohibitive” of residential development. I do not regard this as an instance where the subject land has lost all potential for residential use albeit that its present zoning may be lessening the chances of such use being made of the land.
38. Examination of the relevant Scheme Map for this part of the City shows that, save for the K-Mart Plaza land, Commercial and Local Shopping zonings are consolidated in the southeastern quadrant of the intersection in the area bounded by Ross River Road, Nathan Street, Alfred Street and Charlotte Street, Aitkenvale (three blocks by one) although there are some Commercial zonings inbound of Anne Street towards St. Anne's College. On the other hand, on the western side of Nathan Street there are two Local Shopping Areas located well away from the subject site. Only one is situated in the southwestern area and that is the Kentucky Fried Chicken outlet on Ross River Road some 1.5 kilometres outbound from the subject land. That examination discloses to me a planning intent to keep commercial uses out of the area west of Nathan Street and to confine the commercial uses to a rectangular area along Ross River Road in the southeastern quadrant. The location of the K-Mart Plaza on the northwestern corner of the intersection at present stands out as an exception to that intent. The retirement village, although on land zoned Special Facilities, is merely an intensive residential use.
39. Mr. Feros considered that the subject land is located within an area exhibiting “a mixture of retail and commercial, community, low and medium density housing and other special uses.” The “community” uses are presumably the church and St. Ignatius School, Aitkenvale West State School (almost one kilometre west of the subject land between Albert Street and Bergin Road) and the Aitkenvale State School (in the northeastern quadrant some 200 metres north of the subject land). There is a parcel of vacant “Special Purposes” land southeast of the subject land between Alfred and Arthur Streets. That parcel owned by the Australian Broadcasting Commission was, at the time of the hearing, the subject of an application to the Council for rezoning to the Special Facilities zone (about which more anon). In my opinion, when the question is whether a commercial use should be permitted in the southwestern corner of the intersection, with its residential usage and zoning, it is drawing too long a bow to call in aid non-commercial activities such as a church and schools and vacant land. In my view it is wrong to conclude, in the face of the planning intent for land at and near this intersection, that because there are large shopping centres on diagonally opposite quadrants, then there may be a retail food vending business on another corner.
40. The zoning of the K-Mart Plaza land antedates the town-planning scheme. What I see as the planning intent for the southwestern quadrant would also appear to have been the intent in about 1978. Then the appellant and his co-owners sought to have that part of the subject land owned by them rezoned “Commercial”. The respondent Council refused that application in part because of traffic considerations. Late in 1983 the appellant and his co-owners sought town planning advice as to the most advantageous land use options for their land. That report by Cameron McNamara Pty. Ltd. was tendered in evidence. It contains this statement as to the Council's then planning policy -
“3. COUNCIL INTENTIONS
At the Works and Town Planning Committee Meeting of 19th January, 1978, Town Planning recommendations were adopted with respect to future development of the Aitkenvale area in the vicinity of Ross River Road and Nathan Street.
These recommendations included a policy of limiting commercial development (apart from the already existing K-Mart complex) to the southeastern quadrant of the locality as divided by the two major roads. The other quadrants to be retained for residential development with the southwest quadrant (including the subject land) being identified as suitable for medium density development.
It is our observation that Council have been consistent in adhering to this policy.
Apart from the already existing K-Mart, all commercial development in the immediate vicinity has been in the southeast quadrant. We are not familiar with the history of the Pool Centre at Lindeman Avenue in the northwest quadrant. There has been some development in the southwest quadrant for medium density residential. This includes Nathan Court on Ross River Road opposite Acheron Avenue and complexes to the south of the intersection of Albert Street and Nathan Street.
We understand that there have been applications for rezoning for commercial purposes in the northeast quadrant but, to the best of our knowledge, have so far been resisted by Council.”
That demonstrates, to my mind, at least a decade of consistency by the Council in planning the southwest quadrant.
41. I consider that, in the face of that planning intent, the appellant would have to produce strong townplanning reasons justifying rezoning of the subject land so as to permit a commercial usage of the subject land.
