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Witmack Industrial Pty Ltd v Toowoomba Regional Council[2015] QPEC 7

Witmack Industrial Pty Ltd v Toowoomba Regional Council[2015] QPEC 7

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Witmack Industrial Pty Ltd v Toowoomba Regional Council [2015] QPEC 7

PARTIES:

WITMACK INDUSTRIAL PTY LTD

(Applicant)

v

TOOWOOMBA REGIONAL COUNCIL

(Respondent)

FILE NO/S:

325 / 2015

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2015

JUDGE:

Morzone QC DCJ

ORDER:

  1. The declaratory relief sought by the Applicant is refused;
  2. The development application the subject of this proceeding comprises “Service Station” and “Food and Drink Outlet” uses as defined in the Toowoomba Regional Council Planning Scheme 2012 (Version 6);
  3. The subject development application was not properly made;
  4. The “not properly made” notice issued by the Respondent dated 14 January 2015 is valid;
  5. Each party bears their own costs of and incidental to the proceeding.

CATCHWORDS:

APPLICATION FOR DECLARATIONS AS TO PROPERLY MADE APPLICATION – CHARACTERISATION OF INTENDED USE – Service Station – meaning of “ancillary” not defined in scheme – whether proposed takeaway/restaurant “ancillary” use to the primary use of a Service Station or results in an additional use subject of the mandatory requirements of a Development Application.

COUNSEL:

M Williamson from the Applicant

S Ure for the Respondent

SOLICITORS:

Hopgood Ganim Lawyers for the Applicant

Corrs Chambers Westgarth for the Respondent

  1. [1]
    The Applicant, by an Originating Application, seeks declaratory and consequential relief under s 456 of the Sustainable Planning Act 2009 (“SPA”) against the Respondent Council including:
  1. A declaration that the proposed primary use of the Land the subject of a Development Application is a "Service Station" as defined in the Toowoomba Regional Council Planning Scheme 2012 (Version 6);
  1. A declaration that proposed food and drink tenancies are ancillary uses to the proposed primary "Service Station" use of the Land;
  1. A declaration that the Application was properly made;
  1. A declaration that the "Not Properly Made" Notice issued by the Respondent dated 14 January 2015 is invalid and is of no effect;
  1. An order requiring the Respondent to accept and process the Application;
  1. Costs.
  1. [2]
    The Respondent Council opposes the application. I have had the benefit of written outlines of argument and oral argument, as well as some oral testimony supplementing the documents relied upon by the parties.

Background

  1. [3]
    On 23 December 2014, the Applicant lodged a code assessable Development Application for a development permit for material change of use of a Service Station and a development permit for Operational works for Advertising Signage (pylon signs).
  1. [4]
    The Development Application included a supporting town planning report, proposal plans and a traffic impact assessment study. The town planning report described the proposal in these terms:

“It is proposed to establish a Service Station on the part of the subject land that has frontage to the Warrego Highway (State controlled road).  The development area comprises part of Lot 301 (cancelling Lot 202 on SP 247509 and Lot 207 on AG 3720), has an area of approximately 3.30ha and is currently vacant.  The development area is generally shown in Figure 2 – Aerial Photograph.

The Service Station will provide retail fuel for light and heavy vehicles.  In addition, the Service Station will include an ancillary retail area (shop) and food and drink outlet.  These activities are included within the definition of a Service Station, as defined under the Toowoomba Regional Planning Scheme 2012….”

  1. [5]
    On 14 January 2015 the Respondent issued a notice under s 266 of SPA stating that it was unable to accept the Applicant’s Development Application as being properly made because the application did not contain the “mandatory requirements” as stated in s 260 of SPA.  The Respondent’s accompanying letter of 14 January 2015 explained that:

“The Development Application seeks approval for a Service Station and related Advertising Devices however does not specifically seek approval for the Food and Drink Outlet which is included in the proposal plans.”

  1. [6]
    The Applicant now seeks redress from the court.

