Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors
[1990] LG 679
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- Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors[1990] LG 679
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Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors[1990] LG 679
Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors[1990] LG 679
THE LOCAL GOVERNMENT COURT OF QUEENSLAND HELD AT BRISBANE | L.G.A. No. 191 of 1989 |
BETWEEN:
ELAN CAPITAL CORPORATION PTY. LTD. & ANOR. | Appellants |
AND:
BRISBANE CITY COUNCIL & ORS. | Respondents |
Delivered 24th May, 1990
REASONS FOR JUDGMENT - QUIRK D.C.J.
This appeal is against the respondents' refusal of an application for the rezoning of a total area of a little over 3,500 square metres of land fronting Racecourse Road, Ascot from the Residential “B” zone to a Particular Development zone which would enable the site to be used for a complex with a gross floor area not exceeding 913 square metres comprising shops and a coffee shop of a gross floor area not exceeding 80 square metres.
The site has a frontage of almost 90 metres to Racecourse Road and is made up of six separate residential allotments, the southern most of which is at the intersection of Windermere Road. Residential buildings of varying types and condition presently stand on the site.
In the reports of the Town Planning Consultant, who gave evidence, land use in the general area is dealt with in detail. Along the length of Racecourse Road commercial and retail activity has grouped in four areas around intersections. One of these clusters has formed at the Windermere Road - Racecourse Road - Kent Street intersection and the corner on which the subject land is found is the only one which remains in residential use.
It must be said that, with a view to achieving harmony with the architecture to be found in this attractive part of the city, considerable effort has gone into the design and landscaping of the proposal, which is intended to be a single storied structure of “colonial” character with wide verandas enclosing the shopping area. I was informed that the focus of the complex would be the coffee shop and that other retail outlets be of the “speciality” rather than “convenience” shopping type. To create a more attractive streetscape, the building has been located adjacent to the Racecourse Road frontage with some recessing of shop fronts to allow opportunities for landscaping and pedestrian activity. In consultation with planning officers of the respondent, it was decided that it would be appropriate that car parking be located at the rear of the building.
There was no serious criticism of the design itself from any of the Town Planning experts who gave evidence. The real issue in the case was whether it was desirable, from a planning viewpoint, to introduce a non-residential use on the scale here proposed onto the western side of Racecourse Road, north of Windermere Road when between the intersection and Beatrice Terrace (which forms the next intersection to the north) development is entirely residential (save for a detached house on the Beatrice Terrace corner which serves as a Medical-Dental Clinic). In the Town Plan the entire block (which is bounded by Charlton Street to the west) is zoned Residential “B”.
The planning of future development in Racecourse Road has excited a considerable amount of community interest. There have been pressures for further commercial development along the road and this has provoked adverse reaction from residents of the area who fear a resultant reduction in the high standard of residential amenity which they enjoy. The respondent has, quite sensibly, recognized that continued growth in the area (attributable mainly-to an increase in the density of residential development occurring) will inevitably lead to a need for further retail and commercial facilities. Section 16 of the Town Plan speaks of these needs and the planning authorities' intention to prepare a Development Plan for the Racecourse Road area.
In 1987 a brief was given to a firm of Consultants to commence a study of the character of the area with a view to identifying an appropriate land use strategy. Over the next few years there occurred a considerable amount of activity involving public exhibition of certain parts of the Consultants' study, the formation of community consultative groups and reception of community comment. As one might anticipate community reaction has been by no means uniform and many and varied points of view have been expressed.
In December, 1989 the respondent approved the preparation of a Draft Development Plan for the Racecourse Road area. This was done in a form that was adopted on 3rd April last and about one week later it was placed on public exhibition. The expressed aims of the Draft Development Plan are:—
“(a) To preserve and enhance the unique character of the planned area;
- To facilitate coordinated development of the planned area;
- To encourage development which is compatible with the character of the planned area in terms of appearance;
- To encourage development of an attractive safe and convenient pedestrian environment;
- To facilitate the preservation of residential amenity in the planned area;
- To encourage a harmonized mix between retail, commercial and residential land uses;
- To contain commercial/retail developments within discrete clusters.”
Consistently with those objectives and importantly, as far as this appeal is concerned, it is to be noted that the entire western side of Racecourse‘Road between Windermere Road and Beatrice Terrace has been included in “Residential Precinct P1” for which (the Plan states):—
“Land in this Precinct is intended for predominantly medium intensity residential development.”
In relation to Residential Precincts generally it is stated:—
“In the Residential Precincts, commercial or retail uses are strictly prohibited to ensure that residential land uses are adequately protected.”