42. I return to the nature of the proposed use. It is clear to me that the appellant's planning for the land is still in the embryonic stage. It is clear that for a decade or so the appellant has been seeking to turn this land to his advantage by developing it. He has concluded that a fast food outlet would be successful on the site which has the advantage of exposure to two busy roads and is conveniently accessible to a large population. The appellant said that he is prepared generally to develop the land in accordance with the revised layout which I have earlier described although tenants may wish some changes. At the present time the appellant has no “firm tenants” for nor any commitments to the proposed development. He has not had negotiations with any persons interested in a tenancy.
It would seem from his answers in cross-examination that he has not himself approached any person or body concerning a tenancy. He was aware that the McDonald's hamburger organisation had been approached on his behalf and that they were not interested in this site.
43. Mr. Cain is an experienced real estate agent, concentrating on commercial real estate. He had held instructions from the McDonalds organisation and had become aware of the development proposal for the subject land in about April 1987. Over the period of the last three years he had from time to time held instructions from other national fast food operators to seek sites suitable for their businesses. Such operators look for (i) a large site offering a good number of offstreet car parking spaces; and (ii) a clear identification of the business. The subject land satisfies those criteria; it is also located to take account of the passing traffic, the heavily populated surrounding suburbs, and the shopping focal points at this intersection. Mr. Cain thought it would be easy to find tenants for developments on the subject land provided there were no more than two to enable identification as in his opinion it is extremely difficult to obtain suitable sites due to an insufficiency of suitably zoned land.
44. The definitions of the uses proposed by the appellant are, in this Scheme -
“Drive-in shop” - Any land, building or other structure used or intended for use for the sale of goods or services, and so designed or laid out that customers may drive directly onto the site in a motor vehicle and may be served without having to leave the motor vehicle.
The term includes a drive-in bank, drive-in bottle shop and drive-in restaurant, but does not include a drive-in theatre.
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“Restaurant” - Any premises, not being a cafe, caterers' rooms, take-away food shop, tavern, kiosk or part of an hotel, in which meals are served to the public for gain or reward and where provision is or may be made for live entertainment or for dancing.
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“Take-away-food shop” - The use of any land, building or other structure or any part thereof for the preparation and retail sale of food suitable for immediate consumption either on or off the premises. The term includes a fried fish shop, pizza parlour and other similar uses whether associated with a cafe, restaurant or not. The term does not include premises commonly known as milk bars, cake shops, or sandwich shops.
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45. It clearly appears from the site plan exhibited before me that each of the two buildings proposed will provide an area in which meals will be served to the public, a separate area in which take-away food will be sold, and a point from which motorists' orders will be met. There will also be but one kitchen and storage area serving the three activities. I approach the problem therefore on the basis that only one person or company will carry on those activities in each building.
46. Despite the instructions to which he referred the attractions of the site to which he referred and his confidence above finding a tenant, Mr. Cain was not able to point to any person or company which had indicated any positive interest in becoming a tenant in one or both of the buildings. He had taken part in an inspection of the land with a representative of McDonalds. It does appear however that he was able to find two other sites for that organisation, and that as a result two contracts have been entered into. One, not subject to rezoning, is part of the Lakes development in Currajong. The other is subject to rezoning. Mr. Cain did not identify that site but Mr. Dance said that the application to rezone land at the south-east corner of Alfred Street and Nathan Street - presently under consideration by the Council - was one for a take-away-food development “in relation to a fast food outlet for the McDonald's group”.
47. Mr. Cain made two other significant statements. Firstly, some of the clients from whom he had received instructions had “conducted their own investigations before” and, once he had located a potential site, “they have their own staff then go out and do their own assessment of the site”. I infer from that that such national operators, prior to giving Mr. Cain instructions to search out a possible site, have formed at least a tentative view that the Townsville area may be ready to accept an expansion of their businesses but that a final assessment is deferred until a likely looking site is located. A further inference may also be drawn: apart from McDonalds, Mr. Cain did not consider the subject land and proposal one which came within the ambit of his instructions from other organisations. Secondly, Mr. Cain gave this evidence -
“Have you ever located a site with the purpose in mind of providing two outlets as distinct from one? --For different operators, yes, I am doing that on another site right now.