Proposed Development

  1. [7]
    The proposed development was described in the mandatory requirements section of “IDAS Form 5 - Material Change of Use Assessable against a Planning Scheme” as “Service Station”.[1]
  1. [8]
    The proposed development includes:
  1. A fuel storage capacity of 430,000 litres. Thirteen bowsers will dispense unleaded fuel, diesel, ad-blue (diesel exhaust fluid) and liquid petroleum gas (LPG).  The total area of proposed covered links and refuelling canopies is 1,011m2.  Eight bowsers will be under a retail canopy spanning 397m2.  Five bowsers will be under a truck canopy spanning 340m2. 
  1. A weighbridge will be provided adjacent to the truck canopy
  1. A service centre will occupy 1032m2 of the land, and operate 24 hours a day for seven days a week.  It will contain:
  1. (a)
    a shop (convenience store) with a total floor area of 148m2 which will be integrated with and serviced by the primary console;
  1. (b)
    a restaurant servery, dining area, kitchen, and related cold room and store facilities;
  1. (c)
    the fast food tenancy of 199m2, adjacent to a fast food dining area, outdoor dining and playground area;
  1. (d)
    tourist information centre to provide visitors and tourists with information about the region; and
  1. (e)
    facilitates for long distance drivers including a drivers lounge and shower facilities;
  1. (f)
    toilet and change facilities.
  1. Sixty-two car parking spaces located to the west of the service centre.  This includes the provision of three parks for caravans.
  1. Twenty-one truck parking spaces of 40 metres in length, located south of the service centre.
  1. Two pylon signs located on the Warrego Highway frontage (one being BP signage and the second being the fast food tenancy fast food signage).
  1. Left in, left out access to the Warrego Highway for westbounders and access for eastbounders to and from O'Mara Road.

Planning Requirements

  1. [9]
    The development of the land is governed by the Toowoomba Regional Planning Scheme 2012, which was promulgated under the provisions of SPA. The planning scheme contains the following relevant definitions of “Service Station” and “Food and Drink Outlet” (with my underlining):

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include the following examples

Service Station

Premises used for the sale of fuel including petrol, liquid petroleum, gas, automotive distillate and alternative fuels.

The use may include, where ancillary, a shop, food and drink outlet, maintenance, repair, service and washing of vehicles, hire of trailers and supply of compressed air.

 

Car wash

Food and Drink Outlet

Premises used for preparation and sale of food and drink to the public for consumption on or off the site. The use may include the ancillary sale of liquor for consumption on site.

Bistro, face, coffee shop, drive-through facility, kiosk milk bar, restaurant, snack bar, take-away, tea room

Bar, club, hotel, shop, theatre, nightclub entertainment facility

  1. [10]
    The definition of “Service Station” in the QPP is very slightly different to the scheme definition. The QPP defines “Service Station” as follows (with my underlining):

“Premises used for the sale of fuel including petrol, liquid petroleum gas, automotive distillate and alternative fuels.

The use may include, where ancillary, a shop, food and drink outlet, maintenance, repair servicing and washing of vehicles, the hire of trailers, and supply of compressed air.”

  1. [11]
    To the keen eye, the difference lies in the insertion of a comma between the words “petroleum” and “gas” in the Scheme definition.  Even so, pursuant to s 53 of SPA the QPP prevails to the extent of an inconsistency with a local planning instrument.

Issue

  1. [12]
    There is no dispute that the fast food tenancy use (described on the pylon sign drawings as a proposed KFC tenancy)[2] is a “Food and Drink Outlet” within the meaning of the scheme.  However, the Respondent contends that the proposed fast food tenancy use is not ancillary to the primary use, and the application should have been for “Service Station” and “Food and Drink Outlet”.
  1. [13]
    If this is correct, then pursuant to s 261 of SPA, the application was not properly made for non-compliance with s 260(3) by failing to nominate the Food and Drink Outlet as one of the uses, and failing to give all of the information required under the mandatory requirements part of the approved form. 
  1. [14]
    The Applicant maintains that the proposed development is properly characterised as “Service Station” and the Development Application is a properly made application.  In turn, the Applicant seeks declaratory relief and order to compel the Respondent to issue an acknowledgement notice for the Development Application under s 267 of SPA.
  1. [15]
    Therefore, the determinative issue is whether the proposed food and drink outlet, fast food tenancy use, is “ancillary” to the primary use of the Service Station use, and is therefore part of the use of “Service Station” as defined in the QPP.