I had the advantage of evidence from Mrs. Deanna Heinke, a Senior Planner who has been with the respondent for a considerable time and has had the management of a team of planning staff involved in the evolution of this Draft Development Plan. I accept without hesitation that it has been a task which, while certainly not without its difficulties, has been performed in a thorough and professional manner and with commendable attention being paid to the community interest in the issues involved.
Mr. Simmons, a Town Planning Consultant called by the appellants, saw in the time that has been taken to prepare the plan for exhibition, the various planning options that have been considered and the spirited public response to these, an indication that:—
“The Council has had some difficulty in clearly determining what the appropriate land use strategy should be, and in satisfying the expectation of all the local community grouped.”
He felt able to add a consideration that it is unlikely that the Development Plan will receive general community acceptance and that significant revision of the Development Plan would be required prior to its submission for approval by the Governor in Council.
Mr. Challenor, an experienced Town Planning Consultant who was also called by the appellants, thought the Draft Development Plan basically sound and providing desirable performance standards. He was generally in agreement with its thrust and saw it as “a much needed response to the redevelopment pressures and to the inappropriate form of some recent development and residential/commercial conflicts”. However, he felt bound to make some criticisms of the way in which it did not, in his view, adequately meet the need for further commercial opportunities in the Central Commercial Node (the Node centred around the junction of Racecourse Road with Kent Street and Windermere Road). He saw this development proposal as an appropriate and logical extension of this Node and observed that the subject land “could just have readily been included in the Commercial Precinct 1”. He did not see an approval in this case as upsetting the major objectives of the plan.
Mr. Humphries, a Town Planning Consultant who also has wide experience, took a different view. He saw the identification of Residential Precinct 1 as a very important part of the fabric of the Draft Development Plan, which he felt deserved respect as a proper refinement of the respondents' planning intentions for this area. The draft plan's proposal that the land in this section of Racecourse Road remain in low to medium density residential use is, he pointed out, quite consistent with the Town Plan's current zoning provisions which include the land in the Residential “B” zone. This proposal, he felt, was in direct conflict with the Draft Development Plan and would, if put into effect, constitute a serious obstacle to its implementation in its present form.
I must emphasize that I fully appreciate that, at the time of this appeal, the plan was still on exhibition for the receipt of public objection to it. One can not say with any certainty what form it will ultimately take. However, I can not get away from the fact that its adoption by the respondent is a clear statement of planning strategy which, for reasons which I have already noted, has, I accept, been made in a careful and well considered way. The opinions of Mr. Challenor are invariably worthy of respect and I do not reject his criticisms of the plan as necessarily ill-founded. However, I accept the view put forward by Mr. Humphries that this proposal would be a serious intrusion upon the integrity of Residential Precinct 1 which forms an important part of the Draft Development Plan.
It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has chosen to adopt (Brazier v. Brisbane City Council 26 L.G.R.A. 322 at 327). As was observed by Carter J. in Sheezel & Anor. v. Noosa Shire Council 1980 Q.P.L.R. 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to “cut across” in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.
Other issues were raised in the appeal. Some difficulties were identified in relation to the proposal's likely creation of uncontrolled pedestrian movement across Racecourse Road. Traffic Engineers gave evidence on the point and it does seem that this is a matter which would, in itself, called for the proposal's rejection. Mr. Winders, an Acoustic's Engineer, told me that the proposal would be unlikely to cause unacceptable levels of noise so as to be a nuisance to adjoining landholders. His evidence was not seriously challenged but, as the evidence of nearby residents who came to Court to oppose the rezoning indicated, it was not simply likely noise nuisance that concerned them.
I was appreciative of the interest shown by those residents who took part in the hearing of the appeal and who gave evidence to assist me in reaching my decision. Their opposition to the intrusion of a non-residential development as substantial as this proposal along the frontage to Racecourse Road was firmly expressed. It was also of considerable interest to hear their support for the Draft Development Plan which they, in the main, recognized as a fair comprise having regard to the many and varied interests of those concerned with the future of this area.
In the end result I feel that Mr. Humphries was right when he said:—
“Because of its inherent validity, its antecedents in and consistency with current statutory documents and the process that has been carried out to arrive at this point, the Draft Development Plan should be given considerable weight in determining this application for rezoning. The proposed rezoning is clearly and significantly inconsistent with the draft plan. Primarily for this reasons the application should be refused.”
The onus of showing that the application should be approved has not been discharged. The appeal is dismissed.