You haven't in the past though found a site on instructions, apart from this one that you are talking about, that is just current in the past, have you ever received instructions and gone out and found a two-facility site?--No, I have not.”
That is some slight evidence that at this time elsewhere in this area two fast-food operations may come into being. It is also some evidence of a lack of demand from his principals for a site where their business will exist cheek by jowl with that of a competitor.
48. Mr. Feros expressed the opinion that the subject site was larger than usual for a single fast food facility. He said there is a “trend” in Australia and New Zealand representing a “fast food village concept” incorporating on the one site two disparate outlets; this has the advantage of aggregating traffic at the centre. Mr. Feros also gave an example in Sunnybank, Brisbane, where “Bonanza” and “Pizza Hut” share the same building. I gave an example known to me in Newmarket, Brisbane, where “Macdonald's” and “Pizza Hut” have separate buildings and common parking on apparently the same land. It would appear however that such dual existences may still be comparatively rare. The appellant, here, is faced with the problem not of securing one tenancy but of securing two tenants if the development is to be a worthwhile one and he has not yet secured one even utilising Mr. Cain's services.
49. Mr. Feros was also asked whether he had experience in considering whether there was adequate demand for fast food facilities in particular locations; he replied -
“Strictly speaking, I have never had to address this point front on. That generally seems to be done by the individual market researchers of the various companies, but obviously being involved in such matters, one understands, if you like, the procedures for determining, not so much need, but a demand for such facilities.”
It was on this basis that Mr. Feros expressed this opinion in his report -
“Within Town Planning methodology, forecasting of need is often based upon the application of standards as a means of determining the adequacy of the provision of certain facilities, particularly those of a commercial nature.
However, in relation to the subject proposal, there are no recognised standards which might be applied to the provision of fast food outlets.
Consequently, the theory attached to the provision of an appropriate range and availability of goods and services and the nature and extent of the catchment served by such facilities assumes importance.
In this regard, in the writer's opinion, there is an adequate demand within the locality for the provision of additional fast food outlets, particularly of a type as proposed in the subject application.
Such demonstrated need provides additional support for the subject rezoning.”
50. Mr. Feros did not illustrate how he came to that conclusion. I consider that it should not have been impossible, even if there be no rules of thumb or standards, to have attempted to test the validity of that conclusion. The population of Townsville and urban Thuringowa is calculable from various sets of statistics, as would be the population of a catchment area of, for instance, surrounding suburbs or applicable Census Collectors' districts. The latter information could also disclose a population breakdown into age groups. The figures for traffic volumes upon Ross River Road and Nathan Street are available and no doubt are available for other equivalent facilities in Townsville and elsewhere. Likewise catchment areas for other equivalent facilities in Townsville and elsewhere can surely be estimated and the populations thereof calculated. It may be expensive but it should not be difficult to station counters outside established facilities in order to assess their custom by reference to vehicles and pedestrians entering the site. A selection of customers leaving the several sites could have been questioned as to (i) their places of origin; (ii) their frequency of patronage; and (iii) their average spending, and similar matters. Market surveying firms exist to ascertain such information for use by business entrepreneurs. From the type of information I have suggested, and a knowledge of the number and locations of equivalent facilities in this connurbation it should then have been possible to draw some conclusions as to whether additional such facilities are needed or could be justified in the Townsville area and, if so, whether they should be situated at or near this intersection. Some may, even justifiably, question the methodology suggested but it seems to me to be little different to the standards used to forecast the need for general retail facilities, standards which have been refined over the years from rudimentary beginnings. No attempt was made in this instance to perform such an exercise. Nor was there any evidence that any survey was made of local residents to seek to determine whether they felt that fast food items were needed at or near this intersection and whether they would patronise such facilities if operating. The absence of such endeavours leads me to the opinion that Mr. Feros' opinion that there is “an adequate demand” for additional facilities is mere speculation. It is not as if the major franchises are not already represented in Townsville so that an intuitive opinion may be justified.