“where ancillary”

  1. [16]
    The term “ancillary” is not defined in the scheme, the SPA, the Sustainable Planning Regulation 2009 or the Acts Interpretation Act 1954.  Therefore, pursuant to s 1.3.1(1)(e) of the scheme the term must be given its ordinary meaning.
  1. [17]
    The Macquarie Dictionary defines “ancillary”, and related terms - “accessory” and “axillary” as:

“ancillary … adjective 1. Accessory; auxiliary. – noun (plural ancillaries) 2.  An accessory, subsidiary or helping thing or person…”

“accessory ... noun … 1. A subordinate part or object; something added or attached for convenience, attractiveness, etc., such as a spotlight, heater, driving mirror, etc., for a vehicle.  …”

“auxiliary … adjective 1. Giving support; helping; aiding; assisting.  2. Subsidiary; additional. … 4. A group or organisation which assists or is supplementary to a larger one. …”

  1. [18]
    In the Oxford English Dictionary “ancillary” similarly defined as:

“ancillary … 1 Bring into a subordinate position; make dependant or subservient. … 2 Make inferior or secondary; consider as of less importance or value. ...”

  1. [19]
    The courts have applied the ordinary meaning of the term, in planning cases, and involves questions of fact and degree in determining whether or not something is ancillary to another.[3]
  1. [20]
    In Drouyn v Rose,[4] the Queensland Full Court considered the term “ancillary” in an appeal against a conviction for carrying on a business in a General Industry Zone in breach of the zoning provision of the Brisbane City Council Planning Scheme. Andrews  J (with whom Lucas SP J and Dymock J agreed) said (at p 220).

“‘Ancillary’ by definition means incidental and subordinate. Apart from the definition in the Plan it would be difficult to ascribe any other meaning to it, in my view.”

  1. [21]
    In Fraser Straits Marina Pty Ltd v Cooloola Shire Council,[5] Brabazon QC DCJ said at [22]:

“Usually the use of the word ‘ancillary’ is used to denote a close link to a purpose for which land is used.”   

  1. [22]
    Similarly, in Cameron v Berg,[6] per Helman J said at p 4 said:

“Accordingly I conclude that for something to be ancillary to something else the former must have some association or relationship with the latter.  That construction of the word ‘ancillary’ is consistent with the primary meaning of the word which is recorded in the Oxford English Dictionary 2 Ed. 1989 ‘subservient, subordinate, ministering (to).”

  1. [23]
    However, whilst the association or relationship does not necessarily require a physical connection,[7] it must be more than interdependence or mere co-existence.[8]  In Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 per Basten JA said at [10]:

“Paragraph (a) requires more than interdependence; it requires a dominant and subservient relationship.  Thus, for a development to be ‘ancillary to’ another development, it must not merely coexist with, but must serve the purposes of, the other development.  If a sewerage treatment plant were proposed for land involving a residential development, it might well be ancillary to that development if it took and processed sewerage emanating from the use of the residential development.  On the other hand, if the plant were designed to assist in meeting the needs of other buildings in the area, although its construction might be subservient to the dominant purpose of residential development, its wider function might mean it was not ancillary to that particular development.  It might not qualify as ancillary if it had a not insignificant extraneous purpose.”

  1. [24]
    Whilst these cases provide helpful applications of the ordinary meaning of the term “ancillary”, ultimately, each case must be decided having regard to its own context, facts and circumstances to weigh up whether or not one planning use is ancillary to another.