51. I also consider that this comment in Mr. Feros' report was not supported by any evidence:
“Extensive market investigation carried out by the applicant support the proposed development as being the most appropriate use of the site. Such investigations have not revealed the existence of alternative, appropriate sites.”
However, even if the most appropriate use of the subject land be for fast food facilities, that of itself would not in my opinion justify its being rezoned in the absence of evidence as to the need for such rezoning.
52. The evidence of both Mr. Feros and Mr. Cain to the effect that the national chains conduct their own research leads me to the negative conclusion that, to date, none have seen a demand justifying expansion of their activities in or into this region while the expansion of the McDonalds organisation into Townsville has not brought the subject land within its plans.
53. Section 33(6A)(e) of the Local Government Act 1936-1987 sets out matters which “amongst other things” the respondent Council (and on an appeal this Court) should take into account upon consideration of an application for rezoning. By reason of the use of the phrase “amongst other matters” the Legislature clearly intended that paragraph (e) be not an exhaustive list; other matters may be considered as necessary from case to case. Thus this Court has consistently held that it is relevant to consider whether there is a “need” for the rezoning to occur, need being understood in the sense of a public or community need. The need is not that of a landowner wishing to use his land in the most profitable way.
54. The appellant has, in my opinion, failed to demonstrate by acceptable evidence that there exists a “need” in the townplanning sense for additional fast food facilities of the type proposed in Townsville and particularly in the vicinity of the subject land. I therefore find that it has not been shown that the subject land is needed for the provision of those facilities for the good of the community.
55. In view of that conclusion, I find no need to consider whether or not there is an adequacy of available land suitably zoned to accommodate the proposed development. The appellant's evidence did not deal with this aspect in any satisfactory manner.
Traffic
56. Each of Ross River Road and Nathan Street are declared roads under the control of the Main Roads Department. By letter dated March 2, 1987, the District Engineer advised the appellant's engineers that the Department would have no objection to work proceeding in accordance with the drawing then before it subject to acceptance by the appellant of certain conditions, the nature whereof need not be here considered. However the absence of such objection is not determinative of the traffic issue in favour of the appellant since the Department's concern is only with physical access to the site.
57. The respondent Council was and, on appeal, this Court is obliged to take into consideration -
“whether the proposal, if permitted, or buildings erected in conformity with the proposal, or both the proposal, if permitted, and the building so erected would -
- create a traffic problem or increase an existing traffic problem.”
(s. 33(6A)(e)(i) of the Local Government Act).
The respondent Council formulated five “traffic” reasons justifying its refusal. I heard evidence from Mr. Holland, an experienced traffic engineer who was called by the appellant, and from the Council's traffic engineer, Mr. Evanson. Those witnesses were in broad agreement upon many matters; such differences as existed arise from estimates made by each. Given the difficulty of predicting future traffic volumes and flow, I do not find it necessary to choose between the estimates as a clear enough general picture emerges. As to traffic conditions in Albert Street and Bergin Road, I gained insight as well from those local residents who gave evidence before me.
58. Each of Ross River Road and Nathan Street have dual carriageways with raised median strips. On each of the four approaches to the intersection there are two lanes for through traffic and separate lanes for right-and-left-turning traffic. Provision is made for pedestrian movements across each intersecting leg. Right-turning movements are heavy in each of the four quadrants and because of this the traffic system incorporates separate phases for such traffic. This intersection presently caters for up to 60,000 vehicle movements per week day or the equivalent of some 70% of all traffic to and from the entire Central Business District in the same period. I accept Mr. Evanson's statement that the intersection is operating at or close to its capacity. The feature of heavy turning traffic and heavy through traffic results in very long signal cycle times, of the order of 160 to 170 seconds. As a result, delays to individual vehicles on any approach are quite significant, typically approaching 120 seconds maximum with an average of about 60 seconds. Mr. Evanson said that the annual average growth rate for traffic would be in the order of 5 to 15%; the figure varies but he would accept 9% without question. He also said that the recently completed extension of Dalrymple Road connecting Nathan Street to Thuringowa Drive would not reduce the volume of traffic at the intersection although it should reduce the growth rate at the intersection to 3 or 4%.