Discussion

  1. [25]
    The Scheme and QPP definition includes the uses of “a shop, food and drink outlet, maintenance, repair servicing and washing of vehicles, the hire of trailers, and supply of compressed air” only “where ancillary” to the primary use of the Service Station development.  The primary use being: “Premises used for the sale of fuel including petrol, liquid petroleum gas, automotive distillate and alternative fuels.”
  1. [26]
    Relevantly here, the Applicant must show that the proposed fast food tenancy use is ancillary to the primary use of the sale of fuel.
  1. [27]
    The primary use of the proposed development is of a significantly large scale in terms of its fuel storage, supply and service capacity. This is demonstrated by the variety of fuel types, total number of bowsers and dedicated areas for refuelling and parking for typical vehicle types. The scale of the use is also consistent with the locational attributes of the land and likely custom.
  1. [28]
    The development is proposed within an industrial precinct and surrounding land is intended to be developed for industrial uses.[9]  The land is located on the Warrego Highway in Charlton approximately 8.2 kilometres north-west of the Toowoomba suburb of Wilsonton and outside the urban footprint part of Toowoomba.  The Warrego Highway is a national highway with a posted speed limit of 80 km/hr.  Significant road upgrades are planned for the road network near the land, including the construction of a bypass is reflected in the Respondent’s 2012 Planning Scheme.  As at 2012, the Warrego Highway was recorded as carrying in the order of 12,880 vehicles per day, which is estimated to increase twofold by 2015.
  1. [29]
    The land is located functionally within an area comprising more than 1,400 ha and described as the Charlton Wellcamp Enterprise Area. This is a planned major employment area intended to serve as a regionally significant employment hub serving as a major business and employment area for the Toowoomba, Surat Basin energy province and broader Darling Downs region. The relevant planning document governing development in this area identifies that, when developed, the area will accommodate approximately 315 ha of land within the general industry precinct and provide employment for more than 10,000 employees.[10]
  1. [30]
    It is apparent from the site layout plan[11] and the floor plan[12] that:
  1. The total area of proposed covered links and refuelling canopies is 1,011m2.  Eight bowsers will be under a retail canopy spanning 397m2.  Five bowsers will be under a truck canopy spanning 340m2.  Sixty-two car parking spaces will be located to the west of the service centre (including the provision of three parks for caravans).
  1. The proportion of the total building devoted to the food and drink outlets and associated dining areas is significant – slightly more than half of the proposed building’s gross floor area. 
  1. The fast food tenancy use is in a separate tenancy of 199m2, which, taken with the adjacent fast food dining area, is 310m2.  It is also more proximate to the outdoor dining and playground area.
  1. The fast food tenancy service delivery will be via the tenancy area, two external servery windows and its own drive‑through service area.  It will have its own consoles for the payment of goods, separate from the service station.
  1. The fast food tenancy is in addition to, and physically distinct from, the proposed kitchen, restaurant servery and adjacent dining area.  It is disassociated with those areas and shop, service station console and service station “back of house areas” (staff room, store, office, deliveries etc.).
  1. [31]
    The fast food tenancy will have its own pylon sign fronting the Warrego Highway. The size and bulk of the signage will rival, if not exceed, that of the service station signage.
  1. [32]
    The fast food tenancy will be served by other dining areas, deliveries and refuse area, toilet facilities, and car parking area, all shared by the various uses comprising the proposed development. It seems to me cross-pollination of some areas between ancillary uses, does not advance the Applicant’s case much, if at all, in relation to the primary use.
  1. [33]
    Table 3.1 of the Traffic Report which accompanied the application[13] disclosed that the fast food tenancy will generate 100 vehicles per hour in the peak hour whereas the aggregate of the Service Station fuel sales use, the 148m2 BP shop/convenience store, the tourist information facility and the restaurant servery and dining area and amenities will only generate some 126 vehicles per hour.
  1. [34]
    The Applicant sought to downplay this traffic generation, as being one approach in the absence of historical traffic data and underdevelopment of the area. However, it cannot shrink from the fact that it forms part of supporting material of the Development Application.
  1. [35]
    Mr Healey testified, based on the material supporting the application, that the fuel sales use could generate 82 vehicles per hour, thereby making the fast food tenancy the prime traffic generator compared to the whole. This is consistent with the conclusion of Mr Healey in his report that:

“Based upon review of the traffic engineering matters relevant to the application, it is my view that the proposed fast food style food/drink outlet proposed as part of the subject development has the potential to be the significant traffic generating component of the development and could generate the majority of that traffic demand independent of the service station function.”

  1. [36]
    It is clear that the proposed Fast Food Outlet was inspired by, and compatible with, the primary use of the Service Station. However, having regard to the characteristics of the proposed development, I am unable to discern sufficient indicia that the fast food tenancy is dependent, subservient, or subordinate to the primary use. In my view, the weight of evidence is that the proposed fast food tenancy use will co-exist in an independent and dominant way, and not ancillary to the primary use, in terms of its physical attributes, occupation, custom, operations, traffic generation and the ratio of space occupied in relation to the whole.
  1. [37]
    I am therefore bound to conclude that the Applicant has not demonstrated that the proposed Food and Drink Outlet, being the fast food tenancy use, is ancillary to the primary use of the Service Station; and it is therefore not part of the Service Station use as defined in the QPP and the planning scheme.
  1. [38]
    For these reasons, I decline to make the declarations sought by the Applicant.

Orders

  1. [39]
    Accordingly, the orders of the court are:
  1. The declaratory relief sought by the Applicant is refused;
  1. The development application the subject of this proceeding comprises “Service Station” and “Food and Drink Outlet” uses as defined in the Toowoomba Regional Council Planning Scheme 2012 (Version 6);
  1. The subject development application was not properly made;
  1. The “not properly made” notice issued by the Respondent dated 14 January 2015 is valid;
  1. Each party bears their own costs of and incidental to the proceeding.

Judge D.P. Morzone QC

Footnotes

[1]  Exhibit DLN1 to affidavit of Mr Nicholls (Court Document No. 2), page 8

[2]  Exhibit DLN 1, page 79

[3]  For example: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 per Glass JA at 161, considered in Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211; Drouyn v Rose [1982] 50 LGRA 215 at 220; Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338 at [74] citing Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 at 14; Fraser Straits Marina Pty Ltd v Cooloola Shire Council [2007] QPEC 080 per Brabazon QC DCJ at [22]; Cameron v Berg [2001] QSC 228 per Helman J; Miller v Sutherland Shire Council (1996) 130 LGERA 286 per Bignold J at 295; Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 per Basten JA at [10]. 

[4]  [1982] 50 LGRA 215 at 220

[5]  [2007] QPEC 080

[6]  [2001] QSC 228

[7] Miller v Sutherland Shire Council (1996) 130 LGERA 286 per Bignold J at 295

[8] Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 per Basten JA at [10]

[9] Aff. Nicholls - Exhibit DLN1 page 29

[10] Aff. Perkins - Exhibit DWP-2 - Report of Mr Perkins, section 5.2

[11]  Aff. Nicholls - Exhibit DLN1 page 74

[12]  Aff. Nicholls - Exhibit DNL1 page 75

[13]  Aff. Nicholls - Exhibit DLN1 page 175

Close

Editorial Notes

  • Published Case Name:

    Witmack Industrial Pty Ltd v Toowoomba Regional Council

  • Shortened Case Name:

    Witmack Industrial Pty Ltd v Toowoomba Regional Council

  • MNC:

    [2015] QPEC 7

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    10 Mar 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338
1 citation
Jump To
Cite 1 - [2008] NSWCA 338
Drouyn v Rose [1982] 50 LGRA 215
2 citations
Jump To
Cite 1 - [1982] 50 LGRA 215
Cite 2 - [1982] 50 LGRA 215
Ewen Rodney Cameron & Judith Anne Cameron v John Robert Berg & Patsy Anne Berg [2001] QSC 228
2 citations
Jump To
Cite 1 - [2001] QSC 228
Cite 2 - [2001] QSC 228
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
1 citation
Jump To
Cite 1 - (1975) 32 LGRA 157
Fraser Straits Marina v Cooloola Shire Council [2007] QPEC 80
2 citations
Jump To
Cite 1 - [2007] QPEC 80
Cite 2 - [2007] QPEC 80
Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12
1 citation
Jump To
Cite 1 - (1977) 18 ALR 12
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
1 citation
Jump To
Cite 1 - (1983) 155 CLR 211
Miller v Sutherland Shire Council (1996) 130 LGERA 286
2 citations
Jump To
Cite 1 - (1996) 130 LGERA 286
Cite 2 - (1996) 130 LGERA 286
Toner Design Pty Ltd v Newcastle City Council (2013) [2013] NSWCA 410
3 citations
Jump To
Cite 1 - [2013] NSWCA 410
Cite 2 - [2013] NSWCA 410
Cite 3 - [2013] NSWCA 410

Cases Citing

Case NameFull CitationFrequency
Sanad Capital Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 82 citations
1

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