59. Were the development to proceed, the only traffic unable to approach the site directly would be that approaching from the west; such traffic would more likely use Albert Street or Bergin Road as the initial approach to Nathan Street and so onto the site. The only traffic which could not directly leave the site to travel in the desired direction would be traffic heading southwards along Nathan Street which could -
- circumnavigate the Ross River Road/Hatchett Street/Bergin Road block (226 seconds, according to Mr. Holland);
- U-turn in Ross River Road west of the site at Lindeman Avenue (247 seconds);
- U-turn in Nathan Street north of the site at Wotton Street (210 seconds);
- turn right into Ross River Road and U-turn at Elizabeth Street (235 seconds); or
- turn right into Ross River Road and circumnavigate the Ross River Road/Elizabeth Street/Alfred Street block (242 seconds).
Such movements may occur to those familiar with the streets and the opportunities they present. I am not prepared to presume that all motorists entering or leaving the site will possess such ready familiarity or will be able to position their vehicles in the traffic flow so as to take advantage of those options. Again it must be remembered that it is hoped that the facilities will attract custom from the passing motorists who will often only become aware of the site as they pass it or only decide to patronise it after passing it: in such cases a range of manoeuvres leading back to the site will have to be performed.
60. Mr. Holland visualised the facilities on the site as being traffic intensive and so assumed that peak traffic generation of the site could be of the order of 400 vehicles per hour. He also wrote in his report -
“The intersection of Ross River Road and Nathan Street is already overloaded. The additional traffic introduced to the intersection at the peak hour by this development is estimated to be 50 vehicles per hour to the site, 70 vehicles per hour departing. This represents 1 percent and 1.3 percent respectively of peak flows at the intersection.”
Mr. Evanson's initial estimation of the traffic generated by the proposed development at the peak traffic period was in the range of 480 to 800 vehicles per hour. His estimate was based on two approaches. One was arrived at by trip generation rates for the categories of use proposed for the site, and for this purpose he had regard to the Kentucky Fried Chicken outlet westward of the subject land. That outlet, whilst serving a well-populated area, does lack the attractant advantage of being on the intersection of two major roads and opposite two regional shopping centres. The other approach was to have regard to calculations published by the road traffic authority in New South Wales for fast food facilities using such factors as site area, area of building, number of employees, and parking spaces.
61. A deal of educated guesswork is necessarily involved in predicting what likely traffic generation will flow from a development on the subject land when nothing is presently known as to the nature of the tenancies. In that situation I would prefer to adopt a conservative approach opting for the mean of the estimates and eschewing the highest figure. In this case demand for restaurant meals may generate flows at a different rate and time to the demand for counter service or for drive through service. The peak hour for trading at the facilities may not precisely coincide with the traffic peak although the existence of the facility may serve to lengthen the evening peak.
62. When all is said and done, I consider that only one fact is certain: traffic entering and leaving the site, as the revised proposal shows, must do so by either an entrance in Ross River Road or an entrance in Nathan Street, at distances of some 87 metres and 60 metres from the intersection corner of the site. As section 59 of these reasons show, only a motorist using the Nathan Street entrance after travelling from the south and then leaving via the Ross River Road exit could patronise the site without travelling through the intersection; even that journey would take the motorist close to the intersection so that the vehicle's presence on the road at the point could have an effect on traffic movement at the intersection. It would appear then that a very high percentage of patrons would traverse the intersection once while many would do so twice when resorting to the site. While those motorists wishing to patronise the site in the course of a westward journey along Ross River Road or of a northward journey along Nathan Street could both enter and leave the site by using the appropriate entrance, they would need to have positioned their vehicles in the kerbside lane in order to do so and, on leaving, would need to re-enter the traffic flow; such movements could have an indirect effect on the flow of traffic through the intersection.
63. Although the traffic volume generated by the site is likely to produce a small percentage increase in the volume of traffic using this intersection, even that small increase is important in the case of an intersection operating at or close to its capacity, especially should the traffic movements involve right turn movements which, as Mr. Evanson said, have a significant impact on the operating characteristics of the intersection.
64. Although both roads are under the control of the Main Roads Department, the respondent Council is the constructing authority for the Department. Mr. Evanson is unaware of any proposal either to upgrade this intersection or to carry out any works external to the intersection which may alleviate problems at the intersection. The Main Roads Department has a proposal to build a national highway bypass taking through traffic away from this part of Townsville. Such work requires funding by the Commonwealth. Mr. Evanson said “we are hoping” the bypass may a little earlier than the turn of the century. Clearly it is a long way off.
65. I am also satisfied that the proposed development could also have an adverse effect on traffic - and amenity in Albert Street and Bergin Road.
66. Albert Street, which abuts the site, has a pavement width of eight metres. The continuous median strip in Nathan Street forces eastbound traffic to turn left into Nathan Street. Bergin Road lies some 250 metres to the south of Albert Street. Its pavement width is 6.5 metres. At its intersection with Nathan Street the traffic may turn both left and right. Both long streets serve to drain that part of Cranbrook situated between Ross River Road and the river and are well patronised for that purpose so that residences alongside them are subject to heavy intrusion from through traffic seeking to avoid Ross River Road. Due to the fact that residents living west of the site could not enter the site by using the Ross River Road entrance, it is most likely that they would utilise either of these streets in order to use the Nathan Street entrance. That western area includes the area to the north of Ross River Road and residents from there could use Alice, Killara and Hatchett Streets to link up with Albert Street.
67. Albert Street has a maximum environmental capacity of about 1,000 vehicles per day and a maximum operating speed of about 40 to 50 kilometres per hour. Mr. Holland says that Albert Street presently carries about 1,100 vehicles per day. It is clear that, if the residential amenity of Albert Street is to be preserved, there should be no increase in the volume of traffic using it. I accept Mr. Evanson's statement that -
“once you exceed 1,000 to 1,500 vehicles per day, in that range, people do certainly notice the volumes. Particularly when they are in the residential sensitive hours people are settling down for the evening.”
Bergin Road presently carries about 4,000 vehicles per day. Mr. Evanson said -
“Albert Street, in fact most of the streets including Alice, Albert and Bergin Road and possibly Hatchett Street are all operating either at or above the environmental capacities normally accepted as being acceptable to residents ... It's resulted in a number of complaints over a number of years and more recently in petitions and fairly noticeable action by residents ... I have been directed by Council within the last month to undertake the social impact or travel impact surveys and other associated traffic surveys as a precursor to develop residential street management strategies throughout the area, not only in the two streets mentioned ... to either restrict or restrain the traffic.”
I had an opportunity to hear what some residents of those streets think about the traffic using them.
68. I consider it reasonable that such steps should be taken in order to mitigate such traffic problems. The appellant's proposal is clearly likely to exacerabate those problems.
69. The respondent Council - other than by its engineer Mr. Evanson - had not had an opportunity to consider Mr. Holland's suggestion. I do not think that it would be desirable or practicable to force that solution upon the Council against its will by way of any condition. Even if the suggested works were carried out, their effect would be to force more westbound traffic into Bergin Road, aggravating problems there.
70. So the traffic position, in my opinion, is that the proposed development will increase an existing traffic problem both at the busiest intersection in Townsville and in nearby residential streets. Until remedial roadworks are carried out it is premature to consider placing a traffic generating commercial development on the subject land.
Amenity
71. I have reached the conclusion that the application for rezoning should be refused and that the Council was correct in so doing on grounds of need and traffic. Such a conclusion renders it unnecessary for me to consider whether the proposed development would detrimentally affect the amenity of the adjoining residential area in the ways suggested by the respondent Council in its reasons for refusal. Such an examination would only be justified were I otherwise minded to find that the application should succeed on other grounds. Here difficulty arises from the very fact that I do not know the exact nature of each of the proposed buildings and of the businesses to be carried on therein. Thus any discussion of the impact of that activity must be hypothetical. I could act on assumptions as to the type of business and the types of noises and smells likely to emanate therefrom but such assumptions may bear little relationship to the final development.
I make no findings on this aspect.
72. The appeal is dismissed.